|Abandoned Shipwreck Act||Act to Prevent Pollution from Ships||Airborne Hunting Act||Anchorage Grounds||Antarctic Conservation Act||Antarctic Marine Living Resources Convention Act||Antiquities Act of 1906||Assault on Fisheries Observer||Clean Boating Act of 2008||Clean Water Act||Coastal Zone Management Act||Comprehensive Environmental Response, Compensation, and Liability Act of 1980||Criminal Misuses of Vessels||Deep Seabed Hard Mineral Resources Act (DSHMRA)||Deepwater Port Act of 1974|
|Endangered Species Act||The Fur Seal Act of 1966||Historic Sites, Buildings, and Antiquities Act
(HSA) of 1935
|Longshore and Harbor Workers' Compensation Act||Magnuson-Stevens Fishery Conservation and Management Act|
|Marine Mammal Protection Act||Migratory Bird Treaty Act||Moss-Bennett Act||National Environmental Policy Act||National Historic Preservation Act|
|National Marine Sanctuaries Act||Native American Graves Protection and Repatriation Act||Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990||Ocean Dumping Act||Ocean Thermal Energy Conversion Act of 1980|
|Oil Pollution Act
|Outer Continental Shelf Lands Act of 1953||Plunder Statue||Ports and Waterways Safety Act of 1972||Public Vessel Medical Waste Dumping Ban Act|
|Recreational Vessels Act||Rivers and Harbors Act of 1899||Shark Finning Prohibition Act (2000) and Shark Conservation Act (2010)||Shore Protection Act of 1988||South Pacific Tuna Act of 1988|
|Sunken Military Craft Act||Submarine Cable Act of 1888||Submerged Lands Act||Whaling Convention Act of 1949|
Laws enacted by Congress are presumed to apply within the territory of the United States (including within either a 3- or 12-nautical mile territorial sea), unless otherwise explicitly provided. In 2010, the Supreme Court confirmed the "longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States’" (Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869, 2877 (2010)).
The Court stated, "This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to legislate . . . . It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters . . . . Thus, ‘unless there is the affirmative intention of the Congress clearly expressed’ to give a statute extraterritorial effect, ‘we must presume it is primarily concerned with domestic conditions’ . . . . The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law . . . . When a statute gives no clear indication of an extraterritorial application, it has none." (Id. at 2877-78).
Congress may, of course, legislate beyond the territorial boundaries of the United States. See, e.g., U.S. v. Plummer, 221 F.3d 1298 (11th Cir. 2000) (citing Foley Bros. v. Filardo, 336 U.S. 281, 284-285 (1949)).
NOAA administers a number of laws that, as a matter of law or policy, it interprets as applying beyond the territory of the United States. In addition, there are laws of interest to NOAA that have been interpreted to apply beyond the territory of the United States.
The Abandoned Shipwreck Act (ASA) was enacted by Congress to address the destruction of shipwrecks resulting from treasure hunting under the laws of salvage and finds. See H.R. Rep. No. 98-887 pt. 1, at 4 (1984); see also 43 U.S.C. § 2106(a). With the exception of wrecks on certain federal public lands, the ASA asserts U.S. title to abandoned shipwrecks and automatically transfers the title to coastal states. 43 U.S.C. § 2105(c). The Act applies to three categories of shipwrecks: (1) those embedded in the submerged lands of a state; (2) shipwrecks embedded in coralline formations protected by a state on its submerged lands; and (3) those on a state’s submerged lands and are included in or determined eligible for inclusion in the National Register. See 43 U.S.C. § 2105(a). A shipwreck is abandoned if it is “deserted” and “the owner has relinquished ownership rights with no retention.” 43 U.S.C. § 2101(b). A shipwreck is embedded if it is “firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof.” 43 U.S.C. § 2101(a).
Citing to the Submerged Lands Act, the ASA generally extends seaward a distance of three nautical miles from the coastline to the inner limit of the outer continental shelf. See 43 U.S.C. § 2102(f)(1); see also 43 U.S.C. § 1301(b). In the cases of Texas and the Gulf coast of Florida, however, the ASA extends seaward three marine leagues—or nine nautical miles— from the coastline per Supreme Court decisions and grants from the Kingdom of Spain and Mexico. See 43 U.S.C. § 2101(f)(1); see also 43 U.S.C. § 1301(b); United States v. Louisiana, 363 U.S. 1 (1960)(holding that the Submerged Lands Act grants Texas and Florida a three-marine-league belt of submerged land extending from their coastlines); Treaty between United States and Spain Feb. 22, 1819, 8 Stat. 252, art. 3 (“The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river”); Treaty of Guadalupe Hidalgo Feb. 2, 1848, art. 5 (“The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, from thence up the middle of that river”).The Act also extends to a seaward limit of three marine leagues from the coastline of Puerto Rico. See 43 U.S.C. § 2102(f)(2); see also 48 U.S.C. § 749. For the U.S. territories and possessions of Guam, the Virgin Islands, American Samoa, and the Northern Mariana Islands the ASA extends to three nautical miles. See 43 U.S.C. § 2102(f)(3)-(4); see also 48 U.S.C. § 1705(a); 159 Cong. Rec. S521-01.
The Act to Prevent Pollution from Ships (APPS) implements the 1973 International Convention for the Prevention of Pollution from Ships as modified by the Protocol of 1978 and the Protocol of 1997 (MARPOL). MARPOL is the main international convention covering prevention of pollution of the marine environment by ships from operational or accidental causes. MARPOL contains standards for stowing, handling, shipping, and transferring pollutant cargoes, as well as standards for ship-generated wastes. The U.S. Coast Guard administers APPS, under which it prescribes and enforces regulations to implement APPS. MARPOL has six Annexes, each regulating a different type of discharge from ships. The United States is party to all MARPOL Annexes except Annex IV.
Generally speaking, APPS applies to all U.S.-flagged ships anywhere in the world and to all foreign-flagged vessels operating in navigable waters of the United States or while at a port under U.S. jurisdiction. APPS defines “navigable waters of the United States” as including “the territorial sea of the United States (as defined in the Presidential Proclamation 5928 of December 27, 1988) and the internal waters of the United States.” 33 U.S.C. § 1901(a)(7).
More specifically, the seaward limit of APPS jurisdiction is set forth below.
Table: Applicability and Seaward Limit Jurisdiction of APPS
Under 33 U.S.C. § 1902(a)(1), APPS applies to:
Under 33 U.S.C. § 1902, the following Annex-specific seaward limits also apply to:
I - Oil
II - Noxious Liquid Substances
33 C.F.R. Part 151
III - Packaged Substances
N/A - See Hazardous Materials Transportation Act (HMTA) (49 U.S.C. § 5101-5128, formerly codified at 49 U.S.C. § 1801 et seq.).
IV - Sewage
N/A - See Federal Water Pollution Control Act (FWPCA), as amended by the Clean Water Act (CWA) (33 U.S.C. § 1251 et seq.).
33 C.F.R. Part 159
V - Garbage
33 C.F.R. Part 151
VI - Air
40 C.F.R. 94
APPS does not apply to ships of the Armed Forces (as defined in 33 U.S.C. § 1902(b)(2)) or ships excluded by the MARPOL Protocol or the Antarctic Protocol. 33 U.S.C. § 1902(b). While APPS also exempts ships of the Armed Forces from Annex V requirements, the statute prescribes the types of garbage these ships may or may not discharge into the sea. For these ships, depending on the type of garbage and garbage-processing equipment aboard the vessels, garbage disposal must take place at least 3 nautical miles, 12 nautical miles, or 25 nautical miles from land. 33 U.S.C. § 1902(b)(3)(C)-(D).
U.S. Circuit Courts of Appeal have held that the United States has jurisdiction to prosecute a foreign-flagged ship’s failure to maintain an accurate Oil Record Book within U.S. ports or navigable waters, even though the actual discharge of illegal pollution may occur outside of U.S. ports or navigable waters. U.S. Coast Guard implementing regulations at 33 C.F.R. § 151.25 requiring ships to “maintain” an Oil Record Book impose a duty on ships to ensure the accuracy of these documents, see United States v. Ionia Mgmt. S.A., 555 F.3d 202 (2d Cir. 2009); United States v. Jho, 534 F.3d 398 (5th Cir. 2008).
The Airborne Hunting Act (AHA) prohibits the shooting, attempted shooting, or harassment of any bird, fish, or animal from an aircraft. 16 U.S.C. §§ 742j-1(a)(1)-(2). Congress passed the AHA in 1971 in response to the public outcry over the hunting of wildlife from aircraft depicted in a 1969 television special on the airborne hunting of wolves. See S. Rep. No. 92-421, 92d Cong., 1st Sess, cited in United States v. One Bell Jet Ranger II Helicopter, 943 F.2d 1121, 1124 (9th Cir. 1991). See also United States v. Red Frame Parasail, 160 F.Supp. 2d 1048, 1053-1054 (D. Ariz. 2001). For violations, the statute authorizes a fine of up to $5,000, one-year imprisonment, or both. 16 U.S.C. § 742j-1(a)(3). The statute also authorizes forfeiture of the animals shot or captured in violation of the AHA, as well as the equipment and aircraft used in violation of the AHA. 16 U.S.C. § 742j-1(e).
U.S. Fish and Wildlife Service (FWS) implementing regulations specify that the AHA applies to all persons within the territorial jurisdiction of the United States, to all United States citizens whether within the territorial jurisdiction of the United States or on the high seas or on board an aircraft in flight over the high seas, and to all persons on board aircraft belonging in whole or part to any United States citizen, firm, partnership, or corporation created by or under the laws of the United States, or any State, territory or possession thereof. 50 C.F.R. § 19.2. Person is defined to mean “any individual, firm, corporation, association, partnership, club, or private body, any one or all, as the context requires.” 50 C.F.R. § 10.12.
Additional reference information:
The Antarctic Conservation Act, enacted in 1978, provides for the conservation and protection of the Antarctic resources consistent with the Protocol on Environmental Protection to the Antarctic Treaty, signed October 4, 1991. The Act applies to the natural and cultural resources associated with the land, ice shelves and water south of the 60 deg. latitude. (16 U.S.C § 2402). The Act provides a list of 13 activities that are prohibited to protect Antarctica and an additional 5 activities that are prohibited unless authorized by a permit issued by the National Science Foundation. (16 U.S.C. § 2403-2404). Applications for permits that undertake actions with respect to the Endangered Species Act of the Migratory Bird Treaty Act require consultation with the Department of Commerce or Interior. The obligations under the Protocol for environment impact assessments are to be carried out by applying NEPA including tourism and other non-governmental activities which are subject to regulations promulgated by the Environmental Protection Agency. Violations of the Act are punishable in the form of both civil and criminal charges with fines up to $10,000 per day and up to a year in prison. (16 U.S.C §§ 2407-2408).
The Antarctic Marine Living Resources Convention Act (AMLRCA), enacted in 1984, implements the Convention on the Conservation of Antarctic Marine Living Resources (Convention), which was ratified by the United States on February 18, 1982, and which entered into force on April 7 of that year. 16 U.S.C. § 2431(b). The objective of the Convention is the conservation of Antarctic marine living resources. Convention, Art. II. To give effect to this objective, Article II of the Convention establishes principles for restricting the harvesting of living marine resources and associated activities (e.g., scientific research, at-sea transshipment and processing) conducted within the area south of 60° South latitude and between that latitude and the Antarctic Convergence. Convention, Arts. I and III. This is known as the Convention Area. In addition, Article VII of the Convention establishes a Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the function of which is to give effect to the objective and principles of the Convention, including by adopting conservation and management measures (CMs) that are binding on all Members and Contracting Parties. Convention, Art. IX. The United States is a Member of CCAMLR.
CCAMLR CMs apply to harvesting of living marine resources and associated activities that occur inside the Convention Area as well as to certain activities, in particular the trade in toothfish (Dissostichus spp.), that occur outside the Convention Area. Trade in toothfish is governed by a catch documentation scheme (CM 10-05) that tracks toothfish from the point of harvest through final import for consumption. In addition to adopting CMs that address the conservation and management of target species, CCAMLR has adopted a number of measures intended to protect non-target species. These include measures to protect vulnerable marine ecosystems from the adverse impacts of bottom fishing (CMs 22-05, 22-06, 22-07 and 22-09), minimize bycatch of sharks (CM 32-18) and seabirds (CMs 24-02, 25-02 and 25-03), and establish a framework for establishment of marine protected areas (CM 91-04).
The United States implements CCAMLR CMs through regulations that are promulgated by NOAA, in consultation with the Department of State, the U.S. Coast Guard and other federal agencies as appropriate. 16 U.S.C. § 2436; 50 C.F.R. Part 300 subpart G.
U.S. jurisdiction under AMLRCA extends to all persons (defined to include any ‘individual, partnership, corporation, trust, association, and any other entity subject to the jurisdiction of the United States) and all vessels of the United States that are engaged in the harvesting of Antarctic marine living resources or associated activities. 16 U.S.C. §§ 2432 (8) and (10); 50 C.F.R. § 300.100 (b)(1).
AMLRCA prohibits any person from engaging “in harvesting or other associated activities in violation of the provisions of the Convention or in violation of a conservation measure in force with respect to the United States” or violating “any regulation promulgated under this chapter.” 16 U.S.C. §§ 2435(1) and (2). Any person found to have violated AMLRCA is liable for a civil penalty of up to $11,000 per violation, with each day of a continuing violation constituting a separate violation. 16 U.S.C. § 2437 (a)(1). Criminal sanctions are available for some violations. 16 U.S.C. § 2438. “[A]ny Antarctic marine living resource (or part thereof) with respect to which an act prohibited by [AMLRCA] is committed”, and any vessel, vehicle or aircraft subject to the jurisdiction of the United States used in connection with a violation of AMLRCA, are subject to forfeiture to the United States. 16 U.S.C. § 2439(d).
Additional reference information:
The Antiquities Act of 1906 is the first United States statute to authorize general protection of natural and cultural heritage. The Act grants the President authority to establish national monuments on lands "owned or controlled by the United States" that contain objects or areas of historic or scientific interest. Presidential designation of land as a national monument can limit land uses. In particular, development or recreation may be regulated or prohibited to protect the objects or areas listed in the Presidential proclamation establishing the national monument.
The Act has been construed to apply in the marine environment to the outer limit of the exclusive economic zone (OLC Opinion Sept. 2000). The Department of Justice Office of Legal Counsel issued an Opinion dated September 15, 2000 which provides that the President "may use his authority under the Antiquities Act to establish a national monument in the exclusive economic zone to protect marine resources." As noted in Alaska v. United States (2005), the Act also gives the President the power to reserve submerged lands for the purpose of protecting wildlife and nature, even lands to which rights, title, and interest may otherwise have been granted to states under the Submerged Lands Act (545 U.S. 75, 108). In Alaska v. United States, the National Monument in question, Glacier Bay, was established before Alaska became a state.
The Antiquities Act has been applied at least four times to create marine national monuments, all of which extend beyond the outer limit of the twelve nautical mile territorial sea. The four monuments — the Papahanaumokuakea Marine National Monument, the Marianas Trench Marine National Monument, the Pacific Remote Islands Marine National Monument, and the Rose Atoll Marine National Monument — encompass almost 214,777,000 acres of marine environment. This is larger than the land areas of Texas and Florida combined. The Marianas Trench Marine National Monument covers only submerged lands around the trench itself and around twenty one undersea volcanos. The Monument also covers the waters and submerged lands around the three northernmost Mariana Islands.
Photo 74: Coast Guard at-sea boarding.
(Coast Guard web site)
U.S. District Courts have held that this federal statute is applicable to the assault on a fisheries observer on board a foreign vessel in the U.S. EEZ. SeeU.S. v. Jung Sik Lee, Case No. A86-132 (D. Alaska 1987).
The Clean Boating Act of 2008 (“CBA” or the “Act”) is an amendment to the Clean Water Act (33 U.S.C. §§ 1251 et seq) that affects recreational vessels. The CBA defines a recreational vessel as any vessel that is manufactured or used primarily for pleasure, or that is leased, rented, or chartered to a person for the pleasure of that person. 33 U.S.C. § 1362(25)(A). The Act does not apply to any vessel subject to inspection by the U.S. Coast Guard (“USCG”) that is engaged in commercial use or carries paying passengers. 33 U.S.C. § 1362(25)(B).
The CBA exempts from the Clean Water Act’s National Pollutant Discharge Elimination System all discharges incidental to the normal operation of recreational vessels other than sewage. 33 U.S.C. § 1362(r). Instead, the CBA requires recreational vessels to comply with certain management practices. In forming these management practices, the U.S. Environmental Protection Agency (“EPA”) determines, in consultation with the U.S. Coast Guard (“USCG”), the U.S. Department of Commerce (“DOC)” and interested States, which discharges are reasonable and practicable. 33 U.S.C. § 1322(o)(2). For each identified discharge, EPA, in consultation with USCG, DOC, other interested Federal agencies, and interested States, must promulgate Federal standards of performance. 33 U.S.C. § 1322(o)(3). Once EPA issues these Federal standards of performance, USCG must promulgate regulations governing the design, construction, installation, and use of management practices as are necessary for recreational vessels to meet the standards. 33 U.S.C. § 1322(o)(4).
After the effective date of the USCG’s regulations, owners and operators of recreational vessel are prohibited from operating in or discharging into “the waters of the United States or the waters of the contiguous zone” unless they implement the management practices. 33 U.S.C. § 1322(o)(6). The Clean Water Act defines the “contiguous zone” as "the entire zone established or to be established by the United States under article 24 of the  Convention on the Territorial Sea and the Contiguous Zone." 33 U.S.C. § 1362(9). Under this Convention, “[t]he contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.” 1958 Convention on the Territorial Sea and the Contiguous Zone art. 24, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205. Thus, CBA’s prohibition applies within the belt of seas that encompasses waters to a seaward limit of 12 nautical miles from the U.S. baseline (generally the mean low-water line).
The Clean Water Act (CWA or the Act) identifies different seaward jurisdictional limits for a variety of different purposes. The regulatory provisions of the CWA control the “discharges of pollutants.” The Act defines “discharge of a pollutant” to include the addition of pollutants to “navigable waters” from any point source and the addition of pollutants to waters of the “contiguous zone” or the “ocean” from any point source other than a vessel or other floating craft. 33 U.S.C. § 1362(12).
The CWA defines "navigable waters" as "waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). The term “territorial seas” are in turn defined as the belt of seas extending three miles* seaward of the ordinary low water mark. 33 U.S.C. § 1362(8). Beyond the three mile territorial seas, the jurisdiction of the Act extends seaward to include the next nine mile "contiguous zone." 33 U.S.C. § 1362(9); Department of State Public Notice 358, 37 Fed. Reg. 11,906 (June 15, 1972). Because the CWA’s provisions applicable to state water quality standards and state National Pollutant Discharge Elimination System (NPDES) permitting programs extend to the navigable waters (i.e., the waters of the United States, including the territorial seas), courts have held that state NPDES permitting programs extend only to the navigable waters, and thus that only the U.S. Environmental Protection Agency may issue CWA permits for discharges seaward of the three mile territorial sea. See Pac. Legal Found. v. Costle, 586 F.2d 650, 655-56 (9th Cir. 1978), rev’d on other grounds, 445 U.S. 198 (1980). The "ocean" is broadly defined by the Act as "any portion of the high seas beyond the contiguous zone." 33 U.S.C. § 1362(10).
* The CWA does not define the term “mile” nor has EPA done so by regulation. The Act’s legislative history is silent as to whether the term “mile” refers to a nautical mile or a statute mile. A nautical mile is defined by the U.S. National Institute of Standards and Technology as 1,852 meters (~6,076 feet). A statute mile is defined by international agreement as 1,609.344 meters (5,280 feet). The only judicial opinion found that arguably sheds any light on this ambiguity was issued by a state court. In construing the undefined term “mile” in the Florida Constitution to mean a “nautical mile,” the District Court of Appeals of Florida concluded that doing so was “the only reasonable alternative particularly in light of ‘common understanding and practice.’” See State v. Kirvin, 718 So. 2d 893, 899 (Fla. Dist. Ct. App. 1988, review denied by Taylor v. State, 729 So.2d 918 (1999).
The Coastal Zone Management Act (CZMA), enacted in 1972, encourages coastal states to develop and implement Coastal Zone Management Plans (CZMPs), with the aim of preserving, protecting, developing, and restoring the coastal zones and coastal resources. Most coastal states have federally approved CZMPs.
The term "coastal zone," as applied to coastal states, includes the coastal waters, the lands found in and under the coastal waters, and the adjacent shorelands (16 U.S.C. § 1453(1)). The coastal zone extends, in the Great Lakes, to the international boundary between the United States and Canada and, in other areas, to the outer limit of state title and ownership under the Submerged Lands Act (43 U.S.C. §§ 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. § 709), the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, as approved by the Act of March 24, 1976 (48 U.S.C. § § 1801 et seq.), or Section 1 of the Act of November 20, 1963 (48 U.S.C. § 1705) (16 U.S.C. § 1453). However, states’ coastal zones specifically excludes "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents."
U.S. jurisdiction over waters off its coasts extends to the seaward limit of its 200 nautical mile exclusive economic zone (EEZ), and to the outer limit of its continental shelf (Presidential Proclamation 5030 of March 10, 1983: Exclusive Economic Zone of the United States (48 Fed. Reg. 10605); Presidential Proclamation 2667 of September 28, 1945 (10 Fed. Reg. 12303). The CZMA contains a "federal consistency provision," that requires federal agency activities that have reasonably foreseeable effects on state coastal zones to be consistent to the maximum extent practicable with the enforceable policies of a coastal state’s federally approved coastal management program (16 U.S.C. § 1456).
CERCLA defines the “environment” (to which CERCLA applies) to mean the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery Conservation and Management Act, as well as any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or “under the jurisdiction” of the United States. 42 U.S.C. § 9601(8). Federal courts have ruled both ways on the extraterritorial application of CERCLA. CERCLA’s definition of the terms “United States” and "State" to which CERCLA’s provisions apply includes territories and possessions over which the U.S. exercises jurisdiction. 42 U.S.C. § 9601(27). Similarly, the definition of "person" includes "corporations" but does not clarify whether this term encompasses only domestic corporations or whether it also includes foreign corporations. 42 U.S.C. § 9601(21).
Chapter 111 (“Shipping”) of Title 18 of the US Code includes six sections criminalizing certain misuses of vessels. The first section in this chapter makes it a crime to conspire to destroy any US or foreign flagged vessel with the intent to harm a lender or underwriter of the vessel. 18 U.S.C. § 2271. This section applies within the US, including the territorial sea; or if the offense is committed by or against a US national or US vessel, on the high seas. 18 U.S.C. § 2271; see also Jurisdiction over Flagged Vessels page.
The actual destruction of a vessel by its owner with the intent to injure an underwriter, lender, or other owner of the vessel is also a crime, for which life in prison may be imposed. 18 U.S.C. § 2272. This section applies to all US nationals and US flagged vessels anywhere located.
18 U.S.C. § 2273 makes it a crime for a non-owner to cast away or otherwise destroy a vessel of the US anywhere located, or to willfully attempt to do so. 18 U.S.C. § 2273. A “vessel of the US” in this section refers to a vessel belonging at least in part to the US, a US citizen, or a US corporation. 18 U.S.C. § 9. The statute applies wherever the vessel of the US is located. 18 U.S.C. § 2273.
Pub. L. 103–322 criminalizes the destruction of, injury to, or improper use of any vessel (private, public, foreign or domestic) by its owner, master, or crew. Congress originally enacted this statute during wartime as a part of the Espionage Act of 1917. Its purpose was to prevent the use of a vessel as a place for planning espionage against the US. See The Leme, 77 F. Supp. 773, 778 (D. Or. 1948). When the Espionage Act was repealed following World War II, this provision was moved to 18 U.S.C. § 2274. It applies within the “territorial waters” of the US. 18 U.S.C. § 2274. “Territorial waters” is not defined in the statute, but would include the territorial sea at the time of enactment in 1948, which extended at that time three nautical miles (nm) seaward from the coast. See United States v. Whitmore, 536 F. Supp. 1284 (D. Me. 1982).
Setting fire to or tampering with a vessel, or attempting to do so, is also a crime if it is intended to endanger the safety of the vessel. 18 U.S.C. § 2275. This includes tampering with the “motive power” of a vessel by disabling its engines. See United States v. Franicevich, 465 F.2d 467 (5th Cir. 1972). This statute applies to vessels of American registry anywhere located. 18 U.S.C. § 2275. It also applies to foreign flagged vessels or vessels belonging at least in part to the US, a US citizen, or a US corporation, while within the internal waters or territorial sea of the US. 18 U.S.C. § 2275. It is irrelevant for the purposes of the statute whether the danger to the vessel is intended to take place within US jurisdiction or outside of it, so long as it is intended to endanger the safety of the vessel. 18 U.S.C. § 2275.
Breaking or entering any vessel (US or foreign flagged) with intent to commit a felony is also a criminal act. 18 U.S.C. § 2276. Acts covered by this statute include maliciously cutting or destroying cables fixed to the anchor of a vessel. 18 U.S.C. § 2276. This statute applies when the crime is committed within the internal waters or territorial sea of the US, as well as on the high seas and within foreign territorial waters provided that the offense is committed by or against a US national or US vessel. 18 U.S.C. § 2276.
The Deep Seabed Hard Mineral Resources Act (DSHMRA), which became law on June 28, 1980, establishes an interim framework for the orderly development of hard mineral resources of the deep seabed, pending agreement on an international regime. 30 U.S.C. § 1401(b); 30 U.S.C § 1441(3). DSHMRA applies to U.S. citizens and vessels, as well as foreign persons and vessels otherwise subject to U.S. jurisdiction, who engage in exploration for and commercial recovery of deep seabed hard mineral resources. 30 U.S.C. § 1402(a)(1). Under DSHMRA, "deep seabed" means the area seaward of the United States’ Continental Shelf, as defined under the 1958 Shelf Convention, 30 U.S.C § 1403(2), and seaward of the Continental Shelf or national resource jurisdiction of any other nation. 30 U.S.C. § 1403(4). Although the Act contains a disclaimer of extraterritorial jurisdiction, 30 U.S.C. § 1402(a)(2), it plainly regulates conduct of U.S. citizens and others subject to U.S. jurisdiction when they engage in exploration for and exploitation of deep seabed hard mineral resources in or under the seafloor beyond national jurisdiction. 30 U.S.C. § 1402(a)(1).
DSHMRA also extends Clean Water Act jurisdiction to any discharge of a pollutant from vessels and other floating craft engaged in commercial recovery or exploration under the Act. 30 U.S.C. § 1419(e). Thus, such vessels are subject to Clean Water Act regulation even when on the high seas. See, e.g., EPA, Issuance of Final General NPDES Permit for Portions of Deep Seabed Mining- Exploration Activities in the Pacific Ocean, 49 FR 39,442 (Oct. 5, 1984).
The Deepwater Port Act of 1974 (DWPA) was enacted to regulate the location, ownership, construction, and operation of deepwater ports involved in the transportation of oil or natural gas resources to or from any State. Deepwater ports are located beyond the territorial limits of the United States (generally beyond three nautical miles from the U.S. baseline which is typically the mean low-water mark). 33 U.S.C. § 1501(a)(1) (see also 33 U.S.C. § 1502(9)(A)). These activities are regulated through an application and licensing system which is overseen by the Secretary of Transportation through the Maritime Administration (MARAD) in coordination with the U.S. Coast Guard. 33 C.F.R. § 148.3. The Secretary of Transportation is required to establish environmental review criteria for the location, construction, and operation of deepwater ports consistent with the National Environmental Policy Act (NEPA). 33 U.S.C § 1505. The DWPA authorizes the NOAA Administrator to advise the Department of Transportation on the environmental review criteria for deepwater port applications, the site evaluation and preconstruction testing at potential locations and the designation of "adjacent coastal state" status. 33 U.S.C. §§ 1505(a), 1508(a)(2).
A deepwater port is "any fixed or floating manmade structure other than a vessel…that [is] used or intended for use as a port or terminal for the transportation, storage, or further handling of oil or natural gas…and for other uses not inconsistent with the purposes of this [statute],” and is located beyond State seaward limits (generally three nautical miles from the baseline, with State specific exceptions in the Gulf of Mexico). 33 U.S.C. § 1502(9). Accordingly, U.S. jurisdiction under the DWPA generally begins three nautical miles from the U.S. baseline. The DWPA does not specify a seaward jurisdictional limit but expressly includes ports on the outer continental shelf, which currently extends a maximum of 200nm from the baseline. 33 U.S.C. § 1501(a)(6); see also 13 U.S.C. § 1502(9)(a) (uses consistent with the Act’s purpose include "transportation of oil or natural gas from the United States outer continental shelf."); 33 U.S.C. § 1504(h)(3); 33 U.S.C. § 1520; 33 C.F.R. § 148.5; 49 C.F.R. § 1.53(a)(3). The DWPA also references the high seas in that deepwater ports should not "interfere with international navigation or other reasonable uses of the high seas, as defined by treaty, convention, or customary international law." See S. REP. NO. 93-1217 at 7535 ("However, the freedom of all nations to make reasonable use of waters beyond territorial boundaries is recognized by the International Convention on the High Seas.").
Under the DWPA, and subject “to recognized principles of international law,” the U.S. Coast Guard regulates vessel movement around deepwater ports for a variety of purposes, including “to prevent pollution of the marine environment.” 33 U.S.C. § 1509. This authority applies to all vessels, both foreign and domestic, “subject to recognized principles of international law.” 33 U.S.C. § 1509; 33 U.S.C. § 1518(a)(3); 33 U.S.C. § 1502(19). The U.S. Coast Guard carries out this authority through regulations and provisions in a licensee’s operations manual, or the establishment of no anchoring areas and areas to be avoided through the International Maritime Organization acting on behalf of the Executive Branch. 33 U.S.C. § 1509(a); 33 C.F.R. § 150.915. Types of regulation that the U.S. Coast Guard is specifically authorized to implement are navigational safety zones. In developing such zones, the U.S. Coast Guard must consult with the Departments of the Interior, Commerce, State and Defense. 33 U.S.C. § 1509(d)(1). In determining the size of navigational safety zones, the U.S. Coast Guard must take into account a number of factors, including: environmental factors, economic impact and effects, and the scope and degree of the risk or hazard involved. 33 C.F.R. § 150.915. “Subject to recognized principles of international law,” however, these zones may not exceed 500m around the deepwater port. 33 U.S.C. § 1509(d)(1); Law of the Sea Convention, art. 60(5).
Photo 87: Endangered Right whale and calf. (NOAA, Alaska Fisheries Science Center)
The Endangered Species Act of 1973, as amended, 16 U.S.C. §§ 1531 et. seq., (ESA) provides for the conservation of endangered and threatened species, and the conservation of the ecosystems upon which they depend. ESA Section 2(b), 16 U.S.C. § 1531(b). NOAA and the U.S. Fish and Wildlife Service (the Services) administer the ESA jointly. Generally, NOAA exercises jurisdiction over marine and anadromous species and FWS over terrestrial and freshwater species. ESA Section 4(a)(1), 16 U.S.C. § 1533(a)(1), provides for listing species as endangered or threatened. A species is endangered if it is in danger of extinction throughout all or a significant portion of its range, and threatened if it is likely to become endangered within the foreseeable future. ESA Section 3(6), (19), 16 U.S.C. § 1532(6), (19). ESA Section 4(a)(3), 16 U.S.C. § 1533(a)(3), provides that, to the extent prudent and determinable, the Services at the time of listing should designate critical habitat essential to the conservation of the species. The Services’ implementing regulations, 50 CFR § 424.12(h), clarify that critical habitat shall not be designated in foreign countries or areas outside of US jurisdiction.
Under the ESA, it is unlawful for anyone subject to the jurisdiction of the United States including Federal agencies, to “take” - defined broadly to include “harm” and “harass” as well as “capture” and “kill” - any endangered animal in the U.S., the territorial seas or the high seas, including both U.S. and foreign EEZs. ESA Section 9(a)(1)(B), (C), 16 U.S.C. § 1538(a)(1)(B), (C); 50 CFR § 17.21(c)(1), 17.31. By regulation pursuant to ESA section 4(d), 16 U.S.C. § 1533(d), the Services have extended the prohibition of take to most threatened animal species.
Under ESA Section 7(a)(2), 16 U.S.C. § 1536(a)(2), Federal agencies also must, in consultation with and with the assistance of the Services, insure that actions they fund, authorize or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify designated critical habitat. If the Services conclude that an agency’s action meets this section 7(a)(2) standard, the Services provide an incidental take statement that exempts the Federal agency from the prohibition against take contained in ESA sections 4(d), 9(a)(1)(B) and (C). ESA Section 7(o)(2), 16 U.S.C. § 1536(o)(2). The Services’ implementing regulations provide that Federal agency actions on the high seas, including in U.S. and foreign EEZs, are subject to ESA section 7. 50 CFR § 402.02.
Non-federal actors can get permits that allow take of species otherwise prohibited by ESA section 9 for scientific research or for the enhancement of propagation or survival. ESA Section 10(a)(1)(A), 16 U.S.C. § 1539(a)(1)(A). Because the prohibitions in ESA section 9(a)(1)(C) extend to the high seas, including U.S. and foreign EEZs, a section 10(a)(1)(A) permit is needed for take in any of these areas.
Additional reference information:
Section 7 of the Rivers and Harbors Appropriations Act of 1915 is the basis for the establishment of anchorage grounds. It was codified in 33 U.S.C. § 471. The authority conferred by this statute was transferred to and vested in the Secretary of Homeland Security by section 902(j) of the Coast Guard and Maritime Transportation Act of 2006. This was later amended, most recently by Section 301 of the Coast Guard Authorization Act of 2010. It authorizes the Secretary of Homeland Security to define and establish anchorage grounds for vessels in all harbors, rivers, bays, and navigable waters of the United States. The U.S. Coast Guard acting under the direction of the Secretary of Homeland Security is charged with enforcement. Any violation of such rules is liable for a penalty of up to $10,000. Each day during which a violation continues constitutes a separate violation.
33 U.S.C. § 472 directs the Commandant of the Coast Guard to provide and maintain suitable markings of anchorage grounds as so defined in § 471. 33 U.S.C. § 474 authorizes the Commandant of the Coast Guard to define and establish anchorage grounds in Saint Marys River. 33 U.S.C. § 475 authorizes the Secretary of the Navy to define and establish anchorage grounds in Pearl Harbor. 33 U.S.C. § 476 specifically restricts tanker traffic in Puget Sound and its adjacent waters.
The seaward limit of the authority to establish anchorage grounds is coextensive with the outer limit of the territorial sea of the United States. The language of 33 U.S.C. § 471 specifically lists this authority as including “all harbors, rivers, bays, and other navigable waters of the United States” and defines “navigable waters of the United States” to include “all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988.” Presidential Proclamation No. 5928 defines the territorial sea of the United States as extending “to 12 nautical miles from the baselines of the United States determined in accordance with international law.”
Additional reference information:
The Fur Seal Act’s ban on pelagic sealing applies both “on lands or waters under the jurisdiction of the United States,” 16 U.S.C. § 1152, and in “the waters of the Pacific Ocean north of the thirtieth parallel of north latitude, including the Bering, Okhotsk, and Japan Seas,” id. § 1151(g). To this end, the Act extends the United States’ enforcement jurisdiction extraterritorially. It provides that parties to the Convention, including the United States, may “board and search” a treaty party-flagged ship on the high seas that is “outfitted for the harvesting of living marine resources” if there exists “reasonable cause to believe” that the ship has violated the Convention’s pelagic sealing ban. Id. § 1156(a). The Act further provides that parties to the Convention, including the United States, enjoy enforcement authority with respect to the Convention’s proscription on pelagic sealing within their exclusive economic zones (“EEZs”)—though parties cannot enforce the Convention within other states’ EEZs. See 16 U.S.C. § 1156(a) (prohibiting Fur Seal Convention parties’ enforcement of the pelagic sealing ban “within the areas in which another State exercises fisheries jurisdiction”).
With the Fur Seal Convention’s expiration in 1984, the United States no longer possesses the authority under international law to conduct extraterritorial inspections of foreign-flagged vessels suspected of pelagic sealing activities, and foreign-flagged vessels’ extraterritorial inspection of U.S. ships suspected of sealing would be similarly unauthorized. The Fur Seal Act’s enabling of the United States’ inspection of U.S.-flagged vessels on the high seas and within the U.S. EEZ likely remains valid, however.
Finally, the Fur Seal Act also reaches extraterritorial pelagic sealing activity by barring the “use [of] any port or harbor or other place under the jurisdiction of the United States for any purpose connected in any way with [pelagic sealing.]” 16 U.S.C. § 1152. It further bars the transport, importation, sale, or possession of “fur seals or the parts thereof” at “any port or place or on any vessel, subject to the jurisdiction of the United States[.]” Id.
Additional reference information:
The Historic Sites, Buildings, and Antiquities Act (HSA) of 1935 declared it "national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States." 16 U.S.C. § 461. The HSA authorizes the National Park Service to collect data, inventory both publicly and privately held sites, erect and maintain commemorative tablets, and operate and maintain suitable properties for the benefit of the public. 16 U.S.C. § 463(a). This led to establishment of the National Historic Landmarks Program in 1960 under which the Secretary of the Interior may grant historic buildings, sites, structures, objects or districts representing an outstanding aspect of American history and culture National Historic Landmark status. See, e.g., Barry Mackintosh, The Historic Sites Survey and National Historic Landmarks Program: A History 41 (History Division, National Park Service 1985). In 1966, the National Historic Preservation Act greatly expanded the federal government’s role in historic preservation, and in the 1980 amendments to that Act, National Historic Landmarks were given explicit recognition in the National Register system. Pub. L. No. 96-515. In 1983, the National Park Service published updated regulations defining the National Historic Landmarks criteria and the procedures for considering new properties for inclusion as National Historic Landmarks. All properties designated as National Historic Landmarks are included in the National Register of Historic Places.
The Historic Site Act’s National Historic Landmark Program has been applied to historic sites and objects of national significance located on lands — including submerged lands outside of U.S. territory. For example, the American Legation, a U.S. owned building in Morocco, was listed on the National Register in 1981 and designated a National Historic Landmark in 1983.
Pursuant to the Historic Sites Act as amended in 1976, the Secretary of the Interior is authorized to designate properties on the Outer Continental Shelf as National Historic and National Natural Landmarks. See 87 Interior Dec. 593, 601, 1980 WL 104199, 8 (Nov. 24, 1980). Seven National Historic Landmarks are underwater cultural heritage sites. These include the Truk Lagoon Underwater Fleet (Truk Atoll, Micronesia submerged lands outside of the United States, added to the National Register in 1976, designated a National Historic Landmark in 1985), U.S.S. Monitor (shipwreck located on the U.S. outer continental shelf 17 miles from shore and beyond the U.S. territorial sea when added to the National Register in 1974; designated a National Historic Landmark in 1987), U.S.S. Arizona (shipwreck located on State of Hawaii submerged lands, added to the National Register in 1966 and designated a National Historic Landmark in 1989), U.S.S. Utah (shipwreck located on State of Hawaii submerged lands, added to the National Register and designated a National Historic Landmark in 1989), Maple Leaf (shipwreck located in a Florida riverbed, added to the National Register and designated National Historic Landmark in 1994), Antonio Lopez (shipwreck located on Puerto Rico submerged lands, added to the National Register in 1994 and designated a National Historic Landmark in 1997), and Radeau Land Tortoise (shipwreck located at bottom of Lake George in New York State, added to the National Register in 1995 and designated a National Historic Landmark in 1998).
The Longshore and Harbor Workers’ Compensation Act (LHWCA) was first enacted in 1927. It is a statutory workers’ compensation scheme that provides compensation for injured harbor workers. To qualify for coverage, the injury or death to the worker must occur on the “navigable waters of the United States.” 33 U.S.C. §903(a).
Courts have held that in the context of the LHWCA, the term navigable waters of the United States include workers injured on the high seas. The Second Circuit held that there were two reasons why the LHWCA’s coverage is extended past territorial application and to the high seas: (1) the administration section of the LHWCA, located in section 39, provides for the establishment of compensation districts that cover the high seas and, therefore, expressly contemplates coverage of injuries sustained on the high seas and (2) Congress' overriding purpose in enacting the LHWCA was to provide consistent workers' compensation coverage to eligible longshore and harbor workers, a goal that would be frustrated by limiting the LHWCA to territorial application.
Although the LHWCA does apply to the high seas, courts are not willing to extend coverage to foreign territorial seas. Thus, a worker injured in foreign territorial waters does not qualify for coverage under the LHCWA.
Additional Reference Information:
Kollias v. D & G Marine Maint. 29 F.3d 67 (2d Circ. 1994)
Cove Tankers Corp. v. United Ship Repair, Inc. 683 F.2d 38, 41 (2d Cir. 1982)
Keller Found./Case Found. v. Tracy 696 F.3d 835, 843 (9th Cir. 2012)
Saipan Stevedore Co. Inc. v. Dir., Off. of Workers' Compen. Programs 133 F.3d 717, 723 (9th Cir. 1998)
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is the primary law governing marine fisheries management in United States federal waters. Courts have held that the extraterritorial application of the MSA is based on the explicit language of the statute.
16 U.S.C. § 1811(b) provides that "The United States claims, and will exercise in the manner provided for in this Act, exclusive fishery management authority over the following:
16 U.S.C. § 1802(11) defines "exclusive economic zone as "the zone established by Proclamation Numbered 5030, dated March 10, 1983."
16 U.S.C. § 1802(7) defines "Continental Shelf fishery resources" to encompass specific enumerated species of coral, crab, lobster, abalone, conch, claim and sponge. See also 50 C.F.R. § 600.10.
The Marine Mammal Protection Act (MMPA) contains express language making it unlawful for any person subject to the jurisdiction of the United States or any vessel or other conveyance subject to the jurisdiction of the United States to take a marine mammal on the high seas outside the territorial limits of the United States. MMPA § 102(a)(1), 16 U.S.C. § 1372(a)(1); 50 CFR § 216.11(a). Take by any person or vessel or other conveyance present in lands or waters subject to the jurisdiction of the United States is also prohibited. MMPA § 102(a)(2)(A), 16 U.S.C. § 1372(a)(2)(A); 50 CFR § 216.11(b). NOAA has consistently interpreted the MMPA as applicable to U.S. vessels and citizens throughout the high seas, including foreign EEZs, as reflected in Congressional and other correspondence, enforcement actions against U.S. citizens, and international agreements that rely upon jurisdiction over U.S. vessels and citizens in foreign EEZs. The courts that have addressed the issue have agreed.
The purpose of the Migratory Bird Treaty Act (MBTA) is to protect migratory birds and their habitat during the time that the birds are within the United States. The MBTA is silent as to its geographic scope although the U.S. Department of the Interior has previously claimed that the Act applies to the seaward limit of the U.S. EEZ.
The Archeological and Historic Preservation Act (AHPA) is also known as the Historical and Archeological Data Preservation Act or the Moss-Bennett Act. The purpose of the AHPA is to further the preservation policies set forth in the Historic Sites, Buildings, and Antiquities Act (HSA), the Reservoir Salvage Act, and to help address concerns about the protection of historic resources from the activities of federal agencies under the National Historic Preservation Act (NHPA). See Pub. L. No. 86-523; see also H.R. Rep. No. 93-992 (The AHPA “is, of course, supplementary to, and does not supersede, the requirements with respect to properties listed on the National Register, contained in the National Historic Preservation Act of 1966. . .”). The AHPA, which is administered by the Department of the Interior, requires that Federal agencies provide for the preservation of data when Federal construction projects threaten to destroy historical or archeological data. See 54 U.S.C. § 312502. Data is defined as “historical and archeological materials,” which includes “[c]omponents of shipwrecks (such as pieces of the ship's hull, rigging, armaments, apparel, tackle, contents and cargo).” 7 C.F.R. § 656.2(a); 36 C.F.R. § 79.4.
The AHPA applies to all “activities in connection with any Federal construction project or federally licensed project, activity, or program” that “may cause irreparable loss or destruction of significant scientific, prehistorical, historical, or archeological data. . .” 54 U.S.C. § 312502(a)(1). Regulations implementing the AHPA specify that it applies to “the Nation’s waters” (7 C.F.R. § 650.3(b)(14)) and to “components of shipwrecks” (36 C.F.R. § 79.4). Like the HSA and the NHPA, the AHPA may apply to federal activities in the marine environment depending on the seaward limit of the statute authorizing the federal activity.
Additional reference information:
Two primary purposes of NEPA are "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment . . . ." 42 U.S.C. § 4321. The Federal Government is responsible for using "all practicable means, consistent with . . . national policy, to improve and coordinate Federal plans, functions, programs and resources" to fulfill responsibilities under this policy. 42 U.S.C. § 4331(b). Congress directed that all Federal agencies "shall . . . recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment . . . ." 42 U.S.C. §4332(F).
NEPA, Council on Environmental Quality (CEQ) regulations implementing NEPA, and federal-agency-specific procedures also establish environmental review requirements for proposed federal actions. See, e.g., 42 U.S.C. § 4332(C)). Environmental review ensures environmentally informed federal decision making and enhanced public awareness. Department of Transportation v. Public Citizen, 541 U.S. 752 (2004). The application of NEPA beyond U.S. territory has often been litigated in the federal courts. The key issue is in such cases is whether there are substantial environmental effects within U.S. territory. Where the effects are primarily found to be within the territory of a foreign country or would not affect existing U.S. treaty rights, courts generally have held that NEPA does not apply. A factor considered by some courts is whether the decision that led to the environmental effects was made within the territory of the U.S. Notably, the Circuit Court of Appeals for the D.C. Circuit has held "that the presumption against the extraterritorial application of statutes . . . does not apply where the conduct regulated by statute occurs primarily, if not exclusively, in the United States, and the alleged extraterritorial effect of the statute will be felt in . . . a continent without a sovereign, and an area over which the United States has a great measure of legislative control" (e.g., Antarctica). Environmental Defense Fund Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993).
NOAA’s policy is to apply NEPA both within and beyond the U.S. Exclusive Economic Zone (EEZ). NOAA Administrative Order (NAO) 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act (May 20, 1999), sections 3.01 and 7.01. This policy also includes NOAA procedures for implementing E.O. 12,114, Environmental Effects Abroad of Major Federal Actions (Jan. 9, 1979).
Additional reference information:
The National Historic Preservation Act sets forth the national policy for the preservation of historic properties in the United States (Section 106) and abroad (Section 402). Section 106, 16 U.S.C. § 470, requires federal agencies to consider the effects of their undertakings on historic properties in the United States, including the Outer Continental Shelf and the Exclusive Economic Zone. Under Section 110, federal agencies are to establish historic preservation programs to survey and identify historic properties and nominate them for listing on the National Register of Historic Places. There are over 89,000 properties listed on the National Register, including almost 600 historic vessels and shipwrecks. To date there are 23 shipwrecks, a sunken airship, 5 lighthouses, and a native Hawaiian fish pond on the National Register in National Marine Sanctuaries. A number of these properties are located on the Outer Continental Shelf and a few are located outside the United States. See Tables.
Section 402 (16 U.S.C § 470a-2) requires that federal undertakings outside of the United States take into account adverse effects on sites inscribed on the World Heritage List or on the foreign nation’s equivalent of the National Register for the purpose of avoiding or mitigating adverse effects. Congress added this provision to the NHPA in 1980 to govern federal undertakings outside the United States. The seminal cases interpreting § 402 are the Dugong cases.
Photo 76: Coral Reefs
(NOAA Photo Library)
The National Marine Sanctuaries Act authorizes the Secretary of Commerce to designate and protect areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities as national marine sanctuaries. The Act and its implementing regulations at 15 C.F.R. Part 922 safeguard resources within sanctuary boundaries and include prohibitions on the conduct of certain activities. The Act defines "marine environment" to include the Exclusive Economic Zone (EEZ) and specifically provides that it applies throughout the EEZ. 16 U.S.C. § 1432(3) and § 1437(k). NMSA also specifies that it is to be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the U.S. is a party. 16 U.S.C. § 1435(a) and § 1437(k).
Of the 13 current National Marine Sanctuaries, nine are located in whole or in part beyond the U.S. 12 nautical mile territorial sea. These nine national marine sanctuaries are the Cordell Bank National Marine Sanctuary (NMS), the Florida Keys NMS, the Flower Garden Banks NMS, the Gray’s Reef NMS, the Hawaiian Islands Humpback Whale NMS, the Monitor NMS, the Monterey Bay NMS, the Olympic Coast NMS, and the Stellwagen Bank NMS. Only the Channel Islands NMS, the Fagatele Bay NMS, and the Gulf of the Farallones NMS are entirely within the U.S. territorial sea. Thunder Bay NMS is located entirely within U.S. internal waters (Lake Huron).
Enacted in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) provides for the disposition to affiliated lineal descendants, Indian tribes, and Native Hawaiian organizations of Native American cultural items removed from Federal or tribal lands after November 16, 1990, and for the repatriation or transfer of control to these parties of such items in holdings or collections of federal agencies and federally funded institutions NAGPRA also establishes procedures for addressing the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands. After November 16, 1990, the intentional excavation or removal of cultural items from federal lands may occur only after consultation with the appropriate (if any) Indian tribe or Native Hawaiian organization has been demonstrated, and in the case of tribal land, only after the consent of the tribe or organization has been obtained. Furthermore, such excavation or removal is governed by the permitting requirements under the Archaeological Resources Protection Act, 16 U.S.C. § 470aa-mm. An additional section of NAGPRA (codified at 18 U.S.C. 1170) criminalizes the knowing use for profit of Native American human remains without the right of possession, regardless of their provenience, along with the knowing use for profit of any NAGPRA-protected cultural item obtained in violation of the Act.
Indian tribes are defined as tribes, groups or communities recognized as eligible for special programs and services provided by the United States because of their status as Indians. Native Hawaiian organizations are defined as organizations that serve and represent the interests of Native Hawaiians, have as a primary and stated purpose the provision of services to Native Hawaiians, and have expertise in Native Hawaiian affairs. Native American cultural items are defined as human remains, funerary objects, sacred objects and objects of cultural patrimony. Under NAGPRA, Federal agencies and federally funded institutions having holdings or collections of cultural items must work with affiliated or potentially affiliated parties to determine the parties’ interest in the items. Upon a satisfactory request, these agencies and institutions must transfer control of the items to the requesting affiliated party.
Under NAGPRA, federal lands are defined as any land owned or controlled by the United States government other than tribal lands. Implementing regulations define lands “controlled” by the United States as lands not owned by the government, but lands in which the United States has “a legal interest sufficient to permit it to apply those regulations without abrogating the otherwise existing legal rights of a person.” 43 C.F.R. § 10.2(f)(1). The legal interest of the United States in the Outer Continental Shelf (OCS) is sufficient to trigger the application of NAGPRA. Section 5 of the Outer Continental Shelf Lands Act (OCSLA) gives the United States jurisdiction, control, and power of disposition over the subsoil and seabed of the OCS. 43 U.S.C. § 1331 et. seq. This authority to exercise control over the OCS has been interpreted as constituting a legal interest in the OCS by the United States. Furthermore, the meaning of “lands controlled by the United States” in NAGPRA is consistent with the meaning given by the Department of Justice to the same term appearing in the Antiquities Act, 16 U.S.C. 431-433. In an opinion by the Office of Legal Counsel, the United States had jurisdictional authority under the Antiquities Act to establish a National Monument on the OCS and within the Exclusive Economic Zone, in the area of the Northwestern Hawaiian Islands. Reasoning by analogy, the United States thus has jurisdictional authority to apply NAGPRA in the OCS, too.
Additional reference information:
The Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), as amended by the National Invasive Species Act (NISA), contains regulations intended to minimize and eliminate the introduction of aquatic invasive species, including regulations of ship ballast water disposal and exchanges. (16 U.S.C. § 4701(b)). The jurisdiction of NANPCA was originally limited to those ships entering the Great Lakes and the Hudson River after operating on waters beyond the Exclusive Economic Zone (EEZ), but the NISA amendments broadened the jurisdiction to all ships entering all waters of the United States after operating beyond the U.S. EEZ. The Act is therefore is chiefly concerned with and applies to areas beyond the EEZ, depending on if the vessel is headed to a U.S. port, and depending on how it has treated its ballast water (e.g., exchanging the water beyond the U.S. EEZ, or retaining the ballast water completely).
Photo 77: Ship exhaust.
(EPA Photo Library)
Title I of the Marine Protection, Research, and Sanctuaries Act of 1972, sometimes referred to as the Ocean Dumping Act, prohibits the dumping of material into the ocean that would unreasonably degrade or endanger human health or the marine environment 33 U.S.C. § 1411(a); 33 U.S.C.§ 1401. Except as authorized by permit, (1) no person shall transport from the United States, and, (2) in the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States department, agency, or instrumentality, no person shall transport from any location, any material for the purpose of dumping it into ocean waters. “Ocean waters” are defined as “those waters of the open seas lying seaward of the baseline from which the territorial sea is measured” (i.e., the ordinary low water mark). 33 U.S.C. § 1402(b). “Matter” is broadly defined to as “matter of any kind or description….” 33 U.S.C. § 1402(c). “Person” is defined as “any private person or entity, or any officer, employee, agent, department, agency, or instrumentality of the Federal Government, or of any State or local unit of government, or of any foreign government.” 33 U.S.C. § 1402(e). The permitting program is administered by the U.S. Environmental Protection Agency except for dredged material, which is administered by the U.S. Army Corps of Engineers using EPA’s criteria and subject to EPA's concurrence. .
The MPRSA extends to dumping in all the world’s oceans so long as the material is either transported from the United States, or is transported by a vessel or aircraft registered in or flying the flag of the United States. 33 U.S.C. § 1411(a). If material is transported from a location outside of the United States by a foreign-flagged vessel, the MPRSA applies to its dumping if it the dumping occurs within the U.S. territorial sea and the contiguous zone (extending 12 nautical miles seaward from the baseline) to the extent the dumping may affect the territorial sea or territory of the United States. 33 U.S.C. § 1411(b).
In 1988, the dumping of toxic ash from an incinerator in Philadelphia, Pennsylvania, into the Indian Ocean by the vessel Khian Sea led to the conviction of the Vice-President of Coastal Carriers Corporation, the operator of the Khian Sea. Even though the ship was registered in Liberia, the fact that the ash was transported from the United States established MPRSA jurisdiction. United States v. Reilly, 33 F.3d 1396, 1402-03 (3d Cir. 1994).
Additional reference information:
The Ocean Thermal Energy Conversion Act of 1980 (OTEC), establishes a legal regime administered by NOAA to authorize and encourage the development of ocean thermal energy conversion, a technology that makes use of the temperature difference between surface and deep ocean waters to drive a heat engine and generate electricity. The Act also provides for the protection of the marine and coastal environment to prevent or minimize any adverse impact which might occur as a consequence of activities authorized under OTEC.
An OTEC unit can be mounted on a platform that is either fixed or moored to the ocean floor, in which case it is called a "facility." An OTEC unit can also be located on a vessel, in which case it is called a plantship. Under OTEC, no person or entity without a license issued by NOAA may construct, locate, own or operate an OTEC facility that is: (i) documented under the laws of the U.S., (ii) located in whole or in part between the high water mark and the seaward boundary of the 12 nm territorial sea, or (iii) connected by pipeline or cable to the United States. 42 U.S.C. § 9111(a). The Act also bars any citizen of the U.S. from operating an OTEC plantship wherever located except in accordance with a license issued by NOAA under the Act or pursuant to the laws of a foreign nation whose licenses are found by NOAA to be compatible with U.S. OTEC licenses. Id. The Act broadly defines "person" to mean "any individual (whether or not a citizen of the United States), any corporation, partnership, association, or other entity organized or existing under the laws of any nation, any Federal, State, local or foreign government or any entity of such government." 42 U.S.C. § 9102(14).
OTEC does not apply to facilities which the Secretary of Energy has designated demonstration projects for the development of alternative energy sources. 42 U.S.C. § 9126(b). See generally 42 U.S.C. §§ 9001-9009 (Ocean Thermal Energy Conversion Research and Development Act). OTEC also does not apply to test platforms that will not operate as OTEC facilities or plantships after the testing period. 42 U.S.C. § 9126(a).
In 1996, NOAA rescinded the OTEC regulations it had promulgated in 1981 because it had received no applications for the development of OTEC facilities in that 15-year period. In 1995, the U.S. Coast Guard removed regulations pertaining to OTEC plantships it had promulgated under 42 U.S.C. § 9118 for essentially the same reason. With interest in OTEC increasing, NOAA is rebuilding its OTEC licensing capacity.
The Oil Pollution Act of 1990 (OPA) was passed in the wake of the 1989 Exxon Valdez oil spill in Prince William Sound. It is the principal statute governing oil spills in the nation’s waterways. OPA establishes liability and limitations on liability for the parties responsible for damages resulting from oil spills, requires oil storage facilities and vessels to submit to the federal government plans detailing how they will respond to large discharges, and sets up an Oil Spill Liability Trust Fund to pay compensation when the responsible parties are unable or unwilling to do so.
The seaward limit of OPA is coextensive with the outer limit of the 200 nautical mile exclusive economic zone (EEZ) of the United States. The language of OPA establishes liability for damages for parties responsible for such vessels or facilities from which oil is discharged "into or upon the navigable waters or adjoining shorelines or the exclusive economic zone" (33 U.S.C. § 2702). Thus, OPA applies in the EEZ of the United States. Further, liability for damages extends to natural resources associated with the extended continental shelf, beyond the 200 nautical mile limit of the EEZ. OPA provides that "all removal costs incurred by the United States Government or any State or local official or agency in connection with a discharge or substantial threat of a discharge of oil from any Outer Continental Shelf facility or a vessel carrying oil as cargo from such a facility shall be borne by the owner or operator of such facility or vessel" (33 U.S.C. § 2704(c)(3)). Such damages in or associated with the continental shelf are excluded from the defenses and limitations on damages defined in OPA, underscoring that OPA applies to the continental shelf (33 U.S.C. § 2704(c)(3)).
The Outer Continental Shelf Lands Act of 1953 (OCSLA) codified the Truman Proclamation of 1945. Under OCSLA,"the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition . . . ." (43 U.S.C. § 1332(1)). "The term ‘outer Continental Shelf’ means all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States . . . ." (43 U.S.C. § 1331(a)). OCSLA provides for the "expeditious and orderly development [of the outer Continental Shelf], subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." (43 U.S.C. § 1332(3)).
The Plunder of Distressed Vessels Act, 18 U.S.C. § 1658, also known as the “Plunder Statute,” criminalizes the looting or destruction of a vessel that is wrecked, stranded, adrift, or in distress at sea. Section 1658(a). The Act further prohibits the “willful obstruct[ion of] the escape of any person endeavoring to save his life from” from such a vessel, and the “hold[ing] out or show[ing of] any false light [e.g., a beacon], or extinguish[ment of] any true light, with intent to bring any vessel sailing upon the sea into danger or distress[.]” Section 1658(b). The punishment for violation of these proscriptions is imprisonment from 10 years to life. Id.
The statute applies to “any . . . place within the admiralty and maritime jurisdiction of the United States[.]” Section 1658(a). Initially, the extent of this broad jurisdictional grant was interpreted inconsistently. For example, in United States v. Pitman, 27 F. Cas. 540 (D. Mass. 1852), the court held that the looting of a wrecked vessel on a foreign shore fell within the ambit of the Plunder Statute, and it upheld the punishment of a U.S. ship captain for taking treasure from a shipwreck on the shores of Sumatra (which was, at the time, a Dutch colony). A decade later, however, the court in United States v. Smiley, 27 F. Cas. 1132 (C.C.N.D. Cal. 1864) went to great lengths not to punish looters of a sunken U.S. steamship that lay within Mexican territorial waters. Although the Smiley court ultimately held that the 2-year-old wreck at issue was “abandoned” and, therefore, not covered by the Plunder Statute, it noted in dicta that “[w]hatever was . . . done with reference to [the] property [that was] once on board [the wrecked steamship] . . . was done out of the jurisdiction of the United States.” Id. at 1134.
Despite this early confusion in Plunder Statute jurisprudence, the geographic scope of the United States’ admiralty and maritime jurisdiction is now relatively well-settled. See generally David J. Bederman, Admiralty Jurisdiction, 31 J. Mar. L. & Com. 189 (2000) (providing an overview of the subject of federal admiralty jurisdiction, and suggesting that “the breadth and reach of that jurisdiction may no longer be the contentious issue it once was.”). Federal maritime and admiralty jurisdiction is understood simply to extend to the operation of vessels in navigable waters, and to acts involving or aboard U.S.-flagged vessels traveling thereupon. United States v. Flores, 289 U.S. 137, 150–59 (1933). The United States Code defines a “vessel” broadly as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. “Navigable waters” have been defined as waters that: (1) are subject to the ebb and flow of the tide (The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825)); (2) are presently navigable (The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)); (3) are potentially navigable (i.e., with improvements) (The Montello, 87 U.S. (20 Wall.) 430 (1874)); or (4) were navigable in the past (Econ. Light & Power Co. v. United States, 256 U.S. 113 (1921)). Importantly, U.S. admiralty and maritime jurisdiction extends extraterritorially to cover acts done on the high seas, provided the acts were carried out “in furtherance of an activity bearing a significant relationship to a traditional maritime activity,” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218–19 (1986), and even to acts committed within the territory of another country, provided the acts involved (or were committed aboard) a U.S.-flagged vessel. See Flores, 289 U.S. at 150–59.
Thus, even though the Plunder Statute has not been the subject of a judicial opinion since the late-19th century, it is likely that the above-described consensus regarding the geographic extent of the United States’ admiralty and maritime jurisdiction resolves the early confusion surrounding the Plunder Statute’s reach.
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The Ports and Waterways Safety Act of 1972 (PWSA) was enacted to promote navigation, vessel safety, and protection of the marine environment. 33 U.S.C. § 1221. The Act authorizes the United States Coast Guard (USCG) to take measures necessary for safeguarding and securing maritime activities. PWSA grants authority to, inter alia: establish vessel traffic services and separation schemes; require installation and use of specified navigation and communications equipment; require receipt of prearrival messages; establish water or waterfront safety zones; and issue operation or anchoring orders to specific vessels. 33 U.S.C. §§ 1223-1225.
Applicability of PWSA varies with its granted authorities. The USCG’s authority to issue orders directed to a specific vessel is applicable to any vessel in a port or place subject to the jurisdiction of the United States, or in the navigable waters of the United States, 33 U.S.C. § 1223(b); whereas, the requirement for receipt of prearrival messages may apply to any vessel destined for a port or place subject to U.S. jurisdiction, 33 U.S.C. § 1223(a)(5). Vessel traffic servicesâ€”reporting and operating requirements, routing systems, etc. — may be established in ports or places under U.S. jurisdiction, in navigable waters of the U.S., or in an area covered by international agreement. 33 U.S.C. § 1223(a)(1). Additionally, the designation of necessary fairways and traffic separation schemes shall be applicable to vessels operating in the U.S. territorial sea as well as to vessels in high seas approaches to U.S. ports or places which originate outside the territorial sea. 33. U.S.C. §1223(c)(1). Ship routing measures that are located entirely outside the U.S territorial sea or that cross into the U.S. territorial sea must also be approved by the International Maritime Organization. 33. U.S.C. § 1230. Prior to making such a designation, however, the USCG must consult with the Secretaries of Commerce, State, Interior, and Army, as well as with the Governors of any affected States, to consider other uses of the proposed area. Once designated, PWSA authorizes the USCG, to the extent reasonable and necessary for the purpose of the designation, to make the use of such fairways and traffic separation schemes mandatory for specific types and sizes of foreign and domestic vessels operating in the U.S. territorial sea, as well as for specific types and sizes of U.S. vessels operating in the high seas beyond the U.S. territorial sea. 33 U.S.C. § 1223(c). The USCG may investigate any incident, accident, or act involving the loss or destruction of, or damage to, any structure subject to PWSA, or which affects or may affect the safety or environmental quality of the ports, harbors, or navigable waters of the United States. 33 U.S.C. § 1227. For applicability of discrete measures taken pursuant to the authorities above, please see the USCG Regulations promulgated under PWSA, available through the link provided below.
PWSA does not apply to the Panama Canal nor does it apply to foreign vessels either in innocent passage through the U.S. territorial sea or through navigable waters of the U.S. which form part of an international straight, so long as the vessel is not destined for, or departing from, a port or place subject to the jurisdiction of the U.S. (except pursuant to international treaty, convention, or agreement, 33 C.F.R. 160.103(c)). 33 U.S.C. § 1223(d).
Enactment of the United States Public Vessel Medical Waste Anti-Dumping Act of 1988, 33 U.S.C. §§ 2501-2504 (the Act), was a response to Congressional findings that the washing ashore of medical waste poses serious risks to public health. 33 U.S.C. § 2501(1). The Act imposes a qualified prohibition on the dumping of potentially infectious medical waste from public vessels. 33 U.S.C. § 2503. The Act defines “public vessel” as a vessel of any type that is “owned, or demise chartered, and operated by the United States Government,” and not engaged in commercial service. 33 U.S.C. § 2502(2). “Potentially infections medical waste” includes isolation wastes, infectious agents, human blood and blood products, pathological wastes, sharps, body parts, contaminated bedding, surgical wastes and potentially contaminated laboratory wastes, dialysis waste, and additional medical items that the [EPA] Administrator shall prescribe by regulation. 33 U.S.C. § 2502(1). The Act’s prohibition applies globally. 33 U.S.C. § 2503. Two exceptions to this prohibition relate to the health and safety of the crew, and times of war or national emergency. 33 U.S.C. § 2503. The Act stipulates that affected federal agencies must work with the EPA to issue implementing guidance within three months of its enactment. 33 U.S.C. § 2504. According to an EPA publication, the EPA has distributed guidance stating that all medical wastes generated on board an EPA vessel will be stored in a secure area on board for disposal at an appropriate shore-based facility upon return from the sea, and that no medical wastes may be thrown overboard. David P. Redford, Office of Marine and Estuarine Protection, EPA, Status of the EPA Marine Debris Activities and Programs, at 593.
The Act additionally extends the medical waste dumping ban to all vessels by amending the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA). 33 U.S.C. §§ 1401 et seq.. The amendment adds medical waste to a list of substances, such as radioactive waste, for which no permit to dump in the ocean may be issued. 33 U.S.C. § 1412(a). The MPRSA applies to all dumping in the world’s oceans so long as the material is either transported from the United States or transported by a vessel or aircraft registered in the United States or flying the United States flag. 33 U.S.C. § 1411(a). If the material is transported from a location outside of the United States by a foreign-flagged vessel, the MPRSA applies to its dumping if it occurs within the U.S. territorial sea and or within the contiguous zone (defined by MPRSA as extending 12 nautical miles seaward from the baseline from which the breadth of the territorial sea is measured), to the extent that the dumping may affect the territorial sea or territory of the United States. 33 U.S.C. § 1411(b).
Enacted on August 26, 1983, the Recreational Vessels Act authorizes the U.S. Coast Guard to issue minimum safety standards for recreational vessels and associated equipment carried on such vessels. For purposes of the Act, a recreational vessel is one manufactured, rented, leased, chartered or used primarily for pleasure (46 U.S.C. § 2101).
Associated equipment includes a recreational vessel’s systems, accessories, components, appurtenances, and marine safety articles; in certain situations radio equipment is exempt (46 U.S.C. § 2101). The U.S. Coast Guard administers the statute (14 U.S.C. § 2).
The Recreational Vessels Act applies to U.S. and foreign recreational vessels and associated equipment that are operating on waters subject to United States jurisdiction (46 U.S.C. § 4301). United States waters extend to the U.S. Exclusive Economic Zone, which was claimed by Presidential Proclamation No. 5030 of March 10, 1983. Also, the Recreational Vessels Act was amended to include the current U.S. territorial sea, which was extended from 3 nautical miles (nm) to 12nm by Presidential Proclamation No. 5928 of December 27, 1988. The Act also applies to U.S. flagged recreational vessels operating on the high seas.
Two exceptions to the Act’s general application exist. The first is that unless otherwise provided, the Act does not apply to a foreign-flagged vessel operating temporarily on U.S. waters (46 U.S.C. §4301). No statutory or case law guidance was found explaining the meaning of operating temporarily. Second, certain waters lying entirely in New Hampshire are not within the Act’s jurisdiction until a final judicial decision determines whether they are navigable waters of the United States (46 U.S.C. §4301).
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The Rivers and Harbors Act of 1899 is the initial authority for the U.S. Army Corps of Engineers (ACOE) regulatory permit program to protect navigable waters in the development of harbors and other construction and excavation. Section 10 of the RHA (33 U.S.C. § 403) prohibits the unauthorized obstruction or alteration of any navigable water of the U.S, and provides that the construction of any structure in or over any navigable water of the U.S., or the accomplishment of any other work affecting the course, location, condition, or physical capacity of such waters is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 12 (33 U.S.C. § 406) establishes penalties for the violation of RHA sections 401, 403, and 404, and authorizes the circuit court exercising jurisdiction in any district where structures erected in violation of these provisions exist to enforce the structures’ removal by injunction. The geographic jurisdiction of the RHA includes all navigable waters of the United States, which are defined as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." (33 C.F.R. Part 329.4). The authority of the Secretary of the Army to prevent obstructions to navigation in navigable waters of the United States was extended to artificial islands, installations, and other devices located on the seabed, as well as to the seaward limit of the outer continental shelf by section 4(f) of the amended Outer Continental Shelf Lands Act of 1953. (Pub. L. No. 212, 67 Stat. 1953; 43 U.S.C. § 1333(e); 33 C.F.R. Part 322).
The Sharking Finning Prohibition Act (SFPA)—enacted in December 2000—amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to prohibit the removal of shark fins and discarding of carcasses at sea, the possession of shark fins aboard a fishing vessel without the corresponding carcass, and the landing of shark fins without the corresponding carcass. Pub. L. No. 106-557, 114 Stat. 2772, § 3. The SFPA defined shark finning to mean “the taking of a shark, removing the fin or fins (whether or not including the tail) of a shark, and returning the remainder of the shark to the sea.” SFPA § 9.
The SFPA made a positive step in shark conservation, but left a loophole that some in the shark fisheries exploited. The SFPA prohibited the finning of sharks and the landing of sharks without the corresponding fins, but did not require the fins to be naturally attached. SFPA § 3. The statute only created a rebuttable presumption that shark finning occurred if the total weight of the shark fins exceeded 5% of the dressed carcass weight. Id. This allowed fishermen to match high value fins with high value carcasses, and discard low value fins and carcasses at sea. This loophole prompted the passage of the Shark Conservation Act of 2010 (SCA), which was signed into law on January 4, 2011. The SCA, among other things, amended the MSA to require that, with one exception, sharks be landed with their fins naturally attached. Pub. L. No. 111-348, 124 Stat. 3668, 3670, § 103(a) (codified at 16 U.S.C § 1857(1)(P)(iv)). The SCA also retained a rebuttable presumption that shark finning occurred if, after landing, the total weight of fins landed exceeds 5% of the total weight of shark carcasses landed. Id.; see also 50 C.F.R. § 600.1203(b)(2). In 2016, NMFS updated its shark finning regulations to incorporate the provisions of the SCA. See 50 C.F.R. §§ 600.1200-.1204; see also 81 Fed. Reg. 42285 (July 29, 2016).
The SFPA and the SCA have the same jurisdictional application. Both Acts apply to any person subject to the jurisdiction of the United States. See, e.g., 67 Fed. Reg. 6194, 6194 (Feb. 11, 2002) (describing the jurisdictional application of the SFPA); 81 Fed. Reg. 42285, 42285 (June 29, 2016) (describing the jurisdictional application of the SCA). Among other things, NOAA’s shark finning regulations prohibit U.S. flagged vessels from engaging in shark finning in waters seaward of the inner boundary of the U.S. EEZ under the MSA (which is generally three nautical miles seaward of the baseline from which the breadth of the territorial sea is measured), 50 C.F.R. § 600.1204(a)(1), and prohibit foreign flagged vessels from shark finning in waters landward of the outer boundary of the EEZ (which is generally 200 nautical miles seaward of the baseline from which the breadth of the territorial sea is measured). 50 C.F.R. § 600.1204(a)(2). The seaward limit of the SFPA and SCA is not limited to a geographic line, but it is attached to the activity and the individuals who engage in it. The Acts do not apply in state waters because the MSA generally preserves state jurisdiction over fisheries management in their waters (see 16 U.S.C. § 1856), but they otherwise apply to any person under the jurisdiction of the United States regardless of location. Thus, in the U.S. EEZ and beyond, the Acts prohibit anyone subject to U.S. jurisdiction (including anyone aboard a U.S. fishing vessel) from sharking finning. Any individual under U.S. jurisdiction is therefore prohibited from finning sharks on the high seas, and this jurisdiction can be based on the vessel itself or the nationality of the individual.
Under customary international law, any person engaged in activities on the high seas is subject to the jurisdiction of the flag state of the ship used for such activity, or of the state of which the person is a national. Restatement (Third) of Foreign Relations, § 523 cmt. c (1987). And under the Article 92(1) of the Law of the Sea Convention, ships are under the exclusive jurisdiction of their flag state while on the high seas. These principles are reflected in NOAA’s shark finning regulations: U.S. flagged vessels may not engage in shark finning in waters seaward of the inner boundary of the U.S. EEZ. 50 C.F.R. § 600.1204(a)(1).
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The Shore Protection Act of 1988, 33 U.S.C. §§ 2601-2609, (SPA or the Act) was enacted to help prevent trash, medical debris and other unsightly and potentially harmful materials from being disposed into the coastal waters of the United States as the result of sloppy waste-handling procedures. U.S. Coast Guard, 54 F.R. 22546, 22546 (May 24, 1989) (interim rule with request for comments). The Act prohibits all vessels, except public vessels, from transporting municipal or commercial waste in coastal waters without (i) obtaining a permit for that vessel from the Secretary of Transportation and (ii) displaying a vessel identification number or other markings prescribed in the permit. 33 U.S.C. § 2602(a), and (b); 33 C.F.R. § 151.1009; U.S. Environmental Protection Agency, 59 F.R. 44798-01, 44798 (August 30, 1994) (proposed rule) (never finalized). The authority to issue permits was transferred to the Secretary of the Department of Homeland Security who in turn delegated it to the Commandant of the U.S. Coast Guard. 6 U.S.C. § 468(b); Department of Homeland Security Delegation No. 1070.1, para 81. Permit regulations issued under the Act by the U.S. Coast Guard apply to any vessel the purpose of which is the transportation of municipal or commercial waste in coastal waters. 33 C.F.R. § 151.1003(a). The SPA applies to foreign vessels except those in innocent passage. An Act to amend the Merchant Marine Act, 1920, and for other purposes, Pub. L. No. 100-329, § 3, 102 Stat. 588, (amended 1988).
The SPA applies to any vessel transporting municipal or commercial waste in U.S. coastal waters. The Act defines “coastal waters” to include the territorial sea of the U.S., the Great Lakes and connecting waters, marine and estuarine waters of the U.S. up to the head of tidal influence, and the Exclusive Economic Zone as established by Presidential Proclamation Number 5030. 33 U.S.C. § 2601(2)(A-D). The head of tidal influence describes the furthest point upstream where a navigable water remains subject to the influence of the tide; i.e., the ebb and flow. Duke v. U.S., 711 F. Supp. 332, 333-34 (E.D. Tex. 1989). The physical limit to a navigable water subject to tidal influence is the water level below the mean high water mark. 33 C.F.R. § 2.34(a); 33 C.F.R. § 2.36(a)(2). When making navigability determinations, U.S. Coast Guard regulations group waters subject to tidal influence with waters affected by the ebb and flow of the tide. U.S. Coast Guard, 68 F.R. 42595-01, 42601 (July 18, 2003) (final rule). Thus, the SPA extends 200 nautical miles seaward from the baseline of the territorial sea and landward to the limit of tidal influence of internal waters. It also includes the Great Lakes and connecting waters.
“[M]unicipal or commercial waste” means solid waste as defined by the Resource Conservation and Recovery Act. 33 U.S.C. § 2601(3). That statute defines the term to include, without limitation, “garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.” 42 U.S.C. § 6903(27). The SPA excludes certain enumerated solid wastes from the SPA permitting scheme. Excluded wastes are: solid waste identified in another section of the Resource Conservation and Recovery Act, 42 U.S.C. § 6921; waste generated by the vessel during normal operations; debris solely from construction activities; and sewage sludge and dredge and fill material subject to other federal regulations. 33 U.S.C. § 2601(3)(A-E).
The SPA authorizes the U.S. Coast Guard to issue vessel transportation permits and take enforcement action against violations. 33 U.S.C. § § 2602(a)(1) and 2605(a).The permitting and numbering requirements of the SPA are published at 33 C.F.R. § 151, Subpart B. The U.S. Environmental Protection Agency shares responsibility with the U.S. Coast Guard for developing regulations to prevent the disposal of waste into coastal waters “during loading, offloading, and transport” from waste sources, reception facilities, and vessels. 33 U.S.C. § 2603(b)(1). The Act grants EPA authority to require owners and operators of waste sources, vessels transporting waste, and waste receiving facilities to take all reasonable steps to minimize the amount of municipal and commercial waste deposited into coastal waters during vessel and facility operations. The EPA has yet to develop regulations under this authority.
The South Pacific Tuna Act (SPTA) was enacted to implement the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (also known as the South Pacific Tuna Treaty (SPTT)). The United States ratified the SPTT in 1987 and the Treaty entered into force in 1988. The SPTA governs the conduct of U.S. fishing vessel operations in the Treaty Area, encompassing approximately 10 million square miles of the western and central Pacific Ocean.
U.S. purse seine vessels licensed under the Treaty are able to access a large portion of the high seas and EEZs of 16 Pacific Island parties to the Treaty in the western and central Pacific Ocean. The licensing area includes all or part of the EEZs of the following Pacific Island states: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. U.S. purse seine vessels licensed under the Treaty are used to harvest tuna. Treaty licenses are issued by the Pacific Islands Forum Fisheries Agency (FFA) upon receipt of all required fees, and after applications are submitted to and approved by NOAA’s National Marine Fisheries Service (NMFS).
After an initial 5-year agreement, the Treaty was extended in 1993 and again in 2003. In 2013, while negotiations proceeded on a revised Treaty, the parties agreed to extend the Treaty for an interim period of 18 months, maintaining the treaty text, but adopting new financial terms and incorporating some new elements. A second interim arrangement was agreed for 2015 and a third for 2016. In January 2016, after six years of unsuccessful negotiations, the U.S. gave notice of its intent to withdraw from the SPTT. Under the terms of the treaty, it shall cease to have effect one year after notice of withdrawal is given. The United States and the Pacific Island Parties continue to negotiate the terms of a revised Treaty. Should agreement not be reached and the United States not rescind its withdrawal, the Treaty will terminate in January 2017.
South Pacific Treaty Boundary
For further information contact: NMFS, Pacific Islands Regional Office, International Fisheries Division
The Sunken Military Craft Act (SMCA), Pub. L. 108-374, div. A, title XIV, Oct. 28, 2004, 118 Stat. 2094 (codified at 10 U.S.C. §§ 113 Note), protects sunken military vessels, aircraft, and their associated contents from unauthorized disturbance. The SMCA defines “sunken military craft” as “(A) any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank; (B) any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank; and (C) the associated contents of a craft referred to in subparagraph (A) or (B).” 118 Stat. 2094, § 1408(3). “Associated contents” are defined as “(A) the equipment, cargo, and contents of the sunken military craft that are within its debris field; and (B) the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.” 118 Stat. 2094, § 1408(1).
Under the SMCA, no U.S. sunken military craft wherever located, and no foreign sunken military craft located within 24 nautical miles of the U.S. coast, is subject to a claim of ownership under the maritime law of finds or to a claim of a salvage award regardless of how much time has elapsed since the craft sank unless permission has been granted by the relevant sovereign. 118 Stat. 2094, § 1406. In addition, “[n]o person may possess, disturb, remove, or injure” any sunken military craft. 118 Stat. 2094, § 1402(b). The Act applies beyond the limits of national jurisdiction, even within the maritime zone of foreign states in accordance with international law. Should a person be found to have violated the aforementioned section and damage a sunken military craft, that person, “shall pay the United States enforcement costs and damages resulting from such disturbance, removal, or injury.” 118 Stat. 2094, § 1405(a). Permits may, however, be granted for activities directed at sunken military craft. 118 Stat. 2094, § 1403.
The SMCA applies worldwide to U.S. citizens and nationals and to foreign persons consistent with generally recognized principles of international law. 118 Stat. 2094, § 1402(c)(2). The Act does not apply to actions undertaken by or at the direction of the United States. 118 Stat. 2094, § 1402(c)(1).
Additional Reference Information:
The Submarine Cable Act of 1888 (the Act) was enacted to fulfill an obligation which the United States assumed when it became a party to the Convention for the Protection of Submarine Telegraph Cables , adopted 14 March 1884, 24 Stat. 989, TS No 380 (Convention). The U.S. Senate gave its advice and consent to ratification on June 12, 1884, Ex. Doc. No. 83, 48th Cong., 2d Sess., Senate (Feb. 19, 1885), and the President ratified the Convention on January 26, 1885. The Convention entered into force on May 1, 1888. The Convention applies: (1) outside territorial waters; (2) to all legally-established cables that are landed on the territories, colonies or possessions of one or more of the Parties. Convention, Article I. Forty-four States are currently considered to be Parties to the Convention. See link below under “Additional Reference Information” to Current Parties to the Convention.
The Act makes it a misdemeanor, punishable by imprisonment for a term not to exceed two years and/or by a fine not to exceed $5,000, to willfully and wrongfully break or injure a submarine cable “in such manner as to interrupt or embarrass, in whole or in part, telegraphic communication.” 47 U.S.C. § 21. Lesser penalties are prescribed for a break or injury that is the result of “culpable negligence,” 47 U.S.C. § 22, as well as for a failure to observe the rules concerning signals, or to keep prescribed distances from cable work or marker buoys, 47 U.S.C. § 24, or for failure to keep fishing implements and nets the prescribed distances from cable work or marker buoys. 47 U.S.C. § 25. The Act’s criminal regime does not bar injured plaintiffs from bringing civil damage actions. 47 U.S.C. § 28.
When there is reason to believe an infraction has been committed outside territorial waters, a person commanding a ship of war of the United States. or of any Party to the Convention, or a ship specially commissioned by any Party to the Convention, may require the production of documents evidencing nationality of the offending vessel and the making of reports of infractions. 47 U.S.C. § 26.
47 U.S.C. § 32 provides that the Act’s provisions apply “only to cables to which the  convention for the time being applies” – that is (1) to all legally-established cables that are landed on the territories, colonies or possessions of one or more of the Parties, (2) where the infraction occurs outside territorial waters. See AT&T, et al. v. M/V Cape Fear, 967 F.2d 864, 874 (3rd Cir. 1992). However, the Submarine Cable Act also assigns to U.S. district courts jurisdiction over all offenses against it and of all suits of a civil nature arising thereunder, whether the infraction complained of was committed within the territorial waters of the United States or on board a vessel of the United States outside of said waters. 47 U.S.C. § 33. Although one federal court has noted “the apparent inconsistency” between the limited applicability of the Act to damages “‘outside territorial waters” and federal jurisdiction over infractions “’within the territorial waters,” A.T.& T., et al. v. M/V Cape Fear, 763 F. Supp. 97, 101 n. 10 (D.N.J. 1991), rev’d on other grounds, 967 F.2d 864 (3rd Cir. 1992), it is clear from the negotiating history of the Convention that the drafters expected that the Parties would apply the Convention within their own territorial waters. “Territorial waters,” which is not defined in the Act or the Convention, would have been generally understood at the time of the Act and the Convention as encompassing a marginal or territorial sea extending three nautical miles seaward from the coast.
References to the Act are reflected in NOAA regulations which direct fishing vessels to exercise due care when operating in the vicinity of submarine cables -- e.g., no closer than one nautical mile from a vessel engaged in laying or repairing a submarine cable, and no closer than 0.25 nautical mile from a buoy intended to mark the position of a cable when being laid, or when out of order, or broken -- and which remind vessel operators that a failure to exercise such care will subject an operator to the criminal penalties prescribed in the Submarine Cable Act, See 50 CFR § 600.514 (Foreign Fishing) and 50 CFR § 600.705 (Domestic Fisheries).
Declaration of Parties to the Convention Clarifying Certain Terms
Cable Treaty Transmittal Package
Current Parties to the Convention (Note that Czechoslovakia and Yugoslavia have been partitioned into the following States which can currently be considered Parties to the Convention, in addition to those listed separately -- the Czech Republic, Slovakia, Bosnia and Herzegovina, Croatia, Kosovo, Macedonia, Montenegro, Serbia and Slovenia.)
Floor Debate on the Submarine Cable Ac
Report of the Secretary of State Regarding the Legislation Required, Ex. Doc No. 60 (Jan. 9, 1888)
Report of the House Committee on Foreign Affairs, Report No. 524 (Feb. 16, 1888)
The Submerged Lands Act of 1953 (“SLA”) served to transfer to U.S. coastal states many of the rights that the Federal government exercised over an area immediately offshore. Under the SLA, “The United States releases and relinquishes unto said States … except as otherwise reserved …all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources.” 43 U.S.C § 1311(b)(1). The SLA defines “natural resources” to include “oil, gas, and all other minerals . . . .” 43 U.S.C. § 1301(e). It also recognizes “natural resources” as “fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life . . . .” Id.
“The seaward boundary of each . . . coastal State is . . . a line three geographic [or nautical] miles distant from its coast line or, in the case of the Great Lakes, to the international boundary.” 43 U.S.C. § 1312. The term “coast line” is “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” 43 U.S.C. § 1301(c). A U.S. coastal state’s coast line and corresponding seaward boundary are generally ambulatory; however, the seaward limit can be fixed by United States Supreme Court decree. 43 U.S.C. § 1301(b). “Gulf Coast states are granted up to 3 marine leagues (9 nautical miles) if they entered the Union with a more expansive boundary or such a boundary had been approved by Congress.” Michael W. Reed, Shore and Sea Boundaries 23-24 (Vol. 3, 2000) (citing 43 U.S.C. § 1301(b)); see also United States v. Louisiana et al., 363 U.S. 1, 80 S. Ct. 961 (1960) (decreeing that the United States is entitled to all lands, minerals, and other natural resources underlying the waters of the Gulf of Mexico more than three geographic miles seaward from coastlines of Louisiana, Mississippi, and Alabama and extending seaward to the edge of the Continental Shelf, and more than “three leagues” (nine nautical miles) seaward from coast lines of Texas and extending seaward to the edge of the Continental Shelf); United States v. Florida, 425 U.S. 791, 792 (1976) (decreeing that the United States is entitled to all lands, minerals, and other natural resources underlying the Atlantic Ocean more than three geographic miles seaward from the coastline of Florida and extending seaward to the edge of the Continental Shelf. However, on the Gulf of Mexico side, the United States is entitled to all lands, minerals, and other natural resources underlying the Gulf of Mexico more than three “marine leagues” (9 nautical miles) from the coastline of Florida).
Although the federal government releases to the States its rights in the submerged lands under the SLA, the federal government “retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership … of the lands and natural resources which are specifically recognized … in and assigned to the respective States and others by section 1311….” 43 U.S.C. § 1314(a). Furthermore, U.S. coastal state “ownership” of living natural resources in the water column is better understood as a legal fiction, because “[n]either the States nor the Federal Government… has title to these creatures until they are reduced to possession by skillful capture. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977).
Additional reference information:
Submerged Lands Act, 43 U.S.C. §§1301-1315
United States v. Alaska, 521 U.S. 1, 15 (1997) (holding that Alaska’s entitlement to submerged lands along its Arctic Coast must be determined by applying “normal baseline” principles of the 1958 Convention on the Territorial Sea and the Contiguous Zone. The “normal baseline” is the low-water line along the coast, supplemented by closing lines drawn across bays and mouths of rivers)
United States v. Maine et al. (Rhode Island and New York Boundary Case) 469 U.S. 504 (1985) (finding that both the Long Island Sound and Block Island Sound constituted a juridical bay under the 1958 Convention on the Territorial Sea and the Contiguous Zone. The court found that for jurisdictional measurements, Long Island is to be viewed as an extension of the mainland. According to Article 7(4) of the 1958 Convention, “if a body of water is found to be a juridical bay, then, the closing line of the bay becomes part of the coastline, and a State's boundary generally extends three miles beyond that closing line.” Id. at 514.)
United States v. California, 381 U.S. 139 (1965) (among its various findings, the Court held that the SLA granted each Pacific Coast state only those submerged lands three geographical miles from the seaward limit of its “inland waters,” the term “inland waters” is to be defined in accordance with the 1958 Convention on the Territorial Sea and the Contiguous Zone, and, for jurisdictional purposes, Monterey Bar was “inland water” while other disputed areas were not.)
United States v. Louisiana, 389 U.S. 155 (1967) (holding that Louisiana, Mississippi, and Alabama were not entitled to submerged land rights to a distance greater than three geographical miles from their coastlines; however, Texas was entitled to the three league belt of submerged lands beneath the Gulf of Mexico, pursuant to the Resolution Annexing Texas to the United States (March 1, 1845.)
Alabama v. Texas, 347 U.S. 272 (1954) (emphasizing that Congress could relinquish to the states the federal government's property rights over the submerged lands without interfering with U.S. national sovereign interests because Congress has the unlimited power to dispose of any kind of property belonging to the United States. )
United States v. California, 332 U.S. 19 (1947) (finding that the three nautical miles seaward of California’s coast line belonged to the federal government for the defense of the marginal seas and the conduct of foreign relations outweighed the interests of the individual states); United States v. California, 382 U.S. 448 (1966) (identifying with particularity parts of the boundary line between the submerged lands of the United States and the submerged lands of the State of California); United States v. California, 432 U.S. 40 (1977) (second supplemental decree further identifying with greater particularity the boundary line between the submerged lands of the United States and the submerged lands of the State of California).
The Whaling Convention Act of 1949 implements the International Convention for the Regulation of Whaling. Under the Act, it is illegal for any person subject to the jurisdiction of the United States to engage in whaling in violation of the Convention or of the Act. 16 U.S.C. § 916c(a)(1). It is also illegal to ship, transport, purchase, sell, offer for sale, import, export, or possess a whale or whale product taken in violation of the Convention or the Act. 16 U.S.C. § 916c(a)(2). Currently, the only whaling regulated under the Act is aboriginal subsistence whaling, and separately, the Marine Mammal Protection Act prohibits commercial whaling. 16 U.S.C. § 1372(f).
The Act applies to any "person," a term defined to mean "every individual, partnership, corporation, and association subject to the jurisdiction of the United States." 16 U.S.C. § 916(d). The phrase "subject to the jurisdiction of the United States" is not further defined in the Act. There is no geographical limit for the Act’s application to U.S. nationals and U.S. flag vessels. For non-nationals and foreign flag vessels, the seaward limit of the Act’s application is the seaward limit of U.S maritime jurisdiction (200 nm from the territorial sea baseline).