SUBCHAPTER A GENERAL REGULATIONS - GPO ACT: OMB CONTROL NUM-BERS AUTHORITY: 44 U.S.C. 3501 et seq. 902.1 OMB control numbers assigned pursuant to the Paperwork Reduc

37

SUBCHAPTER A—GENERAL REGULATIONS

PART 902—NOAA INFORMATIONCOLLECTION REQUIREMENTSUNDER THE PAPERWORK REDUC-TION ACT: OMB CONTROL NUM-BERS

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

§ 902.1 OMB control numbers assignedpursuant to the Paperwork Reduc-tion Act.

(a) Purpose. This part collects anddisplays the control numbers assignedto information collection requirementsof the National Oceanic and Atmos-pheric Administration (NOAA) by theOffice of Management and Budget(OMB) pursuant to the Paperwork Re-duction Act (PRA). NOAA intends thatthis part comply with the requirementsof section 3507(c)(B)(i) of the PRA,which requires that agencies inventoryand display a current control numberassigned by the Director of OMB foreach agency information collection re-quirement.

(b) Display.

CFR part or section wherethe information collection re-

quirement is located

Current OMB control number(all numbers begin with

0648–)

15 CFRPart 908 ................................. –0025Part 911 ................................. –0157

917.11 ................................ –0008, –0019, and –0034917.22 ................................ –0008, –0019, and –0034917.30(b) ............................ –0008, –0019, and –0034917.41 ................................ –0008, –0019, and –0034917.43(c) ............................ –0119918.7 .................................. –0147Part 921, subpart B ............ –0121

Part 923 ................................. –0119924.6 .................................. –0141928.3 .................................. –0119929.10 ................................ –0141935.9 .................................. –0141936.8 .................................. –0141937.8 .................................. –0141938.8 .................................. –0141941.11 ................................ –0141942.8 .................................. –0141943.10 ................................ –0141944.9 .................................. –0141

Part 960, subpart B ............... –0174Part 970 ................................. –0145Part 971 ................................. –0170Part 981 ................................. –014450 CFR

216.22 ................................ –0178216.23 ................................ –0179216.24 ................................ –0387216.24(d) ............................ –0099 and –0217




0648–)

216.24(e) ............................ –0040216.27 ................................ –0084216.33 ................................ –0084216.37 ................................ –0084216.38 ................................ –0084216.39 ................................ –0084216.41 ................................ –0084216.45 ................................ –0084216.104 .............................. –0151216.106 .............................. –0151216.108 .............................. –0151216.114 .............................. –0151216.145 .............................. –0151216.155 .............................. –0151222.201(c) and (d) ............. –0079222.202 .............................. –0078222.204(f) and (g) .............. –0078222.301(i) ........................... –0084222.307 .............................. –0230222.308 .............................. –0084223.206(a) .......................... –0230223.206(b) and (c) ............. –0178223.207(e) .......................... –0309229.5 .................................. –0293229.6 .................................. –0292229.7 .................................. –0292230.8 .................................. –0311253.15 ................................ –0012259.30 ................................ –0090259.35 ................................ –0041260.103 .............................. –0266296.5 .................................. –0082300.13 ................................ –0304300.14 ................................ –0348300.17 ................................ –0349300.22 ................................ –0148300.24 ................................ –0202300.25 ................................ –0239300.26(c) ............................ –0239300.26(d) ............................ –0239300.27 ................................ –0040300.32 ................................ –0218300.34 ................................ –0306300.35 ................................ –0306300.103(a) .......................... –0194300.104(d) .......................... –0194300.104(e) .......................... –0194300.105(c) .......................... –0194300.106(e) .......................... –0194300.108(a) .......................... –0306300.108(c) .......................... –0305300.112 .............................. –0194300.113 .............................. –0194300.123 .............................. –0205300.124(b) .......................... –0016300.125 .............................. –0306300.152 .............................. –0228300.153(b) .......................... –0228300.154(b) .......................... –0228300.154(c) .......................... –0228300.154(d) .......................... –0228600.205 .............................. –0314600.215 .............................. –0314600.235 .............................. –0192600.501 .............................. –0089600.502 .............................. –0075600.503 .............................. –0354 and –0356600.504 .............................. –0075

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38

15 CFR Ch. IX (1–1–01 Edition)§ 902.1




0648–)

600.506 .............................. –0075600.507 .............................. –0075600.508 .............................. –0329600.510 .............................. –0075600.512 .............................. –0309600.520 .............................. –0075600.630 .............................. –0314600.725 .............................. –0346600.747 .............................. –0346600.1001 ............................ –0376600.1003 ............................ –0376600.1005 ............................ –0376600.1006 ............................ –0376600.1009 ............................ –0376600.1010 ............................ –0376 and–0413600.1011 ............................ –0376600.1012 ............................ –0376600.1013 ............................ –0376600.1014 ............................ –0376622.4 .................................. –0205 and –0336622.5 .................................. –0013, –0016 and –0392622.6 .................................. –0305 and –0306622.8 .................................. –0205622.15 ................................ –0013 and –0262622.18 ................................ –0340622.40(a)(2) ....................... –0205622.41 ................................ –0345622.41(a) ............................ –0016, and –0305622.41(g)(3) ....................... –0345622.45 ................................ –0365622.45(a) ............................ –0013635.4(d) .............................. –0327 and –0205635.4(g) .............................. –0202 and –0205635.5(a) .............................. –0371 and –0328635.5(b) .............................. –0013 and –0239635.5(c) .............................. –0339635.5(d) .............................. –0328635.5(e) .............................. –0323635.6(c) .............................. –0373635.7(c) .............................. –0374635.16 ................................ –0325635.21(d) ............................ –0202635.26 ................................ –0247635.31(b) ............................ –0216635.32 ................................ –0309635.33 ................................ –0338635.42 ................................ –0040635.43 ................................ –0040635.44 ................................ –0040635.46(b) ............................ –0363635.69(a) ............................ –0372640.4 .................................. –0205640.6 .................................. –0305 and –0306648.4 .................................. –0202 and –0212648.5 .................................. –0202648.6 .................................. –0202648.7 .................................. –0018, –0202, –0212, and

–0229648.8 .................................. –0306, –0229648.9 .................................. –0202 and –0307648.10 ................................ –0202 and –0307648.11 ................................ –0202648.13 ................................ –0391648.15 ................................ –0202648.17 ................................ –0202648.53 ................................ –0202648.54 ................................ –0202648.56 ................................ –0321648.70 ................................ –0238648.74 ................................ –0240648.76 ................................ –0202648.80 ................................ –0202




0648–)

648.81 ................................ –0202 and –0412648.82 ................................ –0202648.84 ................................ –0305648.86 ................................ –0202, –0391648.89 ................................ –0412648.91 ................................ –0202648.92 ................................ –0202648.93 ................................ –0202648.94 ................................ –0202648.96 ................................ –0202648.100 .............................. –0202648.106 .............................. –0202648.123 .............................. –0305648.144 .............................. –0305648.160 .............................. –0202654.6 .................................. –0305, –0306,

and –0307660.13 ................................ –0204660.14 ................................ –0214660.16 ................................ –0306660.17 ................................ –0204660.21(k) ............................ –0204660.23 ................................ –0214660.24 ................................ –0305660.25 ................................ –0307660.27 ................................ –0214660.28 ................................ –0214660.43 ................................ –0214660.48 ................................ 1 –0214660.303 .............................. –0271660.305 .............................. –0306660.322 .............................. –0305660.323 .............................. –0243660.333 .............................. –0203660.504 .............................. –0361660.512 .............................. –0204661.4 .................................. –0222661.20 ................................ –0222663.4 .................................. –0271663.6 .................................. –0306663.10 ................................ –0203663.11 ................................ –0203663.22 ................................ –0305663.33 ................................ –0203679.4 .................................. –0206, –0272, –0280, and

–0282679.4(k)(6)(iii) ..................... –0334679.4(k)(6)(iv) ..................... –0334679.4(k)(7)(iii) ..................... –0334679.5 .................................. –0213, –0269, and –0272679.6 .................................. –0206679.24 ................................ –0305 and –0307679.26 ................................ –0316679.28 ................................ –0330679.28(f)(3)(i) ..................... –0417679.28(f)(3)(ii) .................... –0417679.28(f)(3)(iii) .................... –0417679.30 ................................ –0269679.32 ................................ –0269 and –0272679.40 ................................ –0213 and –0272679.41 ................................ –0272679.42 ................................ –0272679.43 ................................ –0272 and –0282679.50 ................................ –0307 and –0318697.4(a), (d) and (e) .......... –0202697.5 .................................. –0202697.6 .................................. –0202697.8 .................................. –0350697.12 ................................ –0202697.21 ................................ –0351697.22 ................................ –0309

1 And –0305.


39

Nat. Oceanic and Atmospheric Admin., Commerce Pt. 904

[60 FR 39248, Aug. 2, 1995]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 902.1, see the List of CFRSections Affected, which appears in theFinding Aids section of the printed volumeand on GPO Access.

EFFECTIVE DATE NOTE: At 65 FR 77463, Dec.11, 2000, in § 902.1, the table in paragraph (b)under 50 CFR was amended by revising theOMB control number in numerical order for§ 648.9, and by adding in numerical order anentry for § 648.205 with a new OMB controlnumber, effective Jan. 10, 2001. For the con-venience of the user, the revised and addedtext is set forth as follows:

§ 902.1 OMB control numbers assigned pur-suant to the Paperwork Reduction Act.

* * * * *

(b) * * *

CFR partor sec-

tionwhere

the infor-mation

collectionrequire-ment islocated

Current OMB control number (all numbers beginwith 0648–)

* * * * *

50 CFR* * * * *

648.9 * * * -0202, -0307, and -0404* * * * *

648.205 -0404* * * * *

PART 903—PUBLIC INFORMATION

AUTHORITY: 5 U.S.C. 552 as amended byPub. L. 93–502; 5 U.S.C. 553; Reorg. Plan No.2 of 1965, 15 U.S.C. 311 note; 32 FR 9734, 31 FR10752.

§ 903.1 Access to information.The rules and procedures regarding

public access to the records of the Na-tional Oceanic and Atmospheric Ad-ministration are found at 15 CFR part4.

[57 FR 35749, Aug. 11, 1992]

PART 904—CIVIL PROCEDURES

Subpart A—General

Sec.904.1 Purpose and scope.904.2 Definitions.

904.3 Filing and service of documents.

Subpart B—Civil Penalties

904.100 General.904.101 Notice of Violation and Assessment

(NOVA).904.102 Procedures upon receipt of a NOVA.904.103 Hearing and administrative review.904.104 Final administrative decision.904.105 Payment of final assessment.904.106 Compromise of civil penalty.904.107 Joint and several respondents.904.108 Factors considered in assessing pen-

alties.

Subpart C—Hearing and AppealProcedures

GENERAL

904.200 Scope and applicability.904.201 Case docketing.904.202 Filing of documents.904.203 Appearances.904.204 Duties and powers of Judge.904.205 Disqualification of Judge.904.206 Pleadings, motions, and service.904.207 Amendment of pleadings or record.904.208 Extensions of time.904.209 Expedited proceedings.904.210 Summary decision.904.211 Failure to appear.904.212 Failure to prosecute or defend.904.213 Settlements.904.214 Stipulations.904.215 Consolidation.904.216 Prehearing conferences.

DISCOVERY

904.240 Discovery generally.904.241 Depositions.904.242 Interrogatories to parties.904.243 Admissions.904.244 Production of documents and inspec-

tion.904.245 Subpoenas.

HEARINGS

904.250 Notice of time and place of hearing.904.251 Evidence.904.252 Witnesses.904.253 Interlocutory appeals.904.254 Ex parte communications.

POST-HEARING

904.260 Official transcript.904.261 Post-hearing briefs.904.262 Documents, copies, and exhibits.

DECISION

904.270 Record of decision.904.271 Decision.904.272 Petition for reconsideration.904.273 Administrative review of decision.


40

15 CFR Ch. IX (1–1–01 Edition)§ 904.1

Subpart D—Permit Sanctions and Denials

GENERAL

904.300 Scope and applicability.904.301 Bases for sanctions or denials.904.302 Notice of permit sanction (NOPS).904.303 Notice of intent to deny permit

(NIDP).904.304 Opportunity for hearing.

SANCTIONS FOR NONPAYMENT OF PENALTIES

904.310 Nature of sanctions.904.311 Compliance.

SANCTIONS FOR VIOLATIONS

904.320 Nature of sanctions.904.321 Reinstatement of permit.904.322 Interim action.

Subpart E—Written Warnings

904.400 Purpose and scope.904.401 Written warning as a prior offense.904.402 Procedures.904.403 Review and appeal of a written

warning.

Subpart F—Seizure and ForfeitureProcedures

904.500 Purpose and scope.904.501 Notice of seizure.904.502 Bonded release.904.503 Appraisement.904.504 Administrative forfeiture pro-

ceedings.904.505 Summary sale.904.506 Remission and mitigation of for-

feiture.904.507 Petition for restoration of proceeds.904.508 Recovery of certain storage costs.904.509 Abandonment.904.510 Disposal of forfeited or abandoned

items.

AUTHORITY: 16 U.S.C. 1801–1882; 16 U.S.C.1531–1543; 16 U.S.C. 1361–1407; 16 U.S.C. 3371–3378; 16 U.S.C. 1431–1439; 16 U.S.C. 773–773k; 16U.S.C. 951–961; 16 U.S.C. 1021–1032; 16 U.S.C.3631–3644; 42 U.S.C. 9101 et seq.; 30 U.S.C. 1401et seq.; 16 U.S.C. 971–971i; 16 U.S.C. 781 et seq.;16 U.S.C. 2401–2412; 16 U.S.C. 2431–2444; 16U.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. 1851note; 15 U.S.C. 4201 et seq.; Pub. L. 102–587, 106Stat. 5039.

SOURCE: 52 FR 10325, Mar. 31, 1987, unlessotherwise noted.

Subpart A—General

§ 904.1 Purpose and scope.(a) This part sets forth the proce-

dures governing NOAA’s administra-tive 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 prop-erty.

(b) This subpart defines terms ap-pearing in the part and sets forth rulesfor the filing and service of documentsin administrative proceedings coveredby this part.

(c) The following statutes authorizeNOAA to assess civil penalties, imposepermit sanctions, issue written warn-ings, and/or seize and forfeit propertyin response to violations of those stat-utes:

(1) Antarctic Conservation Act of1978, 16 U.S.C. 2401–2412;

(2) Antarctic Marine Living Re-sources Convention Act of 1984, 16U.S.C. 2431–2444;

(3) Atlantic Salmon Convention Actof 1982, 16 U.S.C. 3601–3608;

(4) Atlantic Striped Bass Conserva-tion Act, 16 U.S.C. 1851 note;

(5) Atlantic Tunas Convention Act of1975, 16 U.S.C. 971–971i;

(6) Deep Seabed Hard Mineral Re-sources Act, 30 U.S.C. 1401 et seq.;

(7) Eastern Pacific Tuna LicensingAct of 1984, 16 U.S.C. 972–972h;

(8) Endangered Species Act of 1973, 16U.S.C. 1531–1543;

(9) Fur Seal Act Amendments of 1983,16 U.S.C. 1151–1175;

(10) Lacey Act Amendments of 1981,16 U.S.C. 3371–3378;

(11) Land Remote-Sensing Commer-cialization Act of 1981, 15 U.S.C. 4201 etseq.;

(12) Magnuson Fishery Conservationand Management Act, 16 U.S.C. 1801–1882;

(13) Marine Mammal Protection Actof 1972, 16 U.S.C. 1361–1407;

(14) Marine Protection, Research, andSanctuaries Act, 16 U.S.C. 1431–1439;

(15) Northern Pacific Halibut Act of1982, 16 U.S.C. 773–773k;

(16) North Pacific Fisheries Act of1954, 16 U.S.C. 1021–1032;

(17) Ocean Thermal Energy Conver-sion Act of 1980, 42 U.S.C. 9101 et seq.;

(18) Pacific Salmon Treaty Act of1985, 16 U.S.C. 3631–3644;

(19) Sponge Act, 16 U.S.C. 781 et seq.;(20) Tuna Conventions Act of 1950, 16

U.S.C. 951–961; and


41

Nat. Oceanic and Atmospheric Admin., Commerce § 904.3

(21) Whaling Convention Act of 1949,16 U.S.C. 916–916l.The procedures set forth in this partare intended to apply to administrativeproceedings under these and later-en-acted statutes administered by NOAA.

§ 904.2 Definitions.Unless the context otherwise re-

quires, or as otherwise noted, terms inthis part have the meanings prescribedin the applicable statute or regulation.In addition, the following definitionsapply:

Administrator means the Adminis-trator of NOAA or a designee.

Agency means the National Oceanicand Atmospheric Administration(NOAA).

Applicable statute means a statutecited in § 904.1(c), and any regulationsissued by NOAA to implement it.

Applicant means any person who ap-plies or is expected to apply for a per-mit.

Citation means a written warning (seesection 311(c) of the Magnuson FisheryConservation and Management Act, 16U.S.C. 1861(c), and section 11(c) of theNorthern Pacific Halibut Act of 1982, 16U.S.C. 773i(c)).

Decision means an initial or final de-cision of the Judge.

Ex parte communication means an oralor written communication not on thepublic record with respect to whichreasonable prior notice to all parties isnot given, but does not include inquir-ies regarding procedures, scheduling,and status.

Final administrative decision means anorder or decision of NOAA assessing acivil penalty or permit sanction whichis not subject to further Agency reviewunder this part, and which is subject tocollection proceedings or judicial re-view in an appropriate Federal districtcourt as authorized by law.

Forfeiture includes, but is not limitedto, surrender or relinquishment of anyclaim to an item by written agreement,or otherwise; or extinguishment of anyclaim to, and transfer of title to anitem to the Government by court orderor by order of the Administrator undera statute.

Initial decision means a decision ofthe Judge which, under applicable stat-ute and regulation, is subject to review

by the Administrator, but which be-comes the final administrative decisionin the absence of such review.

Judge means Administrative LawJudge.

NOAA (see Agency) means either theAdministrator or a designee acting onbehalf of the Administrator.

Party means the respondent and theAgency as represented by counsel; ifthey enter an appearance, a joint andseveral respondent, vessel owner, orpermit holder; and any other person al-lowed to participate under § 904.204(a).

Payment agreement means any prom-issory note, security agreement, settle-ment agreement, or other contractspecifying the terms according towhich a permit holder agrees to pay acivil penalty.

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

Permit holder means the holder of apermit or any agent or employee of theholder, and includes the owner and op-erator of a vessel for which the permitwas issued.

Sanction means suspension, revoca-tion, or modification of a permit (see§ 904.320).

Vessel owner means the owner of anyvessel that is liable in rem for any civilpenalty under this part, or whose per-mit may be subject to sanction as a re-sult of civil penalty proceedings underthis part.

Written warning means a notice inwriting to a person that a violation ofa minor or technical nature has beendocumented against the person oragainst the vessel which is owned oroperated by the person.

§ 904.3 Filing and service of docu-ments.

(a) Whenever this part requires serv-ice of a document or other paper, suchservice may effectively be made on theagent for service of process or on theattorney for the person to be served orother representative. Refusal by theperson to be served, or his or her agentor attorney, of service of a documentor other paper will be considered effec-tive service of the document or otherpaper as of the date of such refusal.Service will be considered effective


42

15 CFR Ch. IX (1–1–01 Edition)§ 904.100

when the document is mailed to an ad-dressee’s last known address.

(b) Any documents or pleadings filedor served must be signed:

(1) By the person or persons filing thesame,

(2) By an officer thereof if a corpora-tion,

(3) By an officer or authorized em-ployee if a government instrumen-tality, or

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

(c) A pleading or document will beconsidered served and/or filed as of thedate of the postmark (or as otherwiseshown for government-franked mail);or (if not mailed) as of the date actu-ally delivered in person; or as shown byelectronic mail transmission.

(d) Time periods begin to run on theday following the date of the docu-ment, paper, or event that begins thetime period. Saturdays, Sundays, andFederal holidays will be included incomputing such time, except that whensuch time expires on a Saturday, Sun-day, or Federal holiday, such periodwill be extended to include the nextbusiness day. This method of com-puting time periods also applies to anyact, such as paying a civil penalty, re-quired by this part to take place withina specified period of time. When the pe-riod of time prescribed or allowed isless than 11 days, intermediate Satur-days, Sundays, and legal holidays willbe excluded in the computation.

(e) If an oral or written application ismade to NOAA within 10 days after theexpiration of a time period establishedin this part for the required filing ofdocuments or other papers, NOAA maypermit a late filing if NOAA finds rea-sonable grounds for an inability or fail-ure to file within the time period. Allextensions will be in writing. Except asspecifically provided in this part, or byorder of an Administrative Law Judge(Judge) under this part, no requests foran extension of time may be granted.

Subpart B—Civil Penalties

§ 904.100 General.

This subpart sets forth the proce-dures governing NOAA administrativeproceedings for the assessment of civil

penalties under the statutes cited in§ 904.1(c).

§ 904.101 Notice of Violation and As-sessment (NOVA).

(a) A NOVA will be issued by NOAAand served personally or by registeredor certified mail, return receipt re-quested, upon the person alleged to besubject to a civil penalty (the respond-ent). A copy of the NOVA will similarlybe served upon the permit holder or thevessel owner, if the holder or owner isnot the respondent. The NOVA willcontain:

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

(2) A specific reference to the provi-sions of the Act, regulation, license,permit, agreement, or order allegedlyviolated;

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

(4) The amount of the civil penaltyassessed. The NOVA will also advise ofthe respondent’s rights upon receipt ofthe NOVA, and will be accompanied bya copy of the regulations in this partgoverning the proceedings.

(b) In assessing a civil penalty, NOAAwill take into account informationavailable to the Agency concerning anyfactor to be considered under the appli-cable statute, and any other informa-tion that justice or the purposes of thestatute require.

(c) The NOVA may also contain aproposal for compromise or settlementof the case. NOAA may also attach doc-uments that illuminate the facts be-lieved to show a violation.

§ 904.102 Procedures upon receipt of aNOVA.

(a) The respondent has 30 days fromreceipt of the NOVA in which to re-spond. During this time the respondentmay:

(1) Accept the penalty or compromisepenalty, if any, by taking the actionsspecified in the NOVA;

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

(3) Request a hearing under para-graph (e) of this section;

(4) Request an extension of time torespond under paragraph (c) of this sec-tion; or


43


(5) Take no action, in which case theNOVA becomes final in accordancewith § 904.104. The procedures set forthin paragraphs (a) (2), (3), (4), and (5) ofthis section may also be exercised bythe permit holder or vessel owner.

(b) The respondent, the permit hold-er, or the vessel owner may seekamendment or modification of theNOVA to conform to the facts or law asthat person sees them by notifyingAgency counsel at the telephone num-ber or address specified in the NOVA. Ifamendment or modification is sought,Agency counsel will either amend theNOVA or decline to amend it, and sonotify the respondent, permit holder,or vessel owner, as appropriate.

(c) The respondent, permit holder, orvessel owner may, within the 30-day pe-riod specified in paragraph (a) of thissection, request an extension of time torespond. Agency counsel may grant anextension of up to 30 days unless he orshe determines that the requestercould, exercising reasonable diligence,respond within the 30-day period. IfAgency counsel does not respond to therequest within 48 hours of its receipt,the request is granted automaticallyfor the extension requested, up to amaximum of 30 days. A telephonic re-sponse to the request within the 48-hour period is considered an effectiveresponse, and will be followed by writ-ten confirmation.

(d) Agency counsel may, for goodcause, grant an additional extensionbeyond the 30-day period specified inparagraph (c) of this section.

(e) If the respondent, the permitholder, or the vessel owner wishes ahearing, the request must be dated andin writing, and must be served either inperson or mailed to the address speci-fied in the NOVA. The requester musteither attach a copy of the NOVA orrefer to the relevant NOAA case num-ber. Agency counsel will promptly for-ward the request for hearing to the Of-fice of Administrative Law Judges.

(f) Any denial, in whole or in part, ofany request under this section that isbased upon untimeliness will be inwriting.

(g) Agency counsel may, in his or herdiscretion, treat any communicationfrom a respondent, a permit holder, or

vessel owner as a request for a hearingunder paragraph (e) of this section.

§ 904.103 Hearing and administrativereview.

(a) Any hearing request under§ 904.102(e) is governed by the hearingand review procedures set forth in sub-part C.

(b) In any hearing held in response toa request under § 904.102(e), the Admin-istrative Law Judge (Judge) will renderan initial decision. Any party to thehearing may seek the Administrator’sreview of the Judge’s initial decision,subject to the provisions of subpart C.

§ 904.104 Final administrative deci-sion.

(a) If no request for hearing is timelyfiled as provided in § 904.102(e), theNOVA becomes effective as the finaladministrative decision and order ofNOAA on the 30th day after service ofthe NOVA or on the last day of anydelay period granted.

(b) If a request for hearing is timelyfiled in accordance with § 904.102(e), thedate of the final administrative deci-sion is as provided in subpart C.

§ 904.105 Payment of final assessment.

(a) Respondent must make full pay-ment of the civil penalty assessed with-in 30 days of the date upon which theassessment becomes effective as thefinal administrative decision and orderof NOAA under § 904.104 or subpart C.Payment must be made by mailing ordelivering to NOAA at the addressspecified in the NOVA a check ormoney order made payable in UnitedStates currency in the amount of theassessment to the ‘‘Treasurer of theUnited States,’’ or as otherwise di-rected.

(b) Upon any failure to pay the civilpenalty assessed, NOAA may requestthe Justice Department to recover theamount assessed in any appropriatedistrict court of the United States, ormay act under § 904.106.

§ 904.106 Compromise of civil penalty.

(a) NOAA, in its sole discretion, maycompromise, modify, remit, or miti-gate, with or without conditions, any


44

15 CFR Ch. IX (1–1–01 Edition)§ 904.107

civil penalty imposed, or which is sub-ject to imposition, except as stated inparagraph (d) of this section.

(b) The compromise authority ofNOAA under this section is in additionto any similar authority provided inany applicable statute or regulation,and may be exercised either upon theinitiative of NOAA or in response to arequest by the alleged violator or otherinterested person. Any such requestshould be sent to Agency counsel atthe address specified in the NOVA.

(c) Neither the existence of the com-promise authority of NOAA under thissection nor NOAA’s exercise thereof atany time changes the date upon whichan assessment is final or payable.

(d) Exception. NOAA will not com-promise, modify, or remit a civil pen-alty imposed, or subject to imposition,under the Deep Seabed Hard MineralResources Act while an action to re-view or recover the penalty is pendingin a court of the United States.

§ 904.107 Joint and several respond-ents.

(a) A NOVA may assess a civil pen-alty against two or more respondentsjointly and severally. Each respondentis liable for the entire penalty, but nomore than the amount finally assessedmay be collected from the respondents.

(b) A hearing request by one respond-ent is considered a request by the otherrespondents. Agency counsel, havingreceived a hearing request from one re-spondent, will send a copy of it to theother joint and several respondents inthe case.

(c) A decision by the Judge or the Ad-ministrator after a hearing requestedby one joint and several respondent isbinding on all parties and on all otherjoint and several respondents, whetheror not they entered an appearance.

§ 904.108 Factors considered in assess-ing penalties.

(a) Factors to be taken into accountin assessing a penalty, depending uponthe statute in question, may includethe nature, circumstances, extent, andgravity of the alleged violation; the re-spondent’s degree of culpability, anyhistory of prior offenses, and ability topay; and such other matters as justicemay require. NOAA will take into ac-

count a respondent’s ability to paywhen assessing a civil penalty for aviolation of any of the statutes NOAAadministers.

(b) NOAA may, in consideration of arespondent’s ability to pay, increase ordecrease a penalty from an amountthat would otherwise be warranted bythe other relevant factors. A penaltymay be increased if a respondent’s abil-ity to pay is such that a higher penaltyis necessary to deter future violations,or for commercial violators, to make apenalty more than a cost of doing busi-ness. A penalty may be decreased if therespondent establishes that he or she isunable to pay an otherwise appropriatepenalty amount.

(c) Except as provided in paragraph(g) of this section, if a respondent as-serts that a penalty should be reducedbecause of an inability to pay, the re-spondent has the burden of provingsuch inability by providing verifiable,complete, and accurate financial infor-mation to NOAA. NOAA will not con-sider a respondent’s inability to payunless the respondent, upon request,submits such financial information asAgency counsel determines is adequateto evaluate the respondent’s financialcondition. Depending on the cir-cumstances of the case, Agency counselmay require the respondent to com-plete a financial information requestform, answer written interrogatories,or submit independent verification ofhis or her financial information. If therespondent does not submit the re-quested financial information, he orshe will be presumed to have the abil-ity to pay the penalty.

(d) Financial information relevant toa respondent’s ability to pay includes,but is not limited to, the value of re-spondent’s cash and liquid assets, abil-ity to borrow, net worth, liabilities, in-come, prior and anticipated profits, ex-pected cash flow, and the respondent’sability to pay in installments overtime. A respondent will be consideredable to pay a penalty even if he or shemust take such actions as pay in in-stallments over time, borrow money,liquidate assets, or reorganize his orher business. NOAA’s consideration ofa respondent’s ability to pay does notpreclude an assessment of a penalty in


45


an amount that would cause or con-tribute to the bankruptcy or other dis-continuation of the respondent’s busi-ness.

(e) Financial information regardingrespondent’s ability to pay should besubmitted to Agency counsel as soonafter receipt of the NOVA as possible.If a respondent has requested a hearingon the offense alleged in the NOVA andwants his or her inability to pay con-sidered in the initial decision of theJudge, verifiable financial informationmust be submitted to Agency counselat least 15 days in advance of the hear-ing. In deciding whether to submitsuch information, the respondentshould keep in mind that the Judgemay assess de novo a civil penalty ei-ther greater or smaller than that as-sessed in the NOVA.

(f) Issues regarding ability to paywill not be considered in an adminis-trative review of an initial decision ifthe financial information was not pre-viously presented by the respondent tothe Judge at the hearing.

(g) Whenever a statute requiresNOAA to take into consideration a re-spondent’s ability to pay when assess-ing a penalty, NOAA will take intoconsideration information available toit concerning a respondent’s ability topay. In such case, the NOVA will ad-vise, in accordance with section 904.102of this part, that respondent may seekto have the penalty amount modifiedby Agency counsel on the basis that heor she does not have the ability to paythe penalty assessed. A request to havethe penalty amount modified on thisbasis must be made in accordance with§ 904.102 of this part and should be ac-companied by supporting financial in-formation. Agency counsel may re-quest the respondent to submit suchadditional verifiable financial informa-tion as Agency counsel determines isnecessary to evaluate the respondent’sfinancial condition (such as by re-sponding to a financial request form orwritten interrogatories, or by author-izing independent verification of re-spondent’s financial condition). A re-spondent’s failure to provide the re-quested information may serve as thebasis for inferring that such informa-tion would not have supported the re-spondent’s assertion of inability to pay

the penalty assessed in the NOVA Ifthe respondent has requested a hearingon the offense alleged in the NOVA, theAgency must submit information onthe respondent’s financial condition sothat the Judge may consider that in-formation, along with any other fac-tors required to be considered, in theJudge’s de novo assessment of a pen-alty. Agency counsel may obtain suchfinancial information through dis-covery procedures under § 904.240 of thispart, or otherwise. A respondent’s re-fusal or failure to respond to such dis-covery requests may serve as the basisfor inferring that such informationwould have been adverse to any claimby respondent of inability to pay theassessed penalty, or result in respond-ent being barred from asserting finan-cial hardship.

[52 FR 10325, Mar. 31, 1987, as amended at 58FR 58485, Nov. 2, 1993]

Subpart C—Hearing and AppealProcedures

GENERAL

§ 904.200 Scope and applicability.(a) This subpart sets forth the proce-

dures governing the conduct of hear-ings and the issuance of initial andfinal decisions of NOAA in administra-tive proceedings involving alleged vio-lations of the laws cited in § 904.1(c) andregulations implementing these laws,including civil penalty assessments andpermit sanctions and denials. By sepa-rate regulation, these rules may be ap-plied to other proceedings.

(b) Subject to the administrative di-rection of the Chief AdministrativeLaw Judge, each Administrative LawJudge (Judge) assigned by the ChiefAdministrative Law Judge is delegatedauthority to make the initial or finaldecision of the Agency (whichever ismade appropriate by regulation outsidethis subpart) in proceedings subject tothe provisions of this subpart, and totake actions to promote the efficientand fair conduct of hearings as set outin this subpart. The Judge has no au-thority to rule on challenges to the va-lidity of regulations promulgated bythe Agency.

(c) This subpart is not an inde-pendent basis for claiming the right to


46

15 CFR Ch. IX (1–1–01 Edition)§ 904.201

a hearing, but instead prescribes proce-dures for the conduct of hearings, theright to which is provided by other au-thority.

§ 904.201 Case docketing.Each request for hearing promptly

upon its receipt for filing in the Officeof Administrative Law Judges will beassigned a docket number and there-after the proceeding will be referred toby such number. Written notice of theassignment of hearing to a Judge willpromptly be given to the parties.

§ 904.202 Filing of documents.(a) Pleadings, papers, and other docu-

ments in the proceeding must be filedin conformance with § 904.3 directlywith the Judge, with copies served onall other parties. Pleadings, papers,and other documents pertaining to ad-ministrative review under § 904.273must be filed with the Administrator,with copies served on all other parties.

(b) Unless otherwise ordered by theJudge, discovery requests and answerswill be served on the opposing partyand need not be filed with the Judge.

§ 904.203 Appearances.A party may appear in person or by

or with counsel or other representa-tive.

§ 904.204 Duties and powers of Judge.The Judge has all powers and respon-

sibilities necessary to preside over theparties and the proceeding, to hold pre-hearing conferences, to conduct thehearing, and to make the decision inaccordance with these regulations and5 U.S.C. 554 through 557, including, butnot limited to, the authority and dutyto do the following:

(a) Rule on a request to participateas a party in the proceeding by allow-ing, denying, or limiting such partici-pation (such ruling will consider viewsof the parties and be based on whetherthe requester could be directly and ad-versely affected by the decision andwhether the requester can be expectedto contribute materially to the disposi-tion of the proceedings);

(b) Schedule the time, place, andmanner of conducting the pre-hearingconference or hearing, continue thehearing from day to day, adjourn the

hearing to a later date or a differentplace, and reopen the hearing at anytime before issuance of the decision, allin the Judge’s discretion, having dueregard for the convenience and neces-sity of the parties and witnesses;

(c) Schedule and regulate the courseof the hearing and the conduct of theparticipants and the media, includingthe power to close the hearings in theinterests of justice; seal the recordfrom public scrutiny to protect privi-leged information, trade secrets, andconfidential commercial or financialinformation; and strike testimony of awitness who refuses to answer a ques-tion ruled to be proper;

(d) Administer oaths and affirma-tions to witnesses;

(e) Rule on discovery requests, estab-lish discovery schedules, and, wheneverthe ends of justice would thereby beserved, take or cause depositions or in-terrogatories to be taken and issue pro-tective orders under § 904.240(d);

(f) Rule on motions, procedural re-quests, and similar matters;

(g) Receive, exclude, limit, and other-wise rule on offers of proof and evi-dence;

(h) Examine and cross-examine wit-nesses and introduce into the record onthe Judge’s own initiative documen-tary or other evidence;

(i) Rule on requests for appearance ofwitnesses or production of documentsand take appropriate action upon fail-ure of a party to effect the appearanceor production of a witness or documentruled relevant and necessary to theproceeding; as authorized by law, issuesubpoenas for the appearance of wit-nesses or production of documents;

(j) Require a party or witness at anytime during the proceeding to state hisor her position concerning any issue orhis or her theory in support of such po-sition;

(k) Take official notice of any matternot appearing in evidence that isamong traditional matters of judicialnotice; or of technical or scientificfacts within the general or specializedknowledge of the Department of Com-merce as an expert body; or of a non-privileged document required by law orregulation to be filed with or publishedby a duly constituted governmentbody; or of any reasonably available


47


public document; Provided, That theparties will be advised of the matternoticed and given reasonable oppor-tunity to show the contrary;

(l) For stated good reason(s), assess apenalty de novo without being bound bythe amount assessed in the NOVA;

(m) Prepare and submit a decision orother appropriate disposition documentand certify the record;

(n) Award attorney fees and expensesas provided by applicable statute orregulation; and

(o) Grant preliminary or interim re-lief.

§ 904.205 Disqualification of Judge.(a) The Judge may withdraw volun-

tarily from a particular case when theJudge deems himself/herself disquali-fied.

(b) A party may in good faith requestthe Judge to withdraw on the groundsof personal bias or other disqualifica-tion. The party seeking the disquali-fication must file with the Judge atimely affidavit or statement settingforth in detail the facts alleged to con-stitute the grounds for disqualifica-tion, and the Judge will rule on thematter. If the Judge rules against dis-qualification, the Judge will place allmatters relating to such claims of dis-qualification in the record.

§ 904.206 Pleadings, motions, and serv-ice.

(a) The original of all pleadings anddocuments must be filed with the Of-fice of Administrative Law Judges anda copy served upon each party. Allpleadings or documents when sub-mitted for filing must show that serv-ice has been made upon all parties.Such service must be made in accord-ance with § 904.3(a).

(b) Pleadings and documents to befiled may be reproduced by printing orany other process, provided the copiesare clear and legible; must be dated,the original signed in ink or as other-wise verified for electronic mail; andmust show the docket description andtitle of the proceeding, and the title, ifany, address, and telephone number ofthe signatory. If typewritten, the im-pression may be on only one side of thepaper and must be double spaced, picatype, if possible, except that

quotations may be single spaced andindented.

(c) Motions must normally be madein writing and must state clearly andconcisely the purpose of and reliefsought by the motion, the statutory orprincipal authority relied upon, andthe facts claimed to constitute thegrounds requiring the relief requested.

(d) Unless otherwise provided, the an-swer to any written motion, pleading,or petition must be served within 20days after date of service thereof. If amotion states that opposing counselhas no objection, it may be acted uponas soon as practicable, without await-ing the expiration of the 20-day period.Answers must be in writing, unlessmade in response to an oral motionmade at a hearing; must fully and com-pletely advise the parties and theJudge concerning the nature of the op-position; must admit or deny specifi-cally and in detail each material alle-gation of the pleading answered; andmust state clearly and concisely thefacts and matters of law relied upon.Any new matter raised in an answerwill be deemed controverted.

(e) A response to an answer will becalled a reply. A short reply restrictedto new matters may be served within 15days of service of an answer. The Judgehas discretion to dispense with thereply. No further responses are per-mitted.

§ 904.207 Amendment of pleadings orrecord.

The Judge, upon his or her own ini-tiative or upon application by a party,may order a party to make a more defi-nite statement of any pleading. TheJudge has discretion to permit eitherparty to amend its pleadings upon con-ditions fair to both parties. Harmlesserrors may be corrected (by deletion orsubstitution of words or figures), andbroad discretion will be exercised bythe Judge in permitting such correc-tions.

§ 904.208 Extensions of time.If appropriate and justified, and as

provided in § 904.3(e), the Judge maygrant any request for an extension oftime. Requests for extensions of timemust, except in extraordinary cir-cumstances, be made in writing.


48

15 CFR Ch. IX (1–1–01 Edition)§ 904.209

§ 904.209 Expedited proceedings.In the interests of justice and admin-

istrative efficiency, the Judge, on hisor her own initiative or upon the appli-cation of any party, may expedite theproceeding. A motion of a party to ex-pedite the proceeding may, in the dis-cretion of the Judge, be made orally orin writing with concurrent actual no-tice to all parties. If a motion for anexpedited hearing is granted, the hear-ing on the merits may not be scheduledwith less than three days’ notice, un-less all parties consent to an earlierhearing.

§ 904.210 Summary decision.The Judge may render a summary de-

cision disposing of all or part of theproceeding if:

(a) Jointly requested by every partyto the proceeding; and

(b) There is no genuine issue as toany material fact and a party is enti-tled to summary decision as a matterof law.

[61 FR 54731, Oct. 22, 1996]

§ 904.211 Failure to appear.(a) If a party fails to appear after

proper service of notice, the hearingmay proceed. A notation of failure toappear will be made in the record, andthe hearing may be conducted with theparties then present, or may be termi-nated if the Judge determines that pro-ceeding with the hearing will not aidthe decisional process.

(b) The Judge will place in the recordall the facts concerning the issuanceand service of the notice of time andplace of hearing.

(c) The Judge may deem a failure ofa party to appear after proper notice awaiver of any right to a hearing andconsent to the making of a decision onthe record.

§ 904.212 Failure to prosecute or de-fend.

Whenever the record discloses thefailure of either party to file docu-ments, respond to orders or noticesfrom the Judge, or otherwise indicatesan intention on the part of either partynot to participate further in the pro-ceeding, the Judge may issue anyorder, except dismissal, that is nec-

essary for the just and expeditious res-olution of the case.

[61 FR 54731, Oct. 22, 1996]

§ 904.213 Settlements.

If settlement is reached before theJudge has certified the record, theJudge may require the submission of acopy of the settlement agreement toassure that the Judge’s considerationof the case is completed and to orderthe matter dismissed on the basis ofthe agreement.

§ 904.214 Stipulations.

The parties may, by stipulation,agree upon any matters involved in theproceeding and include such stipula-tions in the record with the consent ofthe Judge. Written stipulations mustbe signed and served upon all parties.

§ 904.215 Consolidation.

The Judge may order two or moreproceedings that involve substantiallythe same parties or the same issuesconsolidated and/or heard together.

§ 904.216 Prehearing conferences.

(a) Prior to any hearing or at othertime deemed appropriate, the Judgemay, upon his or her own initiative, orupon the application of any party, ar-range a telephone conference and,where appropriate, record such tele-phone conference, or direct the partiesto appear for a conference to consider:

(1) Simplification or clarification ofthe issues or settlement of the case byconsent;

(2) The possibility of obtaining stipu-lations, admissions, agreements, andrulings on admissibility of documents,understandings on matters already ofrecord, or similar agreements that willavoid unnecessary proof;

(3) Agreements and rulings to facili-tate the discovery process;

(4) Limitation of the number of ex-pert witnesses or other avoidance ofcumulative evidence;

(5) The procedure, course, and con-duct of the hearing;

(6) The distribution to the partiesand the Judge prior to the hearing ofwritten testimony and exhibits inorder to expedite the hearing;


49


(7) Such other matters as may aid inthe disposition of the proceeding.

(b) The Judge in his or her discretionmay issue an order showing the mat-ters disposed of in such conference.

DISCOVERY

§ 904.240 Discovery generally.(a) Preliminary position on issues and

procedures. Prior to hearing the Judgewill ordinarily require from the partiesa written submission stating their pre-liminary positions on legal and factualissues and procedures, listing potentialwitnesses and summarizing their testi-mony, and listing exhibits. Except forinformation regarding a respondent’sability to pay an assessed penalty, thisdocument, which must be served on allother parties, will normally obviatethe need for further discovery. Failureto provide the requested informationmay result in the exclusion of wit-nesses and/or exhibits at the hearing.See also § 904.212. A party has the af-firmative obligation to supplement thesubmission as new information be-comes known to the party.

(b) Additional discovery. Upon writtenmotion by a party, the Judge mayallow additional discovery only upon ashowing of relevance, need, and reason-able scope of the evidence sought, byone or more of the following methods:deposition upon oral examination orwritten questions, written interrog-atories, production of documents orthings for inspection and other pur-poses, and requests for admission. Withrespect to information regarding a re-spondent’s ability to pay an assessedpenalty, the Agency may serve any dis-covery request (i.e., deposition, inter-rogatories, admissions, production ofdocuments) directly upon the respond-ent without first seeking an order fromthe Judge.

(c) Time limits. Motions for deposi-tions, interrogatories, admissions, orproduction of documents or things maynot be filed within 20 days of hearingexcept on order of the Judge for goodcause shown. Oppositions to a dis-covery motion must be filed within 10days of service unless otherwise pro-vided in these rules or by the Judge.

(d) Oppositions. Oppositions to anydiscovery motion or portion thereof

must state with particularity thegrounds relied upon. Failure to objectin a timely fashion constitutes waiverof the objection.

(e) Scope of discovery. The Judge maylimit the scope, subject matter, meth-od, time, or place of discovery. Unlessotherwise limited by order of theJudge, the scope of discovery is as fol-lows:

(1) In general. As allowed under para-graph (b) of this section, parties mayobtain discovery of any matter, notprivileged, that is relevant to the alle-gations of the charging document, tothe proposed relief, or to the defensesof any respondent, or that appears rea-sonably calculated to lead to the dis-covery of admissible evidence.

(2) Hearing preparation: Materials. Aparty may not obtain discovery of ma-terials prepared in anticipation of liti-gation except upon a showing that theparty seeking discovery has a substan-tial need for the materials in prepara-tion of his or her case, and is unablewithout undue hardship to obtain thesubstantial equivalent of the materialsby other means. Mental impressions,conclusions, opinions, or legal theoriesof an attorney or other representativeof a party are not discoverable underthis section.

(3) Hearing preparation: Experts. Aparty may discover the substance ofthe facts and opinions to which an ex-pert witness is expected to testify anda summary of the grounds for eachopinion. A party may also discoverfacts known or opinions held by an ex-pert consulted by another party in an-ticipation of litigation but not ex-pected to be called as a witness upon ashowing of exceptional circumstancesmaking it impracticable for the partyseeking discovery to obtain such factsor opinions by other means.

(f) Failure to comply. If a party fails tocomply with any subpoena or orderconcerning discovery, the Judge may,in the interest of justice:

(1) Infer that the admission, testi-mony, documents, or other evidencewould have been adverse to the party;

(2) Rule that the matter or matterscovered by the order or subpoena areestablished adversely to the party;

(3) Rule that the party may not in-troduce into evidence or otherwise rely


50

15 CFR Ch. IX (1–1–01 Edition)§ 904.241

upon, in support of any claim or de-fense, testimony by such party, officer,or agent, or the documents or otherevidence;

(4) Rule that the party may not beheard to object to introduction and useof secondary evidence to show what thewithheld admission, testimony, docu-ments, or other evidence would haveshown;

(5) Strike part or all of a pleading(except a request for hearing), a motionor other submission by the party, con-cerning the matter or matters coveredby the order or subpoena.

[52 FR 10325, Mar. 31, 1987, as amended at 58FR 58486, Nov. 2, 1993; 61 FR 54731, Oct. 22,1996]

§ 904.241 Depositions.(a) Notice. If a motion for deposition

is granted, and unless otherwise or-dered by the Judge, the party takingthe deposition of any person mustserve on that person, and each otherparty, written notice at least 15 daysbefore the deposition would be taken(or 25 days if the deposition is to betaken outside the United States). Thenotice must state the name and ad-dress of each person to be examined,the time and place where the examina-tion would be held, the name and mail-ing address of the person before whomthe deposition would be taken, and thesubject matter about which each per-son would be examined.

(b) Taking the deposition. Depositionsmay be taken before any officer au-thorized to administer oaths by the lawof the United States or of the placewhere the examination is to be held, orbefore a person appointed by the Judge.Each deponent will be sworn, and anyparty has the right to cross-examine.Objections are not waived by failure tomake them during the deposition un-less the ground of the objection is onethat might have been removed if pre-sented at that time. The depositionwill be recorded, transcribed, signed bythe deponent, unless waived, and cer-tified by the officer before whom thedeposition was taken. All transcriptioncosts associated with the testimony ofa deponent will be borne by the partyseeking the deposition. Each party willbear its own expense for any copies ofthe transcript. See also § 904.252(c).

(c) Alternative deposition methods. Byorder of the Judge, the parties may useother methods of deposing parties orwitnesses, such as telephonic deposi-tions or depositions upon written ques-tions. Objections to the form of writtenquestions are waived unless made with-in five days of service of the questions.

(d) Use of depositions at hearing. (1) Athearing any part or all of a deposition,so far as admissible under the rules ofevidence applied as though the witnesswere then testifying, may be usedagainst any party who was present orrepresented at the taking of the deposi-tion, or had reasonable notice.

(2) The deposition of a witness maybe used by any party for any purpose ifthe Judge finds:

(i) That the witness is unable to at-tend due to death, age, health, impris-onment, disappearance or distancefrom the hearing site; or

(ii) That exceptional circumstancesmake it desirable, in the interest ofjustice, to allow the deposition to beused.

(3) If only part of a deposition is of-fered in evidence by a party, any partymay introduce any other part.

§ 904.242 Interrogatories to parties.

(a) Use at hearing. If ordered by theJudge, any party may serve upon anyother party written interrogatories.Answers may be used at hearing in thesame manner as depositions under§ 904.241(d).

(b) Answers and objections. Answersand objections must be made in writingunder oath, and reasons for the objec-tions must be stated. Answers must besigned by the person making them andobjections by the attorney makingthem. Unless otherwise ordered, an-swers and objections must be served onall parties within 20 days after serviceof the interrogatories.

(c) Option to produce records. Wherethe answer to an interrogatory may beascertained from the records of theparty upon whom the interrogatory isserved, it is sufficent to specify suchrecords and afford the party servingthe interrogatories an opportunity toexamine them.


51


§ 904.243 Admissions.

(a) Request. If ordered by the Judge,any party may serve on any otherparty a written request for admissionof the truth of any relevant matter offact set forth in the request, includingthe genuineness of any relevant docu-ment described in the request. Copiesof documents must be served with therequest. Each matter of which an ad-mission is requested must be sepa-rately stated.

(b) Response. Each matter is admittedunless a written answer or objection isserved within 20 days of service of therequest, or within such other time asthe Judge may allow. The answeringparty must specifically admit or denyeach matter, or state the reasons whyhe or she cannot truthfully admit ordeny it.

(c) Effect of admission. Any matter ad-mitted is conclusively established un-less the Judge on motion permits with-drawal or amendment of it for goodcause shown.

§ 904.244 Production of documents andinspection.

(a) Scope. If ordered by the Judge,any party may serve on any otherparty a request to produce a copy ofany document or specifically des-ignated category of documents, or toinspect, copy, photograph, or test anysuch document or tangible thing in thepossession, custody, or control of theparty upon whom the request is served.

(b) Procedure. The request must setforth:

(1) The items to be produced or in-spected by item or by category, de-scribed with reasonable particularity,and

(2) A reasonable time, place, andmanner for inspection. The party uponwhom the request is served must servewithin 20 days a response or objections,which must address each item or cat-egory and include copies of the re-quested documents.

§ 904.245 Subpoenas.

(a) In general. Subpoenas for the at-tendance and testimony of witnessesand the production of documentary evi-dence for the purpose of discovery orhearing may be issued as authorized by

the statute under which the proceedingis conducted.

(b) Timing. Applications for sub-poenas must be submitted at least 10days before the scheduled hearing ordeposition.

(c) Motions to quash. Any person towhom a subpoena is directed or anyparty may move to quash or limit thesubpoena within 10 days of its serviceor on or before the time specified forcompliance, whichever is shorter. TheJudge may quash or modify the sub-poena.

(d) Enforcement. In case of disobe-dience to a subpoena, NOAA may re-quest the Justice Department to in-voke the aid of any court of the UnitedStates in requiring the attendance andtestimony of witnesses and the produc-tion of documentary evidence.

HEARINGS

§ 904.250 Notice of time and place ofhearing.

(a) The Judge will promptly serve onthe parties notice of the time and placeof hearing. The hearing will not, exceptin extraordinary circumstances, beheld less than 20 days after service ofthe notice of hearing.

(b) In setting a place for hearing, theJudge will consider the convenienceand costs of the parties, including butnot limited to transportation costs andliving expenses of witnesses, attorneys,and the Judge; place of residence of therespondent(s); scheduling of other hear-ings within the same region; and avail-ability of facilities and court reporters.

(c) Upon the consent of each party tothe proceeding, the Judge may orderthat all or part of a proceeding beheard on submissions or affidavits if itappears that substantially all impor-tant issues may be resolved by meansof written materials and that efficientdisposition of the proceeding can bemade without an in-person hearing.For good cause, the Judge may, in hissole discretion, order that the testi-mony of witnesses be taken by tele-phone.

[52 FR 10325, Mar. 31, 1987, as amended at 61FR 54731, Oct. 22, 1996]


52

15 CFR Ch. IX (1–1–01 Edition)§ 904.251

§ 904.251 Evidence.(a) At the hearing, every party has

the right to present oral or documen-tary evidence in support of its case ordefense, to submit rebuttal evidence,and to conduct such cross-examinationas may be required for a full and truedisclosure of the facts. This paragraphmay not be interpreted to diminish thepowers and duties of the Judge underthis subpart.

(b) All evidence that is relevant, ma-terial, reliable, and probative, and notunduly repetitious or cumulative, isadmissible at the hearing. Formal rulesof evidence do not necessarily apply tothe proceedings, and hearsay evidenceis not inadmissible as such.

(c) Formal exceptions to the rulingsof the Judge are unnecessary. It is suf-ficient that a party, at the time of theruling, makes known the action that itdesires the Judge to take or its objec-tion to an action taken, and thegrounds therefor. Rulings on each ob-jection must appear in the record.

(d) In any case involving a chargedviolation of law in which the partycharged has admitted an allegation,evidence may be taken to establishmatters of aggravation or mitigation.

(e) Exhibits in a foreign languagemust be translated into English beforesuch exhibits are offered into evidence.Copies of both the untranslated andtranslated versions of the proposed ex-hibits, along with the name of thetranslator, must be served on the op-posing party at least 10 days prior tothe hearing unless the parties other-wise agree.

(f) A party who intends to raise anissue concerning the law of a foreigncountry must give reasonable notice.The Judge, in determining foreign law,may consider any relevant material orsource, whether or not submitted by aparty.

§ 904.252 Witnesses.(a) Any witness not a party may have

personal counsel to advise him or heras to his or her rights, but such counselmay not otherwise participate in thehearing.

(b) Witnesses who are not partiesmay be excluded from the hearingroom prior to the taking of their testi-mony.

(c) Witnesses other than NOAA em-ployees subpoenaed under these rules,including § 904.245, will be paid thesame fees and mileage that are paidwitnesses in the courts of the UnitedStates, and witnesses whose deposi-tions are taken are entitled to thesame fees as are paid for like servicesin the courts of the United States. Feesand any other related expenses forNOAA emoloyees as authorized by theNOAA travel handbook will be paid bythe party at whose instance the wit-ness appears or the deposition is taken.

(d) If a witness is expected to testifyin a language other than the Englishlanguage, the party sponsoring the wit-ness must provide for the services of aninterpreter and advise opposing counsel10 days prior to the hearing concerningthe extent to which interpreters are tobe used. When available, the inter-preter must be court certified under 28U.S.C. 1827.

§ 904.253 Interlocutory appeals.

(a) At the request of a party or on theJudge’s own initiative, the Judge maycertify to the Administrator for reviewa ruling that does not finally dispose ofthe proceeding, if the Judge determinesthat an immediate appeal therefrommay materially advance the ultimatedisposition of the matter.

(b) Upon certification by the Judge ofthe interlocutory ruling for review, theparties have 10 days to serve any briefsassociated with the certification. TheAdministrator will promptly decide thematter.

(c) No interlocutory appeal lies as toany ruling not certified by the Judge.

§ 904.254 Ex parte communications.

(a) Except to the extent required fordisposition of ex parte matters as au-thorized by law, after issuance of aNOVA, NOPS, or NIDP and until thefinal decision of the Agency is effectiveunder these regulations, no ex partecommunication relevant to the meritsof the proceeding may be made, orknowingly caused to be made:

(1) By the Judge or by an Agency em-ployee involved in the decisional proc-ess of the proceeding to any interested


53


person outside the Department of Com-merce or to any Agency employee in-volved in the investigation or prosecu-tion of the case;

(2) By any Agency employee involvedin the investigation or prosecution ofthe case to the Judge or to any Agencyemployee involved in the decisionalprocess of the proceeding; or

(3) By an interested person outsidethe Department of Commerce to theJudge or to any Agency employee in-volved in the decisional process of theproceeding.

(b) An Agency employee or Judgewho makes or receives a prohibitedcommunication must place in the hear-ing record the communication and anyresponse thereto, and the Judge or Ad-ministrator, as appropriate, may takeaction consistent with these rules, theapplicable statute, and 5 U.S.C. 556(d)and 557(d).

(c) Agency counsel may not partici-pate or advise in the decision of theJudge or the Administrator’s reviewthereof except as witness or counsel inthe proceeding in accordance with thissubpart. In addition, the Judge maynot consult any person or party on afact in issue unless notice and oppor-tunity for all parties to participate isprovided.

(d)(1) Paragraphs (a) and (b) of thissection do not apply to communica-tions concerning national defense orforeign policy matters. Such ex partecommunications to or from an Agencyemployee on national defense or for-eign policy matters, or from employeesof the United States Government in-volving intergovernmental negotia-tions, are allowed if the communica-tor’s position with respect to thosematters cannot otherwise be fairly pre-sented for reasons of foreign policy ornational defense.

(2) Ex parte communications subjectto this paragraph will be made a partof the record to the extent that they donot include information classifiedunder an Executive Order. Classifiedinformation will be included in a clas-sified portion of the record that will beavailable for review only in accordancewith applicable law.

POST-HEARING

§ 904.260 Official transcript.(a) The official transcript of testi-

mony taken, together with any exhib-its, briefs, or memoranda of law filedtherewith, will be filed with the Officeof Administrative Law Judges. Tran-scripts of testimony will be availablein any proceeding and will be suppliedto the parties upon the payment of feesat the rate provided in the agreementwith the reporter.

(b) The Judge may determine wheth-er ‘‘ordinary copy,’’ ‘‘daily copy,’’ orother copy (as those terms are definedby contract) will be necessary and re-quired for the proper conduct of theproceeding.

§ 904.261 Post-hearing briefs.(a) Unless a different schedule is es-

tablished in the discretion of theJudge, including the procedure in para-graph (b) of this section, the partiesmay file proposed findings of fact andconclusions of law, together with sup-porting briefs, within 30 calendar daysfrom service of the hearing transcript.Reply briefs may be submitted within15 days after service of the proposedfindings and conclusions to which theyrespond, unless the Judge sets a dif-ferent schedule.

(b) In cases involving few parties,limited issues, and short hearings, theJudge may require that any proposedfindings and conclusions and reasons insupport be presented orally at the closeof the hearing. In such case, the Judgewill advise the parties in advance ofhearing.

§ 904.262 Documents, copies and exhib-its.

(a) If original documents have beenreceived in evidence, a true copy there-of, or of such part as may be materialor relevant, may be substituted in lieuof the original during the hearing or atits conclusion. The Judge may, in hisor her discretion, and after notice tothe other parties, allow the withdrawalof original exhibits or any part thereofby the party entitled thereto for thepurpose of substituting copies. Thesubstitution of true copies of exhibits,or any part thereof, may be required bythe Judge in his or her discretion as a


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15 CFR Ch. IX (1–1–01 Edition)§ 904.270

condition of granting permission forwithdrawal of the original.

(b) Photographs may be substitutedfor physical evidence in the discretionof the Judge.

(c) Except upon the Judge’s order, orupon request by a party, physical evi-dence will be retained after the hearingby the authorized enforcement officerresponsible for the case.

DECISION

§ 904.270 Record of decision.(a) The exclusive record of decision

consists of the official transcript oftestimony and proceedings; exhibitsadmitted into evidence; briefs, plead-ings, and other documents filed in theproceeding; and descriptions or copiesof matters, facts, or documents offi-cially noticed in the proceeding. Anyother exhibits and records of any exparte communications will accompanythe record of decision.

(b) The Judge will arrange for appro-priate storage of the records of anyproceeding, which place of storage neednot necessarily be located physicallywithin the Office of AdministrativeLaw Judges.

(c) Exhibits offered after the close ofa hearing will not be admitted, unlessthe Judge specifically keeps open or re-opens the record to admit them.

§ 904.271 Decision.(a) After expiration of the period pro-

vided in § 904.261 for the filing of replybriefs (unless the parties have waivedbriefs or presented proposed findingsorally at the hearing), the Judge willrender a written decision upon therecord in the case, setting forth:

(1) Findings and conclusions, and thereasons or basis therefor, on all mate-rial issues of fact, law, or discretionpresented on the record, and the rulingon any proposed findings or conclu-sions presented by the parties;

(2) A statement of any facts noticedor relied upon in the decision; and

(3) Such other matters as the Judgeconsiders appropriate.

(b) If the parties have presented oralproposed findings at the hearing orhave waived presentation of proposedfindings, the Judge may at the termi-nation of the hearing announce the de-

cision, subject to later issuance of awritten decision under paragraph (a) ofthis section. The Judge may in suchcase direct the prevailing party to pre-pare proposed findings, conclusions,and an order.

(c) The Judge will serve the writtendecision on each of the parties by reg-istered or certified mail, return receiptrequested, and will promptly certify tothe Administrator the record, includ-ing the original copy of the decision, ascomplete and accurate.

(d) Unless the Judge orders a stayunder § 904.272, or unless a petition fordiscretionary review is filed or the Ad-ministrator issues an order to reviewupon his/her own initiative, an initialdecision becomes effective as the finaladministrative decision of NOAA 30days after service, unless otherwiseprovided by statute or regulations.

§ 904.272 Petition for reconsideration.

Unless an order of the Judge specifi-cally provides otherwise, any partymay file a petition for reconsiderationof an order or decision issued by theJudge. Such petitions must state thematter claimed to have been erro-neously decided and the alleged errorsor relief sought must be specified withparticularity. Petitions must be filedwithin 20 days after the service of suchorder or decision. Neither the filing northe granting of a petition for reconsid-eration may operate as a stay of anorder or decision or its effectivenessdate (including for purposes of § 904.273)unless specifically so ordered by theJudge. Within 15 days after the peti-tion is filed, any party to the pro-ceeding may file an answer in supportor in opposition. In the Judge’s discre-tion, the hearing may be reopened toconsider matters raised in a petitionthat could not reasonably have beenforeseen prior to issuance of the orderor decision.

§ 904.273 Administrative review of de-cision.

(a) Subject to the requirements ofthis section, any party may petitionfor review of an initial decision of theJudge within 30 days after the date thedecision is served. The petition shall beaddressed to the Administrator and


55


filed at the following address: Adminis-trator, National Oceanic and Atmos-pheric Administration, Department ofCommerce, Room 5128, 14th Street andConstitution Avenue NW., Washington,DC 20230.

(b) Review by the Administrator ofan initial decision is discretionary andis not a matter of right. A petition forreview nust be served upon all parties.If a party files a timely petition fordiscretionary review, or action to re-view is taken by the Administratorupon his or her own initiative, the ef-fectiveness of the initial decision isstayed until further order of the Ad-ministrator.

(c) Petitions for discretionary reviewmay be filed only upon one or more ofthe following grounds:

(1) A finding of a material fact isclearly erroneous based upon the evi-dence in the record;

(2) A necessary legal conclusion iscontrary to law or precedent:

(3) A substantial and important ques-tion of law, policy, or discretion is in-volved (including the amount of thecivil penalty); or

(4) A prejudicial procedural error hasoccurred.

(d) Each issue must be separatelynumbered, concisely stated, and sup-ported by detailed citations to therecord, statutes, regulations, and prin-cipal authorities. Issues of fact or lawnot argued before the Judge may notbe raised on review unless they wereraised for the first time in the initialdecision, or could not reasonably havebeen foreseen and raised by the partiesduring the hearing. The Administratorwill not consider new or additional evi-dence that is not a part of the recordbefore the Judge.

(e) No oral argument on petitions fordiscretionary review will be allowed.

(f) Within 30 days after service of apetition for discretionary review, anyparty may file and serve an answer insupport or in opposition. No further re-plies are allowed.

(g) If the Administrator declines toexercise discretionary review, suchorder will be served on all parties per-sonally or by registered or certifiedmail, return receipt requested, and willspecify the date upon which theJudge’s decision will become effective

as the final decision of NOAA. The Ad-ministrator need not give reasons fordeclining review.

(h) If the Administrator grants a pe-tition for discretionary review, he orshe will issue an order specifying issuesto be briefed and a briefing schedule.Such issues may constitute one ormore of the issues raised in the peti-tion for discretionary review and/ormatters the Administrator wishes toreview on his or her own initiative.Only those issues specified in the ordermay be argued in the briefs and consid-ered by the Administrator. No oral ar-gument will be permitted.

(i) After expiration of the period forfiling briefs under paragraph (h) of thissection, the Administrator will rendera written decision on the issues underreview. The Administrator will trans-mit the decision to each of the partiesby registered or certified mail, returnreceipt requested. The Administrator’sdecision becomes the final administra-tive decision on the date it is served,unless otherwise provided in the deci-sion.

Subpart D—Permit Sanctions andDenialsGENERAL

§ 904.300 Scope and applicability.(a) This subpart sets forth policies

and procedures governing the suspen-sion, revocation, modification, and de-nial of permits for reasons relating toenforcement of the statutes cited in§ 904.1(c), except for the statutes listedin paragraph (b) of this section. Thesereasons include nonpayment of civilpenalties or criminal fines, and viola-tions of statutes, regulations, or per-mit conditions. Nothing in this subpartprecludes sanction or denial of a per-mit for reasons not relating to enforce-ment. As appropriate, and unless other-wise specified in this subpart, the pro-visions of Subparts A, B, and C apply tothis subpart.

(b) Regulations governing sanctionsand denials of permits issued under theDeep Seabed Hard Mineral ResourcesAct (30 U.S.C. 1401 et seq.) appear at 15CFR part 970; under the Ocean ThermalEnergy Conversion Act of 1980 (42U.S.C. 9101 et seq.), at 15 CFR part 981.


56

15 CFR Ch. IX (1–1–01 Edition)§ 904.301

§ 904.301 Bases for sanctions or deni-als.

(a) Unless otherwise specified in asettlement agreement, or otherwiseprovided in this subpart, NOAA maytake action under this subpart with re-spect to any permit issued under thestatutes cited in § 904.1(c). The bases foran action to sanction or deny a permitare as follows:

(1) The commission of any offenseprohibited by any statute administeredby NOAA, including violation of anyregulation promulgated or permit con-dition or restriction prescribed there-under, by the permit holder or with theuse of a permitted vessel;

(2) The failure to pay a civil penaltyassessed under subparts B and C of thispart; or

(3) The failure to pay a criminal fineimposed or to satisfy any other liabil-ity incurred in a judicial proceedingunder any of the statutes administeredby NOAA.

(b) A sanction may be imposed or apermit denied under this subpart withrespect to the particular permit per-taining to the offense or nonpayment,and may also be applied to any NOAApermit held or sought by the permitholder, including permits for other ac-tivities or for other vessels. Examplesof the application of this policy are thefollowing:

(1) NOAA suspends Vessel A’s fishingpermit for nonpayment of a civil pen-alty pertaining to Vessel A. The ownerof Vessel A buys Vessel B and appliesfor a permit for Vessel B to participatein the same or a different fishery.NOAA may withhold that permit untilthe sanction against vessel A is lifted.

(2) NOAA revokes a Marine MammalProtection Act permit for violation ofits conditions. The permit holder sub-sequently applies for a permit underthe Endangered Species Act. NOAAmay deny the ESA application.

(3) Captain X, an officer in CountryY’s fishing fleet, is found guilty of as-saulting an enforcement officer. NOAAmay impose a condition on the permitsof Country Y’s vessels that they maynot fish in the fishery conservationzone with Captain X aboard. (See§ 904.320(c).)

(c) Sanction not extinguished by sale.[Reserved]

§ 904.302 Notice of permit sanction(NOPS).

(a) A NOPS will be served personallyor by registered or certified mail, re-turn receipt requested, on the permitholder. When a foreign fishing vessel isinvolved, service will be made on theagent authorized to receive and re-spond to any legal process for vessels ofthat country.

(b) The NOPS will set forth the sanc-tion to be imposed, the bases for thesanction, and any opportunity for ahearing. It will state the effective dateof the sanction, which will ordinarilynot be earlier than 30 calendar daysafter the date of receipt of the NOPS(see § 904.322).

(c) Upon demand by an authorized en-forcement officer, a permit holdermust surrender a permit against whicha sanction has taken effect. The effec-tiveness of the sanction, however, doesnot depend on surrender of the permit.

§ 904.303 Notice of intent to deny per-mit (NIDP).

(a) NOAA may issue an NIDP if theapplicant has been charged with a vio-lation of a statute, regulation, or per-mit administered by NOAA.

(b) The NIDP will set forth the basisfor its issuance and any opportunityfor a hearing, and will be served in ac-cordance with § 904.302(a).

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

(d) An NIDP may be issued in con-junction with or independent of aNOPS. Nothing in this section shouldbe interpreted to preclude NOAA frominitiating a permit sanction action fol-lowing issuance of the permit, or fromwithholding a permit under § 904.310(c)or § 904.320.

§ 904.304 Opportunity for hearing.(a) Except as provided in paragraph

(b) of this section, the recipient of aNOPS or NIDP will be provided an op-portunity for a hearing. The hearingmay be combined with any other hear-ing under this part.

(b) There will be no opportunity for ahearing if, with respect to the violationthat forms the basis for the NOPS orNIDP, the permit holder had a previousopportunity to participate as a party


57


in a judicial or administrative hearing,whether or not the permit holder didparticipate, and whether or not such ahearing was held.

(c) If entitled to a hearing under thissection, the recipient of a NOPS orNIDP will have 30 calendar days fromreceipt of the notice to request a hear-ing. A request for hearing must bedated and in writing. Failure to re-quest a hearing within 30 days con-stitutes a waiver of the opportunity fora hearing.

(d) Even if no hearing is requested,NOAA may order a hearing if it willserve the interests of justice. Thisparagraph does not create any right toa hearing in addition to the right pro-vided in paragraph (a) of this section.

SANCTIONS FOR NONPAYMENT OFPENALTIES

§ 904.310 Nature of sanctions.(a) NOAA may suspend a permit if:(1) A civil penalty has been assessed

against the permit holder under sub-parts B and C of this part, but the per-mit holder has failed to pay the pen-alty, or has defaulted on a paymentagreement; or

(2) A criminal fine or other liabilityfor violation of any of the statutes ad-ministered by NOAA has been imposedagainst the permit holder in a judicialproceeding, but payment has not beenmade.

(b) NOAA will suspend any permitissued to a foreign fishing vessel undersection 204(b) of the Magnuson FisheryConservation and Management Actunder the circumstances set forth inparagraph (a) of this section.

(c) NOAA will withhold any otherpermit for which the permit holder ap-plies if either condition in § 904.310(a) isapplicable.

§ 904.311 Compliance.If the permit holder pays the fine or

penalty in full or agrees to terms satis-factory to NOAA for payment:

(a) The suspension will not take ef-fect;

(b) Any permit suspended under§ 904.310 will be reinstated by affirma-tive order of NOAA; or

(c) Any application by the permitholder may be granted if the permit

holder is otherwise qualified to receivethe permit.

SANCTIONS FOR VIOLATIONS

§ 904.320 Nature of sanctions.Subject to the requirements of this

subpart, NOAA may take any of thefollowing actions or combination of ac-tions if a permit holder or permittedvessel violates a statute administeredby NOAA, or any regulation promul-gated or permit condition prescribedthereunder:

(a) Revocation. A permit may be can-celled, with or without prejudice toissuance of the permit in the future.Additional requirements for issuance ofany future permit may be imposed.

(b) Suspension. A permit may be sus-pended either for a specified period oftime or until stated requirements aremet, or both. If contingent on statedrequirements being met, the suspen-sion is with prejudice to issuance ofany permit until the requirements aremet.

(c) Modification. A permit may bemodified, as by imposing additionalconditions and restrictions. If the per-mit was issued for a foreign fishing ves-sel under section 204(b) of the Magnu-son Fishery Conservation and Manage-ment Act, additional conditions and re-strictions may be imposed on the appli-cation of the foreign nation involvedand on any permits issued under suchapplication.

§ 904.321 Reinstatement of permit.(a) A permit suspended for a specified

period of time will be reinstated auto-matically at the end of the period.

(b) A permit suspended until statedrequirements are met will be rein-stated only by affirmative order ofNOAA.

§ 904.322 Interim action.(a) To protect marine resources dur-

ing the pendency of an action underthis subpart, in cases of willfulness, oras otherwise required in the interest ofpublic health, welfare, or safety, an Ad-ministrative Law Judge may order im-mediate suspension, modification, orwithholding of a permit until a deci-sion is made on the action proposed ina NOPS or NIDP.


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15 CFR Ch. IX (1–1–01 Edition)§ 904.400

(b) The Judge will order interim ac-tion under paragraph (a) of this sec-tion, only after finding that there ex-ists probable cause to believe that theviolation charged in the NOPS or NIDPwas committed. The Judge’s finding ofprobable cause, which will be summa-rized in the order, may be made:

(1) After review of the factual basis ofthe alleged violation, following an op-portunity for the parties to submittheir views (orally or in writing, in theJudge’s discretion); or

(2) By adoption of an equivalent find-ing of probable cause or an admissionin any administrative or judicial pro-ceeding to which the recipient of theNOPS or NIDP was a party, including,but not limited to, a hearing to arrestor set bond for a vessel in a civil for-feiture action or an arraignment orother hearing in a criminal action.Adoption of a finding or admissionunder this paragraph may be madeonly after the Judge reviews pertinentportions of the transcript or otherrecords, documents, or pleadings fromthe other proceeding.

(c) An order for interim action underparagraph (a) of this section isunappealable and will remain in effectuntil a decision is made on the NOPSor NIDP. Where such interim actionhas been taken, the Judge will expediteany hearing requested under § 904.304.

Subpart E—Written Warnings

§ 904.400 Purpose and scope.

This subpart sets forth the policy andprocedures governing the issuance anduse of written warnings by persons au-thorized to enforce the statutes admin-istered by NOAA, and the review ofsuch warnings. A written warning maybe issued in lieu of assessing a civilpenalty or initiating criminal prosecu-tion for violation of any of the lawscited in § 904.1(c).

§ 904.401 Written warning as a prioroffense.

A written warning may be used as abasis for dealing more severely with asubsequent offense, including, but notlimited to, a violation of the same stat-ute or an offense involving an activitythat is related to the prior offense.

§ 904.402 Procedures.(a) Any person authorized to enforce

the laws listed in § 904.1(c) who finds aviolation of one of the laws may issuea written warning to a violator in lieuof other law enforcement action thatcould be taken under the applicablestatute.

(b) The written warning will:(1) State that it is a ‘‘written warn-

ing’’;(2) State the factual and statutory or

regulatory basis for its issuance;(3) Advise the violator of its effect in

the event of a future violation; and(4) Inform the violator of the right of

review and appeal under § 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 investiga-tion indicates that the violation ismore serious than realized at the timethe written warning was issued, or thatthe violator previously committed asimilar offense for which a writtenwarning was issued or other enforce-ment action was taken, NOAA maywithdraw the warning and commenceother civil or criminal proceedings.

(e) For written warnings under theMagnuson Fishery Conservation andManagement Act or the Northern Pa-cific Halibut Act of 1982, the enforce-ment officer will note the warning, itsdate, and reason for its issuance on thepermit, if any, of the vessel used in theviolation. If noting the warning on thepermit of the vessel is impracticable,notice of the written warning will beserved personally, or by registered orcertified mail, return receipt re-quested, on the vessel’s owner, oper-ator, or designated agent for service ofprocess, and such service will bedeemed notation on the permit.

§ 904.403 Review and appeal of a writ-ten warning.

(a) If a person receives a writtenwarning from an enforcement agent,the person may, within 90 days of re-ceipt of the written warning, seek re-view by the appropriate NOAA Re-gional Attorney. The request must bein writing and must present the factsand circumstances that explain or denythe violation described in the warning.The Regional Attorney will review the


59


information and notify the person ofhis or her decision.

(b) If a person receives a writtenwarning from a Regional Attorney orstaff attorney, or receives a decisionfrom a Regional Attorney affirming awritten warning, the person may ap-peal the warning or decision to theNOAA Assistant General Counsel forEnforcement and Litigation. The ap-peal must be brought within 30 days ofreceipt of the warning or decision fromthe Regional Attorney. The AssistantGeneral Counsel for Enforcement andLitigation may, in his or her discre-tion, affirm, expunge, or modify thewritten warning and will notify theperson of the decision. The decisionconstitutes the final agency action.

(c) The addresses of the NOAA Re-gional Attorneys are:

Regional Counsel, Office of General Counsel,NOAA, 14 Elm Street, Federal Building,Gloucester, MA 01930

Regional Counsel, Office of General Counsel,NOAA, 9450 Koger Blvd., Suite 102, St. Pe-tersburg, FL 33702

Regional Counsel, Office of General Counsel,NOAA, Bin C15700, 7600 Sandpoint Way,NE., Seattle, WA 98115

Regional Counsel, Office of General Counsel,NOAA, 300 South Ferry Street, Room 2013,Terminal Island, CA 90731

Regional Counsel, Office of General Counsel,NOAA, P.O. Box 1668, Juneau, AK 99802

The address of the Assistant GeneralCounsel for Enforcement and Litiga-tion is 1825 Connecticut Avenue NW.,Suite 607, Washington, DC 20235.

Subpart F—Seizure and ForfeitureProcedures

§ 904.500 Purpose and scope.(a) This subpart sets forth procedures

governing the release or forfeiture ofseized property (except property seizedand held solely as evidence) that is sub-ject to forfeiture under the variousstatutes administered by NOAA.

(b) Except as provided in this sub-part, these regulations apply to allseized property subject to forfeitureunder the statutes listed in Subpart A.This subpart is in addition to, and notin contradiction of, any special rulesregarding seizure, holding or disposi-tion of property seized under thesestatutes.

§ 904.501 Notice of seizure.Except where the owner, consignee,

or other party that the facts of recordindicate has an interest in the seizedproperty is personally notified, orwhere seizure is made under a searchwarrant, NOAA will, as soon as prac-ticable following the seizure or otherreceipt of seized property, mail noticeof the seizure by registered or certifiedmail, return receipt requested, to theowner or consignee, if known or easilyascertainable, or other party that thefacts of record indicate has an interestin the seized property. The notice willdescribe the seized property and statethe time, place and reason for the sei-zure. The notice will inform each inter-ested party of his or her right to applyfor remission or mitigation of the for-feiture (including any agreement thatmay be required under§ 904.506(b)(2)(vii)). The notice may becombined with a notice of the sale ofperishable fish issued under § 904.505.

§ 904.502 Bonded release.NOAA may, in its sole discretion, re-

lease any seized property upon depositwith NOAA of the full value of theproperty or such lesser amount asNOAA deems sufficient to protect theinterests served by the applicable stat-ute. The deposit will be held in a NOAAsuspense account, or deposited with theappropriate court, pending the out-come of forfeiture proceedings. In addi-tion, NOAA may, in its sole discretion,accept a bond or other security in placeof fish, wildlife, or other propertyseized. The bond will contain such con-ditions as NOAA deems appropriate.The provisions of § 904.506(f) apply toNOAA’s determination whether to re-lease the property. The deposit or bondwill for all purposes be considered torepresent the property seized and sub-ject to forfeiture.

§ 904.503 Appraisement.NOAA will appraise seized property

to determine its domestic value. Do-mestic value means the price at whichsuch or similar property is offered forsale at the time and place of appraise-ment in the ordinary course of trade. Ifthere is no market for the seized prop-erty at the place of appraisement, thevalue in the principal market nearest


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15 CFR Ch. IX (1–1–01 Edition)§ 904.504

the place of appraisement will be used.If the seized property may not lawfullybe sold in the United States, its domes-tic value will be determined by otherreasonable means.

§ 904.504 Administrative forfeitureproceedings.

(a) When authorized. This section ap-plies to property that is determinedunder § 904.503 to have a value of$100,000 or less, and that is subject toadministrative forfeiture under the ap-plicable statute. This section does notapply to conveyances seized in connec-tion with criminal proceedings.

(b) Procedure. (1) NOAA will publish anotice of proposed forfeiture once aweek for at least three successiveweeks in a newspaper of general cir-culation in the Federal judicial districtin which the property was seized. How-ever, if the value of the seized propertydoes not exceed $1,000, the notice maybe published by posting for at leastthree successive weeks in a con-spicuous place accessible to the publicat the National Marine Fisheries Serv-ice Enforcement Office, United StatesDistrict Court, or the United StatesCustoms House nearest the place of sei-zure, with the date of posting indicatedon the notice. In addition, a reasonableeffort will be made to serve the noticepersonally, or by registered or certifiedmail, return receipt requested, on eachperson whose whereabouts and interestin the property are known or easily as-certainable.

(2) The notice of proposed forfeiturewill:

(i) Describe the seized property, in-cluding any applicable registration orserial numbers;

(ii) State the time, place and reasonfor the seizure; and

(iii) Describe the rights of an inter-ested person to file a claim to the prop-erty (including the right to file a mo-tion to stay administrative forfeitureproceedings and to petition to remit ormitigate the forfeiture).

(3)(i) Except as provided in paragraph(b)(4) of this section, any person claim-ing the seized property may file aclaim with NOAA, at the address indi-cated in the notice, within 20 days ofthe date the notice was first published

or posted. The claim must state theclaimant’s interest in the property.

(ii) Except as provided in paragraph(b)(3)(v) or (b)(4) of this section, a bondfor costs in the penal sum of $5,000 or 10per cent of the appraised value of theproperty, whichever is lower, but notless than $250, with sureties satisfac-tory to the Administrator, must befiled with the claim for seized prop-erty. The bond may be posted on Cus-toms form 4615 or a similar form pro-vided by NOAA. There must be en-dorsed on the bond a list or schedule insubstantially the following form,signed by the claimant in the presenceof witnesses, and attested by the wit-nesses:List or schedule containing a par-ticular description of seized article,claim for which is covered by the with-in bond; to wit:llllllllllllllllllllllll

llllllllllllllllllllllll

The foregoing list is correct.llllllllllllllllllllllll

Claimant

Attest:llllllllllllllllllllllll

llllllllllllllllllllllll

A certified check may be substitutedfor a bond.

(iii) Filing a claim and posting abond does not entitle the claimant topossession of the property. However, itdoes stop administrative forfeiture pro-ceedings.

(iv) If the claim and bond are filedtimely in accordance with this section,NOAA will refer the matter to the At-torney General to institute forfeitureproceedings in the appropriate UnitedStates District Court.

(v) Upon satisfactory proof of finan-cial inability to post the bond, NOAAmay waive the bond requirement forany person claiming an interest in theseized property.

(4) Instead of, or in addition to, filinga claim and bond under paragraph(b)(3) of this section, any person claim-ing the seized property may file withNOAA within 20 days after the date offirst publication or posting of the no-tice of proposed forfeiture, a motion tostay administrative forfeiture pro-ceedings. The motion must contain:


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(i) The claimant’s verified statementshowing the claimant’s absolute titleto the seized property, free of all liensor other third party interests; and

(ii) The claimant’s offer to pay in ad-vance all reasonable costs anticipatedfor storage and maintenance of theproperty. NOAA, in its discretion, maygrant the stay and impose any condi-tions deemed reasonable, including butnot limited to length of the stay, fac-tors that would automatically termi-nate the stay, and any requirement fora bond to secure payment of storage ormaintenance costs. If NOAA denies orterminates the stay, the claimant, if heor she has not already done so, has 20days from receipt of the denial or ter-mination order to file a claim and bondin accordance with paragraph (b)(3) ofthis section. Failure to file the claimand bond within that 20 days will resultin summary forfeiture under paragraph(b)(5) of this section.

(5) If a claim and bond are not filedwithin 20 days of notice in accordancewith this section, or if a motion for astay under paragraph (b)(4) is pending,NOAA will declare the property for-feited. The declaration of forfeiturewill be in writing and will be served oneach person whose whereabouts andprior interest in the seized property areknown or easily ascertainable. The for-feited property will be subject to dis-position as authorized by law and regu-lations of NOAA.

(6) If the appraised value of the prop-erty is more than $100,000, or a timelyand satisfactory claim and bond forproperty appraised at $100,000 or lessare submitted to NOAA, the matterwill be referred to the Attorney Gen-eral to institute in rem proceedings inthe appropriate United States DistrictCourt.

§ 904.505 Summary sale.(a) In view of the perishable nature of

fish, any person authorized to enforce astatute administered by NOAA may, asauthorized by law, sell or cause to besold, and any person may purchase, fornot less than its domestic fair marketvalue, fish seized under such statute.

(b) Any person purchasing fish sub-ject to this section must deliver theproceeds of the sale to a person author-ized to enforce a statute administered

by NOAA immediately upon request ofsuch authorized person. Anyone whodoes not so deliver the proceeds may besubject to penalties under the applica-ble statute or statutes.

(c) NOAA will give notice of the saleby registered or certified mail, returnreceipt requested, to the owner or con-signee, if known or easily ascertain-able, or to any other party that thefacts of record indicate has an interestin the seized fish, unless the owner orconsignee or other interested party hasotherwise been personally notified. No-tice will be sent either prior to thesale, or as soon thereafter as prac-ticable.

(d) The proceeds of the sale, after de-ducting any reasonable costs of thesale, will be subject to any administra-tive or judicial proceedings in the safemanner as the seized fish would havebeen, including an action in rem for theforfeiture of the proceeds. Pending dis-position of such proceedings, the pro-ceeds will, as appropriate, either be de-posited in a NOAA suspense account orsubmitted to the appropriate court.The proceeds will not be subject to re-lease under § 904.502 or § 904.506(f).

(e) Seizure and sale of fish is withoutprejudice to any other remedy or sanc-tion authorized by law.

§ 904.506 Remission and mitigation offorfeiture.

(a) Application of this section. (1) Thissection establishes procedures for fil-ing with NOAA a petition for relieffrom forfeitures incurred, or alleged tohave been incurred, under any statuteadministered by NOAA that authorizesthe remission or mitigation of forfeit-ures.

(2) Although NOAA may properlyconsider a petition for relief from for-feiture along with other consequencesof a violation, the remission or mitiga-tion of a forfeiture is not dispositive ofany criminal charge filed, civil penaltyassessed, or permit sanction proposed,unless NOAA expressly so states. Re-mission or mitigation of a forfeiture isin the nature of executive clemencyand is granted in the sole discretion ofNOAA only when consistent with thepurposes of the particular statute in-volved and this section.


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15 CFR Ch. IX (1–1–01 Edition)§ 904.506

(3) NOAA will not consider a petitionfor remission or mitigation while a for-feiture proceeding is pending in federalcourt. Once such a case is referred tothe Attorney General for institution ofjudicial proceedings, and until the pro-ceedings are completed, any petitionreceived by NOAA will be forwarded tothe Attorney General for consider-ation.

(b) Petition for relief from forfeiture. (1)Any person having an interest in prop-erty seized and subject to forfeituremay file a petition for relief from for-feiture. Unless otherwise directed in anotice concerning the seized property,the petition shall be addressed toNOAA and filed with the Regional At-torney nearest to the place where theproperty is held (addresses in§ 904.403(c)). NOAA will consider a peti-tion filed after a declaration or decreeof forfeiture only if the petitioner dem-onstrates that he or she did not pre-viously know of the seizure and was insuch circumstances as prevented himor her from knowing of it, except thatNOAA will not consider a petition filedmore than three months from the dateof such declaration or decree. (See§ 904.507 regarding the right of certainclaimants to petition for restoration ofproceeds from the sale of forfeitedproperty.)

(2) The petition need not be in anyparticular form, but must set forth thefollowing:

(i) A description of the propertyseized;

(ii) The date and place of the seizure;(iii) The petitioner’s interest in the

property, supported as appropriate bybills of sale, contracts, mortgages, orother satisfactory evidence;

(iv) The facts and circumstances re-lied upon by the petitioner to justifythe remission or mitigation;

(v) Any request for release underparagraph (f) of this section pendingfinal decision on the petition, togetherwith any offer of payment to protectthe United States’ interest that peti-tioner makes in return for the release,and the facts and circumstances reliedupon by petitioner in the request;

(vi) The signature of the petitioner,his or her attorney, or other authorizedagent; and

(vii) An express agreement to deferadministrative or judicial forfeitureproceedings until completion of allother related judicial or administrativeproceedings (including any associatedcivil penalty or permit sanction pro-ceedings).

A false statement in a petition willsubject petitioner to prosecution under18 U.S.C. 1001.

(c) Investigation. NOAA will inves-tigate the facts and circumstancesshown by the petition and seizure, andmay in this respect appoint an investi-gator to examine the facts and preparea report of investigation.

(d) Decision on petition. (1) After in-vestigation under paragraph (c) of thissection, NOAA will decide the matterand notify the petitioner. NOAA mayremit or mitigate the forfeiture, onsuch terms and conditions as under theapplicable statute and the cir-cumstances are deemed reasonable andjust, upon a finding:

(i) That the forfeiture was incurredwithout willful negligence and withoutany intention on the part of petitionerto violate the applicable statute; or

(ii) That other circumstances existthat justify remission or mitigation ofthe forfeiture.

(2) Unless NOAA determines no validpurpose would be served, NOAA willcondition a decision to remit or miti-gate a forfeiture upon the petitioner’ssubmitting an agreement, in a formsatisfactory to NOAA, to hold theUnited States and its officers or agentsharmless from any and all claims basedon loss of or damage to the seized prop-erty or that might result from grant ofremission or mitigation. If the peti-tioner is not the beneficial owner ofthe property, or if there are otherswith a proprietary interest in the prop-erty, NOAA may require the petitionerto submit such an agreement executedby the beneficial owner or other inter-ested party. NOAA may also requirethat the property be promptly exportedfrom the United States.

(e) Compliance with the decision. A de-cision by NOAA to remit or mitigatethe forfeiture upon stated conditions,as upon payment of a specified amount,will be effective for 60 days after thedate of the decision. If the petitionerdoes not comply with the conditions


63


within that period in the manner pre-scribed by the decision, or make ar-rangements satisfactory to NOAA forlater compliance, the remission ormitigation will be void, and judicial oradministrative forfeiture proceedingswill be instituted or resumed.

(f) Release of seized property pendingdecision. (1) Upon request in the peti-tion for relief from forfeiture, NOAAmay in its discretion order the release,pending final decision on the petition,of all or part of the seized propertyupon payment by the petitioner of thefull value of the property to be releasedor such lesser amount as NOAA deemssufficient to protect the interestsserved by the applicable statute. Thefollowing, however, will not be re-leased:

(i) Property in which NOAA is notsatisfied that the petitioner has a sub-stantial interest;

(ii) Property whose entry into thecommerce of the United States is pro-hibited;

(iii) Live animals, except in the in-terest of the animals’ welfare;

(iv) Proceeds from the sale of seizedproperty sold under § 904.505 (see§ 904.507 regarding petitions for restora-tion of proceeds from the sale of prop-erty declared forfeited); or

(v) Property whose release appears toNOAA not to be in the best interest ofthe United States or serve the purposesof the applicable statute.

(2) If NOAA grants the request, theamount paid by the petitioner will bedeposited in a NOAA suspense account.The amount so deposited will for allpurposes be considered to represent theproperty seized and subject to for-feiture, and payment of the amount bypetitioner constitutes a waiver by thepetitioner of any claim arising fromthe seizure and custody of the prop-erty. NOAA will maintain the moneyso deposited pending further order ofNOAA, order of a court, or dispositionby applicable administrative pro-ceedings.

§ 904.507 Petition for restoration ofproceeds.

(a) The general provisions of § 904.506on petitions for remission or mitiga-tion of forfeitures apply to petitionsfor restoration of proceeds from the

sale of forfeited property, except asmodified by this section.

(b) In addition to any evidence re-quired under § 904.506, the petition forrestoration of proceeds must be sup-ported by satisfactory proof that thepetitioner did not know of the seizureprior to the declaration or decree offorfeiture and was in such cir-cumstances as prevented him or herfrom knowing of it.

(c) If forfeited property that is thesubject of a claim for restoration ofproceeds has been appropriated for offi-cial use, retention by the governmentwill be regarded as sale for the pur-poses of this section.

(d) No petition for restoration of pro-ceeds will be considered unless it issubmitted within three months of thedeclaration or decree of forfeiture.

(e) If no petition is timely filed, or ifthe petition is denied, prior to depos-iting the proceeds NOAA may use theproceeds of sale to reimburse the gov-ernment for any costs that by law maybe recovered or to pay any reward thatby law may be paid from such sums.

§ 904.508 Recovery of certain storagecosts.

If any fish, wildlife, or evidentiaryitem is seized and forfeited under theEndangered Species Act, 16 U.S.C. 1531through 1543, any person whose act oromission was the basis for the seizuremay be charged a reasonable fee for ex-penses to the United States connectedwith the transfer, board, handling orstorage of such property. If any fish orwildlife is seized in connection with aviolation of the Lacey Act Amend-ments of 1981, 16 U.S.C. 3371 through3378, or any property is seized in con-nection with a violation of the Magnu-son Fishery Conservation and Manage-ment Act, 16 U.S.C. 1801 through 1882,any person convicted thereof, or as-sessed a civil penalty therefor, may beassessed a reasonable fee for expensesof the United States connected withthe storage, care and maintenance ofsuch property. Within a reasonabletime after forfeiture, NOAA will sendto such person by registered or cer-tified mail, return receipt requested, abill for such fee. The bill will containan itemized statement of the applica-ble costs, and instructions on the time


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15 CFR Ch. IX (1–1–01 Edition)§ 904.509

and manner of payment. Paymentmust be made in accordance with thebill. If the recipient of the bill objectsto the reasonableness of the costs as-sessed he or she may, within 30 days ofreceipt, file written objections withNOAA at the address stated in the bill.NOAA will promptly review the writ-ten objections and within 30 days mailthe final decision to the party whofiled them. NOAA’s decision will con-stitute final agency action on the mat-ter.

§ 904.509 Abandonment.

(a) The owner of a seized item mayabandon it to NOAA by various means,including, but not limited to, expresslywaiving any claim to the item, refusingor otherwise avoiding delivery of mailconcerning the seizure (as by giving afalse name or address), or failing formore than 180 days to make or main-tain a claim to the item.

(b) The owner of a seized item waivesa claim to it by failing to respond with-in 120 days of issuance of a Governmentnotice concerning the seizure, or byvoluntarily relinquishing any interestin an item by written agreement, orotherwise.

(c) An item will be declared finallyabandoned, without recourse, upon afinding of abandonment.

§ 904.510 Disposal of forfeited or aban-doned items.

(a) Delivery to Administrator. Upon for-feiture of any fish, wildlife, parts orproducts thereof, or other property tothe United States, or the abandonmentor waiver of any claim to any suchproperty, it will be delivered to NOAAfor storage or disposal according to theprovisions of this section.

(b) Purposes of disposal. Disposal pro-cedures may be used to alleviate over-crowding of evidence storage facilities,and to avoid the accumulation of seizeditems where disposal is not otherwiseaccomplished by court order, as well asto address the needs of governmentalagencies and other institutions and or-ganizations for such items for sci-entific, educational, and public displaypurposes. In no case will items be usedfor personal purposes, either by loanrecipients or government personnel.

(c) Disposal of evidence. Items that areevidence may be disposed of only afterauthorization by the NOAA Office ofGeneral Counsel. Disposal approvalusually will not be given until the caseinvolving the evidence is closed, exceptthat perishable items may be author-ized for disposal sooner.

(d) Loans—(1) To institutions. Itemsapproved for disposal may be loaned toinstitutions or organizations request-ing such items for scientific, edu-cational, or public display purposes.Items will be loaned only after execu-tion of a loan agreement which pro-vides, among other things, that theloaned items will be used only for non-commercial scientific, educational, orpublic display purposes, and that theywill remain the property of the UnitedStates government, which may demandtheir return at any time. Parties re-questing the loan of an item must dem-onstrate the ability to provide ade-quate care and security for the item.Loans may be made to responsibleagencies of foreign governments in ac-cordance with the Convention on Inter-national Trade in Endangered Speciesof Wild Fauna and Flora.

(2) To individuals. Items generallywill not be loaned to individuals not af-filiated with an institution or organi-zation unless it is clear that the itemswill be used in a noncommercial man-ner, and for scientific, educational, orpublic display purposes which are inthe public interest.

(3) Selection of loan recipients. Recipi-ents of items will be chosen so as to as-sure a wide distribution of the itemsthroughout the scientific, educational,public display and museum commu-nities. Other branches of NMFS,NOAA, the Department of Commerce,and other governmental agencies willhave the right of first refusal of anyitem offered for disposal. The Adminis-trator may solicit applications, by pub-lication of a notice in the FEDERALREGISTER, from qualified persons, insti-tutions, and organizations who are in-terested in obtaining the propertybeing offered. Such notice will containa statement as to the availability ofspecific items for which transferees arebeing sought, and instructions on howand where to make application. Appli-cations will be granted in the following


65


order: Other offices of NMFS, NOAA,and the Department of Commerce; U.S.Fish and Wildlife Service; other Fed-eral agencies; other governmentalagencies; scientific, educational, orother public or private institutions;and private individuals.

(4) Loan agreement. Items will betransferred under a loan agreement ex-ecuted by the Administrator and theborrower. Any attempt on the part ofthe borrower to retransfer an item,even to another institution for relatedpurposes, will violate and invalidatethe loan agreement, and entitle theUnited States to immediate reposses-sion of the item, unless the prior ap-proval of the Administrator has beenobtained under § 904.510(d)(5). Violationof the loan agreement may also subjectthe violator to the penalties providedby the laws governing possession andtransfer of the item.

(5) Temporary reloans; documents to ac-company items. Temporary reloans bythe borrower to another qualified bor-rower (as for temporary exhibition)may be made if the Administrator isadvised in advance by the borrowers.Temporary loans for more than thirtydays must be approved in advance inwriting by the Administrator. A copyof the original loan agreement, and acopy of the written approval for reloan,if any, must accompany the item when-ever it is temporarily reloaned or isshipped or transported across state orinternational boundaries.

(e) Destruction of items. This para-graph and other provisions relating tothe destruction of property apply toitems:

(1) Which have not been handicrafted,or

(2) Which have been handicrafted andare of less than one hundred dollars($100) value, and

(3) For which no acceptable applica-tions have been received, or for whichpublication in the FEDERAL REGISTERof the availability of similar items inthe past has resulted in the receipt ofno applications. Such items may be de-stroyed if they have been in govern-ment ownership for more than oneyear. Perishable items which are notfit for human consumption may be de-stroyed sooner, if the authorization re-quired by § 904.510(c) has been obtained.

Destruction of items will be witnessedby two persons, one of whom may bethe disposing officer.

(f) Food items. Food items will, if pos-sible, be disposed of by gift to nonprofitgroups providing public welfare foodservices.

(g) Record-keeping. A ‘‘fish and wild-life disposal’’ form will be completedeach time an item is disposed of pursu-ant to the policy and procedure estab-lished herein, and will be retained inthe case file for the item. These formswill be available to the public.

PART 905—USE IN ENFORCEMENTPROCEEDINGS OF INFORMATIONCOLLECTED BY VOLUNTARY FISH-ERY DATA COLLECTORS

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, unlessotherwise noted.

§ 905.1 Scope.This part applies to the use, in en-

forcement proceedings conducted pur-suant to the Magnuson Act, theMMPA, and the ESA, of informationcollected by voluntary fishery data col-lectors.

§ 905.2 Definitions.When used in this part:Consenting owner means the owner,

operator, or crewmember of a vesselcarrying a voluntary fishery data col-lector.

Enforcement proceeding means any ju-dicial or administrative trial or hear-ing, initiated for the purpose of impos-ing any civil or criminal penalty au-thorized under the Magnuson Act,MMPA, or ESA, including but not lim-ited to, any proceeding initiated to:Impose a monetary penalty; modify,sanction, suspend or revoke a lease, li-cense or permit; secure forfeiture ofseized property; or incarcerate an indi-vidual.

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


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15 CFR Ch. IX (1–1–01 Edition)§ 905.3

Information means all observations,data, statistics, photographs, film, orrecordings collected by a voluntaryfishery data collector for conservationand management purposes, as definedby the Magnuson Act, MMPA, or ESA,while onboard the vessel of a con-senting owner.

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

MMPA means the Marine MammalProtection Act, as amended, 16 U.S.C.1361 et seq., and implementing regula-tions.

Secretary means the Secretary ofCommerce, the Secretary of the Inte-rior, their chosen designees, or anyother Federal agency authorized to en-force the provisions of the MagnusonAct, MMPA, or ESA.

Vessel means any vessel as defined at16 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 Sec-

retary;(3) For the purpose of collecting in-

formation; and(4) Whose presence aboard that vessel

is not required by the Secretary pursu-ant to provisions of the Magnuson Act,MMPA, or ESA, or their implementingregulations.

§ 905.3 Access to information.

Information collected by a voluntaryfishery data collector:

(a) Is subject to disclosure to boththe Secretary and the public, to the ex-tent required or authorized by law; and

(b) Is subject to discovery by anyparty to an enforcement proceeding, tothe extent required or authorized bylaw.

§ 905.4 Use of information.

(a) Except as provided for in para-graph (b) of this section, informationcollected by a voluntary fishery datacollector may not be introduced by theSecretary as evidence against any con-senting owner that is a party to an en-forcement proceeding.

(b) Provided that all applicable evi-dentiary requirements are satisfied:

(1) Information collected by a vol-untary fishery data collector may beintroduced in an enforcement pro-ceeding by any party except the Sec-retary;

(2) If information is introduced pur-suant to paragraph (b)(1) of this sec-tion, all information collected by a vol-untary fishery data collector may beintroduced by any other party, includ-ing the Secretary.

(c) Independent evidence derivedfrom information collected by a vol-untary fishery data collector may beintroduced by any party, including theSecretary, in an enforcement pro-ceeding.

§ 905.5 Exceptions.The provisions of this part shall not

apply in any enforcement proceedingagainst a consenting owner that al-leges the actual or attempted:

(a) Assault, intimidation, or harass-ment (including sexual harassment) ofany person; or

(b) Impairment or interference withthe duties of a voluntary fishery datacollector.

PART 908—MAINTAININGRECORDS AND SUBMITTING RE-PORTS ON WEATHER MODIFICA-TION ACTIVITIES

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 ac-

tivities.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.


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AUTHORITY: Pub. L. 92–305, 85 Stat. 735, De-cember 18, 1971.

SOURCE: 41 FR 23394, June 10, 1976, unlessotherwise noted.

§ 908.1 Definitions.As used in this part, terms shall have

the meaning ascribed in this section.(a) Administrator. The Administrator

of the National Oceanic and Atmos-pheric Administration.

(b) Person. Any individual, corpora-tion, company, association, firm, part-nership, society, joint stock company,any State or local government or anyagency thereof, or any other organiza-tion, whether commercial or nonprofit,except where acting solely as an em-ployee, agent, or independent con-tractor of the Federal government.

(c) Weather modification activity. Anyactivity performed with the intentionof producing artificial changes in thecomposition, behavior, or dynamics ofthe atmosphere.

(d) United States. The several States,the District of Columbia, the Common-wealth of Puerto Rico, and any terri-tory or insular possession of the UnitedStates.

(e) Persons whose activities relate toweather modification. Persons engagedin weather modification activities orengaged in the distribution or sale ofweather modification apparatus or ma-terials known by them to be destinedfor use in weather modification activi-ties.

(f) Project. A related series of weathermodification activities having a com-mon objective.

(g) Target area. The ground area with-in which the effects of the weathermodification activity are expected tobe found.

(h) Control area. A preselected, un-treated ground area used for compari-son with a target area.

(i) Weather modification apparatus.Any apparatus used with the intentionof producing artificial changes in thecomposition, behavior, or dynamics ofthe atmosphere. For example: Seedinggenerators, propane devices, flares,rockets, artillery projectiles, jet en-gines, etc.

(j) Sponsor. The primary person forwhom the weather modification activ-ity is performed.

(k) Operator. The person who is pri-marily responsible for carrying out theweather modification activity.

[41 FR 23394, June 10, 1976, as amended at 46FR 32233, June 22, 1981]

§ 908.2 Persons subject to reporting.Any person engaged or intending to

engage in any weather modification ac-tivity in the United States shall besubject to the reporting provisions ofthis part.

§ 908.3 Activities subject to reporting.(a) The following, when conducted as

weather modification activities, shallbe subject to reporting:

(1) Seeding or dispersing of any sub-stance into clouds or fog, to alter dropsize distribution, produce ice crystalsor coagulation of droplets, alter the de-velopment of hail or lightning, or in-fluence in any way the natural develop-ment cycle of clouds or their environ-ment;

(2) Using fires or heat sources to in-fluence convective circulation or toevaporate fog;

(3) Modifying the solar radiation ex-change of the earth or clouds, throughthe release of gases, dusts, liquids, oraerosols into the atmosphere;

(4) Modifying the characteristics ofland or water surfaces by dusting ortreating with powders, liquid sprays,dyes, or other materials;

(5) Releasing electrically charged orradioactive particles, or ions, into theatmosphere;

(6) Applying shock waves, sonic en-ergy sources, or other explosive oracoustic sources to the atmosphere;

(7) Using aircraft propellerdownwash, jet wash, or other sources ofartificial wind generation; or

(8) Using lasers or other sources ofelectromagnetic radiation.

(b) In addition to the activities listedabove, other similar activities fallingwithin the definition of weather modi-fication as set forth in § 908.1 are alsosubject to reporting.

(c) The requirement for reportingshall not apply to activities of a purelylocal nature that can reasonably be ex-pected not to modify the weather out-side of the area of operation. This ex-ception is presently restricted to theuse of lightning deflection or static


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15 CFR Ch. IX (1–1–01 Edition)§ 908.4

discharge devices in aircraft, boats, orbuildings, and to the use of small heatsources, fans, fogging devices, aircraftdownwash, or sprays to prevent the oc-currence of frost in tracts or fieldsplanted with crops susceptible to frostor freeze damage. Also expected fromthe requirement for reporting are reli-gious activities or other ceremonies,rites and rituals intended to modifythe weather.

(d) All activities noted in paragraphs(a) and (b) of this section are subject toinitial reporting. However, after theAdministrator has received initial no-tification of a planned activity, he maywaive some of the subsequent reportingrequirements. This decision to waivecertain reporting requirements will bebased on the general acceptability,from a technical or scientific view-point, of the apparatus and techniquesto be used.

(e) Other reporting exceptions maybe made in the future by rule of theAdministrator.

§ 908.4 Initial report.(a) Any person intending to engage in

any weather modification project oractivity in the United States shall pro-vide a report of his intention, to be re-ceived by the Administrator at least 10days before the commencement of suchproject or activity. This report shallcontain at least the following:

(1) The designation, if any, used bythe operator for the project or activity;

(2) The following dates for weathermodification activities:

(i) The date the first actual weathermodification activity is to be under-taken;

(ii) The date on which the final modi-fication activity is expected to occur;

(3) The following information on per-sons involved with the project or activ-ity:

(i) The name, affiliation, and addressof the sponsor;

(ii) The name, affiliation, and addressof the operator;

(4) The purpose of the project or ac-tivity;

(5) A map showing the approximatesize and location of the target and con-trol areas, and the location of eachitem of ground-based weather modi-fication apparatus, precipitation meas-

uring device, and, for airborne oper-ations, the airport;

(6) A description of the weathermodification apparatus, modificationagents, and the techniques to be em-ployed;

(7) The name and address of the re-sponsible individual from whom logbooks or other records of the project oractivity may be obtained;

(8) Answers to the following ques-tions on project safeguards:

(i) Has an Environmental ImpactStatement, Federal or State, beenfiled: Yesll No ll. If Yes, please fur-nish a copy as applicable.

(ii) Have provisions been made to ac-quire the latest forecasts, advisories,warnings, etc. of the National WeatherService, Forest Service, or others whenissued prior to and during operations?Yes ll No ll. If Yes, please specifyon a separate sheet.

(iii) Have any safety procedures(operational contraints, provisions forsuspension of operations, monitoringmethods, etc.) and any environmentalguidelines (related to the possible ef-fects of the operations) been includedin the operational plans? Yes ll Noll. If Yes, please furnish copies or adescription of the specific proceduresand guidelines; and

(9) Optional remarks, to include anyadditional items which the persondeems significant or of interest andsuch other information as the Adminis-trator may request the person to sub-mit.

(b) If circumstances prevent the sign-ing of a contract or agreement to per-form, or receipt of an authorization toproceed with, a weather modificationactivity at a date early enough to com-ply with paragraph (a) of this section,the initial report shall be provided soas to be received by the Administratorwithin 10 days of the date of signing ofthe contract or agreement, or receiptof authorization to proceed. In suchcases, the report shall be accompaniedby an explanation as to why it was notsubmitted at least 10 days prior to thecommencement of the activity.

(c) In the event that circumstancesbeyond the control of the person liableto report under these regulations pre-vent the submission of the initial re-port in a timely manner as described


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above, the report shall be forwarded asearly as possible, accompanied by anexplanation as to why a timely reporthas not been provided. If such expla-nation is deemed adequate, the Admin-istrator will consider the report astimely filed.

§ 908.5 Interim reports.(a) Any person engaged in a weather

modification project or activity in theUnited States on January 1 in any yearshall submit to the Administrator, notlater than 45 days thereafter, an in-terim report setting forth as of suchdate the information required belowwith respect to any such continuingproject or activity not previously fur-nished to the Administrator in a priorinterim report; provided that the Janu-ary 1 date shall not apply if other ar-rangements have previously been madewith the written approval of the Ad-ministrator.

(b) The interim report shall includethe file number assigned by the Admin-istrator and shall provide a summaryof the project or activity containing atleast the following information foreach month:

(1) Number of days on which actualmodification activities took place;

(2) Number of days on which weathermodification activities were conducted,segregated by each of the major pur-poses of the activities;

(3) Total number of hours of oper-ation of each type of weather modifica-tion apparatus (i.e., net hours of agentrelease);

(4) Total amount of agent used. Ifmore than one agent was used, eachshould be totaled separately (e.g., car-bon dioxide, sodium chloride, urea, sil-ver iodide).

(c) The totals for the items in para-graph (b) of this section shall be pro-vided for the period covered by the in-terim report.


§ 908.6 Final report.Upon completion of a weather modi-

fication project or activity the personwho performed the same shall submit areport to the Administrator not laterthan 45 days after completion of theproject or activity. The report shall in-

clude the file number assigned by theAdministrator and the following items:

(a) Information required for the in-terim reports (to the extent not pre-viously reported).

(b) The total number of days onwhich actual modification activitiestook place during the project or activ-ity.

(c) The total number of days duringthe project or activity on which weath-er modification activities were con-ducted, segregated by each of themajor purposes of the activities.

(d) The total number of hours of op-eration of each type of weather modi-fication apparatus during the projector activity (i.e., net hours of agent re-lease).

(e) The total amount of modificationagent(s) dispensed during the project oractivity. If more than one agent wasused, each should be totaled separately(e.g., carbon dioxide, sodium chloride,urea, silver iodide).

(f) The date on which the final weath-er modification activity occurred.


§ 908.7 Supplemental reports.Notwithstanding other regulations, a

supplemental report in letter form re-ferring to the appropriate NOAA filenumber, if assigned, must be made tothe Administrator immediately if anyreport of weather modification activi-ties submitted under § 908.4, § 908.5, or§ 908.6 is found to contain any materialinaccuracies, misstatements, and omis-sions. A supplemental report must alsobe made if there are changes in plansfor the project or activity.

§ 908.8 Maintenance of records.(a) Any person engaging in a weather

modification activity in the UnitedStates shall maintain a record of suchactivity. This record shall contain atleast the following, when applicable:

(1) A chronological record of activi-ties carried on, preferably in the formof a daily log, which shall include theNOAA file number assigned to theproject, the designation of each unit ofweather modification apparatus, and atleast the following information foreach unit:


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15 CFR Ch. IX (1–1–01 Edition)§ 908.9

(i) Date of the weather modificationactivity.

(ii) Position of each aircraft or loca-tion of each item of weather modifica-tion apparatus during each modifica-tion mission. Maps may be used.

(iii) Time when weather modificationactivity began and ended.

(iv) Total duration of operation ofeach unit of weather modification ap-paratus (i.e., net hours of agent re-lease).

(v) Type of each modification agentused.

(vi) Rate of dispersal of each agentduring the period of actual operation ofweather modification apparatus.

(vii) Total amount of agent used. Ifmore than one agent was used, reporttotal for each type separately.

(viii) Number of days on whichweather modification activities wereconducted, segregated by each of themajor purposes of the activities.

(2) The monthly totals of hours ofmodification activity, the amount ofmodification agent used, and the num-ber of days on which weather modifica-tion activities were conducted, seg-regated by each of the major purposesof the activities, shall be shown on thedaily log sheet for the last day of eachmonth.

(b) When the activity involvesground-based weather modification ap-paratus, records of the following shallalso be maintained, when applicable,but need not be made part of the dailylog:

(1) The location of each item ofweather modification apparatus in useand its identification such as type andmanufacturer’s model number. If theapparatus is not commercially avail-able, a brief description of the appa-ratus and the method of operationshould be recorded.

(2) The name and address of the per-son responsible for operating eachweather modification apparatus.

(3) The altitude and type of weatherphenomenon subjected to weathermodification activity during each oper-ational period (e.g., cumulus clouds be-tween 10,000 and 30,000 feet m.s.l.;ground fog).

(c) When the activity involves air-borne weather modification apparatus,records of the following shall also be

maintained, when applicable, but neednot be made a part of the daily log: Foreach airborne weather modification ap-paratus run: Altitude, air speed; re-lease points of modification agents,method of modification and character-istics of flares, rockets, or other deliv-ery systems employed; temperature atrelease altitude; and, for aircraft: Thetype of aircraft, its identification num-ber, the airport or airports used, andthe names and addresses of crew mem-bers and the person responsible for op-erating the weather modification appa-ratus; and the altitude and type ofweather phenomenon subjected toweather modification activity duringeach operational period (e.g., cumulusclouds between 10,000 and 30,000 feetm.s.l.; ground fog).

(d) The following records shall alsobe maintained, whenever applicable,but need not be made a part of thedaily log. Only data specifically col-lected for the reported activity need beretained; data available from othersources need not be included.

(1) Any descriptions that were re-corded of meteorological condiitons intarget and control areas during the pe-riods of operation; for example: Per-cent of cloud cover, temperature, hu-midity, the presence of lightning, hail,funnel clouds, heavy rain or snow, andunusual radar patterns.

(2) All measurements made of pre-cipitation in target and control areas.

(3) Any unusual results.

§ 908.9 Retention of records.Records required under § 908.8 shall be

retained and available for inspectionby the Administrator or his designatedrepresentatives for 3 years after com-pletion of the activity to which theyrelate. Such records shall be requiredto be produced for inspection only atthe place where normally kept. TheAdministrator shall have the right tomake copies of such records, if he orshe deems necessary.

[52 FR 4896, Feb. 18, 1987]

§ 908.10 Penalties.Knowing and willful violation of any

rule adopted under the authority ofsection 2 of Public Law 92–205 shallsubject the person violating such rule


71


to a fine of not more than $10,000, uponconviction thereof.

§ 908.11 Maintenance of records of re-lated activities.

(a) Persons whose activities relate toweather modification activities, otherthan persons engaged in weather modi-fication activities, shall maintainrecords concerning the identities ofpurchasers or users of weather modi-fication apparatus or materials, thequantities or numbers of items pur-chased, and the times of such pur-chases. Such information shall be re-tained for at least 3 years.

(b) In addition, persons whose activi-ties relate to weather modificationshall be required, under the authorityof section 4 of Public Law 92–205, toprovide the Administrator, on his re-quest, with information he deems nec-essary to carry out the purposes of thisact.

[41 FR 23394, June 10, 1976, as amended at 52FR 4896, Feb. 18, 1987]

§ 908.12 Public disclosure of informa-tion.

(a) Any records or other informationobtained by the Administrator underthese rules or otherwise under the au-thority of Public Law 92–205 shall bemade publicly available to the fullestpracticable extent. Such records or in-formation may be inspected on writtenrequest to the Administrator. However,the Administrator will not disclose anyinformation referred to in section 1905of title 18, United States Code, andthat is otherwise unavailable to thepublic, except that such informationshall be disclosed:

(1) To other Federal government de-partments, agencies, and officials forofficial use upon request;

(2) In any judicial proceeding under acourt order formulated to preserve theconfidentiality of such informationwithout impairing the proceeding; and

(3) To the public, if necessary to pro-tect their health and safety.

(b) Certified copies of such reportsand information, to the extent publiclydisclosable, may be obtained from theAdministrator at cost in accordancewith the Department of Commerce im-plementation of the Freedom of Infor-mation Act.

(c) Persons reporting on weathermodification projects or related activi-ties shall specifically identify all infor-mation that they consider not to besubject to public disclosure under theterms of Public Law 92–205 and providereasons in support thereof. A deter-mination as to whether or not reportedinformation is subject to public dis-semination shall be made by the Ad-ministrator.

(d) When consideration of a weathermodification activity report and re-lated information indicates that a pro-posed project may significantly departfrom the practices or procedures gen-erally employed in similar cir-cumstances to avoid danger to persons,property, or the environment, or indi-cates that success of Federal researchprojects may be adversely affected ifthe proposed project is carried out asdescribed, the Administrator will no-tify the operator(s) and State officialsof such possibility and make rec-ommendations where appropriate. Thepurpose of such notification shall be toinform those notified of existing prac-tices and procedures or Federal re-search projects known to NOAA. Noti-fication or recommendation, or failureto notify or recommend, shall not beconstrued as approval or disapproval ofa proposed project or as an indicationthat, if carried out as proposed or rec-ommended it may, in any way, protector endanger persons, property, or theenvironment or affect the success ofany Federal research project. Any advi-sory notification issued by the Admin-istrator shall be available to the publicand be included in the pertinent activ-ity report file.

§ 908.13 Address of letters.Letters and other communications

intended for the Administrator, in con-nection with weather modification re-porting or activities, shall be addressedto: The Administrator, National Oce-anic and Atmospheric Administration,Environmental Modification Office,Rockville, Md. 20852.

§ 908.14 Business to be transacted inwriting.

All business transacted with the Na-tional Oceanic and Atmospheric Ad-ministration with regard to reports of


72

15 CFR Ch. IX (1–1–01 Edition)§ 908.15

1 Filed as part of the original document.

weather modification activities shouldbe transacted in writing. Actions of theNational Oceanic and Atmospheric Ad-ministration will be based exclusivelyon the written record.

§ 908.15 Times for taking action; expi-ration on Saturday, Sunday, or holi-day.

Whenever periods of time are speci-fied in these rules in days, calendardays are intended. When the day, orthe last day, fixed under these rules fortaking any action falls on a Saturday,Sunday, or on a Federal holiday, theaction may be taken on the next suc-ceeding day which is not a Saturday,Sunday, or Federal holiday.

§ 908.16 Signature.All reports filed with the National

Oceanic and Atmospheric Administra-tion must be dated and signed by or onbehalf of the person conducting or in-tending to conduct the weather modi-fication activities referred to thereinby such person, individually or, in thecase of a person other than an indi-vidual, by a partner, officer, or otherperson having corresponding functionsand authority. For this purpose ‘‘offi-cer’’ means a president, vice president,treasurer, secretary, or comptroller.Notwithstanding the foregoing, suchreports may also be signed by the dulyauthorized agent or attorney of theperson whose activities are being re-ported. Proof of such authorizationshall be furnished to the Administratorwhen filing a report, unless previouslyfurnished.

§ 908.17 Suspension or waiver of rules.In an extraordinary situation, any

requirement of these rules may be sus-pended or waived by the Administratoron request of the interested party, tothe extent such waiver is consistentwith the provisions of Public Law 92–205 and subject to such other require-ments as may be imposed.

§ 908.18 Matters not specifically pro-vided for in rules.

All matters not specifically providedfor or situations not specifically ad-dressed in these rules will be decided inaccordance with the merits of eachcase by or under the authority of the

Administrator, and such decision willbe communicated in writing to all par-ties involved in the case.

§ 908.19 Publication of notice of pro-posed amendments.

Whenever required by law, and inother cases whenever practicable, no-tice of proposed amendments to theserules will be published in the FEDERALREGISTER. If not published with the no-tice, copies of the text of proposedamendments will be furnished to anyperson requesting the same. All com-ments, suggestions, and briefs receivedwithin the time specified in the noticewill be considered before adoption ofthe proposed amendments, which maybe modified in the light thereof. Infor-mal hearings may be held at the discre-tion of the Administrator.

§ 908.20 Effective date.These rules are effective on June 10,

1976.

§ 908.21 Report form.Public Law 92–205 and these rules

should be studied carefully prior to re-porting. Reports required by theserules shall be submitted on forms ob-tainable on request from the Adminis-trator, or on an equivalent format.1 Inspecial situations, such alterations tothe forms as the circumstances theretomay render necessary may be made,provided they do not depart from therequirements of these rules or of PublicLaw 92–205.

PART 909—POLICIES AND PROCE-DURES REGARDING DISCLOSUREOF INFORMATION AND NOAAEMPLOYEE TESTIMONY IN LITIGA-TION NOT INVOLVING THEUNITED STATES

Sec.909.1 Purpose and policy.909.2 Disclosure and certification of infor-

mation and records.909.3 Response to subpena duces tecum.909.4 Testimony by NOAA employees in liti-

gation not involving the United States.909.5 Conditions for authorizing testimony.

AUTHORITY: 15 U.S.C. 315, 1512, 1518; 33U.S.C. 884; 43 U.S.C. 1458, 1460, 1461.


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SOURCE: 43 FR 36240, Aug. 16, 1978, unlessotherwise noted.

§ 909.1 Purpose and policy.(a) The regulations in this part de-

scribe NOAA policies and proceduresfor the disclosure of information,records, and data to parties and testi-mony by NOAA employees in litigationnot involving the United States.

(b) It is the policy of NOAA to pro-vide information, data, and records tonon-Federal litigants to the same ex-tent that they are available to the gen-eral public. The availability of NOAAemployees to testify in non-Federallitigation is governed by the NOAApolicy of maintaining strict impar-tiality among non-Federal litigants. Tothis end NOAA witnesses generallymay provide only factual testimony ex-cept as provided for in § 909.5(c) andshall not appear as expert witnesses inlitigation not involving the UnitedStates.

§ 909.2 Disclosure and certification ofinformation and records.

(a) Requests for identifiable informa-tion, records, and data in NOAA’s pos-session will be complied with con-sistent with the NOAA freedom of in-formation regulation (15 CFR part 903),the Department of Commerce privacyregulations (15 CFR part 4b), and 15U.S.C. 1525. Requests for records, infor-mation, and data should be addressedas specified in 15 CFR part 903.

(b) Certified copies of NOAA recordswill be provided upon request. Requestsfor certified copies of these types of in-formation should be referred to the fol-lowing offices: Weather and Climato-logical Records; Director, National Cli-matic Data Center, National Environ-mental Satellite, Data, and Informa-tion Service, NOAA, Federal Building,Asheville, NC 28801. Weather Forecastsand Warnings; Aviation ServicesBranch (W/OM13), National WeatherService, NOAA, Silver Spring, MD20910. Aeronautical Charts; Aero-nautical Charting Division (N/CG3), Na-tional Ocean Service, NOAA, Rock-ville, MD 20852. Nautical Charts; ChartInformation Section (N/GC222), Na-tional Ocean Service, NOAA, Rock-ville, MD 20852. Other; Office of theGeneral Counsel, National Oceanic and

Atmospheric Administration, Wash-ington, DC 20230.

(c) Requests for the appearance ofNOAA employees to give testimony inlitigation not involving the UnitedStates should be addressed to the Of-fice of General Counsel at the addressshown in paragraph (b) of this section.

[43 FR 36240, Aug. 16, 1978, as amended at 48FR 17064, Apr. 21, 1983]

§ 909.3 Response to subpena ducestecum.

(a) Any officer or employee servedwith a subpena duces tecum or theequivalent for the production of anyNOAA record shall promptly notify theOffice of General Counsel. The subpenaduces tecum shall be treated as a re-quest for records, information, or dataunder 15 CFR part 903.

(b) The officer or employee servedshall decline to produce the record thatis the subject of a subpena duces tecumuntil its release has been authorizedpursuant to 15 CFR part 903. If, as a re-sult of having complied with the pre-ceding sentence of this subsection, theofficer or employee is ordered to showcause why he or she should not be heldin contempt of the court issuing thesubpena, the General Counsel shall re-quest the Department of Justice to rep-resent the officer or employee.

§ 909.4 Testimony by NOAA employeesin litigation not involving theUnited States.

(a) No NOAA officer or employeeshall give testimony in any tribunalconcerning any function of NOAA, orany data, information, or record cre-ated or acquired by NOAA as a resultof the discharge of its official duties,without the prior authorization of thegeneral counsel or the general coun-sel’s designee.

(b) Upon receiving a subpena whichorders the giving of testimony, a NOAAofficer or employee shall immediatelynotify the Office of General Counsel.The officer or employee shall decline totestify unless otherwise authorized bythe general counsel or designee. If, as aresult of having complied with the pro-visions of this section, the officer oremployee is ordered to show cause whyhe or she should not be held in con-tempt of the court issuing the subpena,


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15 CFR Ch. IX (1–1–01 Edition)§ 909.5

the general counsel shall request theDepartment of Justice to represent theofficer or employee.

§ 909.5 Conditions for authorizing tes-timony.

(a) Any non-Federal party desiringtestimony from a NOAA officer or em-ployee shall make a written requesttherefor addressed to the Office of Gen-eral Counsel. The request shall includea general statement of the testimonyto be elicited, the requester’s interestin that testimony, a brief descriptionof the intended use of the testimonyand a statement as to why the testi-mony is not available elsewhere.

(b) The general counsel or designeeshall authorize a NOAA officer or em-ployee to provide factual testimonywhen the requesting party has suffi-ciently shown: (1) That the evidence tobe adduced is not reasonably availablefrom any other source; (2) that noNOAA record or data could be intro-duced in evidence in substitution forthe testimony; and (3) that the otherrequirements of this part have beenmet.

(c) Where less than all of the condi-tions of paragraph (b) of this sectionare met, the general counsel or des-ignee may authorize NOAA employeesand officers to provide factual or ex-pert testimony on any matters whereNOAA has a significant interest in thelitigation and the outcome may affectthe implementation present or futurepolicies, or where circumstances orconditions make it necessary to pro-vide the information in the public in-terest.

(d) If the general counsel or designeeauthorizes the testimony of a NOAA of-ficer or employee, then the Office ofGeneral Counsel may arrange for thetaking of the testimony by methodsthat are less disruptive of the officialactivities of the officer or employeethan providing testimony in court.Testimony may, for example, be pro-vided by affidavits, answers to inter-rogatories, written depositions, ordepositions transcribed, recorded, orpreserved by any other method allow-able by law. Costs of providing testi-mony, including transcripts, will beborne by the party requesting the tes-timony.

PART 911—POLICIES AND PROCE-DURES CONCERNING USE OF THENOAA SPACE-BASED DATA COL-LECTION SYSTEMS

Sec.911.1 Purpose.911.2 Scope.911.3 Definitions.911.4 Use of the NOAA Data Collection Sys-

tems.911.5 NOAA Data Collection Systems Use

Agreements.911.6 Treatment of data.911.7 Continuation of the NOAA Data Col-

lection Systems.911.8 Technical requirements.APPENDIX A TO PART 911—ARGOS DCS USE

POLICY DIAGRAMAPPENDIX B TO PART 911—GOES DCS USE

POLICY DIAGRAM

AUTHORITY: 15 U.S.C. 313, 49 U.S.C. 44720; 15U.S.C. 1525; 7 U.S.C. 450b; 5 U.S.C. 552.

SOURCE: 63 FR 24922, May 6, 1998, unlessotherwise noted.

§ 911.1 Purpose.These regulations set forth the proce-

dural, informational and technical re-quirements for use of the NOAA DataCollection Systems (DCS). In addition,they establish the criteria NOAA willemploy when making determinationsas to whether to authorize the use ofits space-based DCS. The regulationsare intended to facilitate the collectionof environmental data as well as othersuch data which the Government is in-terested in collecting. In those in-stances where space-based commercialsystems do not meet users’ require-ments, the intent is to not disadvan-tage the development of the commer-cial space-based services in this sector.Obtaining a system use agreement tooperate data collection platforms pur-suant to these regulations does not af-fect related licensing requirements ofother Federal agencies such as the Fed-eral Communications Commission.

§ 911.2 Scope.(a) These regulations apply to any

person subject to the jurisdiction orcontrol of the United States who oper-ates or proposes to operate data collec-tion platforms to be used with theNOAA DCS either directly or throughan affiliate or subsidiary. For the pur-poses of these regulations a person is


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subject to the jurisdiction or control ofthe United States if such person is:

(1) An individual who is a U.S. cit-izen; or

(2) A corporation, partnership, asso-ciation, or other entity organized orexisting under the laws of any state,territory, or possession of the UnitedStates.

(b) These regulations apply to all ex-isting Geostationary Operational Envi-ronmental Satellite (GOES) and ArgosDCS users as well as all future applica-tions for NOAA DCS use.

§ 911.3 Definitions.For purposes of this part:(a) Approving authority means NOAA

for the GOES DCS; and it means theArgos Participating Agencies, via theArgos Operations Committee, for theArgos DCS.

(b) Argos DCS means the systemwhich collects data from fixed andmoving platforms and provides plat-form location data. This system con-sists of platforms, the Argos French in-strument on the Polar-orbiting Oper-ational Environmental Satellites(POES) and other international sat-ellites; a ground processing system;and telemetry ground stations.

(c) Argos participating agencies meansthose agencies of the United States andother countries that participate in themanagement of the Argos DCS.

(d) Assistant Administrator means theAssistant Administrator for Satelliteand Information Services, NOAA, orhis/her designee.

(e) Director means the Director of theOffice of Satellite Data Processing andDistribution for the National Environ-mental Satellite, Data, and Informa-tion Service of NOAA.

(f) Environmental data means environ-mental measurement data for the pur-pose of using the GOES DCS; and itmeans environmental measurementand environmental protection data forthe purpose of using the Argos DCS.

(g) Environmental measurement datameans data that relate to the charac-teristics of the Earth and its naturalphenomena by helping to better under-stand, evaluate, or monitor its naturalresources.

(h) Environmental protection datameans data that relate to the charac-

teristics of the Earth and its environ-ment (including its ecosystems and thespecies which inhabit them) by helpingto protect against any unreasonableadverse effects thereto.

(i) Episodic use means the use of thesystem for short events where there isa significant possibility of loss of life,such as for Arctic expeditions or sci-entific campaigns into remote areas.

(j) Government interest means that theuse is determined in advance to be ofinterest to one or more governmentalentities of the United States, Franceor, once they have become an ArgosParticipating Agency, Japan or a Euro-pean Organization for the Exploitationof Meteorological Satellites(EUMETSAT) member state; or also, inthe case of the GOES DCS, a state orlocal government.

(k) Government user means agencies ofinternational governmental organiza-tions, national government or any sub-division thereof, or any of those agen-cies’ contractors or grantees, so long asthe contractor is using the data col-lected by the NOAA DCS to fulfill itscontractual obligations to the govern-ment agency or in the case of a granteethat these data are being used in ac-cordance with the statement of workfor the award.

(l) NOAA DCS means the GOES andArgos space-based DCS.

(m) Non-profit user means a not-for-profit academic, research, or othernon-governmental organization, whichis using these data, for education and/or scientific, non-commercial purposes.

(n) Operational use means the use ofdata in a situation where the utility ofthe data are significantly reduced ifnot collected or delivered in a specifictime window. This includes situationswhere extensive preparation work is inplace and a delay in acquisition of datawould jeopardize the project.

(o) Platform compatibility means thecompatibility of the platform with thespace segment of the system, and in-cludes elements such as message lengthand composition, signal strength, andtransmission protocol (e.g., continuousversus event drive).

(p) Testing use means the use of theNOAA DCS by manufacturers of plat-forms for use in conjunction with the


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15 CFR Ch. IX (1–1–01 Edition)§ 911.4

NOAA DCS by manufacturers of plat-forms for use in conjunction with theNOAA DCS, for the limited purpose oftesting and certifying the compat-ibility of new platforms with the tech-nical requirements of the NOAA DCS.

(q) User means the entity and/or or-ganization which owns or operates userplatforms for the purpose of collectingand transmitting data through theNOAA DCS.

(r) User platform means devices, de-signed in accordance with the speci-fications delineated and approved bythe Approving Authority, used for thein-situ collection and subsequenttransmission of data via the NOAADCS. Those devices which are used inconjunction with the GOES DCS are re-ferred to as data collection platforms(DCP) and those which are used in con-junction with the Argos DCS are re-ferred to as Platform Transmitter Ter-minals (PTT). For purposes of theseregulations, the terms ‘‘user plat-form,’’ ‘‘DCP’’ and ‘‘PTT’’ are inter-changeable.

(s) User requirement means the re-quirement expressed and explained inthe System Use Agreement.

§ 911.4 Use of the NOAA Data Collec-tion Systems.

(a) Use of the NOAA DCS will only beauthorized in accordance with the con-ditions and requirements set forth inparagraphs (b), (c), (d), (e), and (f) ofthis section.

(b)(1) Use of the NOAA DCS will onlybe authorized where it is determinedthat there are no commercial space-based services available that meet theuser’s requirements.

(2) A determination under paragraph(b)(1) of this section must be based onsuch factors as satellite coverage, ac-curacy, data throughput, platformpower consumption, size and weight,service continuity and reliability, plat-form compatibility, system accessmode, and, in the case of governmentagencies, cost-effectiveness.

(c)(1) Except as provided in para-graphs (c)(2), (3), (4), and (5) of this sec-tion, NOAA DCS shall only be used forthe collection of environmental databy governmental and/or non-profitusers.

(2) Non-governmental, environmentaluse of the NOAA DCS is only author-ized where there is a Government in-terest in the collection and/or receiptof the data.

(3) Except as provided in paragraph(c)(4) of this section, non-environ-mental use of the Argos DCS is onlyauthorized for government use andnon-profit users where there is a gov-ernment interest. Non-environmentaluse of the system shall not exceed fivepercent of the system’s total use.

(4) Episodic use of the Argos DCSmay also be authorized in specific in-stances when there is a significant pos-sibility for loss of life. Such use shallbe closely monitored.

(5) Testing use of the NOAA DCS willonly be authorized for manufacturersof NOAA DCS platforms, that requireaccess to the system in order to testand certify prototype and productionmodels.

(d) Because of capacity limitationson the GOES DCS, system applicantswill be admitted to use the GOES sys-tem in accordance with the followingpriority:

(1) NOAA programs or users whosedata are required for implementationof NOAA programs, as determined bythe Assistant Administrator, will beaccorded first priority.

(2) Users whose data are desired tosupport NOAA programs will be ac-corded second priority.

(3) Users whose data and/or use of theGOES DCS will further a program of anagency or department of the U.S. Gov-ernment, other than NOAA, will be ac-corded third priority.

(4) Users whose data are required bya state or local Government of theUnited States will be accorded fourthpriority.

(5) Testing users of the system willbe accorded fifth priority.

(6) No other usage will be authorizedfor the GOES DCS.

(e) In the event that Argos DCS ca-pacity limitations require that prioritydeterminations be made, priority willbe given to those platforms that pro-vide environmental data of broad inter-national interest, especially of an oper-ational nature, and to those requiringthe unique capabilities of the Argos


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DCS, such as platform location or polarcoverage.

§ 911.5 NOAA Data Collection SystemsUse Agreements.

(a)(1) In order to use a NOAA DCS,each user must have an agreementwith the approving authority for thatsystem.

(2) Persons interested in enteringinto a system use agreement shouldcontact the Director.

(b) These agreements will address,but may not be limited to, the fol-lowing matters:

(1) The period of time the agreementis valid and procedures for its termi-nation,

(2) The authorized use(s), and its pri-orities for use,

(3) The extent of the availability ofcommercial space-based services whichmeet the user’s requirements and thereasons for necessitating the use of theGovernment system,

(4) Any applicable government inter-est 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 sched-

ules, and(11) User-borne costs.(c) The Director shall evaluate user

requests and conclude agreements foruse of the NOAA DCS.

(d)(1) Agreements for the collection,via the Argos DCS, of environmentaldata by government agencies or non-profit institutions shall be valid for 3years from the date of initial in-situdeployment of the platforms, and maybe renewed for additional 3-year peri-ods.

(2) Agreements for the collection ofenvironmental data, via the ArgosDCS, by non-government users shall bevalid for 1 year from the date of initialin-situ deployment of the platforms,and may be renewed for additional 1-year periods, but only for so long asthere exists a governmental interest inthe receipt of these data.

(3) Agreements for the collection ofnon-environmental data, via the ArgosDCS, by government agencies, or non-

profit institutions where there is a gov-ernment interest, shall be valid for 1year from the date of initial in-situ de-ployment of the platforms, and may berenewed for additional 1-year periods.

(4) Agreements for the episodic col-lection of non-environmental data, viathe Argos DCS under § 911.4(c)(4), shallbe of short, finite duration not to ex-ceed 1 year without exception, and usu-ally shall not exceed 6 months. Theseagreements shall be closely monitoredand shall not be renewed.

(5) Agreements for the testing use ofthe Argos DCS by equipment manufac-turers shall be valid for 1 year from thedate of initial testing, and may be re-newed for additional 1-year periods.

(e)(1) Agreements for the collectionof data, by the GOES DCS, shall bevalid for 5 years from the date of ini-tial in-situ deployment, and may be re-newed for additional 5-year periods.

(2) Agreements for the testing use ofthe GOES DCS, by equipment manufac-turers, shall be valid for 1 year fromthe date of initial testing, and may berenewed for additional 1-year periods.

911.6 Treatment of data.

(a) All NOAA DCS users must agreeto permit NOAA and other agencies ofthe U.S. Government the full, open andtimely use of all data collected fromtheir platforms; this may include theinternational distribution of environ-mental data under the auspices of theWorld Meteorological Organization.Any proprietary data will be protectedin accordance with applicable laws.

§ 911.7 Continuation of the NOAA DataCollection Systems.

(a) NOAA expects to continue to op-erate DCS on its geostationary andpolar-orbiting satellites, subject to theavailability of future appropriations.However, viable commercial space-based alternatives may eventually ob-viate the need for NOAA to operate itsown space-based DCS.

(b) If use of the system in support ofNOAA programs increases, it eventu-ally may be necessary to the furtherrestrict system usage by other users. Ifsuch restrictions on use become nec-essary, or in the event that NOAA dis-continues operation of GOES and/or


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15 CFR Ch. IX (1–1–01 Edition)§ 911.8

POES, NOAA will provide, to the max-imum extent practicable, advance no-tice and an orderly transition.

(c) NOAA will not be responsible forany losses resulting from the nonavail-ability of the NOAA DCS.

§ 911.8 Technical requirements.(a) All platform operators of the

NOAA DCS must use a data collectionplatform radio set whose technical and

design characteristics are certified toconform to applicable specificationsand regulations.

(b) All platform operators are respon-sible for all costs associated with theprocurement and operation of the plat-forms, and for the acquisition of datafrom those platforms, either directlyfrom the satellite or from the applica-ble data processing center.


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Nat. Oceanic and Atmospheric Admin., Commerce Pt. 911, App. A

APPENDIX A TO PART 911—ARGOS DCS USE POLICY DIAGRAM


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15 CFR Ch. IX (1–1–01 Edition)Pt. 911, App. B

APPENDIX B TO PART 911—GOES DCS USE POLICY DIAGRAM

PART 917—NATIONAL SEA GRANTPROGRAM FUNDING REGULATIONS

Subpart A—General

Sec.917.1 Basic provisions.

917.2 Definitions.

Subpart B—Sea Grant Matched FundingProgram

917.10 General.917.11 Guidelines for Sea Grant Fellowships.


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Subpart C—National Projects

917.20 General.917.21 National needs and problems.917.22 National Projects funding.

Subpart D—International CooperationAssistance

917.30 General.

Subpart E—General ConsiderationsPertaining 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 (33U.S.C. 1121 et seq.).

SOURCE: 43 FR 15307, Apr. 11, 1978, unlessotherwise noted.

Subpart A—General

§ 917.1 Basic provisions.(a) This section sets forth the basic

purposes for which Sea Grant fundingmay be made pursuant to the followingsections of the Act: 33 U.S.C. 1124, 1127,1125 and 1124a. These sections providefor the funding of programs andprojects in fields related to ocean andcoastal resources that involve marineresearch, marine education and train-ing, and marine advisory services.However, there is a significant dif-ference in focus among these sectionssince section 1124(a) is concerned chief-ly with regional and state needs rel-ative to ocean and coastal resources(including the funding of Sea GrantFellowships under section 1127) whilesection 1125 is concerned with nationalneeds and problems relative to oceanand coastal resources, and section 1124ais concerned with programs of inter-national cooperation assistance withrespect to those resources.

(b) Comment: Statutory citation 33U.S.C. 1124(a):

In General. The Secretary may makegrants and enter into contracts under thissubsection to assist any Sea Grant programor project if the Secretary finds that suchprogram or project will—

(1) Implement the objective set forth inSection 202(b); and

(2) Be responsive to the needs or problemsof individual states or regions.

The total amount paid pursuant to anysuch grant or contract may equal 662⁄3 per-cent, or any lesser percent, of the total costof the Sea Grant program or project in-volved.

(c) Comment: Statutory citation 33U.S.C. 1127(a):

In General. The Secretary may enter intocontracts and make grants under this sec-tion to—

(1) Enhance the research and developmentcapability of developing foreign nations withrespect to ocean and coastal resources.

(2) Promote the international exchange ofinformation and data with respect to the as-sessment, development, utilization, and con-servation of such resources.

§ 917.2 Definitions.(a) The term Act means the Sea

Grant Program Improvement Act of1976, as amended (33 U.S.C. 1121 et seq.).

(b) The term Secretary means the Sec-retary of Commerce.

(c) The term Administrator means theAdministrator of the National Oceanicand Atmospheric Administration.

(d) The term Office of Sea Grantmeans the National Oceanic and At-mospheric Administration’s Office ofSea Grant, which administers the Na-tional Sea Grant Program provided forin the Act.

(e) The term objective of the Actmeans the objective set forth at 33U.S.C. 1121(b) and is ‘‘is to increase theunderstanding, assessment, develop-ment, utilization, and conservation ofthe Nation’s ocean and coastal re-sources by providing assistance to pro-mote a strong educational base, re-sponsive research and training activi-ties, and broad and prompt dissemina-tion of knowledge and techniques.’’

(f) The term ocean and coastal re-source(s) is as defined at 33 U.S.C.1122(7) and means:

any resource (whether living, nonliving,manmade, tangible, intangible, actual, or po-tential) which is located in, derived from, ortraceable to, the marine environment.

Such term includes the habitat of any suchliving resource, the coastal space, the eco-systems, the nutrient rich areas, and theother components of the marine environ-ment which contribute to or provide (orwhich are capable of contributing to or pro-viding) recreational, scenic, esthetic, bio-logical, habitational, commercial, economic,


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15 CFR Ch. IX (1–1–01 Edition)§ 917.10

or conservation values. Living resources in-clude 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 usedin the definition for ‘‘ocean and coastalresources’’ in § 917.2(e) and used else-where in these regulations is as definedat 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, andwaters of the territorial sea of the UnitedStates; the waters of any zone over whichthe United States asserts exclusive fisherymanagement authority; the waters of thehigh seas; and the seabed and subsoil of andbeyond the outer Continental Shelf.

(h) The term person is as defined at 33U.S.C. 1122(9) and means: ‘‘any indi-vidual; any public or private corpora-tion, partnership, or other associationor entity (including any Sea Grant Col-lege, Sea Grant Regional Consortium,education, institute, or laboratory); orany state, political subdivision of astate, or agency or officer thereof.’’

(i) The term Sea Grant College is asdefined at 33 U.S.C. 1122(10) and means:‘‘any public or private institution ofhigher education which is designatedas such by the Secretary . . .’’ pursu-ant to regulations promulgated at 15CFR part 918.

(j) The term Sea Grant Program is asdefined at 33 U.S.C. 1122(11) and means:‘‘any program which’’ (1) is adminis-tered by a Sea Grant College, SeaGrant Regional Consortium, institu-tion of higher education, institute, lab-oratory, or state or local agency; and(2) includes two or more projects in-volving one or more of the followingactivities in fields related to ocean andcoastal resources:

(i) Research,(ii) Education,(iii) Training, or(iv) Advisory services.(k) The term Sea Grant Program Direc-

tors means the local Directors of theSea Grant coherent area programs,insititutional programs, Sea Grant Col-leges, and Sea Grant Regional Con-sortia.

(l) The term Sea Grant Regional Con-sortium is as defined at 33 U.S.C.1122(12) and means: ‘‘any association or

alliance which is designated as such bythe Secretary . . .’’ pursuant to regula-tions promulgated at 15 CFR part 918.

(m) The term state is as defined at 33U.S.C. 1122 (14) and means: ‘‘any stateof the United States, the District ofColumbia, the Commonwealth of Puer-to Rico, the Virgin Islands, Guam,American Samoa, the Commonwealthof the Mariana Islands, or any otherterritory or possession of the UnitedStates.’’

(n) The term developing foreign na-tions includes any foreign nation otherthan a foreign nation that is ineligiblefor designation under section 502(b) ofthe Trade Act of 1974, (19 U.S.C. 2462(b))as a benificiary developing countryunder Title of that Act.

Subpart B—Sea Grant MatchedFunding Program

§ 917.10 General.(a) 33 U.S.C. 1124(a) establishes a pro-

gram for the funding of Sea Grant Pro-grams and projects dealing with ma-rine research, marine education andtraining, and/or marine advisory serv-ices, that are designed to achieve theobjective of the Act and that generallyrespond to the needs of individualstates or regions. Included as a part ofthis program is the Sea Grant Fellow-ship Program, established by 33 U.S.C.1127. Any person may apply to the Of-fice of Sea Grant for Sea GrantMatched Funding Program Monies, ex-cept for Sea Grant Fellowship funding.Sea Grant Fellowship funding may begranted only to Sea Grant Colleges,Sea Grant Regional Consortia, institu-tions of higher education, and profes-sional associations and institutions.

(b) Federal Sea Grant funding for thesection 1124(a) Matched Funding Pro-gram cannot exceed 662⁄3 percent of thetotal cost of the project involved.

§ 917.11 Guidelines for Sea Grant Fel-lowships.

(a) Sea Grant Fellowships are de-signed to provide educational andtraining assistance to qualified individ-uals at the undergraduate and graduatelevels of education in fields related toocean and coastal resources. The objec-tive of the program is to increase thenational supply of individuals educated


83


and trained in the assessment, develop-ment, utilization, and conservation ofocean and coastal resources. The pur-pose of this section is to provide guide-lines regarding the content of applica-tions for Sea Grant Fellowship funding.

(b) Funding will be made to eligibleentities (see § 917.10 of this part) thatare selected to award and administerSea Grant Fellowships. Fellowshipswill not be awarded directly to stu-dents by the Office of Sea Grant. Theentity receiving Fellowship fundingwill select the students to be awardedthe Fellowships and will handle the ad-ministration of the Fellowships.

(c) Proposals for Fellowship fundingwill be expected to address (1) the na-ture and focus of the proposed Fellow-ship Program, (2) the utilization of in-stitutional or other appropriate re-sources in the education and trainingof Sea Grant Fellows, (3) the method ofadvertising availability of the Fellow-ships, (4) the method of selection of re-cipients, and (5) the terms of tenureand method of determining continuityof tenure.

(d) Innovation and uniqueness will besignificant factors in the determina-tion of which proposals will be funded.Another factor considered will be thepotential of the proposed program tostimulate interest in marine relatedcareers among those individuals; forexample, minorities, women, and thehandicapped whose previous back-ground or training might not have gen-erated such an interest.

(e) The total amount that may beprovided for grants under the SeaGrant Fellowship Program during anyfiscal year cannot exceed an amountequal to five percent of the total fundsappropriated for the Matched FundingProgram for that year. Fellowship pro-grams are subject to the requirementof a minimum of 331⁄3 percent matchingfunds from non-Federal sources towhich all Matched Funding Programprojects are subject. Indirect costs arenot allowable for either the Fellow-ships or for any costs associated withthe Fellowships.

Considering the variations in the cost-of-living and the differences in tuition,fees, etc., between one college or uni-versity and another, the amount of

money requested and awarded per Fel-lowship may vary.

Subpart C—National Projects§ 917.20 General.

(a) 33 U.S.C. 1125 requires the Sec-retary to identify specific nationalneeds and problems relative to oceanand coastal resources. This responsi-bility has been delegated to the Admin-istrator. The designation is intended tofocus public attention on needs andproblems of the marine environmentthat are considered to be of particularnational importance at a given point intime.

(b) 33 U.S.C. 1125 provides for thefunding of national projects in marineresearch, marine education and train-ing, and marine advisory services thatare designed to deal with the nationalneeds and problems concerning oceanand coastal resources identified by theAdministrator.

(c) The Administrator will identifythe national needs and problems apartfrom considerations of Office of SeaGrant funding for ‘‘National Projects’’responsive to national needs and prob-lems that are identified.

§ 917.21 National needs and problems.(a) The Administrator will, periodi-

cally, publish in the FEDERAL REGISTERthe identified national needs and prob-lems with respect to ocean and coastalresources at a given point in time.

(b) Suggestions from the general pub-lic as to the identity of national needsand problems may be submitted to theOffice of Sea Grant at any time. Thesesuggestions will be reviewed by the Of-fice of Sea Grant and the Sea GrantReview Panel, and those receiving apositive critique will be forwarded tothe Administrator. In addition, sugges-tions concerning the identification ofnational needs and problems will be re-quested from the Sea Grant ProgramDirectors.

(c) The Administrator has identifiedthe following as currently being na-tional needs and problems with respectto ocean and coastal resources:globaland regional climate and primary pro-ductivity.

(1) Improve the prediction of extremenatural events and their effects on


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15 CFR Ch. IX (1–1–01 Edition)§ 917.21

ocean coastal and continental shelf lo-cations as well as analogous regions ofthe Great Lakes.

(2) Improve the predictability ofglobal sea-level change and determinethe impact of this change on coastalareas.

(3) Define the processes that deter-mine ocean variability on the timescale of a few weeks to a few years, andthe relationship to fluctuations inglobal and regional climate, primaryproductivity, and fisheries production.

(4) Improve understanding of the flowfields and mixing processes on the con-tinental shelves of the United States.

(5) Develop an increased under-standing of the arctic and antarctic en-vironment and a capability to predictthe special hazards posed to transpor-tation and resource development.

(6) Develop and increased capabilityto characterize the engineering prop-erties of ocean botton sediments.

(7) Reduce the recurring economicloss due to corrosion of structures, ves-sels, and other devices in the marineenvironment.

(8) Gain a fundamental under-standing of the processes by which bio-logical fouling and associated corro-sion are initiated upon material sur-faces exposed to seawater.

(9) Investigate methods to improveman’s underwater capability to con-duct undersea research and performuseful work.

(10) Investigate the wider applicationof remotely operated and artificial in-telligence techniques for vehicles forundersea activities.

(11) Expand/improve remote sensingtechnologies for use on the ocean andGreat Lakes.

(12) Advance knowledge of acousticsin the ocean and ocean bottom in orderto exploit the burgeoning acousticstechnologies.

(13) Develop techniques for in-situmonitoring of biological, chemical, andphysical processes in the Great Lakes,oceans, and their connecting water-ways which are cost effective and pro-vide data in real time.

(14) Improve the position of the U.S.seafood industry in world seafood mar-kets.

(15) Design more efficient mecha-nisms to allocate U.S. fish resources to

achieve optimum yield and minimizeindustry dislocations.

(16) Gain a fundamental under-standing of the biological productivityof estuarine and coastal waters.

(17) Conduct research leading to therestoration and/or enhancement ofheavily exploited fishery stocks.

(18) Improve the capability for stockassessment, predicting yield, age-classstrength, and long-term populationstatus of important fisheries.

(19) Conduct research to increase theeconomic potential of low-value, high-volume fish products.

(20) Develop productive and profit-able aquaculture industries in theUnited States and technology that canbe exported to less developed nations ofthe world with different climate, cul-tural, and economic constraints.

(21) Explore marine biochemicals assource of chemical feedstocks, en-zymes, pharmacological substance, andother bioactive agents such as pes-ticides.

(22) Apply modern biotechnology toexploiting marine plants, animals, andmicroorganisms for good and services.

(23) Develop rapid, efficient, and spe-cific methods for assaying the poten-tial of marine organisms to commu-nicate disease to humans.

(24) Develop innovations that wouldpromote safe, nondestructive, rec-reational access to and use of marineand Great Lakes water.

(25) Re-examine the ocean as an ap-propriate place for the disposal ofwastes from land-based society.

(26) Develop an increased under-standing of the impacts of low density,nonbiodegradable, solid wastes on ma-rine and Great Lakes species.

(27) Conduct research for realizingthe economic potential of the non-living resources of the U.S. 200-mileExclusive Economic Zone.

(28) Investigate the effect of seafloorhydrothermal systems on the seafloor,oceans, and atmosphere.

(29) Develop a better understandingof the value the marine sector contrib-utes to the U.S. economy and culture.

(30) Improve the competitive positionof American ports in the face of rapidtechnological and social change.


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(31) Improve the capability of devel-oping nations to address their marineresource needs.

(32) Develop eductional programs toincrease application of marine sectorresearch.

(33) Develop syntheses of and betteraccess to existing multidisciplinarymarine and Great Lakes information.

[43 FR 15307, Apr. 11, 1978, as amended at 51FR 35210, Oct. 2, 1986]

§ 917.22 National Projects funding.(a) National Projects funding pro-

posals will be expected to address: (1)The relevance of the proposed projectto a national need or problem that hasbeen identified by the Administrator;(2) the nature and focus of the proposedproject; (3) a demonstrated capacity tocarry out the proposed project in acompetent and cost-effective manner;and (4) the utilization of existing capa-bility and coordination with other rel-evant projects. Innovation and unique-ness will be significant factors in de-termining whether to fund a proposedproject.

(b) Any person may apply to the Of-fice of Sea Grant for National Projectfunding. In addition, the Office of SeaGrant may invite applications for Na-tional Project funding.

(c) The total amount provided for Na-tional Projects’ funding during any fis-cal year can never exceed an amountequal to 10 percent of the total fundsappropriated for the Matched FundingProgram. Federal Sea Grant fundingfor National Projects can be up to 100percent of the total cost of the projectinvolved.

Subpart D—InternationalCooperation Assistance

§ 917.30 General.(a) 33 U.S.C. 1124a sets up a program

of International Cooperation Assist-ance in marine reseach, marine edu-cation and training, and marine advi-sory services designed to enhance theresearch and technical capability of de-veloping foreign nations with respectto ocean and coastal resources and topromote the international exchange ofinformation and data with respect tothe assessment, development, utiliza-

tion, and conservation of such re-sources. Any Sea Grant College or SeaGrant Regional Consortium or any in-stitution of higher education, labora-tory, or institute (if such institution,laboratory or institute is located with-in any state) may apply for and receiveInternational Cooperation Assistancefunding.

(b) International Cooperation Assist-ance funding proposals will be expectedto address: (1) The nature and focus ofthe proposed project, (2) the utilizationof institutional and other appropriateresources in the implementation of theproject, (3) a clear indication of theforeign participant’s (individual or in-stitution) commitment to the project,(4) identification of accomplishmentsexpected from a single granting inter-val, (5) implicit or explicit out-yearcommitment of resources, and (6) theimpact of the proposed project on theinstitution receiving funding.

(c) The projects supported by Inter-national Cooperation Assistance fund-ing are intended to be genuinely coop-erative. Innovation and uniqueness willbe significant factors in the determina-tion of proposals to be funded. In thecase of a proposed international projectthat is submitted from an institutionwhere a Sea Grant program is in exist-ence, the extent to which the proposedproject takes advantage of the SeaGrant institutional capability existingat that institution and therebystrengthening it, as opposed to being amere appendage to the ongoing SeaGrant program, will also be an impor-tant evaluation factor. The U.S. De-partment of State will be given the op-portunity to review all InternationalCooperation Assistance projects andnone will be funded without this con-sultation. Because the United NationsEducational, Scientific, and CulturalOrganization (UNESCO) also fundsinternational projects of the kind thatcan be funded under the Sea GrantInternational Cooperation Assistanceprogram, and, to effect coordination inthis area between Sea Grant andUNESCO, the Division of MarineSciences (UNESCO) will be informed ofall International Cooperation Assist-ance projects funded.


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15 CFR Ch. IX (1–1–01 Edition)§ 917.40

Subpart E—General Consider-ations Pertaining to Sea GrantFunding

§ 917.40 General.This subpart sets forth general con-

siderations pertaining to Sea Grantfunding.

§ 917.41 Application guidance for SeaGrant funding.

(a) Detailed guidance for submissionof applications for National Sea GrantProgram Funding is given in the publi-cation, ‘‘The National Sea Grant Pro-gram: Program Description and Sug-gestions for Preparing Proposals,’’available on request from: Office of SeaGrant Program, 3300 WhitehavenStreet NW., Washington, DC 20235.

(b) It is noted here that applicationfor Sea Grant funding shall be madepursuant to the following Federal pro-visions:

(1) OMB Circular A–110 ‘‘Grants andAgreements with Institutions of HigherEducation, Hospitals, and Other Non-Profit Organizations.’’

(2) OMB Circular A–111, ‘‘Designationof Federal Programs Suitable for JointFunding Purposes.’’

(3) GSA FMC 73–6, ‘‘Coordinating In-direct Cost Rates and Audit at Edu-cational Institutions.’’

(4) GSA FMC 73–7, ‘‘Administrationof College and University ResearchGrants.’’

(5) GSA FMC 73–8, ‘‘Cost Principlesfor Educational Institutions.’’

(6) GSA FMC 74–4, ‘‘Cost PrinciplesApplicable to Grants and Contractswith State and Local Governments.’’

(7) OMB Circular A–102, ‘‘Uniform Ad-ministrative Requirements for Grants-in-Aid to State and Local Govern-ments.’’

(8) NOAA General Provisions imple-menting OMB Circular A–110, ‘‘Grantsand Agreements with Institutions ofHigher Education, Hospitals, and OtherNon-Profit Organizations.’’

§ 917.42 Categories of support avail-able for the conducting of SeaGrant activities.

(a) Three categories of support areavailable for the conducting of SeaGrant activities: Projects; coherentarea programs; and institutional pro-

grams. In general, funding for institu-tional programs and coherent area pro-grams are made with expectation of re-newal, as long as the funding recipientmaintains a high level of quality andrelevance in its activities. Projectfunding is made generally for a singleitem of research, education and train-ing, or advisory service, but may be re-newed under certain conditions; eachrenewal is negotiated individually.

(b) Project support is for a clearly de-fined activity to be conducted over adefinite period of time to achieve aspecified goal. The project may be inresearch, education, training, or advi-sory services. Support for a project ismade to an individual investigator orproject director through his organiza-tion.

(c) Intermediate between the institu-tional programs and individual projectsare coherent area programs. Thesehave two main purposes:

(1) To bring into the National SeaGrant Program institutions of highereducation that have a strong core ofcapability in some aspects of marineaffairs, but which do not qualify or donot wish to qualify for institutionalprogram support at this time. The pur-pose of support in such cases is to en-able the institution to apply its exist-ing competence to its regional prob-lems and opportunities while devel-oping the broader base of capabilityand the internal organization that willlead to institutional support. This pro-gram category requires a definite com-mitment on the part of the institutionto develop an institutional programand to present a multiproject, multi-disciplinary program involving the ex-isting competence of an institution ina unified or coherent attack on well-defined local or regional problems.Such a coherent area program shouldinclude research, education and train-ing, and advisory services, to the ex-tent of the institution’s capability.

(2) To bring into the National SeaGrant Program (on a more or less con-tinuing basis) qualified entities thathave rare or unique capability in a spe-cialized field of marine affairs. Suchentities need not be institutions ofhigher education.

(d) Institutional grants are made toinstitutions of higher education or to a


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Nat. Oceanic and Atmospheric Admin., Commerce Pt. 918

combination of institutions that havean existing broad base of competencein marine affairs. To qualify, an insti-tution must make a positive, long-range commitment to objectives of theNational Sea Grant Program as evi-dence by committing the institution’sown resources in the form of matchingfunds, creation of the organization nec-essary for management of the SeaGrant Program, quality education pro-grams in marine areas, establishmentof interdisciplinary research teams,and development of advisory servicemechanisms for strong interactionwith marine communities in its region.A Sea Grant institutional program isexpected to provide intellectual leader-ship in assisting its region to solveproblems and to realize opportunitiesof its marine environment. To the ex-tent possible, an institutional programshould involve all appropriate elementsof the institution, whether colleges ordepartments, and devise cooperative ormutally supporting programs withother institutions of higher education,and with Federal and state agencies,local agencies, and industry. An insti-tutional program should have substan-tial strength in the three basic SeaGrant activities: research, educationand training, and advisory services.Sea Grant institutional programs thatmeet the qualifications for Sea GrantCollege or Sea Grant Regional Consor-tium status set forth at 15 CFR part 918will be so designated by the Secretary.

§ 917.43 Terms and conditions of SeaGrant funding.

No Sea Grant funding may be appliedto:

(a)(1) the purchase or rental of anyland or (2) the purchase, rental, con-struction, preservation, or repair ofany building, dock, or vessel, exceptthat payment under any such grant orcontract may (if approved by the As-sistant Administrator for Administra-tion of the National Oceanic and At-mospheric Administration or designee)be applied to the purchase, rental, con-struction, preservation, or repair ofnon-self-propelled habitats, buoys,platforms, and other similar devices orstructures, or to the rental of any re-search vessel which is used in direct

support of activities under any SeaGrant program or project.

(b) In addition, Sea Grant fundingunder the Sea Grant Matched FundingProgram will be subject to the limita-tion that the total amount which maybe obligated within any one state topersons under the Sea Grant MatchedFunding Program in any fiscal yearshall not exceed an amount equal to 15percent of the funds appropriated forthe Sea Grant Matched Funding Pro-gram.

(c) Any person who receives or uti-lizes Sea Grant funding shall keep therecords required by OMB Circular A–110, ‘‘Grant and Agreements with Insti-tutions of Higher Education, Hospitals,and Other Non-Profit Organizations,’’and by NOAA General Provision, im-plementing OMB Circular A–110, byOMB Circular A–102, ‘‘Uniform Admin-istrative Requirements for Grants-in-Aid to State and Local Governments,’’including records that fully disclosethe amount and disposition by the re-cipient of such proceeds, the total costof the program or project in which suchproceeds were used, and the amount, ifany, of such cost which was providedthrough other sources. Such recordsshall be maintained for three yearsafter the completion of such a programor project. The Secretary and theComptroller General of the UnitedStates, or any of their duly authorizedrepresentatives, shall have access, forthe purpose of audit and evaulation, toany books, documents, papers, andrecords of receipt which, in the opinionof the Secretary or the ComptrollerGeneral, may be related or pertinent tosuch grants and contracts.

PART 918—SEA GRANTS

Sec.918.1 Introduction.918.2 Definitions.918.3 Eligibility, qualifications, and respon-

sibility of a Sea Grant College.918.4 Duration of Sea Grant College des-

ignation.918.5 Eligibility, qualifications, and respon-

sibilities—Sea Grant Regional Consortia.918.6 Duration of Sea Grant Regional Con-

sortium designation.918.7 Application for designation.


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15 CFR Ch. IX (1–1–01 Edition)§ 918.1

AUTHORITY: Sec. 207, National Sea GrantCollege Program Act, as amended (Pub. L.94–461, 33 U.S.C. 1121, et seq.).

SOURCE: 44 FR 75054, Dec. 18, 1979, unlessotherwise noted.

§ 918.1 Introduction.Pursuant to section 207 of the Na-

tional Sea Grant College Program Act,as amended (Pub. L. 94–461, 33 U.S.C.1121 et seq.), herein referred to as theAct, the following guidelines establishthe procedures by which organizationscan qualify for designation as SeaGrant Colleges or Sea Grant RegionalConsortia, and the responsibilities re-quired of organizations so designated.

§ 918.2 Definitions.(a) Marine environment. The term Ma-

rine Environment means any or all ofthe following: the coastal zone, as de-fined in section 304(1) of the CoastalZone Management Act of 1972 (16 U.S.C.1453(1)); the seabed, subsoil and watersof the territorial sea of the UnitedStates, including the Great Lakes; thewaters of any zone over which theUnited States asserts exclusive fisherymanagement authority; the waters ofthe high seas; and the seabed and sub-soil of and beyond the Outer Conti-nental Shelf.

(b) Ocean, Great Lakes, and coastal re-sources. The term ocean, Great Lakes,and coastal resources means any re-source (whether living, nonliving, man-made, tangible, intangible, actual, orpotential) which is located in, derivedfrom, or traceable to, the marine envi-ronment. Such term includes the habi-tat of any such living resource, thecoastal space, the ecosystems, the nu-trient-rich areas, and the other compo-nents of the marine environment whichcontribute to or provide (or which arecapable of contributing to or providing)recreational, scenic, aesthetic, biologi-cal, habitational, commercial, eco-nomic, or conservation values. Livingresources include natural and culturedplant life, fish, shellfish, marine mam-mals, and wildlife. Nonliving resourcesinclude energy sources, minerals, andchemical substances.

(c) Person. The term Person meansany public or private corporation, part-nership, or other association or entity(including any Sea Grant College, Sea

Grant Regional Consortium, institu-tion of higher education, institute, orlaboratory); or any State, political sub-division of a State, or agency or officerthereof.

(d) Sea Grant College. The term SeaGrant College means any public or pri-vate institution of higher education orconfederation of such institutionswhich is designated as such by the Sec-retary under section 207 of the Na-tional Sea Grant Program Act. In-cluded in this term are all campuses(or other administrative entities) of adesignated Sea Grant College, workingthrough the established managementstructure of the Sea Grant College.

(e) Sea Grant Program. The term SeaGrant Program means any programwhich:

(1) Is administered by a Sea GrantCollege, Sea Grant Regional Consor-tium, institution of higher education,institute, laboratory, or State or localagency; and

(2) Includes two or more Sea Grantprojects involving one or more of thefollowing activities in fields related toocean, Great Lakes, and coastal re-sources:

(i) Research,(ii) Education and training, and(iii) Advisory services.(f) Sea Grant project. A Sea Grant

project is any separately described ac-tivity which has been proposed to theNational Sea Grant College Program,and has subsequently been approved.

(g) Sea Grant Regional Consortium.The term Sea Grant Regional Consortiummeans any association or other alli-ance of two or more persons as definedabove (other than individuals) estab-lished for the purpose of pursuing pro-grams in marine research education,training, and advisory services on a re-gional basis (i.e., beyond the bound-aries of a single state) and which isdesignated as a consortium by the Sec-retary under section 207 of the Na-tional Sea Grant Program Act.

(h) Field related to Ocean, Great Lakes,and coastal resources. The term field re-lated to Ocean, Great Lakes, and coastalresources means any discipline or field(including marine sciences and thephysical, natural, and biologicalsciences, and engineering, includedtherein, marine technology, education,


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economics, sociology, communications,planning law, international affairs,public administration, humanities, andthe arts) which is concerned with, orlikely to improve the understanding,assessment, development, utilization,or conservation of, ocean, Great Lakes,and coastal resources.

§ 918.3 Eligibility, qualifications, andresponsibility of a Sea Grant Col-lege.

(a) To be eligible for designation as aSea Grant College, the institution ofhigher education or confederation ofsuch institutions must have dem-onstrated a capability to maintain ahigh quality and balanced program ofresearch, education, training, and advi-sory services in fields related to ocean,Great Lakes, and coastal resources fora minimum of three years, and have re-ceived financial assistance as an Insti-tutional program under either section205 of the National Sea Grant CollegeProgram Act or under section 204(c) ofthe earlier National Sea Grant Collegeand Program Act of 1966.

(b) To be eligible for designation as aSea Grant College, the candidate insti-tution or confederation of institutionsmust meet the qualifications set forthabove as evaluated by a site reviewteam composed of members of the SeaGrant Review Panel, NOAA’s Office ofSea Grant, and other experts named byNOAA. As a result of this review, thecandidate must be rated highly in all ofthe following qualifying areas:

(1) Leadership. The Sea Grant Collegecandidate must have achieved recogni-tion as an intellectual and practicalleader in marine science, engineering,education, and advisory service in itsstate and region.

(2) Organization. The Sea Grant Col-lege candidate must have created themanagement organization to carry ona viable and productive Sea Grant Pro-gram, and must have the backing of itsadministration at a sufficiently highlevel to fulfill its multidisciplinary andmultifaceted mandate.

(3) Relevance. The Sea Grant Collegecandidate’s program must be relevantto local, State, regional, or Nationalopportunities and problems in the ma-rine environment. Important factors inevaluating relevance are the need for

marine resource emphasis and the ex-tent to which capabilities have beendeveloped to be responsive to thatneed.

(4) Programmed team approach. TheSea Grant College candidate must havea programmed team approach to thesolution of marine problems which in-cludes relevant, high quality, multi-disciplinary research with associatededucational and advisory services capa-ble of producing identifiable results.

(5) Education and training. Educationand training must be clearly relevantto National, regional, State and localneeds in fields related to ocean, GreatLakes, and coastal resources. As appro-priate, education may include pre-col-lege, college, post-graduate, public andadult levels.

(6) Advisory services. The Sea GrantCollege candidate must have a strongprogram through which information,techniques,and research results fromany reliable source, domestic or inter-national, may be communicated to andutilized by user communities. In addi-tion to the educational and informa-tion dissemination role, the advisoryservice program must aid in the identi-fication and communication of usercommunities’ research and educationalneeds.

(7) Relationships. The Sea Grant Col-lege candidate must have close tieswith Federal agencies. State agenciesand administrations, local authorities,business and industry, and other edu-cational institutions. These ties are: (i)To ensure the relevance of its pro-grams, (ii) to give assistance to thebroadest possible audience, (iii) to in-volve a broad pool of talent in pro-viding this assistance (including uni-versities and other administrative en-tities outside the Sea Grant College),and (iv) to assist others in developingresearch and management competence.The extent and quality of an institu-tion’s relationships are critical factorsin evaluating the institutional pro-gram.

(8) Productivity. The Sea Grant Col-lege candidate must have demonstratedthe degree of productivity (of researchresults, reports, employed students,service to State agencies and industry,etc.) commensurate with the length of


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15 CFR Ch. IX (1–1–01 Edition)§ 918.4

its Sea Grant operations and the levelof funding under which it has worked.

(9) Support. The Sea Grant Collegecandidate must have the ability to ob-tain matching funds from non-Federalsources, such as state legislatures, uni-versity management, state agencies,business, and industry. A diversity ofmatching fund sources is encouraged asa sign of program vitality and the abil-ity to meet the Sea Grant requirementthat funds for the general programs bematched with at least one non-Federaldollar for every two Federal dollars.

(c) Finally, it must be found that theSea Grant College candidate will act inaccordance with the following stand-ards relating to its continuing respon-sibilities if it should be designated aSea Grant College:

(1) Continue pursuit of excellence andhigh performance in marine research,education, training, and advisory serv-ices.

(2) Provide leadership in marine ac-tivities including coordinated planningand cooperative work with local, state,regional, and Federal agencies, otherSea Grant Programs, and non-SeaGrant universities.

(3) Maintain an effective manage-ment framework and application of in-stitutional resources to the achieve-ment of Sea Grant objectives.

(4) Develop and implement long-termplans for research, education, training,and advisory services consistent withSea Grant goals and objectives.

(5) Advocate and further the SeaGrant concept and the full develop-ment of its potential within the insti-tution and the state.

(6) Provide adequate and stablematching financial support for the pro-gram from non-Federal sources.

(7) Establish and operate an effectivesystem to control the quality of its SeaGrant programs.

§ 918.4 Duration of Sea Grant Collegedesignation.

Designation will be made on the basisof merit and the determination by theSecretary of Commerce that such adesignation is consistent with thegoals of the Act. Continuation of theSea Grant College designation is con-tingent upon the institution’s abilityto maintain a high quality perform-

ance consistent with the requirementsoutlined above. The Secretary may, forcause and after an opportunity forhearing, suspend or terminate a des-ignation as a Sea Grant College.

§ 918.5 Eligibility, qualifications, andresponsibilities—Sea Grant Re-gional Consortia.

(a) To be eligible for designation as aSea Grant Regional Consortium, thecandidate association or alliance of or-ganizations must provide, in signifi-cant breadth and quality, one or moreservices in the areas of research, edu-cation, and training, or advisory serv-ice in fields related to ocean, GreatLakes, and coastal resources. Further,it is essential that the candidate SeaGrant Consortium be required to pro-vide all three services as soon as pos-sible after designation. Further, suchassociation or alliance must dem-onstrate that:

(1) It has been established for thepurpose of sharing expertise, research,educational facilities, or training fa-cilities, and other capabilities in orderto facilitate research, education, train-ing, and advisory services in any fieldrelated to ocean, Great Lakes, andcoastal resources; and

(2) It will encourage and follow a re-gional multi-State approach to solvingproblems or meeting needs relating toocean, Great Lakes, and coastal re-sources, in cooperation with appro-priate Sea Grant Colleges, Sea GrantPrograms and other persons in the re-gion.

(b) Although it is recognized that thedistribution of effort between research,education, training, and advisory serv-ices to achieve appropriate balance in aSea Grant Regional Consortium maydiffer from a Sea Grant College, sus-tained effort in all of these areas is,nonetheless, an essential requirementfor retention of such designation. To beeligible for designation as a Sea GrantRegional Consortium, the candidate as-sociation or alliance of organizationsmust meet the qualifications set forthabove as evaluated by a site reviewteam composed of members of the SeaGrant Review Panel, the Office of SeaGrant, and other experts. Further, thecandidate must be rated highly in all ofthe following qualifying areas which


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are pertinent to the Consortium’s pro-gram:

(1) Leadership. The Sea Grant Re-gional Consortium candidate musthave achieved recognition as an intel-lectual and practical leader in marinescience, engineering, education, andadvisory service in its region.

(2) Organization. The Sea Grant Re-gional Consortium candidate musthave created the management organi-zation to carry on a viable and produc-tive multidisciplinary Sea Grant Pro-gram and have the backing of the ad-ministrations of its component organi-zations at a sufficiently high level tofulfill its multidisciplinary and multi-faceted mandate.

(3) Relevance. The Sea Grant RegionalConsortium candidate’s Sea Grant Pro-gram must be relevant to regional op-portunities and problems in the marineenvironment. Important factors inevaluating relevance are the extentand depth of the need of a region for afocused marine resource emphasis andthe degree to which the candidate hasdeveloped its capability to be respon-sive to that need.

(4) Education and training. Educationand training must be clearly relevantto regional needs and must be of highquality in fields related to ocean, GreatLakes, and coastal resources. As appro-priate, education may includeprecollege, college, post-graduate, pub-lic and adult levels.

(5) Advisory services. The Sea GrantRegional Consortium candidate musthave a strong program through whichinformation techniques, and researchresults from any reliable source, do-mestic or international, may be com-municated to and utilized by user com-munities. In addition to the edu-cational and information dissemina-tion role, the advisory service programmust aid in the identification and com-munication of user communities’ re-search and educational needs.

(6) Relationships. The Sea Grant Re-gional Consortium candidate musthave close ties with federal agencies,state agencies and administrations, re-gional authorities, regional businessand industry, and other regional edu-cational institutions. These regionalties are: (i) To ensure the relevance ofprograms, (ii) to generate requests for

such assistance as the consortium mayoffer, and (iii) to assist others in devel-oping research and management com-petence. The extent and quality of acandidate’s relationships are criticalfactors in evaluating the proposed des-ignation.

(7) Productivity. The Sea Grant Re-gional Consortium candidate musthave demonstrated a degree of produc-tivity (of research results, reports, em-ployed students, service to regionalagencies, industry, etc.) commensuratewith the length of its Sea Grant oper-ations and the level of funding underwhich it has worked.

(8) Support. The Sea Grant RegionalConsortium candidate must have theability to obtain matching funds fromnon-Federal sources, such as State leg-islatures, university management,State agencies, and business and indus-try. A diversity of matching fundssources is encouraged as a sign of pro-gram vitality and the ability to meetthe Sea Grant requirement that fundsfor the general programs be matchedwith at least one non-Federal dollar forevery two Federal dollars.

(c) Finally, it must be found that theSea Grant Regional Consortium can-didate will act in accordance with thefollowing standards relating to its con-tinuing responsibilities as a Sea GrantRegional Consortium:

(1) Continue pursuit of excellence andhigh performance in marine researcheducation, training, and advisory serv-ices.

(2) Provide regional leadership in ma-rine activities including coordinatedplanning and cooperative work withlocal, State, regional, and Federalagencies, other Sea Grant Programs,and non-Sea Grant organizations.

(3) Maintain an effective manage-ment framework and application of or-ganizational resources to the achieve-ment of Sea Grant objectives.

(4) Develop and implement long-termplans for research, education, training,and advisory services consistent withSea Grant goals and objectives.

(5) Advocate and further the SeaGrant concept and the full develop-ment of its potential within the con-sortium and the region.


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15 CFR Ch. IX (1–1–01 Edition)§ 918.6

(6) Provide adequate and stablematching financial support for the pro-gram from non-Federal sources.

(7) Establish and operate an effectivesystem to control the quality of its SeaGrant program.

§ 918.6 Duration of Sea Grant RegionalConsortium designation.

Designation will be made on the basisof merit and the determination by theSecretary of Commerce that such adesignation is consistent with thegoals of the Act. Continuation of theSea Grant Regional Consortium des-ignation is contingent upon the alli-ance’s ability to maintain a high qual-ity performance consistent with thestandards outlined above. The Sec-retary may, for cause and after an op-portunity for hearing, suspend or ter-minate the designation as a Sea GrantRegional Consortium.

§ 918.7 Application for designation.(a) All applications for initial des-

ignation as a Sea Grant College or aRegional Consortium should be ad-

dressed to the Secretary of Commerceand submitted to the Director, Na-tional Sea Grant College Program, Na-tional Oceanic and Atmospheric Ad-ministration. The application shouldcontain an outline of the capabilitiesof the applicant and the reasons whythe applicant believes that it meritsdesignation under the guidelines con-tained in this regulation. Upon receiptof the application, the Director willpresent the institution’s case to theSea Grant Review Panel for evaluation.The Panel’s recommendation will beforwarded to the Secretary for final ac-tion.

(b) An existing Sea Grant College orRegional Consortium may also apply asin paragraph (a) of this section, for achange in the scope of designation toinclude or exclude other administra-tive entities of the institution or asso-ciation. If approved by the Secretarysuch included (excluded) administra-tive entities shall share (lose) the fullrights and responsibilities of a SeaGrant College or Regional Consortium.
