Seaward Limit of Laws:

 


Abandoned Shipwreck Act Act to Prevent Pollution from Ships Airborne Hunting Act Alaska Cruise Ship Act Anchorage Grounds
Antarctic Conservation Act Antarctic Marine Living Resources Convention Act Antiquities Act of 1906 Archaeological Resources Protection Act Arctic Research and Policy Act of 1984
Assault on Fisheries Observer Clean Boating Act of 2008 Clean Water Act Coast and Geodetic Survey Act Coastal Zone Management Act
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 Coral Reef Conservation Act Criminal Misuses of Vessels Deep Seabed Hard Mineral Resources Act (DSHMRA) Deepwater Port Act of 1974
Duty to Provide Assistance at Sea Endangered Species Act Federal Ocean Acidification Research and Monitoring Act Fish and Wildlife Coordination Act The Fur Seal Act of 1966
High Seas Driftnet Fishing Moratorium Protection Act High Seas Fishing Compliance Act Historic Sites Act (HSA) of 1935 Hydrographic Services Improvement Act of 1998 Intervention on the High Seas Act
The Lacey Act Longshore and Harbor Workers' Compensation Act Magnuson-Stevens Fishery Conservation and Management Act Reporting Marine Casualties The Marine Debris Act
Marine Mammal Protection Act Marine Mineral Resources Research Act Marine Protection, Research, and Sanctuaries Act of 1972 Marine Turtle Conservation Act Migratory Bird Treaty Act
National Environmental Policy Act National Fishing Enhancement Act National Historic Lighthouse Preservation Act of 2000 National Historic Preservation Act National Marine Sanctuaries Act
Moss-Bennett Act National Sea Grant College Program Act Native American Graves Protection and Repatriation Act Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 Northwest Atlantic Fisheries Convention Act of 1995

Northern Pacific Halibut Act of 1982

Ocean and Coastal Mapping Integration Act Ocean Dumping Act Ocean Exploration Act Ocean Thermal Energy Conversion Act of 1980
Oil Pollution Act
of 1990
Outer Continental Shelf Lands Act of 1953 Plunder Statute 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 Territorial Submerged Lands Act U.S. Coast Guard's Law Enforcement Authority at Sea
Vessel Incidental Discharge Act Wilderness Act of 1964  

 

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. The Supreme Court has repeatedly reaffirmed the longstanding principle and basic premise of the American legal system that “absent clearly expressed congressional intent to the contrary, federal laws will be construed to have only domestic application." RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 2100 (2016) (citing Morrison v. National Australia Bank, Ltd., 561 U.S. 247, 255 (2010)).

In 2016, the Supreme Court stated that the presumption of extraterritoriality “serves to avoid the international discord that can result when U.S. law is applied to conduct in foreign countries” and “reflects the more prosaic ‘commonsense notion that Congress generally legislates with domestic concerns in mind.’” Id. at 2100. The Court has also developed a two-step framework to analyze extraterritoriality issues: “At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear affirmative indication that it applies extraterritorially. . . . If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute’s ‘focus’ [of congressional concern]. If the conduct relevant to the statute’s focus occurred in the United States, then the case involves a permissible domestic application even if other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign country, it is an impermissible extraterritorial application regardless of any other conduct that occurred in U.S. territory.” Id. at 2101.

Congress may, of course, legislate beyond the territorial boundaries of the United States. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 117 (2013) (“Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad”).

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.

Last Updated August 10, 2018


Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101 et seq

The Abandoned Shipwreck Act (ASA) was enacted by Congress to clarify the legal regime governing title to abandoned shipwrecks on state submerged lands, and to balance the needs of three major interest groups—sport divers, would-be salvors, and preservationists.  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 the individual coastal state in or on whose submerged lands the shipwreck is located. 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) those embedded in coralline formations protected by a state on submerged lands of a state;and (3) those on a state’s submerged lands and included in or determined eligible for inclusion in the National Register. 43 U.S.C. § 2105(a). Under the ASA, 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).

The ASA applies on State submerged lands which generally extend seaward a distance of three nautical miles from the coastline as defined under the Submerged Lands Act. 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, the ASA applies seaward a distance of 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 Gul[f] 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 applies seaward to a distance of three marine leagues from the coastline of the Commonwealth 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 applies seaward a distance of three nautical miles from their coastlines. See 43 U.S.C. § 2102(f)(3)-(4); see also 48 U.S.C. § 1705(a); 159 Cong. Rec. S521-01. In the Great Lakes, the ASA applies seaward from each bordering U.S. state to the international maritime boundary with Canada.

Additional reference information: Some of these links are to external sites.

  1. Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101 et seq.
  2. Submerged Lands Act, 43 U.S.C. §§ 1301 et seq.
  3. Abandoned Shipwreck Act Guidelines, compilation by National Park Service
  4. Ocean Law Search, NOAA & BOEM Summary of Abandoned Shipwreck Act cases legislative history

Last updated August 7, 2019


Act to Prevent Pollution from Ships (APPS), 33 U.S.C. §§ 1901 et seq.

 

The 1973 International Convention for the Prevention of Pollution from Ships as modified by the Protocol of 1978  and the Protocol of 1997 (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. 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. The Act to Prevent Pollution from Ships (APPS),33 U.S.C. §§ 1901 et seq., implements Annexes I, II, V, and VI. The U.S. Coast Guard administers APPS, under which it prescribes and enforces regulations to implement APPS.33 C.F.R. 151.

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, consistent with international law. 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


MARPOL Annex

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:

Implementing Regulations

I - Oil

  1. a ship of United States registry or nationality, OR
  2. a ship operated under the authority of the United States, wherever located.
  1. a ship in the navigable waters of the United States, 33 U.S.C. § 1902(a)(2).

33 C.F.R. Parts 151, 155, 156, 157

II - Noxious Liquid Substances

  1. a ship in the navigable waters of the United States, 33 U.S.C. § 1902(a)(2).

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.).

46 C.F.R. Part 148, 49 C.F.R. Parts 171, 172, 173, 174, and 176

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

  1. a ship in the navigable waters or the EEZ of the United States, 33 U.S.C. § 1902(a)(3).

33 C.F.R. Part 151

VI - Air

  1. a ship in a port, shipyard, offshore terminal, or internal waters of the United States, 33 U.S.C. § 1902(a)(5)(A), OR
  2. a ship in the navigable waters or EEZ of the United States, an emission control area designated under 33 U.S.C. § 1903, or an emission control area designated by the federal gov’t in consultation with states, AND
    1. bound for or departing from a port, shipyard, offshore terminal, or internal waters of the United States, 33 U.S.C. § 1902(a)(5)(B) OR
    2. flying the flag of or operating under the authority of a party to Annex VI, 33 U.S.C. § 1902(a)(5)(C), OR
    3. a ship the U.S. gov’t may board for law enforcement purposes or to implement Annexes I, II, or V, 33 U.S.C. § 1902(a)(5)(D).

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 303 (2d Cir. 2009); United States v. Jho, 534 F.3d 398 (5th Cir. 2008).

Additional reference information:Some of these links are to external sites. 

  1. United States v. Jho, 534 F.3d 398 (5th Cir. 2008); (holding that the U.S. may criminally prosecute a foreign-flagged vessel under APPS for failing to maintain an Oil Record Book, including for conduct that took place outside U.S. jurisdiction, because the violation occurs the moment the vessel enters a U.S. port with an inaccurate record book); See also United States v. Ionia Mgmt. S.A., 555 F.3d 303 (2d Cir. 2009) (same); United States v. Sanford Ltd., 880 F. Supp. 2d. 9 (D.D.C. 2012) (Same)
  2. United States v. Royal Caribbean Cruises, Ltd., 11 F. Supp. 2d 1358 (S.D. Fla. 1998), cited with approval in United States v. Sanford Ltd., 880 F. Supp. 2d. 9, 17-18 (D.D.C. 2012)  (“whether the United States could prosecute actions on the high seas had no bearing on whether the United States had jurisdiction to enforce its laws [in a domestic port] regarding the commission of false statements made to a United States agency performing its regular and proper duties.”) (internal quotation marks omitted).
  3. United States. v. Pena, 684 F.3d 1137 (11th Cir. 2012) (affirming conviction of a nominated surveyor of foreign-flagged ship for violations of APPS and MARPOL while ship was docked in a U.S. port).
  4. Regency Cruises, Inc., Convicted of Dumping Sentence to Include $250,000 Criminal Fine. Two foreign-flag cruise ship knowingly discharged plastic bags of garbage within the U.S. EEZ off the coast of Florida and were ordered to pay a $250,000 fine. DOJ charged and the cruise ship pled guilty to the Act to Prevent Pollution from Ships. This was the first  APPS case to charge dumping of plastic beyond the U.S. 12-mile territorial limit.

 
Updated April 15, 2020


Airborne Hunting Act, 16 U.S.C. § 742j-1

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:Some of these links are to external sites.


Certain Alaskan Cruise Ship Operations Act, 33 USC 1901 note

The Certain Alaskan Cruise Ship Operations Act (“the Act”) applies to cruise vessels authorized to carry 500 or more passengers for hire operating in the navigable waters of the United States within the State of Alaska, waters of the Alexander Archipelago, and the Kachemak Bay National Estuarine Research Reserve.  It requires that they comply with restrictions on the discharge of sewage and graywater. Pub. L. 106–554, 114 Stat. 2763, 2763A–315 §§ 1401–1402 (2000). In particular, the Act prohibits the discharge of untreated sewage into the waters listed above and specifies the manner in which cruise vessels may permissibly discharge treated sewage and graywater. Id. §§ 1403–1404. To enforce these restrictions, the Act includes monitoring and reporting requirements and provides for administrative, civil, and criminal penalties for various violations. Id. §§ 1406–1410. The seaward limit of the three areas to which the Act applies is as follows:

Navigable Waters of the United States within Alaska: The term “navigable waters” under the Act has the same meaning as in the Clean Water Act, which defines the term to mean “the waters of the United States, including the territorial seas.” Id. § 1414(5). Under the Clean Water Act, the territorial seas are the belt of the seas measured from 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, and extending seaward a distance of three miles. 33 U.S.C. § 1362(8).   The term "within the State of Alaska" clarifies that only those navigable waters within Alaska's state boundaries are subject to the requirements of the Act. Under the Submerged Lands Act (SLA), Alaska has title to submerged lands extending three geographic miles seaward of its coastline (equivalent to three nautical miles). See 43 U.S.C. § 1312; see also Alaska Const. art. XII, § 1 (defining state boundaries as "all the territory, together with the territorial waters appurtenant thereto, included in the Territory of Alaska upon the date of ratification of this constitution by the people of Alaska," which included lands granted by the SLA). Therefore, navigable waters up to 3 nautical miles seaward of the Alaskan coast are "within the State of Alaska" for the purposes of the Act.

Waters of the Alexander Archipelago: The Act defines these waters as:

all waters under the sovereignty of the United States within or near Southeast Alaska, beginning at a point 58°11′41′′N, 136°39′25′′W [near Cape Spencer Light], thence southeasterly along a line three nautical miles seaward of the baseline from which the breadth of the territorial sea is measured in the Pacific Ocean and the Dixon Entrance, except where this line intersects geodesics connecting the following five pairs of points:

(1) 58°05′17′′N, 136°33′49′′W and 58°11′41′′N,136°39′25′′W [Cross Sound].
(2) 56°09′40′′N, 134°40′00′′W and 55°49′15′′N,134°17′40′′W [Chatham Strait].
(3) 55°49′15′′N, 134°17′40′′W and 55°50′30′′N,133°54′15′′W [Sumner Strait].
(4) 54°41′30′′N, 132°01′00′′W and 54°51′′30′′N,131°20′45′′W [Clarence Strait].
(5) 54°51′30′′N, 131°20′45′′W and 54°46′15′′N,130°52′00′′W [Revillagigedo Channel].

The portion of each such geodesic situated beyond three nautical miles from the baseline from which the breadth of the territorial sea is measured forms the outer limit of the waters of the Alexander Archipelago in those five locations.     

Pub. L. 106–554, 114 Stat. 2763A–322 to 2763A–323 § 1414(11) (emphasis added). The waters of the Alexander Archipelago waters are shaded blue on the map below, and the five geodesic lines referenced in the statutory text are drawn in purple. The waters of the Alexander Archipelago are almost entirely within Alaska state waters, except where the purple geodesic lines mark the seaward limit of the Act and extend jurisdiction beyond 3 nautical miles from the coast. 

map


Navigable Waters of the United States within the Kachemak Bay National Estuarine Research Reserve
: The Kachemak Bay National Estuarine Research Reserve is located 240 miles south of Anchorage on the western coast of the Kenai Peninsula and is the nation’s largest estuarine research reserve. The western edge of the Reserve is 24 miles wide at Kachemak Bay’s entrance between Anchor Point and Point Pogibshi, which also marks the seaward limit of inland waters. Thus, the entirety of the Reserve is within Alaska state waters.


https://alaskafisheries.noaa.gov/sites/default/files/kachemak_bay.jpg

Additional reference information: Some of these links are to external sites.

Last updated June 6, 2018


Antarctic Conservation Act, 16 U.S.C. §§ 2401-2413

The Antarctic Conservation Act of 1978 (ACA), as amended by the Antarctic Science, Tourism and Conservation Act of 1996,  provides for the conservation and protection of native Antarctic wildlife and habitat and implements the  Protocol on Environmental Protection to the Antarctic Treaty, which was signed in 1991 and entered into force in 1998. The ACA prohibits a number of acts unless specifically authorized by the National Science Foundation.  These acts include: taking of native mammals, birds or plants in Antarctica; harmfully interfering with native mammals, birds, plants or invertebrates in Antarctica; entering Antarctic Specially Protected Areas; introducing non-indigenous animals or plants into Antarctica; importing into the United States or exporting to another country any native bird, mammal or plant taken in violation of the ACA; and introducing or discharging any waste in Antarctica.  16 U.S.C. § 2403.  Under the ACA, the National Science Foundation (NSF) has authority to issue permits authorizing acts otherwise prohibited by the statute.  16 U.S.C. § 2405.  NSF has promulgated regulations concerning the application process for permits; these regulations, as well as others implementing the Protocol and the statute, can be found at 45 CFR Part 670.  The ACA also calls for application of the National Environmental Policy Act (NEPA) to proposals for Federal agency activities in Antarctica and requires  environmental impact assessments for nongovernmental activities such as tourism. 16 U.S.C. § 2403a.  Violations of the Act are punishable in the form of both civil and criminal charges with fines up to $29,000 per day and up to a year in prison. 16 U.S.C §§ 2407-2408; 83 FR 65757 (Dec. 21, 2018).  The ACA applies to all U.S. citizens going to Antarctica and all Antarctic expeditions that are organized in or proceed from the United States,  Thus, there is no seaward limit to the ACA as the Act applies to U.S. citizens going to Antarctica and all Antarctic expeditions originating from the United States wherever these citizens or expeditions are located.

Additional reference information: Some of these links are to external sites.

Last September 26, 2019


Antarctic Marine Living Resources Convention Act, 16 U.S.C. § 2431 et seq

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:Some of these links are to external sites.


Antiquities Act of 1906, 16 U.S.C. §§ 431-433

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 .  In Alaska v. United States, the National Monument in question, Glacier Bay, was established before Alaska became a state.

In Massachusetts Lobstermen’s Association v. Ross (2018), a district court upheld the designation of the Northeast Canyons and Seamounts Marine National Monument and held that the government exercises sovereign rights to “explor[e], exploit[], conserv[e] and manag[e] natural resources, both living and non-living, of the seabed and subsoil and super adjacent waters” and the responsibility for “protection and preservation of the marine environment” within the exclusive economic zone and the territorial sea with few limitations. See also United States v. California (1947); Native Vill. of Eyak v. Trawler Diane Marie, Inc.(1998); R.M.S. Titanic, Inc. v. Haver, (1999); Proclamation No. 5030 (1983).

The Antiquities Act has been applied at least six times to create or expand marine national monuments, all of which extend beyond the outer limit of the twelve nautical mile territorial sea. The five monuments — the Papahanaumokuakea Marine National Monument, the Marianas Trench Marine National Monument, the Pacific Remote Islands Marine National Monument,  the Rose Atoll Marine National Monument, and the Northeast Canyons and Seamounts Monument — encompass more than 500 million acres of marine environment. This is larger than the land areas of Alaska and Arizona combined.

Additional reference information: Some of these links are to external sites.

 Last updated April 4, 2018


Archaeological Resources Protection Act, 16 U.S.C. §§ 470aa et seq.

The purpose of the Archaeological Resource Protection Act of 1979 (ARPA or “the Act”) is “to secure, for the present and future benefit of the American people, the protection of archaeological resources and sites… and to foster increased cooperation and exchange of information between governmental authorities, the professional archaeological community, and private individuals.” 16 U.S.C. § 470aa.

The application of ARPA is generally limited to “archaeological resource” on “Indian lands” or “public lands” that are owned and administered by the United States.  16 U.S. Code § 470bb (Definitions). ARPA’s definition of public lands expressly excludes the outer continental shelf.  Thus, in the marine environment, ARPA permits may only apply in federal marine protected areas, or other submerged lands to which the U.S. Government retained title under the Submerged Lands Act.  However, the enforcement of ARPA section 6(c) has been applied in cases involving the looting and trafficking of archaeological resources taken from private lands and even resources looted from foreign lands that were being illicitly trafficked within the United States.

Additional Reference information:Some of these links are to external sites.

 Last update September 4, 2018


Arctic Research and Policy Act of 1984, 15 U.S.C. §§ 4101-4111

The Arctic Research and Policy Act of 1984 (“the Act”) provides for a comprehensive national policy dealing with national research needs and objectives in the Arctic. 15 U.S.C. § 4101. The Act designates the National Science Foundation as the lead federal agency responsible for implementing Arctic research policy, 15 U.S.C. § 4101(b)(3), and  directed the the President to establish an Arctic Research Commission charged with developing national policy, priorities, and goals necessary to construct a federal program plan for basic and applied scientific research 15 U.S.C. § 4012.  (President Reagan established the Arctic Research Commission in 1985  by Executive Order 12501.)   The Act also directs the President to establish an Interagency Arctic Research Policy Committee (IARPC) chaired by the National Science Foundation and composed of representatives from several federal agencies, including the Department of Commerce.  IARPC in consultation with stakeholders, is charged with preparing a comprehensive 5-year program plan for the overall Federal effort in Arctic research. 15 U.S.C.  § 4018.
  
The Act defines “Arctic” to include the entirety of the Arctic Circle plus parts of Alaska. More specifically, the Act defines the term “Arctic” to mean:

 “[A]ll United States and foreign territory north of the Arctic Circle and all United States territory north and west of the boundary formed by the Porcupine, Yukon, and Kuskokwim Rivers; all contiguous seas, including the Arctic Ocean and the Beaufort, Bering, and Chukchi Seas; and the Aleutian chain.” 15 U.S.C. § 4111.

The Act applies in waters, on land, on ice, and in the atmosphere within the defined geographic scope, which includes  areas that are  High Seas, Exclusive Economic Zones (EEZs), contiguous zones, territorial seas, inland waters, land, and  air space. 15 U.S.C. § 4111, 4101

Additional Reference Information: Some of these links are to external sites.

https://lh6.googleusercontent.com/JMvSaSPOqRJYyDoGTwO-LZkt2mggG-si5NuRK5UfRPwPFjGEshuymXLs7XZMXEoClWFlLnuY-M2713N3vaAoU1iNOwtE29pBV8u4FPsMCYijIudAHoMg1u2AvLrJS4KiRtYpy4h5
United States Arctic Research Commission, Arctic Boundary as defined by the Arctic Research and Policy Act (ARPA), 2017, https://storage.googleapis.com/arcticgov-static/publications/maps/ARPA_Alaska_and_Polar_Inset_300dpi.jpg

 https://lh6.googleusercontent.com/gQF75JsAtBzdpXpehbJohfRSr8NAGg7FuFQCNuPTnrIJBf63PFcARbvyuPlAjVIicAo_ryeugyeHpV9LEYuaZZDuCW1nVFCqBAtTGyTPviIYU9EHX144OL7x7c2F_R1DAhHhgts9
United States Arctic Research Commission, Arctic Boundary as defined by the Arctic Research and Policy Act (ARPA), 2017, https://storage.googleapis.com/arcticgov-static/publications/maps/ARPA_Polar_300dpi.jpg  



Light mantled sooty albatross and chick

Photo 74: Coast Guard at-sea boarding. 
(Coast Guard web site)

Assault on Fisheries Observer, 18 U.S. C. §§ 111, 114

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).

Additional reference information: Some of these links are to external sites.


Clean Boating Act of 2008, Pub. L. 110-288

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 [1958] 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).



Clean Water Act, Previously Referred to as the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251 et seq

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 apply only to the navigable waters, and thus that only the U.S. Environmental Protection Agency may issue CWA permits for NPDES discharges beyond 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 Act broadly defines the word "ocean" 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 the definition of “mile.” 


Additional reference information:Some of these links are to external sites.

Updated May 14, 2019


Coast and Geodetic Survey Act of 1947, as amended, 33 U.S.C. §883a-883i

The The Coast and Geodetic Survey Act of 1947, as amended (CGSA), 33 U.S.C. §883a-883i, authorizes the Secretary of Commerce to survey coastal areas, publish nautical charts, and engage in research to improve surveying and mapping techniques.  More specifically, to provide charts and related information for the safe navigation of marine commerce, the CGSA authorizes the Secretary of Commerce to conduct:

33 U.S.C. §§ 883a.  The CGSA also authorizes the Secretary to conduct investigations and research in geophysical sciences, including geodesy, oceanography, seismology, and geomagnetism, 33 U.S.C. §883d, to enter into certain agreements for surveys or investigations related to the surveying and mapping activities authorized under the CGSA,  33 U.S.C. § 883e, and to contract for services, 33 U.S.C. §§ 883f.  The Secretary of Commerce has delegated coast and geodetic survey functions to NOAA’s National Ocean Service (NOS), which carries out the activities authorized by the CGSA.  See Dep’t of Commerce Dep’t Org. Order 25-5.

The CGSA, as amended, is silent regarding the geographic scope of the activities it authorizes the agency to undertake.  33 U.S.C. §§ 883c.  However, as enacted in 1947, the CGSA restricted the geographic scope of authorized activities to “the United States, its Territories, and possessions.” See Coast & Geodetic Survey Act, 80 Stat. 1091 (Aug. 6, 1947).  Hydrographic and topographic surveys were restricted to inland water and “coastal water and land areas (including offlying islands, banks, shoals, and other offshore areas).” Id.  In 1960, Congress amended the Act to remove all of its geographical restrictions.  See Pub. L. 86-904, 74 Stat. 16 (April 5, 1960) (stating that the purpose of the act was to “remove geographical limitations on activities of the Coast & Geodetic Survey”).  Accordingly, the CGSA as amended authorizes the agency to undertake the statutorily enumerated activities anywhere. 

Additional reference information:

Updated May 17, 2019


Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.

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).

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Coral Reef Conservation Act, 16 U.S.C. §§ 6401-6409

 

Coral reef.

Coral reef.

The purposes of the Coral Reef Conservation Act (“Act”) are to preserve and restore coral reef ecosystems; to promote wise management and sustainable use of these ecosystems; to develop scientific understanding of these ecosystems; and to assist in the preservation of coral reefs by supporting conservation programs, including projects that involve affected local communities and nongovernmental organizations. 16 U.S.C. § 6401. Authority to conduct these activities is granted specifically to the Secretary of Commerce and the NOAA Administrator including the establishment of the coral reef conservation program that provides grants of financial assistance for projects for the conservation of coral reefs. 16 U.S.C. § 6403(a). The Act expressly provides that (1) no less than 40 percent of funds available shall be awarded for projects in the Pacific Ocean withinthe maritime areas and zones subject to the jurisdiction or control of the United States; (2) no less than 40 percent of the funds available shall be awarded for projects in the Atlantic Ocean, the Gulf of Mexico, and the Caribbean Sea withinthe maritime areas and zones subject to the jurisdiction or control of the United States; and (3) remaining funds shall be awarded for projects that address emerging priorities or threats, including international priorities or threats, identified by the Administrator of NOAA. 16 U.S.C. § 6403(d). Thus, while this national program is focused on coral reef conservation within maritime areas and zones subject to the jurisdiction or control of the U.S., including the EEZ/continental shelf, there is also authority for international cooperation beyond these maritime zones for emerging international priorities or threats identified by the NOAA Administrator. 16 U.S.C. § 6403(d) and 16 U.S.C. §6406(b)(4) (consistent with the Coral Reef Conservation Act, the National Marine Sanctuaries Act, the  Coastal Zone Management Act, the Magnuson-Stevens Fishery Conservation and Management Act, the  Endangered Species Act, and the Marine Mammal Protection Act).

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Last Updated January, 2018


Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675

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).

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Criminal Misuses of Vessels, 18 U.S.C. §§ 2271-2276.

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.       

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Deep Seabed Hard Mineral Resources Act (DSHMRA), 30 U.S.C. §§ 1401-1473 (2002)

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).

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Deepwater Port Act of 1974, 33 U.S.C.§§ 1501-1524, amended by the Maritime Transportation Security Act of 2002, 46 U.S.C. §§ 70101 et seq.

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)

Additional reference information: Some of these links are to external sites.


Duty to Provide Assistance at Sea, 46 U.S.C. § 2304

46 U.S.C. § 2304(a)(1) requires any master or individual in charge of a vessel to assist any individual found at sea in danger of being lost as long as the master or individual in charge can do so without serious danger to anyone on board. See 46 U.S.C. § 2304(a)(2). A master or individual violating this section may be fined not more than $1,000, imprisoned for not more than two years, or both. 46 U.S.C. § 2304(b). This statute does not apply to a vessel of war (as defined in 46 U.S.C. § 2101(53)), or to a vessel owned by the United States Government appropriated only to a public service (as defined in 46 U.S.C. § 2101(33)). However, the master of a U.S. warship or other public vessel may have a duty to render assistance, depending on the circumstances, based on other sources of law.

The duty imposed by 46 U.S.C. § 2304 applies “at sea.” Black’s Law Dictionary defines “at sea” to mean “out of the limits of any port or harbor on the sea-coast.” Black’s Law Dictionary Free Online Legal Dictionary 2nd Ed., At sea. Case law indicates that “at sea” encompasses waters from the low-water mark along the coast (the baseline) to waters under U.S. jurisdiction and the high seas.  See, e.g., The Schooner Harriet, 1 Story 251, 11 Fed. Cas. 588, 590-91 (C.C.D. Me. 1840). A vessel is “at sea” once it leaves a port, regardless of where it goes, and continues until the vessel is back in port. Wood v. New Eng. Marine Ins. Co., 14 Mass. 31, 37 (1817).

The text of 46 U.S.C. § 2304 does not expressly limit its application to U.S. flag vessels or vessels in waters subject to the jurisdiction of the United States. To avoid conflict with international law as required by the Charming Betsy canon, U.S. enforcement of 46 U.S.C. § 2304 should be interpreted as only applying to foreign flag vessels when they are in waters subject to the jurisdiction of the United States. See Murray v. The Charming Betsy, 6 U.S. 64, 118 (1804) (“It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains…”).  Accordingly, civil and criminal penalty enforcement of 46 U.S.C. § 2304 applies to individuals within U.S. jurisdiction, U.S. flag vessels wherever located, and to foreign flag vessels only when in the U.S. territorial sea or the U.S. Exclusive Economic Zone.

Although exempt from the statutory requirement imposed by 46 U.S.C. § 2304, the U.S. Coast Guard is authorized by 14 U.S.C. § 521 to “perform any and all acts necessary to rescue and aid persons and protect and save property” on the high seas and on waters over which the United States has jurisdiction. See also U.S. Coast Guard Regulations, Section 4-2-5, Assistance (COMDTINST M5000.3B).  However, 14 U.S.C. § 521 “falls short of creating a governmental duty of affirmative action owed to a person or vessel in distress.” Frank v. United States,250 F.2d 178, 180 (3d. Cir. 1957).    

Article 0925 of U.S. Navy Regulations, 1990, requires that, insofar as he can do so without serious danger to his ship or crew, the commanding officer or senior officer present, as appropriate, shall proceed with all possible speed to the rescue of persons in distress if informed of their need for assistance and render assistance to any person found at sea in danger of being lost. U.S. Department of the Navy, The Commander’s Handbook on the Law of Naval Operations, section 3.2.1.2 (2017).

These federal authorities allow the U.S. to carry out its legal obligations under Chapter V, Regulation 10 of the Annex to the International Convention for the Safety of Life at Sea Convention, 1974, Article 10 of the International Convention on Salvage, 1989, and customary international law as reflected in article 98 of the U.N. Convention on the Law of the Sea.

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Last updated March 5, 2020


Endangered Species Act, 16 U.S.C. §§ 1531 et seq.

Endangered Right whale and calf

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: Some of these links are to external sites.

 


Establishment of Anchorage Grounds, 33 U.S.C. § 471-476

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:


Federal Ocean Acidification Research and Monitoring Act, 33 U.S.C. §§ 3701 et seq.

The purpose of the Federal Ocean Acidification Research and Monitoring Act (the “Act”) are to provide for:

(1) development and coordination of a comprehensive interagency plan to—

(A) monitor and conduct research on the processes and consequences of ocean acidification on marine organisms and ecosystems; and
(B) establish an interagency research and monitoring program on ocean acidification;

(2) establishment of an ocean acidification program within the National Oceanic and Atmospheric Administration;
(3) assessment and consideration of regional and national ecosystem and socioeconomic impacts of increased ocean acidification; and
(4) research adaptation strategies and techniques for effectively conserving marine ecosystems as they cope with increased ocean acidification 33 U.S.C. § 3701(a)(1-4).

The Act’s title, its definition of “ocean acidification”(includes the Earth’s oceans), and its repeated reference to research in cooperation with other nations and international organizations manifest an affirmative Congressional intent that the Act’s geographic scope extends beyond the U.S. EEZ into waters subject to foreign jurisdiction .

The Act defines “ocean acidification” to mean “the decrease in pH of the Earth’s Oceans and changes in ocean chemistry caused by chemical inputs from the atmosphere, including carbon dioxide.”  33 U.S.C. § 3702(1) (emphasis added).  The phrase “Earth’s oceans” is best construed to indicate that the Act’s substantive provisions relating to research and coordination apply to waters beyond U.S. jurisdiction.  The Act directs the Joint Subcommittee on Ocean Science and Technology of the National Science and Technology Council to coordinate U.S. Federal ocean acidification research and monitoring programs with counterpart “research and monitoring programs and scientists from other nations.”  33 U.S.C. §  3703(b)(4) (emphasis added).  It requires that Subcommittee to develop a strategic plan that describes specific activities, including “participation in international research efforts” and recommendations for the “coordination of U.S. ocean acidification research and monitoring activities with other nations and international organizations.”  33 U.S.C § 3704(b)(3)(I) & (b)(6) (emphasis added).  Further, actions mandated by the Act include the establishment by the Secretary of Commerce through NOAA of a “long-term monitoring program of ocean acidification utilizing global and national ocean observing assets,” and coordination on ocean acidification monitoring and impacts research “with other appropriate international organizations such as the International Oceanographic Commission, the International Council for the Exploration of the Sea, the north Pacific Marine Science Organization, and others.”  33 U.S.C. § 3705(a)(1)(B) & (F) (emphasis added).  Finally, the Act requires the Director of the National Science Foundation (NSF) and the Administrator of the National Aeronautics and Space Administration (NASA) to “encourage coordination of the [the NSF’s and NASA’s] ocean acidification activities with such activities of other nations and international organizations.   33 U.S.C. § 3706(c), 33 U.S.C. § 3707(c) (emphasis added). Thus, the Act contemplates and authorizes research activities primarily in waters subject to U.S. jurisdiction, but also includes authorities to cooperate with other nations to do research in waters subject to foreign jurisdiction, as necessary to implement the strategic research plan

Additional references:


Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. § 661-667e

Congress enacted the Fish and Wildlife Coordination Act (FWCA), 16 U.S.C. § 661-667e, in 1934 to protect fish and wildlife when Federal actions result in the control or modification of a natural stream or body of water (e.g., water resource development projects).  It has been amended a number of times providing mechanisms for assessing impacts to fish and wildlife resources, and methods to protect and improve these resources. The 1958 amendments to the Act require that wildlife conservation be given “equal consideration” and expanded its scope to include any body of water. 16 U.S.C. §§ 661, 662(a).

The FWCA balances economic development with environmental protection through its mechanisms that evaluate and address impacts of water resource development projects on the Nation’s fish and wildlife resources. 16 U.S.C. § 661.  It applies to water projects, or any entity with a Federal permit or license, proposing to control or modify a water body “for any purpose whatever.”  It requires consultation with the Department of the Interior’s Fish and Wildlife Service (FWS), the National Marine Fisheries Service and the appropriate State wildlife agency “with a view to the conservation of fish and wildlife resources in connection with that project.” 16 U.S.C. § 662(a), 666b (wildlife defined to include fish).  Project plans are required to include “such justifiable means and measures for wildlife purposes as the reviewing agency finds should be adopted to obtain maximum overall project benefits.” 16 U.S.C. § 662(b).  The Act also applies to the effects of domestic sewage, trade wastes, and other pollutants on wildlife, with emphasis on birds, mammals, fish, and shellfish. 16 U.S.C. § 665. 

The FWCA extends seaward as far as the seaward limits of the authorities of Federal agencies required to consult with wildlife agencies under the Act and may reach all waters affected by Federal planning and construction, licensing, or permitting authorities. 16 U.S.C. §662(a); See Fish & Wildlife Service, Water Resources Development Under the Fish and Wildlife Coordination Act, Chp. I 24-25, Chp. II 1-8 (Nov. 2004) (Fish & Wildlife Service Guidebook). For example, the FWCA would apply to projects by the Army Corps of Engineers under Section 404 of the Clean Water Act and would extend to the waters of the United States, as defined under that statute.  Zadel v. Tabb, 430 F.2d 199 (5th Circ. 1970), cert. denied, 401 U.S. 910 (1971); see also Fish & Wildlife Service Guidebook Chapter. VII (describing the relationship between the FWCA and other Federal laws that apply in the United States EEZ including but not limited to the National Environmental Policy Act, the Endangered Species Act, the Marine Protection, Research, and Sanctuaries Act, the Coastal Zone Management Act, and the Outer Continental Shelf Lands Act. 

Additional reference information:

Last updated August 21, 2019 


The Fur Seal act of 1966, 16 U.S.C. §§ 1151-1159

The Fur Seal Act of 1966, 16 U.S.C. §§ 1151–59 (2012), was enacted to implement the Interim Convention on Conservation of North Pacific Fur Seals (the “Fur Seal Convention”). Feb. 9, 1957, 8 U.S.T. 2283, 314 U.N.T.S. 105. The Fur Seal Convention, a four-party agreement among the United States, the Soviet Union, Canada, and Japan, prohibited pelagic sealing (the hunting of seals at sea) in the North Pacific Ocean. See id. pmbl., art. III. It also substantially limited land sealing in the North Pacific for commercial purposes, and distributed the benefits from commercial land sealing operations among the treaty’s parties. See id. arts. V(2)(d), IX. In addition, the Convention prohibited the importation of sealskins obtained by pelagic sealing in the North Pacific. See id. art. VIII(2). The Fur Seal Convention has since expired, but the Fur Seal Act remains in effect. See 16 U.S.C.A. § 1151 (West, Westlaw through P.L. 113-74).

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: Some of these links are to external sites.


High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. §1826

The High Seas Driftnet Fishing Moratorium Protection Act (Moratorium Protection Act) was enacted to implement the Large-Scale Pelagic Driftnet Fishing Moratorium (UN Moratorium) called for by the United Nations in response to the use and discarding of large-scale driftnets beyond the Exclusive Economic  Zones (EEZs)  of nations and the threats they pose to the marine environment. UN General Assembly, A/RES/44/225, 1989. The geographic scope of the UN Moratorium and Moratorium Act includes all areas outside coastal States’ EEZs, specifically applying to the high seas.

The Moratorium Protection Act prohibits the United States from entering into any international agreement with respect to the conservation and management of living marine resources that would prevent the full implementation of the UN Moratorium. Additionally, the Moratorium Protection Act calls upon the United States to secure a permanent ban on the use of destructive fishing practices, in particular large scale driftnets, by persons or vessels fishing beyond the EEZ of any nation. Under the Moratorium Protection Act, the United States may detect, monitor, and prevent violations of the moratorium for all fisheries under the jurisdiction of the United States and, in the case of fisheries not under U.S. jurisdiction, to the fullest extent permitted under international law.

The Moratorium Protection Act also authorizes the Secretary of Commerce to take actions to improve the effectiveness of international fishery management organizations in conserving and managing fish stocks under their jurisdiction. These actions include urging international and regional fishery management organizations (RFMOs) to which the United States is a member to adopt measures against member or non-member governments whose vessels engage in illegal, unreported and unregulated (IUU) fishing, increasing the use of observers and technologies needed to monitor compliance with conservation and management measures established by the organization, and seeking adoption of stronger port state controls in all nations. Additionally, the Moratorium Protection Act urges international and regional fishery management organizations to which the United States is a member to adopt and expand the use of market-related measures to combat IUU fishing.

In 2006, the Moratorium Act was amended by the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (2006 MSA) to strengthen international fisheries management organizations and to address IUU fishing and bycatch of protected living marine resources. Notably, the amended Moratorium Act requires the United States to produce a biennial report on the status of international living marine resources shared by the United States or subject to treaties or agreements to which the United States is a party, including a list of all such fish stocks classified as overfished, overexploited, depleted, endangered, or threatened with extinction.

The Moratorium Protection Act requires NOAA’s National Marine Fisheries Service (NMFS) to produce a biennial Report to Congress that lists the nations the United States has identified for IUU fishing and/or bycatch of protected living marine resources, or fishing activities on the high seas that target or incidentally catch sharks where the country does not have regulations comparable in effectiveness to those of the United States.   If a nation is identified, NMFS enters a two-year consultation process to encourage that nation to take appropriate action to address the issues for which it was identified. For bycatch and shark identifications, this includes the adoption of a regulatory program comparable to that of the United States and a management plan to assist in the collection of specie-specific data. Following the consultations, NMFS either positively or negatively certifies the identified nation in the next biennial Report to Congress. If an identified nation fails to take the appropriate action following a negative certification, the nation’s flagged vessels are subject to denial of port privileges in the United States, and the importation of certain fish or fish products may be prohibited. The most recent Biennial Report to Congress was published in 2015.

Additional reference information: Some of these links are to external sites.


High Seas Fishing Compliance Act, 16 U.S.C. §§ 5501–5509

The High Seas Fishing Compliance Act of 1995 (HSFCA) has two purposes: (1) to implement the Food and Agriculture Organization’s Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) and (2) to establish a system of permitting, reporting and regulation for vessels of the United States fishing on the high seas. See 16 U.S.C. §§ 5501–5509.

The HSFCA requires the Secretary of Commerce (Secretary) to license fishing vessels “of the United States” (as defined in 16 U.S.C. § 5502(9)) or “subject to the jurisdiction of the United States” (as defined in 46 U.S.C. § 70502(c)) that are engaged in fishing operations on the high seas.  “High seas” is defined, for purposes of the Act, as “waters beyond the territorial sea or exclusive economic zone (or the equivalent) of any nation to the extent that such territorial sea or exclusive economic zone (or the equivalent) is recognized by the United States.” 16 U.S.C. § 5502(3).

The HSFCA requires the Secretary to establish conditions and restrictions on each permit issued under the Act, as necessary and appropriate to carry out the obligations of the United States under the Compliance Agreement. 16 U.S.C. § 5503(d). Parties to the Compliance Agreement are responsible for ensuring that their authorized vessels do not undermine the effectiveness of international conservation and management measures recognized by the respective Party that are adopted by international fisheries management organizations,  treaties, or other international agreements, regardless of the Party’s membership or party status to the organization or agreement.  Accordingly, the HSFCA prohibits the use of U.S. fishing vessels on the high seas in contravention of international conservation and management measures recognized by the United States. 16 U.S.C. § 5505(1). A list of international conservation and management measures recognized by the United States is published periodically by NMFS in the Federal Register.  16 U.S.C. § 5504(e); see 76 Fed. Reg. R 28954 (May 19, 2011).

Regulations implementing the HSFCA were first promulgated in 1996 (61 Fed. Reg. 11751, March 22, 1996), with revisions in 1999 (64 FR 13, January 4, 1999), and 2015 (80 Fed. Reg. 62488, October 16, 2015).  The 2015 regulatory changes codified, among other things, NMFS’ procedures for reviewing high seas fishing authorizations under environmental laws, and described how NMFS will address impacts to vulnerable marine ecosystems from bottom fishing consistent with international conservation and management measures recognized by the United States and United Nations General Assembly resolutions.

By its express terms, the HSFCA applies to U.S. vessels fishing on the high seas. In addition to permitting requirements, the HSFCA contains provisions for enforcement, civil penalties, criminal offenses, permit sanctions, and forfeitures for violation of the Act. See 16 U.S.C. § 5505–5509; see also 50 C.F.R. § 300.340; 80 Fed. Reg. 62488 (October 16, 2015).  The HSFCA also prohibits any person subject to the jurisdiction of the U.S. from engaging in certain enumerated activities in contravention of the Act, or in contravention of international conservation and management measures. 16 U.S.C. § 5505.    

Additional reference information: 

Last updated February 11, 2019


Historic Sites Act (HSA) OF 1935, 54 U.S.C. §§ 302101-320106

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." 54 U.S.C. § 320101. 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. 54 U.S.C. § 320102(b),(c),(g),(j). 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, and districts representing an outstanding aspect of American history and culture the 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, Title II. 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. In 2014 the HSA and other laws under Title 16 of the U.S. Code were technically repealed by Public Law 113-287 and then reenacted and recodified in the newly-created Title 54 National Park Service and Related Programs of the United States Code.

The Historic Site Act’s National Historic Landmark Program has been applied to historic sites and objects of national significance located both in and outside of the United States. 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.

Historic properties on the Outer Continental Shelf have been listed as National Historic Places and National Natural Landmarks. See 87 Interior Dec. 593, 596, 1980 WL 104199, 8 (Nov. 24, 1980). Seven National Historic Landmarks are underwater cultural heritage sites. These include the: 

The Historic Sites Act has no seaward limit. Under its authority, landmarks have been designated in the U.S. territorial sea, on the U.S. continental shelf/EEZ, and in waters subject to foreign state jurisdiction, including foreign territorial seas.

Additional reference information: Some of these links are to external sites.

Last updated July 5, 2019


Hydrographic Services Improvement Act of 1998, as amended, 33 U.S.C. §§ 892-892d

The Hydrographic Services Improvement Act of 1998, as amended (HSIA), authorizes NOAA to collect and disseminate hydrographic data in furtherance of its data gathering and dissemination duties under the Coast and Geodetic Survey Act of 1947 (CGSA), 33 U.S.C. §883a -883i. The HSIA details certain responsibilities and authorities for this purpose. 33 U.S.C. § 892a.  Specifically, the HSIA requires NOAA to:

33 U.S.C. § 892a(a)(1-7).  NOAA must fulfill these duties, to the greatest extent practicable and cost-effective, through contracts or other agreements with private sector entities.  33 U.S.C. § 892a(a)(8). 

The HSIA also provides NOAA with authority to engage in a number of activities to support the use of hydrographic services and data, including leasing, procurement, and contracts, and requires NOAA to maintain real-time hydrographic monitoring systems. 33 U.S.C. § 892a(b).  NOAA may use hydrographic data and services to support the conservation and management of coastal and ocean resources, and to save and protect life and property.  33 U.S.C. § 892a(b).  NOAA’s National Ocean Service (NOS) carries out the activities authorized under the HSIA.  See Dep’t of Commerce Dep’t Org. Order 25-5.

The HSIA imposes no geographical restrictions on authorized activities.  Both the express language of the HSIA and the legislative history of the Act indicate that Congress intended the geographic scope of the HSIA to be coextensive with that of the CGSA.  See H. Rep. 105-485 (April 21, 1998).  As described in the seaward limits entry for the CGSA, Congress removed any geographic limitation on authorized activities under the CGSA by statutory amendment in 1960. The HSIA accordingly authorizes NOAA to undertake the statutorily enumerated activities anywhere.
Additional reference information:Some of these links are to external sites.

Last updated July 8, 2019


Intervention on the High Seas Act, 33 U.S.C. §§ 1471 et seq

Congress enacted the Intervention on the High Seas Act to implement the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties, 1969, and amended the Act to address additional substances under the Protocol Relating to Intervention on the High Seas in Cases of Marine Pollution by Substances Other Than Oil, 1973, including annexes thereto. The Act authorizes the U.S. Coast Guard to take measures on the high seas to prevent, mitigate, or eliminate danger to the U.S. coastline or related interests of the United States from consequences or threat of oil pollution and substances other than oil from a damaged ship or her cargo.  33 U.S.C. § 1472.   33 C.F.R. § 2.32(c) defines high seas for the purposes of the Intervention on the High Seas Act as including “the exclusive economic zones of the United States and other nations, as well as those waters that are seaward of territorial seas of the United States and other nations.” 

The Act requires the Coast Guard to consult with the Secretary of Commerce and the Administrator of the Environmental Protection Agency when determining whether a substance other than those enumerated in the Convention “is liable to create a hazard to human health, to harm living resources, to damage amenities, or to interfere with other legitimate uses of the sea.”  33 U.S.C. § 1473(a).  In determining whether there is grave and imminent danger of major harmful consequences to the coastline or related interests of the United States, the Coast Guard must “consider the interests of the United States directly threatened or affected including but not limited to, human health, fish, shellfish, and other living marine resources, wildlife, coastal zone, and estuarine activities, and public and private shorelines and beaches.”  33 USC § 1473(b).

In 1992, the U.S. Coast Guard used the authority granted by the Act as well as authority under the Clean Water Act and the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) to order the clean-up of several containers and drums of arsenic trioxide lost by M/V Santa Clara I in a storm approximately 40 nm off the coast of New Jersey.  The materials were recovered from the seabed and disposed ashore.  United States v. M/V Santa Clara I, 819 F. Supp. 507 (D.S.C. 1993)

Additional reference information:Some of these links are to external sites.

(Last updated August 27, 2019)


The Lacey Act, 16 U.S.C. §§ 3372–3378

The Lacey Act (the Act), first enacted in 1900, is one of the United States’ oldest wildlife protection statutes. The Lacey Act generally prohibits trafficking in fish, wildlife, or plants obtained in violation of federal, state, foreign, treaty, or Indian tribal law. 16 U.S.C. § 3372(a). The Act also requires that packages containing fish or wildlife be properly marked and prohibits falsification of records for certain shipments of fish, wildlife, or plants. 16 U.S.C. § 3372(b), (d).  

The Act expressly applies to conduct beyond the territorial jurisdiction of the United States, including on the high seas and areas under foreign jurisdiction.  Specifically, the Lacey Act reaches conduct within the “special maritime jurisdiction of the United States,” 16 U.S.C. § 3372(a)(3), defined in 18 U.S.C. § 7(1) to include, “[t]he high seas, any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State . . .”  The Act also reaches conduct that occurs in a foreign nation in violation of foreign law.  See 16 U.S.C. § 3372(a)(2); United States v. 144,774 Pounds of Blue King Crab, 410 F.3d 1131 (9th Cir. 2005) (finding King Crab taken, possessed, transported, and sold  in violation of Russian law and imported into the United States was subject to forfeiture under the Lacey Act); United States v. McNab, 331 F.3d 1228 (11th Cir. 2003) (affirming convictions for the importation, purchase, and sale of lobsters from Honduras harvested in violation of Honduran law).  The Lacey Act also applies extraterritorially to the false identification of fish, wildlife, or plants intended to be “imported, exported, transported, sold, purchased, or received from any foreign country” or transported in foreign commerce. 16 U.S.C. § 3372(d). 

Thus, there is no seaward limit for the Lacey Act, as it applies to acts committed within the sovereign territory of foreign nations under certain circumstances.

Additional reference information:Some of these links are to external sites.


The Longshore and Harbor Workers’ Compensation Act 33 U.S.C §§ 901- 950

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: Some of these links are to external sites.


Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1891

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is the primary U.S. federal law governing fishery resources and fishing activities in U.S. waters and on the U.S. continental shelf.  The MSA states that it is “the purposes of the Congress in this Act to take immediate action to conserve and manage the fishery resources found off the coasts of the United States, and the anadromous species and Continental Shelf fishery resources of the United States by exercising (A) sovereign rights for the purposes of exploring, exploiting, conserving, and managing all fish within the EEZ over such anadromous species and Continental Shelf fishery resources.” 16 U.S.C.  § 1801(b)(1).  Under Presidential Proclamation 5030 (March 10, 1983), the U.S. EEZ generally extends 200 nautical miles from shore.

Through the MSA, the United States exercises sovereign rights and exclusive fishery management authority over all fish, and all Continental Shelf fishery resources, within the EEZ. 16 U.S.C. § 1811(a). Through the MSA, the United States also exercises exclusive fisheries management authority over (1) all anadromous species that spawn in United States rivers or estuaries throughout the migratory range of each such species beyond the EEZ, except that management authority does not extend to any such species during the time they are found within any waters of a foreign nation; and (2) all “Continental Shelf fishery resources” beyond the EEZ.  The MSA defines “Continental Shelf fishery resources to encompass specific enumerated species of coral, crab, lobster, abalone, conch, clam and sponge.” 16 U.S.C. § 1802(7).

Courts have also found that the MSA provides authority over fisheries resources beyond the U.S. EEZ in certain other instances.  One federal district court held that the U.S. has authority to restrict imports of fish captured in waters of a foreign nation where such restriction is necessary for conservation purposes.  Stinson Canning v. Mosbacher, 731 F.Supp. 32 (D. Maine, 1990) (upholding application of the MSA to restrict imports of undersized fish caught by foreign fishing vessels in foreign waters, where NOAA found that the restriction was necessary to enforce conservation measures); see also NOAA Fisheries, Amendments to the Spiny Lobster FMP, 74 Fed. Reg. 1148 (Jan. 12, 2009) (implementing import restriction for undersized Caribbean spiny lobsters regardless of where harvested).  Another federal district court has upheld the application of the MSA to highly migratory species beyond the U.S. EEZ, based in part on its finding that “the Congressional intent to extend United States’ jurisdiction to areas on the high seas beyond sovereign jurisdictional limits is clear.”  See also Blue Water Fishermen’s Ass’n v. National Marine Fisheries Service, 158 F. Supp. 2d 118, 123 and n.19 (D. Mass. 2001) (holding NMFS had authority under the MSA to regulate Atlantic HMS fisheries beyond the U.S. EEZ. 

Additional reference information: 
Some of these links are to external sites.

Last updated September 14, 2020


Reporting Marine Casualties, 46 U.S.C. § 6101

Enacted in 1983, 46 U.S.C. § 6101 requires the Secretary of the Department in which the U.S. Coast Guard is operating to “prescribe regulations on the marine casualties to be reported and the manner of reporting.”  Under 46 U.S.C. § 6101, U.S. Coast Guard regulations require reporting of the following types of marine casualties:

46 U.S.C. § 6101(a). The statute requires reporting of all marine casualties within five days.  46 U.S.C. § 6101(b). The word “vessel” includes 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. The relevant U.S. Coast Guard implementing regulations are found at 46 CFR § 4.01-1 et seq. 46 U.S.C. § 6101 expressly applies to:

46 U.S.C. § 6101 (d)(1), (2); 46 U.S.C. § 6101 (f)(1)(A), (B).
An owner, charterer, managing operator, agent, master, or individual in charge of a vessel failing to report a casualty as required by 46 U.S.C. § 6101 or a regulation issued by the U.S. Coast Guard pursuant to it is liable to the United States for a civil penalty of not more than $39,936.  46 U.S.C. § 6103.

Additional reference information:

Last updated Oct. 11, 2019


The Marine Debris Act, 33 U.S.C. §§ 1951 – 1958

The purpose of the Marine Debris Act, 33 U.S.C. §§ 1951 – 1958, is to address the adverse impacts of marine debris on the “United States economy, the marine environment, and navigation safety through the identification, determination of sources, assessment, prevention, reduction and removal of marine debris.”  33 U.S.C. § 1951.  The Act, which was passed in 2006 and reauthorized in 2012 and 2018, established certain programs related to combatting the effects of marine debris, including: (1) an Interagency Marine Debris Coordinating Committee (members include NOAA, EPA, U.S. Coast Guard, U.S. Navy, Department of State, and Department of the Interior, among others), which coordinates the federal government’s marine debris efforts, 33 U.S.C. § 1954; (2) a  Federal information clearing house, which maintains federal information on marine debris, 33 U.S.C. § 1955; and (3) NOAA’s Marine Debris Program, which directly combats marine debris and its effects and provides grants to accomplish the purpose of the Act, 33 U.S.C. § 1952. The Act directs NOAA’s Marine Debris Program to: identify sources of, assess, prevent, and remove marine debris; undertake outreach and education activities, in coordination with other federal agencies; develop an interagency plan for timely response to severe marine debris events; assist in cleanup and response to severe marine debris events; and to promote international action to reduce incidences of marine debris, including providing technical assistance, through coordination with the Department of State and other federal agencies.  33 U.S.C. § 1952(b).  The Act also requires that the Coast Guard take certain actions to improve compliance with and implementation of MARPOL Annex V and the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1905-1915; develop a plan to improve ship-board waste management; and establish a voluntary reporting program for vessels to report the effects of marine debris or illegal disposal of marine debris, 33 U.S.C. § 1953.

The Act defines “marine debris” as “any persistent solid material that is manufactured or processed and directly, indirectly, intentionally, or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.” 33 U.S.C. § 1956 (emphasis added).Congress added the definition of “marine debris” during the reauthorization of the Act in 2012 to codify the regulatory definition promulgated by NOAA and the U.S. Coast Guard in 2009.  See H.R. Rep. No. 112-584, at 4-5 (July 9, 2012); 33 U.S.C. § 1956; 74 Fed. Reg. 45555 (Sept. 3, 2009).  The 2009 final rule defining “marine debris” also explained the agencies’ understanding of the term “marine environment” as including “the high seas, exclusive economic zone, territorial sea, coastal waters, Great Lakes, navigable waters of the United States, and the lands therein and thereunder, and adjacent shorelines and shorelands.”  74 Fed. Reg. 45555 (Sept. 3, 2009).  This interpretation of “marine environment” seems to have gained general acceptance since 2009 and appears to be the only indication of the intended geographical scope of the term “marine environment” in the context of the Marine Debris Act. 

Therefore, the Marine Debris Act should be interpreted as authorizing conduct in waters under U.S. jurisdiction and on the high seas, in addition to the specific international cooperation contemplated in the Act.  To the extent that the Act requires the Coast Guard to engage in conduct under the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1905-1915, the relevant seaward limit under that statute should apply.

Additional reference information:Some of these links are to external sites.

Last update December 6, 2018


Marine Mammal Protection ACT (MMPA), 16 U.S.C. §§ 1361-1423h

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.

Additional reference information: Some of these links are to external sites.


Marine Mineral Resources Research Act of 1996, 30 U.S.C. §§ 21a, 1901-05

 

Congress enacted the Marine Mineral Resources Research Act of 1996, 30 U.S.C. §§ 21a, 1901 – 05, (“the Act”) to reemphasize the importance of U.S. research about and development of its marine mineral resources, and to authorize the Department of the Interior to establish and carry out a program of marine mineral resource research.  Id. at § 1902(a).  The Act defines marine mineral resource as sand and aggregates, placers, phosphates, manganese nodules, cobalt crusts, metal sulfides, methane hydrate (for limited purposes), and other marine resources that are not oil and gas, fisheries, or marine mammals.  Id. at § 1901(6). 

The Act directs the Secretary of the Interior to establish and carry out a program of research on marine mineral resources primarily through grants, contracts, and cooperative agreements.  Id. at §§ 1902(a), 1903.  In carrying out this program, the Act requires the Secretary of the Interior to:

Although little beyond the language of section 1902(c)(4) alludes to the Act’s seaward limit, its legislative history discloses Congress’s unambiguous intent. The Senate Report on the underlying bill, S. 1194, indicates that the bill language was intended to apply to the United States Exclusive Economic Zone (EEZ), which extends to a distance of 200 nautical miles from the baseline as set forth in Presidential Proclamation 5030 of March 10, 1983. S. Rep. No. 104- 296, at 5-6 (1996).   

Additional reference information:Some of these links are to external sites.

Updated July 23, 2021


Marine Protection, Research, and Sanctuaries Act of 1972, 33 U.S.C. §§ 1401 et seq

Congress enacted the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA) in the wake of the environmental movement of the 1960s and 1970s. As reflected in the legislative history, the MPRSA arose out of public concern for ocean dumping, exploitation of the seabed for oil, gas, and minerals, and a desire to set aside special areas for protection, research, education, recreation, fishing, and other uses determined compatible with the primary conservation objective. The MPRSA detailed a plan for use of the marine environment by regulating the dumping of only certain waste in specified areas (Title I, or the ― Ocean Dumping Act), scientific research of the ocean in general but of ocean dumping sites in particular (Title II), and setting aside the more special or significant areas of the marine environment for conservation as national marine sanctuaries (Title III, or the ― National Marine Sanctuaries Act).

Additional reference information:Some of these links are to external sites.

Last updated January, 2018


Marine Turtle Conservation Act of 2004, P.L. 108-266, as amended by Title VII of PL 116-9, codified at 16 U.S.C. §§ 6601-6607

The Marine Turtle Conservation Act provides funding for a variety of projects to conserve and protect marine turtles, freshwater turtles, and tortoises, and their habitats. 16 U.S.C. § 6601(b). The Secretary of the Interior, acting through the U.S. Fish and Wildlife Service (FWS), provides financial assistance for approved projects around the world. Some of the projects approved under the Act include enforcement and implementation of the Convention on International Trade in Endangered Species (CITES), training of local law enforcement officials, initiatives to resolve human-turtle conflicts, community outreach and education, onsite research and monitoring, and protection, restoration, and management of habitats. 16 U.S.C. § 6602(2).

The Act authorizes the FWS to make grants for turtle and tortoise conservation to territories of the United States (American Samoa, Guam, Northern Mariana Islands, Puerto Rico, U.S. Virgin Islands) as well as to foreign states.  16 U.S.C. § 6602.  FWS addresses conservation concerns for marine turtles, freshwater turtles, and tortoises that fall within the scope of FWS programs, including international programs, and not exclusively in the jurisdiction of another federal agency's programs.

References and Related Information: Some of these links are to external sites.

Marine Turtle Conservation Act, 16 U.S.C. §§ 6601-6607.
Senate Environment and Public Works Committee Report on the WILD Act (S.268),(incorporated into the larger public lands package, S. 47) ( ``under the jurisdiction of F&WS programs'' was intended to expand the scope of habitat conservation beyond nesting areas.  While nesting areas remain a focal point for the conservation of marine turtles, freshwater turtles and tortoises are more susceptible to other threats, such as poaching of juvenile and adult animals. The Committee's intent is to make clear that the F&WS can address any conservation concern for marine turtles, freshwater turtles, and tortoises, as long as conservation actions fall within the scope of F&WS programs, including international programs, and not in the jurisdiction of another agency.)

Final text of the public lands package, S.47, which became law  Marine Turtle Conservation Fund, U.S. Fish & Wildlife Service International Affairs programs Marine Turtle Conservation Act, U.S. Fish & Wildlife Service, Report Wildlife Without Borders International Species Programs, FY 2005-FY 2010.  Project Summaries 2018

Last updated August 14, 2019


Migratory Bird Treaty ACT (MBTA), 16 U.S.C. §§ 701-719c

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.

Additional reference information: Some of these links are to external sites.


Archeological and Historic Preservation Act of 1974 (Moss-Bennett Act), 54 U.S.C. §§ 312501 et seq.

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:


National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370f

The National Environmental Policy Act (NEPA) declares a national policy to promote efforts that will prevent or eliminate damage to the environment, stimulate the health and welfare of man, and enrich the understanding of the ecological systems and natural resources important to the United States.  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 does not explicitly address any limit on the geographic scope of application. 

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 the territory of the United States has been litigated frequently in federal court. The key issue in such cases is where activities and associated impacts occur.  Courts have generally found that NEPA applies to federal actions occurring within the United States, including its territorial lands and sea, Exclusive Economic Zone/continental shelf, and, in certain circumstances, areas beyond national jurisdiction where the U.S. retains some level of “legislative control” (e.g., high seas, Antarctica).  See Environmental Defense Fund Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993) (finding NEPA applied to decision to burn waste in Antarctica, holding " 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”).   Courts have held that NEPA does not apply to activities within the territory of a foreign country or where application of NEPA would interfere with existing U.S. foreign policy interests or treaty rights.   See Natural Resources Defense Council (NRDC) v. Nuclear Regulatory Commission, 647 F.2d 1345 (D.C. Cir. 1981) (NEPA did not apply to NRC decision to approve license to export nuclear materials to the Philippines); see also NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466 (D.D.C. 1993) (NEPA did not apply to U.S. military base in Japan, because doing so would risk interfering with longstanding treaty relations between the U.S. and Japan). 

NOAA’s policy, which is contained in the agency’s NEPA implementing procedures, see 40 C.F.R. § 1507.3, is to apply NEPA both within and beyond the U.S. Exclusive Economic Zone (EEZ).  NOAA Companion Manual for NOAA Administrative Order 216-6A, Policy and Procedures for Compliance with the National Environmental Policy Act and Related Authorities (effective January 13, 2017), section 10(C).  This manual also includes NOAA procedures for implementing E.O. 12,114, Environmental Effects Abroad of Major Federal Actions (Jan. 9, 1979).

Additional reference information:

 Last updated June 26, 2018


National Fishing Enhancement Act 33 U.S.C. §§ 2101 et seq.


Enacted in 1984, the National Fishing Enhancement Act establishes standards for siting, constructing, and monitoring artificial reefs in a manner that enhances fishery resources, facilitates access and utilization by U.S. recreational and commercial fishers, minimizes conflicts among competing uses of the resources in the waters, and minimizes environmental risks to health and property. The Act defines an artificial reef as any structure that is constructed or placed in waters for enhancing fishery resources and commercial and recreational fishing opportunities 33 U.S.C. § 2105(1). The Act allows the Secretary of the Army to issue permits for the construction of artificial reefs and impose penalties for violations of such permits (up to $10,000 per violation). 33 U.S.C. §2104(e). Under the Act, artificial reefs must be sited and constructed, and subsequently monitored and managed in a manner which is “consistent with generally accepted principles of international law and shall not create any unreasonable obstruction to navigation.” 33 U.S.C.§ 2102 (5). 

The National Fisheries Enhancement Act applies to “the navigable waters of the United States and the waters superadjacent to the Outer Continental Shelf as defined in section 1331 of title 43, to the extent such waters exist in or are adjacent to any State.” 33 U.S.C. § 2105(3). Thus, the Act expressly applies to the outer limit of the outer continental shelf, as defined in the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq. OCSLA defines the U.S. “outer continental shelf,” as “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 and are subject to its jurisdiction and control.” 43 U.S.C. § 1331(a). OCSLA does not, however, identify a specific outer limit of the U.S. continental shelf. Under customary international law, as reflected in Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS), the continental shelf consists of the seabed and subsoil that extends to the outer edge of the continental margin, or to a distance of 200 nautical miles (nm) if the outer edge of the continental margin does not extend up to that distance. UNCLOS, Art. 76; see also U.S. Extended Continental Shelf FAQ. In the United States, an interagency Extended Continental Shelf Task Force is responsible for coordinating the collection and analysis of relevant data to establish the outer limits of the U.S. continental shelf beyond 200 nm, in accordance with international law.

Thus, the seaward limit of the National Fisheries Enhancement Act is the outer limit of the U.S. continental shelf, which extends at least 200 nm from the baseline.   

Additional Reference Information:Some of these links are to external sites.

 Last updated February 11, 2021


The National Historic Lighthouse Preservation Act of 2000, 54 U.S.C. §§ 305101-305106

Most lighthouses are located on land along the coast. However, some are located on the submerged lands of states and on the U.S. outer continental shelf within the EEZ. According to the United States Coast Guard, there are nine historic light stations between three nautical miles and 12 nautical miles from shore, and there are three historic light stations more than 12 nautical miles from shore--the Farallon Light (25 nautical miles from shore); the Nantucket (Great Point) Light (22 nautical miles from shore); and the Monhegan Island Light (13.8 nautical miles from shore).

The National Historic Lighthouse Preservation Act of 2000 (NHLPA) amends the National Historic Preservation Act (NHPA) to create a process for federally owned historic lighthouses deemed excess property to be transferred at no cost to an eligible entity or via public sale to any entity. Eligible entities include Federal agencies, State and local governments, nonprofit corporations, educational agencies, and community development organizations. 54 U.S.C. § 305101(2). The conveyance of a historic lighthouse to an eligible entity pursuant to the process in the NHLPA is subject to certain conditions including that the eligible entity must, at its own expense, maintain the historic lighthouse in accordance with the Secretary of the Interior's Standards for the Treatment of Historic Properties. 54 U.S.C. § 305104.

While the NHLPA contains no explicit language on its seaward limit, it applies to lighthouses located within the United States. As the United States has constructed lighthouses on its outer continental shelf within the U.S. EEZ, the seaward limit is the outer continental shelf/EEZ. This is consistent with the seaward limit of NHPA provisions applying within the United States, which is logical since the NHLPA amends the NHPA.

 Last updated October 1, 2018


National Historic Preservation ACT (NHPA), 16 U.S.C. §§ 470a-470a-2

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.

Additional reference information: Some of these links are to external sites.


National Marine Sanctuaries ACT (NMSA), 16 U.S.C. §§ 1431 et seq.

Coral Reefs

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). The Act 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 fourteen current National Marine Sanctuaries, eleven are located in whole or in part beyond the U.S. 12 nautical mile territorial sea with eight of those sanctuaries extending beyond the 24 nm contiguous zone into the EEZ. These eleven national marine sanctuaries are the Cordell Bank National Marine Sanctuary (NMS), the Fagatele Bay NMS, the Florida Keys NMS, the Flower Garden Banks NMS, the Gray’s Reef NMS, the Greater Farallones 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 is entirely within the U.S. territorial sea.  Thunder Bay NMS (in Lake Huron) and Mallows Bay-Potomac River NMS are located entirely within U.S. internal waters.

Additional reference information:Some of these links are to external sites.