[Title 15 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2015 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 15
Commerce and Foreign Trade
________________________
Part 800 to End
Revised as of January 1, 2015
Containing a codification of documents of general
applicability and future effect
As of January 1, 2015
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. vi
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 13
Chapter XI--National Technical Information Service,
Department of Commerce 439
Chapter XIII--East-West Foreign Trade Board 449
Chapter XIV--Minority Business Development Agency 453
SUBTITLE C--Regulations Relating to Foreign Trade
Agreements
Chapter XX--Office of the United States Trade
Representative 461
SUBTITLE D--Regulations Relating to Telecommunications and
Information
Chapter XXIII--National Telecommunications and
Information Administration, Department of Commerce 515
Finding Aids:
Table of CFR Titles and Chapters........................ 535
Alphabetical List of Agencies Appearing in the CFR...... 555
[[Page iv]]
List of CFR Sections Affected........................... 565
[[Page v]]
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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.
----------------------------
[[Page vi]]
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
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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
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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
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To determine whether a Code volume has been amended since its
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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.
[[Page vii]]
Many agencies have begun publishing numerous OMB control numbers as
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Provisions of the Code that are no longer in force and effect as of
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page viii]]
An index to the text of ``Title 3--The President'' is carried within
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Amy P. Bunk,
Acting Director,
Office of the Federal Register.
January 1, 2015.
[[Page ix]]
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,
Subtitle B, 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
Industry and Security, 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, 2015.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 15--COMMERCE AND FOREIGN TRADE
(This book contains part 800-end)
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SUBTITLE B--Regulations Relating to Commerce and Foreign Trade
(Continued)
Part
chapter viii--Bureau of Economic Analysis, Department of
Commerce.................................................. 801
chapter ix--National Oceanic and Atmospheric Administration,
Department of Commerce.................................... 902
chapter xi--National Technical Information Service,
Department of Commerce.................................... 1180
chapter xiii--East-West Foreign Trade Board................. 1300
chapter xiv--Minority Business Development Agency........... 1400
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
[[Page 3]]
Subtitle B--Regulations Relating to Commerce and Foreign Trade
(Continued)
[[Page 5]]
CHAPTER VIII--BUREAU OF ECONOMIC ANALYSIS, DEPARTMENT OF COMMERCE
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Part Page
800 [Reserved]
801 Survey of international trade in services
between U.S. and foreign persons and
surveys of direct investment............ 7
806-899 [Reserved]
[[Page 7]]
PART 800 [RESERVED]
PART 801_SURVEY OF INTERNATIONAL TRADE IN SERVICES BETWEEN U.S.
AND FOREIGN PERSONS AND SURVEYS OF DIRECT INVESTMENT--Table of Contents
Sec.
801.1 Purpose.
801.2 Definitions.
801.3 Reporting requirements.
801.4 Recordkeeping requirements.
801.5 Confidentiality.
801.6 Penalties specified by law.
801.7 Rules and regulations for the BE-13, Survey of New Foreign Direct
Investment in the United States.
801.8 Requirements for the BE-10, Benchmark Survey of U.S. Direct
Investment Abroad--2014.
Authority: 5 U.S.C. 301; 15 U.S.C. 4908; 22 U.S.C. 3101-3108; E.O.
11961 (3 CFR, 1977 Comp., p. 86), as amended by E.O. 12318 (3 CFR, 1981
Comp. p. 173); and E.O. 12518 (3 CFR, 1985 Comp. p. 348).
Source: 77 FR 24374, Apr. 24, 2012, unless otherwise noted.
Sec. 801.1 Purpose.
The purpose of this part is to provide general information on
international trade in services and direct investment data collection
programs and analyses under the International Investment and Trade in
Services Survey Act (22 U.S.C. 3101 to 3108, as amended) (the Act). The
purpose of the Act is to provide for the collection of comprehensive and
reliable information pertaining to international investment, including
international trade in services and direct investment, and to do so with
a minimum of burden on respondents and with no unnecessary duplication
of effort.
Sec. 801.2 Definitions.
For purposes of the Act and for reporting requirements under this
part:
(a) United States, when used in a geographic sense, means the
several States, the District of Columbia, the Commonwealth of Puerto
Rico, and all territories and possessions of the United States.
(b) Foreign, when used in a geographic sense, means that which is
situated outside the United States or which belongs to or is
characteristic of a country other than the United States.
(c) Person means any individual, branch, partnership, associated
group, association, estate, trust, corporation, or other organization
(whether or not organized under the laws of any State), and any
government (including a foreign government, the United States
Government, a State or local government, and any agency, corporation,
financial institution, or other entity or instrumentality thereof,
including a government-sponsored agency).
(d) United States person means any person resident in the United
States or subject to the jurisdiction of the United States.
(e) Foreign person means any person resident outside the United
States or subject to the jurisdiction of a country other than the United
States.
(f) Business enterprise means any organization, association, branch,
or venture which exists for profit-making purposes or to otherwise
secure economic advantage, and any ownership of any real estate.
(g) Services are economic activities whose outputs are other than
tangible goods. This term includes, but is not limited to, banking,
other financial services, insurance, transportation, communications and
data processing, retail and wholesale trade, advertising, accounting,
construction, design, engineering, management consulting, real estate,
professional services, entertainment, education, and health care.
(h) International investment means:
(1) The ownership or control, directly or indirectly, by contractual
commitment or otherwise, by foreign persons of any interest in property
in the United States, or of stock, other securities, or short- and long-
term debt obligations of a United States person; and
(2) The ownership or control, directly or indirectly, by contractual
commitment or otherwise, by United States persons of any interest in
property outside the United States, or of stock, other securities, or
short- and long-term debt obligations of a foreign person.
(i) Direct investment means the ownership or control, directly or
indirectly, by one person of 10 percent or more of
[[Page 8]]
the voting securities of an incorporated business enterprise or an
equivalent interest in an unincorporated business enterprise.
Sec. 801.3 Reporting requirements.
Except for surveys subject to rulemaking in Sec. Sec. 801.7 and
801.8, reporting requirements for all other surveys conducted by the
Bureau of Economic Analysis shall be as follows:
(a) Notice of specific reporting requirements, including who is
required to report, the information to be reported, the manner of
reporting, and the time and place of filing reports, will be published
by the Director of the Bureau of Economic Analysis in the Federal
Register prior to the implementation of a survey;
(b) In accordance with section 3104(b)(2) of title 22 of the United
States Code, persons notified of these surveys and subject to the
jurisdiction of the United States shall furnish, under oath, any report
containing information which is determined to be necessary to carry out
the surveys and studies provided for by the Act; and
(c) Persons not notified in writing of their filing obligation by
the Bureau of Economic Analysis are not required to complete the survey.
[79 FR 69043, Nov. 20, 2014]
Sec. 801.4 Recordkeeping requirements.
In accordance with section 3104(b)(1) of title 22 of the United
States Code, persons subject to the jurisdiction of the United States
shall maintain any information essential for carrying out the surveys
and studies provided for by the Act.
[79 FR 47575, Aug. 14, 2014, as amended at 79 FR 53291, Sept. 9, 2014;
79 FR 69759, Nov. 24, 2014]
Sec. 801.5 Confidentiality.
Information collected pursuant to 3104(c) of title 22 of the United
States Code is confidential.
(a) Access to this information shall be available only to officials
and employees (including consultants and contractors and their
employees) of agencies designated by the President to perform functions
under the Act.
(b) Subject to paragraph (d) of this section, the President may
authorize the exchange of information between agencies or officials
designated to perform functions under the Act.
(c) Nothing in this part shall be construed to require any Federal
agency to disclose information otherwise protected by law.
(d) This information shall be used solely for analytical or
statistical purposes or for a proceeding under 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 is identifiable as being derived from the records of such
customer.
Sec. 801.6 Penalties specified by law.
(a) Civil penalties. Whoever fails to furnish any information
required by the Act or to comply with any rule, regulation, order or
instruction promulgated under the Act shall be subject to a civil
penalty of not less than $2,500, and not more than $25,000, and to
injunctive relief commanding such person to comply, or both (see 22
U.S.C. 3105(a) and (b)). These civil penalties are subject to
inflationary adjustments (15 CFR 6.4.).
(b) Criminal penalties. Whoever willfully fails to submit any
information required by the Act or willfully violates any rule,
regulation, order or instruction promulgated under the Act, upon
conviction, shall be fined not more than $10,000 and, if an individual,
may be imprisoned for not more than one year, or both. Any officer,
director, employee, or agent of any corporation who knowingly
participates in such violations, upon conviction, may be punished by a
like fine, imprisonment or both (see 22 U.S.C. 3105(c)).
[[Page 9]]
Sec. 801.7 Rules and regulations for the BE-13, Survey of New Foreign
Direct Investment in the United States.
The BE-13, Survey of New Foreign Direct Investment in the United
States is conducted to collect data on the acquisition or establishment
of U.S. business enterprises by foreign investors and the expansion of
existing U.S. affiliates of foreign companies to establish a new
production facility. All legal authorities, provisions, definitions, and
requirements contained in Sec. Sec. 801.1 through 801.2 and Sec. Sec.
801.4 through 801.6 are applicable to this survey. Specific additional
rules and regulations for the BE-13 survey are given in paragraphs (a)
through (d) of this section. More detailed instructions are given on the
report forms and instructions.
(a) Response required. A response is required from persons subject
to the reporting requirements of the BE-13, Survey of New Foreign Direct
Investment in the United States, contained herein, whether or not they
are contacted by BEA. Also, persons, or their agents, that are contacted
by BEA about reporting in this survey, either by sending them a report
form or by written inquiry, must respond in writing pursuant this
section. This may be accomplished by filing the properly completed BE-13
report (BE-13A, BE-13B, BE-13C, BE-13D, BE-13E, or BE-13 Claim for
Exemption) within 45 days of being contacted.
(b) Who must report. A BE-13 report is required of any U.S. company
in which:
(1) A foreign direct investment in the United States relationship is
created;
(2) An existing U.S. affiliate of a foreign parent establishes a new
U.S. legal entity, expands its U.S. operations, or acquires a U.S.
business enterprise, or;
(3) A U.S. business enterprise that previously filed a BE-13B or BE-
13D indicating that the established or expanded entity is still under
construction. Foreign direct investment is defined as the ownership or
control by one foreign person (foreign parent) of 10 percent or more of
the voting securities of an incorporated U.S. business enterprise, or an
equivalent interest of an unincorporated U.S. business enterprise,
including a branch.
(c) Forms to be filed. Depending on the type of investment
transaction, U.S. affiliates shall report their information, on one of
six forms--BE-13A, BE-13B, BE-13C, BE-13D, BE-13E, or BE-13 Claim for
Exemption.
(1) Form BE-13A--Report for a U.S. business enterprise when a
foreign entity acquires a voting interest (directly, or indirectly
through an existing U.S. affiliate) in that enterprise, segment, or
operating unit and:
(i) The total cost of the acquisition is greater than $3 million;
(ii) The U.S. business enterprise will operate as a separate legal
entity, and;
(iii) By this acquisition, at least 10 percent of the voting
interest in the acquired entity is now held (directly or indirectly) by
the foreign entity.
(2) Form BE-13B--Report for a U.S. business enterprise when a
foreign entity, or an existing U.S. affiliate of a foreign entity,
establishes a new legal entity in the United States and:
(i) The projected total cost to establish the new legal entity is
greater than $3 million, and;
(ii) The foreign entity owns 10 percent or more of the new business
enterprise's voting interest (directly or indirectly).
(3) Form BE-13C--Report for an existing U.S. affiliate of a foreign
parent when it acquires a U.S. business enterprise or segment that it
then merges into its operations and the total cost to acquire the
business enterprise is greater than $3 million.
(4) Form BE-13D--Report for an existing U.S. affiliate of a foreign
parent when it expands its operations to include a new facility where
business is conducted and the projected total cost of the expansion is
greater than $3 million.
(5) Form BE-13E--Report for a U.S. business enterprise that
previously filed a BE-13B or BE-13D indicating that the established or
expanded entity is still under construction. This form will collect
updated cost information and will be collected annually until
construction is complete.
(6) Form BE-13 Claim for Not Filing--Report for a U.S. business
enterprise that:
(i) Was contacted by BEA but does not meet the requirements for
filing
[[Page 10]]
forms BE-13A, BE-13B, BE-13C, or BE-13D; or
(ii) Whether or not contacted by BEA, met all requirements for
filing on Forms BE-13A, BE-13B, BE-13C, or BE-13D except the $3 million
reporting threshold.
(d) Due date. The BE-13 forms are due no later than 45 days after
the acquisition is completed, the new legal entity is established, the
expansion is begun, or the cost update is requested.
[79 FR 47575, Aug. 14, 2014, as amended at 79 FR 53291, Sept. 9, 2014;
79 FR 69759, Nov. 24, 2014]
Sec. 801.8 Requirements for the BE-10, Benchmark Survey of U.S. Direct
Investment Abroad--2014.
A BE-10, Benchmark Survey of U.S. Direct Investment Abroad will be
conducted covering 2014. All legal authorities, provisions, definitions,
and requirements contained in Sec. Sec. 801.1 and 801.2 and Sec. Sec.
801.4 through 801.6 are applicable to this survey. Specific additional
requirements for the BE-10 survey are given in paragraphs (a) through
(d) of this section. More detailed instructions are given on the report
forms and instructions.
(a) Response required. A response is required from persons subject
to the reporting requirements of the BE-10, Benchmark Survey of U.S.
Direct Investment Abroad--2014, contained herein, whether or not they
are contacted by BEA. Also, a person, or their agent, that 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 this
section. This may be accomplished by:
(1) Certifying in writing, by the due date of the survey, 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'' by
the due date of the survey; or
(3) Filing the properly completed BE-10 report (comprising Form BE-
10A and Form(s) BE-10B, BE-10C, and/or BE-10D) by May 29, 2015, or June
30, 2015, 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, including a
branch--at any time during the U.S. person's 2014 fiscal year.
(2) If the U.S. person had no foreign affiliates during its 2014
fiscal year, a ``BE-10 Claim for Not Filing'' must be filed by the due
date of the survey; no other forms in the survey are required. If the
U.S. person had any foreign affiliates during its 2014 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 if the foreign business enterprise was
established, acquired, seized, liquidated, sold, expropriated, or
inactivated during the U.S. person's 2014 fiscal year.
(4) The amount and type of data required to be reported vary
according to the size of the U.S. Reporters or foreign affiliates, and,
for foreign affiliates, whether they are majority-owned or minority-
owned by U.S. direct investors. For purposes of the BE-10 survey, a
``majority-owned'' foreign affiliate is one in which the combined direct
and indirect ownership interest of all U.S. parents of the foreign
affiliate exceeds 50 percent; all other affiliates are referred to as
``minority-owned'' affiliates.
(c) Forms to be filed. (1) Form BE-10A must be completed by a U.S.
Reporter. If the U.S. Reporter is a corporation, Form BE-10A is required
to cover the fully consolidated U.S. domestic business enterprise. It
must also file Form(s) BE-10B, C, and/or D for its foreign affiliates,
whether held directly or indirectly.
(2) Form BE-10B must be filed for each majority-owned foreign
affiliate for which any 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 $80 million
(positive or negative) at any time during the affiliate's 2014 fiscal
year.
(3) Form BE-10C must be filed:
[[Page 11]]
(i) For each majority-owned foreign affiliate for which any one of
the three items listed in paragraph (c)(2) of this section was greater
than $25 million but for which none of these items was greater than $80
million (positive or negative), at any time during the affiliate's 2014
fiscal year, and
(ii) For each minority-owned foreign affiliate for which any one of
the three items listed in (c)(2) of this section was greater than $25
million (positive or negative), at any time during the affiliate's 2014
fiscal year.
(4) Form BE-10D must be filed for majority- or minority-owned
foreign affiliates for which none of the three items listed in paragraph
(c)(2) of this section was greater than $25 million (positive or
negative) at any time during the affiliate's 2014 fiscal year. Form BE-
10D is a schedule; a U.S. Reporter would submit one or more pages of the
form depending on the number of affiliates that are required to be filed
on this form.
(d) Due date. A fully completed and certified BE-10 report
comprising Form BE-10A and Form(s) BE-10B, C, and/or D (as required) is
due to be filed with BEA not later than May 29, 2015, for those U.S.
Reporters filing fewer than 50, and June 30, 2015, for those U.S.
Reporters filing 50 or more, foreign affiliate Forms BE-10B, C, and/or
D. If the U.S. person had no foreign affiliates during its 2014 fiscal
year, it must file a BE-10 Claim for Not Filing by May 29, 2015.
[79 FR 69043, Nov. 20, 2014]
PARTS 806 899 [RESERVED]
[[Page 13]]
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT
OF COMMERCE
--------------------------------------------------------------------
SUBCHAPTER A--GENERAL REGULATIONS
Part Page
900-901 [Reserved]
902 NOAA information collection requirements
under the Paperwork Reduction Act: OMB
control numbers......................... 15
903 Public information.......................... 19
904 Civil procedures............................ 19
905 Use in enforcement proceedings of
information collected by voluntary
fishery data collectors................. 49
906 National Appeals Office rules of procedure.. 50
908 Maintaining records and submitting reports
on weather modification activities...... 57
909 Marine debris............................... 63
911 Policies and procedures concerning use of
the NOAA space-based data collection
systems................................. 63
917 National sea grant program funding
regulations............................. 70
918 Sea grants.................................. 77
SUBCHAPTER B--OCEAN AND COASTAL RESOURCE MANAGEMENT
921 National Estuarine Research Reserve System
regulations............................. 82
922 National Marine Sanctuary Program
regulations............................. 106
923 Coastal Zone Management Program regulations. 202
930 Federal consistency with approved coastal
management programs..................... 242
[[Page 14]]
932-933 [Reserved]
SUBCHAPTER C--REGULATIONS OF THE NATIONAL WEATHER SERVICE
946 Modernization of the National Weather
Service................................. 285
SUBCHAPTER D--GENERAL REGULATIONS OF THE ENVIRONMENTAL DATA SERVICE
950 Environmental data and information.......... 298
960 Licensing of private remote sensing systems. 302
970 Deep seabed mining regulations for
exploration licenses.................... 319
971 Deep seabed mining regulations for
commercial recovery permits............. 351
SUBCHAPTER E--OIL POLLUTION ACT REGULATIONS
990 Natural resource damage assessments......... 391
SUBCHAPTER F--QUALITY ASSURANCE AND CERTIFICATION REQUIREMENTS FOR NOAA
HYDROGRAPHIC PRODUCTS AND SERVICES
995 Certification requirements for distributors
of NOAA hydrographic products........... 410
996 Quality assurance and certification
requirements for NOAA hydrographic
products and services................... 422
SUBCHAPTER G--REQUIREMENTS FOR CERTIFICATION BY NOAA OF NON-FEDERAL
ASSETS INTO THE INTEGRATED COASTAL AND OCEAN OBSERVATION SYSTEM
997 Regional information coordination entities.. 431
998-999 [Reserved]
[[Page 15]]
SUBCHAPTER A_GENERAL REGULATIONS
PARTS 900 901 [RESERVED]
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.................................. -0387
216.26.................................. -0084
216.27.................................. -0084
216.33.................................. -0084
216.37.................................. -0084
216.38.................................. -0084
216.39.................................. -0084
216.41.................................. -0084
216.45.................................. -0084
216.74.................................. -0699
216.104................................. -0151
216.106................................. -0151
216.108................................. -0151
216.145................................. -0151
222.301(i).............................. -0084
222.307................................. -0230
222.308................................. -0084
223.203(b).............................. -0399
223.206(a).............................. -0230
223.206(b) and (c)...................... -0178
223.207(e).............................. -0309
223.210................................. -0613
224.105(c).............................. -0580
229.4................................... -0293
229.5................................... -0292
229.6................................... -0292
230.8................................... -0311
253.15.................................. -0012
259.30.................................. -0090
259.35.................................. -0041
260.15.................................. -0266
260.36.................................. -0266
260.37.................................. -0266
260.96.................................. -0266
260.97.................................. -0266
260.103................................. -0266
270.3................................... -0556
270.6................................... -0556
270.8................................... -0556
270.10.................................. -0556
270.12.................................. -0556
270.13.................................. -0556
270.14.................................. -0556
270.15.................................. -0556
270.19.................................. -0556
270.20.................................. -0556
270.23.................................. -0556
296.5................................... -0082
300.13.................................. -0304
300.14.................................. -0348
300.17.................................. -0349
300.22.................................. -0148
300.24.................................. -0202
300.25.................................. -0239
300.26(c)............................... -0239
300.26(d)............................... -0239
300.27.................................. -0040
300.32.................................. -0218
300.34.................................. -0218
300.35.................................. -0361
300.45.................................. -0218
300.65 introductory text; (h)(1)(ii) and -0460
(iii); and (i).
300.65(c)(5)............................ -0272, -0592, -0665
300.65(d)............................... -0575, -0592
300.65(h)(1)(i)......................... -0460 and -0512
300.65(j), (k), and (l)................. -0512
300.67(h) and (i)....................... -0592
[[Page 16]]
300.67(k) and (l)....................... -0592 and -0665
300.103(a).............................. -0194
300.104(d).............................. -0194
300.104(e).............................. -0194
300.105(c).............................. -0194
300.106(e).............................. -0194
300.107................................. -0194
300.108(a).............................. -0368
300.108(c).............................. -0367
300.112................................. -0194
300.113................................. -0194
300.123................................. -0205
300.124(b).............................. -0016
300.125................................. -0358
300.152................................. -0228
300.153(b).............................. -0228
300.154(b).............................. -0228
300.154(c).............................. -0228
300.154(d).............................. -0228
300.206(b)(2)........................... -0651
300.207(c).............................. -0651
300.208(c).............................. -0651
300.209(c).............................. -0651
300.212................................. -0595
300.213................................. -0595
300.215................................. -0649
300.218................................. -0649
300.219................................. -0596
300.225................................. -0649
600.205................................. -0314
600.215................................. -0314
600.235................................. -0192
600.501................................. -0089
600.502................................. -0075
600.503................................. -0354 and -0356
600.504................................. -0075
600.506................................. -0075
600.507................................. -0075
600.508................................. -0329
600.510................................. -0075
600.512................................. -0309
600.520................................. -0075
600.630................................. -0314
600.725................................. -0346
600.745................................. -0309
600.747................................. -0346
600.1001................................ -0376
600.1003................................ -0376
600.1005................................ -0376
600.1006................................ -0376
600.1009................................ -0376
600.1010................................ -0376 and -0413
600.1011................................ -0376
600.1012................................ -0376
600.1013................................ -0376
600.1014................................ -0376
622.4................................... -0013 and -0205
622.5................................... -0016
622.5(a)(1)(vii)........................ -0591
622.6................................... -0358
622.8................................... -0205 and -0593
622.9................................... -0205
622.15.................................. -0013 and -0262
622.16.................................. -0551
622.18.................................. -0205 and -0593
622.19.................................. -0205
622.20.................................. -0205
622.21.................................. -0551
622.22.................................. -0551
622.26.................................. -0013 and -0016
622.27.................................. -0593
622.28.................................. -0544
622.40(a)(2)............................ -0205
622.40(d)(2)............................ -0013
622.41.................................. -0345
622.41(a)............................... -0016 and -0305
622.41(g)(3)............................ -0345
622.45.................................. -0365
622.45(a)............................... -0013
622.50.................................. -0205
622.51.................................. -0016
622.51(a)(2)............................ -0543
622.51(a)(3)............................ -0542
622.51(b)............................... -0013
622.52.................................. -0593
622.53.................................. -0345
622.70.................................. -0205
622.71.................................. -0016
622.75.................................. -0205
622.90(a)............................... -0013
622.170................................. -0205
622.170(c).............................. -0013
622.171................................. -0205
622.172................................. -0013 and -0551
622.176................................. -0016
622.176(a)(2)........................... -0593
622.176(b)(2)........................... -0593
622.176(c).............................. -0013
622.176(d).............................. -0593
622.177................................. -0359
622.178................................. -0603
622.192(h).............................. -0365
622.200................................. -0205
622.200(c).............................. -0013
622.201................................. -0205
622.203................................. -0016
622.203(a).............................. -0591
622.203(b).............................. -0013
622.204................................. -0593
622.205................................. -0544
622.207................................. -0345
622.220................................. -0205
622.221................................. -0016
622.225................................. -0205
622.240................................. -0205
622.240(b).............................. -0013
622.241................................. -0205
622.242................................. -0016
622.242(b).............................. -0013
622.243................................. -0359
622.244................................. -0593
622.270................................. -0205
622.270(d).............................. -0013
622.271................................. -0016
622.271(c).............................. -0013
622.300................................. -0593
622.370................................. -0205
622.371................................. -0205
622.372................................. -0205
622.373................................. -0205
622.374................................. -0016
622.374(c).............................. -0013
622.376................................. -0359
622.400................................. -0205
622.402................................. -0358 and -0359
622.430................................. -0359
622.450................................. -0359
622.470................................. -0205
622.473................................. -0013
635.4(b)................................ -0327
635.4(d)................................ -0327
635.4(g)................................ -0202 and -0205
635.5(a)................................ -0371, -0328, and -0452
635.5(a)(4)............................. -0328
[[Page 17]]
635.5(b)................................ -0013 and -0239
635.5(c)................................ -0328
635.5(d)................................ -0323
635.5(f)................................ -0380
635.6(c)................................ -0373
635.7(c)................................ -0374
635.9(e)................................ -0328
635.14(d)............................... -0677
635.15(a)(2), (c)(2) and (k)(4)......... -0677
635.21(d)............................... -0202
635.26.................................. -0247
635.31(b)............................... -0216
635.32.................................. -0309
635.33.................................. -0338
635.42.................................. -0040
635.43.................................. -0040
635.44.................................. -0040
635.46.................................. -0363
635.69(a) and (e)(4).................... -0372
648.4................................... -0202, -0212, and -0529
648.5................................... -0202
648.6................................... -0202 and -0555
648.7................................... -0018, -0202, -0212, -0229,
0590, and -0605
648.8................................... -0350
648.9................................... -0202, -0404, and -0529
648.10.................................. -0202, -0529, and -0605
648.11.................................. -0202, -0546, and -0555
648.13.................................. -0391 and -0481
648.14.................................. -0202, -0212, -0469, -0602,
and -0605
648.15.................................. -0202
648.15(b)............................... -0558
648.17.................................. -0202
648.26.................................. -0601
648.53.................................. -0202 and -0491
648.54.................................. -0202
648.56.................................. -0321
648.58.................................. -0202 and -0416
648.60.................................. -0491 and -0541
648.70.................................. -0238
648.74.................................. -0240
648.76.................................. -0202
648.80.................................. -0202, -0422, and -0602
648.81.................................. -0202, -0412, and -0605
648.82.................................. -0202 and -0605
648.84.................................. -0202 and -0351
648.85.................................. -0202, -0212, and -0605
648.86.................................. -0202, -0391, and -0605
648.87.................................. -0202 and -0605
648.88.................................. -0202 and -0605
648.89.................................. -0202, -0412, and -0605
648.90.................................. -0202 and -0605
648.91.................................. -0202
648.92.................................. -0202 and -0561
648.93.................................. -0202
648.94.................................. -0202 and -0489
648.95.................................. -0202
648.96.................................. -0202
648.100................................. -0202
648.106................................. -0202
648.122................................. -0469
648.123................................. -0305
648.144................................. -0305
648.160................................. -0202
648.205................................. -0404
648.207................................. -0348-0043, 0348-0044, 0348-
0040, and 0348-0046
648.262................................. -0202
648.264................................. -0351
648.291................................. -0590
648.322................................. -0480 and -0489
654.6................................... -0358 and -0359
660.13.................................. -0573
660.14.................................. -0573
660.16.................................. -0593
660.17.................................. -0619
660.20.................................. -0355
660.25.................................. -0203 and -0620
660.113................................. -0271, -0573, -0618, and -
0619
660.114................................. -0618
660.140................................. -0593, -0619, and -0620
660.150................................. -0593 and -0620
660.160................................. -0593 and -0620
660.216................................. -0593
660.219................................. -0352
660.316................................. -0593
660.319................................. -0352
660.404................................. -0433
660.408................................. -0433
660.504................................. -0361
660.512................................. -0204
660.704................................. -0361
660.707................................. -0204
660.708................................. -0498
660.712(d) and (f)...................... -0498
663.4................................... -0271
663.10.................................. -0203
663.11.................................. -0203
663.22.................................. -0305
663.33.................................. -0203
665.13.................................. -0463, -0490, -0577, -0584,
0586, -0589, and -0664
665.14.................................. -0214, -0462, -0577, -0584,
0586, -0589, and -0664
665.16.................................. -0361, -0584, -0586, -0589,
and -0664
665.17.................................. -0214 and -0490
665.19.................................. -0441, -0519, and -0584
665.20.................................. -0612
665.105................................. -0214
665.124................................. -0463
665.126................................. -0462
665.128................................. -0360
665.142................................. -0490 and -0586
665.144................................. -0214
665.145................................. -0214
665.162................................. -0490
665.203................................. -0490 and -0577
665.205................................. -0214
665.207................................. -0214
665.224................................. -0463
665.226................................. -0462
665.228................................. -0360
665.242................................. -0490 and -0586
665.244................................. -0214
665.246................................. -0360
665.247................................. -0214
665.262................................. -0490
665.404................................. -0490 and -0584
665.407................................. -0214
665.424................................. -0463
665.426................................. -0462
665.428................................. -0360
665.442................................. -0490 and -0586
665.444................................. -0214
665.445................................. -0214
665.462................................. -0490
665.603................................. -0490
665.606................................. -0214
665.624................................. -0463
[[Page 18]]
665.628................................. -0360
665.642................................. -0490 and -0586
665.644................................. -0214
665.445................................. -0214
665.662................................. -0490
665.801................................. -0490 and -0589
665.803................................. -0214
665.804................................. -0360
665.807................................. -0490
665.808................................. -0214
665.815................................. -0456
665.819................................. -0689
665.905................................. -0664
665.935................................. -0664
665.965................................. -0664
679.4................................... -0206, -0272, -0334, -0393,
0513, -0545, -0565, and -
0665
679.5(a)................................ -0213, -0269, -0272, and -
0401
679.5(b), (h), and (k).................. -0213
679.5(c), (e), and (f).................. -0213, -0272, -0330, -0513,
0515, and -0634
679.5(d)................................ -0213, -0272, and -0513
679.5(e) and (f)........................ -0401
679.5(g)................................ -0213, -0272, and -0330
679.5(l)(1) through (l)(5).............. -0272
679.5(l)(7)............................. -0398
679.5(l)(8)............................. -0665
679.5(n)................................ -0269
679.5(o)................................ -0401
679.5(p)................................ -0428
679.5(q)................................ -0513
679.5(r)................................ -0213, -0445, and -0545
679.5(s)................................ -0213, -0445, and -0565
679.5(t)................................ -0665
679.6................................... -0206
679.7................................... -0206, -0269, -0272, -0316,
0318, -0330, -0334, -0393,
0445, -0513, -0514, -0545,
0565
679.20(a)(8)(iii)....................... -0206
679.21(f) and (g)....................... -0393, -0401, and -0608
679.21(h)............................... -0316
679.22(a)............................... -0206
679.24(a)............................... -0353
679.26.................................. -0316
679.27(j)(5)............................ -0213, -0330, and -0565
679.28(a)............................... -0213 and -0330
679.28 (b), (c), (d), (e), (g), (j), and -0330
(k).
679.28(f)............................... -0206 and -0445
679.28(h)............................... -0213 and -0515
679.30.................................. -0269
679.32(c)(1) and (2).................... -0318
679.32(c)(3)............................ -0269 and -0318
679.32(d)............................... -0269, -0318, and -0330
679.32(e)............................... -0269
679.32(f)............................... -0213, -0269, and -0272
679.40.................................. -0272
679.41(a)............................... -0272, -0592
679.41(b), (c)(1) through (9), (d) -0272
through (f), (g)(1) through (4), (h)
through (k), and (m).
679.41(c)(10), (g)(5) through (8), and -0272 and -0665
(l).
679.42.................................. -0272
679.42(a)(1)(i) through (ii), (b) -0272
through (e), (g), (h)(1), (h)(1)(i),
(h)(2), and (h)(2)(i).
679.42(a)(2)(iii), (h)(1)(ii), and -0272 and -0665
(h)(2)(ii).
679.42(f)(1)............................ -0272, -0592
679.42(f)(6)............................ -0272, -0592, -0665
679.43.................................. -0272, -0318, -0334, -0398,
0401, -0545, -0565, and -
0569
679.45.................................. -0272, -0398, -0592
679.50(a)............................... -0206, -0269, and -0272
679.51.................................. -0206, -0269, -0272, -0318,
0401, -0513, -0545, -0565
679.52.................................. -0318
679.53.................................. -0318
679.54.................................. -0318
679.55.................................. -0206, -0272, -0318
679.61(c), (d), (e), and (f)............ -0401
679.62.................................. -0393
679.63.................................. -0213 and -0330
679.65(a), (c), and (d)................. -0634 and -0515
679.65(b) through (e)................... -0633
679.80.................................. -0545
679.81.................................. -0545
679.82.................................. -0545
679.83.................................. -0545
679.84.................................. -0213, -0330, and -0545
679.90.................................. -0565
679.91.................................. -0565
679.93.................................. -0213, -0330, and -0565
679.94.................................. -0564
679.100(a) and (b)...................... -0330 and -0515
679.100(c).............................. -0515
679.100(d).............................. -0330
679.110(a) through (f).................. -0206, -0334, -0564, -0700
680.4(a) through (p).................... -0514
680.5(a) and (h) through (l)............ -0213
680.5(b)................................ -0515
680.5(f)................................ -570
680.5(g)................................ -0514
680.5(m)................................ -0514
680.6................................... -0518
680.20.................................. -0516
680.21.................................. -0514
680.23(d)(1) and (d)(2)................. -0445
680.23(e), (f), and (g)................. -0330
680.40(f), (g), (h), (i), (j), (k), (l), -0514
and (m).
680.41.................................. -0514
680.42(a) and (b)....................... -0514
680.43.................................. -0514
680.44.................................. -0514
697.4(a), (d) and (e)................... -0202
697.5................................... -0202
697.6................................... -0202
697.7................................... -0202
697.8................................... -0350
697.12.................................. -0202
697.21.................................. -0351
697.22.................................. -0309
------------------------------------------------------------------------
\1\ And -0305.
[60 FR 39248, Aug. 2, 1995]
Editorial Note: For Federal Register citations affecting Sec.
902.1, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 79 FR 10010, Feb. 24, 2014, in Sec. 902.1,
in the table in paragraph
[[Page 19]]
(b), under the entry ``50 CFR'', entries were removed for
``679.7(a)(7)(vii) through (ix), 679.7(n)(1)(x)''; ``679.7(f)'';
``679.7(f)(8)(ii)''; ``679.7(k)''; ``679.7(n)(4)(ii)'';
``679.20(a)(8)(ii)''; ``679.21(f) and (g)''; 679.21(h)'';
``679.27(j)(5)''; ``679.28(b), (c), (d), (e), (g), and (j)'';
``679.28(k)''; ``679.30''; ``679.32(c)(1) and (2)''; ``679.32(f)'';
``679.42''; ``679.42(a)(1)(i) through (ii), (b) through (e), (g),
(h)(1), (h)(1)(i), (h)(2), and (h)(2)(i)''; ``679.42(a)(2)(iii),
(h)(1)(ii), and (h)(2)(ii)''; ``679.61(c), (d), (e), and (f)'';
``679.65(a), (c), and (d)''; and ``679.65(b) through (e)''; and entries
were added in alphanumeric order for ``679.7(a)(7)(i)'';
``679.7(a)(7)(vii) through (ix)''; ``679.7(b)(6) and (7) and (c)(3) and
(c)(4)''; ``679.7(f)(1) through (f)(7) and (f)(9) through (16)'';
``679.7(f)(8)''; ``679.7(k)''; ``679.7(n)(1)''; ``679.7(n)(2) and (n)(4)
through (8)''; ``679.7(n)(3)''; ``679.21(f) and (g)''; ``679.28(b)
through (e) and (i)'' ``679.28(j) and (k)''; ``679.31(c)'';
``679.32(c)(1) through (3)''; ``679.42(a) through (j)''; ``679.42(k)'';
``679.61(a) through (f)''; and ``679.65''.
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]
PART 904_CIVIL PROCEDURES--Table of Contents
Subpart A_General
Sec.
904.1 Purpose and scope.
904.2 Definitions and acronyms.
904.3 Filing and service of notices, documents, and other papers.
904.4 Computation of time periods.
904.5 Appearances.
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.
904.104 Final administrative decision.
904.105 Payment of final civil penalty.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing civil penalties.
Subpart C_Hearing and Appeal Procedures
General
904.200 Scope and applicability.
904.201 Hearing requests and case docketing.
904.202 Filing of documents.
904.203 [Reserved]
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleading or record.
904.208 Extensions of time.
904.209 Expedited administrative 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.
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 Closing of record.
904.254 Interlocutory review.
904.255 Ex parte communications.
Post-Hearing
904.260 Recordation of hearing.
904.261 Post-hearing briefs.
Decision
904.270 Record of decision.
904.271 Initial 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 permit sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.
904.305 Final administrative decision.
Permit Sanctions for Noncompliance
904.310 Nature of permit sanctions.
904.311 Compliance.
[[Page 20]]
Permit Sanctions for Violations
904.320 Nature of permit 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 violation.
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 of seized property.
904.503 Appraisement.
904.504 Administrative forfeiture proceedings.
904.505 Summary sale.
904.506 Remission of forfeiture and restoration of proceeds of sale.
904.507 Recovery of certain storage costs.
904.508 Voluntary forfeiture by abandonment.
904.509 Disposal of forfeited property.
904.510 Return of seized property.
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. 5001-5012; 16 U.S.C. 3631-3644; 42 U.S.C. 9101
et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971k; 16 U.S.C. 781 et
seq.; 16 U.S.C. 2401-2413; 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. 5601 et seq.; Pub. L. 105-277; 16 U.S.C. 1822 note,
Section 801(f); 16 U.S.C. 2465(a); 16 U.S.C. 5103(b); 16 U.S.C. 1385 et
seq.; 16 U.S.C. 1822 note (Section 4006); 16 U.S.C. 4001-4017; 22 U.S.C.
1980(g); 16 U.S.C. 5506(a); 16 U.S.C. 5601-5612; 16 U.S.C. 1822; 16
U.S.C. 973-973(r); 15 U.S.C. 330-330(e).
Source: 71 FR 12448, Mar. 10, 2006, unless otherwise noted.
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 this part and sets forth
rules for the filing and service of documents in administrative
proceedings covered by this part.
(c) The following statutes authorize NOAA to assess civil penalties,
impose permit sanctions, issue written warnings, and/or seize and
forfeit property in response to violations of those statutes:
(1) American Fisheries Act of 1998, Public Law 105-277;
(2) Anadromous Fish Products Act, 16 U.S.C. 1822 note, Section
801(f);
(3) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2413;
(4) Antarctic Marine Living Resources Convention Act of 1984, 16
U.S.C. 2431-2444;
(5) Antarctic Protection Act of 1990, 16 U.S.C. 2465(a);
(6) Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C.
5103(b);
(7) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
(8) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
(9) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971k;
(10) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.;
(11) Dolphin Protection Consumer Information Act, 16 U.S.C. 1385 et
seq.;
(12) Driftnet Impact Monitoring, Assessment, and Control Act, 16
U.S.C. 1822 note (Section 4006);
(13) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
(14) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
(15) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001-4017;
(16) Fisherman's Protective Act of 1967, 22 U.S.C. 1980(g);
(17) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;
(18) High Seas Fishing Compliance Act, 16 U.S.C. 5506(a);
(19) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;
(20) Land Remote-Sensing Policy Act of 1992, 15 U.S.C. 5601 et seq.;
(21) Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. 1801-1882;
(22) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
(23) National Marine Sanctuaries Act, 16 U.S.C. 1431-1439;
[[Page 21]]
(24) North Pacific Anadromous Stocks Convention Act of 1992, 16
U.S.C. 5001-5012;
(25) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
(26) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C.
5601-5612;
(27) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et
seq.;
(28) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
(29) Shark Finning Prohibition Act, 16 U.S.C. 1822;
(30) South Pacific Tuna Act of 1988, 16 U.S.C. 973-973(r);
(31) Sponge Act, 16 U.S.C. 781 et seq.;
(32) Tuna Conventions Act of 1950, 16 U.S.C. 951-961;
(33) Weather Modification Reporting Act, 15 U.S.C. 330-330e; and
(34) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.
(d) The procedures set forth in this part are intended to apply to
administrative proceedings under these and any other statutes or
authorities administered by NOAA.
Sec. 904.2 Definitions and acronyms.
Unless the context otherwise requires, or as otherwise noted, terms
in this Part have the meanings prescribed in the applicable statute or
regulation. In addition, the following definitions apply:
Administrator means the Administrator of NOAA or a designee.
Agency means the National Oceanic and Atmospheric Administration
(NOAA).
ALJ Docketing Center means the Docketing Center of the Office of
Administrative Law Judges.
Applicable statute means a statute cited in Sec. 904.1(c), and any
regulations issued by NOAA to implement it.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or state
agency that has entered into an agreement with the Secretary to enforce
the provisions of any statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Citation means a written warning (see section 311(c) of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982,
16 U.S.C. 773i(c)).
Civil penalty means a civil administrative monetary penalty assessed
under the civil administrative process described in this part.
Decision means an initial or final administrative decision of the
Judge.
Ex parte communication means an oral or written communication not on
the public record with respect to which reasonable prior notice to all
parties is not given, but does not include inquiries regarding
procedures, scheduling, and status.
Final administrative decision means an order or decision of NOAA
assessing a civil penalty 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 U.S. Government by court order or by order of the
Administrator under a statute.
Hearing means a civil administrative hearing on a NOVA, NOPS and/or
NIDP.
Initial decision means a decision of the Judge that, under
applicable statute and regulation, is subject to review by the
Administrator.
Judge means Administrative Law Judge.
NIDP means Notice of Intent to Deny Permit.
NMFS means the National Marine Fisheries Service.
NOAA (see Agency) means either the Administrator or a designee
acting on behalf of the Administrator.
NOPS means Notice of Permit Sanction.
NOVA means Notice of Violation and Assessment of civil penalty.
Party means the respondent and the Agency; a joint and several
respondent,
[[Page 22]]
vessel owner, or permit holder, if they enter an appearance; and any
other person allowed to participate under Sec. 904.204(b).
Permit means any license, permit, certificate, or other approval
issued by NOAA under an applicable statute.
Permit holder means the holder of a permit or any agent or employee
of the holder, and includes the owner and operator of a vessel for which
the permit was issued.
Permit sanction means suspension, revocation, or modification of a
permit (see Sec. 904.320).
PPIP means Preliminary Position on Issues and Procedures.
Respondent means a person issued a written warning, NOVA, NOPS, NIDP
or other notice.
Settlement agreement means any agreement resolving all or part of an
administrative or judicial action. The terms of such an agreement may
include, but are not limited to, payment of a civil penalty, and/or
imposition of a permit sanction.
USCG means the U.S. Coast Guard.
Vessel owner means the owner of any vessel that may be liable in rem
for any civil penalty, or whose permit may be subject to sanction in
proceedings under this part.
Written warning means a notice in writing to a person that a
violation has been documented against the person or against the vessel
which is owned or operated by the person, where no civil penalty or
permit sanction is imposed or assessed.
Sec. 904.3 Filing and service of notices, documents, and other papers.
(a) Service of a NOVA (Sec. 904.101), NOPS (Sec. 904.302), NIDP
(Sec. 904.303), Notice of Proposed Forfeiture (Sec. 904.504), Notice
of Seizure (Sec. 904.501), Notice of Summary Sale (Sec. 904.505) or
Written Warning (Sec. 904.402) may be made by certified mail (return
receipt requested), facsimile, electronic transmission, or third party
commercial carrier to an addressee's last known address or by personal
delivery. Service of a notice under this subpart will be considered
effective upon receipt.
(b) Service of documents and papers, other than such Notices as
described in paragraph (a) of this section, may be made by first class
mail (postage prepaid), facsimile, electronic transmission, or third
party commercial carrier, to an addressee's last known address or by
personal delivery. Service of documents and papers will be considered
effective upon the date of postmark (or as otherwise shown for
government-franked mail), facsimile transmission, delivery to third
party commercial carrier, electronic transmission or upon personal
delivery.
(c) Whenever this part requires service of a NOVA, NOPS, NIDP,
document, or other paper, such service may effectively be made on the
agent for service of process, on the attorney for the person to be
served, or other representative. Refusal by the person to be served
(including an agent, attorney, or representative) of service of a
document or other paper will be considered effective service of the
document or other paper as of the date of such refusal. In cases where
certified notification is returned unclaimed, service will be considered
effective if the U.S. Postal Service provides an affidavit stating that
the party was receiving mail at the same address during the period when
certified service was attempted.
(d) Any documents 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.
Sec. 904.4 Computation of time periods.
For a NOVA, NOPS or NIDP, the 30 day response period begins to run
on the date the notice is received. All other time periods begin to run
on the day following the service date of the document, paper, or event
that begins the time period. Saturdays, Sundays, and Federal holidays
will be included in computing such time, except that when such time
expires on a Saturday, Sunday, or Federal holiday, in which event such
period will be extended to include the next business day. This method of
computing time periods also applies to any act, such as paying a
[[Page 23]]
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.
Sec. 904.5 Appearances.
(a) A party may appear in person or by or with counsel or other
representative.
(b) Whenever an attorney or other representative contacts the Agency
on behalf of another person with regard to any matter that has resulted
in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a
forfeiture proceeding, that attorney or other representative shall file
a Notice of Appearance with the Agency. Such notice shall indicate the
name of the person on whose behalf the appearance is made.
(c) Each attorney or other representative who represents a party in
any hearing shall file a written Notice of Appearance with the Judge.
Such notice shall indicate the name of the case, the docket number, and
the party on whose behalf the appearance is made.
Subpart B_Civil Penalties
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 upon the respondent(s).
The NOVA will contain:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provisions of the Act, regulation,
license, permit, agreement, or order allegedly violated;
(3) The findings and conclusions upon which NOAA bases the
assessment;
(4) The amount of the civil penalty assessed; and
(5) Information concerning the respondent's rights upon receipt of
the NOVA, and will be accompanied by a copy of the regulations in this
part governing the proceedings.
(b) In assessing a civil penalty, NOAA will take into account
information available to the Agency concerning any factor to be
considered under the applicable statute, and any other information that
justice or the purposes of the statute require.
(c) The NOVA may also contain a proposal for compromise or
settlement of the case. NOAA may also attach documents that illuminate
the facts believed to show a violation.
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 Sec. 904.201(a);
(4) Request an extension of time to respond under paragraph (c) of
this section; or
(5) Take no action, in which case the NOVA becomes a final
administrative decision in accordance with Sec. 904.104.
(b) The respondent may seek amendment or modification of the NOVA to
conform to the facts or law as that person sees them by notifying Agency
counsel at the telephone number or address specified in the NOVA. If
amendment or modification is sought, Agency counsel will either amend
the NOVA or decline to amend it, and so notify the respondent.
(c) The respondent may, within the 30 day period specified in
paragraph (a) of this section, request an extension of time to respond.
Agency counsel may grant an extension of up to 30 days unless he or she
determines that the requester could, exercising reasonable diligence,
respond within the 30 day period. If Agency counsel does not respond to
the request within 48 hours of its receipt, the request is granted
automatically for the extension requested,
[[Page 24]]
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.
Sec. 904.103 Hearing.
(a) Any hearing request under Sec. 904.102(a)(3) is governed by the
hearing and review procedures set forth in subpart C of this part.
(b) [Reserved]
Sec. 904.104 Final administrative decision.
(a) If no request for hearing is timely filed as provided in Sec.
904.201(a), the NOVA becomes effective as the final administrative
decision and order of NOAA 30 days after service of the NOVA or on the
last day of any delay period granted.
(b) If a request for hearing is timely filed in accordance with
Sec. 904.201(a), the date of the final administrative decision is as
provided in subpart C of this part.
Sec. 904.105 Payment of final civil penalty.
(a) Respondent must make full payment of the civil penalty within 30
days of the date upon which the NOVA becomes effective as the final
administrative decision and order of NOAA under Sec. 904.104 or the
date of the final administrative decision as provided in subpart C of
this part. 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
U.S. currency in the amount of the assessment to the ``Department of
Commerce/NOAA,'' by credit card, or as otherwise directed.
(b) Upon any failure to pay the civil penalty assessed, NOAA may
request the U.S. Department of Justice to recover the amount assessed in
any appropriate district court of the United States, may act under Sec.
904.106, or may commence any other lawful action.
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 assessed, or
which is subject to assessment, except as stated in paragraph (d) of
this section.
(b) The compromise authority of NOAA under this section may be
exercised either upon the initiative of NOAA or in response to a request
by the respondent or a representative subject to the requirements of
Sec. 904.5. Any such request should be sent to Agency counsel at the
address specified in the NOVA.
(c) Neither the existence of the compromise authority of NOAA under
this section nor NOAA's exercise thereof at any time changes the date
upon which a NOVA becomes final.
(d) NOAA will not compromise, modify, or remit a civil penalty
assessed, or subject to assessment, under the Deep Seabed Hard Mineral
Resources Act while an action to review or recover the civil penalty is
pending in a court of the United States.
Sec. 904.107 Joint and several respondents.
(a) A NOVA may assess a civil penalty against two or more
respondents jointly and severally. Each joint and several respondent is
liable for the entire penalty but, in total, no more than the amount
finally assessed may be collected from the respondents.
(b) A hearing request by one joint and several respondent is
considered a request by the other joint and several respondent(s).
Agency counsel, having received a hearing request from one joint and
several respondent, will send a copy of it to the other joint and
several respondent(s) in the case. However, if the requesting joint and
several respondent settles with the Agency prior to the hearing, upon
notification by the Agency, any remaining joint and several
respondent(s) must affirmatively request a hearing within the time
period specified or the case will be removed from the court's docket as
provided in Sec. 904.213.
(c) A final administrative decision by the Judge or the
Administrator after a
[[Page 25]]
hearing requested by one joint and several respondent is binding on all
parties including all other joint and several respondent(s), whether or
not they entered an appearance unless they have otherwise resolved the
matter through settlement with the Agency.
Sec. 904.108 Factors considered in assessing civil penalties.
(a) Factors to be taken into account in assessing a civil penalty,
depending upon the statute in question, may include the nature,
circumstances, extent, and gravity of the alleged violation; the
respondent's degree of culpability, any history of prior violations, and
ability to pay; and such other matters as justice may require.
(b) NOAA may, in consideration of a respondent's ability to pay,
increase or decrease a civil penalty from an amount that would otherwise
be warranted by the other relevant factors. A civil penalty may be
increased if a respondent's ability to pay is such that a higher civil
penalty is necessary to deter future violations, or for commercial
violators, to make a civil penalty more than a cost of doing business. A
civil penalty may be decreased if the respondent establishes that he or
she is unable to pay an otherwise appropriate civil penalty amount.
(c) Except as provided in paragraph (g) of this section, if a
respondent asserts that a civil penalty should be reduced because of an
inability to pay, the respondent has the burden of proving such
inability by providing verifiable, complete, and accurate financial
information to NOAA. NOAA will not consider a respondent's inability to
pay unless the respondent, upon request, submits such financial
information as Agency counsel determines is adequate to evaluate the
respondent's financial condition. Depending on the circumstances of the
case, Agency counsel may require the respondent to complete a financial
information request form, answer written interrogatories, or submit
independent verification of his or her financial information. If the
respondent does not submit the requested financial information, he or
she will be presumed to have the ability to pay the civil penalty.
(d) Financial information relevant to a respondent's ability to pay
includes but is not limited to, the value of respondent's cash and
liquid assets; ability to borrow; net worth; liabilities; income tax
returns; past, present, and future income; prior and anticipated
profits; expected cash flow; and the respondent's ability to pay in
installments over time. A respondent will be considered able to pay a
civil penalty even if he or she must take such actions as pay in
installments over time, borrow money, liquidate assets, or reorganize
his or her business. NOAA's consideration of a respondent's ability to
pay does not preclude an assessment of a civil penalty in an amount that
would cause or contribute to the bankruptcy or other discontinuation of
the respondent's business.
(e) Financial information regarding respondent's ability to pay
should be submitted to Agency counsel as soon as possible after the
receipt of the NOVA. If a respondent has requested a hearing on the
violation alleged in the NOVA and wants the initial decision of the
Judge to consider his or her inability to pay, verifiable, complete, and
accurate financial information must be submitted to Agency counsel at
least 30 days in advance of the hearing, except where the applicable
statute expressly provides for a different time period. No information
regarding the respondent's ability to pay submitted by the respondent
less than 30 days in advance of the hearing will be admitted at the
hearing or considered in the initial decision of the Judge, unless the
Judge rules otherwise. If the Judge decides to admit any information
related to the respondent's ability to pay submitted less than 30 days
in advance of the hearing, Agency Counsel will have 30 days to respond
to the submission from the date of admission. In deciding whether to
submit such information, the respondent should keep in mind that the
Judge may assess 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
prior to or at the hearing.
[[Page 26]]
(g) Whenever a statute requires NOAA to take into consideration a
respondent's ability to pay when assessing a civil penalty, NOAA will
take into consideration information available to it concerning a
respondent's ability to pay. In all cases, the NOVA will advise, in
accordance with Sec. 904.102, that the respondent may seek to have the
civil penalty amount modified by Agency counsel on the basis that he or
she does not have the ability to pay the civil penalty assessed. A
request to have the civil penalty amount modified on this basis must be
made in accordance with Sec. 904.102 and should be accompanied by
supporting financial information. Agency counsel may request that the
respondent submit such additional verifiable, complete and accurate
financial information as Agency counsel determines is necessary to
evaluate the respondent's financial condition (such as by responding to
a financial information request form or written interrogatories, or by
authorizing independent verification of respondent's financial
condition). A respondent's failure to provide the requested information
may serve as the basis for inferring that such information would not
have supported the respondent's assertion of inability to pay the civil
penalty assessed in the NOVA.
(h) Whenever a statute requires NOAA to take into consideration a
respondent's ability to pay when assessing a civil penalty and the
respondent has requested a hearing on the violation alleged in the NOVA,
the Agency must submit information on the respondent's financial
condition so that the Judge may consider that information, along with
any other factors required to be considered, in the Judge's de novo
assessment of a civil penalty. Agency counsel may obtain such financial
information through discovery procedures under Sec. 904.240, or
otherwise. A respondent's refusal or failure to respond to such
discovery requests may serve as the basis for inferring that such
information would have been adverse to any claim by respondent of
inability to pay the assessed civil penalty, or result in respondent
being barred from asserting financial hardship.
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 administrative decisions
of NOAA 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) The Judge is delegated authority to make the initial or final
administrative decision of the Agency in proceedings subject to the
provisions of this subpart, and to take actions to promote the efficient
and fair conduct of hearings as set out in this subpart. The Judge has
no authority to rule on constitutional issues or challenges to the
validity of regulations promulgated by the Agency or statutes
administered by NOAA.
(c) This subpart is not an independent basis for claiming the right
to a hearing but, instead, prescribes procedures for the conduct of
hearings, the right to which is provided by other authority.
Sec. 904.201 Hearing requests and case docketing.
(a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the
request must be dated and in writing, and must be served either in
person or mailed to the Agency counsel specified in the notice. The
respondent must either attach a copy of the NOVA, NOPS or NIDP or refer
to the relevant NOAA case number. Agency counsel will promptly forward
the request for hearing to the ALJ Docketing Center.
(b) If a written application is made to NOAA after the expiration of
the time period established in this part for the required filing of
hearing requests, Agency counsel will promptly forward the request for
hearing along with a motion in opposition, documentation of service and
any other relevant materials to the ALJ Docketing Center for
[[Page 27]]
a determination on whether such request shall be considered timely
filed. Determinations by the ALJ regarding untimely hearing requests
under this section shall be in writing.
(c) Upon its receipt for filing in the ALJ Docketing Center, each
request for hearing will be promptly assigned a docket number and
thereafter the proceeding will be referred to by such number. Written
notice of the assignment of hearing to a Judge will promptly be given to
the parties.
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 the ALJ Docketing Center and 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 [Reserved]
Sec. 904.204 Duties and powers of Judge.
The Judge has all powers and responsibilities necessary to preside
over the parties and the hearing, to hold prehearing conferences, to
conduct the hearing, and to render decisions in accordance with these
regulations and 5 U.S.C. 554 through 557, including, but not limited to,
the authority and duty to do the following:
(a) Rule on timeliness of hearing requests pursuant to Sec.
904.201(b);
(b) Rule on a request to participate as a party in the hearing by
allowing, denying, or limiting such participation (such ruling will
consider views of the parties and be based on whether the requester
could be directly and adversely affected by the determination and
whether the requester can be expected to contribute materially to the
disposition of the proceedings);
(c) Schedule the time, place, and manner of conducting the pre-
hearing conference or hearing, continue the hearing from day to day,
adjourn the hearing to a later date or a different place, and reopen the
hearing at any time before issuance of the decision, all in the Judge's
discretion, having due regard for the convenience and necessity of the
parties and witnesses;
(d) Schedule and regulate the course of the hearing and the conduct
of the participants and the media, including the power to rule on
motions to close the hearing in the interests of justice; seal the
record from public scrutiny to protect privileged information, trade
secrets, and confidential commercial or financial information; and
strike testimony of a witness who refuses to answer a question ruled to
be proper;
(e) Administer oaths and affirmations to witnesses;
(f) Rule on contested discovery requests, establish discovery
schedules, and, whenever the ends of justice would thereby be served,
take or cause depositions or interrogatories to be taken and issue
protective orders under Sec. 904.251(h);
(g) Rule on motions, procedural requests, and similar matters;
(h) Receive, exclude, limit, and otherwise rule on offers of proof
and evidence;
(i) Examine and cross-examine witnesses and introduce into the
record on the Judge's own initiative documentary or other evidence;
(j) Rule on requests for appearance of witnesses or production of
documents and take appropriate action upon failure of a party to effect
the appearance or production of a witness or document ruled relevant and
necessary to the proceeding; as authorized by law, issue subpoenas for
the appearance of witnesses or production of documents;
(k) Require a party or witness at any time during the proceeding to
state his or her position concerning any issue or his or her theory in
support of such position;
(l) Take official notice of any matter not appearing in evidence
that is among traditional matters of judicial notice; or of a non-
privileged document required by law or regulation to be filed with or
published by a duly constituted government body; or of any reasonably
available public document; provided that the parties will be advised of
the matter noticed and given reasonable opportunity to show the
contrary;
(m) Assess a civil penalty or impose a permit sanction, condition,
revocation,
[[Page 28]]
or denial of permit application, taking into account all of the factors
required by applicable law;
(n) Prepare and submit a decision or other appropriate disposition
document and certify the record;
(o) Award attorney fees and expenses as provided by applicable
statute or regulation;
(p) Grant preliminary or interim relief; or
(q) Impose, upon the motion of any party, or sua sponte, appropriate
sanctions.
(1) Sanctions may be imposed when any party, or any person
representing a party, in an administrative proceeding under this part
has failed to comply with this part, or any order issued under this
part, and such failure to comply:
(i) Materially injures or prejudices another party by causing
additional expenses; prejudicial delay; or other injury or prejudice;
(ii) Is a clear and unexcused violation of this part, or any order
issued under this part; or
(iii) Unduly delays the administrative proceeding.
(2) Sanctions that may be imposed include, but are not limited to,
one or more of the following:
(i) Issuing an order against the party;
(ii) Rejecting or striking any testimony or documentary evidence
offered, or other papers filed, by the party;
(iii) Expelling the party from the administrative proceedings;
(iv) Precluding the party from contesting specific issues or
findings;
(v) Precluding the party from making a late filing or conditioning a
late filing on any terms that are just;
(vi) Assessing reasonable expenses, incurred by any other party as a
result of the improper action or failure to act; and
(vii) Taking any other action, or imposing any restriction or
sanction, authorized by applicable statute or regulation, deemed
appropriate by the Judge.
(3) No sanction authorized by this section, other than refusal to
accept late filings, shall be imposed without prior notice to all
parties and an opportunity for any party against whom sanctions would be
imposed to be heard. Such opportunity to be heard may be on such notice,
and the response may be in such form as the Judge directs and may be
limited to an opportunity for a party or a party's representative to
respond orally immediately after the act or inaction is noted by the
Judge.
(4) The imposition of sanctions is subject to interlocutory review
pursuant to Sec. 904.254 in the same manner as any other ruling.
(5) Nothing in this section shall be read as precluding the Judge
from taking any other action, or imposing any restriction or sanction,
authorized by applicable statute or regulation.
[71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010]
Sec. 904.205 Disqualification of Judge.
(a) The Judge may withdraw voluntarily from an administrative
proceeding when the Judge deems himself/herself disqualified.
(b) A party may in good faith request the Judge to withdraw on the
grounds of personal bias or other disqualification. The party seeking
the disqualification must file with the Judge a timely affidavit or
statement setting forth in detail the facts alleged to constitute the
grounds for disqualification, and the Judge will rule on the matter. If
the Judge rules against disqualification, the Judge will place all
matters relating to such claims of disqualification in the record.
Sec. 904.206 Pleadings, motions, and service.
(a) The original of all pleadings and documents must be filed with
the Judge and a copy served upon the ALJ Docketing Center and each
party. All pleadings or documents when submitted for filing must show
that service has been made upon all parties. Such service must be made
in accordance with Sec. 904.3(b).
(b) Pleadings and documents to be filed may be reproduced by
printing or any other process, provided the copies are clear and
legible; must be dated, 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
[[Page 29]]
the signatory. If typewritten, the impression may be on only one side of
the paper and must be double spaced, if possible, except that quotations
may be single spaced and indented.
(c) Motions must normally be made in writing and must state clearly
and concisely the purpose of and relief sought by the motion, the
statutory or principal authority relied upon, and the facts claimed to
constitute the grounds requiring the relief requested.
(d) Unless otherwise provided, the answer to any written motion,
pleading, or petition must be served within 20 days after service of the
motion. If a motion states that opposing counsel has no objection, it
may be acted upon as soon as practicable, without awaiting the
expiration of the 20 day period. Answers must be in writing, unless made
in response to an oral motion made at a hearing; must fully and
completely advise the parties and the Judge concerning the nature of the
opposition; must admit or deny specifically and in detail each material
allegation of the pleading answered; and must state clearly and
concisely the facts and matters of law relied upon. Any new matter
raised in an answer will be deemed controverted.
(e) A response to an answer will be called a reply. A short reply
restricted to new matters raised in the answer may be served within 15
days after service of an answer. The Judge has discretion to dispense
with the reply. No further responses are permitted.
Sec. 904.207 Amendment of pleading or record.
(a) A party may amend its pleading as a matter of course at least 20
days prior to a hearing. Within 20 days prior to a hearing a party may
amend its pleading only by leave of the Judge or by written consent of
the adverse party; leave shall be freely given when justice so requires.
A party shall plead in response to an amended pleading within the time
remaining for response to the original pleading or within 10 days after
service of the amended pleading, whichever period is longer, unless the
Judge otherwise orders.
(b) The Judge, upon his or her own initiative or upon application by
a party, may order a party to make a more definite statement of any
pleading.
(c) Harmless errors in pleadings or elsewhere in the record may be
corrected (by deletion or substitution of words or figures), and broad
discretion will be exercised by the Judge in permitting such
corrections.
Sec. 904.208 Extensions of time.
If appropriate and justified, the Judge may grant any request for an
extension of time. Requests for extensions of time must, except in
extraordinary circumstances, be made in writing.
Sec. 904.209 Expedited administrative proceedings.
In the interests of justice and administrative efficiency, the
Judge, on his or her own initiative or upon the application of any
party, may expedite the administrative proceeding. A motion by a party
to expedite the administrative proceeding may, at the discretion of the
Judge, be made orally or in writing with concurrent actual notice to all
parties. Upon granting a motion to expedite the scheduling of an
administrative proceeding, the Judge may expedite pleading schedules,
prehearing conferences and the hearing, as appropriate. If a motion for
an expedited administrative proceeding is granted, a hearing on the
merits may not be scheduled with less than 5 business days notice,
unless all parties consent to an earlier hearing.
Sec. 904.210 Summary decision.
The Judge may render a summary decision disposing of all or part of
the administrative proceeding if:
(a) Jointly requested by every party to the administrative
proceeding; and
(b) There is no genuine issue as to any material fact and a party is
entitled to summary decision as a matter of law.
Sec. 904.211 Failure to appear.
(a) If, after proper service of notice, any party appears at the
hearing and an opposing party fails to appear, the Judge is authorized
to:
(1) Dismiss the case with prejudice, where the Agency is a non-
appearing party; or
[[Page 30]]
(2) Where the respondents have failed to appear, find the facts as
alleged in the NOVA, NOPS and/or NIDP and enter a default judgment
against the respondents.
(b) Following an order of default judgment, a non-appearing party
may file a petition for reconsideration, in accordance with Sec.
904.272. Only petitions citing reasons for non-appearance, as opposed to
arguing the merits of the case, will be considered.
(c) The Judge will place in the record all the facts concerning the
issuance and service of the notice of time and place of hearing.
(d) The Judge may deem a failure of a party to appear after proper
notice a waiver of any right to a hearing and consent to the making of a
decision on the record.
(e) Failure to appear at a hearing shall not be deemed to be a
waiver of the right to be served with a copy of the Judge's decision.
Sec. 904.212 Failure to prosecute or defend.
(a) Whenever the record discloses the failure of any party to file
documents, respond to orders or notices from the Judge, or otherwise
indicates an intention on the part of any party not to participate
further in the administrative proceeding, the Judge may issue:
(1) An order requiring any party to show why the matter that is the
subject of the failure to respond should not be disposed of adversely to
that party's interest;
(2) An order requiring any party to certify intent to appear at any
scheduled hearing; or
(3) Any order, except dismissal, as is necessary for the just and
expeditious resolution of the case.
(b) [Reserved]
Sec. 904.213 Settlements.
If settlement is reached before the Judge has certified the record,
the Judge shall remove the case from the docket upon notification by the
Agency.
Sec. 904.214 Stipulations.
The parties may, by stipulation, agree upon any matters involved in
the administrative proceeding and include such stipulations in the
record with the consent of the Judge. Written stipulations must be
signed and served upon all parties.
Sec. 904.215 Consolidation.
The Chief Administrative Law Judge may order that two or more
administrative proceedings that involve substantially the same parties
or the same issues be consolidated and/or heard together, either upon
request of a party or sua sponte.
Sec. 904.216 Prehearing conferences.
(a) Prior to any hearing or at any other time deemed appropriate,
the Judge may, upon his or her own initiative, or upon the application
of any party, direct the parties to appear for a conference or arrange a
telephone conference. The Judge shall provide at least 24 hours notice
of the conference to the parties, and shall record such conference by
audio recording or court reporter, to consider:
(1) Simplification or clarification of the issues or settlement of
the case by consent;
(2) The possibility of obtaining stipulations, admissions,
agreements, and rulings on admissibility of documents, understandings on
matters already of record, or similar agreements that will avoid
unnecessary proof;
(3) Agreements and rulings to facilitate the discovery process;
(4) Limitation of the number of expert witnesses or other avoidance
of cumulative evidence;
(5) The procedure, course, and conduct of the administrative
proceeding;
(6) The distribution to the parties and the Judge prior to the
hearing of written testimony and exhibits in order to expedite the
hearing; or
(7) Such other matters as may aid in the disposition of the
administrative proceeding, including the status of settlement
discussions.
(b) The Judge in his or her discretion may issue an order showing
the matters disposed of in such conference, and shall provide a
transcript of the conference upon the request of a party.
[[Page 31]]
Discovery
Sec. 904.240 Discovery generally.
(a) Preliminary position on issues and procedures (PPIP). Prior to
hearing the Judge will ordinarily require the parties to submit a
written PPIP. Except for information regarding a respondent's ability to
pay an assessed civil penalty, this PPIP will normally obviate the need
for further discovery.
(1) The PPIP shall include the following information: A factual
summary of the case; a summary of all factual and legal issues in
dispute; a list of all defenses that will be asserted, together with a
summary of all factual and legal bases supporting each defense; a list
of all potential witnesses, together with a summary of their anticipated
testimony; and a list of all potential exhibits.
(2) The PPIP shall be signed by the party and by an attorney, if one
is retained. The PPIP shall be served upon all parties, along with a
copy of each potential exhibit listed in the PPIP.
(3) A party has the affirmative obligation to supplement the PPIP as
available information or documentation relevant to the stated charges or
defenses becomes known to the party.
(b) Additional discovery. Upon written motion by a party, the Judge
may allow additional discovery only upon a showing of relevance, need,
and reasonable scope of the evidence sought, by one or more of the
following methods: Deposition upon oral examination or written
questions, written interrogatories, production of documents or things
for inspection and other purposes, and requests for admission. With
respect to information regarding a respondent's ability to pay an
assessed civil penalty, the Agency may serve any discovery request
(i.e., deposition, interrogatories, admissions, production of documents)
directly upon the respondent without first seeking an order from the
Judge.
(c) Time limits. Motions for depositions, interrogatories,
admissions, or production of documents or things may not be filed within
20 days of the hearing except on order of the Judge for good cause
shown. Oppositions to a discovery motion must be filed within 10 days of
service unless otherwise provided in these rules or by the Judge.
(d) Oppositions. Oppositions to any discovery motion or portion
thereof must state with particularity the grounds relied upon. Failure
to object in a timely fashion constitutes waiver of the objection.
(e) Scope of discovery. The Judge may limit the scope, subject
matter, method, time, or place of discovery. Unless otherwise limited by
order of the Judge, the scope of discovery is as follows:
(1) In general. As allowed under paragraph (b) of this section,
parties may obtain discovery of any matter, not privileged, that is
relevant to the allegations of the charging document, to the proposed
relief, or to the defenses of any respondent, or that appears reasonably
calculated to lead to the discovery of admissible evidence.
(2) Hearing preparation: Materials. A party may not obtain discovery
of materials prepared in anticipation of litigation except upon a
showing that the party seeking discovery has a substantial need for the
materials in preparation of his or her case and is unable without undue
hardship to obtain the substantial equivalent of the materials by other
means. Mental impressions, conclusions, opinions, or legal theories of
an attorney or other representative of a party are not discoverable
under this section.
(3) Hearing preparation: Experts. A party may discover the substance
of the facts and opinions to which an expert witness is expected to
testify and a summary of the grounds for each opinion. A party may also
discover facts known or opinions held by an expert consulted by another
party in anticipation of litigation but not expected to be called as a
witness upon a showing of exceptional circumstances making it
impracticable for the party seeking discovery to obtain such facts or
opinions by other means.
(f) Failure to comply. If a party fails to comply with any provision
of this section, including any PPIP, 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;
[[Page 32]]
(2) Rule that the matter or matters covered by the order or subpoena
are established adversely to the party;
(3) Rule that the party may not introduce into evidence or otherwise
rely upon, in support of any claim or defense, testimony by such party,
officer, or agent, or the documents or other evidence;
(4) Rule that the party may not be heard to object to introduction
and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence would have shown; or
(5) Strike part or all of a pleading (except a request for hearing),
a motion or other submission by the party, concerning the matter or
matters covered by the order or subpoena.
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 on any other party written notice
at least 15 days before the deposition would be taken (or 25 days if the
deposition is to be taken outside the United States). The notice must
state the name and address of each person to be examined, the time and
place where the examination would be held, the name 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
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(a).
(c) Alternative deposition methods. By order of the Judge, the
parties may use other methods of deposing parties or witnesses, such as
telephonic depositions or depositions upon written questions. Objections
to the form of written questions are waived unless made within 5 days of
service of the questions.
(d) Use of depositions at hearing. (1) At hearing, part or all of
any deposition, so far as admissible under 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.
(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 must be
signed by the party or attorney making them. Unless otherwise ordered,
answers and objections must be served on all parties within 20 days
after service of the interrogatories.
(c) Option to produce records. Where the answer to an interrogatory
may be ascertained from the records of the party upon whom the
interrogatory is served, it is sufficient to specify such records and
afford the party serving the interrogatories an opportunity to examine
them.
[[Page 33]]
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, 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 15
days before the scheduled hearing or deposition.
(c) Motions to quash. Any person to whom a subpoena is directed or
any party may move to quash or limit the subpoena within 10 days of its
service or on or before the time specified for compliance, whichever is
shorter. The Judge may quash or modify the subpoena.
(d) Enforcement. In case of disobedience to a subpoena, the
requesting party may request the U.S. Department of Justice to invoke
the aid of any court of the United States in requiring the attendance
and testimony of witnesses and the production of documentary evidence.
Hearings
Sec. 904.250 Notice of time and place of hearing.
(a) The Judge shall be responsible for scheduling the hearing. With
due regard for the convenience of the parties, their representatives, or
witnesses, the Judge shall fix the time, place and date for the hearing
and shall notify all parties of the same. The Judge will promptly serve
on the parties notice of the time and place of hearing. The hearing will
not be held less than 20 days after service of the notice of hearing
unless the hearing is expedited as provided under paragraph (c) of this
section.
(b) A request for a change in the time, place, or date of the
hearing may be granted by the Judge.
(c) Upon the consent of each party to the administrative proceeding,
the Judge may order that one or more issues be heard on submissions or
affidavits if it appears that such issues may be resolved by means of
written materials and that efficient disposition of those issues can be
made without an in-person hearing.
(d) At any time after commencement of an administrative proceeding,
any party may move to expedite the scheduling of the administrative
proceeding as provided in Sec. 904.209.
[[Page 34]]
Sec. 904.251 Evidence.
(a) In general. (1) At the hearing, every party has the right to
present oral or documentary evidence in support of its case or defense,
to submit rebuttal evidence, and to conduct such cross-examination as
may be required for a full and true disclosure of the facts. This
paragraph may not be interpreted to diminish the powers and duties of
the Judge under Sec. 904.204.
(2) All evidence that is relevant, material, reliable, and
probative, and not unduly repetitious or cumulative, is admissible at
the hearing. Formal rules of evidence do not necessarily apply to the
administrative proceedings, and hearsay evidence is not inadmissible as
such.
(3) In any case involving a charged violation of law in which the
respondent has admitted an allegation, evidence may be taken to
establish matters of aggravation or mitigation.
(b) Objections and offers of proof. (1) A party shall state the
grounds for objection to the admission or exclusion of evidence. Rulings
on all objections shall appear in the record. Only objections made
before the Judge may be raised on appeal.
(2) Whenever evidence is excluded from the record, the party
offering such evidence may make an offer of proof, which shall be
included in the record.
(c) Testimony. (1) Testimony may be received into evidence by the
following means:
(i) Oral presentation; and
(ii) Subject to the discretion of the Judge, written affidavit,
telephone, video or other electronic media.
(2) Regardless of form, all testimony shall be under oath or
affirmation requiring the witness to declare that the witness will
testify truthfully, and subject to cross examination.
(d) Exhibits and documents. (1) All exhibits shall be numbered and
marked with a designation identifying the sponsor. To prove the content
of an exhibit, the original writing, recording or photograph is required
except that a duplicate or copy is admissible to the same extent as an
original unless a genuine question is raised as to the authenticity of
the original or, given the circumstances, it would be unfair to admit
the duplicate in lieu of the original. The original is not required, and
other evidence of the contents of a writing, recording, or photograph is
admissible if the original is lost or destroyed, not obtainable, in the
possession of the opponent, or not closely related to a controlling
issue. Each exhibit offered in evidence or marked for identification
shall be filed and retained in the record of decision, unless the Judge
permits the substitution of copies for the original document.
(2) In addition to the requirements set forth in Sec.
904.240(a)(2), parties shall exchange all remaining exhibits that will
be offered at hearing prior to the beginning of the hearing, except for
good cause or as otherwise directed by the Judge. Exhibits that are not
exchanged as required may be denied admission into evidence. This
requirement does not apply to demonstrative evidence.
(e) Physical evidence. (1) Photographs or videos or other electronic
media may be substituted for physical evidence at the discretion of the
Judge.
(2) Except upon the Judge's order, or upon request by a party,
physical evidence will be retained after the hearing by the Agency.
(f) Stipulations. The parties may, by written stipulation at any
stage of the administrative proceeding or orally at the hearing, agree
upon any matters. Stipulations may be received in evidence before or
during the hearing and, when received in evidence, shall be binding on
the parties to the stipulation.
(g) Official notice. The Judge may take official notice of such
matters as might be judicially noticed by the courts or of other facts
within the specialized knowledge of the agency as an expert body. Where
a decision or part thereof rests on official notice of a material fact
not appearing in the evidence in the record, the fact of official notice
shall be so stated in the decision, and any party, upon timely request,
shall be afforded an opportunity to show the contrary.
(h) Confidential and sensitive information. (1) The Judge may limit
introduction of evidence or issue protective orders that are required to
prevent undue disclosure of classified, confidential, or
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sensitive matters, which include, but are not limited to, matters of a
national security, business, personal, or proprietary nature. Where the
Judge determines that information in documents containing classified,
confidential, or sensitive matters should be made available to another
party, the Judge may direct the offering party to prepare an
unclassified or non-sensitive summary or extract of the original. The
summary or extract may be admitted as evidence in the record.
(2) If the Judge determines that the procedure described in
paragraph (h)(1) of this section is inadequate and that classified or
otherwise sensitive matters must form part of the record in order to
avoid prejudice to a party, the Judge may advise the parties and provide
opportunity for arrangements to permit a party or representative to have
access to such matters.
(i) Foreign law. (1) 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.
(2) Exhibits in a foreign language must be translated into English
before such exhibits are offered into evidence. Copies of both the
untranslated and translated versions of the proposed exhibits, along
with the name and qualifications of the translator, must be served on
the opposing party at least 10 days prior to the hearing unless the
parties otherwise agree.
Sec. 904.252 Witnesses.
(a) Fees. Witnesses, other than employees of a Federal agency,
summoned in an administrative proceeding, including discovery, shall
receive the same fees and mileage as witnesses in the courts of the
United States.
(b) Witness counsel. Any witness not a party may have personal
counsel to advise him or her as to his or her rights, but such counsel
may not otherwise participate in the hearing.
(c) Witness exclusion. Witnesses who are not parties may be excluded
from the hearing room prior to the taking of their testimony. An
authorized officer is considered a party for the purposes of this
subsection.
(d) Oath or affirmation. Witnesses shall testify under oath or
affirmation requiring the witness to declare that the witness will
testify truthfully.
(e) Failure or refusal to testify. If a witness fails or refuses to
testify, the failure or refusal to answer any question found by the
Judge to be proper may be grounds for striking all or part of the
testimony given by the witness, or any other action deemed appropriate
by the Judge.
(f) Testimony in a foreign language. If a witness is expected to
testify in a language other than the English language, the party
sponsoring the witness must 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 should be court certified under 28 U.S.C. 1827.
Sec. 904.253 Closing of record.
At the conclusion of the hearing, the evidentiary record shall be
closed unless the Judge directs otherwise. Once the record is closed, no
additional evidence shall be accepted except upon a showing that the
evidence is material and that there was good cause for failure to
produce it in a timely fashion. The Judge shall reflect in the record,
however, any approved correction to the transcript.
Sec. 904.254 Interlocutory review.
(a) Application for interlocutory review shall be made to the Judge.
The application shall not be certified to the Administrator except when
the Judge determines that:
(1) The ruling involves a dispositive question of law or policy
about which there is substantial ground for difference of opinion; or
(2) An immediate ruling will materially advance the completion of
the proceeding; or
(3) The denial of an immediate ruling will cause irreparable harm to
a party or the public.
(b) Any application for interlocutory review shall:
(1) Be filed with the Judge within 30 days after the Judge's ruling;
[[Page 36]]
(2) Designate the ruling or part thereof from which appeal is being
taken;
(3) Set forth the ground on which the appeal lies; and
(4) Present the points of fact and law relied upon in support of the
position taken.
(c) Any party that opposes the application may file a response
within 20 days after service of the application.
(d) The certification to the Administrator by the Judge shall stay
proceedings before the Judge until the matter under interlocutory review
is decided.
Sec. 904.255 Ex parte communications.
(a) Except to the extent required for disposition of ex parte
matters as authorized by law, the Judge may not consult a person or
party on any matter relevant to the merits of the administrative
proceeding, unless there has been notice and opportunity for all parties
to participate.
(b) Except to the extent required for the disposition of ex parte
matters as authorized by law:
(1) No interested person outside the Agency shall make or knowingly
cause to be made to the Judge, the Administrator, or any Agency employee
who is or may reasonably be expected to be involved in the decisional
process of the administrative proceeding an ex parte communication
relevant to the merits of the adjudication; and
(2) Neither the Administrator, the Judge, nor any Agency employee
who is or may reasonably be expected to be involved in the decisional
process of the administrative proceeding, shall make or knowingly cause
to be made to any interested person outside the agency an ex parte
communication relevant to the merits of the administrative proceeding.
(c) The Administrator, the Judge, or any Agency employee who is or
may reasonably be expected to be involved in the decisional process who
receives, makes, or knowingly causes to be made a communication
prohibited by this rule shall place in the record of decision:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (c)(1) and
(c)(2) of this section.
(d)(1) Paragraphs (a), (b) and (c) of this section do not apply to
communications concerning national defense or foreign policy matters.
Such ex parte communications to or from an Agency employee on national
defense or foreign policy matters, or from employees of the U.S.
Government involving intergovernmental negotiations, are allowed if the
communicator's position with respect to those matters cannot otherwise
be fairly presented for reasons of foreign policy or national defense.
(2) Ex parte communications subject to this paragraph will be made a
part of the record to the extent that they do not include information
classified under an Executive order. Classified information will be
included in a classified portion of the record that will be available
for review only in accordance with applicable law.
(e) Upon receipt of a communication made, or knowingly caused to be
made, by a party in violation of this section the Judge may, to the
extent consistent with the interests of justice, national security, the
policy of underlying statutes, require the party to show cause why its
claim or interest in the adjudication should not be dismissed, denied,
disregarded, or otherwise adversely affected by reason of such
violation.
(f) The prohibitions of this rule shall apply beginning after
issuance of a NOVA, NOPS, NIDP or any other notice and until a final
administrative decision is rendered, but in no event shall they begin to
apply later than the time at which an administrative proceeding is
noticed for hearing unless the person responsible for the communication
has knowledge that it will be noticed, in which case the prohibitions
shall apply beginning at the time of her/his acquisition of such
knowledge.
Post-Hearing
Sec. 904.260 Recordation of hearing.
(a) All hearings shall be recorded.
[[Page 37]]
(b) The official transcript of testimony taken, together with any
exhibits, briefs, or memoranda of law filed therewith, will be filed
with the ALJ Docketing Center. Transcripts of testimony will be
available in any hearing and will be supplied to the parties at the cost
of the Agency.
(c) The Judge may determine whether ``ordinary copy'', ``daily
copy'', or other copy (as those terms are defined by contract) will be
necessary and required for the proper conduct of the administrative
proceeding.
Sec. 904.261 Post-hearing briefs.
(a) The parties may file post-hearing briefs that include proposed
findings of fact and conclusions of law within 30 days from service of
the hearing transcript. Reply briefs may be submitted within 15 days
after service of the proposed findings and conclusions to which they
respond.
(b) The Judge, in his or her discretion, may establish a different
date for filing either initial briefs or reply briefs with the court.
(c) In cases involving few parties, limited issues, and short
hearings, the Judge may require or a party may request that any proposed
findings and conclusions and reasons in support be presented orally at
the close of a hearing. In granting such cases, the Judge will advise
the parties in advance of hearing.
Decision
Sec. 904.270 Record of decision.
(a) The exclusive record of decision consists of the official
transcript of testimony and administrative proceedings; exhibits
admitted into evidence; briefs, pleadings, and other documents filed in
the administrative proceeding; and descriptions or copies of matters,
facts, or documents officially noticed in the administrative proceeding.
Any other exhibits and records of any ex parte communications will
accompany the record of decision.
(b) The Judge will arrange for appropriate storage of the records of
any administrative proceeding, which place of storage need not
necessarily be located physically within the ALJ Docketing Center.
Sec. 904.271 Initial 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 bases therefor, on
all material issues of fact, law, or discretion presented on the record;
(2) An order as to the final disposition of the case, including any
appropriate ruling, order, sanction, relief, or denial thereof;
(3) The date upon which the decision will become effective; and
(4) A statement of further right to appeal.
(b) If the parties have presented oral proposed findings at the
hearing or have waived presentation of proposed findings, the Judge may
at the termination of the hearing announce the decision, subject to
later issuance of a written decision under paragraph (a) of this
section. In such cases, the Judge may direct the prevailing party to
prepare proposed findings, conclusions, and an order.
(c) The Judge will serve the written decision on each of the
parties, the Assistant General Counsel for Enforcement and Litigation,
and the Administrator by certified mail (return receipt requested),
facsimile, electronic transmission or third party commercial carrier to
an addressee's last known address or by personal delivery and upon
request will promptly certify to the Administrator the record, including
the original copy of the decision, as complete and accurate.
(d) An initial decision becomes effective as the final
administrative decision of NOAA 60 days after service, unless:
(1) Otherwise provided by statute or regulations;
(2) The Judge grants a petition for reconsideration under Sec.
904.272; or
(3) A petition for discretionary review is filed or the
Administrator issues an order to review upon his/her own initiative
under Sec. 904.273.
[[Page 38]]
Sec. 904.272 Petition for reconsideration.
Unless an order or initial decision of the Judge specifically
provides otherwise, any party may file a petition for reconsideration of
an order or initial decision issued by the Judge. Such petitions must
state the matter claimed to have been erroneously decided, and the
alleged errors and relief sought must be specified with particularity.
Petitions must be filed within 20 days after the service of such order
or initial decision. The filing of a petition for reconsideration shall
operate as a stay of an order or initial decision or its effectiveness
date unless specifically so ordered by the Judge. Within 15 days after
the petition is filed, any party to the administrative proceeding may
file an answer in support or in opposition.
Sec. 904.273 Administrative review of decision.
(a) Subject to the requirements of this section, any party who
wishes to seek review of an initial decision of a Judge must petition
for review of the initial decision within 30 days after the date the
decision is served. The petition must be served on the Administrator by
registered or certified mail, return receipt requested at the following
address: Administrator, National Oceanic and Atmospheric Administration,
Department of Commerce, Room 5128, 14th Street and Constitution Avenue,
NW., Washington, DC 20230. Copies of the petition for review, and all
other documents and materials required in paragraph (d) of this section,
must be served on all parties and the Assistant General Counsel for
Enforcement and Litigation at the following address: Assistant General
Counsel for Enforcement and Litigation, National Oceanic and Atmospheric
Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910.
(b) The Administrator may elect to issue an order to review the
initial decision without petition and may affirm, reverse, modify or
remand the Judge's initial decision. Any such order must be issued
within 60 days after the date the initial decision is served.
(c) Review by the Administrator of an initial decision is
discretionary and is not a matter of right. If a party files a timely
petition for discretionary review, or review is timely undertaken on the
Administrator's own initiative, the effectiveness of the initial
decision is stayed until further order of the Administrator or until the
initial decision becomes final pursuant to paragraph (h) of this
section.
(d) A petition for review must comply with the following
requirements regarding format and content:
(1) The petition must include a concise statement of the case, which
must contain a statement of facts relevant to the issues submitted for
review, and a summary of the argument, which must contain a succinct,
clear and accurate statement of the arguments made in the body of the
petition;
(2) The petition must set forth, in detail, specific objections to
the initial decision, the bases for review, and the relief requested;
(3) Each issue raised in the petition must be separately numbered,
concisely stated, and supported by detailed citations to specific pages
in the record, and to statutes, regulations, and principal authorities.
Petitions may not refer to or incorporate by reference entire documents
or transcripts;
(4) A copy of the Judge's initial decision must be attached to the
petition;
(5) Copies of all cited portions of the record must be attached to
the petition;
(6) A petition, exclusive of attachments and authorities, must not
exceed 20 pages in length and must be in the form articulated in section
904.206(b); and
(7) Issues of fact or law not argued before the Judge may not be
raised in the petition unless such issues were raised for the first time
in the Judge's initial decision, or could not reasonably have been
foreseen and raised by the parties during the hearing. The Administrator
will not consider new or additional evidence that is not a part of the
record before the Judge.
(e) The Administrator may deny a petition for review that is
untimely or fails to comply with the format and content requirements in
paragraph (d) of this section without further review.
(f) No oral argument on petitions for discretionary review will be
allowed.
[[Page 39]]
(g) Within 30 days after service of a petition for discretionary
review, any party may file and serve an answer in support or in
opposition. An answer must comport with the format and content
requirements in paragraphs (d)(5) through (d)(7) of this section and set
forth detailed responses to the specific objections, bases for review
and relief requested in the petition. No further replies are allowed,
unless requested by the Administrator.
(h) If the Administrator has taken no action in response to the
petition within 120 days after the petition is served, said petition
shall be deemed denied and the Judge's initial decision shall become the
final agency decision with an effective date 150 days after the petition
is served.
(i) If the Administrator issues an order denying discretionary
review, the order will be served on all parties 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 agency decision. The Administrator need not give reasons for
denying review.
(j) If the Administrator grants discretionary review or elects to
review the initial decision without petition, the Administrator will
issue an order to that effect. Such order may identify issues to be
briefed and a briefing schedule. Such issues may include one or more of
the issues raised in the petition for review and any other matters the
Administrator wishes to review. Only those issues identified in the
order may be argued in any briefs permitted under the order. The
Administrator may choose to not order any additional briefing, and may
instead make a final determination based on any petitions for review,
any responses and the existing record.
(k) If the Administrator grants or elects to take discretionary
review, and after expiration of the period for filing any additional
briefs under paragraph (j) of this section, the Administrator will
render a written decision on the issues under review. The Administrator
will 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, and is a final agency action
for purposes of judicial review; except that an Administrator's decision
to remand the initial decision to the Judge is not final agency action.
(l) An initial decision shall not be subject to judicial review
unless:
(1) The party seeking judicial review has exhausted its opportunity
for administrative review by filing a petition for review with the
Administrator in compliance with this section, and
(2) The Administrator has issued a final ruling on the petition that
constitutes final agency action under paragraph (k) of this section or
the Judge's initial decision has become the final agency decision under
paragraph (h) of this section.
(m) For purposes of any subsequent judicial review of the agency
decision, any issues that are not identified in any petition for review,
in any answer in support or opposition, by the Administrator, or in any
modifications to the initial decision are waived.
(n) If an action is filed for judicial review of a final agency
decision, and the decision is vacated or remanded by a court, the
Administrator shall issue an order addressing further administrative
proceedings in the matter. Such order may include a remand to the Chief
Administrative Law Judge for further proceedings consistent with the
judicial decision, or further briefing before the Administrator on any
issues the Administrator deems appropriate.
Subpart D_Permit Sanctions and Denials
General
Sec. 904.300 Scope and applicability.
(a) This subpart sets forth 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. Nothing in this
subpart
[[Page 40]]
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 of this part 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.
Sec. 904.301 Bases for permit 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
include but are not limited to the following:
(1) The commission of any violation 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;
(3) The failure to pay a criminal fine imposed or to satisfy any
other liability incurred in a judicial proceeding under any of the
statutes administered by NOAA; or
(4) The failure to comply with any term of a settlement agreement.
(b) A permit sanction may be imposed, or a permit denied, under this
subpart with respect to the particular permit pertaining to the
violation or nonpayment, and may also be applied to any NOAA permit held
or sought by the permit holder or successor in interest to the permit,
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 of Country Y's vessels that they may not fish in the
Exclusive Economic Zone with Captain X aboard. (See Sec. 904.320(c)).
(c) A permit sanction may not be extinguished by sale or transfer. A
vessel's permit sanction is not extinguished by sale or transfer of the
vessel, nor by dissolution or reincorporation of a vessel owner
corporation, and shall remain with the vessel until lifted by NOAA.
Sec. 904.302 Notice of permit sanction (NOPS).
(a) A NOPS will be served on the permit holder as provided in Sec.
904.3. 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 permit sanction to be imposed, the
bases for the permit sanction, and any opportunity for a hearing. It
will state the effective date of the permit sanction, which will
ordinarily not be earlier than 30 days after the date of receipt of the
NOPS (see Sec. 904.322).
(c) Upon demand by an authorized enforcement officer, a permit
holder must surrender a permit against which a permit sanction has taken
effect. The effectiveness of the permit sanction, however, does not
depend on surrender of the permit.
Sec. 904.303 Notice of intent to deny permit (NIDP).
(a) NOAA may issue a NIDP if the permit applicant has been charged
with a violation of a statute, regulation, or permit administered by
NOAA, for failure to pay a civil penalty or criminal fine, or for
failure to comply with any term of a settlement agreement.
(b) The NIDP will set forth the basis for its issuance and any
opportunity
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for a hearing, and will be served in accordance with Sec. 904.3.
(c) NOAA will not refund any fee(s) submitted with a permit
application if a NIDP is issued.
(d) A NIDP may be issued in conjunction with or independent of a
NOPS. 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, as governed by Sec. 904.201.
(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 an
administrative or judicial proceeding, whether or not the permit holder
did participate, and whether or not such a hearing was held.
Sec. 904.305 Final administrative decision.
(a) If no request for hearing is timely filed as provided in Sec.
904.201(a), the NOPS or NIDP becomes effective as the final
administrative decision and order of NOAA 30 days after service of the
NOPS or NIDP or on the last day of any delay period granted.
(b) If a request for hearing is timely filed in accordance with
Sec. 904.201(a), the date of the final administrative decision is as
provided in subpart C of this part.
Permit Sanctions for Noncompliance
Sec. 904.310 Nature of permit sanctions.
(a) NOAA may suspend, modify, or deny 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 civil penalty, or has failed to comply with any term of a
settlement 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-Stevens 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 of the conditions in paragraph (a) of this section is
applicable.
Sec. 904.311 Compliance.
If the permit holder pays the criminal fine or civil penalty in full
or agrees to terms satisfactory to NOAA for payment:
(a) The suspension will not take effect;
(b) Any permit suspended under Sec. 904.310 will be reinstated by
order of NOAA; or
(c) Any application by the permit holder may be granted if the
permit holder is otherwise qualified to receive the permit.
Permit Sanction for Violations
Sec. 904.320 Nature of permit 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-Stevens
Fishery Conservation and
[[Page 42]]
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 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, a Judge may order
immediate suspension, modification, or withholding of a permit until a
decision is made on the action proposed in a NOPS or NIDP.
(b) The Judge will order interim action under paragraph (a) of this
section, only after finding that there exists probable cause to believe
that the violation charged in the NOPS or NIDP was committed. The
Judge's finding of probable cause, which will be summarized in the
order, may be made:
(1) After review of the factual basis of the alleged violation,
following an opportunity for the parties to submit their views (orally
or in writing, in the Judge's discretion); or
(2) By adoption of an equivalent finding of probable cause or an
admission in any administrative or judicial proceeding to which the
recipient of the NOPS or NIDP was a party, including, but not limited
to, a hearing to arrest or set bond for a vessel in a civil forfeiture
action or an arraignment or other hearing in a criminal action. Adoption
of a finding or admission under this paragraph may be made only after
the Judge reviews pertinent portions of the transcript or other records,
documents, or pleadings from the other proceeding.
(c) An order for interim action under paragraph (a) of this section
is unappealable and will remain in effect until a decision is made on
the NOPS or NIDP. Where such interim action has been taken, the Judge
will expedite any hearing requested under 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).
Sec. 904.401 Written warning as a prior violation.
A written warning may be used as a basis for dealing more severely
with a subsequent violation, including, but not limited to, a violation
of the same statute or a violation involving an activity that is related
to the prior violation.
Sec. 904.402 Procedures.
(a) Any person authorized to enforce the laws listed in Sec.
904.1(c) or Agency counsel may issue a written warning to a respondent
as provided in Sec. 904.3.
(b) The written warning will:
(1) State that it is a ``written warning'';
(2) State the factual and statutory or regulatory basis for its
issuance;
(3) Advise the respondent of its effect in the event of a future
violation; and
(4) Inform the respondent of the right of review and appeal under
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 respondent
previously committed a similar violation for which a written warning was
issued or other enforcement action was taken, NOAA may withdraw the
warning and commence other administrative or judicial proceedings.
Sec. 904.403 Review and appeal of a written warning.
(a) If a respondent receives a written warning from an authorized
officer, the respondent may seek review by Agency counsel. The request
for review must
[[Page 43]]
be in writing and must present the facts and circumstances that explain
or deny the violation described in the written warning. The request for
review must be filed at the NOAA Office of the Assistant General Counsel
for Enforcement and Litigation, 8484 Georgia Avenue, Suite 400, Silver
Spring, MD 20910, within 60 days of receipt of the written warning.
Agency counsel may, in his or her discretion, affirm, vacate, or modify
the written warning and will notify the respondent of his or her
determination. The Agency counsel's determination constitutes the final
agency action, unless it is appealed pursuant to paragraph (b) of this
section.
(b) If a respondent receives a written warning from Agency counsel,
or receives a determination from Agency counsel affirming a written
warning issued by an authorized officer, the respondent may appeal to
the NOAA Deputy General Counsel. The appeal must be filed at the NOAA
Office of the General Counsel, Herbert Hoover Office Building, 14th &
Constitution Avenue, NW., Washington, DC 20230, within 60 days of
receipt of the written warning issued by Agency counsel, or the
determination from Agency counsel affirming a written warning issued by
an authorized officer.
(1) An appeal from an Agency counsel issued written warning must be
in writing and must present the facts and circumstances that explain or
deny the violation described in the written warning.
(2) An appeal from an Agency counsel's determination affirming a
written warning issued by an authorized officer must be in writing and
include a copy of the Agency counsel's determination affirming the
written warning.
(c) The NOAA Deputy General Counsel may, in his or her discretion,
affirm, vacate, or modify the written warning and will notify the
respondent of the determination. The NOAA Deputy General Counsel's
determination constitutes the final agency action.
Subpart F_Seizure and Forfeiture Procedures
Sec. 904.500 Purpose and scope.
(a) This subpart sets forth procedures governing the release,
abandonment, forfeiture, remission of forfeiture, or return of seized
property (including property seized 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 of this part. 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.
Within 60 days from the date of the seizure, NOAA will serve the
Notice of Seizure as provided in Sec. 904.3 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. In cases where
the property is seized by a state or local law enforcement agency; a
Notice of Seizure will be given in the above manner within 90 days from
the date of the seizure. The Notice will describe the seized property
and state the time, place and reason for the seizure, including the
provisions of law alleged to have been violated. The Notice will inform
each interested party of his or her right to file a claim to the seized
property, and state a date by which a claim must be filed, which may not
be less than 35 days after service of the Notice. The Notice may be
combined with a Notice of the sale of perishable fish issued under Sec.
904.505. If a claim is filed the case will be referred promptly to the
U.S. Department of Justice for institution of judicial proceedings.
Sec. 904.502 Bonded release of seized property.
(a) As authorized by applicable statute, at any time after seizure
of any property, NOAA may, in its sole discretion, release any seized
property upon deposit with NOAA of the full value of the property or
such lesser amount as
[[Page 44]]
NOAA deems sufficient to protect the interests served by the applicable
statute. In addition, NOAA may, in its sole discretion, accept a bond or
other security in place of fish, wildlife, or other property seized. The
bond will contain such conditions as NOAA deems appropriate.
(b) Property may be released under this section only if possession
thereof will not violate or frustrate the purpose or policy of any
applicable law or regulation. Property that will not be released
includes, but is not limited to:
(1) Property in which NOAA is not satisfied that the requester has a
substantial interest;
(2) Property whose entry into the commerce of the United States is
prohibited;
(3) Live animals, except in the interest of the animals' welfare; or
(4) Property whose release appears to NOAA not to be in the best
interest of the United States or serve the purposes of the applicable
statute.
(c) If NOAA grants the request, the amount paid by the requester
will be deposited in a NOAA expense account. The amount so deposited
will for all purposes be considered to represent the property seized and
subject to forfeiture, and payment of the amount by requester
constitutes a waiver by requester of any claim rising from the seizure
and custody of the property. NOAA will maintain the money so deposited
pending further order of NOAA, order of a court, or disposition by
applicable administrative proceedings.
(d) A request for release need not be in any particular form, but
must set forth the following:
(1) A description of the property seized;
(2) The date and place of the seizure;
(3) The requester's interest in the property, supported as
appropriate by bills of sale, contracts, mortgages, or other
satisfactory evidence;
(4) The facts and circumstances relied upon by the requester to
justify the remission or mitigation;
(5) An offer of payment to protect the United States' interest that
requester makes in return for release;
(6) The signature of the requester, his or her attorney, or other
authorized agent; and
(7) A request to defer administrative or judicial forfeiture
proceedings until completion of all other related judicial or
administrative proceedings (including any associated civil penalty or
permit sanction proceedings).
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 $500,000 or less, and
that is subject to administrative forfeiture under the applicable
statute. This section does not apply to conveyances seized in connection
with criminal proceedings.
(b) Procedure. (1) 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, U.S.
District Court, or the U.S. Customs House nearest the place of seizure,
with the date of posting indicated on the Notice. In addition, a
reasonable effort will be made to serve the Notice, as provided in Sec.
904.3, on each person whose identity, address and interest in the
property are known or easily ascertainable.
(2) The Notice of Proposed Forfeiture will:
(i) Describe the seized property, including any applicable
registration or serial numbers;
[[Page 45]]
(ii) State the time, place and reason for the seizure, including the
provisions of law allegedly violated; and
(iii) Describe the rights of an interested person to file a claim to
the property (including the right to petition to remit or mitigate the
forfeiture).
(3)(i) 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 30 days of the date the final
Notice was published or posted. The claim must state the claimant's
interest in the property.
(ii) Filing a claim does not entitle the claimant to possession of
the property. However, it does stop administrative forfeiture
proceedings.
(iii) If the claim is timely filed in accordance with this section,
NOAA will refer the matter to the U.S. Department of Justice to
institute forfeiture proceedings in the appropriate U.S. District Court.
(4) If a claim is not filed within 30 days of the date the final
Notice is published or posted in accordance with this section, NOAA will
declare the property forfeited. The Declaration of Forfeiture will be in
writing and will be served as provided in Sec. 904.3, on each person
whose identity and address and prior interest in the seized property are
known or easily ascertainable. The Declaration will describe the
property and state the time, place, and reason for its seizure,
including the provisions of law violated. The Declaration will identify
the Notice of Proposed Forfeiture, describing the dates and manner of
publication of the Notice and any efforts made to serve the Notice as
provided in Sec. 904.3. The Declaration will state that in response to
the Notice a proper claim was not timely received by the proper office
from any claimant, and that therefore all potential claimants are deemed
to admit the truth of the allegations of the Notice. The Declaration
shall conclude with an order of condemnation and forfeiture of the
property to the United States for disposition according to law. All
forfeited property will be subject to disposition as authorized by law
and regulations of NOAA.
(5) If the appraised value of the property is more than $500,000, or
a timely and satisfactory claim for property appraised at $500,000 or
less is submitted to NOAA, the matter will be referred to the U.S.
Department of Justice to institute in rem proceedings in the appropriate
U.S. District Court.
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 as provided under Sec. 904.3,
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 same manner as the seized fish would have been,
including an action in rem for the forfeiture of the proceeds. Pending
disposition of such proceedings, the proceeds will, as appropriate,
either be deposited in a NOAA suspense account or submitted to the
appropriate court.
(e) Seizure and sale of fish is without prejudice to any other
remedy or sanction authorized by law.
Sec. 904.506 Remission of forfeiture and restoration of proceeds of sale.
(a) Application of this section. (1) This section establishes
procedures for filing with NOAA a petition for relief from forfeitures
incurred, or alleged to have been incurred, and from potential
forfeiture of seized property, under any
[[Page 46]]
statute administered by NOAA that authorizes the remission or mitigation
of forfeitures.
(2) Although NOAA may properly consider a petition for remission or
mitigation of forfeiture and restoration of proceeds of sale along with
other consequences of a violation, the remission or mitigation of a
forfeiture and restoration of proceeds is not dispositive of any
criminal charge filed, civil penalty assessed, or permit sanction
proposed, unless NOAA expressly so states. Remission or mitigation of
forfeiture and restoration of proceeds is in the nature of executive
clemency and is granted in the sole discretion of NOAA only when
consistent with the purposes of the particular statute involved and this
section.
(3) If no petition is timely filed, or if the petition is denied,
prior to depositing the proceeds NOAA may use the proceeds of sale to
reimburse the U.S. Government for any costs that by law may be paid from
such sums.
(4) If NOAA remits the forfeiture and the forfeited property has not
been sold, then restoration may be conditioned upon payment of any
applicable costs as defined in this subpart.
(b) Petition for relief from forfeiture. (1) Any person claiming an
interest in any property which has been or may be administratively
forfeited under the provisions of this section may, at any time after
seizure of the property, but no later than 90 days after the date of
forfeiture, petition the Assistant General Counsel for Enforcement and
Litigation, NOAA/GCEL, 8484 Georgia Avenue, Suite 400, Silver Spring,
Maryland 20910, for a remission or mitigation of the forfeiture and
restoration of the proceeds of such sale, or such part thereof as may be
claimed by the petitioner.
(2) The petition need not be in any particular form, but must set
forth the following:
(i) A description of the property seized;
(ii) The date and place of the seizure;
(iii) The petitioner's interest in the property, supported as
appropriate by bills of sale, contracts, mortgages, or other
satisfactory evidence;
(iv) The facts and circumstances relied upon by the petitioner to
justify the remission or mitigation of forfeiture and restoration of
proceeds. If the claim is made after the property is forfeited, the
petitioner must provide satisfactory proof that the petitioner did not
know of the seizure prior to the declaration or condemnation of
forfeiture, was in such circumstances as prevented him or her from
knowing of the same, and that such forfeiture was incurred without any
willful negligence or intention to violate the applicable statute on the
part of the petitioner; and
(v) The signature of the petitioner, his or her attorney, or other
authorized agent.
(3) NOAA will not consider a petition for remission or mitigation of
forfeiture and restoration of proceeds while a forfeiture proceeding is
pending in Federal court. Once such a case is referred to the U.S.
Department of Justice for institution of judicial proceedings, and until
the proceedings are completed, any petition received by NOAA will be
forwarded to the U.S. Department of Justice for consideration.
(4) A false statement in a petition will subject petitioner to
prosecution under 18 U.S.C. 1001.
(c) Investigation. NOAA will investigate the facts and circumstances
shown by the petition and seizure, and may in this respect appoint an
investigator to examine the facts and prepare a report of investigation.
(d) Determination of petition. (1) After investigation under
paragraph (c) of this section, NOAA will make a determination on the
matter and notify the petitioner. NOAA may remit or mitigate the
forfeiture, on such terms and conditions as are deemed reasonable and
just under the applicable statute and the circumstances.
(2) Unless NOAA determines no valid purpose would be served, NOAA
will condition a determination to remit or mitigate a forfeiture upon
the petitioner's submission of an agreement, in a form satisfactory to
NOAA, to hold the United States and its officers or agents harmless from
any and all claims based on loss of or damage to the seized property or
that might result from grant of remission or mitigation and restoration
of proceeds. If the petitioner is not the beneficial owner
[[Page 47]]
of the property, or if there are others with a proprietary interest in
the property, NOAA may require the petitioner to submit such an
agreement executed by the beneficial owner or other interested party.
NOAA may also require that the property be promptly exported from the
United States.
(e) Compliance with the determination. A determination by NOAA to
remit or mitigate the forfeiture and restore the proceeds upon stated
conditions, as upon payment of a specified amount, will be effective for
60 days after the date of the determination. If the petitioner does not
comply with the conditions within that period in a manner prescribed by
the determination, or make arrangements satisfactory to NOAA for later
compliance, the remission or mitigation and restoration of proceeds will
be void, and judicial or administrative forfeiture proceedings will be
instituted or resumed.
(f) Appropriated property. If forfeited property that is the subject
of a claim for restoration of proceeds has been appropriated for
official use, retention by the U.S. Government will be regarded as a
sale for the purposes of this section.
Sec. 904.507 Recovery of certain storage costs.
If any fish, wildlife, or evidentiary property is seized and
forfeited under the Endangered Species Act, 16 U.S.C. 1531 through 1543,
any person whose act or omission was the basis for the seizure may be
charged a reasonable fee for expenses to the United States connected
with the transfer, board, handling or storage of such property. If any
fish or wildlife is seized in connection with a violation of the Lacey
Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is
seized in connection with a violation of the Magnuson-Stevens Fishery
Conservation and Management Act, 16 U.S.C. 1801 through 1882, any person
convicted thereof, or assessed a civil penalty therefor, may be assessed
a reasonable fee for expenses of the United States connected with the
storage, care and maintenance of such property. Within a reasonable time
after forfeiture, NOAA will send to such person by registered or
certified mail, return receipt requested, a bill for such fee. The bill
will contain an itemized statement of the applicable costs, and
instructions on the time and manner of payment. Payment must be made in
accordance with the bill. If the recipient of the bill objects to the
reasonableness of the costs assessed he or she may, within 30 days of
receipt, file written objections with NOAA at the address stated in the
bill. NOAA will promptly review the written objections and within 30
days mail the final determination to the party who filed them. NOAA's
determination will constitute final agency action on the matter.
Sec. 904.508 Voluntary forfeiture by abandonment.
(a) The owner of seized property may voluntarily forfeit all right,
title, and interest in the property by abandoning it to NOAA. Voluntary
forfeiture by abandonment under this section may be accomplished by
various means, including, but not limited to: expressly waiving any
claim to the property by voluntarily relinquishing any right, title, and
interest by written agreement or otherwise; or refusing or otherwise
avoiding delivery of returned property; or failing to respond within 90
days of service of any certified or registered notice regarding a return
of seized property issued under Sec. 904.510(b).
(b) Property will be declared finally forfeited by abandonment,
without recourse, upon a finding of abandonment by NOAA.
Sec. 904.509 Disposal of forfeited property.
(a) Delivery to Administrator. Upon forfeiture of any fish,
wildlife, parts or products thereof, or other property to the United
States, including the abandonment or waiver of any claim to any such
property, it will be delivered to NOAA for storage or disposal according
to the provisions of this section.
(b) Disposal. Disposal may be accomplished by one of the following
means unless the property is the subject of a petition for remission or
mitigation of forfeiture or disposed of by court order:
(1) Return to the wild;
(2) Use by NOAA or transfer to another government agency for
official use;
[[Page 48]]
(3) Donation or loan;
(4) Sale; or
(5) Destruction.
(c) Purposes of disposal. Disposal procedures may be used to
alleviate overcrowding of evidence storage facilities; to avoid the
accumulation of seized property where disposal is not otherwise
accomplished by court order; to address the needs of governmental
agencies and other institutions and organizations for such property for
scientific, educational, and public display purposes; and for other
valid reasons. In no case will property be used for personal purposes,
either by loan recipients or government personnel.
(d) Disposal of evidence. Property that is evidence may be disposed
of only after authorization by the NOAA Office of General Counsel.
Disposal approval usually will not be given until the case involving the
evidence is closed, except that perishable property may be authorized
for disposal sooner.
(e) Loans--(1) To institutions. Property approved for disposal may
be loaned to institutions or organizations requesting such property for
scientific, educational, or public display purposes. Property will be
loaned only after execution of a loan agreement which provides, among
other things, that the loaned property will be used only for
noncommercial scientific, educational, or public display purposes, and
that it will remain the property of the U.S. Government, which may
demand its return at any time. Parties requesting the loan of property
must demonstrate the ability to provide adequate care and security for
the property. Loans may be made to responsible agencies of foreign
governments in accordance with the Convention on International Trade in
Endangered Species of Wild Fauna and Flora.
(2) To individuals. Property generally will not be loaned to
individuals not affiliated with an institution or organization unless it
is clear that the property will be used in a noncommercial manner, and
for scientific, educational, or public display purposes which are in the
public interest.
(3) Selection of loan recipients. Recipients of property will be
chosen so as to assure a wide distribution of the property throughout
the scientific, educational, public display and museum communities.
Other branches of NMFS, NOAA, the Department of Commerce, and other
governmental agencies will have the right of first refusal of any
property offered for disposal. The Administrator may solicit
applications, by publication of a notice in the Federal Register, from
qualified persons, institutions, and organizations who are interested in
obtaining the property being offered. Such notice will contain a
statement as to the availability of specific property for which
transferees are being sought, and instructions on how and where to make
application. Applications will be granted in the following order: other
offices of NMFS, NOAA, and the Department of Commerce; U.S. Fish and
Wildlife Service; other Federal agencies; other governmental agencies;
scientific, educational, or other public or private institutions; and
private individuals.
(4) Loan agreement. Property will be transferred under a loan
agreement executed by the Administrator and the borrower. Any attempt on
the part of the borrower to retransfer property, even to another
institution for related purposes, will violate and invalidate the loan
agreement, and entitle the United States to immediate repossession of
the property, unless the prior approval of the Administrator has been
obtained under Sec. 904.510(d)(5). Violation of the loan agreement may
also subject the violator to the civil penalties provided by the laws
governing possession and transfer of the property.
(5) Temporary reloans; documents to accompany property. Temporary
reloans by the borrower to another qualified borrower (as for temporary
exhibition) may be made if the Administrator is advised in advance by
the borrowers. Temporary loans for more than thirty days must be
approved in advance in writing by the Administrator. A copy of the
original loan agreement, and a copy of the written approval for reloan,
if any, must accompany the property whenever it is temporarily reloaned
or is shipped or transported across state or international boundaries.
(f) Sale. (1) Any fish, wildlife, parts or products thereof, and
other property which has been voluntarily forfeited by abandonment to
NOAA may be sold or
[[Page 49]]
offered for sale, with the exception of any species or property which is
otherwise prohibited from being sold at the time it is to be sold or
offered for sale.
(2) Property will be sold in accordance with current Federal
Property Management Regulations (41 CFR chapter 101) or U.S. Customs
laws and regulations, except that NOAA may:
(i) Sell at fair market value perishable fish pursuant to the
summary sales provisions of 15 CFR 904.505; and
(ii) Sell, destroy, or otherwise dispose of property for which it is
determined the expense of keeping it is disproportionate to the value
thereof.
(3) The proceeds of sale may be used to reimburse NOAA for any costs
which by law NOAA is authorized to recover or to pay any rewards which
by law may be paid from sums that NOAA receives.
(g) Destruction. (1) Property not otherwise disposed of may be
destroyed.
(2) Destruction will be accomplished in accordance with the
requirements of 41 CFR parts 101 through 145.
(3) When destroyed, the fact, manner, and date of destruction and
the type and quantity destroyed must be certified by the official
actually destroying the property.
(4) No duly authorized officer of NOAA shall be liable for the
destruction or other disposition of property made pursuant to this
section.
(h) Recordkeeping. A disposal form will be completed each time
property is disposed of pursuant to the policy and procedure established
herein, and will be retained in the case file for the property. These
forms will be available to the public.
Sec. 904.510 Return of seized property.
(a) Return. In cases where NOAA, in its sole discretion, determines
that forfeiture of seized property would not be in the best interest of
the U.S. Government, NOAA will make a reasonable attempt to determine
the party that the facts of record indicate has a predominant ownership
interest in the seized property and, provided such a determination can
be made, will arrange for return of the seized property to that party by
appropriate means.
(b) Notice. NOAA will serve a Notice of the Return of property as
provided by Sec. 904.3, to the owner, consignee, or other party the
facts of record indicate has an interest in the seized property. The
Notice will describe the seized property, state the time, place, and
reason for the seizure and return, and will identify the owner or
consignee, and if appropriate, the bailee of the seized property. The
Notice of the return also will state that the party to whom the property
is being returned is responsible for any distribution of the property to
any party who holds a valid claim, right, title or interest in receiving
the property, in whole or in part. The Notice also will provide that on
presentation of the Notice and proper identification, and the signing of
a receipt provided by NOAA, the seized property is authorized to be
released.
PART 905_USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED
BY VOLUNTARY FISHERY DATA COLLECTORS--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,
[[Page 50]]
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.
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 906_NATIONAL APPEALS OFFICE RULES OF PROCEDURE--Table of Contents
Sec.
906.1 Purpose and scope.
906.2 Definitions.
906.3 Requesting an appeal and agency record.
906.4 General filing requirements.
906.5 Service.
906.6 Ex parte communications.
906.7 Disqualification of appellate officer.
906.8 Scheduling and pre-hearing conferences.
906.9 Exhibits.
906.10 Evidence.
906.11 Hearing.
906.12 Closing the evidentiary portion of the NAO case record.
906.13 Failure to appear.
906.14 Burden of proof.
906.15 Decisions.
906.16 Reconsideration.
906.17 Review by the Regional Administrator.
[[Page 51]]
906.18 Final decision of the Department.
Authority: 16 U.S.C. 1801 et seq.; 16 U.S.C. 1374, 1375 and 1416; 16
U.S.C. 1540; 16 U.S.C. 773f; 16 U.S.C. 973f; 16 U.S.C. 1174; 16 U.S.C.
2437; 16 U.S.C. 4013; 16 U.S.C. 5507; 16 U.S.C. 7009; 16 U.S.C. 3637; 16
U.S.C. 5103 and 5106; 16 U.S.C. 5154 and 5158; 16 U.S.C. 6905, and; 16
U.S.C. 5010.
Source: 79 FR 7060, Feb. 6, 2014, unless otherwise noted.
Sec. 906.1 Purpose and scope.
(a) This part sets forth the procedures governing administrative
adjudications before the National Appeals Office (NAO).
(b) NAO will adjudicate appeals of initial administrative
determinations in limited access privilege programs developed under
section 303A of the Magnuson-Stevens Fishery Conservation and Management
Act (MSA) and approved after the effective date of these regulations.
Those appeals are informal proceedings.
(c) The procedures in this part may be incorporated by reference in
regulations other than those promulgated pursuant to section 303A of the
MSA.
(d) The Secretary of Commerce may request that NAO adjudicate
appeals in any matter in controversy that requires findings of fact and
conclusions of law, and other quasi-judicial matters that the Secretary
deems appropriate, consistent with existing regulations. The Secretary
will provide notice to potential appellants and to any affected party in
these other matters through regulations or actual notice.
(e) The procedures in this part may not be used to seek review of
the validity of statutes or regulations.
Sec. 906.2 Definitions.
As used in this part:
Agency record means all material and information, including
electronic, the office that issued the initial administrative
determination relied on or considered in reaching its initial
administrative determination, or which otherwise is related to the
initial administrative determination.
Appeal means an appellant's petition to appeal an initial
administrative determination and all administrative processes of the
National Appeals Office related thereto.
Appellant means a person who is the named recipient of an initial
administrative determination and appeals it to the National Appeals
Office.
Appellate officer means an individual designated by the Chief of the
National Appeals Office to adjudicate the appeal. The term may include
the Chief of the National Appeals Office.
Day means calendar day unless otherwise specified by the Chief of
the National Appeals Office. When computing any time period specified
under these rules, count every day, including intermediate Saturdays,
Sundays, and legal holidays. If the date that ordinarily would be the
last day for filing with NAO falls on a Saturday, Sunday, or Federal
holiday, or a day NAO is closed, the filing period will include the
first NAO workday after that date.
Department or DOC means the Department of Commerce.
Initial Administrative Determination or IAD means a determination
made by an official of the National Marine Fisheries Service that
directly and adversely affects a person's ability to hold, acquire, use,
or be issued a limited access privilege. The term also includes
determinations issued pursuant to other federal law, for which review
has been assigned to the National Appeals Office by the Secretary.
NAO means the National Appeals Office, an adjudicatory body within
the Office of Management and Budget, National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of Commerce.
The term generally means all NAO personnel, including appellate
officers.
NAO case record means the agency record and all additional documents
and other materials related to an appeal and maintained by NAO in a case
file.
NMFS means the National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of Commerce.
National Oceanic and Atmospheric Administration or NOAA means the
National Oceanic and Atmospheric Administration, Department of Commerce.
Party means a person who files a petition for appeal with NAO and an
office
[[Page 52]]
that issued the IAD if that office participates in the NAO appeal.
Regional Administrator means the administrator of one of five
regions of NMFS: Northeast, Southeast, West Coast, Alaska, or Pacific
Islands. The term also includes an official with similar authority
within the DOC, such as the Director of NMFS Office of Sustainable
Fisheries.
Representative means an individual properly authorized by an
appellant in writing to act for the appellant in conjunction with an
appeal pending in NAO. The representative does not need to be a licensed
attorney.
Sec. 906.3 Requesting an appeal and agency record.
(a) Who may file. Any person who is the named recipient of an
initial administrative determination.
(b) Petition to appeal. (1) To request an appeal, a person shall
submit a written petition of appeal to NAO.
(2) The petition shall include a copy of the initial administrative
determination the person wishes to appeal.
(3) In the petition, the person shall state how the initial
administrative determination directly and adversely affects him or her,
why he or she believes the initial administrative determination is
inconsistent with the law and regulations governing the initial
administrative determination, and whether he or she requests a hearing
or prefers that an appellate officer make a decision based on the NAO
case record and without a hearing.
(i) Arguments not raised by the person in his or her petition to
appeal will be deemed waived unless NAO permits amendments to the
petition based on good cause for not raising the arguments in the
original petition.
(ii) The petition may include additional documentation in support of
the appeal.
(4) If a person requests a hearing, the written request must include
a concise statement raising genuine and substantial issues of a material
fact or law that cannot be resolved based on the documentary evidence.
(5) In the petition, a person shall state whether the person has a
representative, and if so, the name, address, and telephone number for
the representative.
(c) Address of record. In the petition, the person shall identify
the address of record. Documents directed to the appellant will be
mailed to the address of record, unless the appellant provides NAO and
other parties with any changes to his or her address in writing.
(1) The address of record may include a representative's address.
(2) NAO bears no responsibility if the appellant or his or her
representative does not receive documents because appellant or his or
her representative changed his or her address and did not notify NAO.
(3) NAO bears no responsibility if the appellant or his or her
representative fails to retrieve documents upon notification from the
United States Postal Service or commercial carrier.
(4) NAO will presume that documents addressed to an address of
record and properly mailed or given to a commercial carrier for delivery
are received.
(d) Place of filing. The petition must be transmitted via facsimile.
The facsimile number is: 301-713-2384. If the person filing the petition
does not have access to a fax machine, he or she may file the petition
by mail or commercial carrier addressed to Chief, National Appeals
Office, 1315 East-West Hwy., Silver Spring, MD 20910.
(e) Time limitations. (1) A petition must be filed within 45 days
after the date the initial administrative determination is issued unless
a shorter or longer filing timeframe is explicitly specified in the
regulations governing the initial administrative determination.
(2) A person may not request an extension of time to file a petition
to appeal.
(f) Agency record. (1) Within 20 days of receipt of the copy of the
petition to appeal, the office that issued the initial administrative
determination that is the subject of the appeal shall transmit the
agency record to NAO.
(2) The office that issued the initial administrative determination
shall organize the documents of the agency record in chronological
order. Pages attached to a primary submission shall remain with the
primary submission.
[[Page 53]]
(g) Agency participation in appeal. Within 20 days of receipt of the
copy of the petition to appeal, the office that issued the initial
administrative determination that is the subject of the appeal may
provide written notice to NAO that it will be a party to the appeal. An
office issuing the initial administrative determination is not required
to be a party.
Sec. 906.4 General filing requirements.
(a) Date of filing. Filing refers to providing documents to NAO.
(1) Except for the agency record required under Sec. 906.3(f), all
documents filed on behalf of an appellant or related to an appeal shall
be submitted to NAO via facsimile. The facsimile number is: 301-713-
2384. If the person filing does not have access to a fax machine, he or
she may file by regular mail or commercial carrier addressed to Chief,
National Appeals Office, 1315 East-West Hwy., Silver Spring, MD 20910.
(2) A document transmitted to NAO is considered filed upon receipt
of the entire submission by 5 p.m. Eastern Time at NAO.
(b) Copies. At the time of filing a submission to NAO, the filing
party shall serve a copy thereof on every other party, unless otherwise
provided for in these rules.
(c) Retention. All submissions to NAO become part of a NAO case
record.
(d) Extension of time. When a submission is required to be filed at
NAO by a deadline, a party may request, in writing, an extension of time
to file the submission, citing the specific reason(s) for the need for
an extension. NAO may grant one extension of up to 30 days if an
appellate officer determines the party has established good cause for an
extension of time, taking into account whether the party timely
requested the extension or the extent to which the party missed the
deadline.
Sec. 906.5 Service.
(a) Service refers to providing documents to parties to an appeal.
(1) Service of documents may be made by first class mail (postage
prepaid), facsimile, or commercial carrier, or by personal delivery to a
party's address of record.
(2) Service of documents will be considered effective upon the date
of postmark (or as otherwise shown for government-franked mail),
facsimile transmission, delivery to a commercial carrier, or upon
personal delivery.
(b) A party shall serve a copy of all documents to all other parties
and shall file a copy of all documents with NAO the same business day.
(c) NAO may serve documents by electronic mail.
Sec. 906.6 Ex parte communications.
(a) Ex parte communication means any oral or written communication
about the merits of a pending appeal between one party and the NAO with
respect to which reasonable prior notice to all parties is not given.
However, ex parte communication does not include inquiries regarding
procedures, scheduling, and status.
(b) Ex parte communication is not permissible unless all parties
have been given reasonable notice and an opportunity to participate in
the communication.
(c) If NAO receives an ex parte communication, NAO shall document
the communication and any responses thereto in the NAO case record. If
the ex parte communication was in writing, NAO shall include a copy of
the communication in the NAO case record. If the ex parte communication
was oral, NAO shall prepare a memorandum stating the substance of the
oral communication, and include the memorandum in the NAO case record.
NAO will provide copies of any such materials included in the NAO case
record under this paragraph to the parties.
(d) NAO may require a party to show cause why such party's claim or
interest in the appeal should not be dismissed, denied, disregarded, or
otherwise adversely affected because of an ex parte communication.
(e) NAO may suspend this section during an alternative dispute
resolution process established by regulation or agency policy.
(f) Communication with NAO, including appellate officers, concerning
procedures, scheduling, and status is permissible.
[[Page 54]]
Sec. 906.7 Disqualification of appellate officer.
(a) An appellate officer shall disqualify himself or herself if the
appellate officer has a perceived or actual conflict of interest, a
perceived or actual prejudice or bias, for other ethical reasons, or
based on principles found in the American Bar Association Model Code of
Judicial Conduct for Administrative Law Judges.
(b) Any party may request an appellate officer, at any time before
the filing of the appellate officer's decision, to withdraw on the
ground of personal bias or disqualification, by filing a written motion
with the appellate officer setting forth in detail the matters alleged
to constitute grounds for disqualification.
(c) The appellate officer, orally or in writing, shall grant or deny
the motion based on the American Bar Association Model Code of Judicial
Conduct for Federal Administrative Law Judges and other applicable law
or policy. If the motion is granted, the appellate officer will
disqualify himself or herself and withdraw from the proceeding. If the
motion is denied, the appellate officer will state the grounds for his
or her ruling and proceed with his or her review.
Sec. 906.8 Scheduling and pre-hearing conferences.
(a) NAO may convene a scheduling and/or pre-hearing conference if,
for example, an appellate officer in his or her discretion finds a
conference will materially advance the proceeding.
(b) NAO shall notify the parties in writing 10 days prior to a
conference unless the Chief of NAO orders a shorter period of time for
providing notice of conducting a conference. A party may request one
change in the scheduled pre-hearing date. In determining whether to
grant the request, NAO will consider whether the requesting party has
shown good cause for the change in date.
(c) In exercising his or her discretion whether to hold a scheduling
and/or pre-hearing conference, an appellate officer may consider:
(1) Settlement, if authorized under applicable law;
(2) Clarifying the issues under review;
(3) Stipulations;
(4) Hearing(s) date, time, and location;
(5) Identifying witnesses for the hearing(s);
(6) Development of the NAO case record, and;
(7) Other matters that may aid in the disposition of the
proceedings.
(d) Recording. NAO may record the conference.
(e) Format. At the discretion of the appellate officer, conferences
may be conducted by telephone, in person, or by teleconference or
similar electronic means.
(f) NAO may issue a written order showing the matters disposed of in
the conference and may include in the order other matters related to the
appeal.
Sec. 906.9 Exhibits.
(a) The parties shall mark all exhibits in consecutive order in
whole Arabic numbers and with a designation identifying the party
submitting the exhibit(s).
(b) Parties shall exchange all exhibits that will be offered at the
hearing at least 10 days before the hearing.
(c) Parties shall provide all exhibit(s) to NAO at least 5 days
before the hearing.
(d) NAO may modify the timeframe for exchanging or submitting
exhibits if an appellate officer determines good cause exists.
(e) NAO may deny the admission into evidence of exhibits that are
not marked and exchanged pursuant to this rule.
(f) Each exhibit offered in evidence or marked for identification
shall be filed and retained in the NAO case record.
Sec. 906.10 Evidence.
(a) The Federal Rules of Evidence do not apply to NAO proceedings.
(b) An appellate officer will decide whether to admit evidence into
the NAO case record.
(1) An appellate officer may exclude unduly repetitious, irrelevant,
and immaterial evidence. An appellate officer may also exclude evidence
to avoid undue prejudice, confusion of the issues, undue delay, waste of
time, or
[[Page 55]]
needless presentation of cumulative evidence.
(2) An appellate officer may consider hearsay evidence.
(c) Copies of documents may be offered as evidence, provided they
are of equal legibility and quality as the originals, and such copies
shall have the same force and effect as if they were originals. If an
appellate officer so directs, a party shall submit original documents to
the appellate officer.
(d) An appellate officer may take official notice of Federal or
State public records and of any matter of which courts may take judicial
notice.
(e) An appellate officer may request, and the program office that
issued the initial administrative determination in the case before the
appellate officer will provide, the interpretation(s) of the law made by
the program office and applied to the facts in the case.
Sec. 906.11 Hearing.
(a) Procedures. (1) An appellate officer in his or her discretion
may order a hearing taking into account the information provided by an
appellant pursuant to Sec. 906.3(b)(3) and whether an appellate officer
considers that a hearing will materially advance his or her evaluation
of the issues under appeal. In exercising his or her discretion, an
appellate officer may consider whether oral testimony is required to
resolve a material issue of fact, whether oral presentation is needed to
probe a party's position on a material issue of law, and whether a
hearing was held previously for the same appeal. If an appellate officer
determines that a hearing is not necessary, then the appellate officer
will base his or her decision on the NAO case record. In the absence of
a hearing an appellate officer may, at his or her discretion, permit the
parties to submit additional materials for consideration.
(2) If an appellate officer convenes a hearing, the hearing will be
conducted in the manner determined by NAO most likely to obtain the
facts relevant to the matter or matters at issue.
(3) NAO shall schedule the date, time and place for the hearing. NAO
will notify the parties in writing of the hearing date, time and place
at least 10 days prior to the hearing unless the Chief of NAO orders a
shorter period for providing notice or conducting the hearing. A party
can request one change in the scheduled hearing date. In determining
whether to grant the request, NAO will consider whether the requesting
party has shown good cause for the change in date.
(4) At the hearing, all testimony will be under oath or affirmation
administered by an appellate officer. In the event a party or a witness
refuses to be sworn or refuses to answer a question, an appellate
officer may state for the record any inference drawn from such refusal.
(5) An appellate officer may question the parties and the witnesses.
(6) An appellate officer will allow time for parties to present
argument, question witnesses and other parties, and introduce evidence
consistent with Sec. 906.10.
(7) Parties may not compel discovery or the testimony of any
witness.
(b) Recording. An appellate officer will record the hearing unless
the appellant consents to proceed without a recording.
(c) Format. At the discretion of NAO, hearings may be conducted by
telephone, in person, or by teleconference or similar electronic means.
Sec. 906.12 Closing the evidentiary portion of the NAO case record.
(a) At the conclusion of the NAO proceedings, an appellate officer
will establish the date upon which the evidentiary portion of the NAO
case record will close. Once an appellate officer closes the evidentiary
portion of the NAO case record, with or without a hearing, no further
submissions or argument will be accepted into the NAO case record.
(b) NAO in its discretion may reopen the evidentiary portion of the
NAO case record or request additional information from the parties at
any time prior to final agency action.
Sec. 906.13 Failure to appear.
If any party fails to appear at a pre-hearing conference or hearing
after proper notice, an appellate officer may:
(a) Dismiss the case, or;
(b) Deem the failure of a party to appear after proper notice a
waiver of any
[[Page 56]]
right to a hearing and consent to the making of a decision based on the
NAO case record.
Sec. 906.14 Burden of proof.
On issues of fact, the appellant bears the burden of proving he or
she should prevail by a preponderance of the evidence. Preponderance of
the evidence is the relevant evidence in the NAO case record, considered
as a whole, that shows that a contested fact is more likely to be true
than not true. Appellant has the obligation to obtain and present
evidence to support the claims in his or her petition.
Sec. 906.15 Decisions.
(a) After an appellate officer closes the evidentiary portion of the
NAO case record, NAO will issue a written decision that is based on the
NAO case record. In making a decision, NAO shall determine whether the
appellant has shown by a preponderance of the evidence that the initial
administrative determination is inconsistent with the law and
regulations governing the initial administrative determination. In
making a decision, NAO shall give deference to the reasonable
interpretation(s) of applicable ambiguous laws and regulations made by
the office issuing the initial administrative determination.
(b) NAO shall serve a copy of its decision upon the appellant and
the Regional Administrator. NAO will not provide the case record to the
Regional Administrator when issuing its decision.
Sec. 906.16 Reconsideration.
(a) Any party may file a motion for reconsideration of an NAO
decision issued under Sec. 906.15. The request must be filed with NAO
within 10 days after service of NAO's decision. A party shall not file
more than one motion for reconsideration of an NAO decision.
(b) The motion must be in writing and contain a detailed statement
of an error of fact or law material to the decision. The process of
reconsideration is not a forum for reiterating the appellant's
objections to the initial administrative determination.
(c) Arguments not raised by a party in his or her motion for
reconsideration of a decision will be deemed waived.
(d) In response to a motion for reconsideration, NAO will either:
(1) Reject the motion because it does not meet the criteria of
paragraph (a) or (b) of this section; or
(2) Issue a revised decision and serve a copy of its revised
decision upon the appellant and the Regional Administrator.
(e) At any time prior to notifying the Regional Administrator
pursuant to Sec. 906.17(a), the NAO may issue a revised decision to
make corrections and serve a copy of its revised decision upon the
appellant and the Regional Administrator.
Sec. 906.17 Review by the Regional Administrator.
(a) If NAO does not receive a timely motion for reconsideration
pursuant to Sec. 906.16(a), receives a timely motion and rejects it
pursuant to Sec. 906.16(d)(1), or issues a revised decision pursuant to
Sec. 906.16(d)(2) or (e), NAO will notify the Regional Administrator
and the appellant, and provide a copy of the case record for its
decision or revised decision to the Regional Administrator.
(b) In reviewing NAO's findings of fact, the Regional Administrator
may only consider the evidentiary record including arguments, claims,
evidence of record and other documents of record that were before NAO
when it rendered its decision or revised decision.
(c) The Regional Administrator may take the following action within
30 days of service of NAO's notification and receipt of the case record
under paragraph (a) of this section:
(1) Issue a written decision adopting, remanding, reversing, or
modifying NAO's decision or revised decision.
(2) Issue a stay for no more than 90 days to prevent NAO's decision
or revised decision from taking effect.
(d) The Regional Administrator must provide a written decision
explaining why an NAO decision or revised decision has been remanded,
reversed, or modified. Consistent with Sec. 906.18(b), the Regional
Administrator may, but does not need to, issue a written decision to
adopt an NAO decision or revised decision.
[[Page 57]]
(e) The Regional Administrator will serve a copy of any written
decision or stay on NAO and the appellant.
Sec. 906.18 Final decision of the Department.
(a) The Regional Administrator's written decision to adopt, reverse,
or modify an NAO decision or revised decision pursuant to Sec.
906.17(c) is the final decision of the Department for the purposes of
judicial review.
(b) If the Regional Administrator does not take action pursuant to
Sec. 906.17(c)(1), NAO's decision issued pursuant to Sec. 906.15(a) or
revised decision issued pursuant to Sec. 906.16(d)(2) or (e) becomes
the final decision of the Department for the purposes of judicial review
30 days after service of NAO's notification under Sec. 906.17(a), or
upon expiration of any stay issued by the Regional Administrator
pursuant to Sec. 906.17(c)(2).
(c) The office that issued the initial administrative determination
shall implement the final decision of the Department within 30 days of
service of the final decision issued pursuant to Sec. 906.18(a), or
within 30 days of the decision becoming final pursuant to Sec.
906.18(b), to the extent practicable.
PART 908_MAINTAINING REC-ORDS 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 of producing artificial changes in the composition, behavior,
or dynamics of the atmosphere. For example: Seeding generators, propane
devices, flares,
[[Page 58]]
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;
(ii) The name, affiliation, and address of the operator;
(4) The purpose of the project or activity;
[[Page 59]]
(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).
(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]
[[Page 60]]
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 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.
[[Page 61]]
(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:
(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
[[Page 62]]
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.
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
[[Page 63]]
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_MARINE DEBRIS--Table of Contents
Authority: 33 U.S.C. 1951-1958 (2006).
Sec. 909.1 Definition of marine debris for the purposes of the Marine
Debris Research, Prevention, and Reduction Act.
(a) Marine debris. For the purposes of the Marine Debris Research,
Prevention, and Reduction Act (33 U.S.C. 1951-1958 (2006)) only, marine
debris is defined as any persistent solid material that is manufactured
or processed and directly or indirectly, intentionally or
unintentionally, disposed of or abandoned into the marine environment or
the Great Lakes.
(b) NOAA and the Coast Guard have jointly promulgated the definition
of marine debris in this part. Coast Guard's regulation may be found in
33 CFR 151.3000.
[74 FR 45560, Sept. 3, 2009]
PART 911_POLICIES AND PROCEDURES CONCERNING USE OF THE NOAA SPACE-BASED
DATA COLLECTION SYSTEMS--Table of Contents
Sec.
911.1 Purpose.
911.2 Scope.
911.3 Definitions.
911.4 Use of the NOAA Data Collection Systems.
911.5 NOAA Data Collection Systems Use Agreements.
911.6 Treatment of data.
911.7 Continuation of the NOAA Data Collection Systems.
911.8 Technical requirements.
Appendix A to Part 911--Argos DCS Use Policy Diagram
Appendix B to Part 911--GOES DCS Use Policy Diagram
Authority: 15 U.S.C. 313, 49 U.S.C. 44720; 15 U.S.C. 1525; 7 U.S.C.
450b; 5 U.S.C. 552.
Source: 63 FR 24922, May 6, 1998, unless otherwise noted.
Sec. 911.1 Purpose.
These regulations set forth the procedural, informational and
technical requirements for use of the NOAA Data Collection Systems
(DCS). In addition, they establish the criteria NOAA will employ when
making determinations as to whether to authorize the use of its space-
based DCS. The regulations are intended to facilitate the collection of
environmental data as well as other
[[Page 64]]
such data which the Government is interested in collecting. In those
instances where space-based commercial systems do not meet users'
requirements, the intent is to not disadvantage the development of the
commercial space-based services in this sector. Obtaining a system use
agreement to operate data collection platforms pursuant to these
regulations does not affect related licensing requirements of other
Federal agencies such as the Federal Communications Commission.
Sec. 911.2 Scope.
(a) These regulations apply to any person subject to the
jurisdiction or control of the United States who operates or proposes to
operate data collection platforms to be used with the NOAA DCS either
directly or through an affiliate or subsidiary. For the purposes of
these regulations a person is subject to the jurisdiction or control of
the United States if such person is:
(1) An individual who is a U.S. citizen; or
(2) A corporation, partnership, association, or other entity
organized or existing under the laws of any state, territory, or
possession of the United States.
(b) These regulations apply to all existing Geostationary
Operational Environmental Satellite (GOES) and Argos DCS users as well
as all future applications for NOAA DCS use.
Sec. 911.3 Definitions.
For purposes of this part:
(a) Approving authority means NOAA for the GOES DCS; and it means
the Argos Participating Agencies, via the Argos Operations Committee,
for the Argos DCS.
(b) Argos DCS means the system which collects data from fixed and
moving platforms and provides platform location data. This system
consists of platforms, the Argos French instrument on the Polar-orbiting
Operational Environmental Satellites (POES) and other international
satellites; a ground processing system; and telemetry ground stations.
(c) Argos participating agencies means those agencies of the United
States and other countries that participate in the management of the
Argos DCS.
(d) Assistant Administrator means the Assistant Administrator for
Satellite and Information Services, NOAA, or his/her designee.
(e) Director means the Director of the Office of Satellite Data
Processing and Distribution for the National Environmental Satellite,
Data, and Information Service of NOAA.
(f) Environmental data means environmental measurement data for the
purpose of using the GOES DCS; and it means environmental measurement
and environmental protection data for the purpose of using the Argos
DCS.
(g) Environmental measurement data means data that relate to the
characteristics of the Earth and its natural phenomena by helping to
better understand, evaluate, or monitor its natural resources.
(h) Environmental protection data means data that relate to the
characteristics of the Earth and its environment (including its
ecosystems and the species which inhabit them) by helping to protect
against any unreasonable adverse effects thereto.
(i) Episodic use means the use of the system for short events where
there is a significant possibility of loss of life, such as for Arctic
expeditions or scientific campaigns into remote areas.
(j) Government interest means that the use is determined in advance
to be of interest to one or more governmental entities of the United
States, France or, once they have become an Argos Participating Agency,
Japan or a European Organization for the Exploitation of Meteorological
Satellites (EUMETSAT) member state; or also, in the case of the GOES
DCS, a state or local government.
(k) Government user means agencies of international governmental
organizations, national government or any subdivision thereof, or any of
those agencies' contractors or grantees, so long as the contractor is
using the data collected by the NOAA DCS to fulfill its contractual
obligations to the government agency or in the case of a grantee that
these data are being used in accordance with the statement of work for
the award.
(l) NOAA DCS means the GOES and Argos space-based DCS.
[[Page 65]]
(m) Non-profit user means a not-for-profit academic, research, or
other non-governmental organization, which is using these data, for
education and/or scientific, non-commercial purposes.
(n) Operational use means the use of data in a situation where the
utility of the data are significantly reduced if not collected or
delivered in a specific time window. This includes situations where
extensive preparation work is in place and a delay in acquisition of
data would jeopardize the project.
(o) Platform compatibility means the compatibility of the platform
with the space segment of the system, and includes elements such as
message length and composition, signal strength, and transmission
protocol (e.g., continuous versus event drive).
(p) Sensitive use means the use of the NOAA DCS where the users'
requirements dictate the use of a governmental system such as National
security, homeland security, law enforcement and humanitarian
operations.
(q) Testing use means the use of the NOAA DCS by manufacturers of
platforms for use in conjunction with the NOAA DCS, for the limited
purpose of testing and certifying the compatibility of new platforms
with the technical requirements of the NOAA DCS.
(r) User means the entity and/or organization that owns or operates
user platforms for the purpose of collecting and transmitting data
through the NOAA DCS, or the organization requiring the collection of
the data.
(s) User platform means device designed in accordance with the
specifications delineated and approved by the Approving Authority used
for the in-situ collection and subsequent transmission of data via the
NOAA DCS. Those devices which are used in conjunction with the GOES DCS
are referred to as data collection platforms (DCP) and those which are
used in conjunction with the Argos DCS are referred to as Platform
Transmitter Terminals (PTT). For purposes of these regulations, the
terms ``user platform,'' ``DCP'', and ``PTT'' are interchangeable.
(t) User requirement means the requirement expressed and explained
in the System Use Agreement.
[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]
Sec. 911.4 Use of the NOAA Data Collection Systems.
(a) Use of the NOAA DCS will only be authorized in accordance with
the conditions and requirements set forth in paragraphs (b), (c), (d),
(e), and (f) of this section.
(b)(1) Use of the NOAA DCS will only be authorized where it is
determined that there are no commercial space-based services available
that meet the user's requirements.
(2) A determination under paragraph (b)(1) of this section must be
based on such factors as satellite coverage, accuracy, data throughput,
platform power consumption, size and weight, service continuity and
reliability, platform compatibility, system access mode, and, in the
case of government agencies, cost-effectiveness.
(c)(1) Except as provided in paragraphs (c)(2), (3), (4), and (5) of
this section, NOAA DCS shall only be used for the collection of
environmental data by governmental and/or non-profit users.
(2) Non-governmental, environmental use of the NOAA DCS is only
authorized where there is a Government interest in the collection and/or
receipt of the data.
(3) Except as provided in paragraph (c)(4) of this section, non-
environmental use of the NOAA DCS is only authorized for government use
and non-profit users where there is a government interest. The NOAA DCS
will continue to be predominantly used for environmental applications.
Non-environmental use of the system shall be limited to sensitive use,
and to episodic use as defined below in paragraph (c)(4) of this
section.
(4) Episodic use of the NOAA DCS may also be authorized in specific
instances where there is a significant possibility for loss of life.
Such use shall be closely monitored.
(5) Testing use of the NOAA DCS will only be authorized for
manufacturers of NOAA DCS platforms, that require access to the system
in order to test
[[Page 66]]
and certify prototype and production models.
(d) Because of capacity limitations on the GOES DCS, system
applicants will be admitted to use the GOES system in accordance with
the following priority:
(1) NOAA programs or users whose data are required for
implementation of NOAA programs, as determined by the Assistant
Administrator, will be accorded first priority.
(2) Users whose data are desired to support NOAA programs will be
accorded second priority.
(3) Users whose data and/or use of the GOES DCS will further a
program of an agency or department of the U.S. Government, other than
NOAA, will be accorded third priority.
(4) Users whose data are required by a state or local Government of
the United States will be accorded fourth priority.
(5) Testing users of the system will be accorded fifth priority.
(6) No other usage will be authorized for the GOES DCS.
(e) In the event that Argos DCS capacity limitations require that
priority determinations be made, priority will be given to those
platforms that provide environmental data of broad international
interest, especially of an operational nature, and to those requiring
the unique capabilities of the Argos DCS, such as platform location or
polar coverage.
[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]
Sec. 911.5 NOAA Data Collection Systems Use Agreements.
(a)(1) In order to use a NOAA DCS, each user must have an agreement
with the approving authority for that system.
(2) Persons interested in entering into a system use agreement
should contact the Director.
(b) These agreements will address, but may not be limited to, the
following matters:
(1) The period of time the agreement is valid and procedures for its
termination,
(2) The authorized use(s), and its priorities for use,
(3) The extent of the availability of commercial space-based
services which meet the user's requirements and the reasons for
necessitating the use of the Government system,
(4) Any applicable government interest in the data,
(5) Required equipment standards,
(6) Standards of operation,
(7) Conformance with applicable ITU and FCC agreements and
regulations,
(8) Reporting time and frequencies,
(9) Data formats,
(10) Data delivery systems and schedules, and
(11) User-borne costs.
(c) The Director shall evaluate user requests for System Use
Agreements and renewals and conclude agreements for use of the NOAA DCS.
(d)(1) Agreements for the collection, via the Argos DCS, of
environmental data by government agencies or non-profit institutions
shall be valid for 3 years from the date of initial in-situ deployment
of the platforms, and may be renewed for additional 3-year periods.
(2) Agreements for the collection of environmental data, via the
Argos DCS, by non-government users shall be valid for 1 year from the
date of initial in-situ deployment of the platforms, and may be renewed
for additional 1-year periods, but only for so long as there exists a
governmental interest in the receipt of these data.
(3) Agreements for the collection of non-environmental data, via the
Argos DCS, by government agencies, or non-profit institutions where
there is a government interest, shall be valid for 1 year from the date
of initial in-situ deployment of the platforms, and may be renewed for
additional 1-year periods.
(4) Agreements for the episodic collection of non-environmental
data, via the Argos DCS under Sec. 911.4(c)(4), shall be of short,
finite duration not to exceed 1 year without exception, and usually
shall not exceed 6 months. These agreements shall be closely monitored
and shall not be renewed.
(5) Agreements for the testing use of the Argos DCS by equipment
manufacturers shall be valid for 1 year from the date of initial
testing, and may be renewed for additional 1-year periods.
[[Page 67]]
(e)(1) Agreements for the collection of environmental data, by the
GOES DCS, shall be valid for 5 years from the date of initial in-situ
deployment, and may be renewed for additional 5-year periods.
(2) Agreements for the testing use of the GOES DCS, by equipment
manufacturers, shall be valid for 1 year from the date of initial
testing, and may be renewed for additional 1-year periods.
(3) Agreements for the collection of non-environmental data, via the
GOES DCS, by government agencies, or non-profit institutions where there
is a government interest, shall be valid for 1 year from the date of
initial in-situ deployment of the platforms, and may be renewed for
additional 1-year periods.
(4) Agreements for the episodic collection of non-environmental
data, via the GOES DCS under Sec. 911.4(c)(4), shall be of short,
finite duration not to exceed 1 year without exception, and usually
shall not exceed 6 months. These agreements shall be closely monitored
and shall not be renewed.
[63 FR 24922, May 6, 1998, as amended at 68 FR 45161, Aug. 1, 2003]
Sec. 911.6 Treatment of data.
(a) All NOAA DCS users must agree to permit NOAA and other agencies
of the U.S. Government the full, open, timely, and appropriate use as
determined by NOAA, of all environmental data collected from their
platforms; this may include the international distribution of
environmental data under the auspices of the World Meteorological
Organization.
(b) Raw data from the NOAA space segment is openly transmitted and
accessible.
(c) Accessibility of the NOAA DCS processed data from the ground
segment is handled in accordance with the users specifications and
system design limitations, subject to the provisions stated in paragraph
(a) of this section.
[68 FR 45161, Aug. 1, 2003]
Sec. 911.7 Continuation of the NOAA Data Collection Systems.
(a) NOAA expects to continue to operate DCS on its geostationary and
polar-orbiting satellites, subject to the availability of future
appropriations. However, viable commercial space-based alternatives may
eventually obviate the need for NOAA to operate its own space-based DCS.
(b) If use of the system in support of NOAA programs increases, it
eventually may be necessary to the further restrict system usage by
other users. If such restrictions on use become necessary, or in the
event that NOAA discontinues operation of GOES and/or POES, NOAA will
provide, to the maximum extent practicable, advance notice and an
orderly transition.
(c) NOAA will not be responsible for any losses resulting from the
nonavailability of the NOAA DCS.
Sec. 911.8 Technical requirements.
(a) All platform operators of the NOAA DCS must use a data
collection platform radio set whose technical and design characteristics
are certified to conform to applicable specifications and regulations.
(b) All platform operators are responsible for all costs associated
with the procurement and operation of the platforms, and for the
acquisition of data from those platforms, either directly from the
satellite or from the applicable data processing center.
[[Page 68]]
Sec. Appendix A to Part 911--Argos DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR01AU03.015
[68 FR 45161, Aug. 1, 2003]
[[Page 69]]
Sec. Appendix B to Part 911--GOES DCS Use Policy Diagram
[GRAPHIC] [TIFF OMITTED] TR01AU03.016
[68 FR 45162, Aug. 1, 2003]
[[Page 70]]
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.
(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.''
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(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 for designation under
section 502(b) of the Trade Act of 1974, (19 U.S.C. 2462(b)) as a
beneficiary developing country under Title of that Act.
Subpart B_Sea Grant Matched Funding Program
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.
[[Page 72]]
(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
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
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positive critique will be forwarded to the Administrator. In addition,
suggestions concerning the identification of national needs and problems
will be requested from the Sea Grant Program Directors.
(c) The Administrator has identified the following as currently
being national needs and problems with respect to ocean and coastal
resources:global and regional climate and primary productivity.
(1) Improve the prediction of extreme natural events and their
effects on ocean coastal and continental shelf locations as well as
analogous regions of the Great Lakes.
(2) Improve the predictability of global sea-level change and
determine the impact of this change on coastal areas.
(3) Define the processes that determine ocean variability on the
time scale of a few weeks to a few years, and the relationship to
fluctuations in global and regional climate, primary productivity, and
fisheries production.
(4) Improve understanding of the flow fields and mixing processes on
the continental shelves of the United States.
(5) Develop an increased understanding of the arctic and antarctic
environment and a capability to predict the special hazards posed to
transportation and resource development.
(6) Develop and increased capability to characterize the engineering
properties of ocean botton sediments.
(7) Reduce the recurring economic loss due to corrosion of
structures, vessels, and other devices in the marine environment.
(8) Gain a fundamental understanding of the processes by which
biological fouling and associated corrosion are initiated upon material
surfaces exposed to seawater.
(9) Investigate methods to improve man's underwater capability to
conduct undersea research and perform useful work.
(10) Investigate the wider application of remotely operated and
artificial intelligence techniques for vehicles for undersea activities.
(11) Expand/improve remote sensing technologies for use on the ocean
and Great Lakes.
(12) Advance knowledge of acoustics in the ocean and ocean bottom in
order to exploit the burgeoning acoustics technologies.
(13) Develop techniques for in-situ monitoring of biological,
chemical, and physical processes in the Great Lakes, oceans, and their
connecting waterways which are cost effective and provide data in real
time.
(14) Improve the position of the U.S. seafood industry in world
seafood markets.
(15) Design more efficient mechanisms to allocate U.S. fish
resources to achieve optimum yield and minimize industry dislocations.
(16) Gain a fundamental understanding of the biological productivity
of estuarine and coastal waters.
(17) Conduct research leading to the restoration and/or enhancement
of heavily exploited fishery stocks.
(18) Improve the capability for stock assessment, predicting yield,
age-class strength, and long-term population status of important
fisheries.
(19) Conduct research to increase the economic potential of low-
value, high-volume fish products.
(20) Develop productive and profitable aquaculture industries in the
United States and technology that can be exported to less developed
nations of the world with different climate, cultural, and economic
constraints.
(21) Explore marine biochemicals as source of chemical feedstocks,
enzymes, pharmacological substance, and other bioactive agents such as
pesticides.
(22) Apply modern biotechnology to exploiting marine plants,
animals, and microorganisms for good and services.
(23) Develop rapid, efficient, and specific methods for assaying the
potential of marine organisms to communicate disease to humans.
(24) Develop innovations that would promote safe, nondestructive,
recreational access to and use of marine and Great Lakes water.
(25) Re-examine the ocean as an appropriate place for the disposal
of wastes from land-based society.
(26) Develop an increased understanding of the impacts of low
density, nonbiodegradable, solid wastes on marine and Great Lakes
species.
[[Page 74]]
(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 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
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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 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
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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.
(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.
[[Page 77]]
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 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,
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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 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
[[Page 79]]
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 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,
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education, training, and advisory services to achieve appropriate
balance in a Sea Grant Regional Consortium may differ from a Sea Grant
College, sustained effort in all of these areas is, nonetheless, an
essential requirement for retention of such designation. To be eligible
for designation as a Sea Grant Regional Consortium, the candidate
association or alliance of organizations must meet the qualifications
set forth above as evaluated by a site review team composed of members
of the Sea Grant Review Panel, the Office of Sea Grant, and other
experts. Further, the candidate must be rated highly in all of the
following qualifying areas which are pertinent to the Consortium's
program:
(1) Leadership. The Sea Grant Regional Consortium candidate must
have achieved recognition as an intellectual and practical leader in
marine science, engineering, education, and advisory service in its
region.
(2) Organization. The Sea Grant Regional Consortium candidate must
have created the management organization to carry on a viable and
productive multidisciplinary Sea Grant Program and have the backing of
the administrations of its component organizations at a sufficiently
high level to fulfill its multidisciplinary and multifaceted mandate.
(3) Relevance. The Sea Grant Regional Consortium candidate's Sea
Grant Program must be relevant to regional opportunities and problems in
the marine environment. Important factors in evaluating relevance are
the extent and depth of the need of a region for a focused marine
resource emphasis and the degree to which the candidate has developed
its capability to be responsive to that need.
(4) Education and training. Education and training must be clearly
relevant to regional needs and must be of high quality in fields related
to ocean, Great Lakes, and coastal resources. As appropriate, education
may include precollege, college, post-graduate, public and adult levels.
(5) Advisory services. The Sea Grant Regional Consortium candidate
must have a strong program through which information techniques, and
research results from any reliable source, domestic or international,
may be communicated to and utilized by user communities. In addition to
the educational and information dissemination role, the advisory service
program must aid in the identification and communication of user
communities' research and educational needs.
(6) Relationships. The Sea Grant Regional Consortium candidate must
have close ties with federal agencies, state agencies and
administrations, regional authorities, regional business and industry,
and other regional educational institutions. These regional ties are:
(i) To ensure the relevance of programs, (ii) to generate requests for
such assistance as the consortium may offer, and (iii) to assist others
in developing research and management competence. The extent and quality
of a candidate's relationships are critical factors in evaluating the
proposed designation.
(7) Productivity. The Sea Grant Regional Consortium candidate must
have demonstrated a degree of productivity (of research results,
reports, employed students, service to regional agencies, industry,
etc.) commensurate with the length of its Sea Grant operations and the
level of funding under which it has worked.
(8) Support. The Sea Grant Regional Consortium candidate must have
the ability to obtain matching funds from non-Federal sources, such as
State legislatures, university management, State agencies, and business
and industry. A diversity of matching funds sources is encouraged as a
sign of program vitality and the ability to meet the Sea Grant
requirement that funds for the general programs be matched with at least
one non-Federal dollar for every two Federal dollars.
(c) Finally, it must be found that the Sea Grant Regional Consortium
candidate will act in accordance with the following standards relating
to its continuing responsibilities as a Sea Grant Regional Consortium:
(1) Continue pursuit of excellence and high performance in marine
research education, training, and advisory services.
(2) Provide regional leadership in marine activities including
coordinated planning and cooperative work with
[[Page 81]]
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 82]]
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 83]]
(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 84]]
human activity or influence). Frequently, restoration of a degraded
estuarine area will provide an excellent opportunity for management
oriented research.
(f) NOAA may provide financial assistance to coastal states, not to
exceed, per Reserve, 50 percent of all actual costs or $5 million
whichever amount is less, to assist in the acquisition of land and
waters, or interests therein. NOAA may provide financial assistance to
coastal states not to exceed 70 percent of all actual costs for the
management and operation of, the development and construction of
facilities, and the conduct of educational or interpretive activities
concerning Reserves (see subpart I). NOAA may provide financial
assistance to any coastal state or public or private person, not to
exceed 70 percent of all actual costs, to support research and
monitoring within a Reserve. Notwithstanding any financial assistance
limits established by this Part, when financial assistance is provided
from amounts recovered as a result of damage to natural resources
located in the coastal zone, such assistance may be used to pay 100
percent of all actual costs of activities carrier out with this
assistance, as long as such funds are available. Predesignation,
acquisition and development, operation and management, special research
and monitoring, and special education and interpretation awards are
available under the National Estuarine Reserve Program. Predesignation
awards are for site selection/feasibility, draft management plan
preparation and conduct of basic characterization studies. Acquisition
and development awards are intended primarily for acquisition of
interests in land, facility construction and to develop and/or upgrade
research, monitoring and education programs. Operation and management
awards provide funds to assist in implementing, operating and managing
the administrative, and basic research, monitoring and education
programs, outlined in the Reserve management plan. Special research and
monitoring awards provide funds to conduct estuarine research and
monitoring projects with the System. Special educational and
interpretive awards provide funds to conduct estuarine educational and
interpretive projects within the System.
(g) Lands already in protected status managed by other Federal
agencies, state or local governments, or private organizations may be
included within National Estuarine Research Reserves only if the
managing entity commits to long-term management consistent with
paragraphs (d) and (e) of this section in the Reserve management plan.
Federal lands already in protected status may not comprise a majority of
the key land and water areas of a Reserve (see 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;
63 FR 26717, May 14, 1998]
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)).
[[Page 85]]
(d) State agency means an instrumentality of a coastal state to whom
the coastal state has delegated the authority and responsibility for the
creation and/or management/operation of a National Estuarine Research
Reserve. Factors indicative of this authority may include the power to
receive and expend funds on behalf of the Reserve, acquire and sell or
convey real and personal property interests, adopt rules for the
protection of the Reserve, enforce rules applicable to the Reserve, or
develop and implement research and education programs for the reserve.
For the purposes of these regulations, the terms ``coastal state'' and
``State agency'' shall be synonymous.
(e) Estuary means that part of a river or stream or other body of
water having unimpaired connection with the open sea, where the sea
water is measurably diluted with fresh water derived from land drainage.
The term also includes estuary-type areas with measurable freshwater
influence and having unimpaired connections with the open sea, and
estuary-type areas of the Great Lakes and their connecting waters (see
16 U.S.C. 1453(7)).
(f) National Estuarine Research Reserve means an area that is a
representative estuarine ecosystem suitable for long-term research,
which may include all of the key land and water portion of an estuary,
and adjacent transitional areas and uplands constituting to the extent
feasible a natural unit, and which is set aside as a natural field
laboratory to provide long-term opportunities for research, education,
and interpretation on the ecological relationships within the area (see
16 U.S.C. 1453(8)) and meets the requirements of 16 U.S.C. 1461(b). This
includes those areas designated as National Estuarine Sanctuaries or
Reserves under section 315 of the Act prior to enactment of the Coastal
Zone Act Reauthorization Amendments of 1990 and each area subsequently
designated as a National Estuarine Research Reserve.
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
[[Page 86]]
earliest practicable time, with the appropriate state officials
concerning the consistency of a proposed National Estuarine Research
Reserve.
(c) The National Estuarine Research Reserve Program will be
administered in close coordination with the National Marine Sanctuary
Program (Title III of the Marine Protection, Research and Sanctuaries
Act, as amended, 16 U.S.C. 1431-1445), also administered by NOAA. Title
III authorizes the Secretary of Commerce to designate discrete areas of
the marine environment as National Marine Sanctuaries to protect or
restore such areas for their conservation, recreational, ecological,
historical, research, educational or esthetic values. National Marine
Sanctuaries and Estuarine Research Reserves may not overlap, but may be
adjacent.
Subpart B_Site Selection, Post Site Selection and Management Plan
Development
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. Notwithstanding
the above, when financial assistance is provided from amounts recovered
as a result of damage to natural resources located in the coastal zone,
such assistance may be used to pay 100 percent of all actual costs of
activities carried out with this assistance, as long as such funds are
available. In the case of a biogeographic region (see appendix I) shared
by two or more coastal states, each state is eligible for Federal
financial assistance to establish a separate National Estuarine Research
Reserve within their respective portion of the shared biogeographic
region. Each separate National Estuarine Research Reserve is eligible
for the full complement of funding. Financial assistance application
procedures are specified in subpart I.
(b) In developing a Reserve program, a state may choose to develop a
multiple-site Reserve reflecting a diversity of habitats in a single
biogeographic region. A multiple-site Reserve allows the state to
develop complementary research and educational programs within the
individual components of its multi-site Reserve. Multiple-site Reserves
are treated as one Reserve in terms of financial assistance and
development of an overall management framework and plan. Each individual
site of a proposed multiple-site Reserve shall be evaluated both
separately under 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.
Notwithstanding the above, when financial assistance is provided from
amounts recovered as a result of damage to natural resources located in
the coastal zone, such assistance may be used to pay 100 percent of all
actual costs of activities carrier out with this assistance, as long as
such funds are available.
[58 FR 38215, July 15, 1993, as amended at 63 FR 26717, May 14, 1998]
[[Page 87]]
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. 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
[[Page 88]]
for potential National Estuarine Research Reserve status that is
dependent primarily upon the inclusion of currently protected Federal
lands in order to meet the requirements for Reserve status (such as key
land and water areas). Such lands generally will be included within a
Reserve to serve as a buffer or for other ancillary purposes; and may be
included, subject to NOAA approval, as a limited portion of the core
area;
(4) The site's suitability for long-term estuarine research,
including ecological factors and proximity to existing research
facilities and educational institutions;
(5) The site's compatibility with existing and potential land and
water uses in contiguous areas as well as approved coastal and estuarine
management plans; and
(6) The site's importance to education and interpretive efforts,
consistent with the need for continued protection of the natural system.
(d) Early in the site selection process the state must seek the
views of affected landowners, local governments, other state and Federal
agencies and other parties who are interested in the area(s) being
considered for selection as a potential National Estuarine Research
Reserve. After the local government(s) and affected landowner(s) have
been contacted, at least one public meeting shall be held in the
vicinity of the proposed site. Notice of such a meeting, including the
time, place, and relevant subject matter, shall be announced by the
state through the area's principal newspaper at least 15 days prior to
the date of the meeting and by NOAA in the Federal Register.
(e) A state request for NOAA approval of a proposed site (or sites
in the case of a multi-site Reserve) must contain a description of the
proposed site(s) in relationship to each of the site selection
principals (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
[[Page 89]]
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, 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,
[[Page 90]]
adjudication, management and coordination). In selecting a preferred
method(s) for establishing adequate state control over each parcel
examined under the process described above, the state shall give
priority consideration to the least costly method(s) of attaining the
minimum level of long-term control required. Generally, with the
possible exception of buffer areas required for support facilities, the
level of control(s) required for buffer areas will be considerably less
than that required for key land and water areas. This acquisition plan,
after receiving the approval of NOAA, shall serve as a guide for
negotiations with landowners. A final boundary for the reserve shall be
delineated as a part of the final management plan;
(8) A resource protection plan detailing applicable authorities,
including allowable uses, uses requiring a permit and permit
requirements, any restrictions on use of the research reserve, and a
strategy for research reserve surveillance and enforcement of such use
restrictions, including appropriate government enforcement agencies;
(9) If applicable, a restoration plan describing those portions of
the site that may require habitat modification to restore natural
conditions;
(10) If applicable, a resource manipulation plan, describing those
portions of the Reserve buffer in which long-term pre-existing (prior to
designation) manipulation for reasons not related to research or
restoration is occurring. The plan shall explain in detail the nature of
such activities, shall justify why such manipulation should be permitted
to continue within the reserve buffer; and shall describe possible
effects of this manipulation on key land and water areas and their
resources;
(11) A proposed memorandum of understanding (MOU) between the state
and NOAA regarding the Federal-state relationship during the
establishment and development of the National Estuarine Research
Reserve, and expressing a long-term commitment by the state to maintain
and manage the Reserve in accordance with section 315 of the Act, 16
U.S.C. 1461, and applicable regulations. In conjunction with the MOU,
and where possible under state law, the state will consider taking
appropriate administrative or legislative action to ensure the long-term
protection and operation of the National Estuarine Research Reserve. If
other MOUs are necessary (such as with a Federal agency, another state
agency or private organization), drafts of such MOUs must be included in
the plan. All necessary MOU's shall be signed prior to Reserve
designation; and
(12) If the state has a federally approved coastal management
program, a certification that the National Estuarine Research Reserve is
consistent to the maximum extent practicable with that program. See
Sec. Sec. 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
[[Page 91]]
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 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 all
actual costs of activities carrier out with this assistance, as long as
such funds are available.
[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997;
63 FR 26717, May 14, 1998]
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.
[[Page 92]]
(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):
(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).
[[Page 93]]
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;
(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
Sec. Sec. 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
[[Page 94]]
percent of the costs. NOAA must make a specific determination that the
construction activity will not be detrimental to the environment.
Acquisition awards for the acquisition of lands or waters, or interests
therein, for any one reserve may not exceed an amount equal to 50
percent of the costs of the lands, waters, and interests therein of
$5,000,000, whichever amount is less, except when the financial
assistance is provided from amounts recovered as result of damage to
natural resources located in the coastal zone, in which case the
assistance may be used to pay 100 percent of all actual costs of
activities carrier out with this assistance, as long as such funds are
available. In the case of a biogeographic region (see appendix I) shared
by two or more states, each state is eligible independently for Federal
financial assistance to establish a separate National Estuarine Research
Reserve within their respective portion of the shared biogeographic
region. Application procedures are specified in subpart I. Land
acquisition must follow the procedures specified in Sec. Sec.
921.13(a)(7), 921.21(e) and (f) and 921.81.
[58 FR 38215, July 15, 1993, as amended at 62 FR 12540, Mar. 17, 1997;
63 FR 26717, May 14, 1998]
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.
[[Page 95]]
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 Sec. Sec. 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 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.
[[Page 96]]
(6) Inadequate implementation of acquisition plan. Indicators of
inadequate implementation could include: Not pursuing an aggressive
acquisition program with all available funds for that purpose, not
requesting promptly additional funds when necessary, and evidence that
adequate long-term state control has not been established over some core
or buffer areas, thus jeopardizing the ability to protect the Reserve
site and resources from offsite impacts.
(7) Inadequate implementation of Reserve protection plan. Indicators
of inadequate implementation could include: Evidence of non-compliance
with Reserve restrictions, insufficient surveillance and enforcement to
assure that restrictions on use of the Reserve are adhered to, or
evidence that Reserve resources are being damaged or destroyed as a
result of the above.
(8) Failure to carry out the terms of the signed Memorandum of
Understanding (MOU) between the state and NOAA, which establishes a
long-term state commitment to maintain and manage the Reserve in
accordance with section 315 of the Act. Indicators of failure could
include: State action to allow incompatible uses of state-controlled
lands or waters in the Reserve, failure of the state to bear its fair
share of costs associated with long-term operation and management of the
Reserve, or failure to initiate timely updates of the MOU when
necessary.
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
[[Page 97]]
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 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''),
[[Page 98]]
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 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.
[[Page 99]]
Copies of Circular A-110 can be obtained from the Sanctuaries and
Reserves Division; 1825 Connecticut Avenue, NW., suite 714; Washington,
DC 20235. The following may be used in satisfying the matching
requirement:
(1) Site selection and post site selection awards. Cash and in-kind
contributions (value of goods and services directly benefiting and
specifically identifiable to this part of the project) are allowable.
Land may not be used as match.
(2) Acquisition and development awards. Cash and in-kind
contributions are allowable. In general, the fair market value of lands
to be included within the Reserve boundaries and acquired pursuant to
the Act, with other than Federal funds, may be used as match. However,
the fair market value of real property allowable as match is limited to
the fair market value of a real property interest equivalent to, or
required to attain, the level of control over such land(s) identified by
the state and approved by the Federal Government as that necessary for
the protection and management of the National Estuarine Research
Reserve. Appraisals must be performed according to Federal appraisal
standards as detailed in Department of Commerce regulations at 15 CFR
part 24 and the Uniform Relocation Assistance and Real Property
Acquisition for Federal land Federally assisted programs in 15 CFR part
11. The fair market value of privately donated land, at the time of
donation, as established by an independent appraiser and certified by a
responsible official of the state, pursuant to 15 CFR part 11, may also
be used as match. Land, including submerged lands already in the state's
possession, may be used as match to establish a National Estuarine
Research Reserve. The value of match for these state lands will be
calculated by determining the value of the benefits foregone by the
state, in the use of the land, as a result of new restrictions that may
be imposed by Reserve designation. The appraisal of the benefits
foregone must be made by an independent appraiser in accordance with
Federal appraisal standards pursuant to 15 CFR part 24 and 15 CFR part
11. A state may initially use as match land valued at greater than the
Federal share of the acquisition and development award. The value in
excess of the amount required as match for the initial award may be used
to match subsequent supplemental acquisition and development awards for
the National Estuarine Research Reserve (see also 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.
Sec. 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.)
[[Page 100]]
Louisianian
11. Panhandle Coast (Cedar Key to Mobile Bay.)
12. Mississippi Delta (Mobile Bay to Galveston.)
13. Western Gulf (Galveston to Mexican border.)
Californian
14. Southern California (Mexican border to Point Conception.)
15. Central California (Point Conception to Cape Mendocino.)
16. San Francisco Bay.
Columbian
17. Middle Pacific (Cape Mendocino to the Columbia River.)
18. Washington Coast (Columbia River to Vancouver Island.)
19. Puget Sound.
Great Lakes
20. Lake Superior (including St. Mary's River.)
21. Lakes Michigan and Huron (including Straits of Mackinac, St.
Clair River, and Lake St. Clair.)
22. Lake Erie (including Detroit River and Niagara Falls.)
23. Lake Ontario (including St. Lawrence River.)
Fjord
24. Southern Alaska (Prince of Wales Island to Cook Inlet.)
25. Aleutian Island (Cook Inlet Bristol Bay.)
Sub-Arctic
26. Northern Alaska (Bristol Bay to Damarcation Point.)
Insular
27. Hawaiian Islands.
28. Western Pacific Island.
29. Eastern Pacific Island.
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[GRAPHIC] [TIFF OMITTED] TC12SE91.000
Sec. Appendix II to Part 921--Typology of National Estuarine Research
Reserves
This typology system reflects significant differences in estuarine
characteristics that are not necessarily related to regional location.
The purpose of this type of classification is to maximize ecosystem
variety in the selection of national estuarine reserves. Priority will
be given to important ecosystem types as yet unrepresented in the
reserve system. It should be noted that any one site may represent
several ecosystem types or physical characteristics.
Class I--Ecosystem Types
Group I--Shorelands
A. Maritime Forest-Woodland. That have developed under the influence
of salt spray. It can be found on coastal uplands or recent features
such as barrier islands and beaches, and may be divided into the
following biomes:
1. Northern coniferous forest biome: This is an area of
predominantly evergreens such as the sitka spruce (Picea), grand fir
(Abies), and white cedar (Thuja), with poor development of the shrub and
herb leyera, but high annual productivity and pronounced seasonal
periodicity.
2. Moist temperate (Mesothermal) coniferous forest biome: Found
along the west coast of North America from California to Alaska, this
area is dominated by conifers, has relatively small seasonal range, high
humidity with rainfall ranging from 30 to 150 inches, and a well-
developed understory of vegetation with an abundance of mosses and other
moisture-tolerant plants.
3. Temperate deciduous forest biome: This biome is characterized by
abundant, evenly distributed rainfall, moderate temperatures which
exhibit a distinct seasonal pattern,
[[Page 102]]
well-developed soil biota and herb and shrub layers, and numerous plants
which produce pulpy fruits and nuts. A distinct subdivision of this
biome is the pine edible forest of the southeastern coastal plain, in
which only a small portion of the area is occupied by climax vegetation,
although it has large areas covered by edaphic climax pines.
4. Broad-leaved evergreen subtropical forest biome: The main
characteristic of this biome is high moisture with less pronounced
differences between winter and summer. Examples are the hammocks of
Florida and the live oak forests of the Gulf and South Atlantic coasts.
Floral dominants include pines, magnolias, bays, hollies, wild tamarine,
strangler fig, gumbo limbo, and palms.
B. Coast shrublands. This is a transitional area between the coastal
grasslands and woodlands and is characterized by woody species with
multiple stems and a few centimeters to several meters above the ground
developing under the influence of salt spray and occasional sand burial.
This includes thickets, scrub, scrub savanna, heathlands, and coastal
chaparral. There is a great variety of shrubland vegetation exhibiting
regional specificity:
1. Northern areas: Characterized by Hudsonia, various erinaceous
species, and thickets of Myricu, prunus, and Rosa.
2. Southeast areas: Floral dominants include Myrica, Baccharis, and
Iles.
3. Western areas: Adenostoma, arcotyphylos, and eucalyptus are the
dominant floral species.
C. Coastal grasslands. This area, which possesses sand dunes and
coastal flats, has low rainfall (10 to 30 inches per year) and large
amounts of humus in the soil. Ecological succession is slow, resulting
in the presence of a number of seral stages of community development.
Dominant vegetation includes mid-grasses (5 to 8 feet tall), such as
Spartina, and trees such as willow (Salix sp.), cherry (Prunus sp.), and
cottonwood (Pupulus deltoides.) This area is divided into four regions
with the following typical strand vegetation:
1. Arctic/Boreal: Elymus;
2. Northeast/West: Ammophla;
3. Southeast Gulf: Uniola; and
4. Mid-Atlantic/Gulf: Spartina patens.
D. Coastal tundra. This ecosystem, which is found along the Arctic
and Boreal coasts of North America, is characterized by low
temperatures, a short growing season, and some permafrost, producing a
low, treeless mat community made up of mosses, lichens, heath, shrubs,
grasses, sedges, rushes, and herbaceous and dwarf woody plants. Common
species include arctic/alpine plants such as Empetrum nigrum and Betula
nana, the lichens Cetraria and Cladonia, and herbaceous plants such as
Potentilla tridentata and Rubus chamaemorus. Common species on the
coastal beach ridges of the high arctic desert include Bryas
intergrifolia and Saxifrage oppositifolia. This area can be divided into
two main subdivisions:
1. Low tundra: Characterized by a thick, spongy mat of living and
undecayed vegetation, often with water and dotted with ponds when not
frozen; and
2. High Tundra: A bare area except for a scanty growth of lichens
and grasses, with underlaying ice wedges forming raised polygonal areas.
E. Coastal cliffs. This ecosystem is an important nesting site for
many sea and shore birds. It consists of communities of herbaceous,
graminoid, or low woody plants (shrubs, heath, etc.) on the top or along
rocky faces exposed to salt spray. There is a diversity of plant species
including mosses, lichens, liverworts, and ``higher'' plant
representatives.
Group II--Transition Areas
A. Coastal marshes. These are wetland areas dominated by grasses
(Poacea), sedges (Cyperaceae), rushes (Juncaceae), cattails (Typhaceae),
and other graminoid species and is subject to periodic flooding by
either salt or freshwater. This ecosystem may be subdivided into: (a)
Tidal, which is periodically flooded by either salt or brackish water;
(b) nontidal (freshwater); or (c) tidal freshwater. These are essential
habitats for many important estuarine species of fish and invertebrates
as well as shorebirds and waterfowl and serve important roles in shore
stabilization, flood control, water purification, and nutrient transport
and storage.
B. Coastal swamps. These are wet lowland areas that support mosses
and shrubs together with large trees such as cypress or gum.
C. Coastal mangroves. This ecosystem experiences regular flooding on
either a daily, monthly, or seasonal basis, has low wave action, and is
dominated by a variety of salt-tolerant trees, such as the red mangrove
(Rhizophora mangle), black mangrove (Avicennia Nitida), and the white
mangrove (Laguncularia racemosa.) It is also an important habitat for
large populations of fish, invertebrates, and birds. This type of
ecosystem can be found from central Florida to extreme south Texas to
the islands of the Western Pacific.
D. Intertidal beaches. This ecosystem has a distinct biota of
microscopic animals, bacteria, and unicellular algae along with
macroscopic crustaceans, mollusks, and worms with a detritus-based
nutrient cycle. This area also includes the driftline communities found
at high tide levels on the beach. The dominant organisms in this
ecosystem include crustaceans such as the mole crab (Emerita), amphipods
(Gammeridae), ghost crabs (Ocypode), and bivalve mollusks such
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as the coquina (Donax) and surf clams (Spisula and Mactra.)
E. Intertidal mud and sand flats. These areas are composed of
unconsolidated, high organic content sediments that function as a short-
term storage area for nutrients and organic carbons. Macrophytes are
nearly absent in this ecosystem, although it may be heavily colonized by
benthic diatoms, dinoflaggellates, filamintous blue-green and green
algae, and chaemosynthetic purple sulfur bacteria. This system may
support a considerable population of gastropods, bivalves, and
polychaetes, and may serve as a feeding area for a variety of fish and
wading birds. In sand, the dominant fauna include the wedge shell Donax,
the scallop Pecten, tellin shells Tellina, the heart urchin
Echinocardium, the lug worm Arenicola, sand dollar Dendraster, and the
sea pansy Renilla. In mud, faunal dominants adapted to low oxygen levels
include the terebellid Amphitrite, the boring clam Playdon, the deep sea
scallop Placopecten, the Quahog Mercenaria, the echiurid worm Urechis,
the mud snail Nassarius, and the sea cucumber Thyone.
F. Intertidal algal beds. These are hard substrates along the marine
edge that are dominated by macroscopic algae, usually thalloid, but also
filamentous or unicellular in growth form. This also includes the rocky
coast tidepools that fall within the intertidal zone. Dominant fauna of
these areas are barnacles, mussels, periwinkles, anemones, and chitons.
Three regions are apparent:
1. Northern latitude rocky shores: It is in this region that the
community structure is best developed. The dominant algal species
include Chondrus at the low tide level, Fucus and Ascophylium at the
mid-tidal level, and Laminaria and other kelplike algae just beyond the
intertidal, although they can be exposed at extremely low tides or found
in very deep tidepools.
2. Southern latitudes: The communities in this region are reduced in
comparison to those of the northern latitudes and possesses algae
consisting mostly of single-celled or filamentour green, blue-green, and
red algae, and small thalloid brown algae.
3. Tropical and subtropical latitudes: The intertidal in this region
is very reduced and contains numerous calcareous algae such as
Porolithon and Lithothamnion, as well and green algae with calcareous
particles such as Halimeda, and numerous other green, red, and brown
algae.
Group III--Submerged Bottoms
A. Subtidal hardbottoms. This system is characterized by a
consolidated layer of solid rock or large pieces of rock (neither of
biotic origin) and is found in association with geomorphological
features such as submarine canyons and fjords and is usually covered
with assemblages of sponges, sea fans, bivalves, hard corals, tunicates,
and other attached organisms. A significant feature of estuaries in many
parts of the world is the oyster reef, a type of subtidal hardbottom.
Composed of assemblages of organisms (usually bivalves), it is usually
found near an estuary's mouth in a zone of moderate wave action, salt
content, and turbidity. If light levels are sufficient, a covering of
microscopic and attached macroscopic algae, such as keep, may also be
found.
B. Subtidal softbottoms. Major characteristics of this ecosystem are
an unconsolidated layer of fine particles of silt, sand, clay, and
gravel, high hydrogen sulfide levels, and anaerobic conditions often
existing below the surface. Macrophytes are either sparse or absent,
although a layer of benthic microalgae may be present if light levels
are sufficient. The faunal community is dominated by a diverse
population of deposit feeders including polychaetes, bivalves, and
burrowing crustaceans.
C. Subtidal plants. This system is found in relatively shallow water
(less than 8 to 10 meters) below mean low tide. It is an area of
extremely high primary production that provides food and refuge for a
diversity of faunal groups, especially juvenile and adult fish, and in
some regions, manatees and sea turtles. Along the North Atlantic and
Pacific coasts, the seagrass Zostera marina predominates. In the South
Atlantic and Gulf coast areas, Thalassia and Diplanthera predominate.
The grasses in both areas support a number of epiphytic organisms.
Class II--Physical Characteristics
Group I--Geologic
A. Basin type. Coastal water basins occur in a variety of shapes,
sizes, depths, and appearances. The eight basic types discussed below
will cover most of the cases:
1. Exposed coast: Solid rock formations or heavy sand deposits
characterize exposed ocean shore fronts, which are subject to the full
force of ocean storms. The sand beaches are very resilient, although the
dunes lying just behind the beaches are fragile and easily damaged. The
dunes serve as a sand storage area making them chief stabilizers of the
ocean shorefront.
2. Sheltered coast: Sand or coral barriers, built up by natural
forces, provide sheltered areas inside a bar or reef where the ecosystem
takes on many characteristics of confined waters-abundant marine
grasses, shellfish, and juvenile fish. Water movement is reduced, with
the consequent effects pollution being more severe in this area than in
exposed coastal areas.
3. Bay: Bays are larger confined bodies of water that are open to
the sea and receive strong tidal flow. When stratification is pronounced
the flushing action is augmented by
[[Page 104]]
river discharge. Bays vary in size and in type of shorefront.
4. Embayment: A confined coastal water body with narrow, restricted
inlets and with a significant freshwater inflow can be classified as an
embayment. These areas have more restricted inlets than bays, are
usually smaller and shallower, have low tidal action, and are subject to
sedimentation.
5. Tidal river: The lower reach of a coastal river is referred to as
a tidal river. The coastal water segment extends from the sea or estuary
into which the river discharges to a point as far upstream as there is
significant salt content in the water, forming a salt front. A
combination of tidal action and freshwater outflow makes tidal rivers
well-flushed. The tidal river basin may be a simple channel or a complex
of tributaries, small associated embayments, marshfronts, tidal flats,
and a variety of others.
6. Lagoon: Lagoons are confined coastal bodies of water with
restricted inlets to the sea and without significant freshwater inflow.
Water circulation is limited, resulting in a poorly flushed, relatively
stagnant body of water. Sedimentation is rapid with a great potential
for basin shoaling. Shores are often gently sloping and marshy.
7. Perched coastal wetlands: Unique to Pacific islands, this wetland
type found above sea level in volcanic crater remnants forms as a result
of poor drainage characteristics of the crater rather than from
sedimentation. Floral assemblages exhibit distinct zonation while the
faunal constituents may include freshwater, brackish, and/or marine
species. Example: Aunu's Island, American Samoa.
8. Anchialine systems: These small coastal exposures of brackish
water form in lava depressions or elevated fossil reefs have only a
subsurface connection in the ocean, but show tidal fluctuations.
Differing from true estuaries in having no surface continuity with
streams or ocean, this system is characterized by a distinct biotic
community dominated by benthis algae such as Rhizoclonium, the mineral
encrusting Schiuzothrix, and the vascular plant Ruppia maritima.
Characteristic fauna which exhibit a high degree of endemicity, include
the mollusks Theosoxus neglectus and Tcariosus. Although found
throughout the world, the high islands of the Pacific are the only areas
within the U.S. where this system can be found.
B. Basin structure. Estuary basins may result from the drowning of a
river valley (coastal plains estuary), the drowning of a glacial valley
(fjord), the occurrence of an offshore barrier (bar-bounded estuary),
some tectonic process (tectonic estuary), or volcanic activity (volcanic
estuary).
1. Coastal plains estuary: Where a drowned valley consists mainly of
a single channel, the form of the basin is fairly regular forming a
simple coastal plains estuary. When a channel is flooded with numerous
tributaries an irregular estuary results. Many estuaries of the eastern
United States are of this type.
2. Fjord: Estuaries that form in elongated steep headlands that
alternate with deep U-shaped valleys resulting from glacial scouring are
called fjords. They generally possess rocky floors or very thin veneers
of sediment, with deposition generally being restricted to the head
where the main river enters. Compared to total fjord volume river
discharge is small. But many fjords have restricted tidal ranges at
their mouths due to sills, or upreaching sections of the bottom which
limit free movement of water, often making river flow large with respect
to the tidal prism. The deepest portions are in the upstream reaches,
where maximum depths can range from 800m to 1200m while sill depths
usually range from 40m to 150m.
3. Bar-bounded estuary: These result from the development of an
offshore barrier such as a beach strand, a line of barrier islands, reef
formations a line of moraine debris, or the subsiding remnants of a
deltaic lobe. The basin is often partially exposed at low tide and is
enclosed by a chain of offshore bars of barrier islands broken at
intervals by inlets. These bars may be either deposited offshore or may
be coastal dunes that have become isolated by recent seal level rises.
4. Tectonic estuary: These are coastal indentures that have formed
through tectonic processes such as slippage along a fault line (San
Francisco Bay), folding or movement of the earth's bedrock often with a
large inflow of freshwater.
5. Volcanic estuary: These coastal bodies of open water, a result of
volcanic processes are depressions or craters that have direct and/or
subsurface connections with the ocean and may or may not have surface
continuity with streams. These formations are unique to island areas of
volcanic orgin.
C. Inlet type. Inlets in various forms are an integral part of the
estuarine environment as they regulate to a certain extent, the velocity
and magnitude of tidal exchange, the degree of mixing, and volume of
discharge to the sea.
1. Unrestricted: An estuary with a wide unrestricted inlet typically
has slow currents, no significant turbulence, and receives the full
effect of ocean waves and local disturbances which serve to modify the
shoreline. These estuaries are partially mixed, as the open mouth
permits the incursion of marine waters to considerable distances
upstream, depending on the tidal amplitude and stream gradient.
2. Restricted: Restrictions of estuaries can exist in many forms:
Bars, barrier islands, spits, sills, and more. Restricted inlets result
in decreased circulation, more pronounced longitudinal and vertical
salinity gradients, and more rapid sedimentation. However, if
[[Page 105]]
the estuary mouth is restricted by depositional features or land
closures, the incoming tide may be held back until it suddenly breaks
forth into the basin as a tidal wave, or bore. Such currents exert
profound effects on the nature of the subtrate, turbidity, and biota of
the estuary.
3. Permanent: Permanent inlets are usually opposite the mouths of
major rivers and permit river water to flow into the sea.
4. Temporary (Intermittent): Temporary inlets are formed by storms
and frequently shift position, depending on tidal flow, the depth of the
sea, and sound waters, the frequency of storms, and the amount of
littoral transport.
D. Bottom composition. The bottom composition of estuaries attests
to the vigorous, rapid, and complex sedimentation processes
characteristic of most coastal regions with low relief. Sediments are
derived through the hydrologic processes of erosion, transport, and
deposition carried on by the sea and the stream.
1. Sand: Near estuary mouths, where the predominating forces of the
sea build spits or other depositional features, the shore and substrates
of the estuary are sandy. The bottom sediments in this area are usually
coarse, with a graduation toward finer particles in the head region and
other zones of reduced flow, fine silty sands are deposited. Sand
deposition occurs only in wider or deeper regions where velocity is
reduced.
2. Mud: At the base level of a stream near its mouth, the bottom is
typically composed of loose muds, silts, and organic detritus as a
result of erosion and transport from the upper stream reaches and
organic decomposition. Just inside the estuary entrance, the bottom
contains considerable quantities of sand and mud, which support a rich
fauna. Mud flats, commonly built up in estuarine basins, are composed of
loose, coarse, and fine mud and sand, often dividing the original
channel.
3. Rock: Rocks usually occur in areas where the stream runs rapidly
over a steep gradient with its coarse materials being derived from the
higher elevations where the stream slope is greater. The larger
fragments are usually found in shallow areas near the stream mouth.
4. Oyster shell: Throughout a major portion of the world, the oyster
reef is one of the most significant features of estuaries, usually being
found near the mouth of the estuary in a zone of moderate wave action,
salt content, and turbidity. It is often a major factor in modifying
estuarine current systems and sedimentation, and may occur as an
elongated island or peninsula oriented across the main current, or may
develop parallel to the direction of the current.
Group II--Hydrographic
A. Circulation. Circulation patterns are the result of combined
influences of freshwater inflow, tidal action, wind and oceanic forces,
and serve many functions: Nutrient transport, plankton dispersal,
ecosystem flushing, salinity control, water mixing, and more.
1. Stratified: This is typical of estuaries with a strong freshwater
influx and is commonly found in bays formed from ``drowned'' river
valleys, fjords, and other deep basins. There is a net movement of
freshwater outward at the top layer and saltwater at the bottom layer,
resulting in a net outward transport of surface organisms and net inward
transport of bottom organisms.
2. Non-stratified: Estuaries of this type are found where water
movement is sluggish and flushing rate is low, although there may be
sufficient circulation to provide the basis for a high carrying
capacity. This is common to shallow embayments and bays lacking a good
supply of freshwater from land drainage.
3. Lagoonal: An estuary of this type is characterized by low rates
of water movement resulting from a lack of significant freshwater influx
and a lack of strong tidal exchange because of the typically narrow
inlet connecting the lagoon to the sea. Circulation whose major driving
force is wind, is the major limiting factor in biological productivity
within lagoons.
B. Tides. This is the most important ecological factor in an estuary
as it affects water exchange and its vertical range determines the
extent of tidal flats which may be exposed and submerged with each tidal
cycle. Tidal action against the volume of river water discharged into an
estuary results in a complex system whose properties vary according to
estuary structure as well as the magnitude of river flow and tidal
range. Tides are usually described in terms of the cycle and their
relative heights. In the United States, tide height is reckoned on the
basis of average low tide, which is referred to as datum. The tides,
although complex, fall into three main categories:
1. Diurnal: This refers to a daily change in water level that can be
observed along the shoreline. There is one high tide and one low tide
per day.
2. Semidiurnal: This refers to a twice daily rise and fall in water
that can be observed along the shoreline.
3. Wind/Storm tides: This refers to fluctuations in water elevation
to wind and storm events, where influence of lunar tides is less.
C. Freshwater. According to nearly all the definitions advanced, it
is inherent that all estuaries need freshwater, which is drained from
the land and measurably dilutes seawater to create a brackish condition.
Freshwater enters an estuary as runoff from the
[[Page 106]]
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_Sanctuary Nomination Process
922.10 General.
922.11 Selection of nominated areas for national marine sanctuary
designation.
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.
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.
[[Page 107]]
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 Definitions.
922.72 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.73 Additional prohibited or otherwise regulated activities--marine
reserves and marine conservation area.
922.74 Permit procedures and issuance criteria.
Appendix A to Subpart G of Part 922--Channel Islands National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart G of Part 922--Marine Reserve Boundaries
Appendix C to Subpart G of Part 922--Marine Conservation Area Boundary
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 issuance criteria.
922.84 Certification of other permits.
Appendix A to Subpart H of Part 922--Gulf of the Farallones National
Marine Sanctuary Boundary Coordinates
Appendix B to Subpart H of Part 922--2 nmi From the Farallon Islands
Boundary Coordinates
Appendix C to Subpart H of Part 922--No-Anchoring Seagrass Protection
Zones in Tomales Bay
Subpart I_Gray's Reef National Marine Sanctuary
922.90 Boundary.
922.91 Definitions.
922.92 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.93 Permit procedures and criteria.
922.94 Prohibited or otherwise regulated activities--Research area.
Appendix A to Subpart I of Part 922--Boundary Coordinates for the Gray's
Reef National Marine Sanctuary Research Area
Subpart J_National Marine Sanctuary of American Samoa
922.100 Scope of regulations.
922.101 Boundary.
922.102 Definitions.
922.103 Prohibited or otherwise regulated activities--Sanctuary-wide.
922.104 Prohibited or otherwise regulated activities--Sanctuary-wide
except in the Muli[amacr]va Unit.
922.105 Prohibited or otherwise regulated activities--Unit-specific.
922.106 Management and enforcement.
922.107 Permit procedures and criteria.
Appendix to Subpart J of Part 922--American Samoa National Marine
Sanctuary Boundary Coordinates
Subpart K_Cordell Bank National Marine Sanctuary
922.110 Boundary.
922.111 Definitions.
922.112 Prohibited or otherwise regulated activities.
922.113 Permit procedures and issuance criteria.
Appendix A to Subpart K of Part 922--Cordell Bank National Marine
Sanctuary Boundary Coordinates
Appendix B to Subpart K of Part 922--Line Representing the 50-Fathom
Isobath Surrounding Cordell Bank
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
171
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
[[Page 108]]
Appendix B to Subpart M of Part 922--Zones Within the Sanctuary Where
Overflights Below 1000 Feet Are Prohibited
Appendix C to Subpart M of Part 922--Dredged Material Disposal Sites
Within the Sanctuary
Appendix D to Subpart M of Part 922--Dredged Material Disposal Sites
Adjacent to the Monterey Bay National Marine Sanctuary
Appendix E to Subpart M of Part 922--Motorized Personal Watercraft Zones
and Access Routes Within the Sanctuary
Appendix F to Subpart M of Part 922--Davidson Seamount Management Zone
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.
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 other than for access to the Tortugas Ecological
Reserve--application procedures and issuance criteria.
922.167 Permits for access to the Tortugas Ecological Reserve.
922.168 [Reserved]
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
Subpart Q_Hawaiian Islands Humpback Whale National Marine Sanctuary
922.180 Purpose.
922.181 Boundary.
922.182 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 to part 922--Hawaiian Islands Humpback Whale
National Marine Sanctuary Boundary Description and Coordinates
of the Lateral Boundary Closures and Excluded Areas
Subpart R_Thunder Bay National Marine Sanctuary and Underwater Preserve
922.190 Boundary.
922.191 Definitions.
922.192 Joint Management Committee.
922.193 Prohibited or otherwise regulated activities.
922.194 Certification of preexisting leases, licenses, permits,
approvals, other authorizations, or rights to conduct a
prohibited activity.
922.195 Permit procedures and criteria.
922.196 Emergency regulations.
922.197 Consultation with affected federally-recognized Indian tribes.
922.198 Procedures for determining watercraft and related items which
sink on or after the date of Sanctuary designation to be an
underwater cultural resource.
Appendix A to Subpart R of Part 922--Thunder Bay National Marine
Sanctuary and Underwater Preserve Boundary Coordinates
Appendix B to Subpart R of Part 922--Minor Projects for Purposes of
Sec. 922.193(a)(2)(iii)
Authority: 16 U.S.C. 1431 et seq.
[[Page 109]]
Source: 60 FR 66877, Dec. 27, 1995, unless otherwise noted.
Editorial Note: Nomenclature changes to part 922 appear at 62 FR
3789, Jan. 27, 1997 and at 62 FR 67724, Dec. 30, 1997.
Subpart A_General
Sec. 922.1 Applicability of regulations.
Unless noted otherwise, the regulations in Subparts A, D and E apply
to all thirteen National Marine Sanctuaries for which site-specific
regulations appear in Subparts F through R, respectively. Subparts B and
C apply to the site evaluation list and to the designation of future
Sanctuaries.
[65 FR 39055, June 22, 2000]
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, 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
[[Page 110]]
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.
Assistant Administrator means the Assistant Administrator for Ocean
Services and Coastal Zone Management, National Oceanic and Atmospheric
Administration (NOAA), or designee.
Benthic community means the assemblage of organisms, substrate, and
structural formations found at or near the bottom that is periodically
or permanently covered by water.
Commercial fishing means any activity that results in the sale or
trade for intended profit of fish, shellfish, algae, or corals.
Conventional hook and line gear means any fishing apparatus operated
aboard a vessel and composed of a single line terminated by a
combination of sinkers and hooks or lures and spooled upon a reel that
may be hind- or electrically operated, hand-held or mounted. This term
does not include bottom longlines.
Cultural resources means any historical or cultural feature,
including archaeological sites, historic structures, shipwrecks, and
artifacts.
Director means, except where otherwise specified, the Director of
the Office of Ocean and Coastal Resource Management, NOAA, or designee.
Exclusive economic zone means the exclusive economic zone as defined
in the Magnuson Fishery Conservation and Management Act, 16 U.S. 1801 et
seq.
Fish wastes means waste materials resulting from commercial fish
processing operations.
Historical resource means any resource possessing historical,
cultural, archaeological or paleontological significance, including
sites, contextual information, structures, districts, and objects
significantly associated with or representative of earlier people,
cultures, maritime heritage, and human activities and events. Historical
resources include ``submerged cultural resources'', and also include
``historical properties,'' as defined in the National Historic
Preservation Act, as amended, and its implementing regulations, as
amended.
Indian tribe means any American Indian tribe, band, group, or
community recognized as such by the Secretary of the Interior.
Injure means to change adversely, either in the short or long term,
a chemical, biological or physical attribute of, or the viability of.
This includes, but is not limited to, to cause the loss of or destroy.
Inventory means a list of nominated areas selected by the Director
as qualifying for future consideration of designation as a national
marine sanctuary.
Lightering means at-sea transfer of petroleum-based products,
materials, or other matter from vessel to vessel.
Marine means those areas of coastal and ocean waters, the Great
Lakes and their connecting waters, and submerged lands over which the
United States exercises jurisdiction, including the exclusive economic
zone, consistent with international law.
Mineral means clay, stone, sand, gravel, metalliferous ore, non-
metalliferous ore, or any other solid material or other matter of
commercial value.
[[Page 111]]
National historic landmark means a district, site, building,
structure or object designated as such by the Secretary of the Interior
under the National Historic Landmarks Program (36 CFR part 65).
National Marine Sanctuary means an area of the marine environment of
special national significance due to its resource or human-use values,
which is designated as such to ensure its conservation and management.
Person means any private individual, partnership, corporation or
other entity; or any officer, employee, agent, department, agency or
instrumentality of the Federal government, of any State or local unit of
government, or of any foreign government.
Regional Fishery Management Council means any fishery council
established under section 302 of the Magnuson Fishery Conservation and
Management Act, 16 U.S.C. 1801 et seq.
Sanctuary quality means any of those ambient conditions, physical-
chemical characteristics and natural processes, the maintenance of which
is essential to the ecological health of the Sanctuary, including, but
not limited to, water quality, sediment quality and air quality.
Sanctuary resource means any living or non-living resource of a
National Marine Sanctuary that contributes to the conservation,
recreational, ecological, historical, research, educational, or
aesthetic value of the Sanctuary, including, but not limited to, the
substratum of the area of the Sanctuary, other submerged features and
the surrounding seabed, carbonate rock, corals and other bottom
formations, coralline algae and other marine plants and algae, marine
invertebrates, brine-seep biota, phytoplankton, zooplankton, fish,
seabirds, sea turtles and other marine reptiles, marine mammals and
historical resources. For Thunder Bay National Marine Sanctuary and
Underwater Preserve, Sanctuary resource means an underwater cultural
resource as defined at Sec. 922.191.
Secretary means the Secretary of the United States Department of
Commerce, or designee.
Shunt means to discharge expended drilling cuttings and fluids near
the ocean seafloor.
State means each of the several States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, American Samoa, the United States Virgin Islands, Guam,
and any other commonwealth, territory, or possession of the United
States.
Subsistence use means the customary and traditional use by rural
residents of areas near or in the marine environment for direct personal
or family consumption as food, shelter, fuel, clothing, tools, or
transportation; for the making and selling of handicraft articles; and
for barter, if for food or non-edible items other than money, if the
exchange is of a limited and non-commercial nature.
Take or taking means: (1) For any marine mammal, sea turtle, or
seabird listed as either endangered or threatened pursuant to the
Endangered Species Act, to harass, harm, pursue, hunt, shoot, wound,
kill, trap, capture, collect or injure, or to attempt to engage in any
such conduct; (2) For any other marine mammal, sea turtle, or seabird,
to harass, hunt, capture, kill, collect or injure, or to attempt to
engage in any such conduct. For the purposes of both (1) and (2) of this
definition, this includes, but is not limited to, to collect any dead or
injured marine mammal, sea turtle or seabird, or any part thereof; to
restrain or detain any marine mammal, sea turtle or seabird, or any part
thereof, no matter how temporarily; to tag any sea turtle, marine mammal
or seabird; to operate a vessel or aircraft or to do any other act that
results in the disturbance or molestation of any marine mammal, sea
turtle or seabird.
Tropical fish means fish or minimal sport and food value, usually
brightly colored, often used for aquaria purposes and which lives in a
direct relationship with live bottom communities.
Vessel means a watercraft of any description capable of being used
as a means of transportation in/on the waters of a Sanctuary.
[60 FR 66877, Dec. 27, 1995, as amended at 62 FR 4607, Jan. 30, 1997; 65
FR 39055, June 22, 2000; 79 FR 33860, June 13, 2014]
[[Page 112]]
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.
Subpart B_Sanctuary Nomination Process
Source: 79 FR 33860, June 13, 2014, unless otherwise noted.
Sec. 922.10 General.
(a) Nomination process. The sanctuary nomination process (see
National Marine Sanctuaries Web site www.sanctuaries.noaa.gov) is the
means by which the public can submit areas of the marine and Great Lakes
environments for consideration by NOAA as a national marine sanctuary.
(b) National significance criteria. The Director will consider the
following in determining if a nominated area is of special national
significance:
(1) The area's natural resources and ecological qualities are of
special significance and contribute to: Biological productivity or
diversity; maintenance or enhancement of ecosystem structure and
function; maintenance of ecologically or commercially important species
or species assemblages; maintenance or enhancement of critical habitat,
representative biogeographic assemblages, or both; or maintenance or
enhancement of connectivity to other ecologically significant resources.
(2) The area contains submerged maritime heritage resources of
special historical, cultural, or archaeological significance, that:
Individually or collectively are consistent with the criteria of
eligibility or listing on the National Register of Historic Places; have
met or which would meet the criteria for designation as a National
Historic Landmark; or have special or sacred meaning to the indigenous
people of the region or nation.
(3) The area supports present and potential economic uses, such as:
Tourism; commercial and recreational fishing; subsistence and
traditional uses; diving; and other recreational uses that depend on
conservation and management of the area's resources.
(4) The publicly-derived benefits of the area, such as aesthetic
value, public recreation, and access to places depend on conservation
and management of the area's resources.
(c) Management considerations. The Director will consider the
following in determining the manageability of a nominated area:
(1) The area provides or enhances opportunities for research in
marine science, including marine archaeology.
(2) The area provides or enhances opportunities for education,
including the understanding and appreciation of the marine and Great
Lakes environments.
(3) Adverse impacts from current or future uses and activities
threaten the area's significance, values, qualities, and resources.
(4) A national marine sanctuary would provide unique conservation
and management value for this area that also have beneficial values for
adjacent areas.
(5) The existing regulatory and management authorities for the area
could be supplemented or complemented to meet the conservation and
management goals for the area.
(6) There are commitments or possible commitments for partnerships
opportunities such as cost sharing, office space or exhibit space,
vessel time, or
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other collaborations to aid conservation or management programs for the
area.
(7) There is community-based support for the nomination expressed by
a broad range of interests, such as: Individuals or locally-based groups
(e.g., friends of group, chamber of commerce); local, tribal, state, or
national agencies; elected officials; or topic-based stakeholder groups,
at the local, regional or national level (e.g., a local chapter of an
environmental organization, a regionally-based fishing group, a
national-level recreation or tourism organization, academia or science-
based group, or an industry association).
(d) Following evaluation of a nomination against the national
significance criteria and management considerations, the Director may
place nominated areas in a publicly available inventory for future
consideration of designation as a national marine sanctuary.
(e) A determination that a site is eligible for national marine
sanctuary designation, by itself shall not subject the site to any
regulatory control under the Act. Such controls may only be imposed
after designation.
Sec. 922.11 Selection of nominated areas for national marine
sanctuary designation.
(a) The Director may select a nominated area from the inventory for
future consideration as a national marine sanctuary.
(b) Selection of a nominated area from the inventory shall begin the
formal sanctuary designation process. A notice of intent to prepare a
draft environmental impact statement shall be published in the Federal
Register and posted on the Office of National Marine Sanctuaries Web
site. Any designation process will follow the procedures for designation
and implementation set forth in section 304 of the Act.
Subpart C_Designation of National Marine Sanctuaries
Sec. 922.20 Standards and procedures for designation.
In designating a National Marine Sanctuary, the Secretary shall
apply the standards and procedures set forth in section 303 and section
304 of the Act.
Sec. 922.21 [Reserved]
Sec. 922.22 Development of designation materials.
(a) In designating a National Marine Sanctuary, the Secretary shall
prepare the designation materials described in section 304 of the Act.
(b) If a proposed Sanctuary includes waters within the exclusive
economic zone, the Secretary shall notify the appropriate Regional
Fishery Management Council(s) which shall have one hundred and twenty
(120) days from the date of such notification to make recommendations
and, if appropriate, prepare draft fishery regulations and to submit
them to the Secretary. In preparing its recommendations and draft
regulations, the Council(s) shall use as guidance the national standards
of section 301(a) of the Magnuson Act (16 U.S.C. 1851) to the extent
that they are consistent and compatible with the goals and objectives of
the proposed Sanctuary designation. Fishery activities not proposed for
regulation under section 304(a)(5) of the Act may be listed in the draft
Sanctuary designation document as potentially subject to regulation,
without following the procedures specified in section 304(a)(5) of the
Act. If the Secretary subsequently determines that regulation of any
such fishery activity is necessary, then the procedures specified in
section 304(a)(5) of the Act shall be followed.
Sec. 922.23 [Reserved]
Sec. 922.24 Congressional documents.
In designating a National Marine Sanctuary, the Secretary shall
prepare and submit to Congress those documents described in section 304
of the Act.
Sec. 922.25 Designation determination and findings.
(a) In designating a National Marine Sanctuary, the Secretary shall
prepare a written Designation Determination and Findings which shall
include those findings and determinations described in section 303 of
the Act.
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(b) In addition to those factors set forth in section 303 of the
Act, the Secretary, when making a designation determination, shall
consider the Program's fiscal capability to manage the area as a
National Marine Sanctuary.
Subpart D_Management Plan Development and Implementation
Sec. 922.30 General.
(a) The Secretary shall implement each management plan, and
applicable regulations, including carrying out surveillance and
enforcement activities and conducting such research, monitoring,
evaluation, and education programs as are necessary and reasonable to
carry out the purposes and policies of the Act.
(b) Consistent with Sanctuary management plans, the Secretary shall
develop and implement site-specific contingency and emergency-response
plans designed to protect Sanctuary resources. The plans shall contain
alert procedures and actions to be taken in the event of an emergency
such as a shipwreck or an oil spill.
Sec. 922.31 Promotion and coordination of Sanctuary use.
The Secretary shall take such action as is necessary and reasonable
to promote and coordinate the use of National Marine Sanctuaries for
research, monitoring, and education purposes. Such action may include
consulting with Federal agencies, or other persons to promote use of one
or more Sanctuaries for research, monitoring and education, including
coordination with the National Estuarine Research Reserve System.
Subpart E_Regulations of General Applicability