[Federal Register Volume 65, Number 124 (Tuesday, June 27, 2000)]
[Rules and Regulations]
[Pages 39560-39564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-16229]


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NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION

50 CFR Part 228

[Docket No. 000619186-0186-01; I.D.051500B]
RIN 0648-AO17


Reinstatement of Procedures for Hearings Conducted Pursuant to 
Section 103(d) of the Marine Mammal Protection Act

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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SUMMARY: This final rule reinstates rules of practice and procedure for 
formal rulemaking hearings conducted under the Marine Mammal Protection 
Act (MMPA). These rules were removed from the Code of Federal 
Regulations in 1995 because of non-use. NMFS now anticipates the need 
for formal rulemaking hearings. The intent of this action is to 
reinstate the rules of practice and procedure for formal rulemaking 
hearings conducted under the MMPA.

DATES: Effective June 27, 2000.

ADDRESSES: Donna Wieting, Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Caroline Good, (301) 713-2322, x117.

SUPPLEMENTARY INFORMATION:

Background

    The MMPA gives the Secretaries of Commerce and Interior broad 
authority to issue and implement regulations related to the 
conservation or taking of marine mammals. In some cases (e.g., 
regulating subsistence harvest by Alaskan Natives), the MMPA requires a 
hearing on the record as provided in section 103(d) of the MMPA. The 
Endangered Species Act (ESA) also requires a formal rulemaking hearing 
before the Secretaries of Commerce or Interior can limit the 
subsistence take of threatened or endangered species of fish or 
wildlife by Alaska Natives. These ESA formal rulemaking provisions 
cross-reference section 103(d) of the MMPA, 16 U.S.C. 1539(e)(4).
    Prior to 1995, the rules of practice and procedure for hearings 
conducted pursuant to section 103(d) of the MMPA were codified at 50 
CFR 216.71. In 1995, NMFS removed these rules as part of an effort to 
simplify the Code of Federal Regulations. Such hearings had not been 
convened for more than 15 years, and NMFS did not anticipate using the 
rules in the foreseeable future.
    NMFS now anticipates conducting formal rulemaking to promulgate 
regulations governing the subsistence harvest of certain marine mammals 
by Alaska Natives. NMFS is reinstating the rules of practice and 
procedure that were removed in 1995. This final rule reinstates these 
rules as they appeared prior to 1995 with only minor technical 
corrections to incorporate current terminology, such as Assistant 
Administrator for Fisheries rather than Director, NMFS.

Classification

    This final rule establishes agency rules of practice and procedure. 
Under section 553(b)(3)(A) of the Administrative Procedure Act (APA), 
prior notice and opportunity for comment is not required for the 
promulgation of agency rules of practice and procedure. Under section 
553(d) of the APA, only substantive rules require publication 30 days 
prior to their effective date. This final rule is effective upon 
publication.
    Because prior notice and opportunity for public comment are not 
required to be provided for this final rule by 5 U.S.C. 553 or by any 
other law, the analytical requirements of the Regulatory Flexibility 
Act do not apply.
    This final rule is not subject to review under Executive Order 
12866.
    The promulgation of regulations establishing rules of practice and 
procedure in this instance is categorically excluded by NOAA 
Administrative Order 216-6 from the requirement to prepare an 
environmental assessment or an environmental impact statement under the 
National Environmental Policy Act.
    This final rule does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act of 1980.
    This final rule does not contain policies with federalism 
implications sufficient to warrant preparation of a federalism 
assessment under E.O. 13132.

List of Subjects in 50 CFR Part 228

    Administrative practice and procedure, Endangered and threatened 
species, Marine mammals.

    Dated: June 21, 2000.
Andrew A. Rosenberg,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries 
Service.
    For reasons set forth in the preamble, 50 CFR part 228 is added to 
read as follows:

PART 228--NOTICE AND HEARING ON SECTION 103(d) REGULATIONS

Sec.
228.1  Basis and purpose.
228.2  Definitions.
228.3  Scope of regulations.
228.4  Notice of hearing.
228.5  Notification by interested persons.
228.6  Presiding officer.
228.7  Direct testimony submitted as written documents.
228.8  Mailing address.
228.9  Inspection and copying of documents.
228.10  Ex parte communications.
228.11  Prehearing conference.
228.12  Final agenda of the hearing.
228.13  Determination to cancel the hearing.
228.14  Rebuttal testimony and new issues of fact in final agenda.
228.15  Waiver of right to participate.
228.16  Conduct of the hearing.
228.17  Direct testimony.
228.18  Cross-examination.
228.19  Oral and written arguments.

[[Page 39561]]

228.20  Recommended decision, certification of the transcript and 
submission of comments on the recommended decision.
228.21  Assistant Administrator's decision.

    Authority: 16 U.S.C. 1361 et seq.


Sec. 228.1  Basis and purpose.

    (a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine 
Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 
1371(b)) and these regulations authorize the Assistant Administrator of 
the National Marine Fisheries Service, to:
    (1) Impose regulations governing the taking of marine mammals 
incidental to commercial fishing operations;
    (2) Waive the moratorium and to adopt regulations with respect to 
the taking and importing of animals from each species of marine mammals 
under the Assistant Administrator's jurisdiction;
    (3) Prescribe regulations governing the taking of depleted marine 
mammals by any Indian, Aleut or Eskimo, respectively. In prescribing 
regulations to carry out the provisions of said sections, the Act 
refers the Assistant Administrator to section 103 (16 U.S.C. 1373). In 
accordance with section 103(d), regulations must be made on the record 
after opportunity for an agency hearing on such regulations and, in the 
case of a waiver, on the determination by the Assistant Administrator 
to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 
U.S.C. 1371(a)(3)(A)).
    (b) The purpose of this part is to establish rules of practice and 
procedure for all hearings conducted pursuant to section 103(d) of the 
Act.


Sec. 228.2  Definitions.

    (a) Party means, for the purposes of this subpart:
    (1) The Assistant Administrator or the Assistant Administrator's 
representative;
    (2) A person who has notified the Assistant Administrator by 
specified dates of his or her intent to participate in the hearing 
pursuant to Secs. 228.5 and 228.14(b).
    (b) Witness means, for the purpose of this part, any person who 
submits written direct testimony on the proposed regulations. A person 
may be both a party and a witness.


Sec. 228.3  Scope of regulations.

    The procedural regulations in this part govern the practice and 
procedure in hearings held under section 103(d) of the Act. These 
hearings will be governed by the provisions of 5 U.S.C. 556 and section 
557 of the Administrative Procedure Act. The regulations shall be 
construed to secure the just, speedy and inexpensive determination of 
all issues raised with respect to any waiver or regulation proposed 
pursuant to section 103(d) of the Act with full protection for the 
rights of all persons affected thereby.


Sec. 228.4  Notice of hearing.

    (a) A notice of hearing on any proposed regulations shall be 
published in the Federal Register, together with the Assistant 
Administrator's proposed determination to waive the moratorium pursuant 
to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where 
applicable.
    (b) The notice shall state:
    (1) The nature of the hearing;
    (2) The place and date of the hearing. The date shall not be less 
than 60 days after publication of notice of the hearing;
    (3) The legal authority under which the hearing is to be held;
    (4) The proposed regulations and waiver, where applicable, and a 
summary of the statements required by section 103(d) of the Act (16 
U.S.C. 1373(d));
    (5) Issues of fact which may be involved in the hearing;
    (6) If a draft Environmental Impact Statement is required, the date 
of publication of the draft and the place(s) where the draft and 
comments thereon may be viewed and copied;
    (7) Any written advice received from the Marine Mammal Commission;
    (8) The place(s) where records and submitted direct testimony will 
be kept for public inspection;
    (9) The final date for filing with the Assistant Administrator a 
notice of intent to participate in the hearing pursuant to Sec. 228.5;
    (10) The final date for submission of direct testimony on the 
proposed regulations and waiver, if applicable, and the number of 
copies required;
    (11) The docket number assigned to the case which shall be used in 
all subsequent proceedings; and
    (12) The place and date of the pre-hearing conference.


Sec. 228.5  Notification by interested persons.

    Any person desiring to participate as a party shall notify the 
Assistant Administrator, by certified mail, on or before the date 
specified in the notice.


Sec. 228.6  Presiding officer.

    (a) Upon publication of the notice of hearing pursuant to 
Sec. 228.4, the Assistant Administrator shall appoint a presiding 
officer pursuant to 5 U.S.C. 3105. No individual who has any conflict 
of interest, financial or otherwise, shall serve as presiding officer 
in such proceeding.
    (b) The presiding officer, in any proceeding under this subpart, 
shall have power to:
    (1) Change the time and place of the hearing and adjourn the 
hearing;
    (2) Evaluate direct testimony submitted pursuant to these 
regulations, make a preliminary determination of the issues, conduct a 
prehearing conference to determine the issues for the hearing agenda, 
and cause to be published in the Federal Register a final hearing 
agenda;
    (3) Rule upon motions, requests and admissibility of direct 
testimony;
    (4) Administer oaths and affirmations, question witnesses and 
direct witnesses to testify;
    (5) Modify or waive any rule (after notice) when determining that 
no party will be prejudiced;
    (6) Receive written comments and hear oral arguments;
    (7) Render a recommended decision; and
    (8) Do all acts and take all measures, including regulation of 
media coverage, for the maintenance of order at and the efficient 
conduct of the proceeding.
    (c) In case of the absence of the original presiding officer or the 
original presiding officer's inability to act, the powers and duties to 
be performed by the original presiding officer under this subpart in 
connection with a proceeding may, without abatement of the proceeding, 
be assigned to any other presiding officer unless otherwise ordered by 
the Assistant Administrator.
    (d) The presiding officer may upon the presiding officer's own 
motion withdraw as presiding officer in a proceeding if the presiding 
officer deems himself or herself to be disqualified.
    (e) A presiding officer may be requested to withdraw at any time 
prior to the recommended decision. Upon the filing by an interested 
person in good faith of a timely and sufficient affidavit alleging the 
presiding officer's personal bias, malice, conflict of interest or 
other basis which might result in prejudice to a party, the hearing 
shall recess. The Assistant Administrator shall immediately determine 
the matter as a part of the record and decision in the proceeding, 
after making such investigation or holding such hearings, or both, as 
the Assistant Administrator may deem appropriate in the circumstances.


Sec. 228.7  Direct testimony submitted as written documents.

    (a) Unless otherwise specified, all direct testimony, including

[[Page 39562]]

accompanying exhibits, must be submitted to the presiding officer in 
writing no later than the dates specified in the notice of the hearing 
(Sec. 228.4), the final hearing agenda (Sec. 228.12), or within 15 days 
after the conclusion of the prehearing conference (Sec. 228.14) as the 
case may be. All direct testimony shall be in affidavit form and 
exhibits constituting part of such testimony, referred to in the 
affidavit and made a part thereof, must be attached to the affidavit. 
Direct testimony submitted with exhibits must state the issue to which 
the exhibit relates; if no such statement is made, the presiding 
officer shall determine the relevance of the exhibit to the issues 
published in the Federal Register.
    (b) The direct testimony submitted shall contain:
    (1) A concise statement of the witness' interest in the proceeding 
and his position regarding the issues presented. If the direct 
testimony is presented by a witness who is not a party, the witness 
shall state the witness' relationship to the party; and
    (2) Facts that are relevant and material.
    (c) The direct testimony may propose issues of fact not defined in 
the notice of the hearing and the reason(s) why such issues should be 
considered at the hearing.
    (d) Ten copies of all direct testimony must be submitted unless the 
notice of the hearing specifies otherwise.
    (e) Upon receipt, direct testimony shall be assigned a number and 
stamped with that number and the docket number.
    (f) Contemporaneous with the publication of the notice of hearing, 
the Assistant Administrator's direct testimony in support of the 
proposed regulations and waiver, where applicable, shall be available 
for public inspection as specified in the notice of hearing. The 
Assistant Administrator may submit additional direct testimony during 
the time periods allowed for submission of such testimony by witnesses.


Sec. 228.8  Mailing address.

    Unless otherwise specified in the notice of hearing, all direct 
testimony shall be addressed to the Presiding Officer, c/o Assistant 
Administrator, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. All affidavits and exhibits shall be 
clearly marked with the docket number of the proceedings.


Sec. 228.9  Inspection and copying of documents.

    Any document in a file pertaining to any hearing authorized by this 
subpart or any document forming part of the record of such a hearing 
may be inspected and/or copied in the Office of the Assistant 
Administrator, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-unless the file is in the care and 
custody of the presiding officer, in which case the presiding officer 
shall notify the parties as to where and when the record may be 
inspected.


Sec. 228.10  Ex parte communications.

    (a) After notice of a hearing is published in the Federal Register, 
all communications, whether oral or written, involving any substantive 
or procedural issue and directed either to the presiding officer or to 
the Assistant Administrator, Deputy Assistant Administrator, or Chief 
of the Marine Mammal Division, National Marine Fisheries Service, 
without reference to these rules of procedure, shall be deemed ex parte 
communications and are not to be considered part of the record for 
decision.
    (b) A record of oral conversations shall be made by the persons who 
are contacted. All communications shall be available for public viewing 
at the place(s) specified in the notice of hearing.
    (c) The presiding office shall not consult any person or party on 
any fact in issue or on the merits of the matter unless notice and 
opportunity is given for all parties to participate.


Sec. 228.11  Prehearing conference.

    (a) After an examination of all the direct testimony submitted 
pursuant to Sec. 228.7, the presiding officer shall make a preliminary 
determination of issues of fact which may be addressed at the hearing.
    (b) The presiding officer's preliminary determination shall be made 
available at the place or places provided in the notice of the hearing 
(Sec. 228.4(b)(8)) at least 5 days before the prehearing conference.
    (c) The purpose of the prehearing conference shall be to enable the 
presiding officer to determine, on the basis of the direct testimony 
submitted and prehearing discussions:
    (1) Whether the presiding officer's preliminary determination of 
issues of fact for the hearing has omitted any significant issues;
    (2) What facts are not in dispute;
    (3) Which witnesses may appear at the hearing; and
    (4) The nature of the interest of each party and which parties' 
interests are adverse.
    (d) Only parties may participate in the hearing conference and a 
party may appear in person or be represented by counsel.
    (e) Parties who do not appear at the prehearing conference shall be 
bound by the conference's determinations.


Sec. 228.12  Final agenda of the hearing.

    (a) After the prehearing conference, the presiding officer shall 
prepare a final agenda which shall be published in the Federal Register 
within 10 days after the conclusion of the conference. A copy of the 
final agenda shall be mailed to all parties.
    (b) The final agenda shall list:
    (1) All the issues which the hearing shall address, the order in 
which those issues shall be presented, and the direct testimony 
submitted which bears on the issues; and
    (2) A final date for submission of direct testimony on issues of 
fact not included in the notice of hearing if such issues are 
presented. The final agenda may also specify a final date for 
submission of direct testimony to rebut testimony previously submitted 
during the time specified in the notice of the hearing.
    (c) The presiding officer shall publish with the final agenda a 
list of witnesses who may appear at the hearing, a list of parties, the 
nature of the interest of each party, and which parties' interests are 
adverse on the issues presented.


Sec. 228.13  Determination to cancel the hearing.

    (a) If the presiding officer concludes that no issues of fact are 
presented by the direct testimony submitted, the presiding officer 
shall publish such conclusion and notice in the Federal Register that a 
hearing shall not be held and shall also publish a date for filing 
written comments on the proposed regulations. Written comments may 
include proposed findings and conclusions, arguments or briefs.
    (b) A person need not be a party to submit any written comments.
    (c) Promptly after expiration of the period for receiving written 
comments, the presiding officer shall make a recommended decision based 
on the record, which in this case shall consist of the direct testimony 
and written comments submitted. He shall transfer to the Assistant 
Administrator his recommended decision, the record and a certificate 
stating that the record contains all the written direct testimony and 
comments submitted. The Assistant Administrator shall then make a final 
decision in accordance with these regulations (Sec. 228.21).

[[Page 39563]]

Sec. 228.14  Rebuttal testimony and new issues of fact in final agenda.

    (a) Direct testimony to rebut testimony offered during the time 
period specified in the notice of hearing may be submitted pursuant to 
these regulations within fifteen days after the conclusion of the 
prehearing conference unless the presiding officer otherwise specifies 
in the final agenda.
    (b) If the final agenda presents issues not included in the notice 
of the hearing published pursuant to Sec. 228.4:
    (1) Any person interested in participating at the hearing on such 
issues presented shall notify the Assistant Administrator by certified 
mail of an intent to participate not later than 10 days after 
publication of the final agenda. Such person may present direct 
testimony or cross-examine witnesses only on such issues presented 
unless that person previously notified the Assistant Administrator 
pursuant to Sec. 228.5; and
    (2) Additional written direct testimony concerning such issues may 
be submitted within the time provided in the final agenda. Such direct 
testimony will comply with the requirements of Sec. 228.7.


Sec. 228.15  Waiver of right to participate.

    Persons who fail to notify the Assistant Administrator pursuant to 
Secs. 228.5 and 228.14 shall be deemed to have waived their right to 
participate as parties in any part of the hearing.


Sec. 228.16  Conduct of the hearing.

    (a) The hearing shall be held at the time and place fixed in the 
notice of the hearing, unless the presiding officer changes the time or 
place. If a change occurs, the presiding officer shall publish the 
change in the Federal Register and shall expeditiously notify all 
parties by telephone or by mail: Provided, that if that change in time 
or place of hearing is made less than 5 days before the date previously 
fixed for the hearing, the presiding officer shall also announce, or 
cause to be announced, the change at the time and place previously 
fixed for the hearing.
    (b) The presiding officer shall, at the commencement of the 
hearing, introduce into the record: the notice of hearing as published 
in the Federal Register; all subsequent documents published in the 
Federal Register; the draft Environmental Impact Statement if it is 
required and the comments thereon and agency responses to the comments; 
and a list of all parties. Direct testimony shall then be received with 
respect to the matters specified in the final agenda in such order as 
the presiding officer shall announce. With respect to direct testimony 
submitted as rebuttal testimony or in response to new issues presented 
by the prehearing conference, the presiding officer shall determine the 
relevancy of such testimony.
    (c) The hearing shall be publicly conducted and reported verbatim 
by an official reporter.
    (d) If a party objects to the admission or rejection of any direct 
testimony or to any other ruling of the presiding officer during the 
hearing, he or she shall state briefly the grounds of such objection, 
whereupon an automatic exception will follow if the objection is 
overruled by the presiding officer. The transcript shall not include 
argument or debate thereon except as ordered by the presiding officer. 
The ruling by the presiding officer on any objection shall be a part of 
the transcript and shall be subject to review at the same time and in 
the same manner as the Assistant Administrator's final decision. Only 
objections made before the presiding officer may subsequently be relied 
upon in the proceedings.
    (e) All motions and requests shall be addressed to, and ruled on 
by, the presiding officer, if made prior to his certification of the 
transcript or by the Assistant Administrator if made thereafter.


Sec. 228.17  Direct testimony.

    (a) Only direct testimony submitted by affidavit as provided in 
these regulations and introduced at the hearing by a witness shall be 
considered part of the record. Such direct testimony shall not be read 
into evidence but shall become a part of the record subject to 
exclusion of irrelevant and immaterial parts thereof;
    (b) The witness introducing direct testimony shall:
    (1) State his or her name, address and occupation;
    (2) State qualifications for introducing the direct testimony. If 
an expert, the witness shall briefly state the scientific or technical 
training which qualifies the witness as an expert;
    (3) Identify the direct testimony previously submitted in 
accordance with these regulations; and
    (4) Submit to appropriate cross and direct examination. Cross-
examination shall be by a party whose interests are adverse on the 
issue presented, to the witness', if the witness is a party, or to the 
interests of the party who presented the witness.
    (c) A party shall be deemed to have waived the right to introduce 
direct testimony if such party fails to present a witness to introduce 
the direct testimony.
    (d) Official notice may be taken of such matters as are judicially 
noticed by the courts of the United States: Provided, that parties 
shall be given adequate notice, by the presiding officer, at the 
hearing, of matters so noticed and shall be given adequate opportunity 
to show that such facts are inaccurate or are erroneously noticed.


Sec. 228.18  Cross-examination.

    (a) The presiding officer may:
    (1) Require the cross-examiner to outline the intended scope of the 
cross-examination;
    (2) Prohibit parties from cross-examining witnesses unless the 
presiding officer has determined that the cross-examiner has an adverse 
interest on the facts at issue to the party-witness or the party 
presenting the witness. For the purposes of this subsection, the 
Assistant Administrator's or his or her representative's interest shall 
be considered adverse to all parties;
    (3) Limit the number of times any party or parties having a common 
interest may cross-examine an ``adverse'' witness on the same matter; 
and
    (4) Exclude cross-examination questions that are immaterial, 
irrelevant or unduly repetitious.
    (b) Any party shall be given an opportunity to appear, either in 
person or through an authorized counsel or representative, to cross-
examine witnesses. Before cross-examining a witness, the party or 
counsel shall state his or her name, address and occupation. If counsel 
cross-examines the witness, counsel shall state for the record the 
authority to act as counsel. Cross-examiners shall be assumed to be 
familiar with the direct testimony.
    (c) Any party or party's counsel who fails to appear at the hearing 
to cross-examine an ``adverse'' witness shall be deemed to have waived 
the right to cross-examine that witness.
    (d) Scientific, technical or commercial publications may only be 
utilized for the limited purposes of impeaching witnesses under cross-
examination unless previously submitted and introduced in accordance 
with these regulations.


Sec. 228.19  Oral and written arguments.

    (a) The presiding officer may, in his or her discretion, provide 
for oral argument at the end of the hearing. Such argument, when 
permitted, may be limited by the presiding officer to the extent 
necessary for the expeditious disposition of the proceeding.
    (b) The presiding officer shall announce at the hearing a 
reasonable

[[Page 39564]]

period of time within which any interested person may file with the 
presiding officer any written comments on the proposed regulations and 
waiver, including proposed findings and conclusions and written 
arguments or briefs, which are based upon the record and citing where 
practicable the relevant page or pages of the transcript. If a party 
filing a brief desires the presiding officer to reconsider any 
objection made by such party to a ruling of the presiding officer, the 
party shall specifically identify such rulings by reference to the 
pertinent pages of the transcript and shall state their arguments 
thereon as a part of the brief.
    (c) Oral or written arguments shall be limited to issues arising 
from direct testimony on the record.


Sec. 228.20  Recommended decision, certification of the transcript and 
submission of comments on the recommended decision.

    (a) Promptly after expiration of the period for receiving written 
briefs, the presiding officer shall make a recommended decision based 
on the record and transmit the decision to the Assistant Administrator. 
The recommended decision shall include:
    (1) A statement containing a description of the history of the 
proceedings;
    (2) Findings on the issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.
    (b) The presiding officer shall also transmit to the Assistant 
Administrator the transcript of the hearing, the original and all 
copies of the direct testimony, and written comments. The presiding 
officer shall attach to the original transcript of the hearing a 
certificate stating that, to the best of his knowledge and belief, the 
transcript is a true transcript of the testimony given at the hearing 
except in such particulars as are specified.
    (c) Immediately after receipt of the recommended decision, the 
Assistant Administrator shall give notice thereof in the Federal 
Register, send copies of the recommended decision to all parties, and 
provide opportunity for the submission of comments. The recommended 
decision may be reviewed and/or copied in the office of the Assistant 
Administrator, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
    (d) Within 20 days after the notice of receipt of the recommended 
decision has been published in the Federal Register, any interested 
person may file with the Assistant Administrator any written comments 
on the recommended decision. All comments, including recommendations 
from or consultation with the Marine Mammal Commission, must be 
submitted during the 20-day period to the Assistant Administrator at 
the previously mentioned address.


Sec. 228.21  Assistant Administrator's decision.

    (a) Upon receipt of the recommended decision and transcript and 
after the 20-day period for receiving written comments on the 
recommended decision has passed, the Assistant Administrator shall make 
a final decision on the proposed regulations and waiver, where 
applicable. The Assistant Administrator's decision may affirm, modify, 
or set aside, in whole or in part, the recommended findings, 
conclusions and decision of the presiding officer. The Assistant 
Administrator may also remand the hearing record to the presiding 
officer for a fuller development of the record.
    (b) The Assistant Administrator's decision shall include:
    (1) A statement containing a description of the history of the 
proceeding;
    (2) Findings on the issues of fact with the reasons therefor; and
    (3) Rulings on issues of law.
    (4) The Assistant Administrator's decision shall be published in 
the Federal Register. If the waiver is approved, the final adopted 
regulations shall be promulgated with the decision.
[FR Doc. 00-16229 Filed 6-26-00; 8:45 am]
BILLING CODE 3510-22-F