[Federal Register: October 12, 2004 (Volume 69, Number 196)]
[Proposed Rules]
[Page 60569-60592]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12oc04-20]
[[Page 60569]]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 904
[Docket No. 040902252-4252-01; I.D. 092804C]
RIN 0648-AS54
Civil Procedures
AGENCY: Office of General Counsel for Enforcement and Litigation,
National Oceanic and Atmospheric Administration, Commerce.
ACTION: Proposed rule.
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SUMMARY: NOAA is proposing amendments and technical refinements to its
Civil Procedures which govern NOAA's administrative proceedings for
assessment of civil penalties; suspension, revocation, modification, or
denial of permits; issuance and use of written warnings; and release or
forfeiture of seized property.
DATES: Submit comments on or before December 13, 2004.
ADDRESSES: Comments should be submitted in writing to Meggan Engelke-
Ros, Enforcement Attorney, Office of General Counsel for Enforcement
and Litigation, 8484 Georgia Avenue, Suite 400, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Meggan Engelke-Ros or Susan S.
Beresford, 301-427-2202.
SUPPLEMENTARY INFORMATION:
I. Background
NOAA is proposing to amend the civil procedure rules that apply to
its administrative proceedings as described below. NOAA is proposing
the changes described herein to: (1) Conform the civil procedure rules
to changes in applicable federal laws and regulations; (2) improve the
efficiency and fairness of administrative proceedings; (3) clarify any
ambiguities or inconsistencies in the existing civil procedure rules;
(4) eliminate redundant language and correct language errors; and (5)
conform the civil procedure rules to current agency practice.
II. Proposed Revisions
Subpart A--General
1. Purpose and Scope
Section 904.1: This section would be amended to add new statutory
references: American Fisheries Act of 1998; Anadromous Fish Products
Act; Antarctic Protection Act; Atlantic Coastal Fisheries Cooperative
Management Act; Dolphin Protection Consumer Information Act; Driftnet
Impact Monitoring, Assessment, and Control Act; Fish and Seafood
Promotion Act of 1986; Fisherman's Protective Act of 1967; High Seas
Fishing Compliance Act; North Pacific Anadromous Stocks Convention Act
of 1992; Northwest Atlantic Fisheries Convention Act of 1995; Shark
Finning Prohibition Act; South Pacific Tuna Act of 1988; and the
Weather Modification Reporting Act. These additions would reflect
statutes passed or amended since the last revision of these procedural
regulations as well as statutes inadvertently left out of the current
regulations. These statutes authorize NOAA to assess civil penalties
and conduct seizures of property subject to forfeiture and, therefore,
are subject to the application of this chapter of the Code of Federal
Regulations.
Reference to the North Pacific Fisheries Act of 1954 was deleted
because the statute is no longer in effect.
The proposed revision would also change ``Magnuson Fishery
Conservation and Management Act'' to ``Magnuson-Stevens Fishery
Conservation and Management Act'' to reflect the amendment to the title
of that statute. (For consistency, references to ``Magnuson Act'' have
been amended to ``Magnuson-Stevens Act'' throughout these regulations.)
Likewise, the proposed revision would change ``National Marine
Protection, Research, and Sanctuaries Act'' to ``National Marine
Sanctuaries Act''.
2. Definitions
Section 904.2: The term ``ALJ Docketing Center'' is proposed for
addition to the definitions section. The term ``authorized officer'' is
proposed for addition to the definitions section. The definition of
``decision'' would be amended to coincide with the existing definitions
of ``initial decision'' and ``final administrative decision''. A
definition of the acronym ``NIDP would be added for clarity. A
definition of the acronym ``NMFS'' would be added for clarity. A
definition of the acronym ``NOPS'' would be added for clarity. A
definition of the acronym ``PPIP'' would be added for clarity. The term
``settlement agreement'' would be added to the definitions section, and
includes agreements providing for payment of civil penalties,
eliminating the need for a separate definition of the term ``payment
agreement'', which is deleted. A definition of the acronym ``USCG''
would be added for clarity. The term ``vessel owner'' would be revised
to improve accuracy.
3. Filing and Service of Notices, Documents and Other Papers
Section 904.3: This section heading would be amended from ``Filing
and service of documents'' to ``Filing and service of notices,
documents and other papers'', to consolidate and distinguish procedures
for service and filing of notices (NOVAs, NOPS, NIDPs) and other
documents. (See Sec. 904.202). During the review process, GCEL will be
reviewing the technological issues related to the feasibility of e-
transmission of documents. If the technology and procedures for e-
transmission have developed to a point where they can be effectively
utilized for notices and documents, GCEL will include the authority to
permit e-transmission, which may include the further development of
specific language to address the unique issues associated with e-
transmission. Any comments on the viability of e-transmission for
documents related to litigation are welcome.
4. Computation of Time Periods
Section 904.4: A new section, Sec. 904.4, ``computation of time
periods'', would be created from the present Sec. 904.3(d) to explain
the rules relating to computation of time periods that apply to notices
and to other types of documents which are filed and served. The
proposed rules relating to computation of time periods comport with
those established by the Federal Rules of Civil Procedure.
5. Appearances
Section 904.5: A new section, Sec. 904.5, ``Appearances'', would
be created, replacing Sec. 904.203, ``Appearances'', which would be
eliminated. The new section would include the existing language of
Sec. 904.203, and add a new requirement that any attorney or other
representative enter a written notice of appearance when representing a
person regarding an Agency enforcement matter, or when representing a
party in any civil administrative hearing.
Subpart B--Civil Penalties
1. Notice of Violation Assessment (NOVA)
Section 904.101: Paragraph (a) would be amended to delete redundant
language in the first sentence pertaining to service of the NOVA, as
this would be fully covered by the operative provisions of proposed
Sec. 904.3. The second sentence of Sec. 904.101(a)(4) would be
modified and designated as a new Sec. 904.101(a)(5). No substantive
change is intended by this revision.
[[Page 60570]]
2. Procedures Upon Receipt of a NOVA
Section 904.102: Paragraph (a)(3) would be amended for internal
consistency to specify the appropriate cross-reference to the section
of the rule concerning hearing requests.
Paragraph (a)(5) would be amended to clarify that, if a respondent
takes no action, the NOVA would become a final administrative decision,
in accordance with Sec. 904.104.
In paragraphs (b) and (c), the phrase ``permit holder or vessel
owner'' would be deleted, so that only the respondent has legal
standing to seek amendment or modification of the NOVA, or to request
an extension of time in which to respond to the NOVA. The sentence in
paragraph (a)(5), allowing permit holders and vessel owners to respond
to NOVAs, would be deleted so that only respondents may respond.
Paragraphs (e) through (g) would be deleted, as they would be fully
covered by the proposed new and amended Sec. 904.201(a)-(c).
3. Hearing and Administrative Review
Section 904.103: Paragraph (a) would be amended for internal
consistency to specify the appropriate cross-reference to the section
of the rule regarding the right to request a hearing upon receipt of a
NOVA, Sec. 904.102(a)(3).
The first sentence of paragraph (b) would be deleted as the
requirement for an initial decision would be covered under amended
Sec. 904.271. The second sentence of paragraph (b) would be deleted to
remove reference to the discretionary review process currently
described in Sec. 904.273, which would be deleted so that the Judge's
decision (after consideration of any petition for reconsideration)
would become the agency's final decision.
4. Final Administrative Decision
Section 904.104: Paragraphs (a) and (b) would be amended for
internal consistency to specify the appropriate cross-reference to the
section of the rule regarding submitting hearing requests, Sec.
904.201(a).
5. Payment of Final Assessment
Section 904.105: Paragraph (a) would be amended to substitute
``Department of Commerce/NOAA'' for ``Treasurer of the United States''
to clarify that civil penalties are to be deposited to the Department
of Commerce/NOAA account in the United States Treasury. Paragraph (b)
would be amended to add the phrase ``or may commence any other lawful
action'' to clarify that NOAA may pursue all lawful options for
collecting an unpaid final civil penalty assessment. For example, NOAA
may sanction a permit if the permit holder fails to pay a final
assessment, pursuant to Sec. 904.310, or the matter may be referred to
a collection agency, or both. No substantive change is intended by this
revision.
6. Compromise of Civil Penalty
Section 904.106: In paragraph (b) unnecessary language pertaining
to the penalty compromise authority of NOAA would be deleted. For
editorial consistency, the reference to the ``alleged violator'' would
be changed to ``respondent''.
7. Joint and Several Respondents
Section 904.107: Paragraph (a) would be amended to clarify the
extent of liability for civil penalties assessed against joint and
several respondents.
Paragraph (b) would be amended to clarify and emphasize how a
hearing request by a joint and several respondent would be processed.
Paragraph (d) would be added to specify that where Agency counsel
has negotiated a settlement with one joint and severally liable
respondent for less than the full amount of the proposed penalties and/
or sanctions, then the remaining joint and several respondents would
remain liable for the unsatisfied portion of the proposed penalties and
sanctions.
8. Factors Considered in Assessing Penalties
Section 904.108: Paragraph (a) would be amended to reflect that
NOAA will take into account a respondent's ability to pay when
assessing a civil penalty for a violation of a statute NOAA
administers, when the statute in question so requires.
Paragraph (e) would be amended to establish the appropriate time
period for submission, to NOAA, of financial information on ability to
pay. Proposed paragraph (e) would provide that the information should
be provided within 60 days of the receipt of a Notice of Violation and
Assessment. Paragraph (e) would also amend the deadline for submitting
verifiable financial information when the respondent has requested an
administrative hearing, and would like ability to pay to be considered
by the administrative law judge. Under this paragraph, if a respondent
produces financial information relating to ability to pay for the first
time at hearing, then Agency counsel would have 30 days following the
conclusion of the hearing to review and respond to the respondent's
information.
Two minor editorial changes would be made in paragraph (g). No
substantive change is intended by these revisions.
Changes proposed for paragraph (h) would clarify that the Agency is
required to submit information to the Judge regarding the respondent's
ability to pay only in those cases where the respondent has requested a
hearing under a statute that requires NOAA to take into consideration a
respondent's ability to pay when assessing a penalty.
Subpart C--Hearings and Appeal Procedures
Subpart C governs the procedures for hearings and appeals,
including case docketing, the filing of documents, the duties and
powers of judges, evidentiary matters, discovery, post-hearing matters,
and the process for filing administrative appeals.
General
1. Scope and Applicability
Section 904.200: Paragraph (a) would be amended to substitute
``final administrative decisions'' for ``final decisions'' to reflect
the proposed amended definition of ``Decision'' in Sec. 904.2.
Paragraph (b) would be amended to delegate authority to the Judges
to make initial and final decisions, and to take other actions related
to the conduct of hearings, without that authority being subject to the
administrative direction of the Chief Administrative Law Judge. This
paragraph would also be amended to substitute ``final administrative
decisions'' for ``final decisions'' to reflect the proposed amended
definition of ``decision'' in Sec. 904.2.
2. Hearing Requests and Case Docketing
Section 904.201: The heading would be amended to include reference
to hearing requests. For clarity and brevity, paragraph (a) would be
added to incorporate the language currently found at Sec. 904.102(e)
and would apply the procedures for requesting a hearing on a NOVAs,
NIDPs and NOPSs. ``Notice'' would be substituted for ``NOVA'' for
consistency with this revision.
Paragraph (b) would be added to incorporate and revise the language
currently found at Sec. 904.3(e) and Sec. 904.102(f), which have been
proposed for deletion. Under the proposed addition, the 10-day period
following the deadline for filing hearing requests and other documents
would no longer apply to all filings, but only to hearing requests.
Further, under the proposed addition, all hearing requests filed within
this 10-day period would be considered timely filed. Hearing requests
filed after the 10-day period
[[Page 60571]]
would be forwarded to the Office of Administrative Law Judges, where
they would be deemed untimely. The applicant would be notified in
writing that the hearing request was untimely. The proposed revision
would eliminate the Administrative Law Judge's authority to grant
requests to extend the time for hearing requests and Agency counsel's
discretion to deny hearing requests within the 10-day period.
Paragraph (c) would be added to incorporate the language of
existing paragraph 904.102(g), which is proposed for deletion. This
paragraph has been revised to allow any written communication from a
respondent to be treated as a request for a hearing, at Agency
counsel's discretion.
Paragraph (d) would be added to incorporate the language of
existing Sec. 904.201, with no revisions.
3. Filing of Documents
Section 904.202: Paragraph (a) would be amended to remove reference
to the discretionary review process currently described in Sec.
904.273, which would be deleted so that the Judge's decision (after
consideration of any petition for reconsideration) would become the
agency's final decision.
4. Appearances
Section 904.203: This section is proposed for deletion. A new
section, ``Appearances'', is proposed at Sec. 904.5.
5. Duties and Powers of Judge
Section 904.204: The introductory paragraph would be amended to
substitute ``render'' for ``make the'', for consistency with the
language of Sec. 904.271.
Paragraphs (b)-(o) would be redesignated as paragraphs (c)-(p). New
paragraph (a) would be added to authorize the Judge to rule on the
timeliness of hearing requests pursuant to proposed amended Sec.
904.201(b).
New paragraph (q) would be added to authorize the Judge to impose
sanctions on any party, or a party's representative, for failure to
comply with this part, or any order issued under this part. Sanctions
may only be issued if the failure to comply materially injures or
prejudices another party; is a clear and unexcused violation of this
part, or any order issued under this part; or unduly delays the
proceeding. Sanctions may be imposed upon the motion of any party or
sua sponte.
Paragraph (q)(3) would provide that notice and an opportunity to be
heard will be provided prior to the imposition of all sanctions, other
than refusal to accept late filings.
Paragraph (q)(4) would provide that imposition of sanctions is
subject to interlocutory review under Sec. 904.254.
These amendments are intended to improve the fairness and
efficiency of adjudicatory proceedings and comport with the civil
procedures of other federal agencies.
6. Pleadings, Motions, and Service
Section 904.206: Paragraph (a) would be amended to substitute
``Judge'' for ``Office of Administrative Law Judges'' and to add ``ALJ
Docketing Center''. This proposed revision would promote efficiency
because it would eliminate the need for the ALJ Docketing Center to
forward pleadings to the Judges assigned to cases. A technical revision
would also be made for internal consistency to specify the appropriate
cross-reference to the new section of the rule, which would be Sec.
904.3(b).
7. Amendment of Pleading or Record
Section 904.207: This section would be amended to create new
paragraph (a) which would allow parties to amend their pleadings until
20 days prior to a hearing without receiving permission from a Judge,
thus easing the hardship associated with amending a pleading. Within 20
days of a hearing, parties could amend a pleading only by leave of a
Judge, or with the written consent of the adverse party, thereby
facilitating non-contested amendments. The proposed revision would
require that Judges provide leave to amend pleadings when justice so
requires. Under the proposed revision, parties could also file
responsive pleadings within the time that remains for responding to the
original pleading, or within 10 days after service of the amended
pleading, whichever time period is longer, unless otherwise ordered by
a Judge.
Paragraph (b) would added based on language currently found in
Sec. 904.207, with a proposed amendment to remove the Judge's
discretion to permit a party to amend a pleading to make a more
definite statement upon conditions fair to both parties. The Judge's
authority to permit an amendment of the pleadings for any reason,
including to make a more definite statement, would be governed by
revised Sec. 904.207(a).
Paragraph (c) would be created from language currently found in
existing Sec. 904.207, with a proposed amendment to emphasize that the
Judge has broad discretion to allow corrections of harmless errors in
pleadings and elsewhere in the record.
8. Expedited Proceedings
Section 904.209: This section would be amended to allow expedited
hearings to be scheduled no earlier than five business days, rather
than three days, after notice that an expedited hearing is granted,
unless all parties consent to an earlier date. This proposed amendment
would allow parties more time to prepare their cases for hearing than
the current rule provides, although both the current and proposed rule
allow the parties to agree to an earlier hearing date.
9. Failure to Appear
Section 904.211: Paragraph (a) would be amended to reflect the fact
that, when a party appears at the hearing and no party appears for the
opposing side, the Judge is authorized to dismiss the case or to find
the facts as alleged in the NOVA and enter a default judgment against
the non-appearing party. By authorizing the Judge to enter a default
judgment when a party has failed to appear, the proposed amendments
would create a disincentive for a party to fail to appear at a hearing
once one has been requested and avoid the attendant expenses associated
with putting on such hearings.
A new paragraph (b) would be added to allow a party to petition the
Judge for reconsideration of a default judgment in accordance with
Sec. 904.272. Only petitions citing reasons for non-appearance will be
considered.
Existing paragraphs (b) and (c) would be redesignated as (c) and
(d).
A new paragraph (e) would be added to clarify that failure to
appear at a hearing shall not be deemed to be a waiver of the right to
be served with a copy of the Judge's decision.
10. Failure to Prosecute or Defend
Section 904.212: This section would be amended to describe certain
orders that the Judge may issue to bring about the efficient resolution
of a case. Specifically, the amendments would clarify that the Judge
may, whenever the record indicates that either party does not intend to
participate further in the proceeding, issue an order requiring the
party to show why the case should not be disposed of adversely to that
party's interests or to certify the party's intention to appear at a
scheduled hearing.
11. Settlements
Section 904.213: This section would be amended to require the Judge
to remove a case from the docket upon notification by the Agency that a
settlement has been reached, if settlement is reached before the record
[[Page 60572]]
is certified. The proposed revision would clarify that Judges do not
have the authority to approve or disapprove settlement agreements
reached by the parties.
12. Prehearing Conferences
Section 904.216: Paragraph (a) would be amended to require Judges
to give the parties at least twenty-four hours notice prior to
requiring the parties to appear for a conference or to participate in a
telephone conference, and would require that all conferences be
recorded. Paragraph (a)(7) would be amended to emphasize that the Judge
may hold a conference to discuss the status of any settlement
discussions.
Paragraph (b) would be amended to require Judges to provide a
transcript of pre-hearing conferences upon the request of the parties.
The proposed amendment would provide the parties with accurate records
of issues raised and matters decided during such conferences.
Discovery
1. Discovery Generally
Section 904.240: Paragraph (a) would amend the PPIP content and
filing requirements. This section would list the information required
to be submitted in a PPIP, and would include a new requirement that
Respondents must list all defenses, together with a summary of all
facts and law in support of each defense. This section would require
the signature of the party and any attorney retained, and would require
that copies of any exhibits listed be sent to the other parties. As the
PPIP is the main tool of discovery in NOAA administrative proceedings,
these requirements would further the purposes and goals of discovery.
This proposed revision would also make two technical changes. The first
change would be to move the text concerning the consequences of failing
to provide the required information in a PPIP to paragraph (f) and the
second would be to eliminate the cross-reference to Sec. 904.212.
2. Interrogatories
Section 904.242: The title of this section would be amended from
``Interrogatories to parties'' to ``Interrogatories''. This change is
proposed because the title was redundant.
Paragraph (b) would be amended to require the signature of a party
on answers and the signature of a party or attorney on objections. This
proposed amendment would bring the language more in line with language
of the Federal Rules of Civil Procedure.
Hearings
1. Notice of Time and Place of Hearing
Section 904.250: Paragraph (a) would be amended to emphasize that
the Judge is responsible for scheduling the hearing and giving proper
notice to the parties. This proposed revision would also strike the
words ``except in extraordinary circumstances'' in regards to having a
hearing in less than 20 days after notice has been given, and add the
words ``unless the hearing is expedited as provided under Sec.
904.250(c)''.
Paragraph (b) would be amended to delete language in the first
sentence that would appear in proposed Sec. 904.250(a). This paragraph
would also be revised to clarify that the Judge has authority to change
the date, time, or place of the hearing.
Paragraph (c) would be amended to eliminate provisions pertaining
to telephonic testimony as those provisions would now appear at Sec.
904.251(c).
New paragraph (d) would state the procedures for expedited
hearings.
2. Evidence
Section 904.251: Paragraphs (a), (b) and (d) would be redesignated
as sub-paragraphs (a)(1) through (a)(3).
New paragraph (b), ``Objections and offers of proof'', would be
added to specify the procedures for stating objections to the admission
or exclusion of evidence.
New paragraph (c), ``Testimony'', would be added to specify the
general requirements for receiving testimony into evidence.
New paragraph (d) would be added to address procedures for
processing exhibits and documents.
Former paragraphs (e) and (f) would be combined and incorporated in
a new paragraph (i), covering issues and procedures pertaining to proof
of foreign law.
Replacement paragraph (e)(1) would specify that photographs,
videotapes, etc. may be substituted for physical evidence at the
discretion of the Judge. Replacement paragraph (e)(2) would specify
when physical evidence will be retained by NOAA after a hearing.
Replacement paragraph (f) would govern admission of stipulations.
New paragraph (g) would specify procedures governing when and how
the judge could take official notice of certain matters.
New paragraph (h) would establish procedures to be administered by
the judge governing parties' access to documents containing classified,
confidential, or sensitive information.
3. Witnesses
Section 904.252: Paragraph (a), regarding the right to have
personal counsel, would be redesignated as paragraph (b), with a new
subheading but no substantive revisions.
Paragraph (b), concerning witness exclusion, would be redesignated
as paragraph (c). The redesignated paragraph would allow an authorized
officer to be considered a party for the purpose of applying the
witness exclusion rule.
Paragraph (c) would be redesignated as paragraph (a) regarding
witness fees and would be amended to clarify when and on what basis
witness fees would be paid.
Paragraph (d) would be redesignated as paragraph (f). A new
paragraph (d) ``Oath or affirmation'' would be added to specify that
witnesses must testify under oath.
Paragraph (e) ``Failure or refusal to testify'' would be added to
describe the actions the Judge may take in the event that a witness
fails or refuses to testify.
Redesignated paragraph (f) was amended to clarify that the use of a
court-certified interpreter is not mandatory, but is preferable.
4. Closing of Record
Section 904.253: This section would be redesignated as Sec.
904.254, ``Interlocutory review''.
A new Sec. 904.253 would be added, entitled ``Closing of record''.
The new section would require that, once the Judge closes the record,
the record may only be reopened for good cause shown and that any
approved corrections to the transcript be reflected in the record.
5. Interlocutory Review
Section 904.254: Current Sec. 904.254 would be redesignated as
Sec. 904.255 ``Ex parte Communications''. Redesignated Sec. 904.254
would be titled ``Interlocutory Review''.
The redesignated Sec. 904.254 would be amended to provide more
specific procedures and expand the bases for granting interlocutory
appeal. The party opposing interlocutory appeal would be granted 20
days to file its response, instead of 10 days.
6. Ex Parte Communications
Section 904.254: This section would be redesignated as Sec.
904.255 and amended for clarity. New paragraph (e) would be added to
allow the presiding judge to require any party who has made an ex parte
communication to show cause why its claim should not be dismissed or
otherwise adversely affected as a result of making the communication.
New paragraph (f)
[[Page 60573]]
would be added to explain when the prohibitions of this rule shall
apply.
Post-Hearing
1. Recordation of Hearing
Section 904.260: Paragraph (a) would be redesignated as paragraph
(b) and would be amended to require that the Agency assume the cost of
all hearing transcripts provided to both Agency and non-Agency parties.
This proposed amendment would codify the Agency's current practice of
providing Respondents with hearing transcripts at the Agency's expense.
Paragraph (b) would be redesignated as paragraph (c) with no
substantive revisions.
New paragraph (a) would clarify that all hearings must be recorded.
2. Post-Hearing Briefs
Section 904.261: Paragraph (a) has been amended for clarity and
reorganized into paragraphs (a) and (b).
Existing paragraph (b) would be redesignated as new paragraph (c),
and amended to state that a party may request that proposed findings
and conclusions, and reasons in support, be presented orally at the
close of the hearing. This proposed revision would promote prompt
decisions by the Judges, and the reduction of post-hearing costs to the
parties in administrative cases.
3. Documents, Copies and Exhibits
Section 904.262: This section would be deleted. However, many of
its provisions would be retained in the proposed revision to Sec.
904.251.
Decision
1. Record of Decision
Section 904.270(c) would be amended and redesignated as Sec.
904.253, entitled ``Closing of record''.
2. Initial Decision
Section 904.271: The title of this section would be changed from
``Decision'' to ``Initial Decision'' to conform with the new definition
of ``Initial Decision'' in amended Sec. 904.2.
Paragraph (a)(1) would be amended by striking a redundant and
unnecessary reference to proposed findings or conclusions presented by
the parties.
Paragraph (a)(2) would be amended to delete a requirement that the
Initial Decision must contain a statement of the facts noticed or
relied upon in the decision. The requirement is already covered under
paragraph (a)(1), which requires that the decision include findings and
conclusions ``on all material issues of fact''.
Paragraph (a)(3) would be amended to delete the catch-all
requirement that the Initial Decision include ``[s]uch other matters as
the Judge considers appropriate'' and substitute a new, specific
requirement that the decision set forth the date upon which the
decision will become effective.
New paragraph (a)(4) would be added to require that the Initial
Decision include a statement of the further right of appeal.
Paragraph (d) would be reorganized and amended for clarity. In
addition, this paragraph would be amended to remove reference to the
discretionary review process currently described in Sec. 904.273,
which would be deleted so that the Judge's decision (after
consideration of any petition for reconsideration) would become the
agency's final decision.
3. Petition for Reconsideration
Section 904.272(a): This paragraph would be amended to allow the
Judge to specify in an initial decision that a party may not file a
petition for reconsideration of an order or initial decision. The
proposed revision substitutes ``initial decision'' for ``decision''
throughout this section to comport with the new definition of ``initial
decision'' in amended Sec. 904.2. Under the proposed revision,
petitions must state with particularity the alleged errors and relief
sought. The proposed revision would provide that the filing of a
petition for reconsideration will operate as a stay of an order or
initial decision, or its date of effectiveness, unless ordered by the
Judge. This revision is intended to avoid petitions for reconsideration
becoming moot and, where appropriate, avoid permit sanctions and/or
civil penalties going into effect prior to the Judge's ruling on a
petition for reconsideration.
Section 904.272(d): This paragraph would be amended to remove
reference to the discretionary review process currently described in
Sec. 904.273, which would be deleted so that the Judge's decision
(after consideration of any petition for reconsideration) would become
the agency's final decision.
4. Administrative Review of Decision
Section 904.273: This section would be deleted so that the Judge's
decision (after consideration of any petition for reconsideration)
would become the agency's final decision. Currently, this section
provides an opportunity to petition the Administrator for review of the
Judge's decision. Review by the Administrator is discretionary and only
available in four limited circumstances. See 15 CFR 904.273(b).
Therefore, the Administrator must make the preliminary determination
that the necessary circumstances exist before reaching any decision on
the merits of the petition. During the five-year period ending
September 30, 2003, the Administrator found that one petition for
review met the regulatory criteria. When granted, discretionary review
is conducted on the record, without any opportunity for oral argument.
In contrast, appeals to Federal District Court can provide a Respondent
with increased opportunities to bring and present their case.
Respondents currently have the option of appealing a Judge's decision
directly to Federal District Court; that option was employed twice
during this five-year period. Requiring all appeals to proceed directly
to Federal District Court would bring cases to resolution in a more
timely manner, while preserving the Respondent's opportunity for
appeal.
Subpart D--Permit Sanctions and Denials
General
1. Scope and Applicability
Section 904.300: Paragraph (a) would be amended to delete the list
of reasons for suspension, revocation, modification, and denial of
permits, because these reasons are specified in Sec. 904.301.
Paragraph (b) would be amended to eliminate reference to
regulations that have been repealed.
2. Bases for Sanctions or Denials
Section 904.301: Paragraph (a) would be amended to clarify that
additional bases for sanctioning or denying permits may be authorized
by statute. Paragraphs (a)(2) and (a)(3) would receive minor editorial
revisions. New paragraph (a)(4) would be added to clarify that failure
to comply with the terms of a settlement agreement can constitute
grounds for a permit sanction. This amendment is intended to promote
compliance with settlement agreements.
Paragraph (b) would be amended for clarity, including by specifying
that a permit sanction may apply to a successor in interest to the
permit, as authorized by statute. The term ``fishery conservation
zone'' would be amended to ``Exclusive Economic Zone''.
Paragraph (c) would be amended for clarity. The sanction of a
vessel permit is not extinguished by sale or transfer of the vessel, or
change in ownership of the vessel, and remains in effect until lifted
by NOAA.
[[Page 60574]]
3. Notice of Permit Sanction (NOPS)
Section 904.302: Paragraph (a) would be amended to delete reference
to service of a NOPS by registered mail. A NOPS must be served
personally or by certified mail, return receipt requested.
4. Notice of Intent to Deny Permit (NIDP)
Section 904.303: This section would be amended to describe the
bases for denying permits.
5. Opportunity for Hearing
Section 904.304: Paragraphs (a) would be amended to provide the
appropriate cross-reference to Sec. 904.201, Hearings. The provisions
of paragraph (c) have been incorporated into new Sec. 904.305(a) and
(b) and Sec. 904.201(a). Paragraph (d) would be deleted as it was
determined to be unnecessary.
Sanctions for Noncompliance
The heading would be amended to accurately describe the section.
6. Nature of Sanctions
Section 904.310: Paragraph (a) would be amended to clarify that
NOAA may also ``modify, or deny'' a permit. Paragraph (a)(1) would be
revised to provide that permits may be suspended for noncompliance with
any term of a settlement agreement, including failure to pay a civil
penalty, until the respondent comes into compliance.
Paragraph (b) would be revised to add ``Stevens'' in order to
correctly identify the Magnuson-Stevens Fishery Conservation and
Management Act.
7. Compliance
Section 904.311: Paragraph (b) would be amended to delete
unnecessary language.
Sanctions for Violations
8. Nature of Sanctions
Section 904.320: Paragraph (c) would be revised to add ``Stevens''
in the second sentence in order to correctly identify the Magnuson-
Stevens Fishery Conservation and Management Act.
9. Reinstatement of Permit
Section 904.321: Paragraph (b)would be revised to delete
unnecessary language.
Subpart E--Written Warnings
1. Procedures
Section 904.402: Paragraph (e) of this section would be eliminated,
to conform to current agency practice. The requirement that enforcement
officers note written warnings for certain violations on the permits of
vessels used in those violations was found to be impractical. Service
of a written warning upon a violator, in accordance with the
regulations set out in subpart A, of these regulations is the most
commonly used procedure and best ensures compliance with due process
interests.
2. Review and Appeal of a Written Warning
Section 904.403: This section would be revised to delete the
current provisions of Sec. 904.403. Currently, the provisions of Sec.
904.403(a) provide that persons who receive written warnings from
enforcement agents may seek review of the written warning within 90
days by the appropriate NOAA Regional Attorney. Under current Sec.
904.403(b), if a person receives a written warning from a Regional
Attorney or staff attorney, or receives a decision from a Regional
Attorney affirming a written warning, an appeal of the written warning
or decision may be filed with the NOAA Assistant General Counsel for
Enforcement and Litigation within 30 days of receipt of the written
warning or Regional Attorney's decision. The current provisions of
Sec. 904.403 provide that appeals of written warnings issued by
enforcement agents must be in writing and must explain or deny the
violation described in the warning.
In the proposed revision, the term ``enforcement agent'' would be
replaced by ``authorized officer'', a term defined at amended Sec.
904.2, to accurately describe all persons, other than Agency counsel,
who may issue written warnings. The proposed revisions provide that
persons receiving written warnings issued by authorized officers may
seek review by Agency counsel and must file the request for review
within 60 days of receipt of the written warning with the Assistant
General Counsel for Enforcement and Litigation. The proposed revisions
also provide that written warnings issued by Agency counsel, and
determinations from Agency counsel affirming written warnings issued by
an authorized officer, must be filed with the NOAA Deputy General
Counsel within 60 days of receiving the written warning or affirmation
of the written warning. The addresses for the Assistant General Counsel
and the Deputy General Counsel are provided in the proposed revision.
The proposed revisions specify that the requirement for filing a
written explanation or denial when appealing or requesting review of a
written warning applies both to written warnings issued by authorized
officers and those issued by Agency counsel. For purposes of accuracy,
the proposed revisions would allow the reviewing or appellate authority
to ``vacate'', rather than ``expunge'', a written warning.
The proposed process for appealing written warnings reflects the
reorganization of the management structure of NOAA's Office of the
General Counsel. Prior to the reorganization, the staff attorneys in
NOAA's regional offices who handled enforcement cases were supervised
by Regional Attorneys. Currently, the Assistant General Counsel for
Enforcement and Litigation (AGCEL) supervises all enforcement attorneys
nationwide. The AGCEL is supervised by the NOAA Deputy General Counsel.
The proposed revision would also result in a more uniform process for
written warnings. Under the proposed rule, the period of time for
appealing or seeking review of written warnings would be changed from
90 days for a written warning issued by an authorized officer, and 30
days from a written warning issued by Agency counsel, to a uniform 60-
day period.
Subpart F--Seizure and Forfeiture Procedures
1. Purpose and Scope
Section 904.500: Paragraph (a) would be amended to add
``abandonment'', ``remission of forfeiture'', and ``return'' to the
list of procedures governed by this provision. These changes would be
made to more accurately reflect the activities governed by this
section.
2. Notice of Seizure
Section 904.501: This section would be amended to comport with the
new notice requirements dictated by the Civil Asset Forfeiture Reform
Act of 2000 (Public Law 106-185 enacted August 23, 2000; 18 U.S.C. 981
et seq.). The proposed new language reflects the CAFRA requirement that
a federal government agency seizing property must notify, within 60
days from the date of the seizure, all parties who may have an interest
in the seized property of their right to file a claim to that property.
Such notice shall be by registered or certified mail. In cases where
the property is seized by a state or local law enforcement agency,
notice is required to be given in the above manner within 90 days from
the date of the seizure. The notice must describe the seized property
and state the time, place and reason for the seizure, including the
provisions of law alleged to have been violated. The notice must inform
each interested party of four options: a) file a claim to the seized
property; b) consent to delay the timely institution of judicial or
administrative
[[Page 60575]]
forfeiture proceedings; c) apply for remission of the forfeiture; or d)
voluntarily forfeit the property by abandonment. The notice may be
combined with a notice of the sale of perishable fish issued under
Sec. 904.505. If a claim is filed, the case will be referred promptly
to the U.S. Attorney for institution of judicial proceedings. The U.S.
Attorney will then have 90 days from the date the claim is filed to
institute forfeiture proceedings.
3. Bonded Release of Seized Property
Section 904.502: This section would incorporate provisions
currently found in Sec. 904.506 and eliminate cross-references to
Sec. 904.506 since they would now be consolidated herein. The proposed
revision would consolidate all of the provisions relating to the
release of seized property. The proposed revision would also clarify
that not all applicable statutes authorize bonded release of seized
property.
4. Administrative Forfeiture Proceedings
Section 904.504: In accordance with 16 U.S.C. 1607(a)(1), this
section would be amended to change the threshold amount for
administrative forfeitures from $100,000 to $500,000.
Paragraph (b) would be amended to comport with the Civil Asset
Forfeiture Reform Act of 2000 (Public Law 106-185 enacted August 23,
2000; 18 U.S.C. 981 et seq.) and for clarity. Paragraph (b)(3) would be
amended to eliminate the requirement of providing a cost bond.
Paragraph (b)(2) would be amended to specify that the notice of
proposed forfeiture will include the provisions of law allegedly
violated. Provisions currently found in Sec. 904.506 would be
consolidated into this section at (b)(4) to the procedures for a
declaration of forfeiture, including the notice required for a
declaration of forfeiture. The new language would more closely comport
with language used in the regulations promulgated by the U.S. Fish and
Wildlife Service.
5. Summary Sale
Section 904.505: Paragraph (d) would be amended to correct a
typographical error that existed in the regulations and eliminate
cross-references to other sections that have been modified or deleted.
6. Remission of Forfeiture and Restoration of Proceeds of Sale
The heading of this section would be amended to more accurately
reflect the contents of this section.
Section 904.506: This section would be amended to incorporate the
procedures of current Sec. 904.507. The language in current Sec. Sec.
904.506 and 904.507, pertaining to the release of seized property,
would be moved to Sec. 904.502 because release of seized property is
addressed in that section. Current Sec. 904.507 would be incorporated
into Sec. 904.506 to avoid duplication of common provisions. The
proposed revisions would include amendments to clarify the time period
and format requirements for petitions for relief from forfeiture, and
the addition of the address where petitions for relief from forfeiture
are to be filed.
7. Petition for Restoration of Proceeds
Section 904.507: This section would be incorporated into Sec.
904.506 as described in the preceding paragraph.
8. Recovery of Certain Storage Costs
Section 904.508: This section would be redesignated as Sec.
904.507. This section would be revised to add ``Stevens'' in the second
sentence in order to correctly identify the Magnuson-Stevens Fishery
Conservation and Management Act.
9. Abandonment
Section 904.509: The heading would be changed from ``Abandonment''
to ``Voluntary forfeiture by abandonment'' and this section would be
redesignated as Sec. 904.508. The section would also be amended to
more clearly explain the means by which property may be abandoned. This
section would add that property will be deemed abandoned when the owner
fails to respond within 90 days of service of any certified or
registered notice regarding a return of seized property.
10. Disposal of Forfeited or Abandoned Items
Section 904.510: The heading would be changed from ``Disposal of
forfeited or abandoned items'' to ``Disposal of forfeited property''
and this section would be redesignated as Sec. 904.509. This section
would also be amended for accuracy to substitute the word ``property''
in place of ``items'' wherever that term appears.
Paragraphs (b), (f), and (g) addressing disposal, sale and
destruction of property, would be amended to more explicitly specify
the manner in which those activities may be carried out. These means of
disposal are authorized by the Fish and Wildlife Improvement Act, 16
U.S.C. 742l(c) and comply with General Services Administration (GSA)
regulations relating to the handling of government property.
11. Return of Seized Property
Section 904.510: This new section would be added in order to
address the issue of returning seized property. In those instances
where the Agency decides to return seized property, paragraph (b)
describes the proper notice and procedures for release of the property.
III. Invitation of Public Comment
NOAA invites comments on all aspects of the revisions proposed to
part 904. For the convenience of the reader only, NOAA is publishing,
in its entirety, part 904 as it would be amended. NOAA is not proposing
to readopt those portions of part 904 which would remain unchanged.
This Notice of Proposed Rulemaking is limited to those changes from the
existing regulations described in this Notice.
Information on the time period for submission of comments and
directions for their submission may be found in the DATES and ADDRESSES
section of this document.
IV. Administrative Requirements
A. The Regulatory Flexibility Act
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, whenever an
agency is required to publish a general notice of rulemaking for any
proposed or final rule, it must prepare and make available for public
comment a regulatory flexibility analysis that describes the impact of
the rule on small entities, i.e., small business, small organizations,
and small governmental jurisdictions. The analysis is not required,
however, where the Administrator certifies that the rule will not have
a significant economic impact on a substantial number of small
entities.
This regulation will impose no significant costs on any small
entities, because it creates no new regulatory requirements, but
instead simplifies existing procedural rules. The overall economic
impact on small entities is therefore believed to be nominal, if any at
all. Accordingly, I hereby certify that this proposed regulation will
not have a significant impact on a substantial number of small
entities.
B. Executive Order 12866
Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
[[Page 60576]]
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
C. Paperwork Reduction Act
This proposed rule contains no information collection activities
and, therefore, no information collection request (ICR) will be
submitted to the Office of Management and Budget (OMB) for review in
compliance with the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.
List of Subjects in 15 CFR Part 904
Administrative practice and procedure, fisheries, fishing, fishing
vessels, penalties, seizures and forfeitures.
Dated: September 29, 2004.
James R. Walpole,
General Counsel, National Oceanic and Atmospheric Administration.
For the reasons set forth in the preamble, the NOAA Office of
General Counsel for Enforcement and Litigation proposes to revise 15
CFR part 904 as follows:
PART 904--CIVIL PROCEDURES
Subpart A--General
Sec.
904.1 Purpose and scope.
904.2 Definitions and acronyms.
904.3 Filing and service of notices, documents and other papers.
904.4 Computation of time periods.
904.5 Appearances.
Subpart B--Civil Penalties
904.100 General.
904.101 Notice of violation and assessment (NOVA).
904.102 Procedures upon receipt of a NOVA.
904.103 Hearing.
904.104 Final administrative decision.
904.105 Payment of final assessment.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing penalties.
Subpart C--Hearing and Appeal Procedures
GENERAL
904.200 Scope and applicability.
904.201 Hearing requests and case docketing.
904.202 Filing of documents.
904.203 [Reserved]
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleading or record.
904.208 Extensions of time.
904.209 Expedited proceedings.
904.210 Summary decision.
904.211 Failure to appear.
904.212 Failure to prosecute or defend.
904.213 Settlements.
904.214 Stipulations.
904.215 Consolidation.
904.216 Prehearing conferences.
DISCOVERY
904.240 Discovery generally.
904.241 Depositions.
904.242 Interrogatories.
904.243 Admissions.
904.244 Production of documents and inspection.
904.245 Subpoenas.
HEARINGS
904.250 Notice of time and place of hearing.
904.251 Evidence.
904.252 Witnesses.
904.253 Closing of record.
904.254 Interlocutory review.
904.255 Ex parte communications.
POST-HEARING
904.260 Recordation of hearing.
904.261 Post-hearing briefs.
DECISION
904.270 Record of decision.
904.271 Initial decision.
904.272 Petition for reconsideration.
Subpart D--Permit Sanctions and Denials
GENERAL
904.300 Scope and applicability.
904.301 Bases for sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.
904.305 Final administrative decision.
SANCTIONS FOR NONCOMPLIANCE
904.310 Nature of sanctions.
904.311 Compliance.
SANCTIONS FOR VIOLATIONS
904.320 Nature of sanctions.
904.321 Reinstatement of permit.
904.322 Interim Action.
Subpart E--Written Warnings
904.400 Purpose and scope.
904.401 Written warning as a prior offense.
904.402 Procedures.
904.403 Review and appeal of a written warning.
Subpart F--Seizure and Forfeiture Procedures
904.500 Purpose and scope.
904.501 Notice of seizure.
904.502 Bonded release of seized property.
904.503 Appraisement.
904.504 Administrative forfeiture proceedings.
904.505 Summary sale.
904.506 Remission of forfeiture and restoration of proceeds of sale.
904.507 Recovery of certain storage costs.
904.508 Voluntary forfeiture by abandonment.
904.509 Disposal of forfeited property.
904.510 Return of seized property.
Authority: 16 U.S.C. 1801-1882; 16 U.S.C. 1531-1543; 16 U.S.C.
1361-1407; 16 U.S.C. 3371-3378; 16 U.S.C. 1431-1439; 16 U.S.C. 773-
773k; 16 U.S.C. 951-961; 16 U.S.C. 5001-5012; 16 U.S.C. 3631-3644;
42 U.S.C. 9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971k;
16 U.S.C. 781 et seq.; 16 U.S.C. 2401-2413; 16 U.S.C. 2431-2444; 16
U.S.C. 972-972h; 16 U.S.C. 916-916l; 16 U.S.C. 1151-1175; 16 U.S.C.
3601-3608; 16 U.S.C. 1851 note; 15 U.S.C. 5601 et seq.; Pub. L. 105-
277; 16 U.S.C. 1822 note, Section 801(f); 16 U.S.C. 2465(a); 16
U.S.C. 5103(b); 16 U.S.C. 1385 et seq.; 16 U.S.C. 1822 note (Section
4006); 16 U.S.C. 4001-4017; 22 U.S.C. 1980(g); 16 U.S.C. 5506(a); 16
U.S.C. 5601-5612; 16 U.S.C. 1822; 16 U.S.C. 973-973(r); 15 U.S.C.
330-330(e).
Subpart A--General
Sec. 904.1 Purpose and scope.
(a) This part sets forth the procedures governing NOAA's
administrative proceedings for assessment of civil penalties,
suspension, revocation, modification, or denial of permits, issuance
and use of written warnings, and release or forfeiture of seized
property.
(b) This subpart defines terms appearing in the part and sets forth
rules for the filing and service of documents in administrative
proceedings covered by this part.
(c) The following statutes authorize NOAA to assess civil
penalties, impose permit sanctions, issue written warnings, and/or
seize and forfeit property in response to violations of those statutes:
(1) American Fisheries Act of 1998, Pub. Law 105-277;
(2) Anadromous Fish Products Act, 16 U.S.C. 1822 note, Section
801(f);
(3) Antarctic Conservation Act of 1978, 16 U.S.C. 2401-2413;
(4) Antarctic Marine Living Resources Convention Act of 1984, 16
U.S.C. 2431-2444;
(5) Antarctic Protection Act of 1990, 16 U.S.C. 2465(a);
(6) Atlantic Coastal Fisheries Cooperative Management Act, 16
U.S.C. 5103(b);
[[Page 60577]]
(7) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601-3608;
(8) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
(9) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971k;
(10) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et
seq.;
(11) Dolphin Protection Consumer Information Act, 16 U.S.C. 1385 et
seq.;
(12) Driftnet Impact Monitoring, Assessment, and Control Act, 16
U.S.C. 1822 note (Section 4006);
(13) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-
972h;
(14) Endangered Species Act of 1973, 16 U.S.C. 1531-1543;
(15) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001- 4017;
(16) Fisherman's Protective Act of 1967, 22 U.S.C. 1980(g);
(17) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151-1175;
(18) High Seas Fishing Compliance Act, 16 U.S.C. 5506(a);
(19) Lacey Act Amendments of 1981, 16 U.S.C. 3371-3378;
(20) Land Remote-Sensing Policy Act of 1992, 15 U.S.C. 5601 et
seq.;
(21) Magnuson-Stevens Fishery Conservation and Management Act, 16
U.S.C. 1801-1882;
(22) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361-1407;
(23) National Marine Sanctuaries Act, 16 U.S.C. 1431-1439;
(24) North Pacific Anadromous Stocks Convention Act of 1992, 16
U.S.C. 5001-5012;
(25) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773-773k;
(26) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C.
5601-5612;
(27) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et
seq.;
(28) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631-3644;
(29) Shark Finning Prohibition Act, 16 U.S.C. 1822;
(30) South Pacific Tuna Act of 1988, 16 U.S.C. 973-973(r);
(31) Sponge Act, 16 U.S.C. 781 et seq.;
(32) Tuna Conventions Act of 1950, 16 U.S.C. 951-961;
(33) Weather Modification Reporting Act, 15 U.S.C. 330 - 330e; and
(34) Whaling Convention Act of 1949, 16 U.S.C. 916-916l.
(d) The procedures set forth in this part are intended to apply to
administrative proceedings under these and any other statutes
administered by NOAA.
Sec. 904.2 Definitions and acronyms.
Unless the context otherwise requires, or as otherwise noted, terms
in this part have the meanings prescribed in the applicable statute or
regulation. In addition, the following definitions apply:
Administrator means the Administrator of NOAA or a designee.
Agency means the National Oceanic and Atmospheric Administration
(NOAA).
ALJ Docketing Center means the Docketing Center of the Office of
Administrative Law Judges.
Applicable statute means a statute cited in Sec. 904.1(c), and any
regulations issued by NOAA to implement it.
Applicant means any person who applies or is expected to apply for
a permit.
Authorized officer means:
(1) Any commissioned, warrant, or petty officer of the USCG;
(2) Any special agent or fishery enforcement officer of NMFS;
(3) Any officer designated by the head of any Federal or State
agency that has entered into an agreement with the Secretary to enforce
the provisions of any statute administered by NOAA; or
(4) Any USCG personnel accompanying and acting under the direction
of any person described in paragraph (1) of this definition.
Citation means a written warning (see section 311(c) of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982,
16 U.S.C. 773i(c)).
Decision means an initial or final administrative decision of the
Judge.
Ex parte communication means an oral or written communication not
on the public record with respect to which reasonable prior notice to
all parties is not given, but does not include inquiries regarding
procedures, scheduling, and status.
Final administrative decision means an order or decision of NOAA
assessing a civil penalty or permit sanction which is not subject to
further Agency review under this part, and which is subject to
collection proceedings or judicial review in an appropriate Federal
district court as authorized by law.
Forfeiture includes, but is not limited to, surrender or
relinquishment of any claim to an item by written agreement, or
otherwise; or extinguishment of any claim to, and transfer of title to
an item to the Government by court order or by order of the
Administrator under a statute.
Initial decision means a decision of the Judge which, under
applicable statute and regulation, is subject to review by the
Administrator, but which becomes the final administrative decision in
the absence of such review.
Judge means Administrative Law Judge.
NIDP means Notice of Intent to Deny Permit.
NMFS means the National Marine Fisheries Service.
NOAA (see Agency) means either the Administrator or a designee
acting on behalf of the Administrator.
NOPS means Notice of Permit Sanction.
NOVA means Notice of Violation and Assessment of civil monetary
penalty.
Party means the respondent and the Agency as represented by
counsel; if they enter an appearance, a joint and several respondent,
vessel owner, or permit holder; and any other person allowed to
participate under Sec. 904.204(b).
Permit means any license, permit, certificate, or other approval
issued by NOAA under an applicable statute.
Permit holder means the holder of a permit or any agent or employee
of the holder, and includes the owner and operator of a vessel for
which the permit was issued.
PPIP means Preliminary Position on Issues and Procedures.
Sanction means suspension, revocation, or modification of a permit
(see Sec. 904.320).
Settlement agreement means any agreement resolving all or part of
an administrative or judicial action. The terms of such an agreement
may include, but are not limited to, payment of a civil penalty, and/or
imposition of a permit sanction.
USCG means the United States Coast Guard.
Vessel owner means the owner of any vessel that may be liable in
rem for any civil penalty, or whose permit may be subject to sanction
in proceedings under this part.
Written warning means a notice in writing to a person that a
violation of a minor or technical nature has been documented against
the person or against the vessel which is owned or operated by the
person.
Sec. 904.3 Filing and service of notices, documents and other papers.
(a) Service of a NOVA (Sec. 904.101), NOPS (Sec. 904.302), or
NIDP (Sec. 904.303) may be made by certified mail (return receipt
requested), facsimile, electronic transmission or third party
commercial carrier to an addressee's last known address or by personal
delivery. Service of a notice under this subpart will be considered
effective upon receipt.
(b) Service of documents and papers other than notices, as
described in paragraph (a) of this section, may be made by first class
mail (postage
[[Page 60578]]
prepaid), facsimile, electronic transmission, or third party commercial
carrier, to an addressee's last known address or by personal delivery.
Service of documents and papers will be considered effective upon
mailing, facsimile transmission, delivery to third party commercial
carrier, electronic transmission or upon personal delivery.
(c) Whenever this part requires service of a NOVA, NOPS, NIDP,
document or other paper, such service may effectively be made on the
agent for service of process, on the attorney for the person to be
served, or other representative. Refusal by the person to be served
(including an agent, attorney or representative) of service of a
document or other paper will be considered effective service of the
document or other paper as of the date of such refusal. In cases where
certified notification is returned unclaimed, service will be
considered effective if the U.S. Postal Service provides an affidavit
stating that the party was receiving mail at the same address during
the period when certified service was attempted.
(d) Any documents or pleadings filed or served must be signed:
(1) By the person or persons filing the same,
(2) By an officer thereof if a corporation,
(3) By an officer or authorized employee if a government
instrumentality, or
(4) By an attorney or other person having authority to sign.
Sec. 904.4 Computation of time periods.
(a) Computation. For a NOVA, NOPS or NIDP, the thirty day response
period begins to run on the date the Notice is received. All other time
periods begin to run on the day following the service date of the
document, paper, or event that begins the time period. Saturdays,
Sundays, and Federal holidays will be included in computing such time,
except that when such time expires on a Saturday, Sunday, or Federal
holiday, in which event such period will be extended to include the
next business day. This method of computing time periods also applies
to any act, such as paying a civil penalty, required by this part to
take place within a specified period of time. When the period of time
prescribed or allowed is less than 11 days, intermediate Saturdays,
Sundays, and legal holidays will be excluded in the computation.
(b) Additional time after service by mail. Whenever a person has
the right or is required to do some act or take some proceedings within
a prescribed period after the service of a Notice, document or paper
upon the person and the document or paper is served upon the party by
mail, 3 calendar days shall be added to the prescribed period.
Sec. 904.5 Appearances.
(a) A party may appear in person or by or with counsel or other
representative.
(b) Whenever an attorney or other representative contacts the
Agency on behalf of another person with regard to any matter that has
resulted in, or may result in, a written warning, a Notice of Violation
and Assessment and/or a Notice of Permit Sanction, or a forfeiture
proceeding, that attorney or other representative shall file a notice
of appearance with the Agency. Such notice shall indicate the name of
the person on whose behalf the appearance is made.
(c) Each attorney or other representative who represents a party in
any civil administrative hearing shall file a written notice of
appearance with the Judge. Such notice shall indicate the name of the
case, the docket number, and the party on whose behalf the appearance
is made.
Subpart B--Civil Penalties
Sec. 904.100 General.
This subpart sets forth the procedures governing NOAA
administrative proceedings for the assessment of civil penalties under
the statutes cited in Sec. 904.1(c).
Sec. 904.101 Notice of violation and assessment (NOVA).
(a) A NOVA will be issued by NOAA and served upon the person
alleged to be subject to a civil penalty (the respondent). The NOVA
will contain:
(1) A concise statement of the facts believed to show a violation;
(2) A specific reference to the provisions of the Act, regulation,
license, permit, agreement, or order allegedly violated;
(3) The findings and conclusions upon which NOAA bases the
assessment;
(4) The amount of the civil penalty assessed; and
(5) Information concerning the respondent's rights upon receipt of
the NOVA, and will be accompanied by a copy of the regulations in this
part governing the proceedings.
(b) In assessing a civil penalty, NOAA will take into account
information available to the Agency concerning any factor to be
considered under the applicable statute, and any other information that
justice or the purposes of the statute require.
(c) The NOVA may also contain a proposal for compromise or
settlement of the case. NOAA may also attach documents that illuminate
the facts believed to show a violation.
Sec. 904.102 Procedures upon receipt of a NOVA.
(a) The respondent has 30 days from receipt of the NOVA in which to
respond. During this time the respondent may:
(1) Accept the penalty or compromise penalty, if any, by taking the
actions specified in the NOVA;
(2) Seek to have the NOVA amended, modified, or rescinded under
paragraph (b) of this section;
(3) Request a hearing under Sec. 904.201(a);
(4) Request an extension of time to respond under paragraph (c) of
this section; or
(5) Take no action, in which case the NOVA becomes a final
administrative decision in accordance with Sec. 904.104.
(b) The respondent may seek amendment or modification of the NOVA
to conform to the facts or law as that person sees them by notifying
Agency counsel at the telephone number or address specified in the
NOVA. If amendment or modification is sought, Agency counsel will
either amend the NOVA or decline to amend it, and so notify the
respondent.
(c) The respondent may, within the 30-day period specified in
paragraph (a) of this section, request an extension of time to respond.
Agency counsel may grant an extension of up to 30 days unless he or she
determines that the requester could, exercising reasonable diligence,
respond within the 30-day period. If Agency counsel does not respond to
the request within 48 hours of its receipt, the request is granted
automatically for the extension requested, up to a maximum of 30 days.
A telephonic response to the request within the 48-hour period is
considered an effective response, and will be followed by written
confirmation.
(d) Agency counsel may, for good cause, grant an additional
extension beyond the 30-day period specified in paragraph (c) of this
section.
Sec. 904.103 Hearing.
(a) Any hearing request under Sec. 904.102(a)(3) is governed by
the hearing and review procedures set forth in subpart C of this part.
(b) [Reserved]
Sec. 904.104 Final administrative decision.
(a) If no request for hearing is timely filed as provided in Sec.
904.201(a), the NOVA becomes effective as the final
[[Page 60579]]
administrative decision and order of NOAA on the 30th day after service
of the NOVA or on the last day of any delay period granted.
(b) If a request for hearing is timely filed in accordance with
Sec. 904.201(a), the date of the final administrative decision is as
provided in subpart C of this part.
Sec. 904.105 Payment of final assessment.
(a) Respondent must make full payment of the civil penalty assessed
within 30 days of the date upon which the assessment becomes effective
as the final administrative decision and order of NOAA under Sec.
904.104 or subpart C of this part. Payment must be made by mailing or
delivering to NOAA at the address specified in the NOVA a check or
money order made payable in United States currency in the amount of the
assessment to the ``Department of Commerce/NOAA,'' or as otherwise
directed.
(b) Upon any failure to pay the civil penalty assessed, NOAA may
request the Justice Department to recover the amount assessed in any
appropriate district court of the United States, or may act under Sec.
904.106, or may commence any other lawful action.
Sec. 904.106 Compromise of civil penalty.
(a) NOAA, in its sole discretion, may compromise, modify, remit, or
mitigate, with or without conditions, any civil penalty imposed, or
which is subject to imposition, except as stated in paragraph (d) of
this section.
(b) The compromise authority of NOAA under this section may be
exercised either upon the initiative of NOAA or in response to a
request by the respondent or other interested person. Any such request
should be sent to Agency counsel at the address specified in the NOVA.
(c) Neither the existence of the compromise authority of NOAA under
this section nor NOAA's exercise thereof at any time changes the date
upon which an assessment is final or payable.
(d) NOAA will not compromise, modify, or remit a civil penalty
imposed, or subject to imposition, under the Deep Seabed Hard Mineral
Resources Act while an action to review or recover the penalty is
pending in a court of the United States.
Sec. 904.107 Joint and several respondents.
(a) A NOVA may assess a civil penalty against two or more
respondents jointly and severally. Each joint and several respondent is
liable for the entire penalty, but no more than the amount finally
assessed may be collected from the respondents.
(b) A hearing request by one joint and several respondent is not
considered a request by the other joint and several respondents. If no
request for hearing is timely filed by a joint and several respondent
as provided in Sec. 904.201(a), the NOVA becomes effective as the
final administrative decision and order of NOAA against the non-
requesting joint and several respondent on the 30th day after service
of the NOVA or on the last day of any delay period granted.
(c) A settlement with one joint and several respondent shall not
affect the liability of other joint and several respondent(s) for any
remaining penalties and sanctions.
Sec. 904.108 Factors considered in assessing penalties.
(a) Factors to be taken into account in assessing a penalty,
depending upon the statute in question, may include the nature,
circumstances, extent, and gravity of the alleged violation; the
respondent's degree of culpability, any history of prior offenses, and
ability to pay; and such other matters as justice may require.
(b) NOAA may, in consideration of a respondent's ability to pay,
increase or decrease a penalty from an amount that would otherwise be
warranted by the other relevant factors. A penalty may be increased if
a respondent's ability to pay is such that a higher penalty is
necessary to deter future violations, or for commercial violators, to
make a penalty more than a cost of doing business. A penalty may be
decreased if the respondent establishes that he or she is unable to pay
an otherwise appropriate penalty amount.
(c) Except as provided in paragraph (g) of this section, if a
respondent asserts that a penalty should be reduced because of an
inability to pay, the respondent has the burden of proving such
inability by providing verifiable, complete, and accurate financial
information to NOAA. NOAA will not consider a respondent's inability to
pay unless the respondent, upon request, submits such financial
information as Agency counsel determines is adequate to evaluate the
respondent's financial condition. Depending on the circumstances of the
case, Agency counsel may require the respondent to complete a financial
information request form, answer written interrogatories, or submit
independent verification of his or her financial information. If the
respondent does not submit the requested financial information, he or
she will be presumed to have the ability to pay the penalty.
(d) Financial information relevant to a respondent's ability to pay
includes, but is not limited to, the value of respondent's cash and
liquid assets, ability to borrow, net worth, liabilities, income, prior
and anticipated profits, expected cash flow, and the respondent's
ability to pay in installments over time. A respondent will be
considered able to pay a penalty even if he or she must take such
actions as pay in installments over time, borrow money, liquidate
assets, or reorganize his or her business. NOAA's consideration of a
respondent's ability to pay does not preclude an assessment of a
penalty in an amount that would cause or contribute to the bankruptcy
or other discontinuation of the respondent's business.
(e) Financial information regarding respondent's ability to pay
should be submitted to Agency counsel within sixty (60) days of the
receipt of the NOVA. If a respondent has requested a hearing on the
offense alleged in the NOVA and wants his or her inability to pay
considered in the initial decision of the Judge, verifiable financial
information must be submitted to Agency counsel at least thirty (30)
days in advance of the hearing. If a respondent submits financial
information at the hearing and has not submitted such information to
Agency counsel at least 30 days in advance of the hearing, Agency
counsel will have 30 days after the hearing in which to respond to the
submission. In deciding whether to submit such information, the
respondent should keep in mind that the Judge may assess de novo a
civil penalty either greater or smaller than that assessed in the NOVA.
(f) Issues regarding ability to pay will not be considered in an
administrative review of an initial decision if the financial
information was not previously presented by the respondent to the Judge
at the hearing.
(g) Whenever a statute requires NOAA to take into consideration a
respondent's ability to pay when assessing a penalty, NOAA will take
into consideration information available to it concerning a
respondent's ability to pay. In such case, the NOVA will advise, in
accordance with Sec. 904.102, that respondent may seek to have the
penalty amount modified by Agency counsel on the basis that he or she
does not have the ability to pay the penalty assessed. A request to
have the penalty amount modified on this basis must be made in
accordance with Sec. 904.102 and should be accompanied by supporting
financial information. Agency counsel may request the respondent to
submit such additional verifiable financial information as Agency
counsel determines is necessary to evaluate the
[[Page 60580]]
respondent's financial condition (such as by responding to a financial
information request form or written interrogatories, or by authorizing
independent verification of respondent's financial condition). A
respondent's failure to provide the requested information may serve as
the basis for inferring that such information would not have supported
the respondent's assertion of inability to pay the penalty assessed in
the NOVA.
(h) Whenever a statute requires NOAA to take into consideration a
respondent's ability to pay when assessing a penalty and the respondent
has requested a hearing on the offense alleged in the NOVA, the Agency
must submit information on the respondent's financial condition so that
the Judge may consider that information, along with any other factors
required to be considered, in the Judge's de novo assessment of a
penalty. Agency counsel may obtain such financial information through
discovery procedures under Sec. 904.240, or otherwise. A respondent's
refusal or failure to respond to such discovery requests may serve as
the basis for inferring that such information would have been adverse
to any claim by respondent of inability to pay the assessed penalty, or
result in respondent being barred from asserting financial hardship.
Subpart C--Hearing and Appeal Procedures
GENERAL
Sec. 904.200 Scope and applicability.
(a) This subpart sets forth the procedures governing the conduct of
hearings and the issuance of initial and final administrative decisions
of NOAA in administrative proceedings involving alleged violations of
the laws cited in Sec. 904.1(c) and regulations implementing these
laws, including civil penalty assessments and permit sanctions and
denials. By separate regulation, these rules may be applied to other
proceedings.
(b) The Judge is delegated authority to make the initial or final
administrative decision of the Agency in proceedings subject to the
provisions of this subpart, and to take actions to promote the
efficient and fair conduct of hearings as set out in this subpart. The
Judge has no authority to rule on challenges to the validity of
regulations promulgated by the Agency.
(c) This subpart is not an independent basis for claiming the right
to a hearing, but instead prescribes procedures for the conduct of
hearings, the right to which is provided by other authority.
Sec. 904.201 Hearing requests and case docketing.
(a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the
request must be dated and in writing, and must be served either in
person or mailed to the Agency counsel specified in the Notice. The
requester must either attach a copy of the Notice or refer to the
relevant NOAA case number. Agency counsel will promptly forward the
request for hearing to the Office of Administrative Law Judges.
(b) If a written application is made to NOAA within ten (10) days
after the expiration of a time period established in this part for the
required filing of hearing requests, Agency counsel will promptly
forward the request for hearing to the Office of Administrative Law
Judges for a determination on whether such request shall be considered
timely filed. A written application for a hearing filed more than ten
(10) days after the expiration of a time period established in this
part for the required filing of hearing requests, will be promptly
forwarded to the Office of Administrative Law Judges by Agency counsel,
and shall be deemed untimely filed by the Office of Administrative Law
Judges. Determinations regarding untimely hearing requests under this
section shall be in writing.
(c) Agency counsel may, in his or her discretion, treat any written
communication from a respondent as a request for a hearing under
paragraph (a) of this section.
(d) Each request for hearing promptly upon its receipt for filing
in the Office of Administrative Law Judges will be assigned a docket
number and thereafter the proceeding will be referred to by such
number. Written notice of the assignment of hearing to a Judge will
promptly be given to the parties.
Sec. 904.202 Filing of documents.
(a) Pleadings, papers, and other documents in the proceeding must
be filed in conformance with Sec. 904.3 directly with the Judge, with
copies served on the ALJ Docketing Center and all other parties.
(b) Unless otherwise ordered by the Judge, discovery requests and
answers will be served on the opposing party and need not be filed with
the Judge.
Sec. 904.203 [Reserved]
Sec. 904.204 Duties and powers of Judge.
The Judge has all powers and responsibilities necessary to preside
over the parties and the proceeding, to hold prehearing conferences, to
conduct the hearing, and to render decisions in accordance with these
regulations and 5 U.S.C. 554 through 557, including, but not limited
to, the authority and duty to do the following:
(a) Rule on timeliness of hearing requests pursuant to Sec.
904.201(b).
(b) Rule on a request to participate as a party in the proceeding
by allowing, denying, or limiting such participation (such ruling will
consider views of the parties and be based on whether the requester
could be directly and adversely affected by the determination and
whether the requester can be expected to contribute materially to the
disposition of the proceedings);
(c) Schedule the time, place, and manner of conducting the pre-
hearing conference or hearing, continue the hearing from day to day,
adjourn the hearing to a later date or a different place, and reopen
the hearing at any time before issuance of the decision, all in the
Judge's discretion, having due regard for the convenience and necessity
of the parties and witnesses;
(d) Schedule and regulate the course of the hearing and the conduct
of the participants and the media, including the power to close the
hearings in the interests of justice; seal the record from public
scrutiny to protect privileged information, trade secrets, and
confidential commercial or financial information; and strike testimony
of a witness who refuses to answer a question ruled to be proper;
(e) Administer oaths and affirmations to witnesses;
(f) Rule on discovery requests, establish discovery schedules, and,
whenever the ends of justice would thereby be served, take or cause
depositions or interrogatories to be taken and issue protective orders
under Sec. 904.240(d);
(g) Rule on motions, procedural requests, and similar matters;
(h) Receive, exclude, limit, and otherwise rule on offers of proof
and evidence;
(i) Examine and cross-examine witnesses and introduce into the
record on the Judge's own initiative documentary or other evidence;
(j) Rule on requests for appearance of witnesses or production of
documents and take appropriate action upon failure of a party to effect
the appearance or production of a witness or document ruled relevant
and necessary to the proceeding; as authorized by law, issue subpoenas
for the appearance of witnesses or production of documents;
(k) Require a party or witness at any time during the proceeding to
state his or her position concerning any issue or his or her theory in
support of such position;
[[Page 60581]]
(l) Take official notice of any matter not appearing in evidence
that is among traditional matters of judicial notice; or of technical
or scientific facts within the general or specialized knowledge of the
Department of Commerce as an expert body; or of a non-privileged
document required by law or regulation to be filed with or published by
a duly constituted government body; or of any reasonably available
public document; Provided, that the parties will be advised of the
matter noticed and given reasonable opportunity to show the contrary;
(m) For stated good reason(s), assess a penalty de novo without
being bound by the amount assessed in the NOVA;
(n) Prepare and submit a decision or other appropriate disposition
document and certify the record;
(o) Award attorney fees and expenses as provided by applicable
statute or regulation;
(p) Grant preliminary or interim relief;
(q) Impose, upon the motion of any party, or sua sponte,
appropriate sanctions.
(1) Sanctions may be imposed when any party, or any person
representing a party, in an adjudicatory proceeding under this part has
failed to comply with this part, or any order issued under this part,
and such failure to comply:
(i) Materially injures or prejudices another party by causing
additional expenses; prejudicial delay; or other injury or prejudice;
(ii) Is a clear and unexcused violation of this part, or any order
issued under this part; or
(iii) Unduly delays the proceeding.
(2) Sanctions which may be imposed include, but are not limited to,
one or more of the following:
(i) Issuing an order against the party;
(ii) Rejecting or striking any testimony or documentary evidence
offered, or other papers filed, by the party;
(iii) Expelling the party from the proceedings;
(iv) Precluding the party from contesting specific issues or
findings;
(v) Precluding the party from making a late filing or conditioning
a late filing on any terms that are just;
(vi) Assessing reasonable expenses, incurred by any other party as
a result of the improper action or failure to act; and
(vii) Taking any other action, or imposing any restriction or
sanction, authorized by applicable statute or regulation, deemed
appropriate by the Judge.
(3) No sanction authorized by this section, other than refusal to
accept late filings, shall be imposed without prior notice to all
parties and an opportunity for any party against whom sanctions would
be imposed to be heard. Such opportunity to be heard may be on such
notice, and the response may be in such form as the Judge directs and
may be limited to an opportunity for a party or a party's
representative to respond orally immediately after the act or inaction
is noted by the Judge.
(4) The imposition of sanctions is subject to interlocutory review
pursuant to Sec. 904.254 in the same manner as any other ruling.
(5) Nothing in this section shall be read as precluding the Judge
from taking any other action, or imposing any restriction or sanction,
authorized by applicable statute or regulation.
Sec. 904.205 Disqualification of Judge.
(a) The Judge may withdraw voluntarily from a particular case when
the Judge deems himself/herself disqualified.
(b) A party may in good faith request the Judge to withdraw on the
grounds of personal bias or other disqualification. The party seeking
the disqualification must file with the Judge a timely affidavit or
statement setting forth in detail the facts alleged to constitute the
grounds for disqualification, and the Judge will rule on the matter. If
the Judge rules against disqualification, the Judge will place all
matters relating to such claims of disqualification in the record.
Sec. 904.206 Pleadings, motions, and service.
(a) The original of all pleadings and documents must be filed with
the Judge and a copy served upon the ALJ Docketing Center and each
party. All pleadings or documents when submitted for filing must show
that service has been made upon all parties. Such service must be made
in accordance with Sec. 904.3(b).
(b) Pleadings and documents to be filed may be reproduced by
printing or any other process, provided the copies are clear and
legible; must be dated, the original signed in ink or as otherwise
verified for electronic mail; and must show the docket description and
title of the proceeding, and the title, if any, address, and telephone
number of the signatory. If typewritten, the impression may be on only
one side of the paper and must be double spaced, if possible, except
that quotations may be single spaced and indented.
(c) Motions must normally be made in writing and must state clearly
and concisely the purpose of and relief sought by the motion, the
statutory or principal authority relied upon, and the facts claimed to
constitute the grounds requiring the relief requested.
(d) Unless otherwise provided, the answer to any written motion,
pleading, or petition must be served within 20 days after date of
service thereof. If a motion states that opposing counsel has no
objection, it may be acted upon as soon as practicable, without
awaiting the expiration of the 20-day period. Answers must be in
writing, unless made in response to an oral motion made at a hearing;
must fully and completely advise the parties and the Judge concerning
the nature of the opposition; must admit or deny specifically and in
detail each material allegation of the pleading answered; and must
state clearly and concisely the facts and matters of law relied upon.
Any new matter raised in an answer will be deemed controverted.
(e) A response to an answer will be called a reply. A short reply
restricted to new matters may be served within 15 days of service of an
answer. The Judge has discretion to dispense with the reply. No further
responses are permitted.
Sec. 904.207 Amendment of pleading or record.
(a) A party may amend the party's pleading as a matter of course at
least twenty (20) days prior to a hearing. Within twenty (20) days
prior to a hearing a party may amend the party's pleading only by leave
of the Judge or by written consent of the adverse party; and leave
shall be freely given when justice so requires. A party shall plead in
response to an amended pleading within the time remaining for response
to the original pleading or within ten (10) days after service of the
amended pleading, whichever period is longer, unless the Judge
otherwise orders.
(b) The Judge, upon his or her own initiative or upon application
by a party, may order a party to make a more definite statement of any
pleading.
(c) Harmless errors in pleadings or elsewhere in the record may be
corrected (by deletion or substitution of words or figures), and broad
discretion will be exercised by the Judge in permitting such
corrections.
Sec. 904.208 Extensions of time.
If appropriate and justified, and as provided in Sec. 904.201(b),
the Judge may grant any request for an extension of time. Requests for
extensions of time must, except in extraordinary circumstances, be made
in writing.
Sec. 904.209 Expedited proceedings.
In the interests of justice and administrative efficiency, the
Judge, on his or her own initiative or upon the application of any
party, may expedite
[[Page 60582]]
the proceeding. A motion of a party to expedite the proceeding may, in
the discretion of the Judge, be made orally or in writing with
concurrent actual notice to all parties. If a motion for an expedited
hearing is granted, the hearing on the merits may not be scheduled with
less than five business days' notice, unless all parties consent to an
earlier hearing.
Sec. 904.210 Summary decision.
The Judge may render a summary decision disposing of all or part of
the proceeding if:
(a) Jointly requested by every party to the proceeding; and
(b) There is no genuine issue as to any material fact and a party
is entitled to summary decision as a matter of law.
Sec. 904.211 Failure to appear.
(a) If, after proper service of notice, a party appears at the
hearing and no party appears for the opposing side, the Judge is
authorized to dismiss the case or to find the facts as alleged in the
NOVA and enter a default judgment containing such findings and
conclusions as are appropriate.
(b) Following an order of default judgment, the non-appearing party
may file a petition for reconsideration, in accordance with Sec.
904.272. Only petitions citing reasons for non-appearance, as opposed
to arguing the merits of the case, will be considered.
(c) The Judge will place in the record all the facts concerning the
issuance and service of the notice of time and place of hearing.
(d) The Judge may deem a failure of a party to appear after proper
notice a waiver of any right to a hearing and consent to the making of
a decision on the record.
(e) Failure to appear at a hearing shall not be deemed to be a
waiver of the right to be served with a copy of the Administrative Law
Judge's decision.
Sec. 904.212 Failure to prosecute or defend.
(a) Whenever the record discloses the failure of either party to
file documents, respond to orders or notices from the Judge, or
otherwise indicates an intention on the part of either party not to
participate further in the proceeding, the Judge may issue:
(1) An order requiring either party to show why the matter that is
the subject of the failure to respond should not be disposed of
adversely to that party's interest;
(2) An order requiring either party to certify intent to appear at
any scheduled hearing; or
(3) Any order, except dismissal, as is necessary for the just and
expeditious resolution of the case.
(b) [Reserved]
Sec. 904.213 Settlements.
If settlement is reached before the Judge has certified the record,
the Judge shall remove the case from the docket upon notification by
the Agency.
Sec. 904.214 Stipulations.
The parties may, by stipulation, agree upon any matters involved in
the proceeding and include such stipulations in the record with the
consent of the Judge. Written stipulations must be signed and served
upon all parties.
Sec. 904.215 Consolidation.
The Judge may order two or more proceedings that involve
substantially the same parties or the same issues consolidated and/or
heard together.
Sec. 904.216 Prehearing conferences.
(a) Prior to any hearing or at other time deemed appropriate, the
Judge may, upon his or her own initiative, or upon the application of
any party, direct the parties to appear for a conference or arrange a
telephone conference. The Judge shall provide at least twenty-four
hours notice of the conference to the parties, and shall record such
conference by audio recording or stenographer, to consider:
(1) Simplification or clarification of the issues or settlement of
the case by consent;
(2) The possibility of obtaining stipulations, admissions,
agreements, and rulings on admissibility of documents,
understandings on matters already of record, or similar agreements that
will avoid unnecessary proof;
(3) Agreements and rulings to facilitate the discovery process;
(4) Limitation of the number of expert witnesses or other avoidance
of cumulative evidence;
(5) The procedure, course, and conduct of the hearing;
(6) The distribution to the parties and the Judge prior to the
hearing of written testimony and exhibits in order to expedite the
hearing; or
(7) Such other matters as may aid in the disposition of the
proceeding, including the status of settlement discussions.
(b) The Judge in his or her discretion may issue an order showing
the matters disposed of in such conference, and shall provide a
transcript of the conference upon the request of a party.
DISCOVERY
Sec. 904.240 Discovery generally.
(a) Preliminary position on issues and procedures. Prior to hearing
the Judge will ordinarily require the parties to submit a written
Preliminary Position on Issues and Procedures (PPIP). Except for
information regarding a respondent's ability to pay an assessed
penalty, this PPIP will normally obviate the need for further
discovery.
(1) The PPIP shall include the following information: a factual
summary of the case; a summary of all factual and legal issues in
dispute; a list of all defenses that will be asserted, together with a
summary of all factual and legal bases supporting each defense; a list
of all potential witnesses, together with a summary of their
anticipated testimony; and a list of all potential exhibits.
(2) The PPIP shall be signed by the party and an attorney, if one
is retained. The PPIP shall be served upon all parties, along with a
copy of each potential exhibit listed in the PPIP.
(3) A party has the affirmative obligation to supplement the PPIP
as available information or documentation relevant to the stated
charges or defenses becomes known to the party.
(b) Additional discovery. Upon written motion by a party, the Judge
may allow additional discovery only upon a showing of relevance, need,
and reasonable scope of the evidence sought, by one or more of the
following methods: deposition upon oral examination or written
questions, written interrogatories, production of documents or things
for inspection and other purposes, and requests for admission. With
respect to information regarding a respondent's ability to pay an
assessed penalty, the Agency may serve any discovery request (i.e.,
deposition, interrogatories, admissions, production of documents)
directly upon the respondent without first seeking an order from the
Judge.
(c) Time limits. Motions for depositions, interrogatories,
admissions, or production of documents or things may not be filed
within 20 days of hearing except on order of the Judge for good cause
shown. Oppositions to a discovery motion must be filed within 10 days
of service unless otherwise provided in these rules or by the Judge.
(d) Oppositions. Oppositions to any discovery motion or portion
thereof must state with particularity the grounds relied upon. Failure
to object in a timely fashion constitutes waiver of the objection.
(e) Scope of discovery. The Judge may limit the scope, subject
matter, method, time, or place of discovery. Unless otherwise limited
by order of the Judge, the scope of discovery is as follows:
(1) In general. As allowed under paragraph (b) of this section,
parties
[[Page 60583]]
may obtain discovery of any matter, not privileged, that is relevant to
the allegations of the charging document, to the proposed relief, or to
the defenses of any respondent, or that appears reasonably calculated
to lead to the discovery of admissible evidence.
(2) Hearing preparation: Materials. A party may not obtain
discovery of materials prepared in anticipation of litigation except
upon a showing that the party seeking discovery has a substantial need
for the materials in preparation of his or her case, and is unable
without undue hardship to obtain the substantial equivalent of the
materials by other means. Mental impressions, conclusions, opinions, or
legal theories of an attorney or other representative of a party are
not discoverable under this section.
(3) Hearing preparation: Experts. A party may discover the
substance of the facts and opinions to which an expert witness is
expected to testify and a summary of the grounds for each opinion. A
party may also discover facts known or opinions held by an expert
consulted by another party in anticipation of litigation but not
expected to be called as a witness upon a showing of exceptional
circumstances making it impracticable for the party seeking discovery
to obtain such facts or opinions by other means.
(f) Failure to comply. If a party fails to comply with any
provision of this section, including any PPIP, subpoena or order
concerning discovery, the Judge may, in the interest of justice:
(1) Infer that the admission, testimony, documents, or other
evidence would have been adverse to the party;
(2) Rule that the matter or matters covered by the order or
subpoena are established adversely to the party;
(3) Rule that the party may not introduce into evidence or
otherwise rely upon, in support of any claim or defense, testimony by
such party, officer, or agent, or the documents or other evidence;
(4) Rule that the party may not be heard to object to introduction
and use of secondary evidence to show what the withheld admission,
testimony, documents, or other evidence would have shown;
(5) Strike part or all of a pleading (except a request for
hearing), a motion or other submission by the party, concerning the
matter or matters covered by the order or subpoena.
Sec. 904.241 Depositions.
(a) Notice. If a motion for deposition is granted, and unless
otherwise ordered by the Judge, the party taking the deposition of any
person must serve on that person, and each other party, written notice
at least 15 days before the deposition would be taken (or 25 days if
the deposition is to be taken outside the United States). The notice
must state the name and address of each person to be examined, the time
and place where the examination would be held, the name and mailing
address of the person before whom the deposition would be taken, and
the subject matter about which each person would be examined.
(b) Taking the deposition. Depositions may be taken before any
officer authorized to administer oaths by the law of the United States
or of the place where the examination is to be held, or before a person
appointed by the Judge. Each deponent will be sworn, and any party has
the right to cross-examine. Objections are not waived by failure to
make them during the deposition unless the ground of the objection is
one that might have been removed if presented at that time. The
deposition will be recorded, transcribed, signed by the deponent,
unless waived, and certified by the officer before whom the deposition
was taken. All transcription costs associated with the testimony of a
deponent will be borne by the party seeking the deposition. Each party
will bear its own expense for any copies of the transcript. See also
Sec. 904.252(a).
(c) Alternative deposition methods. By order of the Judge, the
parties may use other methods of deposing parties or witnesses, such as
telephonic depositions or depositions upon written questions.
Objections to the form of written questions are waived unless made
within five days of service of the questions.
(d) Use of depositions at hearing. (1) At hearing any part or all
of a deposition, so far as admissible under the rules of evidence
applied as though the witness were then testifying, may be used against
any party who was present or represented at the taking of the
deposition, or had reasonable notice.
(2) The deposition of a witness may be used by any party for any
purpose if the Judge finds:
(i) That the witness is unable to attend due to death, age, health,
imprisonment, disappearance or distance from the hearing site; or
(ii) That exceptional circumstances make it desirable, in the
interest of justice, to allow the deposition to be used.
(3) If only part of a deposition is offered in evidence by a party,
any party may introduce any other part.
Sec. 904.242 Interrogatories.
(a) Use at hearing. If ordered by the Judge, any party may serve
upon any other party written interrogatories. Answers may be used at
hearing in the same manner as depositions under Sec. 904.241(d).
(b) Answers and objections. Answers and objections must be made in
writing under oath, and reasons for the objections must be stated.
Answers must be signed by the person making them and objections must be
signed by the party or attorney making them. Unless otherwise ordered,
answers and objections must be served on all parties within 20 days
after service of the interrogatories.
(c) Option to produce records. Where the answer to an interrogatory
may be ascertained from the records of the party upon whom the
interrogatory is served, it is sufficient to specify such records and
afford the party serving the interrogatories an opportunity to examine
them.
Sec. 904.243 Admissions.
(a) Request. If ordered by the Judge, any party may serve on any
other party a written request for admission of the truth of any
relevant matter of fact set forth in the request, including the
genuineness of any relevant document described in the request. Copies
of documents must be served with the request. Each matter of which an
admission is requested must be separately stated.
(b) Response. Each matter is admitted unless a written answer or
objection is served within 20 days of service of the request, or within
such other time as the Judge may allow. The answering party must
specifically admit or deny each matter, or state the reasons why he or
she cannot truthfully admit or deny it.
(c) Effect of admission. Any matter admitted is conclusively
established unless the Judge on motion permits withdrawal or amendment
of it for good cause shown.
Sec. 904.244 Production of documents and inspection.
(a) Scope. If ordered by the Judge, any party may serve on any
other party a request to produce a copy of any document or specifically
designated category of documents, or to inspect, copy, photograph, or
test any such document or tangible thing in the possession, custody, or
control of the party upon whom the request is served.
(b) Procedure. The request must set forth:
(1) The items to be produced or inspected by item or by category,
[[Page 60584]]
described with reasonable particularity, and
(2) A reasonable time, place, and manner for inspection. The party
upon whom the request is served must serve within 20 days a response or
objections, which must address each item or category and include copies
of the requested documents.
Sec. 904.245 Subpoenas.
(a) In general. Subpoenas for the attendance and testimony of
witnesses and the production of documentary evidence for the purpose of
discovery or hearing may be issued as authorized by the statute under
which the proceeding is conducted.
(b) Timing. Applications for subpoenas must be submitted at least
10 days before the scheduled hearing or deposition.
(c) Motions to quash. Any person to whom a subpoena is directed or
any party may move to quash or limit the subpoena within 10 days of its
service or on or before the time specified for compliance, whichever is
shorter. The Judge may quash or modify the subpoena.
(d) Enforcement. In case of disobedience to a subpoena, NOAA may
request the Justice Department to invoke the aid of any court of the
United States in requiring the attendance and testimony of witnesses
and the production of documentary evidence.
HEARINGS
Sec. 904.250 Notice of time and place of hearing.
(a) The Judge shall be responsible for scheduling the hearing. With
due regard for the convenience of the parties, their representatives,
or witnesses, the Judge shall fix the time, place and date for the
hearing and shall notify all parties of the same. The Judge will
promptly serve on the parties notice of the time and place of hearing.
The hearing will not be held less than 20 days after service of the
notice of hearing unless the hearing is expedited as provided under
Sec. 904.250(c).
(b) A request for a change in the time, place, or date of the
hearing may be granted by the Judge.
(c) Upon the consent of each party to the proceeding, the Judge may
order that all or part of a proceeding be heard on submissions or
affidavits if it appears that substantially all important issues may be
resolved by means of written materials and that efficient disposition
of the proceeding can be made without an in-person hearing.
(d) At any time after commencement of the proceeding, any party may
move to expedite the scheduling of a proceeding.
(1) A party moving to expedite a proceeding shall describe the
circumstances justifying expedition, and provide affidavits supporting
any representations of fact.
(2) Upon granting a motion to expedite the scheduling of a
proceeding, the Judge may expedite pleading schedules, prehearing
conferences and the hearing, as appropriate.
Sec. 904.251 Evidence.
(a) In general. (1) At the hearing, every party has the right to
present oral or documentary evidence in support of its case or defense,
to submit rebuttal evidence, and to conduct such cross-examination as
may be required for a full and true disclosure of the facts. This
paragraph may not be interpreted to diminish the powers and duties of
the Judge under Sec. 904.204.
(2) All evidence that is relevant, material, reliable, and
probative, and not unduly repetitious or cumulative, is admissible at
the hearing. Formal rules of evidence do not necessarily apply to the
proceedings, and hearsay evidence is not inadmissible as such.
(3) In any case involving a charged violation of law in which the
party charged has admitted an allegation, evidence may be taken to
establish matters of aggravation or mitigation.
(b) Objections and offers of proof. (1) A party shall state the
grounds for objection to the admission or exclusion of evidence.
Rulings on all objections shall appear in the record. Only objections
made before the Judge may be raised on appeal.
(2) Whenever evidence is excluded from the record, the party
offering such evidence may make an offer of proof, which shall be
included in the record.
(c) Testimony. (1) Testimony may be received into evidence by the
following means:
(i) Oral presentation; and
(ii) Subject to the discretion of the Judge, written affidavit,
telephone, or video or other electronic media.
(2) Regardless of form, all testimony shall be under oath or
affirmation requiring the witness to declare that the witness will
testify truthfully, and subject to cross examination.
(d) Exhibits and documents. (1) All exhibits shall be numbered and
marked with a designation identifying the sponsor. To prove the content
of an exhibit, the original writing, recording or photograph is
required except that a duplicate or copy is admissible to the same
extent as an original unless a genuine question is raised as to the
authenticity of the original or, given the circumstances, it would be
unfair to admit the duplicate in lieu of the original. The original is
not required, and other evidence of the contents of a writing,
recording, or photograph is admissible if the original is lost or
destroyed, not obtainable, in the possession of the opponent, or not
closely related to a controlling issue. Each exhibit offered in
evidence or marked for identification shall be filed and retained in
the record of decision, unless the Judge permits the substitution of
copies for the original document.
(2) In addition to the requirements set forth in Sec.
904.240(a)(2), parties shall exchange all remaining exhibits that will
be offered at hearing prior to the beginning of the hearing, except for
good cause or as otherwise directed by the Judge. Exhibits that are not
exchanged as required may be denied admission into evidence. This
requirement does not apply to demonstrative evidence.
(e) Physical evidence. (1) Photographs or videos or other
electronic media may be substituted for physical evidence at the
discretion of the Judge.
(2) Except upon the Judge's order, or upon request by a party,
physical evidence will be retained after the hearing by the Agency.
(f) Stipulations. The parties may by stipulation in writing at any
stage of the proceeding or orally at the hearing agree upon any matters
involved in the proceeding. Stipulations may be received in evidence
before or during the hearing and, when received in evidence, shall be
binding on the parties to the stipulation.
(g) Official notice. The Judge may take official notice of such
matters as might be judicially noticed by the courts or of other facts
within the specialized knowledge of the agency as an expert body. Where
a decision or part thereof rests on official notice of a material fact
not appearing in the evidence in the record, the fact of official
notice shall be so stated in the decision, and any party, upon timely
request, shall be afforded an opportunity to show the contrary.
(h) Confidential and sensitive information. (1) The Judge may limit
introduction of evidence or issue protective orders that are required
to prevent undue disclosure of classified, confidential, or sensitive
matters, which include, but are not limited to, matters of a national
security, business, personal, or proprietary nature. Where the Judge
determines that information in documents containing classified,
confidential, or sensitive matters should be made available to another
party, the Judge may direct the offering party to
[[Page 60585]]
prepare an unclassified or non-sensitive summary or extract of the
original. The summary or extract may be admitted as evidence in the
record.
(2) If the Judge determines that the procedure described in
paragraph (h)(1) of this section is inadequate and that classified or
otherwise sensitive matters must form part of the record in order to
avoid prejudice to a party, the Judge may advise the parties and
provide opportunity for arrangements to permit a party or
representative to have access to such matters.
(i) Foreign law. (1) A party who intends to raise an issue
concerning the law of a foreign country must give reasonable notice.
The Judge, in determining foreign law, may consider any relevant
material or source, whether or not submitted by a party.
(2) Exhibits in a foreign language must be translated into English
before such exhibits are offered into evidence. Copies of both the
untranslated and translated versions of the proposed exhibits, along
with the name and qualifications of the translator, must be served on
the opposing party at least 10 days prior to the hearing unless the
parties otherwise agree.
Sec. 904.252 Witnesses.
(a) Fees. Witnesses, other than employees of a federal agency,
summoned in an adjudication, including discovery, shall receive the
same fees and mileage as witnesses in the courts of the United States.
(b) Witness counsel. Any witness not a party may have personal
counsel to advise him or her as to his or her rights, but such counsel
may not otherwise participate in the hearing.
(c) Witness exclusion. Witnesses who are not parties may be
excluded from the hearing room prior to the taking of their testimony.
An authorized officer is considered a party for the purposes of this
subsection.
(d) Oath or affirmation. Witnesses shall testify under oath or
affirmation requiring the witness to declare that the witness will
testify truthfully.
(e) Failure or refusal to testify. If a witness fails or refuses to
testify, the failure or refusal to answer any question found by the
Judge to be proper may be grounds for striking all or part of the
testimony given by the witness, or any other action deemed appropriate
by the Judge.
(f) Testimony in a foreign language. If a witness is expected to
testify in a language other than the English language, the party
sponsoring the witness must provide for the services of an interpreter
and advise opposing counsel 10 days prior to the hearing concerning the
extent to which interpreters are to be used. When available, the
interpreter should be court certified under 28 U.S.C. 1827.
Sec. 904.253 Closing of record.
At the conclusion of the hearing, the evidentiary record shall be
closed unless the Judge directs otherwise. Once the record is closed,
no additional evidence shall be accepted except upon a showing that the
evidence is material and that there was good cause for failure to
produce it in a timely fashion. The Judge shall reflect in the record,
however, any approved correction to the transcript.
Sec. 904.254 Interlocutory review.
(a) Application for interlocutory review shall be made to the
Judge. The application shall not be certified to the Administrator
except when the Judge determines that:
(1) The ruling involves a dispositive question of law or policy
about which there is substantial ground for difference of opinion; or
(2) An immediate ruling will materially advance the completion of
the proceeding; or
(3) The denial of an immediate ruling will cause irreparable harm
to a party or the public.
(b) Any application for interlocutory review shall:
(1) Be filed with the Judge within 30 days after the Judge's
ruling;
(2) Designate the ruling or part thereof from which appeal is being
taken;
(3) Set forth the ground on which the appeal lies; and
(4) Present the points of fact and law relied upon in support of
the position taken.
(c) Any party that opposes the application may file a response
within twenty (20) days after service of the application.
(d) The certification to the Administrator by the Judge shall stay
proceedings before the Judge until the matter under interlocutory
review is decided.
Sec. 904.255 Ex parte communications.
(a) Except to the extent required for disposition of ex parte
matters as authorized by law, the Judge may not consult a person or
party on any matter relevant to the merits of the adjudication, unless
there has been notice and opportunity for all parties to participate.
(b) Except to the extent required for the disposition of ex parte
matters as authorized by law:
(1) No interested person outside the Agency shall make or knowingly
cause to be made to the Judge, the Administrator, or any Agency
employee who is or may reasonably be expected to be involved in the
decisional process of the adjudication an ex parte communication
relevant to the merits of the adjudication; and
(2) Neither the Administrator, the Judge, nor any Agency employee
who is or may reasonably be expected to be involved in the decisional
process of the adjudication, shall make or knowingly cause to be made
to any interested person outside the agency an ex parte communication
relevant to the merits of the adjudication.
(c) The Administrator, the Judge, or any Agency employee who is or
may reasonably be expected to be involved in the decisional process who
receives, makes, or knowingly causes to be made a communication
prohibited by this rule shall place in the record of decision:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral
communications;
(3) All written responses, and memoranda stating the substance of
all oral responses, to the materials described in paragraphs (c)(1) and
(c)(2) of his section.
(d)(1) Paragraphs (a), (b) and (c) of this section do not apply to
communications concerning national defense or foreign policy matters.
Such ex parte communications to or from an Agency employee on national
defense or foreign policy matters, or from employees of the United
States Government involving intergovernmental negotiations, are allowed
if the communicator's position with respect to those matters cannot
otherwise be fairly presented for reasons of foreign policy or national
defense.
(2) Ex parte communications subject to this paragraph will be made
a part of the record to the extent that they do not include information
classified under an Executive Order. Classified information will be
included in a classified portion of the record that will be available
for review only in accordance with applicable law.
(e) Upon receipt of a communication made, or knowingly caused to be
made, by a party in violation of this section the Judge may, to the
extent consistent with the interests of justice, national security, the
policy of underlying statutes, require the party to show cause why its
claim or interest in the adjudication should not be dismissed, denied,
disregarded, or otherwise adversely affected by reason of such
violation.
(f) The prohibitions of this rule shall apply beginning after
issuance of a NOVA, NOPS or NIDP and until a final administrative
decision is rendered, but in no event shall they begin to apply
[[Page 60586]]
later than the time at which a proceeding is noticed for hearing unless
the person responsible for the communication has knowledge that it will
be noticed, in which case the prohibitions shall apply beginning at the
time of her/his acquisition of such knowledge.
POST-HEARING
Sec. 904.260 Recordation of Hearing.
(a) All hearings shall be recorded.
(b) The official transcript of testimony taken, together with any
exhibits, briefs, or memoranda of law filed therewith, will be filed
with the Office of Administrative Law Judges. Transcripts of testimony
will be available in any proceeding and will be supplied to the parties
at the cost of the Agency.
(c) The Judge may determine whether ``ordinary copy'', ``daily
copy'',or other copy (as those terms are defined by contract) will be
necessary and required for the proper conduct of the proceeding.
Sec. 904.261 Post-hearing briefs.
(a) The parties may file post-hearing briefs that include proposed
findings of fact and conclusions of law within 30 calendar days from
service of the hearing transcript. Reply briefs may be submitted within
15 days after service of the proposed findings and conclusions to which
they respond.
(b) The Judge, in his or her discretion, may establish a different
date for filing either initial briefs or reply briefs with the court.
(c) In cases involving few parties, limited issues, and short
hearings, the Judge may require or a party may request that any
proposed findings and conclusions and reasons in support be presented
orally at the close of a hearing. In granting such cases, the Judge
will advise the parties in advance of hearing.
DECISION
Sec. 904.270 Record of decision.
(a) The exclusive record of decision consists of the official
transcript of testimony and proceedings; exhibits admitted into
evidence; briefs, pleadings, and other documents filed in the
proceeding; and descriptions or copies of matters, facts, or documents
officially noticed in the proceeding. Any other exhibits and records of
any ex parte communications will accompany the record of decision.
(b) The Judge will arrange for appropriate storage of the records
of any proceeding, which place of storage need not necessarily be
located physically within the Office of Administrative Law Judges.
Sec. 904.271 Initial decision.
(a) After expiration of the period provided in Sec. 904.261 for
the filing of reply briefs (unless the parties have waived briefs or
presented proposed findings orally at the hearing), the Judge will
render a written decision upon the record in the case, setting forth:
(1) Findings and conclusions, and the reasons or bases therefor, on
all material issues of fact, law, or discretion presented on the
record;
(2) An order as to the final disposition of the case, including any
appropriate ruling, order, sanction, relief, or denial thereof;
(3) The date upon which the decision will become effective; and
(4) A statement of further right to appeal.
(b) If the parties have presented oral proposed findings at the
hearing or have waived presentation of proposed findings, the Judge may
at the termination of the hearing announce the decision, subject to
later issuance of a written decision under paragraph (a) of this
section. The Judge may in such case direct the prevailing party to
prepare proposed findings, conclusions, and an order.
(c) The Judge will serve the written decision on each of the
parties by registered or certified mail, return receipt requested and
will promptly certify to the Administrator the record, including the
original copy of the decision, as complete and accurate.
(d) An initial decision becomes effective as the final
administrative decision of NOAA 30 days after service, unless:
(1) Otherwise provided by statute or regulations; or
(2) The Judge grants a petition for rehearing or reconsideration
under Sec. 904.272.
Sec. 904.272 Petition for reconsideration.
Unless an order or initial decision of the Judge specifically
provides otherwise, any party may file a petition for reconsideration
of an order or initial decision issued by the Judge. Such petitions
must state the matter claimed to have been erroneously decided, and the
alleged errors and relief sought must be specified with particularity.
Petitions must be filed within 20 days after the service of such order
or initial decision. The filing of a petition for reconsideration shall
operate as a stay of an order or initial decision or its effectiveness
date unless specifically so ordered by the Judge. Within 15 days after
the petition is filed, any party to the proceeding may file an answer
in support or in opposition.
Subpart D--Permit Sanctions and Denials
GENERAL
Sec. 904.300 Scope and applicability.
(a) This subpart sets forth policies and procedures governing the
suspension, revocation, modification, and denial of permits for reasons
relating to enforcement of the statutes cited in Sec. 904.1(c), except
for the statutes listed in paragraph (b) of this section. Nothing in
this subpart precludes sanction or denial of a permit for reasons not
relating to enforcement. As appropriate, and unless otherwise specified
in this subpart, the provisions of Subparts A, B, and C apply to this
subpart.
(b) Regulations governing sanctions and denials of permits issued
under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et
seq.) appear at 15 CFR part 970.
Sec. 904.301 Bases for sanctions or denials.
(a) Unless otherwise specified in a settlement agreement, or
otherwise provided in this subpart, NOAA may take action under this
subpart with respect to any permit issued under the statutes cited in
Sec. 904.1(c). The bases for an action to sanction or deny a permit
include but are not limited to the following:
(1) The commission of any offense prohibited by any statute
administered by NOAA, including violation of any regulation promulgated
or permit condition or restriction prescribed thereunder, by the permit
holder or with the use of a permitted vessel;
(2) The failure to pay a civil penalty assessed under subparts B
and C;
(3) The failure to pay a criminal fine imposed or to satisfy any
other liability incurred in a judicial proceeding under any of the
statutes administered by NOAA; or
(4) The failure to comply with any term of a settlement agreement.
(b) A sanction may be imposed, or a permit denied, under this
subpart with respect to the particular permit pertaining to the offense
or nonpayment, and may also be applied to any NOAA permit held or
sought by the permit holder or successor in interest to the permit,
including permits for other activities or for other vessels. Examples
of the application of this policy are the following:
(1) NOAA suspends Vessel A's fishing permit for nonpayment of a
civil penalty pertaining to Vessel A. The owner of Vessel A buys Vessel
B and applies for a permit for Vessel B to participate in the same or a
different fishery. NOAA may withhold that permit until the sanction
against vessel A is lifted.
[[Page 60587]]
(2) NOAA revokes a Marine Mammal Protection Act permit for
violation of its conditions. The permit holder subsequently applies for
a permit under the Endangered Species Act. NOAA may deny the ESA
application.
(3) Captain X, an officer in Country Y's fishing fleet, is found
guilty of assaulting an enforcement officer. NOAA may impose a
condition on the permits of Country Y's vessels that they may not fish
in the Exclusive Economic Zone with Captain X aboard. (See Sec.
904.320(c).)
(c) A sanction may not be extinguished by sale or transfer. The
sanction of any vessel permit is not extinguished by sale or transfer
of the vessel, nor by dissolution or reincorporation of a vessel owner
corporation, and shall remain with the vessel until lifted by NOAA.
Sec. 904.302 Notice of permit sanction (NOPS).
(a) A NOPS will be served personally or by certified mail, return
receipt requested, on the permit holder. When a foreign fishing vessel
is involved, service will be made on the agent authorized to receive
and respond to any legal process for vessels of that country.
(b) The NOPS will set forth the sanction to be imposed, the bases
for the sanction, and any opportunity for a hearing. It will state the
effective date of the sanction, which will ordinarily not be earlier
than 30 calendar days after the date of receipt of the NOPS (see Sec.
904.322).
(c) Upon demand by an authorized enforcement officer, a permit
holder must surrender a permit against which a sanction has taken
effect. The effectiveness of the sanction, however, does not depend on
surrender of the permit.
Sec. 904.303 Notice of intent to deny permit (NIDP).
(a) NOAA may issue a NIDP if the applicant has been charged with a
violation of a statute, regulation, or permit administered by NOAA, for
failure to pay a civil penalty, or for failure to comply with any term
of a settlement agreement.
(b) The NIDP will set forth the basis for its issuance and any
opportunity for a hearing, and will be served in accordance with Sec.
904.302(a).
(c) NOAA will not refund any fee(s) submitted with a permit
application if a NIDP is issued.
(d) A NIDP may be issued in conjunction with or independent of a
NOPS. Nothing in this section should be interpreted to preclude NOAA
from initiating a permit sanction action following issuance of the
permit, or from withholding a permit under Sec. 904.310(c) or Sec.
904.320.
Sec. 904.304 Opportunity for hearing.
(a) Except as provided in paragraph (b) of this section, the
recipient of a NOPS or NIDP will be provided an opportunity for a
hearing, as governed by Sec. 904.201.
(b) There will be no opportunity for a hearing if, with respect to
the violation that forms the basis for the NOPS or NIDP, the permit
holder had a previous opportunity to participate as a party in a
judicial or administrative hearing, whether or not the permit holder
did participate, and whether or not such a hearing was held.
Sec. 904.305 Final administrative decision.
(a) If no request for hearing is timely filed as provided in Sec.
904.201(a), the NOPS or NIDP becomes effective as the final
administrative decision and order of NOAA on the 30th day after service
of the NOPS or NIDP or on the last day of any delay period granted.
(b) If a request for hearing is timely filed in accordance with
Sec. 904.201(a), the date of the final administrative decision is as
provided in subpart C of this part.
SANCTIONS FOR NONCOMPLIANCE
Sec. 904.310 Nature of sanctions.
(a) NOAA may suspend, modify, or deny a permit if:
(1) A civil penalty has been assessed against the permit holder
under subparts B and C of this part, but the permit holder has failed
to pay the penalty, or has failed to comply with any term of a
settlement agreement; or
(2) A criminal fine or other liability for violation of any of the
statutes administered by NOAA has been imposed against the permit
holder in a judicial proceeding, but payment has not been made.
(b) NOAA will suspend any permit issued to a foreign fishing vessel
under section 204(b) of the Magnuson-Stevens Fishery Conservation and
Management Act under the circumstances set forth in paragraph (a) of
this section.
(c) NOAA will withhold any other permit for which the permit holder
applies if either condition in paragraph (a) of this section is
applicable.
Sec. 904.311 Compliance.
If the permit holder pays the fine or penalty in full or agrees to
terms satisfactory to NOAA for payment:
(a) The suspension will not take effect;
(b) Any permit suspended under Sec. 904.310 will be reinstated by
order of NOAA; or
(c) Any application by the permit holder may be granted if the
permit holder is otherwise qualified to receive the permit.
SANCTIONS FOR VIOLATIONS
Sec. 904.320 Nature of sanctions.
Subject to the requirements of this subpart, NOAA may take any of
the following actions or combination of actions if a permit holder or
permitted vessel violates a statute administered by NOAA, or any
regulation promulgated or permit condition prescribed thereunder:
(a) Revocation. A permit may be cancelled, with or without
prejudice to issuance of the permit in the future. Additional
requirements for issuance of any future permit may be imposed.
(b) Suspension. A permit may be suspended either for a specified
period of time or until stated requirements are met, or both. If
contingent on stated requirements being met, the suspension is with
prejudice to issuance of any permit until the requirements are met.
(c) Modification. A permit may be modified, as by imposing
additional conditions and restrictions. If the permit was issued for a
foreign fishing vessel under section 204(b) of the Magnuson-Stevens
Fishery Conservation and Management Act, additional conditions and
restrictions may be imposed on the application of the foreign nation
involved and on any permits issued under such application.
Sec. 904.321 Reinstatement of permit.
(a) A permit suspended for a specified period of time will be
reinstated automatically at the end of the period.
(b) A permit suspended until stated requirements are met will be
reinstated only by order of NOAA.
Sec. 904.322 Interim action.
(a) To protect marine resources during the pendency of an action
under this subpart, in cases of willfulness, or as otherwise required
in the interest of public health, welfare, or safety, an Administrative
Law Judge may order immediate suspension, modification, or withholding
of a permit until a decision is made on the action proposed in a NOPS
or NIDP.
(b) The Judge will order interim action under paragraph (a) of this
section, only after finding that there exists probable cause to believe
that the violation charged in the NOPS or NIDP was committed. The
Judge's finding of probable cause, which will be summarized in the
order, may be made:
[[Page 60588]]
(1) After review of the factual basis of the alleged violation,
following an opportunity for the parties to submit their views (orally
or in writing, in the Judge's discretion); or
(2) By adoption of an equivalent finding of probable cause or an
admission in any administrative or judicial proceeding to which the
recipient of the NOPS or NIDP was a party, including, but not limited
to, a hearing to arrest or set bond for a vessel in a civil forfeiture
action or an arraignment or other hearing in a criminal action.
Adoption of a finding or admission under this paragraph may be made
only after the Judge reviews pertinent portions of the transcript or
other records, documents, or pleadings from the other proceeding.
(c) An order for interim action under paragraph (a) of this section
is unappealable and will remain in effect until a decision is made on
the NOPS or NIDP. Where such interim action has been taken, the Judge
will expedite any hearing requested under Sec. 904.304.
Subpart E--Written Warnings
Sec. 904.400 Purpose and scope.
This subpart sets forth the policy and procedures governing the
issuance and use of written warnings by persons authorized to enforce
the statutes administered by NOAA, and the review of such warnings. A
written warning may be issued in lieu of assessing a civil penalty or
initiating criminal prosecution for violation of any of the laws cited
in Sec. 904.1(c).
Sec. 904.401 Written warning as a prior offense.
A written warning may be used as a basis for dealing more severely
with a subsequent offense, including, but not limited to, a violation
of the same statute or an offense involving an activity that is related
to the prior offense.
Sec. 904.402 Procedures.
(a) Any person authorized to enforce the laws listed in Sec.
904.1(c) who finds a violation of one of the laws may issue a written
warning to a violator in lieu of other law enforcement action that
could be taken under the applicable statute.
(b) The written warning will:
(1) State that it is a ``written warning'';
(2) State the factual and statutory or regulatory basis for its
issuance;
(3) Advise the violator of its effect in the event of a future
violation; and
(4) Inform the violator of the right of review and appeal under
Sec. 904.403.
(c) NOAA will maintain a record of written warnings that are
issued.
(d) If, within 120 days of the date of the written warning, further
investigation indicates that the violation is more serious than
realized at the time the written warning was issued, or that the
violator previously committed a similar offense for which a written
warning was issued or other enforcement action was taken, NOAA may
withdraw the warning and commence other civil or criminal proceedings.
Sec. 904.403 Review and appeal of a written warning.
(a) If a person receives a written warning from an authorized
officer, the person may seek review by Agency counsel. The request for
review must be in writing and must present the facts and circumstances
that explain or deny the violation described in the written warning.
The request for review must be filed at the NOAA Office of the
Assistant General Counsel for Enforcement and Litigation, 8484 Georgia
Avenue, Suite 400, Silver Spring, MD 20910, within 60 days of receipt
of the written warning. Agency counsel may, in his or her discretion,
affirm, vacate, or modify the written warning and will notify the
person of his or her determination. The Agency counsel's determination
constitutes the final agency action, unless it is appealed pursuant to
Sec. 904.403(b).
(b) If a person receives a written warning from Agency counsel, or
receives a determination from Agency counsel affirming a written
warning issued by an authorized officer, the person may appeal to the
NOAA Deputy General Counsel. The appeal must be filed at the NOAA
Office of the General Counsel, Herbert Hoover Office Building, 14th and
Constitution Avenue, N.W., Washington, D.C. 20230, within 60 days of
receipt of the written warning issued by Agency counsel, or the
determination from Agency counsel affirming a written warning issued by
an authorized officer.
(1) An appeal from an Agency counsel issued written warning must be
in writing and must present the facts and circumstances that explain or
deny the violation described in the written warning.
(2) An appeal from an Agency counsel's determination affirming a
written warning issued by an authorized officer must be in writing and
include a copy of the Agency counsel's determination affirming the
written warning.
(c) The NOAA Deputy General Counsel may, in his or her discretion,
affirm, vacate, or modify the written warning and will notify the
person of the determination. The NOAA Deputy General Counsel's
determination constitutes the final agency action.
Subpart F--Seizure and Forfeiture Procedures
Sec. 904.500 Purpose and scope.
(a) This subpart sets forth procedures governing the release,
abandonment, forfeiture, remission of forfeiture, or return of seized
property (including property seized and held solely as evidence) that
is subject to forfeiture under the various statutes administered by
NOAA.
(b) Except as provided in this subpart, these regulations apply to
all seized property subject to forfeiture under the statutes listed in
subpart A of this part. This subpart is in addition to, and not in
contradiction of, any special rules regarding seizure, holding or
disposition of property seized under these statutes.
Sec. 904.501 Notice of seizure.
Within 60 days from the date of the seizure, NOAA will mail notice
of the seizure by registered or certified mail, return receipt
requested, to the owner or consignee, if known or easily ascertainable,
or other party that the facts of record indicate has an interest in the
seized property. In cases where the property is seized by a state or
local law enforcement agency notice will be given in the above manner
within 90 days from the date of the seizure. The notice will describe
the seized property and state the time, place and reason for the
seizure, including the provisions of law alleged to have been violated.
The notice will inform each interested party of his or her right to
file a claim to the seized property, and state a date by which a claim
must be filed, which may not be less than 35 days after the date the
notice is mailed. The notice may be combined with a notice of the sale
of perishable fish issued under Sec. 904.505. If a claim is filed the
case will be referred promptly to the United States Attorney for
institution of judicial proceedings.
Sec. 904.502 Bonded release of seized property.
(a) As authorized by applicable statute, at any time after seizure
of any property, NOAA may, in its sole discretion, release any seized
property upon deposit with NOAA of the full value of the property or
such lesser amount as NOAA deems sufficient to protect the interests
served by the applicable statute. In addition, NOAA may, in its sole
discretion, accept a bond or other security in place of fish, wildlife,
or other property seized. The
[[Page 60589]]
bond will contain such conditions as NOAA deems appropriate.
(b) Property may be released under this section only if possession
thereof will not violate or frustrate the purpose or policy of any
applicable law or regulation. Property that will not be released
includes, but is not limited to:
(1) Property in which NOAA is not satisfied that the petitioner has
a substantial interest;
(2) Property whose entry into the commerce of the United States is
prohibited;
(3) Live animals, except in the interest of the animals' welfare;
or
(4) Property whose release appears to NOAA not to be in the best
interest of the United States or serve the purposes of the applicable
statute.
(c) If NOAA grants the request, the amount paid by the petitioner
will be deposited in a NOAA suspense account. The amount so deposited
will for all purposes be considered to represent the property seized
and subject to forfeiture, and payment of the amount by petitioner
constitutes a waiver by petitioner of any claim rising from the seizure
and custody of the property. NOAA will maintain the money so deposited
pending further order of NOAA, order of a court, or disposition by
applicable administrative proceedings.
(d) A request for release need not be in any particular form, but
must set forth the following:
(1) A description of the property seized;
(2) The date and place of the seizure;
(3) The requester's interest in the property, supported as
appropriate by bills of sale, contracts, mortgages, or other
satisfactory evidence;
(4) The facts and circumstances relied upon by the requester to
justify the remission or mitigation;
(5) An offer of payment to protect the United States' interest that
requester makes in return for release;
(6) The signature of the requester, his or her attorney, or other
authorized agent; and
(7) A request to defer administrative or judicial forfeiture
proceedings until completion of all other related judicial or
administrative proceedings (including any associated civil penalty or
permit sanction proceedings).
Sec. 904.503 Appraisement.
NOAA will appraise seized property to determine its domestic value.
Domestic value means the price at which such or similar property is
offered for sale at the time and place of appraisement in the ordinary
course of trade. If there is no market for the seized property at the
place of appraisement, the value in the principal market nearest the
place of appraisement will be used. If the seized property may not
lawfully be sold in the United States, its domestic value will be
determined by other reasonable means.
Sec. 904.504 Administrative forfeiture proceedings.
(a) When authorized. This section applies to property that is
determined under Sec. 904.503 to have a value of $500,000 or less, and
that is subject to administrative forfeiture under the applicable
statute. This section does not apply to conveyances seized in
connection with criminal proceedings.
(b) Procedure. (1) If seized property is appraised at a value of
$500,000 or less, instead of referring the matter to the United States
Attorney, NOAA will publish a notice of proposed forfeiture once a week
for at least three successive weeks in a newspaper of general
circulation in the Federal judicial district in which the property was
seized. However, if the value of the seized property does not exceed
$1,000, the notice may be published by posting for at least three
successive weeks in a conspicuous place accessible to the public at the
National Marine Fisheries Service Enforcement Office, United States
District Court, or the United States Customs House nearest the place of
seizure, with the date of posting indicated on the notice. In addition,
a reasonable effort will be made to serve the notice personally, or by
registered or certified mail, return receipt requested, on each person
whose identity, address and interest in the property are known or
easily ascertainable.
(2) The notice of proposed forfeiture will:
(i) Describe the seized property, including any applicable
registration or serial numbers;
(ii) State the time, place and reason for the seizure, including
the provisions of law allegedly violated; and
(iii) Describe the rights of an interested person to file a claim
to the property (including the right to petition to remit or mitigate
the forfeiture).
(3)(i) Except as provided in paragraph (b)(4) of this section, any
person claiming the seized property may file a claim with NOAA, at the
address indicated in the notice, within 30 days of the date the final
notice was published or posted. The claim must state the claimant's
interest in the property.
(ii) Filing a claim does not entitle the claimant to possession of
the property. However, it does stop administrative forfeiture
proceedings.
(iii) If the claim is filed timely in accordance with this section,
NOAA will refer the matter to the Attorney General to institute
forfeiture proceedings in the appropriate United States District Court.
(4) If a claim is not filed within 30 days of final notice
published or posted in accordance with this section, NOAA will declare
the property forfeited. The declaration of forfeiture will be in
writing and will be served by registered or certified mail, return
receipt requested, on each person whose identity and address and prior
interest in the seized property are known or easily ascertainable. The
declaration will describe the property and state the time, place, and
reason for its seizure, including the provisions of law violated. The
declaration will identify the notice of proposed forfeiture, describing
the dates and manner of publication of the notice and any efforts made
to serve the notice personally or by mail. The declaration will state
that in response to the notice a proper claim was not timely received
by the proper office from any claimant, and that therefore all
potential claimants are deemed to admit the truth of the allegations of
the notice. The declaration shall conclude with an order of
condemnation and forfeiture of the property to the United States for
disposition according to law. All forfeited property will be subject to
disposition as authorized by law and regulations of NOAA.
(5) If the appraised value of the property is more than $500,000,
or a timely and satisfactory claim for property appraised at $500,000
or less is submitted to NOAA, the matter will be referred to the
Attorney General to institute in rem proceedings in the appropriate
United States District Court.
Sec. 904.505 Summary sale.
(a) In view of the perishable nature of fish, any person authorized
to enforce a statute administered by NOAA may, as authorized by law,
sell or cause to be sold, and any person may purchase, for not less
than its domestic fair market value, fish seized under such statute.
(b) Any person purchasing fish subject to this section must deliver
the proceeds of the sale to a person authorized to enforce a statute
administered by NOAA immediately upon request of such authorized
person. Anyone who does not so deliver the proceeds may be subject to
penalties under the applicable statute or statutes.
(c) NOAA will give notice of the sale by registered or certified
mail, return receipt requested, to the owner or consignee, if known or
easily ascertainable, or to any other party that
[[Page 60590]]
the facts of record indicate has an interest in the seized fish, unless
the owner or consignee or other interested party has otherwise been
personally notified. Notice will be sent either prior to the sale, or
as soon thereafter as practicable.
(d) The proceeds of the sale, after deducting any reasonable costs
of the sale, will be subject to any administrative or judicial
proceedings in the same manner as the seized fish would have been,
including an action in rem for the forfeiture of the proceeds. Pending
disposition of such proceedings, the proceeds will, as appropriate,
either be deposited in a NOAA suspense account or submitted to the
appropriate court.
(e) Seizure and sale of fish is without prejudice to any other
remedy or sanction authorized by law.
Sec. 904.506 Remission of forfeiture and restoration of proceeds of
sale.
(a) Application of this section. (1) This section establishes
procedures for filing with NOAA a petition for relief from forfeitures
incurred, or alleged to have been incurred, and from potential
forfeiture of seized property, under any statute administered by NOAA
that authorizes the remission or mitigation of forfeitures.
(2) Although NOAA may properly consider a petition for remission or
mitigation of forfeiture and restoration of proceeds of sale along with
other consequences of a violation, the remission or mitigation of a
forfeiture and restoration of proceeds is not dispositive of any
criminal charge filed, civil penalty assessed, or permit sanction
proposed, unless NOAA expressly so states. Remission or mitigation of
forfeiture and restoration of proceeds is in the nature of executive
clemency and is granted in the sole discretion of NOAA only when
consistent with the purposes of the particular statute involved and
this section.
(3) If no petition is timely filed, or if the petition is denied,
prior to depositing the proceeds NOAA may use the proceeds of sale to
reimburse the government for any costs that by law may be paid from
such sums.
(4) If NOAA remits the forfeiture and the forfeited property has
not been sold, then restoration may be conditioned upon payment of any
applicable costs as defined in this subpart.
(b) Petition for relief from forfeiture. (1) Any person claiming an
interest in any property which has been or may be administratively
forfeited under the provisions of this section may, at any time after
seizure of the property, but no later than 90 days after the date of
forfeiture, petition the Assistant General Counsel for Enforcement and
Litigation, NOAA/GCEL, 8484 Georgia Avenue, Suite 400, Silver Spring,
Maryland 20910, for a remission or mitigation of the forfeiture and
restoration of the proceeds of such sale, or such part thereof as may
be claimed by the petitioner.
(2) The petition need not be in any particular form, but must set
forth the following:
(i) A description of the property seized;
(ii) The date and place of the seizure;
(iii) The petitioner's interest in the property, supported as
appropriate by bills of sale, contracts, mortgages, or other
satisfactory evidence;
(iv) The facts and circumstances relied upon by the petitioner to
justify the remission or mitigation of forfeiture and restoration of
proceeds. If the claim is made after the property is forfeited, the
petitioner must provide satisfactory proof that the petitioner did not
know of the seizure prior to the declaration or condemnation of
forfeiture, was in such circumstances as prevented him or her from
knowing of the same, and that such forfeiture was incurred without any
willful negligence or intention to violate the applicable statute on
the part of the petitioner; and
(v) The signature of the petitioner, his or her attorney, or other
authorized agent.
(3) NOAA will not consider a petition for remission or mitigation
of forfeiture and restoration of proceeds while a forfeiture proceeding
is pending in federal court. Once such a case is referred to the
Attorney General for institution of judicial proceedings, and until the
proceedings are completed, any petition received by NOAA will be
forwarded to the Attorney General for consideration.
(4) A false statement in a petition will subject petitioner to
prosecution under 18 U.S.C. 1001.
(c) Investigation. NOAA will investigate the facts and
circumstances shown by the petition and seizure, and may in this
respect appoint an investigator to examine the facts and prepare a
report of investigation.
(d) Determination of petition. (1) After investigation under
paragraph (c) of this section, NOAA will make a determination on the
matter and notify the petitioner. NOAA may remit or mitigate the
forfeiture, on such terms and conditions as are deemed reasonable and
just under the applicable statute and the circumstances.
(2) Unless NOAA determines no valid purpose would be served, NOAA
will condition a determination to remit or mitigate a forfeiture upon
the petitioner's submitting an agreement, in a form satisfactory to
NOAA, to hold the United States and its officers or agents harmless
from any and all claims based on loss of or damage to the seized
property or that might result from grant of remission or mitigation and
restoration of proceeds. If the petitioner is not the beneficial owner
of the property, or if there are others with a proprietary interest in
the property, NOAA may require the petitioner to submit such an
agreement executed by the beneficial owner or other interested party.
NOAA may also require that the property be promptly exported from the
United States.
(e) Compliance with the determination. A determination by NOAA to
remit or mitigate the forfeiture and restore the proceeds upon stated
conditions, as upon payment of a specified amount, will be effective
for 60 days after the date of the determination. If the petitioner does
not comply with the conditions within that period in a manner
prescribed by the determination, or make arrangements satisfactory to
NOAA for later compliance, the remission or mitigation and restoration
of proceeds will be void, and judicial or administrative forfeiture
proceedings will be instituted or resumed.
(f) Appropriated property. If forfeited property that is the
subject of a claim for restoration of proceeds has been appropriated
for official use, retention by the government will be regarded as sale
for the purposes of this section.
Sec. 904.507 Recovery of certain storage costs.
If any fish, wildlife, or evidentiary property is seized and
forfeited under the Endangered Species Act, 16 U.S.C. 1531 through
1543, any person whose act or omission was the basis for the seizure
may be charged a reasonable fee for expenses to the United States
connected with the transfer, board, handling or storage of such
property. If any fish or wildlife is seized in connection with a
violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 through
3378, or any property is seized in connection with a violation of the
Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C.
1801 through 1882, any person convicted thereof, or assessed a civil
penalty therefor, may be assessed a reasonable fee for expenses of the
United States connected with the storage, care and maintenance of such
property. Within a reasonable time after forfeiture, NOAA will send to
such
[[Page 60591]]
person by registered or certified mail, return receipt requested, a
bill for such fee. The bill will contain an itemized statement of the
applicable costs, and instructions on the time and manner of payment.
Payment must be made in accordance with the bill. If the recipient of
the bill objects to the reasonableness of the costs assessed he or she
may, within 30 days of receipt, file written objections with NOAA at
the address stated in the bill. NOAA will promptly review the written
objections and within 30 days mail the final determination to the party
who filed them. NOAA's determination will constitute final agency
action on the matter.
Sec. 904.508 Voluntary forfeiture by abandonment.
(a) The owner of seized property may voluntarily forfeit all right,
title, and interest in the property by abandoning it to NOAA. Voluntary
forfeiture by abandonment under this section may be accomplished by
various means, including, but not limited to: expressly waiving any
claim to the property by voluntarily relinquishing any right, title,
and interest by written agreement or otherwise; or refusing or
otherwise avoiding delivery of returned property; or failing to respond
within 90 days of service of any certified or registered notice
regarding a return of seized property issued under Sec. 904.510(b).
(b) Property will be declared finally forfeited by abandonment,
without recourse, upon a finding of abandonment by NOAA.
Sec. 904.509 Disposal of forfeited property.
(a) Delivery to Administrator. Upon forfeiture of any fish,
wildlife, parts or products thereof, or other property to the United
States, including the abandonment or waiver of any claim to any such
property, it will be delivered to NOAA for storage or disposal
according to the provisions of this section.
(b) Disposal. Disposal may be accomplished by one of the following
means unless the property is the subject of a petition for remission or
mitigation of forfeiture or disposed of by court order:
(1) Return to the wild;
(2) Use by NOAA or transfer to another government agency for
official use;
(3) Donation or loan;
(4) Sale; or
(5) Destruction.
(c) Purposes of disposal. Disposal procedures may be used to
alleviate overcrowding of evidence storage facilities; to avoid the
accumulation of seized property where disposal is not otherwise
accomplished by court order; to address the needs of governmental
agencies and other institutions and organizations for such property for
scientific, educational, and public display purposes; and for other
valid reasons. In no case will property be used for personal purposes,
either by loan recipients or government personnel.
(d) Disposal of evidence. Property that is evidence may be disposed
of only after authorization by the NOAA Office of General Counsel.
Disposal approval usually will not be given until the case involving
the evidence is closed, except that perishable property may be
authorized for disposal sooner.
(e) Loans--(1) To institutions. Property approved for disposal may
be loaned to institutions or organizations requesting such property for
scientific, educational, or public display purposes. Property will be
loaned only after execution of a loan agreement which provides, among
other things, that the loaned property will be used only for
noncommercial scientific, educational, or public display purposes, and
that it will remain the property of the United States government, which
may demand its return at any time. Parties requesting the loan of
property must demonstrate the ability to provide adequate care and
security for the property. Loans may be made to responsible agencies of
foreign governments in accordance with the Convention on International
Trade in Endangered Species of Wild Fauna and Flora.
(2) To individuals. Property generally will not be loaned to
individuals not affiliated with an institution or organization unless
it is clear that the property will be used in a noncommercial manner,
and for scientific, educational, or public display purposes which are
in the public interest.
(3) Selection of loan recipients. Recipients of property will be
chosen so as to assure a wide distribution of the property throughout
the scientific, educational, public display and museum communities.
Other branches of NMFS, NOAA, the Department of Commerce, and other
governmental agencies will have the right of first refusal of any
property offered for disposal. The Administrator may solicit
applications, by publication of a notice in the Federal Register, from
qualified persons, institutions, and organizations who are interested
in obtaining the property being offered. Such notice will contain a
statement as to the availability of specific property for which
transferees are being sought, and instructions on how and where to make
application. Applications will be granted in the following order: other
offices of NMFS, NOAA, and the Department of Commerce; U.S. Fish and
Wildlife Service; other Federal agencies; other governmental agencies;
scientific, educational, or other public or private institutions; and
private individuals.
(4) Loan agreement. Property will be transferred under a loan
agreement executed by the Administrator and the borrower. Any attempt
on the part of the borrower to retransfer property, even to another
institution for related purposes, will violate and invalidate the loan
agreement, and entitle the United States to immediate repossession of
the property, unless the prior approval of the Administrator has been
obtained under Sec. 904.510(d)(5). Violation of the loan agreement may
also subject the violator to the penalties provided by the laws
governing possession and transfer of the property.
(5) Temporary reloans; documents to accompany property. Temporary
reloans by the borrower to another qualified borrower (as for temporary
exhibition) may be made if the Administrator is advised in advance by
the borrowers. Temporary loans for more than thirty days must be
approved in advance in writing by the Administrator. A copy of the
original loan agreement, and a copy of the written approval for reloan,
if any, must accompany the property whenever it is temporarily reloaned
or is shipped or transported across state or international boundaries.
(f) Sale. (1) Any fish, wildlife, parts or products thereof, and
other property which has been voluntarily forfeited by abandonment to
NOAA may be sold or offered for sale, with the exception of any species
or property which is otherwise prohibited from being sold at the time
it is to be sold or offered for sale.
(2) Property will be sold in accordance with current Federal
Property Management Regulations (41 CFR chapter 101) or United States
Customs laws and regulations, except that NOAA may:
(i) Sell at fair market value perishable fish pursuant to the
summary sales provisions of 15 CFR 904.505; and
(ii) Sell, destroy, or otherwise dispose of property for which it
is determined the expense of keeping is disproportionate to the value
thereof.
(3) The proceeds of sale may be used to reimburse NOAA for any
costs which by law NOAA is authorized to recover or to pay any rewards
which by law may be paid from sums that NOAA receives.
[[Page 60592]]
(g) Destruction. (1) Property not otherwise disposed of may be
destroyed.
(2) Destruction will be accomplished in accordance with the
requirements of 41 CFR Subpart 101-45.9.
(3) When destroyed, the fact, manner, and date of destruction and
the type and quantity destroyed must be certified by the official
actually destroying the property.
(4) No duly authorized officer of NOAA shall be liable for the
destruction or other disposition of property made pursuant to this
section.
(h) Record-keeping. A disposal form will be completed each time
property is disposed of pursuant to the policy and procedure
established herein, and will be retained in the case file for the
property. These forms will be available to the public.
Sec. 904.510 Return of seized property.
(a) Return. In cases where NOAA, in its sole discretion, determines
that forfeiture of seized property would not be in the best interest of
the Government, NOAA will make a reasonable attempt to determine the
party that the facts of record indicate has a predominant ownership
interest in the seized property and, provided such a determination can
be made, will arrange for return of the seized property to that party
by appropriate means.
(b) Notice. NOAA will mail notice of the return of property by
registered or certified mail, return receipt requested, to the owner,
consignee, or other party the facts of record indicate has an interest
in the seized property. The notice will describe the seized property,
state the time, place, and reason for the seizure and return, and will
identify the owner or consignee, and if appropriate, the bailee of the
seized property. The notice of the return also will state that the
party to whom the property is being returned is responsible for any
distribution of the property to any party who holds a valid claim,
right, title or interest in receiving the property, in whole or in
part. The notice also will provide that on presentation of the notice
and proper identification, and the signing of a receipt provided by
NOAA, the seized property is authorized to be released.
[FR Doc. 04-22598 Filed 10-6-04; 1:20 am]
BILLING CODE 3510-12-S