Seaward Limit of Laws

A
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

C
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  |  Crown of Thorns Starfish Act

D-F
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

H-L
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  |  Jellyfish/Nettles Act  |  The Lacey Act  |  Legislation Implementing the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific  |  Longshore and Harbor Workers' Compensation Act

M
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  |  The Maritime Security and Fisheries Enforcement Act  |  Migratory Bird Treaty Act

N
The National Aquaculture Act of 1980 (NAA)   |   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

O-P
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  |  Pelly Amendment to the Fishermen’s Protective Act of 1967  |  Plunder Statute  |  Ports and Waterways Safety Act of 1972  |  Public Vessel Medical Waste Dumping Ban Act

R-S
Recreational Vessels Act  |  Refuse Act of 1899  |  Rivers and Harbors Act of 1899  |  Salvaging Operations by Foreign Vessels  |   Salmon and Steelhead Conservation and Enhancement Act of 1980 (SSCEA)  |  Shark Finning Prohibition Act (2000) and Shark Conservation Act (2010)  |  Shore Protection Act of 1988  |  South Pacific Tuna Act of 1988  |  Sponge Act of 1914  |  Sunken Military Craft Act  |  Submarine Cable Act of 1888  |  Submerged Lands Act

T-W
Territorial Submerged Lands Act  |  U.S. Coast Guard's Law Enforcement Authority at Sea  |  Vessel Incidental Discharge Act  |  Whaling Convention 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)offsite link, APPS applies to: Under 33 U.S.C. § 1902offsite link, 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)offsite link.
 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. 

Waters of the Alexander Archipelago waters are shaded blue on the map and the five geodesic lines referenced in the statutory text are drawn in purple

 

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.

Navigable Waters of the United States within the Kachemak Bay National Estuarine Research Reserve shown on a map

 

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.

Arctic Boundary Polar inset map as defined by the Arctic Research and Policy Act (ARPA), 2017

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

 

Arctic Boundary map as defined by the Arctic Research and Policy Act (ARPA), 2017

 

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  

Two Coast Guard ships, 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.” To the extent that Congress legislates against the backdrop of international law, it may be informative that the Supreme Court has indicated that "The conventional '3-mile limit' under international law refers to three marine miles, or approximately 3.45 land miles." United States v. Louisiana, 363 U.S. 1, at 17, n.15 (1960).


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:

  • hydrographic and topographic surveys;
  • tide and current observations;
  • geodetic-control activities; and
  • geomagnetic, seismological, gravity and related geophysical measurements and investigations, and observations for the determination of variation in latitude and longitude. 

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: Some of these links are to external sites.

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).

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

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

Fish swimming above 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).

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

  • Coral Reef Conservation Act, 16 U.S.C. §§ 6401 et seq.
  • Coral Reef Protection, Executive Order 13089 of June 11, 1998, 63 Fed. Reg. 115 (June 16, 1998) (focuses on coral reef protection and expressly includes “Federal, State, territorial, or commonwealth waters” in maritime areas and zones subject to the jurisdiction or control of the United States when defining “U.S. Coral Reef Systems.”)
  • NOAA Coral Reef Conservation Program is a partnership between the NOAA Line Offices that work on coral reef issues. We bring together expertise from across NOAA for a multidisciplinary approach to understanding and conserving coral reef ecosystems.

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).

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

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.       

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

Crown of Thorns Starfish Act, 16 U.S.C. §§ 1211-1213

The Crown of Thorns Starfish Act (COTSA) was passed by Congress in 1970 to address widespread outbreaks of crown-of-thorns starfish (Acanthaster planci) on Indo-Pacific coral reefs. S. Rept. 91-795, 1 (1970). The crown-of-thorns starfish primarily feeds on coral tissue, damaging reef ecosystems at alarming rates when present in high concentrations. See Coral Health and Threats in the Pacific Islands | NOAA Fisheries. COTSA’s purpose is to conserve and protect the “coral reef resources of the tropical islands of interest and concern to the United States in the Pacific,” to prevent erosion of critical island areas, and to “safeguard future recreational and esthetic uses of Pacific coral reefs.” 16 U.S.C. § 1211. 

COTSA authorizes the Department of Commerce and the Smithsonian Institution to “cooperate with and provide assistance to the governments” of these islands in the study and control of the crown-of-thorns starfish. Id.; 16 U.S.C. § 1213. Specifically, COTSA authorizes: (1) research to determine the cause of crown-of-thorns starfish population increases and their effects on coral reef stability and regeneration, (2) monitoring of areas where the starfish may be increasing and determination of future needs for control, (3) development of improved methods of control and carrying out of such programs where needed, and (4) any other actions desirable to gain an understanding of the ecology and control of the crown-of-thorns starfish. 16 U.S.C. § 1212.

COTSA authorizes assistance to the governments of “the State of Hawaii, the territories and possessions of the United States, including Guam and American Samoa, the Trust Territory of the Pacific Islands, and other island possessions of the United States.” 16 U.S.C. § 1211. These other island possessions, now called the U.S. Minor Outlying Islands, are Wake Island, Midway Islands, Palmyra Atoll, Johnston Atoll, Kingman Reef, Howland Island, Baker Island, and Jarvis Island. See NOAA CoRIS - U.S. Pacific Remote Island Area (PRIA). Since the passage of COTSA, the Trust Territory of the Pacific Islands has been dissolved, with the Northern Mariana Islands becoming an unincorporated U.S. territory and the Marshall Islands, the Republic of Palau, and the Federated States of Micronesia becoming sovereign states under Compacts of Free Association with the United States. See 48 USC Ch. 14: Front Matter. It is unclear whether COTSA still applies to these three Freely Associated States as there is no guidance on this issue. See Compacts of Free Association; 48 USC Ch. 18.

Neither COTSA nor its legislative history identifies its geographic scope or its seaward limit. See, e.g., S. Rept. 91-795 (1970). When enacted in 1970, the United States claimed a three nautical mile (nm) territorial sea around its island territories. Thus, it is reasonable to infer that federal funds may be provided to address crown-of-thorns starfish predation on coral reefs located within this zone. It remains an open question whether COTSA may be interpreted to apply beyond three nm, such as hroughout the 200 nm EEZ proclaimed by the U.S. in 1983. See 1983 U.S. EEZ Proclamation.

Map of U.S. Maritime Zone - Exclusive Economic Zone (EEZ)

Source: NOAA GCIS

Additional reference information:

Last updated November 2, 2023

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).

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

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.

  • Deepwater Port Act of 1974, 33 U.S.C. §§ 1501-1524, as amended
  • 49 CFR § 1.46 (delegating authority under the Deepwater Port Act from the Department of Transportation to USCG)
  • 49 CFR § 1.66 (delegating authority under the Deepwater Port Act from the Department of Transportation to MARAD)
  • Department of Homeland Security Delegation Number 0170.1, #75. (delegating authority to the USCG to process deepwater port applications and other functions of the DWPA)
  • 33 CFR § 148 (providing a general overview of deepwater port licensing and establishment)
  • 33 CFR §149 (outlining deepwater port design, construction, and equipment regulations)
  • 33 CFR § 150 (establishing and clarifying the regulation of deepwater port operations, including vessel navigation)
  • 49 CFR § 1.53(a)(3) (relating to the Secretary of Transportation’s authority under the Deepwater Port Act to regulate pipelines on the Outer Continental Shelf)
  • Interagency MOU Related to the Licensing of Deepwater Ports (May 20, 2004)
  • Chevron U.S.A., Inc. v. Ha mmond, 726 F.2d 483, 489 n.7 (9th Cir. 1984) (noting that the Coast Guard is in charge of deepwater ports outside of the three nautical-mile limit, but that states have specific veto over new licenses).
  • S. REP. NO. 93-1217, at 7571, 7606 (1974), reprinted in 1974 U.S.C.C.A.N. 7529 (noting that since the authority of several federal agencies regarding the Outer Continental Shelf is consolidated in the deepwater port application process, NEPA requirements applicable to the authorities should also be consolidated; discussing NOAA’s interest in encouraging deepwater port construction that would "ensure adequate regard for and balancing of both onshore and offshore environmental effects;" discussing the role of NOAA’s ocean and scientific expertise in minimizing environmental hazards from port construction).
  • Hearing on Renewable Energy Opportunities and Issues on the Outer Continental Shelf before the Subcommittee on Fisheries, Wildlife, and Oceans of the H. Comm. on Natural Resources, 110th Cong. (2007) (written statement of Timothy Keeney, Deputy Assistant Secretary for Oceans and Atmosphere, NOAA) (discussing NOAA’s regulatory responsibilities under DWPA as including, among other things, assistance with mitigating potential effects on protected species and living marine resources)
  • U.S. Dep’t of Transp. Mar. Admin., Deepwater Port Licensing Program: About the Deepwater Port Act
  • U.S. Dep’t of Transp. Mar. Admin., Deepwater Ports Map

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.

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

Last updated March 5, 2020

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

Endangered Right whale and calf swimming in ocean
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.

  • Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.
  • 50 CFR Part 402.02 of the Services’ joint ESA Section 7 implementing regulations, and preamble, 51 FR 19926, 19930 (June 3 1986):  “The Service finds that, because already has jurisdiction under section 9(a)(1)(C) of the Act to regulate taking of a listed fish and wildlife species on the high seas by all persons subject to the jurisdiction of the United States, concomitant jurisdiction under section 7 is implicit from Congressional concern that compliance with a section 7 incidental take statement not result in a taking violation under section 9(a)(1)(C), as provided in Section 7(o)(2).”
  • 50 CFR §§ 17.21(c)(1) and 17.31, FWS section 9 and section 4(d) implementing regulation:  “It is unlawful to take endangered wildlife within the United States, within the territorial sea of the United States, or upon the high seas. The high seas shall be all waters seaward of the territorial sea of the United States, except waters officially recognized by the United States as the territorial sea of another country, under international law.
  • Turtle Island Restoration Network v. National Marine Fisheries Service, 340 F.3d 969 (9th Cir. 2003).  (NMFS obligated to conduct ESA section 7 consultation on its issuance of fishing permits outside the U.S. EEZ under the High Seas Fisheries Compliance Act, 16 U.S.C. §§ 5501-5509.)   
  • Ocean, Inc. v. Gutierrez, 488 F.3d 1020 (D.C. Cir. 2007), (upholding NMFS biological opinion for Atlantic pelagic longline fishery, which operates within and beyond the U.S. EEZ)

 

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:Some of these links are to external sites.

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

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:Some of these links are to external sites.

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:Some of these links are to external sites.

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:

  • Acquire and disseminate hydrographic data and provide hydrographic services;
  • Promulgate standards for hydrographic data and hydrographic services used by NOAA;
  • Ensure comprehensive geographic coverage of hydrographic services, in cooperation with other appropriate Federal agencies;
  • Maintain a national database of hydrographic data, in cooperation with other appropriate Federal agencies;
  • Provide hydrographic services in uniform, easily accessible formats; and
  • Participate in the development of, and implement for the United States in cooperation with other appropriate Federal agencies, international standards for hydrographic data and hydrographic services.

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)

Jellyfish/Nettles Act, 16 U.S.C. §§ 1201 et seq.

To address adverse effects on water-based recreation and fish and shellfish in coastal waters, the Jellyfish/Nettles Act of 1966 (Act), 16 U.S.C. §§ 1201 et seq., authorizes the Secretary of Commerce to cooperate with and provide assistance to States in controlling and eliminating jellyfish (commonly known as “sea nettles”) and other such pests (e.g., poisonous fish, sea urchins, sea worms, or toxic mollusks), and conduct research on controlling floating seaweed in such waters. 16 U.S.C. § 1201; Hearing on S.3528 and S.3744, 89th Cong., 89-81 (Sept. 28, 1966) (statement of Dr. Eugene Cronin, Director of Chesapeake Biological Laboratories).

Under the Act, the Secretary of Commerce, in cooperation with the States and the Commonwealth of Puerto Rico, may conduct studies to determine the abundance and distribution of jellyfish and other such pests in coastal waters and their effects on fish and shellfish and water-based recreation in such waters. These studies may also examine measures to control such pests and seaweed.  16 U.S.C. § 1202. Based on these studies, the Secretary, in cooperation with the States and the Commonwealth of Puerto Rice, may carry out a program to control or eliminate such pests and seaweed. Id.

Congress passed the Act with the primary aim of addressing the jellyfish problem in the Chesapeake Bay, but the Act broadly applies to the coastal waters of the United States and Commonwealth of Puerto Rico. H.R. Rep. No. 2088, p. 3 (1966); 16 U.S.C. § 1201. The term “coastal waters” is not defined in the statute, nor are there any regulations. The legislative history, however, suggests that Congress considered “coastal waters” to include “all or part of the mouth of a navigable or interstate stream or body of water, bays, sounds, lagoons, channels, estuaries, and any other water inhabited by jellyfish or other such pests.” H.R. Rep. No. 2088, p. 2 (1966).

Additional reference information:

Updated April 20, 2023

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.

Legislation Implementing the Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific, 16 U.S.C. § 7801 et seq.

The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific is implemented in the United States through Title II of the Ensuring Access to Pacific Fisheries Act (“the Act”), 16 U.S.C. § 7801 et seq. The Convention commits Members  to manage non-highly migratory species on the high seas in the South Pacific Ocean.

Under the Convention, the Commission of the South Pacific Regional Fisheries Management Organization (SPRFMO) adopts measures to ensure the long-term conservation and sustainable use of fishery resources. Convention art. 8. The Act authorizes the Commerce Department, in consultation with the State Department and the U.S. Coast Guard, to implement the Convention.  16 U.S.C. § 7804. Under the Act, the Commerce Department, in consultation with those two agencies, may develop regulations necessary to fulfill U.S. obligations under the Convention as well as issue permits and assess and collect fees from owners and operators of vessels subject to U.S. jurisdiction that operate in the Convention area.  Id. at § 7804(a)-(b).

The Act authorizes enforcement by the Commerce Department and the U.S. Coast Guard against “any person” who violates it, id. § 7805(b), and defines “person” as “any individual (whether or not a citizen or national of the United States); any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State); and any Federal, State, local, or foreign government or any entity of any such government.” Id. § 7801(9).  The Act defines the term “Convention Area” as the area to which the Convention applies, Id. § 7801(3), which in turn is defined by the Convention as “waters of the Pacific Ocean beyond areas of national jurisdiction” between Australia and South America, “bounded by the 10° parallel of north latitude and the 20° parallel of south latitude and by the 135° meridian of east longitude and the 150° meridian of west longitude.” Convention art. 5(1)-(2). The Act expressly states that implementing regulations apply to any “person or fishing vessel that is or has engaged in fishing, and fishery resources covered by the Convention.” 16 U.S.C. §7804(b)(2). The term “fishing vessel” is defined under the Act as “any vessel used or intended to be used for fishing…or any other vessel directly engaged in fishing operations.” Id. § 7801(8). Accordingly, the Act grants the U.S. regulatory and enforcement authorities over persons of any nationality and fishing vessels operating under the United States’  flag in Convention waters. Convention waters are depicted in the map below.

Illustrative Map of the SPRFMO Area

Source: SPRFMO Website

Additional reference information:

Updated 3/20/2023

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:

  • death of an individual;
  • serious injury to an individual;
  • material loss of property;
  • material damage affecting the seaworthiness or efficiency of the vessel; and
  • significant harm to the environment. 

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:

  • foreign vessels involved in a marine casualty on the navigable waters of the United States, (which in 1983 was understood to be the marginal belt of seas extending three nautical miles from shore);
  • to the extent consistent with generally recognized principles of international law, foreign vessels carrying oil in bulk as cargo, or cargo residue, involved in a marine casualty in waters subject to the jurisdiction of the United States, including the U.S. Exclusive Economic Zone;
  • a marine casualty involving a U.S. citizen on a foreign passenger vessel operating south of 75 degrees north latitude, west of 35 degrees west longitude,  and east of the International Date Line, or operating in the area south of 60 degrees south latitude that embarks or disembarks passengers in the United States or transports passengers traveling under any form of air and sea ticket package marketed in the United States;
  • foreign vessels involved in a marine casualty while operating in the area south of 60 degrees south latitude that embarks or disembarks passengers in the United States, or transports passengers traveling under any form of air and sea ticket package marketed in the United States.
  • To the extent consistent with generally recognized practices and procedures of international law, foreign vessels involved in a marine casualty or incident, as defined in the International Maritime Organization Code for the Investigation of Casualties and Incidents, Resolution MSC.255(84), where the United States is a Substantially Interested State or has the consent of the Lead Investigating State under the Code.

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:Some of these links are to external sites.

Last updated Oct. 11, 2019

The Marine Debris Act, 33 U.S.C. §§ 1951 – 1959

The purpose of the Marine Debris Act (the “Act”), 33 U.S.C. §§ 1951-1959, is to address the adverse impacts of marine debris on the “United States economy, the marine environment (including waters in the jurisdiction of the United States, the high seas, and waters in the jurisdiction of other countries), and navigation safety through the identification, determination of sources, assessment, prevention, reduction and removal of marine debris.” 33 U.S.C. § 1951. Enacted in 2006, reauthorized and amended in 2012 and 2018, and amended in 2020, the Act establishes certain processes and programs to address the adverse impacts of marine debris, including:

(1) NOAA’s Marine Debris Program, which works to address marine debris and its adverse effects and provides grants to accomplish the purpose of the Act, 33 U.S.C. § 1952;

(2) an Interagency Marine Debris Coordinating Committee (members include, among others, NOAA, EPA, Coast Guard, Navy, Department of State, and Department of the Interior), which coordinates the federal government’s marine debris efforts, 33 U.S.C. § 1954; and

(3) a Federal information clearing house, which maintains  information on marine debris projects to improve marine debris source identification, data sharing, and monitoring efforts through collaborative research and open sharing of data, 33 U.S.C. § 1955.

The Act directs NOAA’s Marine Debris Program to, among other things: identify sources of, assess, prevent, reduce, and remove marine debris; provide national and regional coordination to assist States, Indian tribes, and regional organizations in the identification, determination of sources, assessment, prevention, reduction, and removal of marine debris; undertake efforts to reduce the adverse impacts of lost and discarded fishing gear on living marine resources and navigation safety; undertake outreach and education activities; and, except for discharges of marine debris from vessels, to promote international action, as appropriate, to reduce the incidence of marine debris, including providing technical assistance, in consultation 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 Annex V of the International Convention for the Prevention of Pollution from Ships (MARPOL) and the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1905-1915; develop a plan to improve ship-board waste management; take actions to improve international cooperation to reduce marine debris; 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 or indirectly, intentionally or unintentionally, disposed of or abandoned into the marine environment or the Great Lakes.” 33 U.S.C. § 1956; see also 33 C.F.R. § 151.3000 (Coast Guard regulation defining “marine debris” in same terms as the Act); 15 C.F.R. § 909.1 (identical NOAA regulation).

The Act, as amended in 2020 by the Save Our Seas 2.0 Act, expressly provides that the term “marine environment” includes “the high seas, and waters in the jurisdiction of other countries.” 33 U.S.C. § 1951. Therefore, the Act applies beyond waters subject to the jurisdiction of the United States, and authorizes NOAA and the Coast Guard to carry out the objectives of the Act on the high seas and in waters subject to the jurisdiction of other nations. The broad geographic scope of the Act is consistent with Congressional intent manifest in the Save Our Seas 2.0 Act, which establishes the policy of the United States to partner, consult, and coordinate internationally to address marine debris, and provides direction to agencies within the U.S. government, including NOAA, to support international cooperation and expansion of U.S. involvement with the international problem of marine debris.

To the extent that the Act authorizes Coast Guard action under the Act to Prevent Pollution from Ships, 33 U.S.C. §§ 1901-1915, the relevant seaward limit of that statute applies.

Additional Reference Information:

Last updated December 11, 2023

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:

  • promote and coordinate partnerships between industry, government, and academia to research, identify, assess, and explore marine mineral resources in an environmentally responsible manner, Id. at § 1902(c)(1);
  • undertake programs to develop the basic information necessary to the long-term national interest in marine mineral resources, including seabed mapping, and ensure that data and information are accessible and widely disseminated as needed and appropriate, Id. at § 1902(c)(2);
  • identify, and promote cooperation among agency programs that are developing, technologies developed by other Federal programs that may hold promise for facilitating undersea applications related to marine mineral resources, including technologies related to vessels and other platforms, underwater vehicles, survey and mapping systems, remote power sources, data collection and transmissions systems, and various seabed research systems, Id. at § 1902(c)(3); and
  • foster communication and coordination between Federal and State agencies, universities, and private entities concerning marine mineral research on seabeds of the continental shelf, ocean basins, and arctic and cold water areas.  Id. at § 1902(c)(4). 

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

The Maritime Security and Fisheries Enforcement Act, 16 U.S.C. § 8001 et seq.

The Maritime Security and Fisheries Enforcement Act (“Maritime SAFE Act” or “the Act”, Pub. L. 116-92, codified at 16 U.S.C. § 8001 et seq.) was passed by Congress to counter illegal, unreported, and unregulated (IUU) fishing and related threats to maritime security, such as forced labor and transnational organized illegal activity.  16 U.S.C. § 8002.  The Maritime SAFE Act seeks to achieve its purposes through a whole-of-government approach.  16 U.S.C. § 8002(1).  The Act requires the U.S. government to, among other things, provide assistance to countries in priority regions to implement programs related to port security and capacity, include counter-IUU fishing requirements in new and existing international agreements, incorporate counter-IUU fishing exercises as part of the annual at-sea exercises conducted by the Department of Defense, and coordinate with international governmental or nongovernmental organizations.  16 U.S.C. §§ 8013(c), 8014(a)(1), (2), (4), (5).  The Act also establishes an Interagency Working Group on IUU fishing, consisting of 21 federal agencies, to coordinate these actions.  16 U.S.C. § 8031.

The Act aims to combat IUU fishing by providing assistance and capacity building to countries of priority regions and priority flag states.  16 U.S.C. §§ 8013, 8015, 8016, 8018.  These priority regions and flag states, which are to be the focus of U.S. assistance, are to be identified by the Interagency Working Group.  16 U.S.C. § 8032(b).  The Working Group has identified priority regions located within the waters subject to the jurisdiction of several foreign nations.  See Maritime SAFE Act Interagency Working Group on IUU Fishing, Priority Regions.  Thus, this Act is primarily focused on actions that are to be taken in regions beyond the jurisdiction of the United States.

Additional Reference Information:

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:Some of these links are to external sites.

The National Aquaculture Act of 1980 (NAA), 16 U.S.C. §§ 2801 et seq.

The National Aquaculture Act of 1980 (NAA), 16 U.S.C. §§ 2801 et seq., declares a national aquaculture policy, establishes and implements a national aquaculture development plan, and encourages private and public aquaculture activities and programs. 16 U.S.C. § 2801(b). 

Under the NAA, the national aquaculture development plan must: (1) identify aquatic species with significant potential for culturing on a commercial or other basis; (2) recommend actions to be taken by the public and private sectors to develop aquaculture; (3) address, after taking into account the status of aquaculture regarding the aquatic species concerned, aspects of aquaculture, including facility design and operation, water quality management, use of waste products, nutrition, economical feeds, life history, genetics, processing and market development, quality control, and seed stock development; (4) include, where appropriate, research programs on the effect of aquaculture on estuarine and other water areas and on the management of such areas for aquaculture; (5) include, where appropriate, programs to analyze and formulate proposed resolutions of legal and regulatory constraints that may affect aquaculture; and (6) include such other research, development, technical assistance, demonstration, extension education, and training programs as deemed necessary by the Secretary of Agriculture to carry out the NAA. 16 U.S.C. § 2803(b).  The National Aquaculture Development Plan was completed in 1983 and is currently being updated. See 87 FR 12074 (March 3, 2022). 

The NAA creates within the White House Office of Science and Technology Policy an interagency aquaculture coordinating group (now known as the Subcommittee on Aquaculture) to coordinate the various federal agencies that have aquaculture programs and policies, and to improve the overall effectiveness and productivity of these programs. 16 U.S.C. § 2805(a). The Secretary of Agriculture chairs this Subcommittee and the U.S. Department of Agriculture is the lead agency for the coordination and dissemination of national aquaculture information. 16 U.S.C. § 2801(b). 

The Act is silent on its geographic scope, but its legislative history indicates that Congress contemplated that the Act would apply to aquaculture activities that occurred anywhere within the United States, including in both marine and freshwater environments, and that the extension of U.S. fishery jurisdiction out to 200 nautical miles from shore would increase the potential for aquaculture in this area. H. R. Rep. 96-198(I) (May 15, 1979). The documents prepared by the Subcommittee on Aquaculture indicate that it examined existing and potential aquaculture activities anywhere they are currently occurring or may occur within the jurisdiction of the United States, including in State or federally-regulated streams, coastal lands and waters, offshore federally regulated waters, and land-based closed-containment systems. See, e.g., Subcommittee on Aquaculture, A National Strategic Plan for Aquaculture Research (2022). 

Additional reference information: 

Updated June 23, 2023

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:Some of these links are to external sites.

  •  Statute, Regulations, and Executive Orders
    • National Environmental Policy Act, 42 U.S.C. § 4321-4347
    • Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, 44 Fed. Reg. 1957 (Jan. 9, 1979) (requires federal agencies to publish procedures for assessing the impacts of federal actions in the global commons and foreign nations. The requirements are not as rigorous as those under NEPA and there is less opportunity for public comment. The Executive Order was issued "in furtherance of NEPA" but is independent of NEPA and creates no cause of action)
    • Executive Order 12088, Federal Compliance with Pollution Control Standards, 43 Fed. Reg. 47707 (Oct. 17, 1978 ) (providing in Section 1-801 that “The head of each Executive agency that is responsible for the construction or operation of Federal facilities outside the United States shall ensure that such construction or operation complies with the environmental pollution control standards of general applicability in the host country or jurisdiction.”)
    • Executive Order 13141, Environmental Review of Trade Agreements (November 16, 1999)
    • CEQ Regulations for Implementing NEPA, 40 C.F.R 1500-1508
    • U.S. Department of State, Regulations for Implementation of NEPA, 22 CFR Part 161

 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 authorizes 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: 

National Fishing Enhancement Act, 33 U.S.C. 2101 et seq.
U.S. Army Corps of Engineers

NOAA

Department of the Interior

 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, 54 U.S.C. §§ 300101, et seq.

The National Historic Preservation Act (NHPA) sets forth the Federal Government’s policy for the preservation of historic property. 54 U.S.C. § 300101. The NHPA requires the head of any federal agency having direct or indirect jurisdiction over a proposed federal or federally assisted undertaking in any state and the head of any federal department or independent agency having authority to license any undertaking, prior to the approval of the expenditure of any federal funds on the undertaking or prior to the issuance of any license, to take into account the effects of the undertaking on any historic property and afford the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to the undertaking. 54 U.S.C. § 306108 (formerly Section 106).

An “undertaking” under the NHPA is defined as “a project, activity, or program funded in whole or in part under the direct or indirect jurisdiction of a Federal agency.” 54 U.S.C. § 300320. Projects, activities, and programs include:

  1. those carried out by or on behalf of the Federal agency;
  2. those carried out with Federal financial assistance;
  3. those requiring a Federal permit, license, or approval; and
  4. those subject to state or local regulation administered pursuant to a delegation or approval by a Federal agency.

Id.

Historic property under the NHPA is defined as any prehistoric or historic district, site, building, structure, or object included on, or eligible for inclusion on, the National Register of Historic Places because the property is significant at the national, state, or local level in American history, architecture, archeology, engineering, or culture. 54 U.S.C. §§ 300308, 302101; see also 36 C.F.R. § 60.4.

Under 54 U.S.C. §§ 306101- 306114 (formerly Section 110), federal agencies must establish historic preservation programs to survey and identify historic properties and nominate them for listing on the National Register of Historic Places. Section 306101(a)(1) requires the head of each federal agency to assume responsibility for the preservation of historic property that is owned or controlled by the agency. The Secretary of the Interior has promulgated standards and guidelines for federal agency responsibilities. See 63 Fed. Reg. 20496 (April 24, 1998).

The seaward limit of 54 U.S.C. § 306108 (formerly Section 106) depends on whether the undertaking in question is assisted and carried out by or on behalf of a federal agency, or requires a federal license, permit, or approval. 

  • Undertakings Assisted and Carried Out By or On Behalf of a Federal Agency

For this type of undertaking, Section 106 does not apply to a location that is not included within the NHPA’s definition of “State.” The NHPA defines “State” to mean: “(1) a State, the District of Columbia, Puerto Rico, Guam, American Samoa, the Virgin Islands, and the Northern Mariana Islands; and (2) the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau.” 54 U.S.C. § 306317. Under the Submerged Lands Act, the seaward boundary of each state with a shoreline is three geographic (or nautical) miles from the shoreline; in the Gulf of Mexico, the seaward boundary is three marine leagues (or nine nautical miles) from the shoreline. 43 U.S.C §§ 1301-1315.  Under the Territorial Submerged Lands Act, the seaward boundary of Guam, the Northern Mariana Islands, the Virgin Islands, and American Samoa is three geographic (or nautical) miles from the shoreline. 48 U.S.C. § 1705. Thus, the seaward limit of this type of Section 106 undertaking is three nautical miles from the shoreline, except in the Gulf of Mexico where it is nine nautical miles from the shoreline.

  • Undertakings Requiring a Federal License, Permit, or Approval

For this type of undertaking which is not subject to the limitation that it take place within a “State”, what was formerly Section 106 applies wherever a federal agency has jurisdiction to license, permit, or approve the undertaking. Thus, it is the seaward limit of the underlying statute giving a federal agency jurisdiction over an undertaking that sets the seaward limit of Section 106.  An example of this type of undertaking is the construction of an offshore pipeline over which the Department of the Interior exercises jurisdiction under the Outer Continental Shelf Lands Act. See, e.g., Am. Home Assur. Co. v. Oceaneering Int'l, Inc., No. CIV. A. H-06-2105, 2008 WL 2169411 (S.D. Tex. May 22, 2008)(unreported). Citing NHPA Section 106, the district court in this case observed that, “Under federal law, [the U.S. Department of the Interior’s Minerals Management Service] has a right and a duty to ensure that the activities it oversees -- including the construction of pipelines in certain extraterritorial waters -- do not adversely affect archeological resources and significant historical properties.” Id. at 7. The facts involved an 18th century shipwreck in the Gulf of Mexico 35 miles from shore. The shipwreck was damaged by a Remotely Operated Vehicle (ROV) being used to inspect the site. Id. at *3.

Over 90,000 properties are listed on the National Register, including almost 600 historic vessels and shipwrecks. (See Table -  Shipwrecks by Maritime Zones for a list of historic shipwrecks with information on the date of sinking, the date of listing on the National Register, and the maritime zone in which the shiopwreck is located). 

A separate provision of the NHPA (formerly Section 402), requires that federal agencies, prior to approving an undertaking outside the United States that may directly and adversely affect property on the World Heritage List or on the applicable foreign country’s equivalent of the National Register, take into account the effect of the undertaking on the property for the purposes of avoiding or mitigating any adverse effects. 54 U.S.C. § 307101(e). When Section 307101(e) is triggered, the NHPA delegates to federal agencies the decision as to whom to consult and the manner in which that consultation occurs. Ctr. for Biological Diversity v. Esper, 958 F.3d 895, 906 (9th Cir. 2020).

The seminal case interpreting Section 402 is the Dugong case. In that case, the plaintiffs filed an action under the APA alleging that the Defense Department failed to take into account the adverse effects on the Okinawa dugong of a proposed new military base in violation of Section 402 of the NHPA. Ctr. for Biological Diversity v. Esper, 958 F.3d at 901. The Ninth Circuit determined that Section 402 requires reasonable consultation with outside entities to determine how an undertaking may impact a protected property and what may be done to avoid or mitigate any adverse effect. Id. at 906. The district court previously had held that the Okinawa dugong was protected under Japan’s equivalent of the National Register. Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008). In 2008, the Defense Department conceded that the project was a federal “undertaking” and the district court found that the construction and operation of the military facility in that area could have potential adverse effects on the dugong. Id. After many years of litigation, the Ninth Circuit held that the Defense Department followed the Section 402 requirements and had rationally concluded that there would be no adverse effects on the dugong from the construction or the operation of the new base. Ctr. for Biological Diversity v. Esper, 958 F.3d at 913.

Additional Reference Information:

  • The National Historic Preservation Act, 54 U.S.C. §§ 300101, et seq.
  • National Park Service, History of the National Historic Preservation Act
  • Protection and Enhancement of the Cultural Environment, Exec. Order 11593 (May 13, 1971) (mandating that Federal agencies administer the cultural properties under their control in a spirit of stewardship and trusteeship for future generations)
  • Advisory Council on Historic Preservation Regulations, 36 CFR Part 800
  • Department of the Interior Office of Solicitor Opinion M-36928 (Nov. 24, 1980), Clarification of Authorities and Responsibilities for Identifying and Protecting Cultural Resources on the Outer Continental Shelf
  • The Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act, 63 Fed. Reg. 20496 (April 24, 1998) (discussing the implications of Section 402 when carrying out work that could impact foreign historic properties and connecting the implementation of Section 402 to Executive Order 12114)
  • The National Marine Sanctuary Program Regulations state that “the same degree of regulatory protection and preservation planning policy extended to historical resources on land shall be extended, to the extent practicable, to historical resources in the marine environment within the boundaries of designated National Marine Sanctuaries.” 15 C.F.R. § 922.2(d).
  • Department of the Interior Regulation that requires an offshore oil and gas lessee to notify the Department of any marine archaeological resource discovered and halt any operations within the area of discovery. 30 CFR § 250.1010.
  • Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008) (holding that the NHPA applies extraterritorially through section 402 and therefore requires the Department of Defense to consider the impacts of a proposed facility on the dugong, a species of large marine mammal related to manatees)
  • Ctr. for Biological Diversity v. Esper, 958 F.3d 895 (9th Cir. 2020) (holding that the Defense Department's process for complying with the NHPA requirement that federal agencies take into account the effects of a proposed action on foreign property was reasonable. The Court determined that the Section 402 process must include: (1) identification of protected property, (2) generation, collection, consideration, and weighing of information pertaining to how the undertaking will affect the protected property, (3) a determination as to whether there will be adverse effects or no adverse effects on the protected property, and (4) if necessary, development and evaluation of alternatives or modifications to the undertaking that could avoid or mitigate the adverse effects on the protected property)

Last updated 6/1/2023

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

Colorful fish swimming through coral reefs
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.

  • National Marine Sanctuaries Act, 16 U.S.C. §§ 1431 et seq.
  • NOAA’s NMSA Implementing Regulations,15 CFR Part 922
  • M/V Med Taipei Incident: On February 24, 2004, fifteen intermodal steel cargo containers fell overboard from a foreign-flagged contained vessel, the M/V Med Taipei, as it transited through Monterey Bay National Marine Sanctuary (MBNMS). Computer simulations projected that the containers were deposited from nine to 30 miles offshore. The potential impact of the lost containers on natural resources in MBNMS included, among other things, crushing and smothering of benthic organisms, the introduction of foreign habitat structure, and shifts in local ecology. In 2006, the shipping company agreed topay MBNMS $3.25 million to restore habitat within the sanctuary.
  • In the Matter of: Tsangeos Panagiotis Seagroup, Inc. Elmini Laurel, Respondents, Docket Nos. 755-051, 755-052, 755-053, 5 O.R.W. 392, 1988 WL 248037 (Nov. 17, 1988) (Administrative Law Judge decision and $25,000 civil penalty assessment against owner and operator of a Greek flagged vessel that struck and damaged a coral reef in Key Largo National Marine Sanctuary located beyond the U.S. territorial sea), order denying discretionary review, 5 O.R.W. 475, 1989 WL 265333 (March 15, 1989) (NOAA Administrator William E. Evans affirming Administrative Law Judge decision and explicitly rejecting respondent’s arguments that: (i) the NMSA cannot be applied to foreign vessels or citizens on the basis of customary international law alone, and (ii) that there is no recognized basis for protecting coral against foreign vessels beyond the U.S. territorial sea)
  • U.S. Government’s Closing Argument and Proposed Findings of Fact in Tsangeos Panagiotis Seagroup case (May 27, 1988)
  • M/V Wellwood Grounding: On August 4, 1984, West German-managed, Cypriot-registered, British-captained 400-foot freighter M/V Wellwood ran aground on Molasses Reef within the Florida Keys National Marine Sanctuary, which was then part of the Key Largo National Marine Sanctuary. Due to complications with removal, the ship remained on the reef for 12 days. The total destruction from the grounding included 5,805 square meters of living corals and injury to 75,000 square meters of reef habitat. On August 10, 1984, an in rem action was filed in U.S. District Court for the Southern District of Florida pursuant to NMSA section 302(a), 16 U.S.C. 1432(a), and the vessel was arrested when it voluntarily entered the U.S. territorial sea.  The grounding area was closed to anchoring on January 4, 1985. The dispute was settled on December 12, 1986.  The owners paid $6,270,000 over 15 years. The site underwent restoration in 2002.

 Last updated April 6, 2020

National Sea Grant College Program Act, 33 U.S.C. § 1121 et seq.

The National Sea Grant College Program Act (“the Act”) was enacted with the objective to increase the understanding, assessment, development, management, utilization, and conservation of the Nation’s ocean, coastal, and Great Lakes resources. 33 U.S. Code § 1121(b). In order to fulfill its objective, the Act provides for promoting integrated research, education, training, and extension services and activities in fields related to ocean, coastal, and Great Lakes resources.  33 U.S. Code § 1121(c). The Act establishes the National Sea Grant Program, which is administered by NOAA, and partners with state universities and institutions to create programs across the nation. 33 U.S. Code § 1123(A). As of 2017, there are 33 Sea Grant programs at universities in US states and territories. See Sea Grant Programs

The National Sea Grant Program provides financial assistance and support for national and international projects conducted within sea grant programs, administration of sea grant programs, regional and national investments in fields developed in consultation with the National Sea Grant Board, and fellowships. 33 U.S. Code § 1123(b). The Dean John A. Knauss Marine Policy Fellowship is awarded to individuals with a graduate-level education in fields related to ocean, coastal and Great Lakes resources. These individuals are placed in 1 year positions with the executive and legislative branches of the United States Government. 33 U.S. Code § 1127.

The Act applies to projects within the “ocean, coastal, and Great Lakes resources.” The geographic scope includes internal waters (particularly the Great Lakes and Lake Champlain), the coastal zone, the territorial sea, the exclusive economic zone, the Outer Continental Shelf, and the high seas. 33 U.S.C. § 1122(7). The Act also enables the National Sea Grant College Program to provide funding for international projects conducted in the high seas and foreign territory through its programs, and coordination with other agencies and international partners. 33 U.S.C. 1123(b)(1).

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

Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. §§ 3001-3013

Enacted in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) provides for the disposition to affiliated lineal descendants, Indian tribes, and Native Hawaiian organizations of Native American cultural items removed from Federal or tribal lands after November 16, 1990, and for the repatriation or transfer of control to these parties of such items in holdings or collections of federal agencies and federally funded institutions NAGPRA also establishes procedures for addressing the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands. After November 16, 1990, the intentional excavation or removal of cultural items from federal lands may occur only after consultation with the appropriate (if any) Indian tribe or Native Hawaiian organization has been demonstrated, and in the case of tribal land, only after the consent of the tribe or organization has been obtained. Furthermore, such excavation or removal is governed by the permitting requirements under the Archaeological Resources Protection Act, 16 U.S.C. § 470aa-mm. An additional section of NAGPRA (codified at 18 U.S.C. 1170) criminalizes the knowing use for profit of Native American human remains without the right of possession, regardless of their provenience, along with the knowing use for profit of any NAGPRA-protected cultural item obtained in violation of the Act.

Indian tribes are defined as tribes, groups or communities recognized as eligible for special programs and services provided by the United States because of their status as Indians. Native Hawaiian organizations are defined as organizations that serve and represent the interests of Native Hawaiians, have as a primary and stated purpose the provision of services to Native Hawaiians, and have expertise in Native Hawaiian affairs. Native American cultural items are defined as human remains, funerary objects, sacred objects and objects of cultural patrimony. Under NAGPRA, Federal agencies and federally funded institutions having holdings or collections of cultural items must work with affiliated or potentially affiliated parties to determine the parties’ interest in the items. Upon a satisfactory request, these agencies and institutions must transfer control of the items to the requesting affiliated party.

Under NAGPRA, federal lands are defined as any land owned or controlled by the United States government other than tribal lands. Implementing regulations define lands “controlled” by the United States as lands not owned by the government, but lands in which the United States has “a legal interest sufficient to permit it to apply those regulations without abrogating the otherwise existing legal rights of a person.” 43 C.F.R. § 10.2(f)(1). The legal interest of the United States in the Outer Continental Shelf (OCS) is sufficient to trigger the application of NAGPRA. Section 5 of the Outer Continental Shelf Lands Act (OCSLA) gives the United States jurisdiction, control, and power of disposition over the subsoil and seabed of the OCS. 43 U.S.C. § 1331 et. seq. This authority to exercise control over the OCS has been interpreted as constituting a legal interest in the OCS by the United States. Furthermore, the meaning of “lands controlled by the United States” in NAGPRA is consistent with the meaning given by the Department of Justice to the same term appearing in the Antiquities Act, 16 U.S.C. 431-433. In an opinion by the Office of Legal Counsel, the United States had jurisdictional authority under the Antiquities Act to establish a National Monument on the OCS and within the Exclusive Economic Zone, in the area of the Northwestern Hawaiian Islands. Reasoning by analogy, the United States thus has jurisdictional authority to apply NAGPRA in the OCS, too.

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

Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA), as Amended by National Invasive Species Act of 1996 (NISA), 16 U.S.C. §§ 4701-4751

The Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), as amended by the National Invasive Species Act (NISA), contains regulations intended to minimize and eliminate the introduction of aquatic invasive species, including regulations of ship ballast water disposal and exchanges. (16 U.S.C. § 4701(b)). The jurisdiction of NANPCA was originally limited to those ships entering the Great Lakes and the Hudson River after operating on waters beyond the Exclusive Economic Zone (EEZ), but the NISA amendments broadened the jurisdiction to all ships entering all waters of the United States after operating beyond the U.S. EEZ. The Act is therefore is chiefly concerned with and applies to areas beyond the EEZ, depending on if the vessel is headed to a U.S. port, and depending on how it has treated its ballast water (e.g., exchanging the water beyond the U.S. EEZ, or retaining the ballast water completely).

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

Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C.A. §§ 5601-5612

The Northwest Atlantic Fisheries Convention Act of 1995 (“the Act”), 16 U.S.C.A. §§ 5601-5612, was enacted to implement the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries.  The Convention established the Northwest Atlantic Fisheries Organization (NAFO), which is charged with coordinating the scientific study and cooperative management of most of the fisheries resources in waters of Northwest Atlantic Ocean beyond national jurisdiction, excluding salmon, tuna, and sedentary species of the Continental Shelf. See NAFO Convention Area Map.  Currently, NAFO has 12 contracting parties from North America, Europe, Asia, and the Caribbean.   
The Act was amended in 2016, following NAFO’s development of the Amendment to the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (“Amendment”) in 2007.  See Ensuring Access to Pacific Fisheries Act, Pub. L. No. 114-327, Title V (Dec. 16, 2016).  The 2007 Amendment, and the associated implementing legislation, was intended to modernize the Convention by bringing it in line with modern international fisheries governance, including revisions to decision-making and objection rules and a new comprehensive dispute settlement procedure.  Letter of Transmittal from the President of the United States (April 22, 2013).  The Amendment came into force on May 18, 2017, following ratification by three-fourths of contracting parties to the Convention.  See NAFO, Recent History.
The Act, as amended, authorizes the Secretary to promulgate regulations as necessary to carry out the purposes of objectives of the Convention and the Act.  16 U.S.C. § 5605; see also NAFO Conservation & Enforcement Measures.  Regulations may be “applicable, as necessary to all persons and all vessels subject to the jurisdiction of the United States, wherever located.”  16 U.S.C. § 5605.  The Act prohibits U.S. persons and vessels from engaging in certain activities and provides for civil and criminal penalties, as well as civil forfeitures, for engaging in these prohibited activities. 16 U.S.C. § 5606.   All of the Act’s prohibitions apply to “any person or vessel that is subject to the jurisdiction of the United States.” 16 U.S.C. § 5606(a).  NMFS currently requires all U.S. vessels fishing in the NAFO Regulatory Area to obtain a permit under the High Seas Fishing Compliance Act, in accordance with permitting requirements codified at 50 C.F.R. Pt. 300.  See 83 Fed. Reg. 60400 (Nov. 26, 2018).  NMFS publishes annual notices in the Federal Register alerting U.S. fishers of fishing opportunities within the NAFO regulatory area, and to outline the process and requirements for vessels to participate in the NAFO fishery.  E.g., 83 Fed. Reg. 60400 (Nov. 26, 2018). 

Additional Reference Information:

                                                                                                                                    Last updated February 5, 2019

The Northern Pacific Halibut Act of 1982, 16 U.S.C. §§ 773–773k

The Northern Pacific Halibut Act of 1982 (the Halibut Act) implements the Convention between the United States and Canada for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea, signed at Ottawa, Canada on March 2, 1953, as amended by the Protocol Amending the Convention, signed at Washington March 29, 1979 (the Convention). The Convention governs halibut fishing in “Convention waters,” defined as “the waters off the west coasts of Canada and the United States, including the southern as well as the western coasts of Alaska, within the respective maritime areas in which either Party exercises exclusive fisheries jurisdiction. For purposes of this Convention, the ‘maritime area’ in which a Party exercises fisheries jurisdiction includes without distinction areas within and seaward of the territorial sea or internal waters of that Party.” Convention waters are depicted in the map below.

Under the Convention, the International Pacific Halibut Commission (IPHC) recommends regulations designed to develop the stocks of halibut to those levels that will permit the optimum yield from the Northern Pacific halibut fishery and to maintain those stocks at those levels. Convention art. III. The Halibut Act specifies how U.S. Commissioners who will represent the U.S. on the IPHC are appointed or designated and grants the authority to carry out the Convention. 16 U.S.C. §§ 773–773c. This authority includes the U.S. Secretary of State accepting or rejecting IPHC recommendations and the U.S. Secretary of Commerce adopting regulations to achieve the purposes and objectives of the Convention. Id. §§ 773b–773c. In addition, regional fishery management councils with authority over U.S. portions of Convention waters may develop regulations which are in addition to and not in conflict with measures adopted by the IPHC. Id. § 773c(c). The Halibut Act also includes civil and criminal penalties for violations of the statute, the Convention, or associated regulations. Id. §§ 773e–773i.

The Halibut Act expressly applies to any person subject to the jurisdiction of the U.S. who violates any provision of the Convention. 16 U.S.C. § 773e(1)(A).  Because the IPHC regulates halibut fishing off the west coasts of both the U.S. and Canada, the Halibut Act applies in waters beyond those subject to the jurisdiction of the United States. The IPHC specifically grants the U.S. authority to enforce the Convention and associated regulations against U.S. nationals and vessels in Convention waters off Canada. Convention art. II. Thus, as far as halibut fishing is concerned, the seaward limit of the Halibut Act is the limit of those portions of the U.S. and Canadian EEZs within Convention waters. The Halibut Act also prohibits the shipment, transport, sale, purchase, import, export, custody, control, or possession of any fish taken or retained in violation of the IPHC. Id.§ 773e (1) (E). Therefore, the Halibut Act could potentially apply anywhere in the world to a person subject to the jurisdiction of the U.S. who traffics in illegally harvested Pacific halibut.
 

Though the Convention grants such authority, as a matter of policy, the U.S. Coast Guard does not patrol Convention waters in Canada to conduct enforcement activities. However, Canadian authorities could refer alleged violations to U.S. authorities for enforcement.

Convention Waters (IPHC Regulatory Areas)
Last Updated 10/13/21

Convention Waters Map - IPHC Regulatory Areas

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

 Last updated May 10, 2019

Ocean and Coastal Mapping Integration Act, 33 USC §§ 3501-3507

The purpose of the Ocean and Coastal Mapping Integration Act (OCMIA), 33 USC §§ 3501-3507, (hereinafter the “Act”) is to:

“[D]evelop a coordinated and comprehensive Federal ocean and coastal mapping plan for the Great Lakes and coastal state waters, the territorial sea, the exclusive economic zone, and the continental shelf of the United States that enhances ecosystem approaches in decision-making for conservation and management of marine resources and habitats, establishes research and mapping priorities, supports the siting of research and other platforms, and advances ocean and coastal science.”

33 USC § 3501(a).

The Act mandates that this purpose is to be carried out by the President in coordination with the Interagency Committee on Ocean and Coastal Mapping of which the Department of Commerce acting through NOAA is the designated co-chair.  33 USC § 3501(a), (b), § 3502(b), (c).

The Act defines “ocean and coastal mapping” to mean “the acquisition, processing, and management of physical, biological, geological, chemical, and archaeological characteristics and boundaries of ocean and coastal areas, resources, and sea beds through the use of acoustics, satellites, aerial photogrammetry, light and imaging, direct sampling, and other mapping technologies.”  33 U.S.C. 3507(5).

By its terms, the seaward limit of the Act is the outer limit of the U.S. Exclusive Economic Zone and continental shelf, both of which the Act defines consistent with international law. 33 U.S.C. 3507(4), (8). Thus, the Act applies landward of those outer limits and includes the U.S. territorial sea, coastal state waters, and the Great Lakes. 33 USC § 3501(a).

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

 Last updated July 2, 2020

Ocean Dumping Act (ODA)(Title I of the MPRSA), 33 U.S.C. §§ 1401 et seq

Ship releasing exhaust over ocean
Ship exhaust (EPA Photo Library)

Title I of the Marine Protection, Research, and Sanctuaries Act of 1972, sometimes referred to as the Ocean Dumping Act (ODA), prohibits the dumping of material into the ocean that would unreasonably degrade or endanger human health or the marine environment.  33 U.S.C. § 1411(a); 33 U.S.C.§ 1401.  Except as authorized by permit, (1) no person shall transport from the United States, and, (2) in the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States department, agency, or instrumentality, no person shall transport from any location, any material for the purpose of dumping it into ocean waters.  “Ocean waters” are defined as “those waters of the open seas lying seaward of the baseline from which the territorial sea is measured” (i.e., the ordinary low water mark).  33 U.S.C. § 1402(b).  “Matter” is broadly defined to as “matter of any kind or description….”  33 U.S.C. § 1402(c).  “Person” is defined as “any private person or entity, or any officer, employee, agent, department, agency, or instrumentality of the Federal Government, or of any State or local unit of government, or of any foreign government.”   33 U.S.C. § 1402(e).  The permitting program is administered by the U.S. Environmental Protection Agency except for dredged material, which is administered by the U.S. Army Corps of Engineers using EPA’s criteria and subject to EPA's concurrence.

A MPRSA permit would be needed by:

  • Anyone transporting material from the United States for the purpose of dumping it into ocean waters.

  • Anyone in a vessel or aircraft registered in the United States or flying the United States flag transporting material from any location for the purpose of dumping it into ocean waters.

  • Any United States department, agency or instrumentality transporting material from any location for the purpose of dumping it into ocean waters.

  • Any other person dumping material transported from a location outside the United States into the territorial sea of the United States, or into a zone contiguous to the territorial sea of the United States, to the extent that it may affect the territorial sea or the territory of the United States.

The ODA extends to dumping in all the world’s oceans so long as the material is either transported from the United States, or is transported by a vessel or aircraft registered in or flying the flag of the United States. 33 U.S.C. § 1411(a).  If material is transported from a location outside of the United States by a foreign-flagged vessel, the MPRSA applies to its dumping if it the dumping occurs within the U.S. territorial sea and the contiguous zone (extending 12 nautical miles seaward from the baseline) to the extent the dumping may affect the territorial sea or territory of the United States. 33 U.S.C. § 1411(b).

In 1988, the dumping of toxic ash from an incinerator in Philadelphia, Pennsylvania, into the Indian Ocean by the vessel Khian Sea led to the conviction of the Vice-President of Coastal Carriers Corporation, the operator of the Khian Sea.  Even though the ship was registered in Liberia, the fact that the ash was transported from the United States established MPRSA jurisdiction.  United States v. Reilly, 33 F.3d 1396, 1402-03 (3d Cir. 1994).

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

 Last updated January 30, 2018

Ocean Exploration Act, 33 U.S.C. §§ 3401–3406

The Congress passed the Ocean Exploration Act in 2009 to establish by law the national ocean exploration program and the national undersea research program within NOAA. 33 U.S.C. § 3401. In its summary of the bill that eventually became the Act , the Senate Committee on Commerce, Science, and Transportation cited 25 years of work by NOAA’s National Undersea Research Program (NURP) and newer Office of Ocean Exploration and Research (OER), reporting that previous ocean exploration had been held back by a “narrow focus” and “limited financial and other support.” S. REP. 110-39 at 2, (2007). The Senate committee quoted the findings of the President’s Panel on Ocean Exploration (2000), which recommended deploying marine assets “around the world,” “exploring the global ocean,” and diving at archaeological sites in the Red Sea and the Mediterranean. It also quoted the Final Report of the U.S. Commission on Ocean Policy (2004), which recommended “a global U.S. ocean exploration effort” led by NOAA and the National Science Foundation. A summary from the Congressional Budget Office stated that “[t]he purposes of the program would be to explore the physical, biological, geological, archaeological, and other characteristics of the world’s oceans.” S. REP. 108-400 at 3, (2004).

The Act directs the NOAA Administrator, in consultation with the National Science Foundation and other appropriate Federal agencies, to establish a coordinated national ocean exploration program “that promotes collaboration with other Federal ocean and undersea research and exploration programs.” 33 U.S.C. § 3402. The Act also directs NOAA to “seek to facilitate coordination of data and information management systems, outreach and education programs to improve public understanding of ocean and coastal resources, and development and transfer of technologies to facilitate ocean and undersea research and exploration.” 33 U.S.C. § 3402.

Under the Act, the NOAA Administrator must conduct and coordinate exploration and research of “little known areas of the marine environment,” prioritizing “deep ocean regions and deep water marine ecosystems with potential for important scientific discoveries.” 33 U.S.C. § 3403. The Act also mandates the creation of an expert Ocean Exploration Advisory Board to assist the NOAA Administrator in setting priorities; developing five-year strategic plans for ocean, marine and Great Lakes science, exploration and discovery; and monitoring and evaluating the proposal review process. 33 U.S.C. § 3404.

The Ocean Exploration Act authorizes research and exploration activities throughout the global marine environment, including on the high seas and the seabed beyond national jurisdiction. To be read as authorizing research and exploration activities outside the United States, the Act must overcome the presumption against extraterritorial applicability. See, RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 2100 (2016). The necessary “clearly expressed” intent of Congress is present in the Act’s instructions to prioritize “little known areas of the marine environment” and “deep ocean regions.” 33 U.S.C. § 3403. “Deep ocean” typically describes water more than 200 meters deep, beyond the continental shelf, where light becomes scarce. The 200-meter delineation has also been used by the International Hydrographic Organization. IHO Standards for Hydrographic Surveys, 4th Ed., at 18 (1998).  It can be traced back at least as far as the 1969 Stratton Commission Report. 115 Cong. Rec. Sen. 880 (Jan. 15, 1969). The Act’s use of “deep ocean” is consistent with earlier laws authorizing activities on the high seas and in the deep seabed beyond the continental shelf. 30 U.S.C. § 1901, 33 U.S.C. § 3203, 16 U.S.C. § 450rr., 30 U.S.C. § 1419. The interpretation of the Act as global in scope is also consistent with the Senate Commerce Committee and Budget Office reports cited above, with the scientific panels quoted within, and with past and current NOAA research activities. See, e.g., “Dive In To Ocean Exploration,” White House Blog, (July 16, 2013).

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

Updated July 14, 2020

Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. §§ 9101 et seq

The Ocean Thermal Energy Conversion Act of 1980 (OTEC), establishes a legal regime administered by NOAA to authorize and encourage the development of ocean thermal energy conversion, a technology that makes use of the temperature difference between surface and deep ocean waters to drive a heat engine and generate electricity. The Act also provides for the protection of the marine and coastal environment to prevent or minimize any adverse impact which might occur as a consequence of activities authorized under OTEC.

An OTEC unit can be mounted on a platform that is either fixed or moored to the ocean floor, in which case it is called a "facility." An OTEC unit can also be located on a vessel, in which case it is called a plantship. Under OTEC, no person or entity without a license issued by NOAA may construct, locate, own or operate an OTEC facility that is: (i) documented under the laws of the U.S., (ii) located in whole or in part between the high water mark and the seaward boundary of the 12 nm territorial sea, or (iii) connected by pipeline or cable to the United States. 42 U.S.C. § 9111(a). The Act also bars any citizen of the U.S. from operating an OTEC plantship wherever located except in accordance with a license issued by NOAA under the Act or pursuant to the laws of a foreign nation whose licenses are found by NOAA to be compatible with U.S. OTEC licenses. Id. The Act broadly defines "person" to mean "any individual (whether or not a citizen of the United States), any corporation, partnership, association, or other entity organized or existing under the laws of any nation, any Federal, State, local or foreign government or any entity of such government." 42 U.S.C. § 9102(14).

OTEC does not apply to facilities which the Secretary of Energy has designated demonstration projects for the development of alternative energy sources. 42 U.S.C. § 9126(b). See generally 42 U.S.C. §§ 9001-9009 (Ocean Thermal Energy Conversion Research and Development Act). OTEC also does not apply to test platforms that will not operate as OTEC facilities or plantships after the testing period. 42 U.S.C. § 9126(a).

In 1996, NOAA rescinded the OTEC regulations it had promulgated in 1981 because it had received no applications for the development of OTEC facilities in that 15-year period. In 1995, the U.S. Coast Guard removed regulations pertaining to OTEC plantships it had promulgated under 42 U.S.C. § 9118 for essentially the same reason. With interest in OTEC increasing, NOAA is rebuilding its OTEC licensing capacity.

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

Oil Pollution Act of 1990 (OPA), 33 U.S.C. §§ 2701 et seq.

The Oil Pollution Act of 1990 (OPA) was passed in the wake of the 1989 Exxon Valdez oil spill in Prince William Sound and was amended by the Foreign Spill Protection Act of 2017.  It is the principal statute governing oil spills in the nation’s waterways. OPA establishes liability and limitations on liability for parties responsible for damages resulting from oil discharge, or the substantial threat of discharge, “into or upon the navigable waters or adjoining shorelines or the exclusive economic zone” of the U.S., requires oil storage facilities and vessels to submit to the federal government plans detailing how they will respond to large discharges, and sets up an Oil Spill Liability Trust Fund to pay compensation when a responsible party fails to do so. 

While the statute’s primary purpose is to protect waters under U.S. jurisdiction (within 200 nm EEZ/continental shelf), OPA expressly addresses (1) the liability of facilities located seaward of waters under U.S. jurisdiction, for damages to areas under U.S. jurisdiction, and (2) liability of certain facilities or vessels operating under U.S. jurisdiction for damages occurring in a foreign maritime zone.  The Foreign Spill Protection Act of 2017 expanded the definition of “responsible party” to include foreign facilities “within the territorial sea or continental shelf of a foreign country” and “other facilit[ies] located seaward of the exclusive economic zone.” 33 U.S.C. §§ 2701, 2707.  Therefore, OPA liability extends to facilities on the high seas, and the EEZ, Continental Shelf, and territorial seas of foreign countries.  Liability under OPA is generally limited to damages occurring in waters under U.S. jurisdiction (including the U.S. EEZ and Continental Shelf); however, foreign claimants may in certain instances seek recovery for damages occurring in their maritime zones.  33 U.S.C.A. § 2707.  Foreign claimants may make an OPA claim for removal  costs and damages resulting from a discharge or substantial threat of discharge of oil in or on the territorial sea, internal waters, or adjacent shoreline of a foreign country, if damage was caused by a discharge of oil from (1) an U.S. Outer Continental Shelf facility or a deepwater port; (2) a vessel in U.S. waters; (3) a vessel carrying oil as cargo between two places in the U.S.; or (4) a tanker that received oil at the terminal of the pipeline constructed under the Trans-Alaska Pipeline Authorization Act (43 U.S.C. 1651 et seq.).  33 U.S.C. § 2707.

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

Last updated July 25, 2018

Outer Continental Shelf Lands Act of 1953 (OCSLA), 43 U.S.C. §§ 1331-1356

The Outer Continental Shelf Lands Act of 1953 (OCSLA) governs administration of resource exploration and development of the U.S. outer continental shelf.  43 U.S.C. §§ 1331-1356b.  The enactment of OCSLA followed the Truman Proclamation of 1945, which asserted U.S. jurisdiction and control over the “natural resources of the subsoil and sea bed of the continental shelf.” See Pres. Proc. 2667, “Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf” (Sept. 28, 1945).  By enacting OCSLA, Congress “affirmed that the Federal Government exercised exclusive control over the [outer continental shelf].”  Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1887 (2019).  OCSLA extends U.S jurisdiction to “the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources.” 43 U.S.C. § 1333(a)(1); see also 43 U.S.C. § 1332(1) (declaring Congressional policy that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition . . . .”). “The term ‘outer Continental Shelf’ means all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States and are subject to its jurisdiction and control.” 43 U.S.C. § 1331(a). OCSLA provides for the “expeditious and orderly development [of the outer Continental Shelf], subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs.” 43 U.S.C. § 1332(3).

The seaward limit of federal jurisdiction under OCSLA is determined in accordance with the relevant provisions of customary international law, as reflected in Article 76 of the United Nations Convention on the Law of the Sea (UNCLOS). Consistent with those provisions, the continental shelf extends to the outer edge of the continental margin, or to a distance of 200 nautical miles (nm) from the coastal baseline where the outer edge of the continental margin does not extend up to that distance. UNCLOS, Art. 76; see also U.S. Extended Continental Shelf Project FAQ. The United States is currently in the process of determining the outer limits of its continental shelf in areas beyond 200 nm. See U.S. Extended Continental Shelf Project. Where the continental shelf of the United States and that of a neighboring country overlap, the outer limit of the continental shelf may be determined by a maritime boundary agreement. The U.S. has entered into such agreements in numerous instances. See U.S. Maritime Boundaries: Agreements and Treaties (U.S. Dept. of State). Thus, the seaward limit of OCSLA is the outer limit of the U.S. continental shelf, which generally extends at least 200 nm from the U.S. baseline.

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

Pelly Amendment to the Fishermen’s Protective Act of 1967, 22 U.S.C. § 1978

The Pelly Amendment to the Fishermen’s Protective Act of 1967 (22 U.S.C. § 1978) authorizes the President to prohibit the importation of any products from nations whose nationals were determined by the Secretary of Commerce or Secretary of the Interior to be engaging in actions that diminish the effectiveness of any international fishery conservation program or international program for endangered or threatened species to which the United States is a party. The Amendment provides that when the Secretary of Commerce, in consultation with the Secretary of State, determines that nationals of a foreign country, directly or indirectly, are conducting fishing operations in a manner or under circumstances which diminish the effectiveness of an international fishery conservation program, the Secretary must certify such fact to the President. 22 U.S.C. § 1978(a)(1). In addition, when the Secretary of Commerce or Secretary of the Interior, in consultation with the Secretary of State finds that nationals of a foreign country, directly or indirectly, are engaging in trade or taking which diminishes the effectiveness of any international program for endangered or threatened species, the relevant Secretary must certify this finding to the President. 22 U.S.C. § 1978(a)(2). The President may then direct the Secretary of the Treasury to prohibit the importation of any products from the offending country for any duration that the President determines to be appropriate and to the extent consistent with U.S. obligations under the WTO Agreement. 22 U.S.C. § 1978 (a)(5). Once the Secretary of the Treasury prohibits the importation of any items from a nation, the Pelly Amendment makes it unlawful for any person subject to the jurisdiction of the United States to “bring or import into, or cause to be imported into, the United States” any such products. 22 U.S.C. § 1978(c). The Pelly Amendment authorizes enforcement through fines ranging from $10,000 for a first offense to $25,000 for additional offenses along with forfeiture of the prohibited items and their monetary value. 22 U.S.C. § 1978(e). 

The Pelly Amendment was initially enacted in response to the depletion of Atlantic salmon stocks in international waters by foreign fishermen in contravention of a ban enacted by the International Convention for the Northwest Atlantic Fisheries, to which the United States is a party. H.R. 117, 92d Cong. § 26 (1971). The original provision applied only to international fishery conservation programs, but was later expanded to include programs to protect marine mammals and other endangered or threatened species. Pub. L. 95-376, 92 Stat. 714 (Sept. 18, 1978). The Amendment applies to imports from any country whose nationals conduct actions that undermine the effectiveness of any international agreement for the protection of endangered or threatened species or conservation of other living marine resources to which the United States is a party. Thus, this Act is primarily focused on actions that are taken beyond the national jurisdiction of the United States. 

Additional Reference Information:

The Plunder Statute, 18 U.S.C. § 1658

The Plunder of Distressed Vessels Act, 18 U.S.C. § 1658, also known as the “Plunder Statute,” criminalizes the looting or destruction of a vessel that is wrecked, stranded, adrift, or in distress at sea.  Section 1658(a).  The Act further prohibits the “willful[] obstruct[ion of] the escape of any person endeavoring to save his life from such vessel,” and the “hold[ing] out or show[ing of] any false light [e.g., a beacon], or extinguish[ment of] any true light, with intent to bring any vessel sailing upon the sea into danger or distress[.]”  Section 1658(b).  The punishment for violation of Section 1658(a) is a fine or imprisonment of up to ten years or both.  The punishment for violation of Section 1658(b) is imprisonment of ten years to life.

The Plunder Statute applies to “any . . . place within the admiralty and maritime jurisdiction of the United States[.]”  Section 1658(a). Initially, federal courts interpreted the extent of this broad jurisdictional grant inconsistently.  For example, in United States v. Pitman, 27 F. Cas. 540 (D. Mass. 1852), the court held that the looting of a wrecked vessel on a foreign shore fell within the ambit of the Plunder Statute, and it upheld the punishment of a U.S. ship captain for taking treasure from a shipwreck on the shores of Sumatra (which was, at the time, a Dutch colony).  Twelve years later, however, the court in United States v. Smiley, 27 F. Cas. 1132 (C.C.N.D. Cal. 1864) went to great lengths not to punish looters of a sunken U.S. steamship that lay within Mexican territorial waters.  Although the Smiley court ultimately held that the two-year-old wreck at issue was “abandoned” and, therefore, not covered by the Plunder Statute, it noted in dicta that “[w]hatever was . . . done with reference to [the] property [that was] once on board [the wrecked steamship] . . . was done out of the jurisdiction of the United States.”  Id. at 1134.

Despite this early confusion in Plunder Statute jurisprudence, the geographic scope of the United States’ admiralty and maritime jurisdiction is now relatively well-settled.  See generally David J. Bederman, Admiralty Jurisdiction, 31 J. Mar. L. & Com. 189 (2000) (providing an overview of the subject of federal admiralty jurisdiction, and suggesting that "the breadth and reach of that jurisdiction may no longer be the contentious issue it once was.").  Federal maritime and admiralty jurisdiction is understood to extend to the operation of vessels in navigable waters, and acts involving or aboard U.S.-flagged vessels traveling thereupon.  United States v. Flores, 289 U.S. 137, 150–59 (1933).  The United States Code defines a “vessel” broadly as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”  1 U.S.C. § 3.  Federal courts have defined "navigable waters" as waters that: (1) are subject to the ebb and flow of the tide (The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825)); (2) are presently navigable (The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)); (3) are potentially navigable (i.e., with improvements) (The Montello, 87 U.S. (20 Wall.) 430 (1874)); or (4) were navigable in the past (Econ. Light & Power Co. v. United States, 256 U.S. 113 (1921)).  Importantly, U.S. admiralty and maritime jurisdiction extends extraterritorially to cover acts done on the high seas, provided the acts were carried out “in furtherance of an activity bearing a significant relationship to a traditional maritime activity,” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218–19 (1986), and even to acts committed within the territory of another country, provided the acts involved (or were committed aboard) a U.S.-flagged vessel.  See Flores, 289 U.S. at 150–59.

Thus, even though the Plunder Statute has not been the subject of a judicial opinion since the late-19th century, it is likely that the above-described consensus regarding the geographic extent of the United States’ admiralty and maritime jurisdiction resolves the early confusion surrounding the Plunder Statute’s seaward limit.

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

  • The Plunder of Distressed Vessel Act, 18 U.S.C. § 1658 (2012)
  • United States v. Pitman, 27 F. Cas. 540 (D. Mass. 1852) (NOAA summary of an early Plunder Statute case, discussed above, holding that the looting of a wrecked vessel on a foreign shore fell under the statute’s ambit)
  • United States v. Smiley, 27 F. Cas. 1132 (C.C.N.D. Cal. 1864) (NOAA summary of an early Plunder Statute case, discussed above, declining to punish looters of a sunken U.S. steamship that lay within Mexican territorial waters, on the dubious grounds that the ship had been “abandoned”)
  • NOAA Summary of the Plunder Statute
  • NOAA-BOEM Underwater Cultural Heritage Law Study (2014 law study setting out the extent of admiralty jurisdiction in the context of protecting underwater cultural heritage)

Updated March 18, 2020

Ports and Waterways Safety Act of 1972 (PWSA), 33 U.S.C. §§ 1221-1236

The Ports and Waterways Safety Act of 1972 (PWSA) was enacted to promote navigation, vessel safety, and protection of the marine environment. 33 U.S.C. § 1221. The Act authorizes the United States Coast Guard (USCG) to take measures necessary for safeguarding and securing maritime activities. PWSA grants authority to, inter alia: establish vessel traffic services and separation schemes; require installation and use of specified navigation and communications equipment; require receipt of prearrival messages; establish water or waterfront safety zones; and issue operation or anchoring orders to specific vessels. 33 U.S.C. §§ 1223-1225.

Applicability of PWSA varies with its granted authorities. The USCG’s authority to issue orders directed to a specific vessel is applicable to any vessel in a port or place subject to the jurisdiction of the United States, or in the navigable waters of the United States, 33 U.S.C. § 1223(b); whereas, the requirement for receipt of prearrival messages may apply to any vessel destined for a port or place subject to U.S. jurisdiction, 33 U.S.C. § 1223(a)(5). Vessel traffic services—reporting and operating requirements, routing systems, etc. — may be established in ports or places under U.S. jurisdiction, in navigable waters of the U.S., or in an area covered by international agreement. 33 U.S.C. § 1223(a)(1). Additionally, the designation of necessary fairways and traffic separation schemes shall be applicable to vessels operating in the U.S. territorial sea as well as to vessels in high seas approaches to U.S. ports or places which originate outside the territorial sea. 33. U.S.C. §1223(c)(1). Ship routing measures that are located entirely outside the U.S territorial sea or that cross into the U.S. territorial sea must also be approved by the International Maritime Organization. 33. U.S.C. § 1230. Prior to making such a designation, however, the USCG must consult with the Secretaries of Commerce, State, Interior, and Army, as well as with the Governors of any affected States, to consider other uses of the proposed area. Once designated, PWSA authorizes the USCG, to the extent reasonable and necessary for the purpose of the designation, to make the use of such fairways and traffic separation schemes mandatory for specific types and sizes of foreign and domestic vessels operating in the U.S. territorial sea, as well as for specific types and sizes of U.S. vessels operating in the high seas beyond the U.S. territorial sea. 33 U.S.C. § 1223(c). The USCG may investigate any incident, accident, or act involving the loss or destruction of, or damage to, any structure subject to PWSA, or which affects or may affect the safety or environmental quality of the ports, harbors, or navigable waters of the United States. 33 U.S.C. § 1227. For applicability of discrete measures taken pursuant to the authorities above, please see the USCG Regulations promulgated under PWSA, available through the link provided below.

PWSA does not apply to the Panama Canal nor does it apply to foreign vessels either in innocent passage through the U.S. territorial sea or through navigable waters of the U.S. which form part of an international straight, so long as the vessel is not destined for, or departing from, a port or place subject to the jurisdiction of the U.S. (except pursuant to international treaty, convention, or agreement, 33 C.F.R. 160.103(c)). 33 U.S.C. § 1223(d).

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

The United States Public Vessel Medical Waste Anti-Dumping Act of 1988, 33 U.S.C. §§ 2501-2504

Enactment of the United States Public Vessel Medical Waste Anti-Dumping Act of 1988, 33 U.S.C. §§ 2501-2504 (the Act), was a response to Congressional findings that the washing ashore of medical waste poses serious risks to public health.  33 U.S.C. § 2501(1). The Act imposes a qualified prohibition on the dumping of potentially infectious medical waste from public vessels.  33 U.S.C. § 2503. The Act defines “public vessel” as a vessel of any type that is “owned, or demise chartered, and operated by the United States Government,” and not engaged in commercial service. 33 U.S.C. § 2502(2). “Potentially infections medical waste” includes isolation wastes, infectious agents, human blood and blood products, pathological wastes, sharps, body parts, contaminated bedding, surgical wastes and potentially contaminated laboratory wastes, dialysis waste, and additional medical items that the [EPA] Administrator shall prescribe by regulation.  33 U.S.C. § 2502(1). The Act’s prohibition applies globally.  33 U.S.C. § 2503. Two exceptions to this prohibition relate to the health and safety of the crew, and times of war or national emergency. 33 U.S.C. § 2503. The Act stipulates that affected federal agencies must work with the EPA to issue implementing guidance within three months of its enactment. 33 U.S.C. § 2504. According to an EPA publication, the EPA has distributed guidance stating that all medical wastes generated on board an EPA vessel will be stored in a secure area on board for disposal at an appropriate shore-based facility upon return from the sea, and that no medical wastes may be thrown overboard. David P. Redford, Office of Marine and Estuarine Protection, EPA, Status of the EPA Marine Debris Activities and Programs, at 593.

The Act additionally extends the medical waste dumping ban to all vessels by amending the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA). 33 U.S.C. §§ 1401 et seq.. The amendment adds medical waste to a list of substances, such as radioactive waste, for which no permit to dump in the ocean may be issued. 33 U.S.C. § 1412(a). The MPRSA applies to all dumping in the world’s oceans so long as the material is either transported from the United States or transported by a vessel or aircraft registered in the United States or flying the United States flag. 33 U.S.C. § 1411(a). If the material is transported from a location outside of the United States by a foreign-flagged vessel, the MPRSA applies to its dumping if it occurs within the U.S. territorial sea and or within the contiguous zone (defined by MPRSA as extending 12 nautical miles seaward from the baseline from which the breadth of the territorial sea is measured), to the extent that the dumping may affect the territorial sea or territory of the United States. 33 U.S.C. § 1411(b). 

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

Recreational Vessels Act, 46 U.S.C. §§ 4301–4311

Enacted on August 26, 1983, the Recreational Vessels Act authorizes the U.S. Coast Guard to issue minimum safety standards for recreational vessels and associated equipment carried on such vessels. For purposes of the Act, a recreational vessel is one manufactured, rented, leased, chartered or used primarily for pleasure (46 U.S.C. § 2101).

Associated equipment includes a recreational vessel’s systems, accessories, components, appurtenances, and marine safety articles; in certain situations radio equipment is exempt (46 U.S.C. § 2101). The U.S. Coast Guard administers the statute (14 U.S.C. § 2).

The Recreational Vessels Act applies to U.S. and foreign recreational vessels and associated equipment that are operating on waters subject to United States jurisdiction (46 U.S.C. § 4301). United States waters extend to the U.S. Exclusive Economic Zone, which was claimed by Presidential Proclamation No. 5030 of March 10, 1983. Also, the Recreational Vessels Act was amended to include the current U.S. territorial sea, which was extended from 3 nautical miles (nm) to 12nm by Presidential Proclamation No. 5928 of December 27, 1988. The Act also applies to U.S. flagged recreational vessels operating on the high seas.

Two exceptions to the Act’s general application exist. The first is that unless otherwise provided, the Act does not apply to a foreign-flagged vessel operating temporarily on U.S. waters (46 U.S.C. §4301). No statutory or case law guidance was found explaining the meaning of operating temporarily. Second, certain waters lying entirely in New Hampshire are not within the Act’s jurisdiction until a final judicial decision determines whether they are navigable waters of the United States (46 U.S.C. §4301).

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

Refuse Act of 1899, 33 U.S.C. § 407

Section 13 of the Rivers and Harbors Act of 1899, popularly known as the Refuse Act, makes it “unlawful to throw, discharge, or deposit, cause, suffer, or procure to be thrown, discharged, or deposited” from any ship or from shore “any refuse matter, of any kind or description whatever” into “any navigable water of the United States.” 33 U.S.C. § 407.

The Refuse Act authorizes the U.S. Army Corps of Engineers to protect and develop navigable waterways. U.S. Army Corps regulations implementing the Refuse Act define navigable waters as waters “subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce.” 33 C.F.R. § 329.4.

The U.S. Army Corps of Engineers regulatory jurisdiction of navigable waters extends to all ocean and coastal waters within the zone three nautical miles seaward from the baseline. 33 C.F.R § 329.12. The baseline is measured from the line on the shore reached by ordinary low tides. 33 U.S.C. § 329.12(a)(1). The Act prohibits both direct and indirect discharges of refuse into these waters. 33 U.S.C.A. § 407. 

The Secretary of the Army may permit deposits of refuse in navigable waters if, in the judgment of the Chief of Engineers, no injury to anchorage and navigation will occur. 33 CFR § 320.2(d).  The Secretary of the Army's permit authority under this provision, however, has been superseded by the permit authority granted by Congress to the U.S. EPA and the states under sections 402 and 405 of the Clean Water Act. 33 U.S.C. 1362 and 1345. See also 40 CFR parts 124 and 125.  

Under 33 U.S.C. § 411, any person who violates the Refuse Act is guilty of a misdemeanor, and upon conviction may be punished by a fine of up to $25,000 per day, or may be extended a mandatory minimum imprisonment of 30 days or less than one year, or both imprisonment and a fine. 33 U.S.C. § 411.

Additional Reference Information:

Updated August 6, 2023

The Rivers and Harbors Appropriation Act of 1899 (RHA), 33 U.S.C. §§401 et seq.

The Rivers and Harbors Act of 1899 is the original authority for the U.S. Army Corps of Engineers (Corps) permit program to protect navigable waters in the development of harbors and other construction and excavation. Section 10 of the RHA (33 U.S.C. § 403) prohibits the unauthorized obstruction or alteration of any navigable water of the U.S, and provides that the construction of any structure in or over any navigable water of the U.S., or the accomplishment of any other work affecting the course, location, condition, or physical capacity of such waters is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 12 (33 U.S.C. § 406) establishes penalties for the violation of RHA sections 401, 403, and 404, and authorizes the U.S. circuit court exercising jurisdiction in any district where structures erected in violation of these provisions exist to enforce the structures’ removal by injunction. The geographic jurisdiction of the RHA includes all navigable waters of the United States, which are defined as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." 33 C.F.R. Part 329.4.The Outer Continental Shelf Lands Act of 1953 expressly extended the authority of the Corps to prevent obstructions to navigation in navigable waters of the United States to artificial islands, installations, and other devices located on the seabed to the seaward limit of the outer continental shelf. Pub. L. 212, Ch. 345 (Aug. 7, 1953), 67 Stat. 462, at 463; 43 U.S.C. § 1333(e).

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

Updated May 6, 2019

Salvaging Operations by Foreign Vessels, 46 U.S.C. § 80104

Salvaging Operations by Foreign Vessels, 46 U.S.C. § 80104, was enacted in 1940 to extend the protective Jones Act regime to salvage operations in U.S. waters. Pub. L. No. 76-599, 46 U.S.C. § 316(d) (1940). At the time of its passage, there was growing concern among maritime trade unions and members of Congress that existing penalties (fifty cents per ton) were inadequate to stop foreign salvage vessels from making vast profits for salvaging U.S. vessels in domestic waters, to the detriment of the U.S. salvaging fleet. 

The salvage provision makes it unlawful for a foreign vessel to engage in salvaging operations in U.S. waters on the Atlantic or Pacific coasts, in the Great Lakes or their connecting waters, or in the Gulf of Mexico, except when authorized by a treaty.  46 U.S.C. § 80104. The two treaties implicated by this provision are between the U.S. and Canada (Treaty Between the United States and Great Britain Concerning Reciprocal Rights for United States and Canada in the Conveyance of Prisoners and Wrecking and Salvage, May 18, 1908, 35 Stat. 2035, T.S. No. 502) and the U.S. and Mexico (Treaty Between the United States and Mexico for the Sending of Vessels for Purposes of Assistance and Salvage, June 13, 1935, 49 Stat. 3359, T.S. No. 905).  46 U.S.C. § 80104(c). 

The U.S.-Canada Agreement provides for reciprocal rights in wrecking and salvage of a vessel belonging to either nation in the lakes, rivers, and coastal waters contiguous to the international boundary between the U.S. and Canada, within thirty nautical miles from either coast. Treaty Between the United States and Great Britain Concerning Reciprocal Rights for United States and Canada in the Conveyance of Prisoners and Wrecking and Salvage art. ii, May 18, 1908, 35 Stat. 2035, T.S. No. 502. The U.S.-Mexico Agreement provides reciprocal salvage rights of each State’s own vessels within 720 nautical miles of the intersection of the International Boundary Line and the States’ Pacific coasts and 200 nautical miles of the intersection of such line and the States’ Gulf coasts. Treaty Between the United States and Mexico for the Sending of Vessels for Purposes of Assistance and Salvage art. I, June 13, 1935, 49 Stat. 3359, T.S. No. 905. 

46 U.S.C. § 80104 permits the Secretary of Homeland Security (originally, the Commissioner of Customs) to authorize and waive penalties for foreign vessels to conduct salvage operations, if he or she finds that no suitable U.S.-owned and U.S.-documented vessel is available. 46 U.S.C. § 80104(b). The purpose of this exception is to ensure there is no absolute prohibition preventing a vessel in an emergency situation from receiving assistance.

At the time of passage, the United States claimed only a three nautical mile territorial sea.  See GCIS webpage, Territorial Sea. Thus, the seaward limit of 46 U.S.C. § 80104 is three nautical miles seaward of the baseline from which the breadth of the territorial sea is measured on the Atlantic and Pacific coasts of the United States, landward of the International Boundary Line in the Great Lakes and their connecting or tributary waters, including the Saint Lawrence River (excluding Canadian vessels from penalty), and landward of the international boundary line of U.S. waters in the Gulf of Mexico (excluding Mexican vessels salvaging other Mexican vessels from penalty).

Additional Reference Information:

  • The Salvaging Operations by Foreign Vessels legislation was originally passed as An Act to Amend Section 4370 of the Revised Statutes of the United States (U.S.C., 1934 edition, title 46, sec. 316) and codified at 46 U.S.C. § 316(d). The salvage provision was recodified at 46 U.S.C. § 80104 by An Act to Complete the Codification of title 46, United States Code, “Shipping”, as positive law, Pub. L. No. 109-304 (Oct. 6, 2006). A conversion table is availablehere
  • For more information on the International Boundary Line between the United States and Canada, including GIS maps, see The Boundary, the International Boundary Commission (2015),https://www.internationalboundarycommission.org/en/about/the-boundary.php
  • For more information on the International Boundary Line between the United States and Mexico, including GIS maps, see The International Boundary and Water Commission – Its Mission, Organization and Procedures for Solution of Boundary and Water Problems, International Boundary & Water Commission,https://www.ibwc.gov/About_Us/About_Us.html.

Updated August 30, 2021

Salmon and Steelhead Conservation and Enhancement Act of 1980 (SSCEA), 16 U.S.C. §§ 3301 et seq.

Enacted in 1980, the Salmon and Steelhead Conservation and Enhancement Act (SSCEA), 16 U.S.C. §§ 3301 et seq., aims to assist the harvesters of salmon and steelhead resources within the Columbia River conservation area and the Washington conservation area. The SSCEA does so by establishing a cooperative program among the United States, the States of Washington and Oregon, the treaty tribes acting through the appropriate tribal coordinating bodies, and other parties. 16 U.S.C. § 3301(b).

This cooperative program encourages stability in and promotes the economic well being of commercial and charter fishing industries and improves the distribution of fishing power between the treaty and nontreaty fisheries by authorizing: (1) the Secretary of Commerce to provide funding to the State of Washington to purchase fishing vessels, gear and licenses to reduce overall fishing capacity in the Washington conservation area; and (2) the Secretaries of Commerce and the Interior to coordinate and fund research, enhancement, and management of salmon and steelhead resources and habitat in the Columbia River and Washington conservation areas. 16 U.S.C. §§ 3301(b)(1)(A)-(B), 3321(a)-(b), 3331, and 3332. The cooperative program also aims to improve the quality of and maintain opportunities for salmon and steelhead recreational fishing. 16 U.S.C. § 3301(b)(2).

While the SSCEA does not explicitly address its seaward limit, the Act applies to the Columbia River conservation area and Washington conservation area.

The SSCEA defines the “Columbia River conservation area” to mean: (1) all habitat within the Columbia River drainage basin; and (2) those areas in the fishery conservation zone over which the Pacific Fishery Management Council has jurisdiction and the territorial seas of Oregon and Washington, in which one or more stocks that originate in the Columbia River drainage basin migrate. 16 U.S.C. § 3302(4). The SSCEA defines the “Washington conservation area” to mean all salmon and steelhead habitat within the State of Washington except for the Columbia River drainage basin, and in the fishery conservation zone adjacent to the State of Washington which is subject to the jurisdiction of the United States. 16 U.S.C. § 3302(17).

The legislative history of the SSCEA indicates that the “fishery conservation zones” referenced in these two definitions refer to the fishery conservation zone established under section 101 of the Fishery Conservation and Management Act of 1976 (FCMA). H. Rep. No. 96-1243, Parts 1 and 2, 96th Cong., 2d Sess. (Sept. 19, 1980); and S. Rep. No. 96-667, 96th Cong., 2d Sess. (Jan 3., 1980). The FCMA defined the fishery conservation zone as the area extending from the seaward boundary of each of the coastal states (3 or 9 nautical miles (nm)) out to 200 nm from the baseline from which the territorial sea is measured. See P.L. 94-265, sec. 101 (April 13, 1976).

The fishery conservation zone subject to the jurisdiction of the Pacific Fishery Management Council is depicted by a graphic on this NOAA webpage and extends from the seaward limit of the States of California, Oregon, and Washington (3 nm) to 200 nm from shore. Thus, the Columbia River conservation area encompasses the fishery conservation zone subject to the jurisdiction of the Pacific Fishery Management Council (3 nm out to 200 nm from shore) as well as the  territorial seas of Oregon and Washington (shore out to 3 nm).  The Washington conservation area encompasses the fishery conservation zone adjacent to the State of Washington (3 nm out to 200 nm from the shore) and the state waters of Washington (shore out to 3 nm), except those in the Columbia River drainage basin.

Additional reference information:

Updated April 21, 2023

Shark Finning Prohibition Act (2000) and Shark Conservation Act (2010), 16 U.S.C. §§ 1826i, 1826j(e)(3), 1826k, 1857(1)(P)

The Sharking Finning Prohibition Act (SFPA)—enacted in December 2000—amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to prohibit the removal of shark fins and discarding of carcasses at sea, the possession of shark fins aboard a fishing vessel without the corresponding carcass, and the landing of shark fins without the corresponding carcass. Pub. L. No. 106-557, 114 Stat. 2772, § 3. The SFPA defined shark finning to mean “the taking of a shark, removing the fin or fins (whether or not including the tail) of a shark, and returning the remainder of the shark to the sea.” SFPA § 9. The SFPA made a positive step in shark conservation, but left a loophole that some in the shark fisheries exploited. The SFPA prohibited the finning of sharks and the landing of sharks without the corresponding fins, but did not require the fins to be naturally attached. SFPA § 3. The statute only created a rebuttable presumption that shark finning occurred if the total weight of the shark fins exceeded 5% of the dressed carcass weight. Id.  This allowed fishermen to match high value fins with high value carcasses, and discard low value fins and carcasses at sea. This loophole prompted the passage of the Shark Conservation Act of 2010 (SCA), which was signed into law on January 4, 2011. The SCA, among other things, amended the MSA to require that, with one exception, sharks be landed with their fins naturally attached. Pub. L. No. 111-348, 124 Stat. 3668, 3670, § 103(a) (codified at 16 U.S.C § 1857(1)(P)(iv)).  The SCA also retained a rebuttable presumption that shark finning occurred if, after landing, the total weight of fins landed exceeds 5% of the total weight of shark carcasses landed.  Id.; see also 50 C.F.R. § 600.1203(b)(2).  In 2016, NMFS updated its shark finning regulations to incorporate the provisions of the SCA.  See 50 C.F.R. §§ 600.1200-.1204; see also 81 Fed. Reg. 42285 (July 29, 2016). The SFPA and the SCA have the same jurisdictional application. Both Acts apply to any person subject to the jurisdiction of the United States. See, e.g., 67 Fed. Reg. 6194, 6194 (Feb. 11, 2002) (describing the jurisdictional application of the SFPA); 81 Fed. Reg. 42285, 42285 (June 29, 2016) (describing the jurisdictional application of the SCA). Among other things, NOAA’s shark finning regulations prohibit U.S. flagged vessels from engaging in shark finning in waters seaward of the inner boundary of the U.S. EEZ under the MSA (which is generally three nautical miles seaward of the baseline from which the breadth of the territorial sea is measured), 50 C.F.R. § 600.1204(a)(1), and prohibit foreign flagged vessels from shark finning in waters landward of the outer boundary of the EEZ (which is generally 200 nautical miles seaward of the baseline from which the breadth of the territorial sea is measured). 50 C.F.R. § 600.1204(a)(2). The seaward limit of the SFPA and SCA is not limited to a geographic line, but it is attached to the activity and the individuals who engage in it. The Acts do not apply in state waters because the MSA generally preserves state jurisdiction over fisheries management in their waters (see 16 U.S.C. § 1856), but they otherwise apply to any person under the jurisdiction of the United States regardless of location. Thus, in the U.S. EEZ and beyond, the Acts prohibit anyone subject to U.S. jurisdiction (including anyone aboard a U.S. fishing vessel) from sharking finning.  Any individual under U.S. jurisdiction is therefore prohibited from finning sharks on the high seas, and this jurisdiction can be based on the vessel itself or the nationality of the individual. Under customary international law, any person engaged in activities on the high seas is subject to the jurisdiction of the flag state of the ship used for such activity, or of the state of which the person is a national. Restatement (Third) of Foreign Relations, § 523 cmt. c (1987). And under the Article 92(1) of the Law of the Sea Convention, ships are under the exclusive jurisdiction of their flag state while on the high seas. These principles are reflected in NOAA’s shark finning regulations: U.S. flagged vessels may not engage in shark finning in waters seaward of the inner boundary of the U.S. EEZ. 50 C.F.R. § 600.1204(a)(1).

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

The Shore Protection Act of 1988, 33 U.S.C. §§ 2601-2609

The Shore Protection Act of 1988, 33 U.S.C. §§ 2601-2609, (SPA or the Act) was enacted to help prevent trash, medical debris and other unsightly and potentially harmful materials from being disposed into the coastal waters of the United States as the result of sloppy waste-handling procedures.  U.S. Coast Guard, 54 F.R. 22546, 22546 (May 24, 1989) (interim rule with request for comments). The Act prohibits all vessels, except public vessels, from transporting municipal or commercial waste in coastal waters without (i) obtaining a permit for that vessel from the Secretary of Transportation and (ii) displaying a vessel identification number or other markings prescribed in the permit. 33 U.S.C. § 2602(a), and (b); 33 C.F.R. § 151.1009; U.S. Environmental Protection Agency, 59 F.R. 44798-01, 44798 (August 30, 1994) (proposed rule) (never finalized). The authority to issue permits was transferred to the Secretary of the Department of Homeland Security who in turn delegated it to the Commandant of the U.S. Coast Guard.  6 U.S.C. § 468(b); Department of Homeland Security Delegation No. 1070.1, para 81.  Permit regulations issued under the Act by the U.S. Coast Guard apply to any vessel the purpose of which is the transportation of municipal or commercial waste in coastal waters. 33 C.F.R. § 151.1003(a). The SPA applies to foreign vessels except those in innocent passage. An Act to amend the Merchant Marine Act, 1920, and for other purposes, Pub. L. No. 100-329, § 3, 102 Stat. 588, (amended 1988). The SPA applies to any vessel transporting municipal or commercial waste in U.S. coastal waters. The Act defines “coastal waters” to include the territorial sea of the U.S., the Great Lakes and connecting waters, marine and estuarine waters of the U.S. up to the head of tidal influence, and the Exclusive Economic Zone as established by Presidential Proclamation Number 5030. 33 U.S.C. § 2601(2)(A-D).  The head of tidal influence describes the furthest point upstream where a navigable water remains subject to the influence of the tide; i.e., the ebb and flow. Duke v. U.S., 711 F. Supp. 332, 333-34 (E.D. Tex. 1989). The physical limit to a navigable water subject to tidal influence is the water level below the mean high water mark. 33 C.F.R. § 2.34(a); 33 C.F.R. § 2.36(a)(2). When making navigability determinations, U.S. Coast Guard regulations group waters subject to tidal influence with waters affected by the ebb and flow of the tide. U.S. Coast Guard, 68 F.R. 42595-01, 42601 (July 18, 2003) (final rule). Thus, the SPA extends 200 nautical miles seaward from the baseline of the territorial sea and landward to the limit of tidal influence of internal waters. It also includes the Great Lakes and connecting waters. “[M]unicipal or commercial waste” means solid waste as defined by the Resource Conservation and Recovery Act. 33 U.S.C. § 2601(3). That statute defines the term to include, without limitation,  “garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations, and from community activities.” 42 U.S.C. § 6903(27). The SPA excludes certain enumerated solid wastes from the SPA permitting scheme. Excluded wastes are:  solid waste identified in another section of the Resource Conservation and Recovery Act, 42 U.S.C. § 6921; waste generated by the vessel during normal operations; debris solely from construction activities; and sewage sludge and dredge and fill material subject to other federal regulations. 33 U.S.C. § 2601(3)(A-E). The SPA authorizes the U.S. Coast Guard to issue vessel transportation permits and take enforcement action against violations. 33 U.S.C. § § 2602(a)(1) and 2605(a).The permitting and numbering requirements of the SPA are published at 33 C.F.R. § 151, Subpart B.  The U.S. Environmental Protection Agency shares responsibility with the U.S. Coast Guard for developing regulations to prevent the disposal of waste into coastal waters “during loading, offloading, and transport” from waste sources, reception facilities, and vessels. 33 U.S.C. § 2603(b)(1). The Act grants EPA authority to require owners and operators of waste sources, vessels transporting waste, and waste receiving facilities to take all reasonable steps to minimize the amount of municipal and commercial waste deposited into coastal waters during vessel and facility operations. The EPA has yet to develop regulations under this authority.  

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

South Pacific Tuna Act of 1988, 16 U.S.C. §§973 et seq.

The South Pacific Tuna Act (SPTA) was enacted to implement the Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States of America (also known as the South Pacific Tuna Treaty (SPTT)). The United States ratified the SPTT in 1987 and the Treaty entered into force in 1988. The SPTA governs the conduct of U.S. fishing vessel operations in the Treaty Area, encompassing approximately 10 million square miles of the western and central Pacific Ocean. U.S. purse seine vessels licensed under the Treaty are able to access a large portion of the high seas and EEZs of 16 Pacific Island parties to the Treaty in the western and central Pacific Ocean. The licensing area includes all or part of the EEZs of the following Pacific Island states: Australia, Cook Islands, Federated States of Micronesia, Fiji, Kiribati, Marshall Islands, Nauru, New Zealand, Niue, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu. U.S. purse seine vessels licensed under the Treaty are used to harvest tuna. Treaty licenses are issued by the Pacific Islands Forum Fisheries Agency (FFA) upon receipt of all required fees, and after applications are submitted to and approved by NOAA’s National Marine Fisheries Service (NMFS). After an initial 5-year agreement, the Treaty was extended in 1993 and again in 2003. In 2013, while negotiations proceeded on a revised Treaty, the parties agreed to extend the Treaty for an interim period of 18 months, maintaining the treaty text, but adopting new financial terms and incorporating some new elements. A second interim arrangement was agreed for 2015 and a third for 2016.  In January 2016, after six years of unsuccessful negotiations, the U.S. gave notice of its intent to withdraw from the SPTT. Under the terms of the treaty, it shall cease to have effect one year after notice of withdrawal is given. The United States and the Pacific Island Parties continue to negotiate the terms of a revised Treaty.  Should agreement not be reached and the United States not rescind its withdrawal, the Treaty will terminate in January 2017.

South Pacific Treaty Boundary

South Pacific Tuna Treaty Boundary Map
South Pacific Tuna Treaty Boundary (NOAA Fisheries)


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

For further information contact: NMFS, Pacific Islands Regional Office, International Fisheries Division

Sponge Act of 1914, 16 U.S.C. §§ 781-785

The Sponge Act of 1914 (“the Act”) makes it “unlawful for any citizen of the United States, or person owing duty of obedience to the laws of the United States, or any boat or vessel of the United States, or person belonging to or on any such boat or vessel, to take or catch, by any means or method, in the waters of the Gulf of Mexico or the Straits of Florida outside of State territorial limits, any commercial sponges measuring when wet less than five inches in their maximum diameter, or for any person or vessel to land, deliver, cure, offer for sale, or have in possession at any port of place in the United States, or on any boat or vessel of the United States, any such commercial sponges.” Act of Aug. 15, 1914, c. 253, 38 Stat. 692; 16 U.S.C. §§ 781-785. 

Violations of the Act are subject to a fine of not more than $500 and a lien against the vessel on which the offense was committed. 16 U.S.C. § 783. Enforcement under the Act is assigned to the Secretary of Commerce, who is authorized to make arrests and seize vessels and sponges and request assistance from Coast Guard vessels and the Customs Service employees. 16 U.S.C. § 785. See also 15 C.F.R. § 904.1(c)(36) (NOAA procedures for administrative enforcement proceedings under the Sponge Act).

The Sponge Act applies to U.S. nationals and U.S. flag vessels in the waters of the Gulf of Mexico and the Straits of Florida outside of state territorial limits. The Act does not define Florida’s state territorial limits, the Gulf of Mexico, or the Straits of Florida. Under its 1868 Constitution, Florida claimed a state boundary that, in some instances, extended offshore more than three geographic miles. See M. Reed, Shore and Sea Boundaries, Vol 3, pp. 112-120 (2000). In no instance did Florida claim a state boundary that extended offshore less than three  geographic miles -- the breadth of the territorial sea claimed by the United States at that time.  See Cunard Steamship Co. v. Mellon, 262 U.S. 100, 122 (1923) ("It now is settled in the United States and recognized elsewhere that the territory subject to its jurisdiction includes . . . a marginal belt of the sea extending from the coast line outward a marine league, or three geographic miles."). The Act’s legislative history indicates that it was intended to apply to sponge beds in the high seas. S. Rept. 62-904 (July 5, 1912). A passing reference to the Act by the Supreme Court confirms this. See U.S. v. Alaska, 422 U.S. 184, 198 (1975) (listing wildlife regulations that the U.S. applies against its national on the high seas). Thus, while the seaward limit of the Sponge Act cannot be identified with precision, it indisputably applies on the high seas which, in 1914, was understood by Congress to be the maritime zone adjacent to and beyond three geographic miles from shore.

Additional Reference Information: 

Updated June 12, 2023

Sunken Military Craft Act, Pub. L. 108–375, div. A, title XIV, Oct. 28, 2004, 118 Stat. 2094

The Sunken Military Craft Act (SMCA), Pub. L. 108-374, div. A, title XIV, Oct. 28, 2004, 118 Stat. 2094 (codified at 10 U.S.C. § 113 Note), protects sunken military vessels, aircraft, and their associated contents from unauthorized disturbance. The SMCA defines “sunken military craft” as “(A) any sunken warship, naval auxiliary, or other vessel that was owned or operated by a government on military noncommercial service when it sank; (B) any sunken military aircraft or military spacecraft that was owned or operated by a government when it sank; and (C) the associated contents of a craft referred to in subparagraph (A) or (B).” 118 Stat. 2094, § 1408(3). “Associated contents” are defined as “(A) the equipment, cargo, and contents of the sunken military craft that are within its debris field; and (B) the remains and personal effects of the crew and passengers of a sunken military craft that are within its debris field.”  118 Stat. 2094, § 1408(1).

Under the SMCA, no U.S. sunken military craft, wherever located, and no foreign sunken military craft located within 24 nautical miles of the U.S. coast, is subject to a claim of ownership under the maritime law of finds or to a claim of a salvage award regardless of how much time has elapsed since the craft sank unless permission has been granted by the relevant sovereign. 118 Stat. 2094, § 1406. In addition, “[n]o person may possess, disturb, remove, or injure” any sunken military craft. 118 Stat. 2094, § 1402(b). Consistent with generally recognized principles of international law and in accordance with the treaties, conventions, and other agreements to which the United States is a party, the Act applies beyond the maritime zones subject to U.S. jurisdiction, even within the maritime zone of foreign nations. The law also permits foreign nations to request that the Secretary of the Navy carry out certain aspects of the law with respect to any foreign sunken military craft of that foreign nation located in U.S. waters. 118 Stat. 2094 § 1403(d) (24 nm limit). The Secretary of the military department concerned is empowered to issue permits pertaining to activities directed at its own craft. 118 Stat. 2094 § 1403(a)-(c); 118 Stat. 2094 § 1408(2), 1403.

The SMCA applies worldwide to U.S. citizens and nationals and to foreign persons consistent with generally recognized principles of international law. 118 Stat. 2094, § 1402(c) (2). The Act does not apply to actions undertaken by or at the direction of the United States. 118 Stat. 2094, § 1402(c) (1).

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

 Last updated August 13, 2019

Submarine Cable Act of 1888, 47 U.S.C. §§ 21-33

The Submarine Cable Act of 1888 (the Act) was enacted to fulfill an obligation which the United States assumed when it became a party to the Convention for the Protection of Submarine Telegraph Cables, adopted 14 March 1884, 24 Stat. 989, TS No 380 (Convention).  The U.S. Senate gave its advice and consent to ratification on June 12, 1884, Ex. Doc. No. 83, 48th Cong., 2d Sess., Senate (Feb. 19, 1885), and the President ratified the Convention on January 26, 1885.  The Convention entered into force on May 1, 1888.  The Convention applies: (1) outside territorial waters; (2) to all legally-established cables that are landed on the territories, colonies or possessions of one or more of the Parties. Convention, Article I.  Thirty-six States are currently considered to be Parties to the Convention.  See link below under “Additional Reference Information” to Current Parties to the Convention.
The Act makes it a misdemeanor, punishable by imprisonment for a term not to exceed two years and/or by a fine not to exceed $5,000, to willfully and wrongfully break or injure a submarine cable “in such manner as to interrupt or embarrass, in whole or in part, telegraphic communication.”  47 U.S.C. § 21.  Lesser penalties are prescribed for a break or injury that is the result of “culpable negligence,” 47 U.S.C. § 22, as well as for a failure to observe the rules concerning signals, or to keep prescribed distances from cable work or marker buoys, 47 U.S.C. § 24, or for failure to keep fishing implements and nets the prescribed distances from cable work or marker buoys.  47 U.S.C. § 25.  The Act’s criminal regime does not bar injured plaintiffs from bringing civil damage actions.  47 U.S.C. § 28. 

When there is reason to believe an infraction has been committed outside territorial waters, a person commanding a ship of war of the United States. or of any Party to the Convention, or a ship specially commissioned by any Party to the Convention, may require the production of documents evidencing nationality of the offending vessel and the making of reports of infractions.  47 U.S.C. § 26.

47 U.S.C. § 32 provides that the Act’s provisions apply “only to cables to which the [1884] convention for the time being applies” – that is (1) to all legally-established cables that are landed on the territories, colonies or possessions of one or more of the Parties, (2) where the infraction occurs outside territorial waters.  See AT&T, et al. v. M/V Cape Fear, 967 F.2d 864, 874 (3rd Cir. 1992).  However, the Submarine Cable Act also assigns to U.S. district courts jurisdiction over all offenses against it and of all suits of a civil nature arising thereunder, whether the infraction complained of was committed within the territorial waters of the United States or on board a vessel of the United States outside of said waters.  47 U.S.C. § 33.  Although one federal court has noted “the apparent inconsistency” between the limited applicability of the Act to damages “‘outside territorial waters” and federal jurisdiction over infractions “’within the territorial waters,” A.T.& T., et al. v. M/V Cape Fear, 763 F. Supp. 97, 101 n. 10 (D.N.J. 1991), rev’d on other grounds, 967 F.2d 864 (3rd Cir. 1992), it is clear from the negotiating history of the Convention that the drafters expected that the Parties would apply the Convention within their own territorial waters.  “Territorial waters,” which is not defined in the Act or the Convention, would have been generally understood at the time of the Act and the Convention as encompassing a marginal or territorial sea extending three nautical miles seaward from the coast.

References to the Act are reflected in NOAA regulations which direct fishing vessels to exercise due care when operating in the vicinity of submarine cables -- e.g., no closer than one nautical mile from a vessel engaged in laying or repairing a submarine cable, and no closer than 0.25 nautical mile from a buoy intended to mark the position of a cable when being laid, or when out of order, or broken -- and which remind vessel operators that a failure to exercise such care will subject an operator to the criminal penalties prescribed in the Submarine Cable Act,  See 50 CFR § 600.514 (Foreign Fishing) and 50 CFR § 600.705 (Domestic Fisheries).

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

Last Updated May 19, 2017

Submerged Lands Act (SLA) 43 U.S.C §§ 1301-1315

The Submerged Lands Act of 1953 (“SLA”) served to transfer to U.S. coastal states many of the rights that the Federal government exercised over an area immediately offshore.  Under the SLA, “The United States releases and relinquishes unto said States … except as otherwise reserved …all right, title, and interest of the United States, if any it has, in and to all said lands, improvements, and natural resources.” 43 U.S.C § 1311(b)(1).  The SLA defines “natural resources” to include “oil, gas, and all other minerals . . . .” 43 U.S.C. § 1301(e).  It also recognizes “natural resources” as “fish, shrimp, oysters, clams, crabs, lobsters, sponges, kelp, and other marine animal and plant life . . . .” Id.

“The seaward boundary of each . . . coastal State is . . . a line three geographic [or nautical] miles distant from its coast line or, in the case of the Great Lakes, to the international boundary.” 43 U.S.C. § 1312.  The term “coast line” is “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” 43 U.S.C. § 1301(c). A U.S. coastal state’s coast line and corresponding seaward boundary are generally ambulatory; however, the seaward limit can be fixed by United States Supreme Court decree.  43 U.S.C. § 1301(b). “Gulf Coast states are granted up to 3 marine leagues (9 nautical miles) if they entered the Union with a more expansive boundary or such a boundary had been approved by Congress.” Michael W. Reed, Shore and Sea Boundaries 23-24 (Vol. 3, 2000) (citing 43 U.S.C. § 1301(b)); see also United States v. Louisiana et al., 363 U.S. 1, 80 S. Ct. 961 (1960) (decreeing that the United States is entitled to all lands, minerals, and other natural resources underlying the waters of the Gulf of Mexico more than three geographic miles seaward from coastlines of Louisiana, Mississippi, and Alabama and extending seaward to the edge of the Continental Shelf, and more than “three leagues” (nine nautical miles) seaward from coast lines of Texas and extending seaward to the edge of the Continental Shelf); United States v. Florida, 425 U.S. 791, 792 (1976) (decreeing that the United States is entitled to all lands, minerals, and other natural resources underlying the Atlantic Ocean more than three geographic miles seaward from the coastline of Florida and extending seaward to the edge of the Continental Shelf. However, on the Gulf of Mexico side, the United States is entitled to all lands, minerals, and other natural resources underlying the Gulf of Mexico more than three “marine leagues” (9 nautical miles) from the coastline of Florida).

Although the federal government releases to the States its rights in the submerged lands under the SLA, the federal government “retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership … of the lands and natural resources which are specifically recognized … in and assigned to the respective States and others by section 1311….”   43 U.S.C. § 1314(a). Furthermore, U.S. coastal state “ownership” of living natural resources in the water column is better understood as a legal fiction, because “[n]either the States nor the Federal Government… has title to these creatures until they are reduced to possession by skillful capture. See Douglas v. Seacoast Products, Inc., 431 U.S. 265, 284 (1977).

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

(second supplemental decree further identifying with greater particularity the boundary line between the submerged lands of the United States and the submerged lands of the State of California).

Territorial Submerged Lands Act, 48 U.S.C. §§ 1705–1708

The Territorial Submerged Lands Act (“the Act”) conveys to Guam, the Commonwealth of the Northern Mariana Islands, the Virgin Islands, and American Samoa certain submerged lands extending three geographical miles seaward from the coastline of each territory. 48 U.S.C. § 1705(a).  The Act was first passed in 1974, and initially conveyed submerged lands only to Guam, the Virgin Islands, and American Samoa.  Pub. L. 93-435. However, the Act was amended in 2013 to include the Commonwealth of the Northern Mariana Islands, which did not exist as a U.S. Commonwealth when the Act was first passed. Pub. L. 113-34. The term “coastline,” as defined in the Submerged Lands Act, means “the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters.” 43 U.S.C. § 1301(c). Coastlines are ambulatory, however, and may be “modified by accretion, erosion, and reliction.”  48 U.S.C. § 1705(a).

Although the Act grants the named territories rights in the submerged lands mentioned above, the U.S. retains certain lands and mineral rights. For example, the U.S. retains rights in submerged lands adjacent to property owned or acquired by the U.S. or lands previously determined to have scientific, scenic, or historic character warranting preservation (like National Monuments or National Parks). Id. § 1705(b). In addition, the Act gave the President authority to except from conveyance all submerged lands he elected to designate for retention by the United States, provided such designation occurred within 120 days after enactment, i.e., before February 3, 1975, with respect to American Samoa, Guam, and the Virgin Islands, and January 16, 2014, with respect to the Commonwealth of the Northern Mariana Islands. President Ford exercised this authority on February 1, 1975, excepting from conveyance submerged lands adjacent to the Buck Island Reef National Monument in the Virgin Islands, the Rose Atoll National Wildlife Refuge in American Samoa, and certain lands used for defense needs in Guam and the Virgin Islands. Proc. 4346 (40 Fed. Reg. 5127); Proc. 4347 (40 Fed. Reg. 5129). President Obama exercised this authority after the Act was amended in 2013 to retain federal title to certain submerged lands adjacent to the Commonwealth of the Northern Mariana Islands, protecting both military training areas and areas with pristine natural resources. Proc. 9077 (79 Fed. Reg. 3479). Though the Act does not directly transfer rights to deposits of oil, gas, or other minerals, it instructs the Secretary of the Interior to convey such rights in the submerged lands to the named territories within 60 days after enactment—subject to existing leases or permits—after which time all benefits from those rights are to accrue to the territories. 48 U.S.C. § 1705(d).

The seaward limit of the Act is three geographical miles seaward of the coastline of each territory named in the Act (equivalent to three nautical miles).

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

Last updated June 6, 2018

Whaling Convention Act of 1949, 16 U.S.C. §§ 916-9161

The Whaling Convention Act of 1949 implements the International Convention for the Regulation of Whaling. Under the Act, it is illegal for any person subject to the jurisdiction of the United States to engage in whaling in violation of the Convention or of the Act. 16 U.S.C. § 916c(a)(1). It is also illegal to ship, transport, purchase, sell, offer for sale, import, export, or possess a whale or whale product taken in violation of the Convention or the Act. 16 U.S.C. § 916c(a)(2). Currently, the only whaling regulated under the Act is aboriginal subsistence whaling, and separately, the Marine Mammal Protection Act prohibits commercial whaling. 16 U.S.C. § 1372(f).

The Act applies to any "person," a term defined to mean "every individual, partnership, corporation, and association subject to the jurisdiction of the United States." 16 U.S.C. § 916(d). The phrase "subject to the jurisdiction of the United States" is not further defined in the Act. There is no geographical limit for the Act’s application to U.S. nationals and U.S. flag vessels. For non-nationals and foreign flag vessels, the seaward limit of the Act’s application is the seaward limit of U.S maritime jurisdiction (200 nm from the territorial sea baseline).

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

Last updated May 24, 2018

U.S. Coast Guard Law Enforcement Authority, 14 U.S.C. § 522 (formerly codified at 14 U.S.C. § 89)

Congress enacted 14 U.S.C. § 89 in 1936 to clarify the scope of the U.S. Coast Guard’s (USCG) law enforcement authority. (14 U.S.C. § 89 was renumbered in 2018 as 14 U.S.C. § 522.) This authority dates back to Section 31 of the Revenue Service Act of 1790, an act of the First Congress, the same Congress that enacted the Bill of Rights, including the Fourth Amendment’s protections against unreasonable searches and seizures. See § 31 of the Act of Aug. 4, 1790, ch. 35, 1 Stat. 145, 164.

 

One of the USCG’s missions is to enforce or assist in the enforcement of all applicable federal laws on, under, and over the high seas and waters subject to the jurisdiction of the United States. See 14 U.S.C. § 102 (formerly codified at 14 U.S.C. § 2). Specifically, the USCG has the authority to “make inquiries, examinations, inspections, searches, seizures, and arrest upon the high seas and waters over which the United States has jurisdiction for the prevention, detection, and suppression of violations of laws of the United States.” See 14 U.S.C. § 522(a). The USCG’s ability to exercise its authority under 14 U.S.C. § 522 depends on several factors: the State in which the vessel is flagged, the location of the vessel, and application of the Fourth Amendment.

Under this authority, the USCG may board, search, and seize vessels flagged in the United States anywhere outside the territorial sea of a foreign State, subject to the constitutional guarantees of the Fourth Amendment. As for foreign flagged vessels, the USCG’s authority depends on which maritime zone the vessel is located and the nature of the law to be enforced, consistent with the Law of the Sea Convention. As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the Fourth Amendment.

The following table summarizes the USCG’s law enforcement authority at sea under 14 U.S.C. § 522(a), as to U.S. and foreign flagged vessels.

Flag of Vessel

Maritime Zone

Authority to Board

Authority to Search

Authority to Seize

U.S. Flag

Anywhere outside the territorial sea of a foreign State

Generally yes, to conduct safety and document inspections, even in the absence of reasonable suspicion

Subsequent and more extensive searches are circumscribed by the 4th Amendment and require probable cause/reasonable suspicion

Fourth Amendment applies

Foreign Flag

In waters subject to U.S. jurisdiction (i.e., internal waters, territorial sea)

 

Generally yes, subject to certain international law restrictions (such as innocent passage, force majeure)

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

 

Contiguous Zone

Limited to the enforcement of fiscal, immigration, sanitation, and customs laws

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

Exclusive Economic Zone

Limited to the enforcement of natural resource laws

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

As a matter of practice and policy, the USCG treats U.S. nationals and foreign nationals the same with respect to the 4th Amendment

Beyond Waters subject to U.S. jurisdiction (i.e., High Seas, foreign territorial seas)

Generally, consent is needed from the State whose flag the vessel flies (unless subject to a universally recognized exception under international law)

Depends on the scope of flag State consent. The permissions and limitations surrounding that search should also be agreed upon as part of that authorization

Depends on the scope of flag State consent, whether the flag State agrees to seizure, and if so, under which State’s procedures.

 

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

Last updated January 21, 2021

Vessel Incidental Discharge Act of 2018, P.L. 115-282 (Dec. 4, 2018) (codified as amended in scattered sections of Titles 16, 18, 33, and 46)

The Vessel Incidental Discharge Act of 2018 (VIDA) provides for the establishment of uniform, environmentally sound standards and requirements for the management of discharges incidental to the normal operation of a vessel.  P.L. 115-282 Title IX Sec. 902 (a)(1). Under VIDA, the U.S. Environmental Protection Agency (EPA) is charged with primary responsibility for promulgating standards of performance related to the discharge of pollutants from vessels, and the U.S. Coast Guard is charged with the primary responsibility for prescribing, administering, and enforcing regulations, consistent with EPA’s discharge standards, for the design, construction, installation, and operation of the equipment and management practices required on board vessels. Sec. 902 (a)(2)-(3). VIDA is part of an effort to reduce the spread of aquatic nuisance species in waters of the United States and the contiguous zone.  See, e.g., 33 USC § 1322(p)(2)(B)(ii)(I); 33 USC § 1322(p)(4)(E)(i)(I). 

VIDA regulates ballast water from all vessels, except recreational vessels, vessels of the Armed Forces, and permanently moored floating craft.  See EPA, Vessel Incidental Discharge Act (VIDA); 33 USC § 1322(p)(2)(B). VIDA’s ballast water requirements apply to all regulated vessels bound for a port or place of destination subject to the jurisdiction of the United States. 33 U.S.C. § 1322(p)(6)(B)(i). 

With certain exemptions and exceptions, VIDA requirements can be summarized as follows:

-Generally, vessels with empty ballast tanks must conduct a ballast water exchange or saltwater flush not less than 200 nautical miles from shore for a voyage originating outside the U.S. or Canadian Exclusive Economic Zone (EEZ), or not less than 50 miles from shore for a voyage originating within either the U.S. or Canadian EEZ. 33 U.S.C. § 1322(p)(6)(B)(i). 

-An owner or operator entering the St. Lawrence Seaway through the mouth of the St. Lawrence River must conduct a complete ballast water exchange or saltwater flush not less than 200 miles from any shore for a voyage originating outside the U.S. or Canadian EEZ, or not less than 50 miles from shore for a voyage originating within the U.S. or Canadian EEZ. 33 U.S.C. § 1322(p)(10)(A)(i). 

-Commercial vessels operating within the Pacific Region (federal or State water adjacent to Alaska, California, Hawaii, Oregon, or Washington, including the EEZ) must complete ballast water exchange more than 50 nautical miles from shore. 33 U.S.C. § 1322(p)(10)(C)(ii)(I). A vessel carrying low-salinity ballast water to the Pacific Region must conduct a complete ballast water exchange not less than 50 nautical miles from shore if the source was within the Pacific Region, and not less than 200 nautical miles from shore if the source was from outside the Pacific Region. 33 U.S.C. § 1322(p)(10)(C)(iii)(I). 

EPA has not yet promulgated its standards, which are due by December 2020. 33 U.S.C. § 1322(p)(4)(A)(i). The U.S. Coast Guard’s regulations are due no later than two years after the date on which the EPA promulgates its standards. 33 U.S.C. § 1322(p)(5)(A)(i). Until the effective date of the Coast Guard VIDA regulations, the requirements of the NPDES vessel general permit (applicable to the seaward limit of the Clean Water Act’s three-mile territorial seas) continue to apply. When the Coast Guard regulations become effective, the substantive control requirements will extend an additional nine miles to the seaward edge of the CWA’s contiguous zone, 

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

Related USCG Ballast Water Regulations

Last updated Sept. 4, 2019

 

Wilderness Act of 1964, Public Law 88-577 (16 U.S.C. §§ 1131-1136) 

The Wilderness Act was enacted on September 3, 1964, to preserve and protect certain lands “in their natural condition” and thus “secure for present and future generations the benefits of an enduring resource of wilderness.” 16 U.S.C. § 1131(a).  The Act defines “wilderness” as “an area of undeveloped Federal land retaining its primeval character and influence, without permanent improvements or human habitation, which is protected and managed so as to preserve its natural conditions and which (1) generally appears to have been affected primarily by the forces of nature, with the imprint of man’s work substantially unnoticeable; (2) has outstanding opportunities for solitude or a primitive and unconfined type of recreation; (3) has at least five thousand acres of land or is of sufficient size as to make practicable its preservation and use in an unimpaired condition; and (4) may also contain ecological, geological, or other features of scientific, educational, scenic, or historical value.”  16 U.S.C. §1131(c).

The Wilderness Act established the National Wilderness Preservation System, which initially designated 9.1 million acres as wilderness and presently includes 109,511,966 million acres of protected wilderness including wilderness areas on National Forests, National Parks, National Wildlife Refuges, and Bureau of Land Management lands. Congress designates new wilderness areas through legislation which sets the boundaries of the wilderness area and may include special provisions for the management of the area. Wilderness lands are subject to specific management restrictions under the Wilderness Act including a prohibition on commercial enterprise and permanent roads as well as a restriction on temporary roads, use of motor vehicles, motorized equipment or motorboats, landing of aircraft, other form of mechanical transport, and structure or installations “except as necessary to meet minimum requirements for the administration of the area for the purpose of this Act.” U.S.C. § 1133(c).  The Wilderness Act also includes specific provisions for commercial services, established use of motorboats and aircraft, mineral activities, and water resources.  U.S.C. § 1133(d). 

Congress usually designates wilderness areas on land but has also designated submerged lands and waters as wilderness.  Examples include the Florida Keys Wilderness, the Alpine Lakes Wilderness, the Oregon Islands Wilderness and the Boundary Waters Canoe Area Wilderness.

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