HOW TO SERVE LEGAL PAPERS ON THE NOAA

NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

By: Akanksha A. Panicker

At the helm of the winds and the seas, the National Oceanic and Atmospheric Administration is responsible for observing the oceans and weather systems in the country. NOAA is an American scientific agency subsisting within the United States Department of Commerce that monitors the oceans, river systems, and the environment.

NOAA forecasts severe weather, maps oceans, advises the usage and conservation of ocean and maritime assets, and performs studies to enhance environmental stewardship. 

[1.] HISTORY OF THE NOAA

NOAA traces its history back to multiple agencies, some of which were among the oldest in the federal government: The most direct predecessor of NOAA was the Environmental Science Services Administration (ESSA), into which several existing scientific agencies such as the United States Coast and Geodetic Survey, the Weather Bureau and the uniformed Corps were already absorbed in 1965. 

NOAA was established within the Department of Commerce via the Reorganization Plan Number 4 and formed on October 3, 1970. under the direction of President Nixon. Interestingly, an internal feud between President Nixon and his interior secretary Wally Hickel over Nixon’s Vietnam War policy was what allotted the NOAA to the Department of Commerce instead of the Department of Interior.  In 2013, NOAA, unfortunately, closed over six hundred weather stations. 

NOAA’s specific roles are trifold in nature, are centered around providing information about the state of the ocean, managing environmental use, and conducting further research into global ecosystems. By providing information on environmental products, NOAA provides intelligence about the status of the oceans and the environment to its clients and collaborators. This would be evident in the National Weather Service’s output of weather alerts and predictions. Still, NOAA’s knowledge commodities often provide geography, habitats, and trade with vital know-how as well. 

NOAA is also the leading environmental steward and provides services in its protective capacity of coastal and aquatic environments in the United States. NOAA’s stewardship means working alongside federal, municipal, territorial, and foreign officials to police and preserve the usage of the ocean and its species and habitats and manage fisheries and protected areas of significance to ensure the survival of vulnerable and endangered species. This also means that NOAA has to conduct independent scientific research and thus further impartial and relevant statistics for the management and scientific challenges regarding the four topics of national and global importance, being ecosystems, climate, weather and water, and commerce and transportation. 

The five ‘fundamental activities’ that the NOAA conducts are [A.] using tools and data acquisition networks to track and observe Earth structures, [B.] understanding and explaining Earth processes by data study and interpretation, [C.] evaluating and forecasting the evolution of these processes over time. [D.] providing valuable resources to the public and partner organizations through engaging, advising, and informing them and [E.] managing capital to benefit society, the community, and the climate. 

[2.0] BRANCHES OF THE NOAA

NOAA works toward its mission through six major line offices: the National Environmental Satellite, Data, and Information Service (NESDIS), the National Marine Fisheries Service (NMFS), the National Ocean Service (NOS), the National Weather Service (NWS), the Office of Oceanic and Atmospheric Research (OAR) and the Office of Marine & Aviation Operations (OMAO). 

  1. National Environmental Satellite, Data, and Information Service: The purpose of NESDIS is to administer and maintain the US environmental satellite systems and manage NWS data and that of other government agencies and departments. NESDIS’s National Centres for Environmental Information (NCEI) preserve information gathered by NOAA, the United States Navy, the United States Air Force, the Federal Aviation Administration, and meteorological services across the world, and includes the Centre for Weather and Climate (previously NOAA’s National Climatic Data Centre), the National Coastal Data Development Centre (NCDDC), and the National Oceanographic Data Centre (NODC).
  2. The National Weather Service (NWS) is responsible for weather, hydrogeologic, and environment predictions and alerts for the United States, its territories, adjacent seas, and ocean zones to the conservation of life and property and the stimulation of economic growth of the country.  This is accomplished through national and regional centers and river forecast centers (RFCs), and even local weather forecast offices (WFOs). On a routine basis, they are responsible for providing weather and river reports, advisories, alerts, and notices.  NOAA data is often applicable to global warming and ozone depletion problems.
    The NWS also manages NEXRAD, a nationwide organization of Doppler weather radars capable of detecting precipitation and determining its velocity. Almost all of their items are transmitted on NOAA Weather Radio, a radio transmissions channel that delivers weather reports, extreme weather announcements, forecasts, and warnings around the clock.
  3. National Ocean Service: NOS  is responsible for keeping the ocean and coastal areas protected, secure, and sustainable. NOS biologists, natural resource professionals, and experts support America by maintaining secure and reliable maritime transportation, encouraging creative coastal community protection strategies, and conserving marine and coastal places.
  4. National Marine Fisheries Service: NMFS was established in 1871 with the main objective of researching, protecting, managing, and restoring commercial and recreational fisheries, as well as their biodiversity and endangered organisms. The National Marine Fisheries Service (NMFS) has twelve headquarter offices and multiple other centers located in the United States and U.S. territories that conduct the study and protect marine resources. 
  5. Office of Oceanic and Atmospheric Research (OAR): NOAA study, carried out by the OAR, is the guiding force behind NOAA sustainable goods and services that preserve life and property while also promoting economic development. Tornadoes, earthquakes, atmospheric instability, solar flares, increases in ozone, air emission transport and dispersion, El Nino/La Nina incidents, fisheries production, ocean tides, deep-sea thermal vents, and coastal habitat protection are among the environmental patterns studied in OAR labs and through extramural projects. NOAA research also creates cutting-edge technology and observation systems.
  6. Office of Marine & Aviation Operations (OMAO): OMAO administers the NOAA fleet of ships and aircraft. Additionally, OMAO is responsible for training divers to facilitate Earth observation safely. In addition to research and monitoring activities critical to NOAA’s mission, OMAO ships and aircraft provide immediate response capabilities for unpredictable events. Following

President Biden’s administration has currently proposed a budget increase for the National Oceanic and Atmospheric Administration that would be the biggest in the agency’s history if approved by Congress, providing USD 6.9 billion in funding. 

 [3.0] HOW TO SERVE THE NOAA

Subpoenas requesting certified weather data may be issued from NOAA’s National Data Climatic Centre (NCDC) in Asheville, North Carolina. The NCDC is the custodian of weather records and certifies that the documents are authentic and true copies of meteorological records on file at NCDC. The NCDC may be contacted via telephone, fax, or email by the COVID pandemic. 

While service is levied on the NOAA, several considerations are to be kept in mind when delivering a subpoena on any of the NOAA’s line offices. In fact, taking the NWS alone, it must be remembered that  Department of Commerce (DOC) regulations generally prohibit NOAA’s National Weather Service (NWS) employees from appearing as witnesses in litigation not involving the United States.

Employee evidence via testimony is strictly regulated and is rarely permitted. In cases where it actually is permitted, the United States Government almost always has a vested interest in the litigation. Furthermore, an NWS employee does not offer expert or opinion witness evidence with another body or a party other than the United States.  The regulations are originally based on expenditure and workforce constraints. The Department has cited the manifold nature of demands for testimony and the vast amount being issued each year to properly answer all inquiries whilst also carrying out the NWS task of providing weather predictions, alerts, and notifications for the safety of life and property.  Officially, the issuance restriction on subpoenas stems from this reasoning.

Under the Department of Commerce and the cited policy considerations, if a warrant served on an NWS employee is not revoked, the NOAA Office of General is expected to call the US Attorney’s office and recommend the office submit a motion quash. Such applications are almost always authorized. Under these cases, a sound legal precedent provides for federal workers to be exempt from civil subpoenas imposed by state courts, and the NOAA follows this.

If it is not practicable to get the subpoena quashed until the implementation date due to scheduling limits, the employee would be advised to report at the time and position specified in the subpoena. The employee would also be required to provide a copy of the DOC rules, notify the legal tribunal that counsel has directed them not to provide the requisite testimony, and politely refuse to testify. 

[3.1] WEATHER DATA INTERPRETATION REQUESTS

In principle, state evidence laws allow the inclusion of NWS accredited documents without any need for validating testimony by an NWS employee. Interpreting the documents is needed; a private meteorologist is usually required to provide testimony for the court. The NWS keeps a directory of private, licensed meteorologists on file that can be called upon to offer expert testimony.

The NOAA National Climatic Data Centre (NCDC) in Asheville, North Carolina, is the official custodian of the weather records of the NWS.  The NCDC receives a large number of applications for certified documents for legal purposes. As the custodian of the records, the NCDC certifies that the certificates are genuine and true versions of climatological statistics on file at the NCDC.

Differential litigation can be dealt with through two means offered by the  NCDC, being through [A.] a Department of Commerce Certification which requires authorization by the NCDC Records Custodian and Director or designated representatives with an attached blue ribbon and the official gold embossed seal of the agency and [B.] a General Certification that is sufficient by authorization from a  designated officer with no ribbon or seals.   Both certifications have been drafted to comply with general evidentiary requirements for documents introduced under exceptions to the hearsay rule. NCDC does not require a subpoena to provide certified records.

Climate change is affecting the globe from warmer ocean temperatures to longer and more intense droughts and heatwaves. On Earth Day, the efforts of scientists at NOAA to track, understand and predict how climate change is progressing and impacting ecosystems, communities, and economies should be recognized. As a scientific agency, the research that the NOAA is important to facilitate a better planet. 

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Sources

1. United States Coast and Geodetic Survey, formed in 1807.

Weather Bureau of the United States, formed in 1870.

Bureau of Commercial Fisheries, formed in 1871 (research fleet-only).

Coast and Geodetic Survey Corps, formed in 1917.

2. Reorg. Plan No. 4 of 1970, 3 C.F.R. xx (1970)

3. Since January 2020, NOAA has been headed by Benjamin Friedman, acting Under the Secretary of Commerce for Oceans and Atmosphere and NOAA interim administrator. NOAA has not had a confirmed leader since January 2017. President Trump nominated two different candidates during his term, but neither was ever confirmed, and President Joe Biden has yet to name a nominee

4. U.S. President Richard Nixon proposed creating a new agency to serve a national need for ‘better protection of life and property from natural hazards… for a better understanding of the total environment… [and] for exploration and development leading to the intelligent use of our marine resources  

5. Nixon did not like Hickel’s letter urging Nixon to listen to the Vietnam War demonstrators, and thus punished Hickel by not putting NOAA in the Interior Department.

6. Since February 25, 2019, Neil Jacobs, Assistant Secretary of Commerce for Environmental Observation and Prediction, has served as acting Under Secretary of Commerce for Oceans and Atmosphere at the US Department of Commerce and NOAA’s interim administrator

7. Not including more than a dozen staff offices, including the Office of the Federal Coordinator for Meteorology, the NOAA Central Library, the Office of Program Planning and Integration (PPI).

8. Also recognized as NOAA Fisheries

9. The NMFS also runs the National Oceanic and Atmospheric Administration Fisheries Office of Law Enforcement in Silver Spring, Maryland, which is the principal location for aquatic resource law enforcement.

10. 151 Patton Avenue, Room 120
Asheville, NC 28801-5001

11. Website: http://www.ncdc.noaa.gov/oa/ncdc.html

12. Telephone: 828-271-4800
Fax:: 828-271-4876
Email: ncdc.info@noaa.gov

13. 15 CFR § 15.18 – Testimony of Department employees in proceedings involving the United States.

The following applies in legal proceedings in which the United States is a party:

(a) A Department employee may not testify as an expert or opinion witness for any other party other than the United States.

(b) Whenever, in any legal proceeding involving the United States, a request is made by an attorney representing or acting under the authority of the United States, the General Counsel, or the Solicitor, or appropriate agency counsel will make all necessary arrangements for the Department employee to give testimony on behalf of the United States. Where appropriate, the General Counsel, or the Solicitor, or the appropriate agency counsel may require reimbursement to the Department of the expenses associated with a Department employee giving testimony on behalf of the United States.

14. 15 CFR § 15.13 – Demand for testimony or production of documents: Department policy.

No employee shall in response to a demand, produce any documents, or provide testimony regarding any information relating to, or based upon Department of Commerce documents, or disclose any information or produce materials acquired as part of the performance of that employee’s official duties, or because of that employee’s official status without the prior authorization of the General Counsel, or the Solicitor, or the appropriate agency counsel. The reasons for this policy are as follows:

(a) To conserve the time of Department employees for conducting official business;

(b) To minimize the possibility of involving the Department in controversial issues that are not related to the Department’s mission;

(c) To prevent the possibility that the public will misconstrue variances between personal opinions of Department employees and Department policy;

(d) To avoid spending the time and money of the United States for private purposes;

(e) To preserve the integrity of the administrative process; and

(f) To protect confidential, sensitive information and the deliberative process of the Department.

15. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)

Under Department of Justice Order No. 3229, issued by the Attorney General under 5 U.S.C. § 22, a subordinate official of the Department of Justice refused, in a habeas corpus proceeding by a state prisoner, to obey a subpoena duces tecum requiring him to produce papers of the Department in his possession.

 It was held that the order was valid, and the subordinate official properly refused to produce the papers. Pp. 340 U. S. 463-468.

16. See, http://www.weather.gov/im/dirintro.htm.  

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