[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
15
Commerce and Foreign Trade
PART 800 TO END
Revised as of January 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
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U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
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Table of Contents
Page
Explanation................................................. v
Title 15:
Subtitle B--Regulations Relating to Commerce and Foreign Trade (Continued):
Chapter VIII--Bureau of Economic Analysis, Department of
Commerce............................................ 5
Chapter IX--National Oceanic and Atmospheric
Administration, Department of Commerce.............. 33
Chapter XI--Technology Administration, Department of
Commerce.............................................. 365
Chapter XIII--East-West Foreign Trade Board............. 379
Chapter XIV--Minority Business Development Agency....... 381
Subtitle C--Regulations Relating to Foreign Trade Agreements:
Chapter XX--Office of the United States Trade
Representative........................................ 387
Subtitle D--Regulations Relating to Telecommunications and Information:
Chapter XXIII--National Telecommunications and Information
Administration, Department of Commerce................ 433
Finding Aids:
Material Approved for Incorporation by Reference.......... 451
Table of CFR Titles and Chapters.......................... 453
Alphabetical List of Agencies Appearing in the CFR........ 469
List of CFR Sections Affected............................. 479
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 15 CFR 801.1 refers to title 15, part
801, section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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citations for the regulations are referred to by volume number and page
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
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Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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appropriate numerical list of sections affected. For the period before
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1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
the period beginning January 1, 1986, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
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A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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For inquiries concerning CFR reference assistance, call 202-523-5227
or write to the Director, Office of the Federal Register, National
Archives and Records Administration, Washington, DC 20408 or e-mail
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 1998.
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THIS TITLE
Title 15--Commerce and Foreign Trade is composed of three volumes.
The parts in these volumes are arranged in the following order: parts 0-
299, 300-799, and part 800-End. The first volume containing parts 0-299
is comprised of Subtitle A--Office of the Secretary of Commerce, chapter
I--Bureau of the Census, Department of Commerce, and chapter II--
National Institute of Standards and Technology, Department of Commerce.
The second volume containing parts 300-799 is comprised of chapter III--
International Trade Administration, Department of Commerce, chapter IV--
Foreign-Trade Zones Board, and chapter VII--Bureau of Export
Administration, Department of Commerce. The third volume containing part
800-End is comprised of chapter VIII--Bureau of Economic Analysis,
Department of Commerce, chapter IX--National Oceanic and Atmospheric
Administration, Department of Commerce, chapter XI--Technology
Administration, Department of Commerce, chapter XIII--East-West Foreign
Trade Board, chapter XIV--Minority Business Development Agency, chapter
XX--Office of the United States Trade Representative, and chapter
XXIII--National Telecommunications and Information Administration,
Department of Commerce. The contents of these volumes represent all
current regulations codified under this title of the CFR as of January
1, 1998.
A redesignation table appears in the Finding Aids section of the
volume containing Parts 300-799
For this volume, Gregory R. Walton was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
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TITLE 15--COMMERCE AND FOREIGN TRADE
(This book contains part 800-end)
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Part
SUBTITLE B--Regulations Relating to Commerce and Foreign Trade
(Continued):
Chapter viii--Bureau of Economic Analysis, Department of
Commerce.................................................. 801
Chapter ix--National Oceanic and Atmospheric Administration,
Department of Commerce.................................... 902
Chapter xi--Technology Administration, Department of
Commerce.................................................. 1150
Chapter xiii--East-West Foreign Trade Board................. 1300
Chapter xiv--Minority Business Development Agency........... 1400
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
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Subtitle B--Regulations Relating to Commerce and Foreign Trade (Continued)
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CHAPTER VIII--BUREAU OF ECONOMIC ANALYSIS, DEPARTMENT OF COMMERCE
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Part Page
801 Survey of international trade in services
between U.S. and foreign persons........ 7
806 Direct investment surveys................... 16
807 Public information.......................... 32
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PART 801--SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S. AND FOREIGN PERSONS--Table of Contents
Sec.
801.1 Purpose.
801.2 Recordkeeping requirements.
801.3 General reporting requirements.
801.4 Response required.
801.5 Confidentiality.
801.6 Penalties.
801.7 General definitions.
801.8 Miscellaneous.
801.9 Reports required.
801.10 Rules and regulations for the BE-20, Benchmark Survey of
Selected Services Transactions with Unaffiliated Foreign
Persons.
801.11 Rules and regulations for the BE-80, Benchmark Survey of
Financial Services Transactions Between U.S. Financial
Services Providers and Unaffiliated Foreign Persons.
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. 12013, 3 CFR, 1977
Comp., p. 147, E.O. 12318, 3 CFR, 1981 Comp., p. 173, and E.O. 12518, 3
CFR, 1985 Comp., p. 348.
Source: 51 FR 7772, Mar. 6, 1986, unless otherwise noted.
Sec. 801.1 Purpose.
The purpose of this part is to set forth the rules and regulations
necessary to carry out the data collection program concerning
international trade in services that is required by, or provided for in,
the International Investment and Trade in Services Survey Act (Pub. L.
94-472, 90 Stat. 2059, 22 U.S.C. 3101 to 3108, as amended by section 306
of Pub. L. 98-573), hereafter ``the Act.'' The overall purpose of the
Act with respect to services trade is to provide comprehensive and
reliable information pertaining to international trade in services, and
to do so with the minimum burden on respondents and with no unnecessary
duplication of effort. The data are needed for policymaking purposes,
for conducting international negotiations on trade in services, and for
improving the recording of services transactions in the U.S. balance of
payments accounts.
Sec. 801.2 Recordkeeping requirements.
In accordance with section 5(b)(1) of the Act (22 U.S.C 3104),
persons subject to the jurisdiction of the United States shall maintain
any information (including journals or other books of original entry,
minute books, stock transfer records, lists of shareholders, or
financial statements) which is essential for carrying out the surveys
and studies provided for by the Act.
Sec. 801.3 General reporting requirements.
(a) In accordance with section 5(b)(2) of the Act (22 U.S.C. 3104)
persons 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.
(b) Such reports may be required from any U.S. person, other than
the U.S. Government, engaged in international trade in services.
Specific reporting requirements for a given report form are set forth
below and, in more detail, on the form itself.
Sec. 801.4 Response required.
Reports, as specified below, are required from all U.S. persons
coming within the reporting requirements, whether or not they are
contacted by BEA. In addition, any person BEA contacts by sending them
report forms must respond in writing. The response must be made by the
due date of the report, either by filing the properly completed report
form or by certifying in writing on the form that the person has no
international services transactions within the purview of the Act or the
regulations contained herein. The latter requirement is necessary to
ensure compliance with reporting requirements and efficient
administration of the Act.
Sec. 801.5 Confidentiality.
Information collected pursuant to Sec. 801.3 is confidential (see
section 5(c) of the Act, 22 U.S.C. 3104).
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(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 Sec. 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 it identifiable as being derived from the records of such
customer.
Sec. 801.6 Penalties.
(a) Whoever fails to furnish any information required by the Act or
by Sec. 801.3, or to comply with any other rule, regulation, order or
instruction promulgated under the Act, may be subject to a civil penalty
not exceeding $10,000 in a proceeding brought in an appropriate United
States court and to injunctive relief commanding such person to comply,
or both (see section 6 (a) and (b) of the Act, 22 U.S.C. 3105).
(b) Whoever willfully fails to submit any information required by
the Act or by Sec. 801.3, or willfully violates any other 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 or any corporation who knowingly
participates in such violation, upon conviction, may be punished by a
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C.
3105).
(c) Any person who willfully violates Sec. 801.5 relating to
confidentially, shall, upon conviction, be fined not more than $10,000,
in addition to any other penalty imposed by law (see section 5(d) of the
Act, 22 U.S.C. 3104).
Sec. 801.7 General definitions.
(a) Services means economic activities whose outputs are other than
tangible goods. Such term includes, but is not limited to, banking,
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.
(b) 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.
(c) 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.
(d) 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).
(e) United States person means any person resident in the United
States or subject to the jurisdiction of the United States.
(f) Foreign person means any person resident outside the United
States or subject to the jurisdiction of a country other than the United
States.
(g) Business enterprise means any organization, association, branch,
or venture which exists for profitmaking purposes or to otherwise secure
economic
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advantage, and any ownership of any real estate.
(h) Unaffiliated foreign person means, with respect to a given U.S.
person, any foreign person that is not an ``affiliated foreign person''
as defined in paragraph (i) of this section.
(i) Affiliated foreign person means, with respect to a given U.S.
person--
(1) A foreign affiliate of which the U.S. person is a U.S. parent;
or
(2) The foreign parent or other member of the affiliated foreign
group of which the U.S. person is a U.S. affiliate.
(j) Parent means a person of one country who directly or indirectly,
owns or controls 10 per centum or more of the voting stock of an
incorporated business enterprise, or an equivalent ownership interest in
an unincorporated business enterprise, which is located outside that
country.
(k) Affiliate means a business enterprise located in one country
which is directly or indirectly owned or controlled by a person of
another country to the extent of 10 per centum or more of its voting
stock for an incorporated business or an equivalent interest for an
unincorported business, including a branch.
(l) U.S. parent means the U.S. person that has direct investment in
a foreign business enterprise.
(m) Foreign affiliate means an affiliate located outside the United
States in which a U.S. person has direct investment.
(n) Foreign parent means the foreign person, or the first person
outside the United States in a foreign chain of ownership, which has
direct investment in a U.S. business enterprise, including a branch.
(o) U.S. affiliate means an affiliate located in the United States
in which a foreign person has a direct investment.
(p) Affiliated foreign group means--
(1) The foreign parent;
(2) Any foreign person, proceeding up the foreign parent's ownership
chain, which owns more than 50 per centum of the person below it up to
and including that person which is not owned more than 50 per centum by
another foreign person; and
(3) Any foreign person, proceeding down the ownership chain(s) of
each of these members, which is owned more than 50 per centum by the
person above it.
Sec. 801.8 Miscellaneous.
(a) Required information not available. All reasonable efforts
should be made to obtain information required for reporting. Every
applicable question on each form or schedule should be answered. When
only partial information is available, an appropriate indication should
be given.
(b) Estimates. If actual figures are not available, estimates should
be supplied and labeled as such. When a data item cannot be fully
subdivided as required, a total and an estimated breakdown of the total
should be supplied.
(c) Specify. When ``specify'' is included in certain data items, the
type and dollar amount of the major items included must be given for at
least the items mentioned in the line or column instruction.
(d) Space on form insufficient. When space on a form is insufficient
to permit a full answer to any item, the required information should be
submitted on supplementary sheets, appropriately labeled and referenced
to the item of column number and the form.
(e) Extensions. Requests for an extension of a reporting deadline
will not normally be granted. However, in a hardship case, a written
request for an extension will be considered provided it is received at
least 15 days prior to the due date of the report and enumerates
substantive reasons necessitating the extension.
(f) Number of copies. A single original copy of each form or
schedule shall be filed with the Bureau of Economic Analysis. This
should be the copy with the address label if such a labeled copy has
been provided. In addition, each respondent must retain a copy of its
report to facilitate resolution of problems. Both copies are protected
by law; see Sec. 801.5.
(g) Other. Instructions concerning filing dates, where to send
reports, and whom to contact concerning a given report are contained on
each form.
Sec. 801.9 Reports required.
(a) Benchmark surveys. Section 4(a)(4) of the Act (22 U.S.C. 3103)
provides that
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benchmark surveys of trade in services between U.S. and unaffiliated
foreign persons be conducted, but not more frequently than every 5
years. General reporting requirements, exemption levels, and the year of
coverage of the BE-20 survey may be found in Sec. 801.10, and general
reporting requirements, exemption levels, and the year of coverage of
the BE-80 survey may be found in Sec. 801.11. More detailed instructions
are given on the forms themselves.
(b) Annual surveys. (1) BE-29, Foreign Ocean Carriers' Expenses in
the United States:
(i) Who must report. A BE-29 report is required from U.S. agents on
behalf of foreign ocean carriers transporting freight or passengers to
or from the United States. U.S. agents are steamship agents and other
persons representing foreign carriers in arranging ocean transportation
of freight and cargo between U.S. and foreign ports and in arranging
port services in the United States. Foreign carriers are foreign persons
that own or operate ocean going vessels calling at U.S. ports, including
VLCC tankers discharging petroleum offshore to pipelines and lighter
vessels destined for U.S. ports. They include carriers who own or who
operate their own or chartered (United States or foreign-flag) vessels.
They also include foreign subsidiaries of U.S. companies operating their
own or chartered vessels as carriers for their own accounts. Where the
vessels under foreign registry are operated directly by a U.S. carrier
for its own account, the operations of such vessels should be reported
on Form BE-30, Ocean Freight Revenues and Foreign Expenses of United
States Carriers. The Bureau of Economic Analysis may, in lieu of BE-29
reports required from foreign carriers' U.S. agents, accept consolidated
reports from foreign governments covering the operations of their
national shipping concerns when, in the Bureau's discretion, such
consolidated reports would provide the required information. Where such
reports are accepted, the individual reports from foreign carriers' U.S.
agents will not be required.
(ii) Exemption. Any U.S. person otherwise required to report is
exempted from reporting if the total number of port calls by foreign
vessels handled in the reporting period is less than forty or total
covered expenses are less than $250,000. For example, if an agent
handled less than 40 port calls in a calendar year, the agent is
exempted from reporting. If the agent handled 40 or more calls, the
agent must report unless covered expenses for all foreign carriers
handled by the agent were less than $250,000. The determination of
whether a U.S. person is exempt may be based on the judgment of
knowledgeable persons who can identify reportable transactions without
conducting a detailed manual records search.
(2) BE-36, Foreign Airline Operators' Revenues and Expenses in the
United States:
(i) Who must report. A BE-36 report is required from U.S. offices,
agents, or other representatives of foreign airlines that are engaged in
transporting passengers or freight and express to or from the United
States. If the U.S. office, agent, or other representative does not have
all the information required, it must obtain the additional information
from the foreign airline operator.
(ii) Exemption: A U.S. person otherwise required to report is
exempted from reporting if total covered revenues and total covered
expenses incurred in the United States are each less than $500,000 in
the reporting period. If either total covered revenues or total covered
expenses are $500,000 or more in the reporting period, a report must be
filed.
(3) BE-47, Annual Survey of Construction, Engineering,
Architectural, and Mining Services Provided by U.S. Firms to
Unaffiliated Foreign Persons:
(i) Who must report. Form BE-47 must be filed by each U.S. person
(other than U.S. Government agencies) providing the following types of
services on a contract, fee, or similar basis to unaffiliated persons on
foreign projects: The services of general contractors in the fields of
building construction and heavy construction; construction work by
special trade contractors, such as the erection of structural steel for
bridges and buildings and on-site electrical work; services of a
professional nature in the fields of engineering, architecture, and land
surveying; and
[[Page 11]]
mining services in the development and operation of mineral properties,
including oil and gas field services.
(ii) Exemption. Any U.S. person otherwise required to report is
exempted from reporting if, for all countries and all projects combined,
the gross value of new contracts received and gross operating revenues
are both less than $1,000,000. If either the gross value of new
contracts received or gross operating revenues is $1,000,000 or more,
then a report is required.
(4) BE-48, Annual Survey of Reinsurance and other Insurance
Transactions by U.S. Insurance Companies with Foreign Persons:
(i) Who must report. Reports on Form BE-48 are required from U.S.
persons who have engaged in reinsurance transactions with foreign
persons, or who have received premiums from, or paid losses to, foreign
persons in the capacity of primary insurers.
(ii) Exemption. A U.S. person otherwise required to report is
exempted from reporting if, with respect to transactions with foreign
persons, each of the following six items was less than $1,000,000 in the
reporting period: Reinsurance premiums received, reinsurance premiums
paid, reinsurance losses paid, reinsurance losses recovered, primary
insurance premiums received, and primary insurance losses paid. If any
one of these items is $1,000,000 or more in the reporting period, a
report must be filed.
(5) BE-93, Annual Survey of Royalties, License Fees, and Other
Receipts and Payments for Intangible Rights Between U.S. and
Unaffiliated Foreign Persons:
(i) Who must report. Reports on Form BE-93 are required from U.S.
persons who have entered into agreements with unaffiliated foreign
persons to buy, sell, or use intangible assets or proprietary rights,
excluding oil royalties and other natural resources (mining) royalties.
(ii) Exemption. A U.S. person otherwise required to report is exempt
if total receipts and total payments of the types covered by the form
are each less than $500,000 in the reporting year. If the total of
either covered receipts or payments is $500,000 or more in the reporting
year, a report must be filed.
(6) BE-22, Annual Survey of Selected Services Transactions With
Unaffiliated Foreign Persons:
(i) Who must report--(A) Mandatory reporting. A BE-22 report is
required from each U.S. person who had transactions (either sales or
purchases) in excess of $1,000,000 with unaffiliated foreign persons in
any of the covered services during the U.S. person's fiscal year. The
determination of whether a U.S. person is subject to this mandatory
reporting requirement may be judgmental, that is, 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.
(B) Voluntary reporting. If, during the U.S. person's fiscal year,
the U.S. person's total transactions (either sales or purchases) in any
of the covered services is $1,000,000 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
manual records search.
(C) Any U.S. person receiving a BE-22 survey form from BEA must
complete all relevant parts of the form and return the form to BEA. A
person that is not subject to the mandatory reporting requirement in
paragraph (b)(6)(i)(A) of this section and is not filing information on
a voluntary basis must only complete the ``Determination of reporting
status'' and the ``Certification'' sections of the survey. This
requirement is necessary to ensure compliance with the reporting
requirements and efficient administration of the survey by eliminating
unnecessary followup contact.
(ii) Covered services. With the exceptions given in this paragraph,
the services covered by this survey are the same as those covered by the
BE-20, Benchmark Survey of Selected Services Transactions With
Unaffiliated Foreign Persons-1996, as listed in Sec. 801.10(c) of this
part. The exceptions are elimination of coverage of general use computer
software royalties and license fees from computer and data processing
services, and the elimination of coverage of four small types
[[Page 12]]
of services--agricultural services; management of health care
facilities; mailing, reproduction, and commercial art; and temporary
help supply services.
(7) BE-82, Annual Survey of Financial Services Transactions Between
U.S. Financial Services Providers and Unaffiliated Foreign Persons:
(i) A BE-82, Annual Survey of Financial Services Transactions
Between U.S. Financial Services Providers and Unaffiliated Foreign
Persons, will be conducted covering companies' 1995 fiscal year and
every year thereafter except when a BE-80, Benchmark Survey of Financial
Services Transactions Between U.S. Financial Services Providers and
Unaffiliated Foreign Persons, is conducted (see Sec. 801.11). All legal
authorities, provisions, definitions, and requirements contained in
Sec. 801.1 through Sec. 801.8 are applicable to this survey. Additional
rules and regulations for the BE-82 survey are given in paragraphs
(b)(7)(i)(A) through (D) of this section. More detailed instructions are
given on the report form itself.
(A) Who must report--(1) Mandatory reporting. Reports are required
from each U.S. person who 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 who had transactions (either sales or
purchases) directly with unaffiliated foreign persons in all financial
services combined in excess of $5,000,000 during its fiscal year covered
by the survey. The $5,000,000 threshold should be applied to financial
services transactions with unaffiliated foreign persons by all parts of
the consolidated U.S. enterprise combined that are financial services
providers or intermediaries. Because the $5,000,000 threshold applies
separately to sales and purchases, the mandatory reporting requirement
may apply only to sales, only to purchases, or to both sales and
purchases.
(i) The determination of whether a U.S. financial services provider
or intermediary is subject to this mandatory reporting requirement may
be judgmental, that is, 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 who 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.
(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
$5,000,000 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. Because the $5,000,000 threshold applies separately to sales
and purchases, this voluntary reporting option may apply only to sales,
only to purchases, or to both sales and purchases.
(B) BE-82 definition of financial services provider. The definition
of a financial services provider used for this survey is the same as
that used for the BE-80 benchmark survey, as defined in Sec. 801.11(b).
(C) Covered types of services. The BE-82 survey covers the same
types of financial services transactions that are covered by the BE-80
benchmark survey, as listed in Sec. 801.11(c).
(D) What to file. (1) The BE-82 survey consists of Forms BE-82(A)
and BE-82(B). Before completing a Form BE-82(B), a consolidated U.S.
enterprise (including the top parent and all of its subsidiaries and
parts combined) must complete Form BE-82(A) to determine its reporting
status. If the enterprise is subject to the mandatory reporting
requirement, or if it is exempt from the mandatory reporting requirement
but chooses to report data voluntarily, either a separate Form BE-82(B)
may be filed for each separately organized financial services subsidiary
or part of the consolidated U.S. enterprise, or a single BE-82(B) may be
filed, representing the sum of covered transactions by all financial
services subsidiaries or parts of the enterprise combined.
[[Page 13]]
(2) Reporters that receive the BE-82 survey from BEA, but that are
not reporting data in either the mandatory or voluntary section of any
Form BE-82(B), must return the Exemption Claim, attached to Form BE-
82(A), to BEA.
(ii) [Reserved]
(c) Quarterly surveys. (1) BE-30, Ocean Freight Revenues and Foreign
Expenses of United States Carriers:
(i) Who must report. A BE-30 report is required from U.S. carriers,
i.e., from U.S. persons that own or operate dry cargo, passenger
(including combination), and tanker vessels regardless of whether the
vessels are registered in the United States or in foreign countries.
Operators are persons who enter into any form of transportation contract
with shippers of merchandise (or their agents) for the transportation of
freight and cargo between U.S. and foreign ports or between foreign
ports, whether on the operators' own vessels or chartered vessels.
(ii) Exemption. A U.S. person otherwise required to report is
exempted from reporting if total annual covered revenues (i.e., revenues
on outbound, cross-trade, and inbound cargoes and charter hire received)
and total annual covered expenses (i.e., charter hire paid and expenses
in foreign countries) are, or are expected to be, each less than
$500,000. If either total annual covered revenues or total annual
covered expenses are, or are expected to be, $500,000 or more, a report
must be filed.
(2) BE-37, U.S. Airline Operators' Foreign Revenues and Expenses:
(i) Who must report. A BE-37 report is required from all U.S.
airline operators engaged in transportation of passengers and freight to
and from the United States or between foreign points.
(ii) Exemption. A U.S. person otherwise required to report is
exempted from reporting if total annual covered revenues (i.e., revenues
from carrying U.S. export freight to foreign countries) and total annual
covered expenses (i.e., expenses incurred outside the United States and
aircraft leasing expenses) are, or are expected to be, each less than
$500,000. If either total annual covered revenues or total annual
covered expenses are, or are expected to be, $500,000 or more, a report
must be filed.
[51 FR 7772, Mar. 6, 1986, as amended at 52 FR 19843, May 28, 1987; 52
FR 46589, Dec. 9, 1987; 53 FR 39455, Oct. 7, 1988; 53 FR 41563, Oct. 24,
1988; 57 FR 59289, Dec. 15, 1992; 59 FR 53935, Oct. 27, 1994; 60 FR
57337, Nov. 15, 1995; 62 FR 68163, Dec. 31, 1997]
Effective Date Note: At 62 FR 68163, 68164, Dec. 31, 1997,
Sec. 801.9 was amended by revising paragraphs (b)(5)(i) and (b)(6)(ii),
effective Jan. 30, 1998. For the convenience of the user, the superseded
text is set forth as follows:
Sec. 801.9 Reports required.
* * * * *
(b) * * *
(5) * * *
(i) Who must report. Reports on Form BE-93 are required from U.S.
persons who have entered into agreements with unaffiliated foreign
persons to buy, sell, or use intangible assets or proprietary rights,
excluding those copyrights and other intellectual property rights that
are related to computer software, and excluding oil royalties and other
natural resources (mining) royalties.
* * * * *
(6) * * *
(i) * * *
(ii) Covered services. With the exceptions given below, the services
covered by this survey are the same as those covered by the BE-20,
Benchmark Survey of Selected Services Transactions With Unaffiliated
Foreign Persons--1991, as listed in Sec. 801.10(c) of this part. The
exceptions are the elimination of coverage of four small types of
services--agricultural services; management of health care facilities;
mailing, reproduction, and commercial art; and temporary help supply
services--and the addition of coverage of purchases of certain financial
services. The financial services covered are those directly purchased
from or sold to foreigners by U.S. companies (or by domestic
subsidiaries of consolidated U.S. companies) that are not financial
services intermediaries or providers. Finally, lease bonus payments are
to be reported with purchases or sales of rights to natural resources,
rather than with receipts or payments for the use of rights to natural
resources.
* * * * *
[[Page 14]]
Sec. 801.10 Rules and regulations for the BE-20, Benchmark Survey of Selected Services Transactions with Unaffiliated Foreign Persons.
The BE-20, Benchmark Survey of Selected Services Transactions with
Unaffiliated Foreign Persons, will be conducted covering companies' 1996
fiscal year and every fifth year thereafter. All legal authorities,
provisions, definitions, and requirements contained in Secs. 801.1
through 801.9(a) are applicable to this survey. Additional rules and
regulations for the BE-20 survey are given in this section. More
detailed instructions and descriptions of the individual types of
services covered are given on the report form itself.
(a) The BE-20 survey consists of two parts and eight schedules. Part
I requests information needed to determine whether a report is required
and which schedules apply. Part II requests information about the
reporting entity. Each of the eight schedules covers one or more types
of services and is to be completed only if the U.S. Reporter has
transactions of the type(s) covered by the particular schedule.
(b) Who must report--(1) Mandatory reporting. A BE-20 report is
required from each U.S. person who had transactions (either sales or
purchases) in excess of $500,000 with unaffiliated foreign persons in
any of the services listed in paragraph (c) of this section during its
fiscal year covered by the survey.
(i) The determination of whether a U.S. person is subject to this
mandatory reporting requirement may be judgmental, that is, 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. Because
the $500,000 threshold applies separately to sales and purchases, the
mandatory reporting requirement may apply only to sales, only to
purchases, or to both sales and purchases.
(ii) Reporters who file pursuant to this mandatory reporting
requirement must complete Parts I and II of Form BE-20 and all
applicable schedules. The total amounts of transactions applicable to a
particular schedule are to be entered in the appropriate column(s) on
line 1 of the schedule. In addition, except for sales of merchanting
services, these amounts must be distributed below line 1 to the
country(ies) involved in the transaction(s). For sales of merchanting
services, the data by individual foreign country are not required to be
reported, although these data may be reported voluntarily.
(iii) Application of the $500,000 exemption level to each covered
service is indicated on the schedule for that particular service. It
should be noted that an item other than sales or purchases may be used
as the measure of a given service for purposes of determining whether
the threshold for mandatory reporting of the service is exceeded.
(2) Voluntary reporting. If, during the fiscal year covered, the
U.S. person's total transactions (either sales or purchases) in any of
the types of services listed in paragraph (c) of this section are
$500,000 or less, the U.S. person is requested to provide an estimate of
the total for each type of service.
(i) Provision of this information is voluntary. The estimates may be
judgmental, that is, based on recall, without conducting a detailed
manual records search. Because the $500,000 threshold applies separately
to sales and purchases, the voluntary reporting option may apply only to
sales, only to purchases, or to both sales and purchases.
(ii) The amounts of transactions reportable on a particular schedule
are to be entered in the appropriate column(s) in the voluntary
reporting section of the schedule; they are not required to be
disaggregated by country. Reporters filing voluntary information only
should also complete Parts I and II of the form.
(3) Any U.S. person that receives the BE-20 survey form from BEA,
but is not reporting data in either the mandatory or voluntary section
of the form, must nevertheless complete and return the Exemption Claim
included with the form to BEA. This requirement is necessary to ensure
compliance with reporting requirements and efficient administration of
the Act by eliminating unnecessary followup contact.
(c) Covered types of services. Only the services listed in this
paragraph are
[[Page 15]]
covered by the BE-20 survey. Other services, such as transportation and
reinsurance, are not covered. Covered services are: Agricultural
services; research, development, and testing services; management,
consulting, and public relations services; management of health care
facilities; accounting, auditing, and bookkeeping services; legal
services; educational and training services; mailing, reproduction, and
commercial art; employment agencies and temporary help supply services;
industrial engineering services; industrial-type maintenance,
installation, alteration, and training services; performing arts,
sports, and other live performances, presentations, and events; sale or
purchase of rights to natural resources, and lease bonus payments; use
or lease of rights to natural resources, excluding lease bonus payments;
disbursements to fund news-gathering costs of broadcasters;
disbursements to fund news-gathering costs of print media; disbursements
to fund production costs of motion pictures; disbursements to fund
production costs of broadcast program material other than news;
disbursements to maintain government tourism and business promotion
offices; disbursements for sales promotion and representation;
disbursements to participate in foreign trade shows (purchases only);
premiums paid on purchases of primary insurance; losses recovered on
purchases of primary insurance; construction, engineering,
architectural, and mining services (purchases only); merchanting
services (sales only); financial services (purchases only, by companies
or parts of companies that are not financial services providers);
advertising services; computer and data processing services; data base
and other information services; telecommunications services; operational
leasing services; and ``other'' private services. ``Other'' private
services covers transactions in the following types of services:
Satellite photography services, security services, actuarial services,
salvage services, oil spill and toxic waste cleanup services, language
translation services, and account collection services.
[62 FR 1667, Jan. 13, 1997]
Sec. 801.11 Rules and regulations for the BE-80, Benchmark Survey of Financial Services Transactions Between U.S. Financial Services Providers and Unaffiliated
Foreign Persons.
A BE-80, Benchmark Survey of Financial Services Transactions Between
U.S. Financial Services Providers and Unaffiliated Foreign Persons, will
be conducted covering companies' 1994 fiscal year and every fifth year
thereafter. All legal authorities, provisions, definitions, and
requirements contained in Secs. 801.1 through 801.9 are applicable to
this survey. Additional rules and regulations for the BE-80 survey are
given in paragraphs (a) through (d) of this section. More detailed
instructions are given on the report form itself.
(a) Who must report--(1) Mandatory reporting. Reports are required
from each U.S. person who 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 who had transactions (either sales or
purchases) directly with unaffiliated foreign persons in all financial
services combined in excess of $1,000,000 during its fiscal year covered
by the survey. The $1,000,000 threshold should be applied to financial
services transactions with unaffiliated foreign persons by all parts of
the consolidated U.S. enterprise combined that are financial services
providers or intermediaries. Because the $1,000,000 threshold applies
separately to sales and purchases, the mandatory reporting requirement
may apply only to sales, only to purchases, or to both sales and
purchases.
(i) The determination of whether a U.S. financial services provider
or intermediary is subject to this mandatory reporting requirement may
be judgmental, that is, 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 who file pursuant to this mandatory reporting
requirement must provide data on total sales and/or purchases of each of
the covered types
[[Page 16]]
of financial services transactions and must disaggregate the totals by
country.
(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
$1,000,000 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. Because the $1,000,000 threshold applies separately to sales
and purchases, this voluntary reporting option may apply only to sales,
only to purchases, or to both sales and purchases.
(b) BE-80 definition of financial services provider. The definition
of financial services provider used for this survey is analogous in
coverage to the finance and insurance part of Division H of the 1987
Standard Industrial Classification Manual (SIC major groups 60 through
64, and major group 67). More specifically, companies and/or
subsidiaries and other separable parts of companies in the following
industries are defined as financial services providers: Depository
institutions (including commercial banks and thrifts); nondepository
credit institutions; security and commodity futures brokers, dealers,
exchanges, traders, underwriters, and services providers (including
investment bankers and providers of securities custody services); credit
card companies, insurance carriers, agents, brokers and services
providers; investment advisors and managers; mutual funds; pension
funds; trusts; holding companies; investors; oil royalty traders; etc.
(c) Covered types of services. The BE-80 survey covers the following
types of financial services transactions (purchases and/or sales)
between U.S. financial services providers and unaffiliated foreign
persons: Brokerage, except foreign exchange brokerage services; private
placement services; underwriting services; financial management
services; credit-related services, except credit card services; credit
card services; financial advisory and custody services; securities
lending services; foreign exchange brokerage services; and other
financial services.
(d) What to file. (1) The BE-80 survey consists of Forms BE-80(A)
and BE-80(B). Before completing a Form BE-80(B), a consolidated U.S.
enterprise (including the top parent and all of its subsidiaries and
parts combined) must complete Form BE-80(A) to determine its reporting
status. If the enterprise is subject to the mandatory reporting
requirement, or if it is exempt from the mandatory reporting requirement
but chooses to report data voluntarily, either a separate Form BE-80(B)
may be filed for each separately organized financial services subsidiary
or part of the consolidated U.S. enterprise, or a single BE-80(B) may be
filed, representing the sum of covered transactions by all financial
services subsidiaries or parts of the enterprise combined.
(2) Reporters that receive the BE-80 survey from BEA, but that are
not reporting data in either the mandatory or voluntary section of any
Form BE-80(B), must return the Exemption Claim, attached to Form BE-
80(A), to BEA.
[59 FR 53935, Oct. 27, 1994]
PART 806--DIRECT INVESTMENT SURVEYS--Table of Contents
Sec.
806.1 Purpose.
806.2 Recordkeeping requirements.
806.3 Reporting requirements.
806.4 Response required.
806.5 Confidentiality.
806.6 Penalties.
806.7 General definitions.
806.8 Real estate.
806.9 Airlines and ship operators.
806.10 Determining place of residence and country of jurisdiction of
individuals.
806.11 Estates, trusts, and intermediaries.
806.12 Partnerships.
806.13 Miscellaneous.
806.14 U.S. direct investment abroad.
806.15 Foreign direct investment in the United States.
806.16 Rules and regulations for BE-10, Benchmark Survey of U.S. Direct
Investment Abroad--1994.
806.17 Rules and regulations for BE-12, Benchmark Survey of Foreign
Direct Investment in the United States--1992.
806.18 OMB control numbers assigned pursuant to the Paperwork Reduction
Act.
[[Page 17]]
Authority: 5 U.S.C. 301; 22 U.S.C. 3101-3108; and E.O. 11961 (3
CFR, 1977 Comp., p. 86), as amended by E.O. 12013 (3 CFR, 1977 Comp., p.
147), E.O. 12318 (3 CFR, 1981 Comp., p. 173), and E.O. 12518 (3 CFR,
1985 Comp., p. 348).
Source: 42 FR 64315, Dec. 22, 1977, unless otherwise noted.
Sec. 806.1 Purpose.
The purpose of this part is to set forth the rules and regulations
necessary to carry out the data collection program and analyses
concerning direct investment as required by, or provided for in, the
International Investment Survey Act of 1976 (Pub. L. 94-472, 90 Stat.
2059, 22 U.S.C. 3101 to 3108), hereinafter ``the Act''. The overall
purpose of the Act is to provide comprehensive and reliable information
pertaining to international investment, including direct investment, and
to do so with a minimum of burden on respondents and with no unnecessary
duplication of effort.
Sec. 806.2 Recordkeeping requirements.
In accordance with section 5(b)(1) of the Act (22 U.S.C. 3104)
persons subject to the jurisdiction of the United States shall maintain
any information (including journals or other books of original entry,
minute books, stock transfer records, lists of shareholders, or
financial statements) which is essential for carrying out the surveys
and studies provided for by the Act.
Sec. 806.3 Reporting requirements.
(a) In accordance with section 5 (b)(2) of the Act (22 U.S.C. 3104)
persons 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.
(b) Such reports may be required from among others, U.S. persons
which have direct investment abroad, U.S. persons in which foreign
persons have direct investment, U.S. intermediaries, and U.S. persons
which assist or intervene in the purchase or sale of direct investment
interests, such as real estate brokers and brokerage houses acting as
managers of tender offers.
Sec. 806.4 Response required.
Reports, as specified below, are required from all persons coming
within the reporting requirements, whether or not they are contacted by
BEA. In addition, any person BEA contacts, either by sending them report
forms or buy written inquiry concerning the person's being subject to
the reporting requirements of a survey conducted pursuant to this part
must respond in writing. The reponse must be made by filing the properly
completed report form, or by submitting in writing, or within 30 days of
being contacted, a valid exemption claim (including the situation where
the statistical data requested on the form are not applicable) or by
certifying in writing to the fact that the person has no direct
investments within the purview of the Act or the regulations contained
herein. This requirement is necessary to ensure compliance with
reporting requirements and efficient administration of the Act.
Sec. 806.5 Confidentiality.
Information collected pursuant to Sec. 806.3 is confidential (see
section 5(c) of the Act, 22 U.S.C. 3104).
(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 Sec. 806.6.
(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.
[[Page 18]]
(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.
Sec. 806.6 Penalties.
(a) Whoever fails to furnish any information required by the Act or
required by Sec. 806.3 or to comply with any other rule, regulation,
order or instruction promulgated under the Act may be subject to a civil
penalty not exceeding $10,000 in a proceeding brought in an appropriate
United States court and to injunctive relief commanding such person to
comply, or both (see section 6(a) and (b) of the Act, 22 U.S.C. 3105).
(b) Whoever willfully fails to submit any information required by
the Act or required by Sec. 806.3 or willfully violates any other 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 imprisioned for not more than one year, or both. Any officer,
director, employee, or agent of any corporation who knowingly
participates in such violation, upon conviction, may be punished by a
like fine, imprisonment, or both (see section 6(c) of the Act, 22 U.S.C.
3105).
(c) Any person who willfully violates Sec. 806.5 relating to
confidentiality, shall, upon conviction, be fined not more than $10,000,
in addition to any other penalty imposed by law (see section 5(d) of the
Act, 22 U.S.C. 3104).
Sec. 806.7 General definitions.
(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 profitmaking purposes or to otherwise secure
economic advantage, and any ownership of any real estate;
(g) Parent means a person of one country who, directly or
indirectly, owns or controls 10 per centum or more of the voting stock
of an incorporated business enterprise, or an equivalent ownership
interest in an unincorporated business enterprise, which is located
outside that country;
(h) Affiliate means a business enterprise located in one country
which is directly or indirectly owned or controlled by a person of
another country to the extent of 10 per centum or more of its voting
stock for an incorporated business or an equivalent interest for an
unincorporated business, including a branch;
(i) 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;
[[Page 19]]
(j) Direct investment means the ownership or control, directly or
indirectly, by one person of 10 per centum or more of the voting
securities of an incorporated business enterprise or an equivalent
interest in an unincorporated business enterprise;
(k) Portfolio investment means any international investment which is
not direct investment;
(l) Associated group means two or more persons who, by the
appearance of their actions, by agreement, or by an understanding,
exercise their voting privileges in a concerted manner to influence the
management of a business enterprise. Each of the following are deemed to
be an associated group:
(1) Members of the same family,
(2) A business enterprise and one or more of its officers and
directors,
(3) Members of a syndicate or joint venture, or
(4) A corporation and its domestic subsidiaries;
(m) Branch means the operations or activities conducted by a person
in a different location in its own name rather than through an
incorporated entity; and
(n) Intermediary means an agent, nominee, manager, custodian, trust,
or any person acting in a similar capacity.
[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978;
46 FR 23226, Apr. 24, 1981]
Sec. 806.8 Real estate.
Residential real estate held exclusively for personal use and not
for profitmaking purposes is not subject to the reporting requirements
of this part. A residence which was an owner's primary residence that is
then leased by the owner while outside his/her country of usual
residence but which the owner intends to reoccupy, is considered real
estate held for personal use. Ownership of residential real estate by a
corporation whose sole purpose is to hold the real estate and where the
real estate is for the personal use of the individual owner(s) of the
corporation, is considered real estate held for personal use. If a
business enterprise, otherwise required to report, is in the form of
real property not identifiable by name, reports are required to be filed
by and in the name of the beneficial owner, or in the name of such
beneficial owner by the intermediary of such beneficial owner.
[46 FR 23226, Apr. 24, 1981]
Sec. 806.9 Airlines and ship operators.
Foreign stations, ticket offices, and terminal and port facilities
of U.S. airlines and ship operators; and U.S. stations, ticket offices,
and terminal and port facilities of foreign airlines and ship operators;
which provide services only to their own operations are exempted from
being reported. Reports are required when such affiliates produce
significant revenues from services provided to unaffiliated persons.
Sec. 806.10 Determining place of residence and country of jurisdiction of individuals.
An individual will be considered a resident of, and subject to the
jurisdiction of, the country in which physically located, subject to the
following qualifications:
(a) Individuals who reside, or expect to reside, outside their
country of citizenship for less than one year are considered to be
residents of their country of citizenship.
(b) Individuals who reside, or expect to reside, outside their
country of citizenship for one year or more are considered to be
residents of the country in which they are residing, except as provided
in paragraph (c) of this section.
(c) Notwithstanding paragraph (b) of this section, if an owner or
employee of a business enterprise resides outside the country of
location of the enterprise for one year or more for the purpose of
furthering the business of the enterprise, and the country of the
business enterprise is the country of citizenship of the owner then such
owner or employee shall nevertheless be considered a resident of the
country of citizenship provided there is the intent to return within a
reasonable period of time.
(d) Individuals and members of their immediate families who are
residing outside their country of citizenship as a result of employment
by the government of that country--diplomats, consular officials,
members of the armed
[[Page 20]]
forces, etc.--are considered to be residents of their country of
citizenship.
Sec. 806.11 Estates, trusts, and intermediaries.
(a) An estate, either U.S. or foreign, is a person and therefore may
have direct investment, and the estate, not the beneficiary, is
considered to be the owner.
(b) A trust, either U.S. or foreign, is a person, but is not a
business enterprise. The trust shall be considered the same as an
intermediary and reporting should be as outlined in paragraph (c) of
this section. For reporting purposes, the beneficiary(ies) of the trust,
or the creator(s) of the trust in the situation detailed below or if
there is, or may be, a reversionary interest, shall be considered to be
the owner(s) of the investments of the trust for determining the
existence of direct investment. Where a corporation or other
organization creates a trust designating its shareholders or members as
beneficiaries, the creating corporation or organization shall be deemed
to be the owner of the investments of the trust, or succeeding trusts
where the presently existing trust has evolved out of a prior trust, for
the purposes of determining the existence and reporting of direct
investment.
This procedure is adopted in order to fulfill the statistical purposes
of this part and does not imply that control over an enterprise owned or
controlled by a trust is, or can be, exercised by the beneficiary(ies)
or creator(s).
(c) Intermediary. (1) If a particular U.S. direct investment abroad
is held, administered, or managed by a U.S. intermediary, such
intermediary shall be responsible for reporting the required information
for, and in the name of, its principal or shall instruct the principal
to submit the required information. Upon instructing the principal, the
intermediary shall be released from further liability to report provided
it has informed this bureau of the date such instructions were given and
the name and address of the principal, and has supplied the principal
with any information in the possession of, or which can be secured by,
the intermediary, that is necessary to permit the principal to complete
the required reports. When acting in the capacity of an intermediary,
the accounts or transactions of the U.S. intermediary with the foreign
affiliate shall be considered as accounts or transactions of the U.S.
principal with the foreign affiliate. To the extent such transactions or
accounts are unavailable to the principal, they may be required to be
reported by the intermediary.
(2) If a U.S. person holds a foreign affiliate through a foreign
intermediary, the U.S. person will be considered to own the foreign
affiliate directly and all accounts or transactions of the U.S. person
with the intermediary will be considered to be with the foreign
affiliate.
(3) If a particular foreign direct investment in the United States
is held, exercised, administered, or managed by a U.S. intermediary for
the foreign beneficial owner, such intermediary shall be responsible for
reporting the required information for, and in the name of, the U.S.
affiliate, and shall report on behalf of the U.S. affiliate or shall
instruct the U.S. affiliate to submit the required information. Upon so
instructing the U.S. affiliate, the intermediary shall be released from
further liability to report provided it has informed this Bureau of the
date such instructions were given and the name and address of the U.S.
affiliate, and has supplied the U.S. affiliate with any information in
the possession of, or which can be secured by, the intermediary that is
necessary to permit the U.S. affiliate to complete the required reports.
When acting in the capacity of an intermediary, the accounts or
transactions of the U.S. intermediary with a foreign beneficial owner
shall be considered as accounts or transactions of the U.S. affiliate
with the foreign beneficial owner. To the extent such transactions or
accounts are unavailable to the U.S. affiliiate, they may be required to
be reported by the intermediary.
(4) If a foreign beneficial owner holds a U.S. affiliate through a
foreign intermediary, the U.S. affiliate may report the intermediary as
its foreign parent but, when requested, must also identify and furnish
information concerning the foreign beneficial owner, if
[[Page 21]]
known, or if such information can be secured. Accounts or transactions
of the U.S. affiliate with the foreign intermediary shall be considered
as accounts or transactions of the U.S. affiliate with the foreign
beneficial owner.
[42 FR 64315, Dec. 22, 1977, as amended at 43 FR 54624, Nov. 22, 1978]
Sec. 806.12 Partnerships.
Limited partners do not have voting rights in a partnership and
therefore cannot have a direct investment in a partnership; their
investment is considered to be portfolio investment. Determination of
the existence of direct investment in a partnership shall be based on
the country of residence of, and the percentage control exercised by,
the general partner(s), although the latter may differ from the
financial interest of the general partners.
Sec. 806.13 Miscellaneous.
(a) Accounting methods and records. Generally accepted U.S.
accounting principles should be followed. Corporations should generally
use the same methods and records that are used to generate reports to
stockholders, unless otherwise specified in the reporting instructions
for a given report form. Reports for unincorporated persons must be
generated on an equivalent basis.
(b) Annual stockholder's report. Business enterprises issuing annual
reports to stockholders are requested to furnish a copy of their annual
reports to this Bureau.
(c) Required information not available. All reasonable efforts
should be made to obtain information required for reporting. Every
question on each form should be answered, except where specifically
exempted. When only partial information is available, an appropriate
indication should be given.
(d) Estimates. If actual figures are not available, estimates should
be supplied and labeled as such. When a data item cannot be fully
subdivided as required, a total and an estimated breakdown of the total
should be supplied.
(e) Specify. When ``specify'' is included in certain data items, the
type and dollar amount of the major items included must be given for at
least the items mentioned in the line instruction.
(f) Space on form insufficient. When space on a form is insufficient
to permit a full answer to any item, the required information should be
submitted on supplementary sheets, appropriately labeled and referenced
to the item number and the form.
(g) Extensions. Requests for an extension of a reporting deadline
will not normally be granted. However, in hardship cases, written
requests for an extension will be considered provided they are received
15 days prior to the date of the report and enumerate substantive
reasons necessitating the extension.
(h) Number of copies. A single original copy of each report shall be
filed with the Bureau of Economic Analysis; this should be the copy with
the address label if such a labeled copy has been provided. In addition,
each respondent must retain a copy of its report. Both copies are
protected by law; see Sec. 806.5.
(i) Other. Instructions concerning filing dates, where to send
reports, and whom to contact concerning a given report are contained on
each form. General inquiries should be directed to the:
U.S. Department of Commerce, Bureau of Economic Analysis, International
Investment Division (BE-50), Washington, DC 20230.
Sec. 806.14 U.S. direct investment abroad.
(a) Specific definitions--(1) U.S. direct investment abroad means
the ownership or control, directly or indirectly, by one U.S. person of
10 per centum or more of the voting securities of an incorporated
foreign business enterprise or an equivalent interest in an
unincorporated foreign business enterprise, including a branch.
(2) U.S. Reporter means the U.S. person which has direct investment
in a foreign business enterprise, including a branch. If the U.S. person
is an incorporated business enterprise, the U.S. Reporter is the fully
consolidated U.S. domestic enterprise consisting of (i) the U.S.
corporation whose voting securities are not owned more than 50 percent
by another U.S. corporation, and (ii) proceeding down each ownership
chain from that U.S. corporation,
[[Page 22]]
any U.S. corporation (including Domestic International Sales
Corporations) whose voting securities are more than 50 percent owned by
the U.S. corporation above it.
(3) Foreign affiliate means an affiliate located outside the United
States in which a U.S. person has direct investment.
(4) Majority-owned foreign affiliate means a foreign affiliate in
which the combined ``direct investment interest'' of all U.S. Reporters
of the affiliate exceeds 50 per centum.
(b) Foreign affiliate consolidation. In cases where the
recordkeeping system of foreign affiliates makes it impossible or
extremely difficult to file a separate report for each foreign
affiliate, a U.S. Reporter may consolidate affiliates in the same
country when the following conditions apply:
(1) The affiliates are in the same BEA 3-digit industry as defined
in the industry Classifications and Export and Import Trade
Classifications Booklet; or
(2) The affiliates are integral parts of the same business
operation. For example, if German affiliate A manufactures tires and a
majority of its sales are to German affiliate B which produces autos,
then affiliates A and B may be consolidated.
Any affiliates consolidated shall thereafter be considered to be one
affiliate and should be consolidated in the same manner for all reports
required to be filed pursuant to this section.
(c) Reports required. The place and time for filing, and specific
instructions and definitions relating to, a given report form are given
on the form. Reports are required even though a foreign affiliate may
have been established, acquired, seized, liquidated, sold, expropriated,
or inactivated during the reporting period.
(d) Exemption levels. Exemption levels for individual report forms
will normally be stated in terms of total assets, net sales or gross
operating revenues excluding sales taxes, and net income after income
taxes, whether positive or negative, although different or special
criteria may be specified for a given report form. If any one of the
three items exceeds the exemption level and if the statistical data
requested in the report are applicable to the entity being reported,
then a report must be filed. Since these items may not have to be
reported on a given form, a U.S. Reporter claiming exemption from filing
a given form must furnish a certification as to the levels of the items
on which the exemption is based or must certify that the data requested
are not applicable. The exemption-level tests shall be applied as
outlined below.
(1) For quarterly report forms, as to the assets test reports are
required beginning with the quarter in which total assets exceed the
exemption level; as to the test for sales (revenues) and net income
after income taxes, reports are required for each quarter of a year in
which the annual amount of these items exceeds or can be expected to
exceed, the exemption level. Quarterly reports for a year may be
required retroactively when it is determined that the exemption level
has been exceeded.
(2) For report forms requesting annual data after the close of the
year in question, the test shall be whether any one of the three items
exceeded the exemption level during that year.
(3) For the semi-annual plant and equipment expenditures survey,
which requests actual data for the past year and/or annual projections
for the current and following year, the test will be made for each year
as to whether any one of the three items exceeded, or is expected to
exceed, the exemption level; data must be reported only for the year or
years in which the exemption level is, or is expected to be, exceeded.
If total assets, sales or net income exceed the exemption level in a
given year, it is deemed that the exemption level will also be exceeded
in the following year.
The number and title of each report form, its exemption level, and other
reporting criteria, if any, pertaining to it, are given below.
(e) Quarterly report form. BE-577--Transactions of U.S. Reporter
with Foreign Affiliate: One report is required for each foreign
affiliate exceeding an exemption level of $20,000,000 except that a
report need not be filed by
[[Page 23]]
a U.S. Reporter to report direct transactions with one of its foreign
affiliates in which it does not hold a direct equity interest unless an
intercompany balance or fee and royalty receipts or payments for the
quarter exceed $1,000,000.
(f) Annual report forms. (1) BE-133B--Follow-up Schedule of
Expenditures for property, Plant, and Equipment of U.S. Direct
Investment Abroad: This is a schedule-type report form on which each
majority-owned foreign affiliate exceeding an exemption level of
$10,000,000 must be listed and the requested data given for each.
(2) BE-133C--Schedule of Expenditures for Property, Plant, and
Equipment of U.S. Direct Investment Abroad: This is a schedule-type
report form on which each majority-owned foreign affiliate exceeding an
exemption level of $10,000,000 must be listed and the requested data
given for each.
(3) BE-11--Annual Survey of U.S. Direct Investment Abroad: A report,
consisting of Form BE-11A and Forms(s) BE-11B(LF), BE-11B(SF), and/or
BE-11C, is required of each nonbank U.S. Reporter who, at the end of the
Reporter's fiscal year, had a nonbank foreign affiliate reportable on
Form BE-11B(LF), BE-11B(SF), or BE-11C. Forms required and the criteria
for reporting on each are as follows:
(i) Form BE-11A (Report for U.S. Reporter) must be filed by each
nonbank U.S. person having a foreign affiliate reportable on Form BE-
11B(LF), BE-11B(SF), or BE-11C.
(ii) Form BE-11B (LF) or (SF) (Report for Majority-owned Foreign
Affiliate).
(A) A BE-11B(LF) (Long Form) is required to be filed for each
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for
which any one of the three items--total assets, sales or gross operating
revenues excluding sales taxes, or net income after provision for
foreign income taxes--was greater than $50 million (positive or
negative) at the end of, or for, the affiliate's fiscal year.
(B) A BE-11B(SF)(Short Form) is required to be filed for each
majority-owned nonbank foreign affiliate of a nonbank U.S. Reporter for
which any one of the three items listed in paragraph (f)(3)(ii)(A) of
this section was greater than $20 million (positive or negative), but
for which no one of these items was greater than $50 million (positive
or negative), at the end of, or for, the affiliate's fiscal year.
(iii) Form BE-11C (Report for Minority-owned Foreign Affiliate) must
be filed for each minority-owned nonbank foreign affiliate that is owned
at least 20 percent, but not more than 50 percent, directly and/or
indirectly, by all U.S. Reporters of the affiliate combined, and for
which any one of the three items listed in paragraph (f)(3)(ii)(A) of
this section was greater than $20 million (positive or negative) at the
end of, or for, the affiliate's fiscal year. In addition, for the report
covering fiscal year 1997 only, a Form BE-11C must be filed for each
minority-owned nonbank foreign affiliate that is owned, directly or
indirectly, at least 10 percent by one U.S. Reporter, but less than 20
percent by all U.S. Reporters of the affiliate combined, and for which
any one of the three items listed in paragraph (f)(3)(ii)(A) of this
section was greater than $100 million (positive or negative) at the end
of, or for, the affiliate's fiscal year.
(iv) Based on the preceding, an affiliate is exempt from being
reported if it meets any one of the following criteria:
(A) None of its exemption level items is above $20 million.
(B) For fiscal year 1997 only, it is less than 20 percent owned,
directly or indirectly, by all U.S. Reporters of the affiliate combined
and one of its exemption level items exceeds $100 million.
(C) For fiscal years other than 1997, it is less than 20 percent
owned, directly or indirectly, by all U.S. Reporters of the affiliate
combined.
(D) Its U.S. parent (U.S. Reporter) is a bank.
(E) It is itself a bank.
(v) Notwithstanding paragraph (f)(3)(iv) of this section, a Form BE-
11B(LF), BE-11B(SF), or BE-11C must be filed for a foreign affiliate of
the U.S. Reporter than owns another nonexempt foreign affiliate of that
U.S. Reporter, even if the foreign affiliate parent is otherwise exempt.
That is, all affiliates upward in the chain of ownership must be
reported.
[[Page 24]]
(g) Other report forms. (1) BE-507--Industry Classification
Questionnaire: In general, U.S. Reporters and their foreign affiliates
will each be assigned a BEA 3-digit industry code in the BE-10 Benchmark
Surveys required by the Act to be conducted in 1982, 1989, and every
fifth year thereafter. However, interim reports on Form BE-507 are
required:
(i) For each foreign affiliate newly established or acquired by a
U.S. person on or after January 1, 1978; or
(ii) For each U.S. person who becomes a U.S. Reporter on or after
January 1, 1978 by virtue of establishing or acquiring a foreign
affiliate; or
(iii) For an existing foreign affiliate or U.S. Reporter whose
industry classification changes on or after January 1, 1978 so that a
previous BE-507 report or the BE-10 report required to be filed for 1977
does not accurately reflect the current industry classification of the
entity.
For new U.S. Reporters or foreign affiliates, the BE-507 report must be
filed only if one of the other reports must be filed and shall be
submitted with the initial filing of the related report. For a change in
an existing U.S. Reporter or foreign affiliate which is currently filing
one of the other reports, the BE-507 report must be filed whenever it is
determined that change from one 3-digit industry classification to
another has occurred.
(2) BE-10-Benchmark Survey of U.S. Direct Investment Abroad: Section
4(b) of the Act (22 U.S.C. 3103) provides that a comprehensive benchmark
survey of U.S. direct investment abroad will be conducted in 1982, 1989,
and every fifth year thereafter. The survey, referred to as the ``BE-
10,'' consists of a Form BE-10A or BE-10A BANK for reporting information
concerning the U.S. Reporter and Form(s) BE-10B(LF), BE-10B(SF), or BE-
10B BANK for reporting information concerning each foreign affiliate.
Exemption levels, specific requirements for, and the year of coverage
of, a given BE-10 survey may be found in Sec. 806.16.
[42 FR 64315, Dec. 22, 1977; 43 FR 2169, Jan. 16, 1978, as amended at 46
FR 23226, Apr. 24, 1981; 47 FR 13139, Mar. 29, 1982; 48 FR 8993, Mar. 3,
1983; 49 FR 30059, July 26, 1984; 51 FR 11012, Apr. 1, 1986; 52 FR 8446,
Mar. 18, 1987; 52 FR 42276, Nov. 4, 1987; 54 FR 51879, Dec. 19, 1989; 55
FR 49879, Dec. 3, 1990; 60 FR 10490, Feb. 27, 1995; 60 FR 54591, Oct.
25, 1995]
Sec. 806.15 Foreign direct investment in the United States.
(a) Specific definitions--(1) Foreign direct investment in the
United States means the ownership or control, directly or indirectly, by
one foreign person of 10 per centum or more of the voting securities of
an incorporated U.S. business enterprise or an equivalent interest in an
unincorporated U.S. business enterprise, including a branch.
(2) U.S. affiliate means an affiliate located in the United States
in which a foreign person has a direct investment.
(3) Foreign parent means the foreign person, or the first person
outside the United States in a foreign chain of ownership, which has
direct investment in a U.S. business enterprise, including a branch.
(4) Affiliated foreign group means (i) the foreign parent, (ii) any
foreign person, proceeding up the foreign parent's ownership chain,
which owns more than 50 per centum of the person below it up to and
including that person which is not owned more than 50 per centum by
another foreign person, and (iii) any foreign person, proceeding down
the ownership chain(s) of each of these members, which is owned more
than 50 per centum by the person above it.
(5) Foreign affiliate of foreign parent means, with reference to a
given U.S. affiliate, any member of the affiliated foreign group owning
the affiliate that is not a foreign parent of the affiliate.
(6) Ultimate beneficial owner (UBO) is that person, proceeding up
the ownership chain beginning with and including the foreign parent,
that is not more than 50 percent owned or controlled by another person.
(An owner who creates
[[Page 25]]
a trust, proxy, power of attorney, arrangement, or device with the
purpose or effect of divesting such owner of the ownership of an equity
interest as part of a plan or scheme to avoid reporting information, is
deemed to be the owner of the equity interest.)
(b) Beneficial, not record, ownership is the basis of the reporting
criteria. In those cases where a U.S. affiliate is also required to
identify the ultimate beneficial owner (UBO) of the foreign investment,
if the UBO is an individual, only the country of location of the
individual must be given.
(c) Bearer shares. If the ownership in a U.S. affiliate by any owner
in the ownership chain from the U.S. affiliate up to and including the
ultimate beneficial owner (UBO) is represented by bearer shares, the
requirement to disclose the information regarding the UBO remains with
the reporting U.S. affiliate, except where a company in the ownership
chain has publicly traded bearer shares. In that case, identification of
the UBO may stop with the identification of the company whose capital
stock is represented by the publicly traded bearer shares. For closely
held companies with nonpublicly traded bearer shares, identifying the
foreign parent or the UBO as ``bearer shares'' is not an acceptable
response. The U.S. affiliate must pursue the identification of the UBO
through managing directors or any other official or intermediary.
(d) Aggregation of real estate investments. A foreign person holding
real estate investments that are foreign direct investments in the
United States must aggregate all such holdings for the purpose of
applying the exemption level tests. If the aggregate of such holdings
exceeds one or more of the exemption levels, then the holdings must be
reported even if they individually would be exempt.
(e) Consolidated reporting by U.S. affiliates. A U.S. affiliate
shall file on a fully consolidated basis, including in the consolidation
all other U.S. affiliates in which it directly or indirectly owns more
than 50 per centum of the outstanding voting stock, unless the
instructions for a given report form specifically provide otherwise.
However, separate reports may be filed where a given U.S. affiliate is
not normally consolidated due to unrelated operations or lack of
control, provided written permission has been requested from and granted
by BEA.
(f) The place and time for filing, and specific instructions and
definitions relating to, a given report form will be given on the report
form. Reports are required even though the foreign person's equity
interest in the U.S. business enterprise may have been established,
acquired, liquidated, or sold during the reporting period.
(g) Exemption levels. Exemption levels for individual report forms
will normally be stated in terms of total assets, sales or gross
operating revenues excluding sales taxes, and net income after income
taxes, whether positive or negative, although different or special
criteria may be specified for a given report form. If any one of the
three items exceeds the exemption level and if the statistical data
requested in the report are applicable to the entity being reported,
then a report must be filed. Since these items may not have to be
reported on a given form, a person claiming exemption from filing a
given report form must furnish a certification as to the levels of the
items on which the exemption is based or must certify that the data
requested are not applicable. The exemption level tests shall be applied
as outlined below.
(1) For quarterly report forms, as to the assets test, reports are
required beginning with the quarter in which total assets exceed the
exemption level; as to the test for sales (revenues) and net income
after income taxes, reports are required for each quarter of a year in
which the annual amount of these items exceeds or can be expected to
exceed the exemption level. Quarterly reports for a year may be required
retroactively when it is determined that the exemption level has been
exceeded.
(2) For report forms requesting annual data after the close of the
year in question, the test shall be whether any one of the three items
exceeded the exemption level during that year.
If total assets, sales or net income exceed the exemption level in a
given year, it is deemed that the exemption level will also be exceeded
in the following year.
[[Page 26]]
The number and title of each report form, its exemption level and other
reporting criteria, if any, pertaining to it, are given below.
(h) Quarterly report forms. (1) BE-605--Transactions of U.S.
Affiliate, Except a U.S. Banking Affiliate, With Foreign Parent: One
report is required for each U.S. affiliate exceeding an exemption level
of $20,000,000.
(2) BE-605 Bank--Transactions of U.S. Banking Affiliate with Foreign
Parent: One report is required for each U.S. banking affiliate exceeding
an exemption level of $20,000,000.
(i) Annual report form. BE-15--Annual Survey of Foreign Direct
Investment in the United States: One report is required for each
consolidated U.S. affiliate, except a bank, exceeding an exemption level
of $10,000,000. A long form, Form BE-15(LF), must be filed by each
nonbank U.S. affiliate for which at least one of the three items--total
assets, sales or gross operating revenues excluding sales taxes, or net
income after provision for U.S. income taxes--exceeds $50,000,000
(positive or negative); a short form, Form BE-15(SF), must be filed by
each nonbank U.S. affiliate for which at least one of the three items
exceeds $10,000,000 but no one item exceeds $50,000,000 (positive or
negative). U.S. affiliates that are banks are exempt from the reporting
requirements of this survey.
(j) Other report forms. (1) BE-607--Industry Classification
Questionnaire: In general, a U.S. affiliate will be assigned a BEA 3-
digit industry code in the BE-12 Benchmark Surveys required by the Act
to be conducted in 1980, 1987, and every fifth year thereafter. However,
interim reports on Form BE-607 are required:
(i) For each U.S. affiliate newly established or acquired by a
foreign person; or
(ii) For an existing U.S. affiliate whose industry classification
changes so that either a previous BE-607 report or the last BE-12 report
required to be filed does not accurately reflect the current industry
classification of the U.S. affiliate.
For new U.S. affiliates, the BE-607 report must be filed only if the
affiliate must file one of the other reports and shall be submitted with
the initial filing of the related report. For a change in an existing
U.S. affiliate which is currently filing one of the other reports, the
BE-607 report must be filed whenever it is determined that a change from
one BEA 3-digit industry classification to another has occurred.
(2) BE-12--Benchmark Survey of Foreign Direct Investment in the
United States: Section 4b of the Act (22 U.S.C. 3103) provides that a
comprehensive benchmark survey of foreign direct investment in the
United States shall be conducted in 1980, 1987, and every fifth year
thereafter. The survey is referred to as the ``BE-12''. Exemption
levels, specific requirements for, and the year of coverage of, a given
BE-12 Survey may be found in Sec. 806.17.
(3) BE-13--Initial Report on a Foreign Person's Direct or Indirect
Acquisition, Establishment, or Purchase of the Operating Assets, of a
U.S. Business Enterprise, Including Real Estate. This report is to be
filed either:
(i) By a U.S. business enterprise when a foreign person establishes
or acquires directly, or indirectly through an existing U.S. affiliate,
a 10 percent or more voting interest in that enterprise, including an
enterprise that results from the direct or indirect acquisition by a
foreign person of a business segment or operating unit of an existing
U.S. business enterprise that is then organized as a separate legal
entity; or
(ii) By the existing U.S. affiliate of a foreign person when it
acquires a U.S. business enterprise, or a business segment or operating
unit of a U.S. business enterprise, that the existing U.S. affiliate
merges into its own operations rather than continuing or organizing as a
separate legal entity.
A separate report must be filed for each foreign parent or existing U.S.
affiliate that is a party to the transaction.
Exclusions and Exemptions
(a) Residential real estate held exclusively for personal use and
not for profitmaking purposes is not subject to the reporting
requirements. A residence which is an owner's primary residence that is
then leased by the owner while outside the United States but which the
owner intends to reoccupy, is considered real estate held for personal
use. Ownership of residential real estate by a corporation whose sole
purpose is to hold the
[[Page 27]]
real estate and where the real estate is for the personal use of the
individual owner(s) of the corporation, is considered real estate held
for personal use.
(b) An existing U.S. affiliate is exempt from reporting the
acquisition of either a U.S. business enterprise, or a business segment
or operating unit of a U.S. business enterprise, that it then merges
into its own operations, if the total cost of the acquisition was
$1,000,000 or less and does not involve the purchase of 200 acres or
more of U.S. land. (If the acquisition involves the purchase of 200
acres or more of U.S. land, it must be reported regardless of the total
cost of the acquisition.)
(c) An established or acquired U.S. business enterprise, as
consolidated, is exempt if its total assets (not the foreign parent's or
existing U.S. affiliate's share) at the time of acquisition or
immediately after being established were $1,000,000 or less and it does
not own 200 acres or more of U.S. land. (If it owns 200 acres or more of
U.S. land, it must report regardless of the value of total assets.)
If exempt under (b) or (c), the existing U.S. affiliate or the
established or acquired U.S. business enterprise must, nevertheless,
file an ``Exemption Claim, Form BE-13'' to validate the exemption.
(4) Form BE-14--Report by a U.S. Person Who Assists or Intervenes in
the Acquisition of a U.S. Business Enterprise by, or Who Enters into a
Joint Venture With, a Foreign Person--to be completed either by:
(i) A U.S. person--including, but not limited to, an intermediary, a
real estate broker, business broker, and a brokerage house--who assists
or intervenes in the sale to, or purchase by, a foreign person or a U.S.
affiliate of a foreign person, of a 10 percent or more voting interest
in a U.S. business enterprise, including real estate; or
(ii) A U.S. person who enters into a joint venture with a foreign
person to create a U.S. business enterprise.
A U.S. person is required to report only when such a foreign involvement
is known; it is not incumbent upon the U.S. person to ascertain the
foreign status of a person involved in an acquisition unless the U.S.
person has reason to believe the acquiring party may be a foreign
person. If a U.S. person required to file a Form BE-14 files Form BE-13
relating to the acquisition of the U.S. business enterprise by a foreign
person, then Form BE-14 is not required.
Total Exemptions--(a) Residential real estate held exclusively for
personal use and not for profitmaking purposes is not subject to the
reporting requirements. A residence which is an owner's primary
residence that is then leased by the owner while outside the United
States but which the owner intends to reoccupy, is considered real
estate held for personal use. Ownership of residential real estate by a
corporation whose sole purpose is to hold the real estate and where the
real estate is for the personal use of the individual owner(s) of the
corporation, is considered real estate for personal use.
(b) If the U.S. business enterprise acquired has total assets of, or
if the capitalization (including loans from the joint venturers) of the
joint venture to be established is, $1,000,000 or less, than no report
is required, provided the enterprise does not own 200 acres or more of
U.S. land. (If it owns 200 acres or more of U.S. land, a report is
required regardless of the value of total assets.)
(5) BE-21--Survey of Foreign Direct Investment in U.S. Business
Enterprises Engaged in the Processing, Packaging, or Wholesale
Distribution of Fish or Seafoods. Reporting consists of:
(i) Form BE-21P--Identification Questionnaire. A completed
questionnaire is required from (a) each U.S. business enterprise that is
a U.S. affiliate of a foreign person and that engaged in the processing,
packaging, or wholesale distribution of fish or seafoods, and (b) any
person to whom a questionnaire is sent by BEA.
(ii) Form BE-21A--Report for a U.S. Business Enterprise that is a
U.S. Affiliate of a Foreign Person. A completed report is required from
each U.S. business enterprise that is a U.S. affiliate of a foreign
person and that engaged in the processing, packaging, or wholesale
distribution of fish or seafoods.
(iii) Form BE-21B--Report for each Establishment of a U.S. Business
Enterprise that is a U.S. Affiliate of a Foreign Person. A completed
report is required for each establishment, of the
[[Page 28]]
U.S. affiliate, that engaged in the processing, packaging, or wholesale
distribution of fish or seafoods.
[42 FR 64315, Dec. 22, 1977; 43 FR 2169, Jan. 16, 1978, as amended at 44
FR 32586, June 6, 1979; 46 FR 23226, Apr. 24, 1981; 46 FR 60191, Dec. 9,
1981; 47 FR 13139, Mar. 29, 1982; 47 FR 14138, Apr. 2, 1982; 49 FR 3174,
Jan. 26, 1984; 52 FR 8446, Mar. 18, 1987; 53 FR 1016, Jan. 15, 1988; 53
FR 15198, Apr. 28, 1988; 54 FR 1352, Jan. 13, 1989; 58 FR 38290, July
16, 1993; 58 FR 53125, Oct. 14, 1993]
Sec. 806.16 Rules and regulations for BE-10, Benchmark Survey of U.S. Direct Investment Abroad--1994.
A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be
conducted covering 1994. All legal authorities, provisions, definitions,
and requirements contained in Secs. 806.1 through 806.13 and 806.14 (a)
through (d) are applicable to this survey. Specific additional rules and
regulations for the BE-10 survey are given in paragraphs (a) through (e)
of this section.
(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--1994, contained herein, whether or not they
are contacted by BEA. Also, a person, or their agent, who is 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
Sec. 806.4. They may respond by:
(1) Certifying in writing, within 30 days of being contacted by BEA,
to the fact that the person had no direct investment within the purview
of the reporting requirements of the BE-10 survey;
(2) Completing and returning the ``BE-10 Claim for Not Filing''
within 30 days of receipt of the BE-10 survey report forms; or
(3) Filing the properly completed BE-10 report (comprising Form BE-
10A or BE-10A BANK and Forms BE-10B(LF), BE-10B(SF) and/or BE-10B BANK)
by May 31, 1995, or June 30, 1995, as required.
(b) Who must report. (1) 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--at any time
during the U.S. person's 1994 fiscal year.
(2) If the U.S. person had no foreign affiliates during its 1994
fiscal year, a ``BE-10 Claim for Not Filing'' must be filed within 30
days of receipt of the BE-10 survey package; no other forms in the
survey are required. If the U.S. person had any foreign affiliates
during its 1994 fiscal year, a BE-10 report is required and the U.S.
person is a U.S. Reporter in this survey.
(3) Reports are required even though the foreign business enterprise
was established, acquired, seized, liquidated, sold, expropriated, or
inactivated during the U.S. person's 1994 fiscal year.
(c) Forms for nonbank U.S. Reporters and foreign affiliates.--(1)
Form BE-10A (Report for the U.S. Reporter). A BE-10A report must be
completed by a U.S. Reporter that is not a bank. If the U.S. Reporter is
a corporation, Form BE-10A is required to cover the fully consolidated
U.S. domestic business enterprise.
(i) If a nonbank U.S. Reporter had any foreign affiliates, whether
held directly or indirectly, for which any one of the following three
items--total assets, sales or gross operating revenues excluding sales
taxes, or net income after provision for foreign income taxes--was
greater than $3 million (positive or negative) at any time during the
affiliate's 1994 fiscal year, the U.S. Reporter must file a complete
Form BE-10A and, as applicable, a BE-10A SUPPLEMENT listing each, if
any, exempt foreign affiliate. It must also file a Form BE-10B(LF), BE-
10B(SF), or BE-10B BANK, as appropriate, for each nonexempt foreign
affiliate.
(ii) If a nonbank U.S. Reporter had no foreign affiliates for which
any one of the three items listed in paragraph (c)(1)(i) of this section
was greater than $3 million (positive or negative) at any time during
the affiliate's 1994 fiscal year, then only items 1-4 of Form BE-10A and
the BE-10A SUPPLEMENT, listing all exempt foreign affiliates, must be
completed.
(2) Form BE-10B(LF) or (SF) (Report for foreign affiliate). (i) A
BE-10B(LF) (Long Form) must be filed for each nonbank foreign affiliate
of a nonbank
[[Page 29]]
U.S. Reporter, whether held directly or indirectly, for which any one of
the three items--total assets, sales or gross operating revenues
excluding sales taxes, or net income after provision for foreign income
taxes--was greater than $50 million (positive or negative) at any time
during the affiliate's 1994 fiscal year.
(ii) A BE-10B(SF) (Short Form) must be filed.
(A) For each nonbank foreign affiliate of a nonbank U.S. Reporter,
whether held directly or indirectly, for which any one of the three
items listed in paragraph (c)(2)(i) of this section was greater than $3
million, but for which no one of these items was greater than $50
million (positive or negative), at any time during the affiliate's 1994
fiscal year, and
(B) For each nonbank foreign affiliate of a U.S. bank Reporter,
whether held directly or indirectly, for which any one of the three
items listed in paragraph (c)(2)(i) of this section was greater than $3
million (positive or negative) at any time during the affiliate's 1994
fiscal year.
(iii) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this
section, a Form BE-1B(LF) or (SF) must be filed for a foreign affiliate
of the U.S. Reporter that owns another nonexempt foreign affiliate of
that U.S. Reporter, even if the foreign affiliate parent is otherwise
exempt, i.e., a Form BE-10B(LF), (SF), or BANK must be filed for all
affiliates upward in a chain of ownership.
(d) Forms for U.S. Reporters and foreign affiliates that are banks
or bank holding companies. (1) For purposes of the BE-10 survey,
``banking'' covers a business entity engaged in deposit banking or
closely related functions, including commercial banks, Edge Act
corporations engaged in international or foreign banking, foreign
branches and agencies of U.S. banks whether or not they accept deposits
abroad, savings and loans, savings banks, and bank holding companies,
ie., holding companies for which over 50 percent of their total income
is from banks that they hold. If the bank or bank holding company is
part of a consolidated business enterprise and the gross operating
revenues from nonbanking activities of this consolidated entity are more
than 50 percent of its total revenues, then the consolidated entity is
deemed not to be a bank even if banking revenues make up the largest
single source of all revenues. (Activities of subsidiaries of a bank or
bank holding company that may not be banks but that provide support to
the bank parent company, such as real estate subsidiaries set up to hold
the office buildings occupied by the bank parent company, are considered
bank activities.)
(2) Form BE-10A BANK (Report for a U.S. Reporter that is a bank). A
BE-10A BANK report must be completed by a U.S. Reporter that is a bank.
For purposes of filing Form BE-10A BANK, the U.S. Reporter is deemed to
be the fully consolidated U.S. domestic business enterprise and all
required data on the form shall be for the fully consolidated domestic
entity.
(i) If a U.S. bank had any foreign affiliates at any time during its
1994 fiscal year, whether a bank or nonbank and whether held directly or
indirectly, for which any one of the three items--total assets, sales or
gross operating revenues excluding sales taxes, or net income after
provision for foreign income taxes--was greater than $3 million
(positive or negative) at any time during the affiliate's 1994 fiscal
year, the U.S. Reporter must file a complete Form BE-10A BANK and, as
applicable, a BE-10A BANK SUPPLEMENT listing each, if any, exempt
foreign affiliate, whether bank or nonbank. It must also file a Form BE-
10B(SF) for each nonexempt nonbank foreign affiliate and a Form BE-10B
BANK for each nonexempt foreign bank affiliate.
(ii) If the U.S. bank Reporter had no foreign affiliates for which
any one of the three items listed in paragraph (d)(2)(i) of this section
was greater than $3 million (positive or negative) at any time during
the affiliate's 1994 fiscal year, then only items 1-4 of Form BE-10A
BANK and the BE-10A BANK SUPPLEMENT, listing all exempt foreign
affiliates, should be completed.
(3) Form BE-10B BANK (Report for a foreign affiliate that is a
bank). (i) A BE-10B BANK report must be filed for each foreign bank
affiliate of a bank or nonbank U.S. Reporter, whether directly or
indirectly held, for which any
[[Page 30]]
one of the three items--total assets, sales or gross operating revenues
excluding sales taxes, or net income after provision for foreign income
taxes--was greater than $3 million (positive or negative) at any time
during the affiliate's 1994 fiscal year.
(ii) Notwithstanding paragraph (d)(3)(i) of this section, a Form BE-
10B BANK must be filed for a foreign bank affiliate of the U.S. Reporter
that owns another nonexempt foreign affiliate of that U.S. Reporter,
even if the foreign affiliate parent is otherwise exempt, i.e., a Form
BE-10B(LF), (SF), or BANK must be filed for all affiliates upward in a
chain of ownership. However, a Form BE-10B BANK is not required to be
filed for a foreign bank affiliate in which the U.S. Reporter holds only
an indirect ownership interest of 50 percent or less and that does not
own a reportable nonbank foreign affiliate, but the indirectly owned
bank affiliate must be listed on the BE-10A BANK SUPPLEMENT.
(e) Due date. A fully completed and certified BE-10 report
comprising Form BE-10A or 10A BANK, BE-10A SUPPLEMENT (as required), and
Form(s) BE-10B(LF), (SF), or BANK (as required) is due to be filed with
BEA not later than May 31, 1995 for those U.S. Reporters filing less
than 50, and June 30, 1995 for those U.S. Reporters filing 50 or more,
Forms BE-10B(LF), (SF) or BANK.
[59 FR 62568, Dec. 6, 1994]
Sec. 806.17 Rules and regulations for BE-12, Benchmark Survey of Foreign Direct Investment in the United States--1992.
A BE-12, Benchmark Survey of Foreign Direct Investment in the United
States will be conducted covering 1992. All legal authorities,
provisions, definitions, and requirements contained in Secs. 806.1
through 806.13 and Sec. 806.15 (a) through (g) are applicable to this
survey. Specific additional rules and regulations for the BE-12 survey
are given below.
(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--1992, contained herein, whether
or not they are contacted by BEA. Also, a person, or their agent,
contacted by BEA concerning their being subject to reporting, either by
sending them a report form or by written inquiry, must respond in
writing pursuant to Sec. 806.4. This may be accomplished by completing
and returning either Form BE-12(X) within 30 days of its receipt if Form
BE-12(LF), Form BE-12(SF), or Form BE-12 Bank do not apply, or by
completing and returning Form BE-12(LF), Form BE-12(SF), or Form BE-12
Bank, whichever is applicable, by May 31, 1993.
(b) Who must report. A BE-12 report is required for each U.S.
affiliate, i.e., for each U.S. business enterprise in which a foreign
person owned or controlled, directly or indirectly, 10 percent or more
of the voting securities if an incorporated U.S. business enterprise, or
an equivalent interest if an unincorporated U.S. business enterprise, at
the end of the business enterprise's 1992 fiscal year. A report is
required even though the foreign person's ownership interest in the U.S.
business enterprise may have been established or acquired during the
reporting period. Beneficial, not record, ownership is the basis of the
reporting criteria.
(c) Forms to be filed. (1) Form BE-12(LF)--Benchmark Survey of
Foreign Direct Investment in the United States--1992 (Long Form) must be
completed and filed by May 31, 1993, by each U.S. business enterprise
that was a U.S. affiliate of a foreign person at the end of its 1992
fiscal year, if:
(i) It is not a bank, and
(ii) On a fully consolidated, or, in the case of real estate
investment, an aggregated basis, one or more of the following three
items for the U.S. affiliate (not just the foreign parent's share)
exceeded $50 million (positive or negative) at the end of, or for, its
1992 fiscal year:
(A) Total assets (do not net out liabilities)
(B) Sales or gross operating revenues, excluding sales taxes, or
(C) Net income after provision for U.S. income taxes.
(2) Form BE-12(SF)--Benchmark Survey of Foreign Direct Investment in
the United States--1992 (Short Form) must be completed and filed by May
31,
[[Page 31]]
1993, by each U.S. business enterprise that was a U.S. affiliate of a
foreign person at the end of its 1992 fiscal year, if:
(i) It is not a bank, and
(ii) On a fully consolidated, or, in the case of real estate
investments, an aggregated basis, one or more of the following three
items for the U.S. affiliate (not just the foreign parent's share)
exceeded $1 million, but no one item exceeded $50 million (positive or
negative) at the end of, or for, its 1992 fiscal year:
(A) Total assets (do not net out liabilities)
(B) Sales or gross operating revenues, excluding sales taxes, or
(C) Net income after provision for U.S. income taxes.
(3) Form BE-12 Bank--Benchmark Survey of Foreign Direct Investment
in the United States--1992 BANK must be completed and filed by May 31,
1993, by each U.S. business enterprise that was a U.S. affiliate of a
foreign person at the end of its 1992 fiscal year, if:
(i) The U.S. affiliate is a bank or a bank holding company, and
(ii) On a fully consolidated basis, one or more of the following
three items for the U.S. affiliate (not just the foreign parent's share)
exceeded $1 million (positive or negative) at the end of, or for, its
1992 fiscal year:
(A) Total assets (do not net out liabilities)
(B) Sales or gross operating revenues, excluding sales taxes, or
(C) Net income after provision for U.S. income taxes.
(4) Form BE-12(X)--Benchmark Survey of Foreign Direct Investment in
the United States--1992, Claim for Exemption from Filing BE-12(LF), BE-
12(SF), and BE-12 Bank must be completed and filed within 30 days of the
date it was received, or by May 31, 1993, whichever is sooner, by:
(i) Each U.S. business enterprise that was a U.S. affiliate of a
foreign person at the end of its 1992 fiscal year (whether or not the
U.S. affiliate, or its agent, is contacted by BEA concerning its being
subject to reporting in the 1992 benchmark survey), but is exempt from
filing Form BE-12(LF), Form BE-12(SF), and Form BE-12 Bank; and
(ii) Each U.S. business enterprise, or its agent, that is contacted,
in writing, by BEA concerning its being subject to reporting in the 1992
benchmark survey but that is not otherwise required to file the Form BE-
12(LF), Form BE-12(SF), or Form BE-12 Bank.
(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.
(e) Exemption. (1) A U.S. affiliate as consolidated, or aggregated
in the case of real estate investments, is not required to file a Form
BE-12(LF), Form BE-12(SF), or Form BE-12 Bank if each of the following
three items for the U.S. affiliate (not just the foreign parent's share)
did not exceed $1 million (positive or negative) at the end of, or for,
its 1992 fiscal year:
(i) Total assets (do not net out liabilities)
(ii) Sales or gross operating revenues, excluding sales taxes, and
(iii) Net income after provision for U.S. income taxes.
(2) If a U.S. business enterprise was a U.S. affiliate at the end of
its 1992 fiscal year but is exempt from filing a completed Form BE-
12(LF), BE-12(SF), or Form BE-12 Bank, it must nevertheless file a
completed and certified Form BE-12(X).
(f) Due date. A fully completed and certified Form BE-12(LF), Form
BE-12(SF), or BE-12 Bank is due to be filed with BEA not later than May
31, 1993. A fully completed and certified Form BE-12(X) is due to be
filed with BEA within 30 days of the date it was received, or by May 31,
1993, whichever is sooner.
[57 FR 60732, Dec. 22, 1992]
Sec. 806.18 OMB control numbers assigned pursuant to the Paperwork Reduction Act.
(a) Purpose. This section will comply with the requirements of
section 3507 (f) of the Paperwork Reduction Act (PRA) which require
agencies to display a current control number assigned
[[Page 32]]
by the Director of OMB for each agency information collection
requirement.
(b) Display.
------------------------------------------------------------------------
Current
OMB
15 CFR section where identified and described control
No.
------------------------------------------------------------------------
806.1 through 806.17........................................ 0608-0020
0024
0032
0004
0035
0030
0009
0023
0034
0053
------------------------------------------------------------------------
[48 FR 56944, Dec. 27, 1983, as amended at 51 FR 41476, Nov. 17, 1986]
PART 807--PUBLIC INFORMATION--Table of Contents
Sec.
807.1 Public Reference Facility.
807.2 Department of Commerce rules applicable.
Sec. 807.1 Public Reference Facility.
The Public Reference Facility of the Bureau of Economic Analysis is
located in room B7 of the Tower Building. 1401 K Street NW., Washington,
DC 20230. The telephone number is 202-523-0595. The facility is open to
the public from 8:30 a.m. to 5 p.m., Monday through Friday, except legal
holidays.
(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301;
Reorganization Plan No. 5 of 1950; and 15 CFR part 4 of Subtitle A)
[42 FR 38574, July 29, 1977]
Sec. 807.2 Department of Commerce rules applicable.
The rules applicable to the services provided in the facility and
procedures to be followed for public inspection and copying of materials
are found in part 4 of subtitle A of title 15 CFR.
(5 U.S.C. 552 as amended by Pub. L. 93-502; 5 U.S.C. 553; 5 U.S.C. 301;
Reorganization Plan No. 5 of 1950; and 15 CFR Part 4 of Subtitle A)
[42 FR 38574, July 29, 1977]
[[Page 33]]
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL REGULATIONS
Part Page
902 NOAA information collection requirements
under the Paperwork Reduction Act: OMB
control numbers......................... 35
903 Public information.......................... 36
904 Civil procedures............................ 37
905 Use in enforcement proceedings of
information collected by voluntary
fishery data collectors................. 63
908 Maintaining records and submitting reports
on weather modification activities...... 64
909 Policies and procedures regarding disclosure
of information and NOAA employee
testimony in litigation not involving
the United States....................... 70
911 The United States Geostationary Operational
Environmental Satellite (GOES) Data
Collection System (DCS)................. 72
917 National sea grant program funding
regulations............................. 75
918 Sea grants.................................. 82
SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
921 National Estuarine Research Reserve System
regulations............................. 87
922 National Marine Sanctuary program
regulations............................. 110
923 Coastal zone management program regulations. 183
930 Federal consistency with approved coastal
management programs..................... 223
[[Page 34]]
932-933
[Reserved]
SUBCHAPTER C--REGULATIONS OF THE NATIONAL WEATHER SERVICE
946 Modernization of the National Weather
Service................................. 249
SUBCHAPTER D--GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE
950 Environmental data and information.......... 262
960 Licensing of private remote-sensing space
systems................................. 266
970 Deep seabed mining regulations for
exploration licenses.................... 275
971 Deep seabed mining regulations for
commercial recovery permits............. 306
SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
990 Natural resource damage assessments......... 346
[[Page 35]]
SUBCHAPTER A--GENERAL REGULATIONS
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS--Table of Contents
Authority: 44 U.S.C. 3501 et seq.
Sec. 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.
------------------------------------------------------------------------
Current OMB control number
CFR part or section where the information (all numbers begin with 0648-
collection requirement is located )
------------------------------------------------------------------------
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(c)............................... -0083
216.24(d)............................... -0099 and -0217
216.24(e)............................... -0040
216.27.................................. -0084
216.33.................................. -0084
216.37.................................. -0084
216.38.................................. -0084
216.39.................................. -0084
216.41.................................. -0084
216.45.................................. -0084
216.104................................. -0151
216.106................................. -0151
216.108................................. -0151
216.114................................. -0151
216.145................................. -0151
216.155................................. -0151
222.11-2................................ -0078
222.11-8................................ -0079
222.12-7................................ -0078
222.12-8................................ -0078
222.22.................................. -0230
227.72.................................. -0230 and -0267
229.5................................... -0293
229.6................................... -0292
229.7................................... -0292
230.8................................... -0311
253.15.................................. -0012
259.30.................................. -0090
259.35.................................. -0041
260.103................................. -0266
285.7................................... -0202
285.8................................... -0202
285.21.................................. -0327
285.27.................................. -0247
285.28.................................. -0202
285.29.................................. -0239 and -0328
285.33.................................. -0305
285.52.................................. -0202
285.54.................................. -0016
285.55.................................. -0239
285.201................................. -0040
296.5................................... -0082
300.13.................................. -0304
300.22.................................. -0148
300.24.................................. -0202
300.25.................................. -0239
300.26(c)............................... -0239
300.26(d)............................... -0239
300.32.................................. -0218
300.34.................................. -0306
300.35.................................. -0306
300.103(a).............................. -0194
300.104(d).............................. -0194
300.104(e).............................. -0194
300.105(c).............................. -0194
300.106(e).............................. -0194
300.108(a).............................. -0306
300.108(c).............................. -0305
300.112................................. -0194
300.113................................. -0194
300.123................................. -0205
300.124(b).............................. -0016
300.125................................. -0306
300.152................................. -0228
300.153(b).............................. -0228
300.154(b).............................. -0228
300.154(c).............................. -0228
300.154(d).............................. -0228
600.205................................. -0314
600.215................................. -0314
600.235................................. -0192
[[Page 36]]
600.501................................. -0089
600.502................................. -0075
600.503................................. -0305 and -0306
600.504................................. -0075
600.506................................. -0075
600.507................................. -0075
600.508................................. -0329
600.510................................. -0075
600.512................................. -0309
600.520................................. -0075
600.630................................. -0314
622.4................................... -0205 and -0336
622.5................................... -0013 and -0016
622.6................................... -0305 and -0306
622.8................................... -0205
622.15.................................. -0013 and -0262
622.17.................................. -0205
622.40(a)(2)............................ -0205
622.41(a)............................... -0016, and -0305
622.45(a)............................... -0013
630.4................................... -0205
630.5................................... -0013 and -0016
630.6................................... -0306
630.10.................................. -0016
630.31.................................. -0277
640.4................................... -0205
640.6................................... -0305 and -0306
644.24.................................. -0216
648.4................................... -0202 and -0212
648.5................................... -0202
648.6................................... -0202
648.7................................... -0018, -0212, and -0229
648.8................................... -0306, -0229
648.9................................... -0202 and -0307
648.10.................................. -0202
648.11.................................. -0202
648.15.................................. -0202
648.53.................................. -0202
648.54.................................. -0202
648.56.................................. -0321
648.70.................................. -0238
648.74.................................. -0240
648.80.................................. -0202
648.81.................................. -0202
648.82.................................. -0202
648.84.................................. -0305
648.86.................................. -0202
648.100................................. -0202
648.106................................. -0202
648.123................................. -0305
648.144................................. -0305
649.4................................... -0202
649.5................................... -0202
649.6................................... -0202
649.7................................... -0306
649.21.................................. -0305
654.6................................... -0305, -0306,
and -0307
660.13.................................. -0204
660.14.................................. -0214
660.16.................................. -0306
660.17.................................. -0204
660.21(k)............................... -0204
660.23.................................. -0214
660.24.................................. -0305
660.25.................................. -0307
660.27.................................. -0214
660.28.................................. -0214
660.43.................................. -0214
660.48.................................. \1\ -0214
660.303................................. -0271
660.305................................. -0306
660.322................................. -0305
660.323................................. -0243
660.333................................. -0203
660.505................................. -0306
661.4................................... -0222
661.20.................................. -0222
663.4................................... -0271
663.6................................... -0306
663.10.................................. -0203
663.11.................................. -0203
663.22.................................. -0305
663.33.................................. -0203
678.4................................... -0205
678.5................................... -0013, -0016
and -0229
678.6................................... -0306
678.10.................................. -0016
679.4................................... -0206, -0272, -0280, and -
0282
679.5................................... -0213 and -0272
679.6................................... -0206
679.24.................................. -0305 and -0307
679.26.................................. -0316
679.30.................................. -0269
679.32.................................. -0269
679.33.................................. -0269
679.34.................................. -0269
679.40.................................. -0213 and -0272
679.41.................................. -0272
679.42.................................. -0272
679.43.................................. -0272 and -0282
679.50.................................. -0307 and -0318
------------------------------------------------------------------------
\1\ And -0305.
[60 FR 39248, Aug. 2, 1995]
Editorial Note: For Federal Register citations affecting Sec. 902.1,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Effective Date Note: At 62 FR 1831, Jan. 14, 1997, in Sec. 902.1,
in paragraph (b), the table was amended by adding the entry ``648.56'',
effective Feb. 13, 1997 through July 15, 1998.
PART 903--PUBLIC INFORMATION--Table of Contents
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.
Sec. 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]
[[Page 37]]
PART 904--CIVIL PROCEDURES--Table of Contents
Subpart A--General
Sec.
904.1 Purpose and scope.
904.2 Definitions.
904.3 Filing and service of documents.
Subpart B--Civil Penalties
904.100 General.
904.101 Notice of Violation and Assessment (NOVA).
904.102 Procedures upon receipt of a NOVA.
904.103 Hearing and administrative review.
904.104 Final administrative decision.
904.105 Payment of final assessment.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing penalties.
Subpart C--Hearing and Appeal Procedures
General
904.200 Scope and applicability.
904.201 Case docketing.
904.202 Filing of documents.
904.203 Appearances.
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleadings or record.
904.208 Extensions of time.
904.209 Expedited proceedings.
904.210 Summary decision.
904.211 Failure to appear.
904.212 Failure to prosecute or defend.
904.213 Settlements.
904.214 Stipulations.
904.215 Consolidation.
904.216 Prehearing conferences.
Discovery
904.240 Discovery generally.
904.241 Depositions.
904.242 Interrogatories to parties.
904.243 Admissions.
904.244 Production of documents and inspection.
904.245 Subpoenas.
Hearings
904.250 Notice of time and place of hearing.
904.251 Evidence.
904.252 Witnesses.
904.253 Interlocutory appeals.
904.254 Ex parte communications.
Post-Hearing
904.260 Official transcript.
904.261 Post-hearing briefs.
904.262 Documents, copies, and exhibits.
Decision
904.270 Record of decision.
904.271 Decision.
904.272 Petition for reconsideration.
904.273 Administrative review of decision.
Subpart D--Permit Sanctions and Denials
General
904.300 Scope and applicability.
904.301 Bases for sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.
Sanctions for Nonpayment of Penalties
904.310 Nature of sanctions.
904.311 Compliance.
Sanctions for Violations
904.320 Nature of sanctions.
904.321 Reinstatement of permit.
904.322 Interim action.
Subpart E--Written Warnings
904.400 Purpose and scope.
904.401 Written warning as a prior offense.
904.402 Procedures.
904.403 Review and appeal of a written warning.
Subpart F--Seizure and Forfeiture Procedures
904.500 Purpose and scope.
904.501 Notice of seizure.
904.502 Bonded release.
904.503 Appraisement.
904.504 Administrative forfeiture proceedings.
904.505 Summary sale.
904.506 Remission and mitigation of forfeiture.
904.507 Petition for restoration of proceeds.
904.508 Recovery of certain storage costs.
904.509 Abandonment.
904.510 Disposal of forfeited or abandoned items.
Authority: 16 U.S.C. 1801-1882; 16 U.S.C. 1531-1543; 16 U.S.C.
1361-1407; 16 U.S.C. 3371-3378; 16 U.S.C. 1431-1439; 16 U.S.C. 773-773k;
16 U.S.C. 951-961; 16 U.S.C. 1021-1032; 16 U.S.C. 3631-3644; 42 U.S.C.
9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971i; 16 U.S.C. 781
et seq.; 16 U.S.C. 2401-2412; 16 U.S.C. 2431-2444; 16 U.S.C. 972-972h;
16 U.S.C. 916-916l; 16 U.S.C. 1151-1175; 16 U.S.C. 3601-3608; 16 U.S.C.
1851 note; 15 U.S.C. 4201 et seq.; Pub. L. 102-587, 106 Stat. 5039.
Source: 52 FR 10325, Mar. 31, 1987, unless otherwise noted.
[[Page 38]]
Subpart A--General
Sec. 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 the 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) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2412;
(2) Antarctic Marine Living Resources Convention Act of 1984, 16
U.S.C. 2431-2444;
(3) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
(4) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
(5) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971i;
(6) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;
(7) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
(8) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
(9) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;
(10) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;
(11) Land Remote-Sensing Commercialization Act of 1981, 15 U.S.C.
4201 et seq.;
(12) Magnuson Fishery Conservation and Management Act, 16 U.S.C.
1801-1882;
(13) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
(14) Marine Protection, Research, and Sanctuaries Act, 16 U.S.C.
1431-1439;
(15) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
(16) North Pacific Fisheries Act of 1954, 16 U.S.C. 1021-1032;
(17) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et
seq.;
(18) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
(19) Sponge Act, 16 U.S.C. 781 et seq.;
(20) Tuna Conventions Act of 1950, 16 U.S.C. 951-961; and
(21) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.
The procedures set forth in this part are intended to apply to
administrative proceedings under these and later-enacted statutes
administered by NOAA.
Sec. 904.2 Definitions.
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 Sec. 904.1(c), and any
regulations issued by NOAA to implement it.
Applicant means any person who applies or is expected to apply for a
permit.
Citation means a written warning (see section 311(c) of the Magnuson
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)).
Decision means an initial or final 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 or permit sanction 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 Government by court order
[[Page 39]]
or by order of the Administrator under a statute.
Initial decision means a decision of the Judge which, under
applicable statute and regulation, is subject to review by the
Administrator, but which becomes the final administrative decision in
the absence of such review.
Judge means Administrative Law Judge.
NOAA (see Agency) means either the Administrator or a designee
acting on behalf of the Administrator.
Party means the respondent and the Agency as represented by counsel;
if they enter an appearance, a joint and several respondent, vessel
owner, or permit holder; and any other person allowed to participate
under Sec. 904.204(a).
Payment agreement means any promissory note, security agreement,
settlement agreement, or other contract specifying the terms according
to which a permit holder agrees to pay a civil penalty.
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.
Sanction means suspension, revocation, or modification of a permit
(see Sec. 904.320).
Vessel owner means the owner of any vessel that is liable in rem for
any civil penalty under this part, or whose permit may be subject to
sanction as a result of civil penalty proceedings under this part.
Written warning means a notice in writing to a person that a
violation of a minor or technical nature has been documented against the
person or against the vessel which is owned or operated by the person.
Sec. 904.3 Filing and service of documents.
(a) Whenever this part requires service of a document or other
paper, such service may effectively be made on the agent for service of
process or on the attorney for the person to be served or other
representative. Refusal by the person to be served, or his or her agent
or attorney, 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. Service will be considered effective when the document is
mailed to an addressee's last known address.
(b) Any documents or pleadings 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.
(c) A pleading or document will be considered served and/or filed as
of the date of the postmark (or as otherwise shown for government-
franked mail); or (if not mailed) as of the date actually delivered in
person; or as shown by electronic mail transmission.
(d) Time periods begin to run on the day following the 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, 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.
(e) If an oral or written application is made to NOAA within 10 days
after the expiration of a time period established in this part for the
required filing of documents or other papers, NOAA may permit a late
filing if NOAA finds reasonable grounds for an inability or failure to
file within the time period. All extensions will be in writing. Except
as specifically provided in this part, or by order of an Administrative
Law Judge (Judge) under this part, no requests for an extension of time
may be granted.
[[Page 40]]
Subpart B--Civil Penalties
Sec. 904.100 General.
This subpart sets forth the procedures governing NOAA administrative
proceedings for the assessment of civil penalties under the statutes
cited in Sec. 904.1(c).
Sec. 904.101 Notice of Violation and Assessment (NOVA).
(a) A NOVA will be issued by NOAA and served personally or by
registered or certified mail, return receipt requested, upon the person
alleged to be subject to a civil penalty (the respondent). A copy of the
NOVA will similarly be served upon the permit holder or the vessel
owner, if the holder or owner is not the respondent. 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; and
(4) The amount of the civil penalty assessed. The NOVA will also
advise of 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.
Sec. 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 paragraph (e) of this section;
(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 final in
accordance with Sec. 904.104. The procedures set forth in paragraphs (a)
(2), (3), (4), and (5) of this section may also be exercised by the
permit holder or vessel owner.
(b) The respondent, the permit holder, or the vessel owner 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, permit holder, or vessel owner, as
appropriate.
(c) The respondent, permit holder, or vessel owner 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.
(e) If the respondent, the permit holder, or the vessel owner wishes
a hearing, the request must be dated and in writing, and must be served
either in person or mailed to the address specified in the NOVA. The
requester must either attach a copy of the NOVA or refer to the relevant
NOAA case number. Agency counsel will promptly forward the request for
hearing to the Office of Administrative Law Judges.
[[Page 41]]
(f) Any denial, in whole or in part, of any request under this
section that is based upon untimeliness will be in writing.
(g) Agency counsel may, in his or her discretion, treat any
communication from a respondent, a permit holder, or vessel owner as a
request for a hearing under paragraph (e) of this section.
Sec. 904.103 Hearing and administrative review.
(a) Any hearing request under Sec. 904.102(e) is governed by the
hearing and review procedures set forth in subpart C.
(b) In any hearing held in response to a request under
Sec. 904.102(e), the Administrative Law Judge (Judge) will render an
initial decision. Any party to the hearing may seek the Administrator's
review of the Judge's initial decision, subject to the provisions of
subpart C.
Sec. 904.104 Final administrative decision.
(a) If no request for hearing is timely filed as provided in
Sec. 904.102(e), the NOVA becomes effective as the final administrative
decision and order of NOAA on the 30th day 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
Sec. 904.102(e), the date of the final administrative decision is as
provided in subpart C.
Sec. 904.105 Payment of final assessment.
(a) Respondent must make full payment of the civil penalty assessed
within 30 days of the date upon which the assessment becomes effective
as the final administrative decision and order of NOAA under
Sec. 904.104 or subpart C. Payment must be made by mailing or delivering
to NOAA at the address specified in the NOVA a check or money order made
payable in United States currency in the amount of the assessment to the
``Treasurer of the United States,'' or as otherwise directed.
(b) Upon any failure to pay the civil penalty assessed, NOAA may
request the Justice Department to recover the amount assessed in any
appropriate district court of the United States, or may act under
Sec. 904.106.
Sec. 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 imposed, or
which is subject to imposition, except as stated in paragraph (d) of
this section.
(b) The compromise authority of NOAA under this section is in
addition to any similar authority provided in any applicable statute or
regulation, and may be exercised either upon the initiative of NOAA or
in response to a request by the alleged violator or other interested
person. 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 an assessment is final or payable.
(d) Exception. NOAA will not compromise, modify, or remit a civil
penalty imposed, or subject to imposition, under the Deep Seabed Hard
Mineral Resources Act while an action to review or recover the penalty
is pending in a court of the United States.
Sec. 904.107 Joint and several respondents.
(a) A NOVA may assess a civil penalty against two or more
respondents jointly and severally. Each respondent is liable for the
entire penalty, but no more than the amount finally assessed may be
collected from the respondents.
(b) A hearing request by one respondent is considered a request by
the other respondents. Agency counsel, having received a hearing request
from one respondent, will send a copy of it to the other joint and
several respondents in the case.
(c) A decision by the Judge or the Administrator after a hearing
requested by one joint and several respondent is binding on all parties
and on all other joint and several respondents, whether or not they
entered an appearance.
Sec. 904.108 Factors considered in assessing penalties.
(a) Factors to be taken into account in assessing a penalty,
depending upon the statute in question, may include the nature,
circumstances, extent, and
[[Page 42]]
gravity of the alleged violation; the respondent's degree of
culpability, any history of prior offenses, and ability to pay; and such
other matters as justice may require. NOAA will take into account a
respondent's ability to pay when assessing a civil penalty for a
violation of any of the statutes NOAA administers.
(b) NOAA may, in consideration of a respondent's ability to pay,
increase or decrease a penalty from an amount that would otherwise be
warranted by the other relevant factors. A penalty may be increased if a
respondent's ability to pay is such that a higher penalty is necessary
to deter future violations, or for commercial violators, to make a
penalty more than a cost of doing business. A penalty may be decreased
if the respondent establishes that he or she is unable to pay an
otherwise appropriate penalty amount.
(c) Except as provided in paragraph (g) of this section, if a
respondent asserts that a 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 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, 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 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 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 after receipt of the NOVA
as possible. If a respondent has requested a hearing on the offense
alleged in the NOVA and wants his or her inability to pay considered in
the initial decision of the Judge, verifiable financial information must
be submitted to Agency counsel at least 15 days in advance of the
hearing. In deciding whether to submit such information, the respondent
should keep in mind that the Judge may assess de novo 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
at the hearing.
(g) Whenever a statute requires NOAA to take into consideration a
respondent's ability to pay when assessing a penalty, NOAA will take
into consideration information available to it concerning a respondent's
ability to pay. In such case, the NOVA will advise, in accordance with
section 904.102 of this part, that respondent may seek to have the
penalty amount modified by Agency counsel on the basis that he or she
does not have the ability to pay the penalty assessed. A request to have
the penalty amount modified on this basis must be made in accordance
with Sec. 904.102 of this part and should be accompanied by supporting
financial information. Agency counsel may request the respondent to
submit such additional verifiable financial information as Agency
counsel determines is necessary to evaluate the respondent's financial
condition (such as by responding to a financial request form or
[[Page 43]]
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 penalty assessed in the NOVA If the respondent has
requested a hearing on the offense 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 de novo assessment of a
penalty. Agency counsel may obtain such financial information through
discovery procedures under Sec. 904.240 of this part, 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
penalty, or result in respondent being barred from asserting financial
hardship.
[52 FR 10325, Mar. 31, 1987, as amended at 58 FR 58485, Nov. 2, 1993]
Subpart C--Hearing and Appeal Procedures
General
Sec. 904.200 Scope and applicability.
(a) This subpart sets forth the procedures governing the conduct of
hearings and the issuance of initial and final decisions of NOAA in
administrative proceedings involving alleged violations of the laws
cited in Sec. 904.1(c) 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) Subject to the administrative direction of the Chief
Administrative Law Judge, each Administrative Law Judge (Judge) assigned
by the Chief Administrative Law Judge is delegated authority to make the
initial or final decision of the Agency (whichever is made appropriate
by regulation outside this subpart) 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 challenges to the validity of regulations
promulgated by the Agency.
(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.
Sec. 904.201 Case docketing.
Each request for hearing promptly upon its receipt for filing in the
Office of Administrative Law Judges will be 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.
Sec. 904.202 Filing of documents.
(a) Pleadings, papers, and other documents in the proceeding must be
filed in conformance with Sec. 904.3 directly with the Judge, with
copies served on all other parties. Pleadings, papers, and other
documents pertaining to administrative review under Sec. 904.273 must be
filed with the Administrator, with copies served on all other parties.
(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.
Sec. 904.203 Appearances.
A party may appear in person or by or with counsel or other
representative.
Sec. 904.204 Duties and powers of Judge.
The Judge has all powers and responsibilities necessary to preside
over the parties and the proceeding, to hold prehearing conferences, to
conduct the hearing, and to make the decision 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 a request to participate as a party in the proceeding by
allowing, denying, or limiting such participation (such ruling will
consider views of the parties and be based on whether
[[Page 44]]
the requester could be directly and adversely affected by the decision
and whether the requester can be expected to contribute materially to
the disposition of the proceedings);
(b) 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;
(c) Schedule and regulate the course of the hearing and the conduct
of the participants and the media, including the power to close the
hearings 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;
(d) Administer oaths and affirmations to witnesses;
(e) Rule on 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 Sec. 904.240(d);
(f) Rule on motions, procedural requests, and similar matters;
(g) Receive, exclude, limit, and otherwise rule on offers of proof
and evidence;
(h) Examine and cross-examine witnesses and introduce into the
record on the Judge's own initiative documentary or other evidence;
(i) 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;
(j) 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;
(k) Take official notice of any matter not appearing in evidence
that is among traditional matters of judicial notice; or of technical or
scientific facts within the general or specialized knowledge of the
Department of Commerce as an expert body; 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;
(l) For stated good reason(s), assess a penalty de novo without
being bound by the amount assessed in the NOVA;
(m) Prepare and submit a decision or other appropriate disposition
document and certify the record;
(n) Award attorney fees and expenses as provided by applicable
statute or regulation; and
(o) Grant preliminary or interim relief.
Sec. 904.205 Disqualification of Judge.
(a) The Judge may withdraw voluntarily from a particular case 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.
Sec. 904.206 Pleadings, motions, and service.
(a) The original of all pleadings and documents must be filed with
the Office of Administrative Law Judges and a copy served upon 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 Sec. 904.3(a).
(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,
[[Page 45]]
the original signed in ink or as otherwise verified for electronic mail;
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, pica type, 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 date of
service thereof. 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 may be served within 15 days of service of an
answer. The Judge has discretion to dispense with the reply. No further
responses are permitted.
Sec. 904.207 Amendment of pleadings or record.
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. The Judge has discretion to permit either party to amend its
pleadings upon conditions fair to both parties. Harmless errors may be
corrected (by deletion or substitution of words or figures), and broad
discretion will be exercised by the Judge in permitting such
corrections.
Sec. 904.208 Extensions of time.
If appropriate and justified, and as provided in Sec. 904.3(e), 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.
Sec. 904.209 Expedited 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 proceeding. A motion of a party to expedite the
proceeding may, in the discretion of the Judge, be made orally or in
writing with concurrent actual notice to all parties. If a motion for an
expedited hearing is granted, the hearing on the merits may not be
scheduled with less than three days' notice, unless all parties consent
to an earlier hearing.
Sec. 904.210 Summary decision.
The Judge may render a summary decision disposing of all or part of
the proceeding if:
(a) Jointly requested by every party to the 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.
[61 FR 54731, Oct. 22, 1996]
Sec. 904.211 Failure to appear.
(a) If a party fails to appear after proper service of notice, the
hearing may proceed. A notation of failure to appear will be made in the
record, and the hearing may be conducted with the parties then present,
or may be terminated if the Judge determines that proceeding with the
hearing will not aid the decisional process.
(b) The Judge will place in the record all the facts concerning the
issuance and service of the notice of time and place of hearing.
(c) 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.
[[Page 46]]
Sec. 904.212 Failure to prosecute or defend.
Whenever the record discloses the failure of either party to file
documents, respond to orders or notices from the Judge, or otherwise
indicates an intention on the part of either party not to participate
further in the proceeding, the Judge may issue any order, except
dismissal, that is necessary for the just and expeditious resolution of
the case.
[61 FR 54731, Oct. 22, 1996]
Sec. 904.213 Settlements.
If settlement is reached before the Judge has certified the record,
the Judge may require the submission of a copy of the settlement
agreement to assure that the Judge's consideration of the case is
completed and to order the matter dismissed on the basis of the
agreement.
Sec. 904.214 Stipulations.
The parties may, by stipulation, agree upon any matters involved in
the proceeding and include such stipulations in the record with the
consent of the Judge. Written stipulations must be signed and served
upon all parties.
Sec. 904.215 Consolidation.
The Judge may order two or more proceedings that involve
substantially the same parties or the same issues consolidated and/or
heard together.
Sec. 904.216 Prehearing conferences.
(a) Prior to any hearing or at other time deemed appropriate, the
Judge may, upon his or her own initiative, or upon the application of
any party, arrange a telephone conference and, where appropriate, record
such telephone conference, or direct the parties to appear for a
conference 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 hearing;
(6) The distribution to the parties and the Judge prior to the
hearing of written testimony and exhibits in order to expedite the
hearing;
(7) Such other matters as may aid in the disposition of the
proceeding.
(b) The Judge in his or her discretion may issue an order showing
the matters disposed of in such conference.
Discovery
Sec. 904.240 Discovery generally.
(a) Preliminary position on issues and procedures. Prior to hearing
the Judge will ordinarily require from the parties a written submission
stating their preliminary positions on legal and factual issues and
procedures, listing potential witnesses and summarizing their testimony,
and listing exhibits. Except for information regarding a respondent's
ability to pay an assessed penalty, this document, which must be served
on all other parties, will normally obviate the need for further
discovery. Failure to provide the requested information may result in
the exclusion of witnesses and/or exhibits at the hearing. See also
Sec. 904.212. A party has the affirmative obligation to supplement the
submission as new information 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 penalty, the Agency may serve any discovery request (i.e.,
deposition, interrogatories, admissions, production of documents)
directly upon the respondent without first seeking an order from the
Judge.
(c) Time limits. Motions for depositions, interrogatories,
admissions, or
[[Page 47]]
production of documents or things may not be filed within 20 days of
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 subpoena
or 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;
(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.
[52 FR 10325, Mar. 31, 1987, as amended at 58 FR 58486, Nov. 2, 1993; 61
FR 54731, Oct. 22, 1996]
Sec. 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 each 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 and mailing address
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
[[Page 48]]
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 Sec. 904.252(c).
(c) Alternative deposition methods. By order of the Judge, the
parties may use other methods of deposing parties or witnesses, such as
telephonic depositions or depositions upon written questions. Objections
to the form of written questions are waived unless made within five days
of service of the questions.
(d) Use of depositions at hearing. (1) At hearing any part or all of
a deposition, so far as admissible under the rules of evidence applied
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.
Sec. 904.242 Interrogatories to parties.
(a) Use at hearing. If ordered by the Judge, any party may serve
upon any other party written interrogatories. Answers may be used at
hearing in the same manner as depositions under Sec. 904.241(d).
(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 by the
attorney making them. Unless otherwise ordered, answers and objections
must be served on all parties within 20 days after service of the
interrogatories.
(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 sufficent to specify such records and
afford the party serving the interrogatories an opportunity to examine
them.
Sec. 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, including the genuineness of
any relevant document described in the request. Copies of documents must
be served with the request. Each matter of 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, 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.
(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.
Sec. 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,
[[Page 49]]
which must address each item or category and include copies of the
requested documents.
Sec. 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 10
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, NOAA may
request the Justice Department 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
Sec. 904.250 Notice of time and place of hearing.
(a) The Judge will promptly serve on the parties notice of the time
and place of hearing. The hearing will not, except in extraordinary
circumstances, be held less than 20 days after service of the notice of
hearing.
(b) In setting a place for hearing, the Judge will consider the
convenience and costs of the parties, including but not limited to
transportation costs and living expenses of witnesses, attorneys, and
the Judge; place of residence of the respondent(s); scheduling of other
hearings within the same region; and availability of facilities and
court reporters.
(c) Upon the consent of each party to the proceeding, the Judge may
order that all or part of a proceeding be heard on submissions or
affidavits if it appears that substantially all important issues may be
resolved by means of written materials and that efficient disposition of
the proceeding can be made without an in-person hearing. For good cause,
the Judge may, in his sole discretion, order that the testimony of
witnesses be taken by telephone.
[52 FR 10325, Mar. 31, 1987, as amended at 61 FR 54731, Oct. 22, 1996]
Sec. 904.251 Evidence.
(a) 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
this subpart.
(b) 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
proceedings, and hearsay evidence is not inadmissible as such.
(c) Formal exceptions to the rulings of the Judge are unnecessary.
It is sufficient that a party, at the time of the ruling, makes known
the action that it desires the Judge to take or its objection to an
action taken, and the grounds therefor. Rulings on each objection must
appear in the record.
(d) In any case involving a charged violation of law in which the
party charged has admitted an allegation, evidence may be taken to
establish matters of aggravation or mitigation.
(e) 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 of the translator, must be served on the opposing party at
least 10 days prior to the hearing unless the parties otherwise agree.
(f) 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.
[[Page 50]]
Sec. 904.252 Witnesses.
(a) 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.
(b) Witnesses who are not parties may be excluded from the hearing
room prior to the taking of their testimony.
(c) Witnesses other than NOAA employees subpoenaed under these
rules, including Sec. 904.245, will be paid the same fees and mileage
that are paid witnesses in the courts of the United States, and
witnesses whose depositions are taken are entitled to the same fees as
are paid for like services in the courts of the United States. Fees and
any other related expenses for NOAA emoloyees as authorized by the NOAA
travel handbook will be paid by the party at whose instance the witness
appears or the deposition is taken.
(d) If a witness is expected to testify in a language other than the
English language, the party sponsoring the witness must provide for the
services of an interpreter and advise opposing counsel 10 days prior to
the hearing concerning the extent to which interpreters are to be used.
When available, the interpreter must be court certified under 28 U.S.C.
1827.
Sec. 904.253 Interlocutory appeals.
(a) At the request of a party or on the Judge's own initiative, the
Judge may certify to the Administrator for review a ruling that does not
finally dispose of the proceeding, if the Judge determines that an
immediate appeal therefrom may materially advance the ultimate
disposition of the matter.
(b) Upon certification by the Judge of the interlocutory ruling for
review, the parties have 10 days to serve any briefs associated with the
certification. The Administrator will promptly decide the matter.
(c) No interlocutory appeal lies as to any ruling not certified by
the Judge.
Sec. 904.254 Ex parte communications.
(a) Except to the extent required for disposition of ex parte
matters as authorized by law, after issuance of a NOVA, NOPS, or NIDP
and until the final decision of the Agency is effective under these
regulations, no ex parte communication relevant to the merits of the
proceeding may be made, or knowingly caused to be made:
(1) By the Judge or by an Agency employee involved in the decisional
process of the proceeding to any interested person outside the
Department of Commerce or to any Agency employee involved in the
investigation or prosecution of the case;
(2) By any Agency employee involved in the investigation or
prosecution of the case to the Judge or to any Agency employee involved
in the decisional process of the proceeding; or
(3) By an interested person outside the Department of Commerce to
the Judge or to any Agency employee involved in the decisional process
of the proceeding.
(b) An Agency employee or Judge who makes or receives a prohibited
communication must place in the hearing record the communication and any
response thereto, and the Judge or Administrator, as appropriate, may
take action consistent with these rules, the applicable statute, and 5
U.S.C. 556(d) and 557(d).
(c) Agency counsel may not participate or advise in the decision of
the Judge or the Administrator's review thereof except as witness or
counsel in the proceeding in accordance with this subpart. In addition,
the Judge may not consult any person or party on a fact in issue unless
notice and opportunity for all parties to participate is provided.
(d)(1) Paragraphs (a) and (b) 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 United
States 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
[[Page 51]]
information will be included in a classified portion of the record that
will be available for review only in accordance with applicable law.
Post-Hearing
Sec. 904.260 Official transcript.
(a) 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 proceeding and will be supplied to the parties
upon the payment of fees at the rate provided in the agreement with the
reporter.
(b) 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 proceeding.
Sec. 904.261 Post-hearing briefs.
(a) Unless a different schedule is established in the discretion of
the Judge, including the procedure in paragraph (b) of this section, the
parties may file proposed findings of fact and conclusions of law,
together with supporting briefs, within 30 calendar 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, unless the Judge sets a different schedule.
(b) In cases involving few parties, limited issues, and short
hearings, the Judge may require that any proposed findings and
conclusions and reasons in support be presented orally at the close of
the hearing. In such case, the Judge will advise the parties in advance
of hearing.
Sec. 904.262 Documents, copies and exhibits.
(a) If original documents have been received in evidence, a true
copy thereof, or of such part as may be material or relevant, may be
substituted in lieu of the original during the hearing or at its
conclusion. The Judge may, in his or her discretion, and after notice to
the other parties, allow the withdrawal of original exhibits or any part
thereof by the party entitled thereto for the purpose of substituting
copies. The substitution of true copies of exhibits, or any part
thereof, may be required by the Judge in his or her discretion as a
condition of granting permission for withdrawal of the original.
(b) Photographs may be substituted for physical evidence in the
discretion of the Judge.
(c) Except upon the Judge's order, or upon request by a party,
physical evidence will be retained after the hearing by the authorized
enforcement officer responsible for the case.
Decision
Sec. 904.270 Record of decision.
(a) The exclusive record of decision consists of the official
transcript of testimony and proceedings; exhibits admitted into
evidence; briefs, pleadings, and other documents filed in the
proceeding; and descriptions or copies of matters, facts, or documents
officially noticed in the 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 proceeding, which place of storage need not necessarily be located
physically within the Office of Administrative Law Judges.
(c) Exhibits offered after the close of a hearing will not be
admitted, unless the Judge specifically keeps open or reopens the record
to admit them.
Sec. 904.271 Decision.
(a) After expiration of the period provided in Sec. 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 a written decision upon the record in the case, setting forth:
(1) Findings and conclusions, and the reasons or basis therefor, on
all material issues of fact, law, or discretion presented on the record,
and the ruling on any proposed findings or conclusions presented by the
parties;
(2) A statement of any facts noticed or relied upon in the decision;
and
(3) Such other matters as the Judge considers appropriate.
[[Page 52]]
(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 decision under paragraph (a) of this
section. The Judge may in such case direct the prevailing party to
prepare proposed findings, conclusions, and an order.
(c) The Judge will serve the written decision on each of the parties
by registered or certified mail, return receipt requested, and will
promptly certify to the Administrator the record, including the original
copy of the decision, as complete and accurate.
(d) Unless the Judge orders a stay under Sec. 904.272, or unless a
petition for discretionary review is filed or the Administrator issues
an order to review upon his/her own initiative, an initial decision
becomes effective as the final administrative decision of NOAA 30 days
after service, unless otherwise provided by statute or regulations.
Sec. 904.272 Petition for reconsideration.
Unless an order of the Judge specifically provides otherwise, any
party may file a petition for reconsideration of an order or decision
issued by the Judge. Such petitions must state the matter claimed to
have been erroneously decided and the alleged errors or relief sought
must be specified with particularity. Petitions must be filed within 20
days after the service of such order or decision. Neither the filing nor
the granting of a petition for reconsideration may operate as a stay of
an order or decision or its effectiveness date (including for purposes
of Sec. 904.273) unless specifically so ordered by the Judge. Within 15
days after the petition is filed, any party to the proceeding may file
an answer in support or in opposition. In the Judge's discretion, the
hearing may be reopened to consider matters raised in a petition that
could not reasonably have been foreseen prior to issuance of the order
or decision.
Sec. 904.273 Administrative review of decision.
(a) Subject to the requirements of this section, any party may
petition for review of an initial decision of the Judge within 30 days
after the date the decision is served. The petition shall be addressed
to the Administrator and filed at the following address: Administrator,
National Oceanic and Atmospheric Administration, Department of Commerce,
Room 5128, 14th Street and Constitution Avenue NW., Washington, DC
20230.
(b) Review by the Administrator of an initial decision is
discretionary and is not a matter of right. A petition for review nust
be served upon all parties. If a party files a timely petition for
discretionary review, or action to review is taken by the Administrator
upon his or her own initiative, the effectiveness of the initial
decision is stayed until further order of the Administrator.
(c) Petitions for discretionary review may be filed only upon one or
more of the following grounds:
(1) A finding of a material fact is clearly erroneous based upon the
evidence in the record;
(2) A necessary legal conclusion is contrary to law or precedent:
(3) A substantial and important question of law, policy, or
discretion is involved (including the amount of the civil penalty); or
(4) A prejudicial procedural error has occurred.
(d) Each issue must be separately numbered, concisely stated, and
supported by detailed citations to the record, statutes, regulations,
and principal authorities. Issues of fact or law not argued before the
Judge may not be raised on review unless they were raised for the first
time in the 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) No oral argument on petitions for discretionary review will be
allowed.
(f) Within 30 days after service of a petition for discretionary
review, any party may file and serve an answer in support or in
opposition. No further replies are allowed.
(g) If the Administrator declines to exercise discretionary review,
such
[[Page 53]]
order will be served on all parties personally or by registered or
certified mail, return receipt requested, and will specify the date upon
which the Judge's decision will become effective as the final decision
of NOAA. The Administrator need not give reasons for declining review.
(h) If the Administrator grants a petition for discretionary review,
he or she will issue an order specifying issues to be briefed and a
briefing schedule. Such issues may constitute one or more of the issues
raised in the petition for discretionary review and/or matters the
Administrator wishes to review on his or her own initiative. Only those
issues specified in the order may be argued in the briefs and considered
by the Administrator. No oral argument will be permitted.
(i) After expiration of the period for filing briefs under paragraph
(h) of this section, the Administrator will render a written decision on
the issues under review. The Administrator will transmit the decision to
each of the parties by registered or certified mail, return receipt
requested. The Administrator's decision becomes the final administrative
decision on the date it is served, unless otherwise provided in the
decision.
Subpart D--Permit Sanctions and Denials
General
Sec. 904.300 Scope and applicability.
(a) This subpart sets forth policies and procedures governing the
suspension, revocation, modification, and denial of permits for reasons
relating to enforcement of the statutes cited in Sec. 904.1(c), except
for the statutes listed in paragraph (b) of this section. These reasons
include nonpayment of civil penalties or criminal fines, and violations
of statutes, regulations, or permit conditions. Nothing in this subpart
precludes sanction or denial of a permit for reasons not relating to
enforcement. As appropriate, and unless otherwise specified in this
subpart, the provisions of Subparts A, B, and C apply to this subpart.
(b) 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; under the Ocean Thermal Energy
Conversion Act of 1980 (42 U.S.C. 9101 et seq.), at 15 CFR part 981.
Sec. 904.301 Bases for sanctions or denials.
(a) Unless otherwise specified in a settlement agreement, or
otherwise provided in this subpart, NOAA may take action under this
subpart with respect to any permit issued under the statutes cited in
Sec. 904.1(c). The bases for an action to sanction or deny a permit are
as follows:
(1) The commission of any offense prohibited by any statute
administered by NOAA, including violation of any regulation promulgated
or permit condition or restriction prescribed thereunder, by the permit
holder or with the use of a permitted vessel;
(2) The failure to pay a civil penalty assessed under subparts B and
C of this part; or
(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.
(b) A sanction may be imposed or a permit denied under this subpart
with respect to the particular permit pertaining to the offense or
nonpayment, and may also be applied to any NOAA permit held or sought by
the permit holder, including permits for other activities or for other
vessels. Examples of the application of this policy are the following:
(1) NOAA suspends Vessel A's fishing permit for nonpayment of a
civil penalty pertaining to Vessel A. The owner of Vessel A buys Vessel
B and applies for a permit for Vessel B to participate in the same or a
different fishery. NOAA may withhold that permit until the sanction
against vessel A is lifted.
(2) NOAA revokes a Marine Mammal Protection Act permit for violation
of its conditions. The permit holder subsequently applies for a permit
under the Endangered Species Act. NOAA may deny the ESA application.
(3) Captain X, an officer in Country Y's fishing fleet, is found
guilty of assaulting an enforcement officer. NOAA may impose a condition
on the permits
[[Page 54]]
of Country Y's vessels that they may not fish in the fishery
conservation zone with Captain X aboard. (See Sec. 904.320(c).)
(c) Sanction not extinguished by sale. [Reserved]
Sec. 904.302 Notice of permit sanction (NOPS).
(a) A NOPS will be served personally or by registered or certified
mail, return receipt requested, on the permit holder. When a foreign
fishing vessel is involved, service 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 sanction to be imposed, the bases
for the sanction, and any opportunity for a hearing. It will state the
effective date of the sanction, which will ordinarily not be earlier
than 30 calendar days after the date of receipt of the NOPS (see
Sec. 904.322).
(c) Upon demand by an authorized enforcement officer, a permit
holder must surrender a permit against which a sanction has taken
effect. The effectiveness of the sanction, however, does not depend on
surrender of the permit.
Sec. 904.303 Notice of intent to deny permit (NIDP).
(a) NOAA may issue an NIDP if the applicant has been charged with a
violation of a statute, regulation, or permit administered by NOAA.
(b) The NIDP will set forth the basis for its issuance and any
opportunity for a hearing, and will be served in accordance with
Sec. 904.302(a).
(c) NOAA will not refund any fee(s) submitted with a permit
application if an NIDP is issued.
(d) An NIDP may be issued in conjunction with or independent of a
NOPS. Nothing in this section should be interpreted to preclude NOAA
from initiating a permit sanction action following issuance of the
permit, or from withholding a permit under Sec. 904.310(c) or
Sec. 904.320.
Sec. 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. The hearing may be combined with any other hearing under this
part.
(b) There will be no opportunity for a hearing if, with respect to
the violation that forms the basis for the NOPS or NIDP, the permit
holder had a previous opportunity to participate as a party in a
judicial or administrative hearing, whether or not the permit holder did
participate, and whether or not such a hearing was held.
(c) If entitled to a hearing under this section, the recipient of a
NOPS or NIDP will have 30 calendar days from receipt of the notice to
request a hearing. A request for hearing must be dated and in writing.
Failure to request a hearing within 30 days constitutes a waiver of the
opportunity for a hearing.
(d) Even if no hearing is requested, NOAA may order a hearing if it
will serve the interests of justice. This paragraph does not create any
right to a hearing in addition to the right provided in paragraph (a) of
this section.
Sanctions for Nonpayment of Penalties
Sec. 904.310 Nature of sanctions.
(a) NOAA may suspend a permit if:
(1) A civil penalty has been assessed against the permit holder
under subparts B and C of this part, but the permit holder has failed to
pay the penalty, or has defaulted on a payment agreement; or
(2) A criminal fine or other liability for violation of any of the
statutes administered by NOAA has been imposed against the permit holder
in a judicial proceeding, but payment has not been made.
(b) NOAA will suspend any permit issued to a foreign fishing vessel
under section 204(b) of the Magnuson Fishery Conservation and Management
Act under the circumstances set forth in paragraph (a) of this section.
(c) NOAA will withhold any other permit for which the permit holder
applies if either condition in Sec. 904.310(a) is applicable.
Sec. 904.311 Compliance.
If the permit holder pays the fine or penalty in full or agrees to
terms satisfactory to NOAA for payment:
[[Page 55]]
(a) The suspension will not take effect;
(b) Any permit suspended under Sec. 904.310 will be reinstated by
affirmative 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.
Sanctions for Violations
Sec. 904.320 Nature of sanctions.
Subject to the requirements of this subpart, NOAA may take any of
the following actions or combination of actions if a permit holder or
permitted vessel violates a statute administered by NOAA, or any
regulation promulgated or permit condition prescribed thereunder:
(a) 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.
(b) 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.
(c) 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 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.
Sec. 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 affirmative order of NOAA.
Sec. 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, an Administrative Law
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 Sec. 904.304.
Subpart E--Written Warnings
Sec. 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 Sec. 904.1(c).
[[Page 56]]
Sec. 904.401 Written warning as a prior offense.
A written warning may be used as a basis for dealing more severely
with a subsequent offense, including, but not limited to, a violation of
the same statute or an offense involving an activity that is related to
the prior offense.
Sec. 904.402 Procedures.
(a) Any person authorized to enforce the laws listed in
Sec. 904.1(c) who finds a violation of one of the laws may issue a
written warning to a violator in lieu of other law enforcement action
that could be taken under the applicable statute.
(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 violator of its effect in the event of a future
violation; and
(4) Inform the violator of the right of review and appeal under
Sec. 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 violator
previously committed a similar offense for which a written warning was
issued or other enforcement action was taken, NOAA may withdraw the
warning and commence other civil or criminal proceedings.
(e) For written warnings under the Magnuson Fishery Conservation and
Management Act or the Northern Pacific Halibut Act of 1982, the
enforcement officer will note the warning, its date, and reason for its
issuance on the permit, if any, of the vessel used in the violation. If
noting the warning on the permit of the vessel is impracticable, notice
of the written warning will be served personally, or by registered or
certified mail, return receipt requested, on the vessel's owner,
operator, or designated agent for service of process, and such service
will be deemed notation on the permit.
Sec. 904.403 Review and appeal of a written warning.
(a) If a person receives a written warning from an enforcement
agent, the person may, within 90 days of receipt of the written warning,
seek review by the appropriate NOAA Regional Attorney. The request must
be in writing and must present the facts and circumstances that explain
or deny the violation described in the warning. The Regional Attorney
will review the information and notify the person of his or her
decision.
(b) If a person receives a written warning from a Regional Attorney
or staff attorney, or receives a decision from a Regional Attorney
affirming a written warning, the person may appeal the warning or
decision to the NOAA Assistant General Counsel for Enforcement and
Litigation. The appeal must be brought within 30 days of receipt of the
warning or decision from the Regional Attorney. The Assistant General
Counsel for Enforcement and Litigation may, in his or her discretion,
affirm, expunge, or modify the written warning and will notify the
person of the decision. The decision constitutes the final agency
action.
(c) The addresses of the NOAA Regional Attorneys are:
Regional Counsel, Office of General Counsel, NOAA, 14 Elm Street,
Federal Building, Gloucester, MA 01930
Regional Counsel, Office of General Counsel, NOAA, 9450 Koger Blvd.,
Suite 102, St. Petersburg, FL 33702
Regional Counsel, Office of General Counsel, NOAA, Bin C15700, 7600
Sandpoint Way, NE., Seattle, WA 98115
Regional Counsel, Office of General Counsel, NOAA, 300 South Ferry
Street, Room 2013, Terminal Island, CA 90731
Regional Counsel, Office of General Counsel, NOAA, P.O. Box 1668,
Juneau, AK 99802
The address of the Assistant General Counsel for Enforcement and
Litigation is 1825 Connecticut Avenue NW., Suite 607, Washington, DC
20235.
Subpart F--Seizure and Forfeiture Procedures
Sec. 904.500 Purpose and scope.
(a) This subpart sets forth procedures governing the release or
forfeiture of seized property (except property seized
[[Page 57]]
and held solely as evidence) that is subject to forfeiture under the
various statutes administered by NOAA.
(b) Except as provided in this subpart, these regulations apply to
all seized property subject to forfeiture under the statutes listed in
Subpart A. 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.
Sec. 904.501 Notice of seizure.
Except where the owner, consignee, or other party that the facts of
record indicate has an interest in the seized property is personally
notified, or where seizure is made under a search warrant, NOAA will, as
soon as practicable following the seizure or other receipt of seized
property, mail notice of the seizure by registered or certified mail,
return receipt requested, to 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. The notice will describe the seized
property and state the time, place and reason for the seizure. The
notice will inform each interested party of his or her right to apply
for remission or mitigation of the forfeiture (including any agreement
that may be required under Sec. 904.506(b)(2)(vii)). The notice may be
combined with a notice of the sale of perishable fish issued under
Sec. 904.505.
Sec. 904.502 Bonded release.
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. The deposit will be held in a NOAA suspense account,
or deposited with the appropriate court, pending the outcome of
forfeiture proceedings. 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. The provisions of Sec. 904.506(f) apply to NOAA's
determination whether to release the property. The deposit or bond will
for all purposes be considered to represent the property seized and
subject to forfeiture.
Sec. 904.503 Appraisement.
NOAA will 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 will be used. If the seized property may not
lawfully be sold in the United States, its domestic value will be
determined by other reasonable means.
Sec. 904.504 Administrative forfeiture proceedings.
(a) When authorized. This section applies to property that is
determined under Sec. 904.503 to have a value of $100,000 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) 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. 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, United
States District Court, or the United States 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
personally, or by registered or certified mail, return receipt
requested, on each person whose whereabouts 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; and
[[Page 58]]
(iii) Describe the rights of an interested person to file a claim to
the property (including the right to file a motion to stay
administrative forfeiture proceedings and to petition to remit or
mitigate the forfeiture).
(3)(i) Except as provided in paragraph (b)(4) of this section, any
person claiming the seized property may file a claim with NOAA, at the
address indicated in the notice, within 20 days of the date the notice
was first published or posted. The claim must state the claimant's
interest in the property.
(ii) Except as provided in paragraph (b)(3)(v) or (b)(4) of this
section, a bond for costs in the penal sum of $5,000 or 10 per cent of
the appraised value of the property, whichever is lower, but not less
than $250, with sureties satisfactory to the Administrator, must be
filed with the claim for seized property. The bond may be posted on
Customs form 4615 or a similar form provided by NOAA. There must be
endorsed on the bond a list or schedule in substantially the following
form, signed by the claimant in the presence of witnesses, and attested
by the witnesses:
List or schedule containing a particular description of seized article,
claim for which is covered by the within bond; to wit:
_______________________________________________________________________
________________________________________________________________________
The foregoing list is correct.
_______________________________________________________________________
Claimant
Attest:
_______________________________________________________________________
________________________________________________________________________
A certified check may be substituted for a bond.
(iii) Filing a claim and posting a bond does not entitle the
claimant to possession of the property. However, it does stop
administrative forfeiture proceedings.
(iv) If the claim and bond are filed timely in accordance with this
section, NOAA will refer the matter to the Attorney General to institute
forfeiture proceedings in the appropriate United States District Court.
(v) Upon satisfactory proof of financial inability to post the bond,
NOAA may waive the bond requirement for any person claiming an interest
in the seized property.
(4) Instead of, or in addition to, filing a claim and bond under
paragraph (b)(3) of this section, any person claiming the seized
property may file with NOAA within 20 days after the date of first
publication or posting of the notice of proposed forfeiture, a motion to
stay administrative forfeiture proceedings. The motion must contain:
(i) The claimant's verified statement showing the claimant's
absolute title to the seized property, free of all liens or other third
party interests; and
(ii) The claimant's offer to pay in advance all reasonable costs
anticipated for storage and maintenance of the property. NOAA, in its
discretion, may grant the stay and impose any conditions deemed
reasonable, including but not limited to length of the stay, factors
that would automatically terminate the stay, and any requirement for a
bond to secure payment of storage or maintenance costs. If NOAA denies
or terminates the stay, the claimant, if he or she has not already done
so, has 20 days from receipt of the denial or termination order to file
a claim and bond in accordance with paragraph (b)(3) of this section.
Failure to file the claim and bond within that 20 days will result in
summary forfeiture under paragraph (b)(5) of this section.
(5) If a claim and bond are not filed within 20 days of notice in
accordance with this section, or if a motion for a stay under paragraph
(b)(4) is pending, NOAA will declare the property forfeited. The
declaration of forfeiture will be in writing and will be served on each
person whose whereabouts and prior interest in the seized property are
known or easily ascertainable. The forfeited property will be subject to
disposition as authorized by law and regulations of NOAA.
(6) If the appraised value of the property is more than $100,000, or
a timely and satisfactory claim and bond for property appraised at
$100,000 or less are submitted to NOAA, the matter will be referred to
the Attorney General to institute in rem proceedings in the appropriate
United States District Court.
[[Page 59]]
Sec. 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 give notice of the sale by registered or certified
mail, return receipt requested, to 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 safe 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. The proceeds will not be subject to release under
Sec. 904.502 or Sec. 904.506(f).
(e) Seizure and sale of fish is without prejudice to any other
remedy or sanction authorized by law.
Sec. 904.506 Remission and mitigation of forfeiture.
(a) Application of this section. (1) This section establishes
procedures for filing with NOAA a petition for relief from forfeitures
incurred, or alleged to have been incurred, under any statute
administered by NOAA that authorizes the remission or mitigation of
forfeitures.
(2) Although NOAA may properly consider a petition for relief from
forfeiture along with other consequences of a violation, the remission
or mitigation of a forfeiture is not dispositive of any criminal charge
filed, civil penalty assessed, or permit sanction proposed, unless NOAA
expressly so states. Remission or mitigation of a forfeiture 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) NOAA will not consider a petition for remission or mitigation
while a forfeiture proceeding is pending in federal court. Once such a
case is referred to the Attorney General for institution of judicial
proceedings, and until the proceedings are completed, any petition
received by NOAA will be forwarded to the Attorney General for
consideration.
(b) Petition for relief from forfeiture. (1) Any person having an
interest in property seized and subject to forfeiture may file a
petition for relief from forfeiture. Unless otherwise directed in a
notice concerning the seized property, the petition shall be addressed
to NOAA and filed with the Regional Attorney nearest to the place where
the property is held (addresses in Sec. 904.403(c)). NOAA will consider
a petition filed after a declaration or decree of forfeiture only if the
petitioner demonstrates that he or she did not previously know of the
seizure and was in such circumstances as prevented him or her from
knowing of it, except that NOAA will not consider a petition filed more
than three months from the date of such declaration or decree. (See
Sec. 904.507 regarding the right of certain claimants to petition for
restoration of proceeds from the sale of forfeited property.)
(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;
[[Page 60]]
(v) Any request for release under paragraph (f) of this section
pending final decision on the petition, together with any offer of
payment to protect the United States' interest that petitioner makes in
return for the release, and the facts and circumstances relied upon by
petitioner in the request;
(vi) The signature of the petitioner, his or her attorney, or other
authorized agent; and
(vii) An express agreement 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).
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) Decision on petition. (1) After investigation under paragraph
(c) of this section, NOAA will decide the matter and notify the
petitioner. NOAA may remit or mitigate the forfeiture, on such terms and
conditions as under the applicable statute and the circumstances are
deemed reasonable and just, upon a finding:
(i) That the forfeiture was incurred without willful negligence and
without any intention on the part of petitioner to violate the
applicable statute; or
(ii) That other circumstances exist that justify remission or
mitigation of the forfeiture.
(2) Unless NOAA determines no valid purpose would be served, NOAA
will condition a decision to remit or mitigate a forfeiture upon the
petitioner's submitting 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. 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 decision. A decision by NOAA to remit or
mitigate the forfeiture upon stated conditions, as upon payment of a
specified amount, will be effective for 60 days after the date of the
decision. If the petitioner does not comply with the conditions within
that period in the manner prescribed by the decision, or make
arrangements satisfactory to NOAA for later compliance, the remission or
mitigation will be void, and judicial or administrative forfeiture
proceedings will be instituted or resumed.
(f) Release of seized property pending decision. (1) Upon request in
the petition for relief from forfeiture, NOAA may in its discretion
order the release, pending final decision on the petition, of all or
part of the seized property upon payment by the petitioner of the full
value of the property to be released or such lesser amount as NOAA deems
sufficient to protect the interests served by the applicable statute.
The following, however, will not be released:
(i) Property in which NOAA is not satisfied that the petitioner has
a substantial interest;
(ii) Property whose entry into the commerce of the United States is
prohibited;
(iii) Live animals, except in the interest of the animals' welfare;
(iv) Proceeds from the sale of seized property sold under
Sec. 904.505 (see Sec. 904.507 regarding petitions for restoration of
proceeds from the sale of property declared forfeited); or
(v) 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.
(2) If NOAA grants the request, the amount paid by the petitioner
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 petitioner
constitutes a waiver by the petitioner of any claim arising from the
seizure and custody of the property.
[[Page 61]]
NOAA will maintain the money so deposited pending further order of NOAA,
order of a court, or disposition by applicable administrative
proceedings.
Sec. 904.507 Petition for restoration of proceeds.
(a) The general provisions of Sec. 904.506 on petitions for
remission or mitigation of forfeitures apply to petitions for
restoration of proceeds from the sale of forfeited property, except as
modified by this section.
(b) In addition to any evidence required under Sec. 904.506, the
petition for restoration of proceeds must be supported by satisfactory
proof that the petitioner did not know of the seizure prior to the
declaration or decree of forfeiture and was in such circumstances as
prevented him or her from knowing of it.
(c) If forfeited property that is the subject of a claim for
restoration of proceeds has been appropriated for official use,
retention by the government will be regarded as sale for the purposes of
this section.
(d) No petition for restoration of proceeds will be considered
unless it is submitted within three months of the declaration or decree
of forfeiture.
(e) 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 government for any costs that by law may be recovered or
to pay any reward that by law may be paid from such sums.
Sec. 904.508 Recovery of certain storage costs.
If any fish, wildlife, or evidentiary item 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 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 decision to the party who filed them. NOAA's
decision will constitute final agency action on the matter.
Sec. 904.509 Abandonment.
(a) The owner of a seized item may abandon it to NOAA by various
means, including, but not limited to, expressly waiving any claim to the
item, refusing or otherwise avoiding delivery of mail concerning the
seizure (as by giving a false name or address), or failing for more than
180 days to make or maintain a claim to the item.
(b) The owner of a seized item waives a claim to it by failing to
respond within 120 days of issuance of a Government notice concerning
the seizure, or by voluntarily relinquishing any interest in an item by
written agreement, or otherwise.
(c) An item will be declared finally abandoned, without recourse,
upon a finding of abandonment.
Sec. 904.510 Disposal of forfeited or abandoned items.
(a) Delivery to Administrator. Upon forfeiture of any fish,
wildlife, parts or products thereof, or other property to the United
States, or 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) Purposes of disposal. Disposal procedures may be used to
alleviate overcrowding of evidence storage facilities,
[[Page 62]]
and to avoid the accumulation of seized items where disposal is not
otherwise accomplished by court order, as well as to address the needs
of governmental agencies and other institutions and organizations for
such items for scientific, educational, and public display purposes. In
no case will items be used for personal purposes, either by loan
recipients or government personnel.
(c) Disposal of evidence. Items that are 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 items may be authorized for disposal
sooner.
(d) Loans--(1) To institutions. Items approved for disposal may be
loaned to institutions or organizations requesting such items for
scientific, educational, or public display purposes. Items will be
loaned only after execution of a loan agreement which provides, among
other things, that the loaned items will be used only for noncommercial
scientific, educational, or public display purposes, and that they will
remain the property of the United States government, which may demand
their return at any time. Parties requesting the loan of an item must
demonstrate the ability to provide adequate care and security for the
item. 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. Items generally will not be loaned to
individuals not affiliated with an institution or organization unless it
is clear that the items 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 items will be chosen
so as to assure a wide distribution of the items 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 item
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 items 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. Items will be transferred under a loan agreement
executed by the Administrator and the borrower. Any attempt on the part
of the borrower to retransfer an item, even to another institution for
related purposes, will violate and invalidate the loan agreement, and
entitle the United States to immediate repossession of the item, unless
the prior approval of the Administrator has been obtained under
Sec. 904.510(d)(5). Violation of the loan agreement may also subject the
violator to the penalties provided by the laws governing possession and
transfer of the item.
(5) Temporary reloans; documents to accompany items. 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 item whenever it is temporarily reloaned or
is shipped or transported across state or international boundaries.
(e) Destruction of items. This paragraph and other provisions
relating to the destruction of property apply to items:
(1) Which have not been handicrafted, or
(2) Which have been handicrafted and are of less than one hundred
dollars ($100) value, and
(3) For which no acceptable applications have been received, or for
which
[[Page 63]]
publication in the Federal Register of the availability of similar items
in the past has resulted in the receipt of no applications. Such items
may be destroyed if they have been in government ownership for more than
one year. Perishable items which are not fit for human consumption may
be destroyed sooner, if the authorization required by Sec. 904.510(c)
has been obtained. Destruction of items will be witnessed by two
persons, one of whom may be the disposing officer.
(f) Food items. Food items will, if possible, be disposed of by gift
to nonprofit groups providing public welfare food services.
(g) Record-keeping. A ``fish and wildlife disposal'' form will be
completed each time an item is disposed of pursuant to the policy and
procedure established herein, and will be retained in the case file for
the item. These forms will be available to the public.
PART 905--USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED BY VOLUNTARY FISHERY DATA COLLECTORS--Table of Contents
Sec.
905.1 Scope.
905.2 Definitions.
905.3 Access to information.
905.4 Use of information.
905.5 Exceptions.
Authority: 16 U.S.C. 1853(f).
Source: 60 FR 39251, Aug. 2, 1995, unless otherwise noted.
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 64]]
Sec. 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.
Sec. 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 908--MAINTAINING RECORDS AND SUBMITTING REPORTS ON WEATHER MODIFICATION ACTIVITIES--Table of Contents
Sec.
908.1 Definitions.
908.2 Persons subject to reporting.
908.3 Activities subject to reporting.
908.4 Initial report.
908.5 Interim reports.
908.6 Final report.
908.7 Supplemental reports.
908.8 Maintenance of records.
908.9 Retention of records.
908.10 Penalties.
908.11 Maintenance of records of related activities.
908.12 Public disclosure of information.
908.13 Address of letters.
908.14 Business to be transacted in writing.
908.15 Times for taking action; expiration on Saturday, Sunday, or
holiday.
908.16 Signature.
908.17 Suspension or waiver of rules.
908.18 Matters not specifically provided for in rules.
908.19 Publication of notice of proposed amendments.
908.20 Effective date.
908.21 Report form.
Authority: Pub. L. 92-305, 85 Stat. 735, December 18, 1971.
Source: 41 FR 23394, June 10, 1976, unless otherwise noted.
Sec. 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
[[Page 65]]
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]
Sec. 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.
Sec. 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 Sec. 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.
Sec. 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;
[[Page 66]]
(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.
Sec. 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).
[[Page 67]]
(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]
Sec. 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]
Sec. 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 Sec. 908.4, Sec. 908.5, or
Sec. 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.
Sec. 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
[[Page 68]]
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.
Sec. 908.9 Retention of records.
Records required under Sec. 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]
Sec. 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.
Sec. 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]
Sec. 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:
[[Page 69]]
(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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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.
[[Page 70]]
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 908.20 Effective date.
These rules are effective on June 10, 1976.
Sec. 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--POLICIES AND PROCEDURES REGARDING DISCLOSURE OF INFORMATION AND NOAA EMPLOYEE TESTIMONY IN LITIGATION NOT INVOLVING THE UNITED STATES--Table of Contents
Sec.
909.1 Purpose and policy.
909.2 Disclosure and certification of information and records.
909.3 Response to subpena duces tecum.
909.4 Testimony by NOAA employees in litigation not involving the
United States.
909.5 Conditions for authorizing testimony.
Authority: 15 U.S.C. 315, 1512, 1518; 33 U.S.C. 884; 43 U.S.C.
1458, 1460, 1461.
Source: 43 FR 36240, Aug. 16, 1978, unless otherwise noted.
Sec. 909.1 Purpose and policy.
(a) The regulations in this part describe NOAA policies and
procedures for the disclosure of information, records, and data to
parties and testimony by NOAA employees in litigation not involving the
United States.
(b) It is the policy of NOAA to provide information, data, and
records to non-Federal litigants to the same extent that they are
available to the general public. The availability of NOAA employees to
testify in non-Federal litigation is governed by the NOAA policy of
maintaining strict impartiality among non-Federal litigants. To this end
NOAA witnesses generally may provide only factual testimony except as
provided for in Sec. 909.5(c) and shall not appear as expert witnesses
in litigation not involving the United States.
Sec. 909.2 Disclosure and certification of information and records.
(a) Requests for identifiable information, records, and data in
NOAA's possession will be complied with consistent with the NOAA freedom
of information regulation (15 CFR part 903), the Department of Commerce
privacy regulations (15 CFR part 4b), and 15 U.S.C. 1525. Requests for
records, information, and data should be addressed as specified in 15
CFR part 903.
(b) Certified copies of NOAA records will be provided upon request.
Requests
[[Page 71]]
for certified copies of these types of information should be referred to
the following offices: Weather and Climatological Records; Director,
National Climatic Data Center, National Environmental Satellite, Data,
and Information Service, NOAA, Federal Building, Asheville, NC 28801.
Weather Forecasts and Warnings; Aviation Services Branch (W/OM13),
National Weather Service, NOAA, Silver Spring, MD 20910. Aeronautical
Charts; Aeronautical Charting Division (N/CG3), National Ocean Service,
NOAA, Rockville, MD 20852. Nautical Charts; Chart Information Section
(N/GC222), National Ocean Service, NOAA, Rockville, MD 20852. Other;
Office of the General Counsel, National Oceanic and Atmospheric
Administration, Washington, DC 20230.
(c) Requests for the appearance of NOAA employees to give testimony
in litigation not involving the United States should be addressed to the
Office of General Counsel at the address shown in paragraph (b) of this
section.
[43 FR 36240, Aug. 16, 1978, as amended at 48 FR 17064, Apr. 21, 1983]
Sec. 909.3 Response to subpena duces tecum.
(a) Any officer or employee served with a subpena duces tecum or the
equivalent for the production of any NOAA record shall promptly notify
the Office of General Counsel. The subpena duces tecum shall be treated
as a request for records, information, or data under 15 CFR part 903.
(b) The officer or employee served shall decline to produce the
record that is the subject of a subpena duces tecum until its release
has been authorized pursuant to 15 CFR part 903. If, as a result of
having complied with the preceding sentence of this subsection, the
officer or employee is ordered to show cause why he or she should not be
held in contempt of the court issuing the subpena, the General Counsel
shall request the Department of Justice to represent the officer or
employee.
Sec. 909.4 Testimony by NOAA employees in litigation not involving the United States.
(a) No NOAA officer or employee shall give testimony in any tribunal
concerning any function of NOAA, or any data, information, or record
created or acquired by NOAA as a result of the discharge of its official
duties, without the prior authorization of the general counsel or the
general counsel's designee.
(b) Upon receiving a subpena which orders the giving of testimony, a
NOAA officer or employee shall immediately notify the Office of General
Counsel. The officer or employee shall decline to testify unless
otherwise authorized by the general counsel or designee. If, as a result
of having complied with the provisions of this section, the officer or
employee is ordered to show cause why he or she should not be held in
contempt of the court issuing the subpena, the general counsel shall
request the Department of Justice to represent the officer or employee.
Sec. 909.5 Conditions for authorizing testimony.
(a) Any non-Federal party desiring testimony from a NOAA officer or
employee shall make a written request therefor addressed to the Office
of General Counsel. The request shall include a general statement of the
testimony to be elicited, the requester's interest in that testimony, a
brief description of the intended use of the testimony and a statement
as to why the testimony is not available elsewhere.
(b) The general counsel or designee shall authorize a NOAA officer
or employee to provide factual testimony when the requesting party has
sufficiently shown: (1) That the evidence to be adduced is not
reasonably available from any other source; (2) that no NOAA record or
data could be introduced in evidence in substitution for the testimony;
and (3) that the other requirements of this part have been met.
(c) Where less than all of the conditions of paragraph (b) of this
section are met, the general counsel or designee may authorize NOAA
employees and officers to provide factual or expert testimony on any
matters where NOAA has a significant interest in the litigation and the
outcome may affect the implementation present or future policies, or
where circumstances or
[[Page 72]]
conditions make it necessary to provide the information in the public
interest.
(d) If the general counsel or designee authorizes the testimony of a
NOAA officer or employee, then the Office of General Counsel may arrange
for the taking of the testimony by methods that are less disruptive of
the official activities of the officer or employee than providing
testimony in court. Testimony may, for example, be provided by
affidavits, answers to interrogatories, written depositions, or
depositions transcribed, recorded, or preserved by any other method
allowable by law. Costs of providing testimony, including transcripts,
will be borne by the party requesting the testimony.
PART 911--THE UNITED STATES GEOSTATIONARY OPERATIONAL ENVIRONMENTAL SATELLITE (GOES) DATA COLLECTION SYSTEM (DCS)--Table of Contents
Sec.
911.1 General information.
911.2 Use of the GOES DCS.
911.3 Treatment of data.
911.4 Continuation of GOES-DCS.
911.5 GOES-DCS Use Agreements.
Authority: 15 U.S.C. 313; 49 U.S.C. 1463; 15 U.S.C. 1525; 7 U.S.C.
450b; 5 U.S.C. 552.
Source: 46 FR 48635, Oct. 2, 1981, unless otherwise noted.
Sec. 911.1 General information.
(a) The GOES Data Collection System (DCS) provides an effective
method for obtaining environmental data from remote locations where
conventional communications are either absent or inadequate. The use of
the DCS is limited to the collection of environmental data in accordance
with applicable International Telecommunication Union (ITU) regulations
concerning use of the allocated frequency bands.
(b)(1) The DCS was established in 1974 to obtain from remote
locations data required for the effective accomplishment of programs of
the National Oceanic and Atmospheric Administration. The DCS capacity
can more than provide for all of NOAA's present and near future domestic
and international requirements. This makes it possible to offer to
Federal and State agencies or local governments of the United States,
and to those private users and foreign government agencies whose use of
the system would support a program of a United States agency, the
opportunity to make use of the DCS. Policy guidelines are set forth
below.
(2) For purposes of this part, user refers to a private or
governmental organization, whether for-profit or not for-profit, that
owns or operates environmental data collection platforms for the purpose
of collection and transmission of environmental data through the GOES
DCS and for which a Federal agency or State or local government has a
requirement for or interest in obtaining the data.
(3) For purposes of this part, Assistant Administrator means the
Assistant Administrator for Environmental Satellite, Data, and
Information Services or his/her designee.
[46 FR 48635, Oct. 2, 1981, as amended at 51 FR 3466, Jan. 28, 1986]
Sec. 911.2 Use of the GOES DCS.
(a) Use of the GOES DCS can be authorized only for the purpose of
collecting environmental data. Environmental data as used here means
observations and measurements of the physical, chemical or biological
properties of the ocean, rivers, lakes, solid earth, and atmosphere
(including space).
(b)(1) Except as provided in paragraph (b)(2) of this section, the
GOES DCS is not to be used for data collection where adequate private
common carrier communications exist to provide the service. (Adequate is
defined in terms of capacity, speed and reliability with respect to the
particular use envisioned.) A user must document, with a request for use
of the GOES DCS, why private common carrier communications are not
adequate.
(2) NOAA may authorize the use of the GOES DCS for environmental
data collection critical to a federal program where adequate common
carrier communications exist when use of the common carrier would
substantially increase the cost to the federal program of collecting
these data.
(c) A user must identify the Federal agency or State or local
government
[[Page 73]]
which will benefit from the proposed collection of data. NOAA will
confirm with the identified sponsor that these data are required by it
and that the sponsor is willing to share with the user any frequency
channel resource allocated to it.
(d) User agencies and organizations will be admitted to system use
with priority status as follows:
(1) NOAA users or users whose data are required for implementation
of NOAA programs.
(2) Users whose data are desired to support NOAA programs.
(3) Users whose data and/or use of the GOES DCS will further a
program of an agency or department of the United States Government.
(4) Users whose data are required by a State or local government of
the United States. No other users will be admitted to system use.
(e) All users of the GOES DCS must use a data collection platform
radio set whose technical characteristics conform to specifications
established by NOAA. The message format must be as specified by NOAA.
(f) All users are responsible for all costs associated with the
procurement and operation of the platforms, any confidential treatment
of data under Sec. 911.3, and for the acquisition of the data from those
platforms either directly from the satellite or from the NOAA GOES Data
Collection Center at the World Weather Building in Suitland, Maryland.
(g) Design characteristics of the environmental data collection
system on the spacecraft require that users conform to technical
standards established by NOAA. See Sec. 911.5 of this part.
(h) NOAA will make every effort to maintain the GOES DCS in full
operation at all times subject to the availability of appropriations.
NOAA will bear no responsibility for any losses as a result of the
nonavailability of the DCS.
(Approved by the Office of Management and Budget under control number
0648-0157)
[46 FR 48635, Oct. 2, 1981, as amended at 51 FR 3466, Jan. 28, 1986]
Sec. 911.3 Treatment of data.
(a) All users of the GOES DCS must agree to permit NOAA and other
agencies of the United States Government the free and open use of all
data collected from their platforms, except as otherwise provided for in
paragraphs (b) through (f) of this section, and to provide NOAA with the
necessary information on data formats to facilitate such use.
(b) NOAA will consider a request from a user, who has otherwise met
the criteria of Sec. 911.2, for proprietary treatment by NOAA of all or
a portion of the data collected from the platforms owned by the user.
Each request for proprietary treatment must:
(1) Specifically identify the exact portion(s) of the data claimed
to be confidential;
(2) State whether the data claimed to be confidential is commonly
known within the user's industry or activity or is readily ascertainable
by outside persons with a minimum of time and effort;
(3) State how release of the data would be likely to cause
substantial harm to the user's competitive position;
(4) Identify the Federal agency or governmental program which would
benefit by gaining access to the data to be collected;
(5) State whether the submitter is authorized to make claims of
confidentiality on behalf of the person or organization concerned; and
(6) State when the confidential data may be made public.
(c)(1) NOAA may treat environmental data obtained by the GOES DCS as
proprietary if the Assistant Administrator with the advice of the
General Counsel and other interested Federal officers, finds that:
(i) The data are trade secrets or commercial information obtained
from a user and privileged or confidential; and
(ii) Use of the GOES DCS for collection and proprietary treatment of
such data is in the public interest. Proprietary treatment of data which
are required to protect life or property will be deemed not to be in the
public interest.
(2) All data for which the Assistant Administrator grants
proprietary
[[Page 74]]
treatment shall not be publicly disclosed in individually identifiable
form without the user's authorization, except in accordance with the
procedures set forth in paragraph (f) of this section or pursuant to the
order of a court of competent jurisdiction. Such data may be combined
and publicly disclosed in such formats as general statistical studies,
environmental warnings and forecasts, or aggregated reports or summaries
in which the identity of the user(s) furnishing such information or the
confidential portions of the data shall not be disclosed.
(d)(1) The Assistant Administrator shall notify the user in writing
whether all or a portion of the data will be treated as proprietary and
shall state the reasons for the decision. The user may appeal the
initial decision of the Assistant Administrator by filing a notice of
appeal, including supporting information, with the Administrator of
NOAA, Department of Commerce, Washington, DC 20230, within 30 days
(excluding Saturdays, Sundays and legal holidays) of receipt of notice.
(2) The Administrator may decide the appeal on the basis of the
information already submitted or may request additional information from
the user. The decision of the Administrator shall state the reasons for
the decision, and shall become effective upon issuance.
(e) The Assistant Administrator after consultation with other
interested NOAA officers, shall institute a control system to protect
the confidentiality of data that have been granted proprietary treatment
under this section and are in the possession of NOAA. The control system
will provide for safeguarding the data and ensuring that only authorized
officers and employees have access to the data for official purposes.
(f) Data that have been accorded proprietary treatment for which
NOAA or another Federal agency has no present requirement may be
returned to the possession of the user and kept by the user until such
time as NOAA or another Federal agency has a present requirement for the
data at which time the data shall be made available to NOAA or to
another Federal agency in accordance with the terms of a mutually
acceptable agreement.
(g)(1) All requests from any person(s) for data granted proprietary
treatment under this section shall be processed consistent with NOAA
Freedom of Information Act (FOIA) Regulations (15 CFR part 903), NOAA
Directives Manual 21-25, Department of Commerce Administrative Orders
205-12 and 205-14 and 15 CFR part 4.
(2) The user shall be notified within five days (excluding
Saturdays, Sundays, and legal public holidays) of receipt by NOAA of an
FOIA request for disclosure of data which otherwise have been granted
proprietary treatment under this section. The user may submit written
objections to release of the data, together with any supporting
information, to the Assistant Administrator within five days (excluding
Saturdays, Sundays and legal public holidays) of receipt of notice. The
failure to object within the prescribed time limit will be considered an
acknowledgment that the user does not wish to claim exempt status under
the FOIA.
(3) If data which have been granted proprietary treatment under this
section are found to be disclosable, in whole or in part, under the
FOIA, the user submitting the data will be notified in writing and given
five days (excluding Saturdays, Sundays, and legal holidays) from
receipt of the notice to seek judicial relief.
(Approved by the Office of Management and Budget under control number
0648-0157)
[46 FR 48635, Oct. 2, 1981, as amended at 51 FR 3466, Jan. 28, 1986]
Sec. 911.4 Continuation of GOES-DCS.
(a) NOAA expects to continue to operate a geostationary satellite
data collection system while it operates GOES satellites, subject to the
availability of future appropriations.
(b) As use of the system in support of NOAA programs increases, it
eventually may be necessary to restrict the use by other users. If a use
restriction should become necessary, or in the event that NOAA
discontinues operation of GOES, NOAA will provide, to the maximum extent
possible, advance notice to the affected users.
[[Page 75]]
Sec. 911.5 GOES-DCS Use Agreements.
(a) Each user must have an agreement with NOAA to use the GOES DCS.
(b) These agreements will cover, but will not be limited to: (1) The
period of time the agreement is valid and procedures for cancelling it,
(2) conformance with ITU agreements and regulations, (3) required
equipment standards, (4) standards of operation, (5) priorities for use,
(6) reporting time and frequencies, (7) data formats, (8) data delivery
systems and schedules, (9) user-borne costs, and (10) proprietary
treatment of data under Sec. 911.3.
(c) The representative of NOAA for evaluating use requests and
concluding use agreements will be the Director of Data Services for the
National Earth Satellite Service, except that in the case of agreements
which involve foreign government agencies or requsts for proprietary
treatment of data, the concurrence of the Assistant Administrator will
be obtained.
[46 FR 48635, Oct. 2, 1981, as amended at 51 FR 3466, Jan. 28, 1986]
PART 917--NATIONAL SEA GRANT PROGRAM FUNDING REGULATIONS--Table of Contents
Subpart A--General
Sec.
917.1 Basic provisions.
917.2 Definitions.
Subpart B--Sea Grant Matched Funding Program
917.10 General.
917.11 Guidelines for Sea Grant Fellowships.
Subpart C--National Projects
917.20 General.
917.21 National needs and problems.
917.22 National Projects funding.
Subpart D--International Cooperation Assistance
917.30 General.
Subpart E--General Considerations Pertaining to Sea Grant Funding
917.40 General.
917.41 Application guidance for Sea Grant funding.
917.42 Categories of support available for the conducting of Sea Grant
activities.
917.43 Terms and conditions of Sea Grant funding.
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
Sec. 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.
[[Page 76]]
(2) Promote the international exchange of information and data with
respect to the assessment, development, utilization, and conservation of
such resources.
Sec. 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 Sec. 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
[[Page 77]]
for designation under section 502(b) of the Trade Act of 1974, (19
U.S.C. 2462(b)) as a benificiary developing country under Title of that
Act.
Subpart B--Sea Grant Matched Funding Program
Sec. 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.
Sec. 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 Sec. 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
Sec. 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
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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.
Sec. 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.
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(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]
Sec. 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
Sec. 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
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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
Sec. 917.40 General.
This subpart sets forth general considerations pertaining to Sea
Grant funding.
Sec. 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.''
Sec. 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
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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.
Sec. 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.
[[Page 82]]
(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 evaulation, 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--Table of Contents
Sec.
918.1 Introduction.
918.2 Definitions.
918.3 Eligibility, qualifications, and responsibility of a Sea Grant
College.
918.4 Duration of Sea Grant College designation.
918.5 Eligibility, qualifications, and responsibilities--Sea Grant
Regional Consortia.
918.6 Duration of Sea Grant Regional Consortium designation.
918.7 Application for designation.
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.
Sec. 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.
Sec. 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
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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.
Sec. 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
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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.
Sec. 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.
Sec. 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
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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.
[[Page 86]]
(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.
Sec. 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.
Sec. 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.
[[Page 87]]
SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
PART 921--NATIONAL ESTUARINE RESEARCH RESERVE SYSTEM REGULATIONS--Table of Contents
Subpart A--General
Sec.
921.1 Mission, goals and general provisions.
921.2 Definitions.
921.3 National Estuarine Research Reserve System Biogeographic
Classification Scheme and Estuarine Typologies.
921.4 Relationship to other provisions of the Coastal Zone Management
Act and the Marine Protection, Research and Sanctuaries Act.
Subpart B--Site Selection, Post Site Selection and Management Plan
Development
921.10 General.
921.11 Site selection and feasibility.
921.12 Post site selection.
921.13 Management plan and environmental impact statement development.
Subpart C--Acquisition, Development, and Preparation of the Final
Management Plan
921.20 General.
921.21 Initial acquisition and development awards.
Subpart D--Reserve Designation and Subsequent Operation
921.30 Designation of National Estuarine Research Reserves.
921.31 Supplemental acquisition and development awards.
921.32 Operation and management: Implementation of the management plan.
921.33 Boundary changes, amendments to the management plan, and
addition of multiple-site components.
Subpart E--Ongoing Oversight, Performance Evaluation and Withdrawal of
Designation
921.40 Ongoing oversight and evaluations of designated National
Estuarine Research Reserves.
921.41 Withdrawal of designation.
Subpart F--Special Research Projects
921.50 General.
921.51 Estuarine research guidelines.
921.52 Promotion and coordination of estuarine research.
Subpart G--Special Monitoring Projects
921.60 General.
Subpart H--Special Interpretation and Education Projects
921.70 General.
Subpart I--General Financial Assistance Provisions
921.80 Application information.
921.81 Allowable costs.
921.82 Amendments to financial assistance awards.
Appendix I to Part 921--Biogeographic Classification Scheme
Appendix II to Part 921--Typology of National Estuarine Research
Reserves
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
Sec. 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;
[[Page 88]]
(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 Sec. 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 Sec. 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
[[Page 89]]
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 the above provisions for
financial assistance, financial assistance provided from amounts
recovered as a result of damage to natural resources located in the
coastal zone may be used to pay 100 percent of the costs of activities
carried out with the assistance. 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 Sec. 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]
Sec. 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
[[Page 90]]
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.
Sec. 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.
Sec. 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 Sec. 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.
[[Page 91]]
(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
Sec. 921.10 General.
(a) A coastal state may apply for Federal financial assistance for
the purpose of site selection, preparation of documents specified in
Sec. 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 Sec. 921.11 and Sec. 921.12 is subject to the total $5 million for
which each Reserve is eligible for land acquisition. 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 Sec. 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 Sec. 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
Sec. 921.51. In addition, Federal funds for the acquisition of a
multiple-site Reserve remain limited to $5,000,000 (see Sec. 921.20).
The funding for operation of a multiple-site Reserve is limited to the
maximum allowed for any one Reserve per year (see Sec. 921.32(c)) and
preacquisition funds are limited to $100,000 per Reserve.
Sec. 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 (Sec. 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 Sec. 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.
[[Page 92]]
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 Sec. 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 Sec. 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
Sec. 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.
[[Page 93]]
(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 (Sec. 921.11(c)) and the following information:
(1) An analysis of the proposed site(s) based on the biogeographical
scheme/typology discussed in Sec. 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 (Sec. 921.11a)) to determine the feasibility of
reactivation. This feasibility study must comply with the requirements
set forth in Sec. 921.11 (c) through (e).
Sec. 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 Sec. 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
Sec. 921.12(a) after the proposed site is approved by NOAA under the
terms of Sec. 921.11.
Sec. 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 Sec. 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,
[[Page 94]]
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
[[Page 95]]
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
Secs. 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
Sec. 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
Sec. 921.30. Minor construction
[[Page 96]]
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 Sec. 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 the costs.
[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997]
Sec. 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 Sec. 921.13(a)(7); Sec. 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 Sec. 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):
[[Page 97]]
(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
Sec. 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
Sec. 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
Sec. 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;
[[Page 98]]
(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 Sec. 307(c)(1) of the Act, 16
U.S.C. 1456, and 15 CFR part 930, subpart C. See Sec. 921.4(b). The
results of this consistency determination will be published in the
Federal Register when the notice of designation is published. See
Sec. 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 Sec. 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 Secs. 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.
Sec. 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 interest therein, for any one Reserve may not exceed an
amount equal to 50 percent of the cost 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 the costs. 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 Secs. 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]
[[Page 99]]
Sec. 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 Sec. 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 Sec. 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]
Sec. 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 Secs. 921.4(b) and
921.13(a)(11).
(b) As discussed in Sec. 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 Sec. 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
[[Page 100]]
multiple-site Reserve, then the state shall develop a revised management
plan which, concerning the additional component, incorporates each of
the elements described in Sec. 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
Sec. 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
[[Page 101]]
Reserve, or failure to initiate timely updates of the MOU when
necessary.
Sec. 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
Sec. 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 Sec. 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 Sec. 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]
Sec. 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 Sec. 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.
Sec. 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
Sec. 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
[[Page 102]]
Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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
Sec. 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
[[Page 103]]
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 Sec. 921.31 (acquisition and
development), and Sec. 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.
Sec. 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
[[Page 104]]
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 Sec. 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.
Sec. 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.)
[[Page 105]]
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.
[GRAPHIC] [TIFF OMITTED] TC12SE91.000
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,
[[Page 106]]
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,
[[Page 107]]
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:
[[Page 108]]
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.
[[Page 109]]
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
[[Page 110]]
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--Table of Contents
Subpart A--General
Sec.
922.1 Applicability of regulations.
922.2 Mission, goals, and special policies.
922.3 Definitions.
922.4 Effect of National Marine Sanctuary designation.
Subpart B--Site Evaluation List (SEL)
922.10 General.
Subpart C--Designation of National Marine Sanctuaries
922.20 Standards and procedures for designation.
922.21 Selection of active candidates.
922.22 Development of designation materials.
922.23 Coordination with States and other Federal agencies.
922.24 Congressional documents.
922.25 Designation determination and findings.
Subpart D--Management Plan Development and Implementation
922.30 General.
922.31 Promotion and coordination of Sanctuary use.
[[Page 111]]
Subpart E--Regulations of General Applicability
922.40 Purpose.
922.41 Boundaries.
922.42 Allowed activities.
922.43 Prohibited or otherwise regulated activities.
922.44 Emergency regulations.
922.45 Penalties.
922.46 Response costs and damages.
922.47 Pre-existing authorizations or rights and certifications of pre-
existing authorizations or rights.
922.48 National Marine Sanctuary permits--application procedures and
issuance criteria.
922.49 Notification and review of applications for leases, licenses,
permits, approvals, or other authorizations to conduct a
prohibited activity.
922.50 Appeals of administrative action.
Subpart F--Monitor National Marine Sanctuary
922.60 Boundary.
922.61 Prohibited or otherwise regulated activities.
922.62 Permit procedures and criteria.
Subpart G--Channel Islands National Marine Sanctuary
922.70 Boundary.
922.71 Prohibited or otherwise regulated activities.
922.72 Permit procedures and criteria.
Appendix A to Subpart G of Part 922--Channel Islands National Marine
Sanctuary Boundary Coordinates
Subpart H--Gulf of the Farallones National Marine Sanctuary
922.80 Boundary.
922.81 Definitions.
922.82 Prohibited or otherwise regulated activities.
922.83 Permit procedures and criteria.
922.84 Certification of other permits.
Appendix A to Subpart H of Part 922--Gulf of the Farallones National
Marine Sanctuary Boundary Coordinates
Subpart I--Gray's Reef National Marine Sanctuary
922.90 Boundary.
922.91 Prohibited or otherwise regulated activities.
922.92 Permit procedures and criteria.
Subpart J--Fagatele Bay National Marine Sanctuary
922.100 Scope of regulations.
922.101 Boundary.
922.102 Prohibited or otherwise regulated activities.
922.103 Management and enforcement.
922.104 Permit procedures and criteria.
Subpart K--Cordell Bank National Marine Sanctuary
922.110 Boundary.
922.111 Prohibited or otherwise regulated activities.
922.112 Permit procedures and criteria.
Appendix A to Subpart K of Part 922--Cordell Bank National Marine
Sanctuary Boundary Coordinates
Subpart L--Flower Garden Banks National Marine Sanctuary
922.120 Boundary.
922.121 Definitions.
922.122 Prohibited or otherwise regulated activities.
922.123 Permit procedures and criteria.
Appendix A to Subpart L of Part 922--Flower Garden Banks National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart L of Part 922--Coordinates for the Department of
the Interior Topographic Lease Stipulations for OCS Lease Sale
112
Subpart M--Monterey Bay National Marine Sanctuary
922.130 Boundary.
922.131 Definitions.
922.132 Prohibited or otherwise regulated activities.
922.133 Permit procedures and criteria.
922.134 Notification and review.
Appendix A to Subpart M of Part 922--Monterey Bay National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart M of Part 922--Dredged Material Disposal Sites
Adjacent to the Monterey Bay National Marine Sanctuary
Appendix C to Subpart M of Part 922--Zones Within the Sanctuary Where
Overflights Below 1000 Feet Are Prohibited
Appendix D to Subpart M of Part 922--Zones and Access Routes Within the
Sanctuary Where the Operation of Motorized Personal Watercraft
Is Allowed
Subpart N--Stellwagen Bank National Marine Sanctuary
922.140 Boundary.
922.141 Definitions.
922.142 Prohibited or otherwise regulated activities.
922.143 Permit procedures and criteria.
[[Page 112]]
Appendix A to Subpart N of Part 922--Stellwagen Bank National Marine
Sanctuary Boundary Coordinates
Subpart O--Olympic Coast National Marine Sanctuary
922.150 Boundary.
922.151 Definitions.
922.152 Prohibited or otherwise regulated activities.
922.153 Permit procedures and criteria.
922.154 Consultation with the State of Washington, affected Indian
tribes, and adjacent county governments.
Appendix A to Subpart O of Part 922--Olympic Coast National Marine
Sanctuary Boundary Coordinates
Subpart P--Florida Keys National Marine Sanctuary
922.160 Purpose.
922.161 Boundary.
922.162 Definitions.
922.163 Prohibited activities--Sanctuary-wide.
922.164 Additional activity regulations by Sanctuary area.
922.165 Emergency regulations.
922.166 Permits--application procedures and issuance criteria.
922.167 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a
prohibited activity.
Appendix I to Subpart P of Part 922--Florida Keys National Marine
Sanctuary Boundary Coordinates
Appendix II to Subpart P of Part 922--Existing Management Areas Boundary
Coordinates
Appendix III to Subpart P of Part 922--Wildlife Management Areas Access
Restrictions
Appendix IV to Subpart P of Part 922--Ecological Reserves Boundary
Coordinates
Appendix V to Subpart P of Part 922--Sanctuary Preservation Areas
Boundary Coordinates
Appendix VI to Subpart P of Part 922--Special-use Areas Boundary
Coordinates and Use Designations
Appendix VII to Subpart P of Part 922--Areas To Be Avoided Boundary
Coordinates
Appendix VIII to Subpart P of Part 922--Marine Life Rule As Excerpted
From Chapter 46-42 of the Florida Administrative Code
Subpart Q--Hawaiian Islands Humpback Whale National Marine Sanctuary
922.180 Purpose.
922.181 Boundary.
922.181 Definitions.
922.183 Allowed activities.
922.184 Prohibited activities.
922.185 Emergency regulations.
922.186 Penalties; appeals.
922.187 Interagency cooperation.
Appendix A to Subpart Q--Hawaiian Islands Humpback Whale National Marine
Sanctuary Boundary Coordinates
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; 62 FR 67724, Dec. 30, 1997.
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D and E apply
to all eleven National Marine Sanctuaries for which site-specific
regulations appear in subparts F through P, respectively. Subparts B and
C apply to the site evaluation list and to the designation of future
Sanctuaries.
[62 FR 4607, Jan. 30, 1997]
Effective Date Note: At 62 FR 14815, Mar. 28, 1997, Sec. 922.1 was
revised. A document announcing the effective date of this amendment will
be published in the Federal Register. For the convenience of the user,
the revised text is set forth as follows:
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in subparts A, D and E apply
to all twelve National Marine Sanctuaries for which site-specific
regulations appear in subparts F through Q, respectively. Subparts B and
C apply to the site evaluation list and to the designation of future
Sanctuaries.
Sec. 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,
[[Page 113]]
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.
Sec. 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.
Active Candidate means a site selected by the Secretary from the
Site Evaluation List for further consideration for
[[Page 114]]
possible designation as a National Marine Sanctuary.
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.
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,
[[Page 115]]
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.
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.
Site Evaluation List (SEL) means a list of selected natural and
historical resource sites selected by the Secretary as qualifying for
further evaluation for possible designation as National Marine
Sanctuaries.
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]
Sec. 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.
[[Page 116]]
Subpart B--Site Evaluation List (SEL)
Sec. 922.10 General.
(a) The Site Evaluation List (SEL) was established as a
comprehensive list of marine sites with high natural resource values and
with historical qualities of special national significance that are
highly qualified for further evaluation for possible designation as
National Marine Sanctuaries.
(b) The SEL is currently inactive. Criteria for inclusion of marine
sites on a revised SEL will be issued, with public notice and
opportunity to comment, when the Director determines that the SEL should
be reactivated.
(c) Only sites on the SEL may be considered for subsequent review as
active candidates for designation.
(d) Placement of a site on the SEL, or selection of a site from the
SEL as an active candidate for designation as provided for in
Sec. 922.21, by itself shall not subject the site to any regulatory
control under the Act. Such controls may only be imposed after
designation.