[Federal Register Volume 71, Number 47 (Friday, March 10, 2006)]
[Rules and Regulations]
[Pages 12440-12465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2187]



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Parts 904



Civil Procedures; Final Rule

  Federal Register / Vol. 71, No. 47 / Friday, March 10, 2006 / Rules 
and Regulations  

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 904

[Docket No. 040902252-6040-02; I.D. 092804C]
RIN 0648-AS54


Civil Procedures

AGENCY: Office of General Counsel for Enforcement and Litigation, 
National Oceanic and Atmospheric Administration, Commerce.

ACTION: Final rule.

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SUMMARY: NOAA is amending its Civil 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. The intended impact of this action is to conform the civil 
procedure rules to changes in applicable Federal laws and regulations, 
improve the efficiency and fairness of administrative proceedings, 
clarify any ambiguities or inconsistencies in the existing civil 
procedure rules, eliminate redundant language and correct language 
errors and conform the civil procedure rules to current agency 
practice.

DATES: This rule becomes effective April 10, 2006.

SUPPLEMENTARY INFORMATION:

I. Background

    As announced in the Federal Register on October 12, 2004 (69 FR 
60569), NOAA is amending its Civil Procedures governing the Agency'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. The initial comment period for the proposed rule closed on 
December 13, 2004. In response to requests from interested parties, the 
comment period was reopened on January 5, 2005 (70 FR 740), and the 
second comment period closed on January 31, 2005.

II. Revisions to Final Rule

General Revisions

    In addition to some grammatical and other non-substantive errors 
that were found in the language of the proposed rule, the Agency 
identified several inconsistencies in the use of terminology. Where 
these were found, a single word or phrase has been selected to express 
each concept. These changes are enumerated below, in the order in which 
they first appear.
    1. The phrase ``civil penalty'' is used in place of the words 
``penalty'' and ``assessment'' and in place of the phrase ``civil 
monetary penalty'' for consistency and to clarify that the term is 
defined in Sec.  904.2 to mean civil administrative monetary penalty.
    2. The phrase ``administrative proceedings'' is used in place of 
the word ``proceedings'' and the word ``adjudication'' for consistency 
and to clarify that the phrase refers to the entire administrative 
process, from issuance of a NOVA through final disposition.
    3. The phrase ``permit sanctions'' is used in place of the word 
``sanctions'' to clarify that the phrase refers to sanctions on 
individual or vessel permits and to differentiate them from the 
sanctions discussed in Sec.  904.204 (q).
    4. The phrase ``U.S. Government'' is used in place of the word 
``government'' to clarify that the phrase refers to the government of 
the United States of America.
    5. When used in reference to the U.S. Government or an agency of 
the U.S. Government, the term ``U.S.'' is used in place of ``United 
States''. Note, however, that ``United States'' continues to be used to 
refer to the Nation.
    6. When used in reference to a time period that constitutes a 
deadline for the purposes of this Part, the number of days is written 
numerically (e.g., ``30''). Where such reference included numbers that 
were written out in words (e.g., ``thirty'') or written both in words 
and numerically (e.g., thirty (30)), these references have been 
replaced with a numerical reference alone.
    7. The phrase ``Notice of Violation and Assessment'' has been 
replaced with ``NOVA'' to reflect the fact that ``NOVA'' is defined in 
Sec.  904.2 as meaning a Notice of Violation and Assessment of civil 
penalty.
    8. The phrase ``Notice of Permit Sanction'' has been replaced with 
``NOPS'' to reflect the fact that ``NOPS'' is defined in Sec.  904.2 as 
meaning Notice of Permit Sanction.
    9. The word ``hearing'' is used in place of the phrase ``civil 
administrative hearing'' to reflect that a definition of ``hearing'' 
has been added to Sec.  904.2.
    10. All reference to Notices that are not defined in Sec.  904.2 
have been capitalized (e.g., Notice of Appearance) to clarify that 
Notices constitute a particular type of document for the purposes of 
this Part.
    11. ``U.S. Department of Justice'' is used in place of ``Justice 
Department'' for consistency and clarity.
    12. ``ALJ Docketing Center'' is used in place of ``Office of 
Administrative Law Judges'' for consistency and accuracy.
    13. ``Judge'' is used in place of ``Administrative Law Judge'' for 
consistency and to reflect that ``Judge'' is defined in Sec.  904.2.
    14. ``Respondent'' is used in place of ``violator'' in subpart E 
both for consistency and to reflect the fact that the term 
``respondent'' is defined in Sec.  904.2 to mean a person issued a 
written warning or a NOVA, NOPS, NIDP or other Notice.
    15. ``Violation'' is used in place of ``offense'' except in 
reference to criminal offenses.
    16. The names of the various Notices, such as Notice of Proposed 
Forfeiture, are capitalized for clarity.

Subpart A--General

1. Purpose and Scope

    Section 904.1: Paragraph (d) is intended to make clear that the 
procedures set forth in this Part apply not only to the enumerated 
statutes in paragraph (c), but also to all: later enacted statutes; 
amendments, modifications or recodifications of existing statutes; 
authorities granted to NOAA not within statutes otherwise administered 
by NOAA; and NOAA's enforcement of statutes or authorities not solely 
administered by NOAA.

2. Definitions

    Section 904.2: The definition of ``applicant'' has been removed 
because the term is only used only once in this part.
    A new definition of ``civil penalty'' was added to explain that the 
phrase refers to civil administrative monetary penalties.
    A new definition of ``hearing'' was added to distinguish the term 
from the phrase ``administrative proceeding'' and explain that it 
refers to a civil administrative hearing on a NOVA, NOPS and/or NIDP.
    The definition of ``initial decision'' was revised to clarify the 
distinction between an initial decision and a final administrative 
decision.
    The definition of ``party'' was revised slightly to correct 
grammatical errors. No substantive changes were intended by these 
amendments.
    A new definition of ``respondent'' was added to clarify that the 
term refers to a person issued a written warning, NOVA, NOPS, NIDP or 
other Notice.
    The definition of the term ``sanction'' was replaced with a 
definition of

[[Page 12441]]

``permit sanction'' to reflect the change in terminology described 
above.
    The definition of ``written warning'' was revised to reflect the 
fact that no permit sanction or civil penalty is imposed or assessed in 
cases where a written warning is issued.

3. Filing and Service of Notices, Documents, and Other Papers

    Section of 904.3: Paragraph (a) was revised to reflect that a 
Notice of Proposed Forfeiture, Notice of Seizure, Notice of Summary 
Sale or Written Warning may be served in the same manner as a NOVA, 
NOPS or NIDP.
    Paragraph (b) was revised to clarify that service of documents and 
papers other than Notices is effective upon the date of postmark (or as 
otherwise shown for government franked mail).

4. Computation of Time Periods

    Section 904.4: In paragraph (a), the title and paragraph 
designation of the paragraph were removed to reflect that paragraph (b) 
has been removed.
    Paragraph (b) was removed to eliminate any confusion created by 
adding 3 days to the prescribed period when a document or paper other 
than a Notice is served by mail.

5. Appearance

    Section 904.5: In paragraph (b), NIDP was added to the list of 
documents that may be issued in a matter regarding which an attorney or 
other representative might contact the Agency on behalf of a 
respondent.

Subpart B--Civil Penalties

1. Notice of Violation and Assessment (NOVA)

    Section 904.101: In paragraph (a), the words ``the person alleged 
to be subject to a civil penalty'' were removed to reflect the fact 
that ``respondents'' is defined in Sec.  904.2.

2. Final Administrative Decision

    Section 904.104: In paragraph (a), the phrase ``on the 30th day 
after'' was replaced with the phrase ``30 days after'' for clarity.

3. Payment of Final Civil Penalty

    Section 904.105: In paragraph (a), the word ``NOVA'' is used in 
place of ``assessment'' for clarity because the entire NOVA becomes a 
final administrative decision and order of NOAA under Sec.  904.104 or 
under subpart C of this part. The words ``by credit card'' are added to 
reflect that payment of civil penalties may also be made by credit 
card.

4. Compromise of Civil Penalty

    Section 904.106: In paragraphs (a) and (d), the words ``imposed'' 
and ``imposition'' were replaced with ``assessed'' and ``assessment'' 
for clarity, consistency and accuracy.
    In paragraph (b), the words ``other interested person'' were 
replaced with ``a representative subject to the requirements of Sec.  
904.5'' to reflect the fact that only a representative who has entered 
an appearance pursuant to Sec.  904.5 may negotiate a compromise civil 
penalty on behalf of a respondent.
    In paragraph (c), the words ``an assessment'' were replaced with 
``a NOVA'' and the words ``is final'' were replaced with ``becomes 
final'' to improve clarity and the words ``or payable'' were removed as 
redundant.

5. Joint and Several Respondents

    Section 904.107: In response to a comment, the Agency has 
reconsidered its proposal, as presented in the proposed rule, to change 
the current language regarding hearing requests by joint and several 
respondents so that a hearing request by one joint and several 
respondent would no longer be considered a hearing request by all. This 
proposed change was intended to streamline administrative proceedings 
but, after reconsideration, the Agency has determined that it will 
further complicate rather than streamline proceedings. The Agency has 
changed the language in paragraphs (b) and (c) to further clarify how 
the hearing request process will work. While Paragraph (b) retains the 
language currently in the regulations, a new sentence was added to 
clarify the impact of settlement with one joint and several respondent 
on the others. Paragraph (c) was also amended to clarify that a 
decision by the Judge or the Administrator after a hearing requested by 
one joint and several respondent is not binding on other joint and 
several respondent(s) who have resolved the matter through settlement 
with the Agency.
    In paragraph (a), the words ``in total'' were added to clarify that 
the total amount collected from all joint and several respondents may 
not exceed the total amount assessed.
    In paragraph (b), some additional language was added to clarify 
that if the joint and several respondent who requests a hearing settles 
with the Agency prior to that hearing, upon notification by the Agency 
the remaining joint and several respondent(s) must affirmatively 
request a hearing or the case will be removed from the court's docket 
as provided in Sec.  904.213.

6. Factors Considered in Assessing Civil Penalties

    Section 904.108: Paragraph (d) was revised to clarify that 
information relevant to a respondent's ability to pay includes income 
tax returns and past, present and future income.
    Paragraph (e) was modified to clarify the time period during which 
a respondent may submit information regarding their ability to pay an 
assessed civil penalty.
    Paragraph (f) was revised to clarify that information regarding 
ability to pay submitted to the Judge prior to the hearing may also be 
considered in an administrative review.

Subpart C--Hearing and Appeal Procedures

1. Scope and Applicability

    Section 904.200: In paragraph (a) the words ``in administrative 
proceedings'' were removed as redundant.
    Paragraph (b) was revised to clarify the scope of the ALJ's 
authority.

2. Hearing Requests and Case Docketing

    Section 904.201: In paragraph (a) the words ``requester'' and 
``Notice'' were replaced with ``respondent'' and ``NOVA, NOPS or 
NIDP'', respectively, for clarity.
    Paragraph (b) was revised, and paragraph (c) was removed to reflect 
the fact that decisions on the timeliness of hearing requests will be 
made by the Judge.
    Paragraph (d) was redesignated as paragraph (c).

3. Duties and Powers of Judge

    Section 904.204: A new paragraph (a) was added to make explicit 
that the Judge has the authority to rule on the timeliness of hearing 
requests.
    The word ``proceeding'' was replaced with ``hearing'' for clarity 
and accuracy at the beginning of this section and in paragraph (b).
    Paragraph (d) was amended for clarity.
    In paragraph (f), the word ``contested'' was added before 
``discovery requests'' to clarify the discovery requests on which the 
Judge will rule.
    In paragraph (m), the word ``civil'' is added before ``penalty'' 
and the word ``amount'' is replaced with ``civil penalty'' for clarity 
and consistency.
    In paragraph (l), the phrase ``or of technical or scientific facts 
within the generalized or specialized knowledge of the Department of 
Commerce as an expert body;'' was removed as overbroad.

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    In paragraph (q)(1), the word ``adjudicatory'' is replaced with 
``administrative'' for consistency.

4. Disqualification of Judge

    Section 904.205: In paragraph (a), the words ``a particular case'' 
are replaced with ``an administrative proceeding'' for clarity and 
consistency.

5. Pleadings, Motions, and Service

    Section 904.206: In paragraph (d), the phrase ``date of service 
thereof'' is replaced with ``service of the motion'' for clarity.
    In paragraph (e), the word ``of'' is replaced with ``after'' and 
the phrase ``raised in the answer'' is added to the second sentence for 
clarity.

6. Extensions of Time

    Section 904.208: The words ``and as provided in Sec.  904.201(b)'' 
are removed to reflect the fact that the language to which they were 
referring has also been removed.

7. Expedited Administrative Proceedings

    Section 904.209: This section has been revised to better explain 
the process by which administrative proceedings may be expedited.

8. Failure To Appear

    Section 904.211: This section has been revised to clarify that 
failure of any party (a respondent or the Agency) to appear at a 
scheduled hearing may result in an adverse ruling by the Judge.

9. Failure To Prosecute or Defend

    Section 904.212: Throughout this section, ``either'' has been 
replaced with ``any'' to reflect the fact that there may be more than 
one respondent in any given administrative proceeding.

10. Consolidation

    Section 904.215: The words ``Chief Administrative Law'' were added 
before ``Judge'' in response to a comment received on the proposed rule 
to reflect a decision made by the Agency that, as it is the Chief 
Administrative Law Judge who assigns Judges to hear the Agency's cases, 
it is appropriate that the Chief Administrative Law Judge make any 
decisions regarding consolidation. The phrase ``either upon request of 
a party or sua sponte'' was added for clarity.

11. Prehearing Conference

    Section 904.216: In paragraph (a), the word ``any'' was added 
before ``other time'' to correct a grammatical error. The words ``court 
reporter'' have been used in place of ``stenographer'' for accuracy.
    In paragraph (a)(5), ``hearing'' is replaced with ``administrative 
proceeding'' for accuracy.

Discovery

1. Discovery Generally

    Section 904.240: In paragraph (a), the words ``Preliminary Position 
on Issues and Procedures'' have been removed to reflect that ``PPIP'' 
is defined in Sec.  904.2.
    In paragraph (c), the word ``the'' is added before ``hearing'' to 
correct a grammatical error.

2. Subpoenas

    Section 904.245: In paragraph (b), the timeframe for submitting 
applications for subpoenas was changed from 10 days to 15 days to avoid 
conflicts with paragraph (c).
    In paragraph (d), ``NOAA'' was replaced by ``the requesting party'' 
for accuracy.

Hearings

1. Notice of Time and Place of Hearing

    Section 904.250: In paragraph (c), the following changes were made 
for consistency and clarity: the words ``all or part of a proceeding'' 
are replaced with ``one or more issues''; the words ``substantially all 
important'' are replaced with ``such''; and the words ``the 
proceeding'' are replaced with ``those issues''.
    In paragraph (d), the words ``as provided in Sec.  904.209'' were 
added and subparagraphs (1) and (2) were deleted to reflect that the 
process for expediting administrative proceedings under this Part is 
described in Sec.  904.209.

2. Evidence

    Section 904.251: In paragraph (a)(3), the words ``party charged'' 
were replaced with ``respondent'' for clarity.
    Paragraph (f) was revised to improve clarity: the phrase 
``stipulation in writing'' was replaced with ``written stipulation'' 
and the words ``involved in the proceeding'' were removed.

3. Ex Parte Communications

    Section 904.255: In paragraph (f), the words ``or any other 
Notice'' were added after ``NIDP'' to reflect the fact that the 
issuance of other Notices will trigger the rule regarding ex parte 
communications as well.

Post-Hearing

1. Recordation of Hearing

    Section 904.260: In paragraph (b), the phrase ``administrative 
proceeding'' was replaced with ``hearing'' for accuracy.

2. Post Hearing Briefs

    Section 904.261: In paragraph (a), the word ``calendar'' is removed 
as unnecessary.

Decision

1. Initial Decision

    Section 904.271: Paragraph (c) is revised to reflect how and to 
whom the ALJ Docketing Center should serve initial decisions. It was 
also revised to reflect that the Judge will only certify the record to 
the Administrator upon request.
    Paragraph (d) is revised to be consistent with Sec.  904.273 and 
``30 days'' is changed to ``60 days''.
    In paragraph (d)(2), the words ``rehearing or'' are deleted to 
reflect that Sec.  904.272 provides for petitions for reconsideration, 
not rehearing.

2. Administrative Review of Decision

    Section 904.273: The first sentence of paragraph (a) is revised to 
clarify the language. No substantive change in the procedures is 
intended by these changes. A new sentence was added to the end of the 
paragraph to reflect the new requirement that copies of the petition 
and all other documents must be served on all parties and the Assistant 
General Counsel for Enforcement and Litigation (AGCEL) and to provide 
an address for such service on the AGCEL.
    Paragraph (b) is redesignated as paragraph (c). The second sentence 
of the paragraph was removed to reflect the fact that service of 
petitions is described in paragraph (a). The third sentence of the 
paragraph is modified to reflect the fact that review undertaken on the 
Administrator's initiative must be timely and to include reference to 
new paragraph (h).
    A new paragraph (b) is added to reiterate that the Administrator 
may undertake review of an initial decision on his or her own 
initiative.
    Existing paragraph (c) is removed in its entirety.
    A new paragraph (d) is added. This paragraph incorporates the 
language and substance of existing paragraph (d), as well as other 
format and content requirements for petitions for review.
    Existing paragraph (e) is redesignated as paragraph (f).
    A new paragraph (e) is added which explains that the Administrator 
may deny a petition for review if it is untimely or fails to meet the 
content and format requirements described in paragraph (d).
    Existing paragraph (f) is redesignated as paragraph (g). A sentence 
is added that outlines the content and format

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requirements for any answer. The last sentence of the paragraph is 
revised to clarify that no further replies are allowed unless requested 
by the Administrator.
    Existing paragraph (g) is redesignated as paragraph (i) and has 
been revised to clarify the language. No substantive changes in 
procedure are intended by these revisions.
    A new paragraph (h) is added to explain that, if the Administrator 
takes no action in response to a petition within 120 days of its 
service, the petition is deemed denied and the initial decision becomes 
the final Agency decision.
    Existing paragraph (h) is redesignated as paragraph (j) and revised 
to clarify the manner in which issues for briefing will be identified 
and the fact that the Administrator may choose not to order additional 
briefing. In addition, the last sentence was removed as redundant.
    Existing paragraph (i) is redesignated as paragraph (k) and revised 
for style and to explain that the Administrator's decision constitutes 
final Agency action for purposes of judicial review except where the 
Administrator decides to remand the case to the ALJ.
    A new paragraph (l) is added to explain that initial decisions are 
not subject to judicial review unless the party has exhausted its 
opportunity for administrative review by filing a petition with the 
Administrator, and the Administrator has issued a final order on the 
petition that constitutes final Agency action or the initial decision 
has become final pursuant to new paragraph (h). As discussed below in 
the response to comments, this addition is based on comments concerning 
the importance and benefit of maintaining administrative review.
    A new paragraph (m) is added to explain that, for the purposes of 
any subsequent judicial review of the Agency decision, any issues not 
identified in a petition for review, in an answer, by the 
Administrator, or in any modifications to the initial decision, are 
waived. This new paragraph (m) does not create any new requirement, as 
this rule is established in a large body of case law. The Agency 
concluded paragraph (m) was an appropriate addition to ensure that 
parties are aware of this requirement.
    A new paragraph (n) is added to explain that, if during judicial 
review a decision is vacated or remanded by a court, the Administrator 
shall issue an order governing further administrative proceedings in 
the matter.

Subpart D--Permit Sanctions and Denials

General

1. Scope and Applicability

    Section 904.300: In paragraph (a), the words ``policies and'' are 
removed for accuracy.

2. Bases for Permit Sanctions and Denials

    Section 904.301: In paragraph (c), the words ``the sanction of any 
vessel permit'' are replaced with ``a vessel's permit sanction'' to 
improve clarity.

3. Notice of Permit Sanction (NOPS)

    Section 904.302: In paragraph (a), the words ``personally or by 
certified mail, return receipt request'' are replaced with ``as 
provided in Sec.  904.3'' to reflect that the modes of service are 
described in Sec.  904.3.
    In paragraph (b), the word ``calendar'' is removed as unnecessary.

4. Notice of Intent To Deny Permit (NIDP)

    Section 904.303: In paragraph (a), the phrase ``criminal fine'' was 
added for accuracy.
    In paragraph (b), ``Sec.  904.302(a)'' is replaced with ``Sec.  
904.3'' to reflect the modes of service are described in Sec.  904.3. 
The word ``permit'' is added before ``applicant'' to clarify that a 
NIDP may be issued to a person who has applied or is expected to apply 
for a permit.

5. Opportunity for Hearing

    Section 904.304: In paragraph (b), the words ``a judicial or 
administrative hearing'' are replaced with ``an administrative or 
judicial proceeding'' for consistency and clarity.

6. Final Administrative Decision

    Section 904.305: In paragraph (a), ``on the 30th day after'' was 
replaced with ``30 days after'' for clarity and consistency.

Permit Sanctions for Noncompliance

1. Compliance

    Section 904.311: The words ``fine or penalty'' were replaced with 
``criminal fine or civil penalty'' for clarity and consistency.

Subpart E--Written Warnings

1. Procedures

    Section 904.402: In paragraph (a), the words ``who finds a 
violation of one of the laws'' is replaced with ``or Agency counsel'' 
to reflect that written warnings may be issued either by authorized 
officers or by Agency counsel. The words ``as provided in Sec.  904.3'' 
are added to clarify that written warnings will be served by the 
procedures described in Sec.  904.3. The words ``in lieu of other law 
enforcement action that could be taken under the applicable statute'' 
are removed as unnecessary.
    In paragraph (d), the words ``civil or criminal'' are replaced with 
``administrative or judicial'' for consistency and accuracy.

2. Review and Appeal of a Written Warning

    Section 904.403: Throughout this section, the word ``respondent'' 
replaces ``person'' both for accuracy and to reflect that the term 
``respondent'' is defined in Sec.  904.2 to include persons who have 
been issued a written warning.

Subpart F--Seizure and Forfeiture Procedures

1. Notice of Seizure

    Section 904.501: This section is revised to clarify that Notices of 
Seizure will be served in the manner described in Sec.  904.3.

2. Bonded Release of Seized Property

    Section 904.502: In paragraph (b)(1) and paragraph (c), the term 
``petitioner'' is replaced with ``requester'' for accuracy and 
consistency.

3. Administrative Forfeiture Proceedings

    Section 904.504: In paragraph (b)(1), the words ``If seized 
property is appraised at a value of $500,000 or less, instead of 
referring the matter to the United States Attorney'' have been removed 
as unnecessary because paragraph (a) already limits the application of 
this section to property that is determined under Sec.  904.503 to have 
a value of $500,000 or less. The words ``personally, or by registered 
or certified mail, return receipt requested'' have been replaced with 
``as provided in Sec.  904.3'' to reflect that procedures for service 
of Notices are already described in Sec.  904.3.
    In paragraph (b)(4), the words ``30 days of final notice'' are 
replaced with ``30 days of the date the final Notice is'' for clarity 
and to correct a grammatical error. The words ``by registered or 
certified mail, return receipt requested'' have been replaced with ``as 
provided in Sec.  904.3'' to reflect that procedures for service of 
Notices are already described in Sec.  904.3. The words ``as provided 
in Sec.  904.3'' are added to clarify that the Declaration of 
Forfeiture will describe any efforts made, pursuant to Sec.  904.3, to 
serve the Notice of Proposed Forfeiture.

[[Page 12444]]

4. Summary Sale

    Section 904.505: In paragraph (c), the words ``by registered or 
certified mail, return receipt requested'' have been replaced with ``as 
provided in Sec.  904.3'' to reflect that procedures for service of 
Notices are already described in Sec.  904.3.

5. Return of Seized Property

    Section 904.510: In paragraph (b), the words ``by registered or 
certified mail, return receipt requested'' have been replaced with ``as 
provided in Sec.  904.3'' to reflect that procedures for service of 
Notices are already described in Sec.  904.3.

III. Response to Comments

General Comments

    Comment 1: One commenter suggested that NOAA's Civil Procedure 
regulations should provide a mechanism for cases to be heard in front 
of a jury in U.S. District Court.
    Response: This Comment is outside of the scope of the proposed 
rule, however, the Agency notes that jurisdiction is conferred by the 
Administrative Procedure Act (APA) and the statutes that NOAA enforces, 
and not by NOAA's Civil Procedure regulations.
    Comment 2: One commenter stated that the administrative process is 
unfair because the Administrative Law Judges (ALJs) are NOAA employees 
and therefore are not impartial.
    Response: This Comment is outside of the scope of the proposed 
rule, however, the Agency notes that the ALJs who hear NOAA's civil 
administrative enforcement cases are, in fact, employees of the U.S. 
Coast Guard, currently located within the Department of Homeland 
Security. The ALJs are, however, acting under NOAA's delegated 
authority pursuant to the Oceans Act of 1992. See Section 5218 of H.R. 
5617 (Public Law 102-587). Moreover, the APA requires review at the 
Agency level before cases proceed to U.S. District Court.
    Comment 3: One commenter thought that NOAA's Civil Procedure 
regulations should apply to Council members and NOAA scientists, and 
not solely to the commercial fishing industry.
    Response: The 904 regulations apply to the civil administrative 
process that applies when anyone is charged with violating one of the 
statutes or regulations that NOAA enforces.
    Comment 4: Two commenters expressed concerns with the rulemaking 
process and encouraged inclusion of the public in the process.
    Response: NOAA published the proposed regulation in the Federal 
Register on October 12, 2004, and provided for sixty days of public 
comments. Comments were solicited and accepted from all members of the 
public. On January 5, 2005, NOAA extended the Comment period for an 
additional thirty days. In addition, during the Comment period, NOAA 
added a link to the proposed regulations on the Web site for NOAA's 
Office of General Counsel for Enforcement and Litigation. During the 
same time period, fact sheets detailing major changes in the proposed 
regulations was sent to all of the Fisheries Management Councils, 
posted in each of the regional offices and on each region's Web site.
    Comment 5: One commenter recommended that all civil penalties be 
increased by 2500%.
    Response: Civil penalties are set by the individual statutes 
enforced by NOAA, as passed by the U.S. Congress. This rulemaking does 
not address the amounts of civil penalties and therefore, this Comment 
is not addressed further. The Agency notes, however, that civil 
monetary penalties are adjusted for inflation at least once every four 
years pursuant to the Federal Civil Penalties Inflation Adjustment Act 
of 1990 as amended by the Debt Collection Improvement Act of 1996 
(Public Law 104-134). Adjusted civil penalty amounts are published in 
the Federal Register.
    Comment 6: One commenter suggested that permit suspensions imposed 
on companies for criminal offenses should be permanent.
    Response: NOAA's Civil Procedure regulations deal exclusively with 
civil administrative enforcement procedures and do not address criminal 
offenses, thus this Comment is outside of the scope of the proposed 
rule, and is not addressed here.
    Comment 7: One commenter expressed the opinion that permits are 
being inappropriately issued to individuals whose intent is to kill 
scarce animals.
    Response: The 904 regulations do not relate in any way to the 
issuance of permits, therefore this Comment is outside of the scope of 
the proposed rule, and is not addressed here.
Section 904.3--Filing and Service of Notices, Documents and Other 
Papers
    Comment 8: One commenter suggested that NOAA establish a definition 
for the phrase ``last known address'' in paragraph (a), to provide for 
clarity and ease of reference.
    Response: The phrase ``last known address'' appears in paragraphs 
(a) and (b) of the regulation. NOAA's longstanding use of the phrase 
``last known address'' is comparable to the method of service provision 
contained in the Federal Rules of Civil Procedure, Rule 5(b)(2)(B): 
``Mailing a copy to the last known address of the person served.'' NOAA 
feels that the plain meaning of the phrase ``last known address'' is 
sufficiently apparent to make further clarification unnecessary.
Section 904.4--Computation of Time Periods
    Comment 9: One commenter suggested that in paragraph (b) the phrase 
``take some proceedings'' may not be grammatically correct. Perhaps the 
phrase ``bring some proceeding'' should be used.
    Response: NOAA has decided to delete section Sec.  904.4 (b), 
therefore this Comment is now moot.
Section 904.101--Notice of Violation and Assessment (NOVA)
    Comment 10: One commenter noted that paragraph (b) raises questions 
regarding ``ability to pay'' that are addressed in comments on Sec.  
904.108.
    Response: See NOAA's response to comments pertaining to Sec.  
904.108.
Section 904.107--Joint and Several Respondents
    Comment 11: One commenter thought that the Agency needs to clarify, 
in Sec.  904.107 (b) and (c), the effect of a settlement with one joint 
and several respondent on the penalty assessed against the remaining 
respondent(s). The commenter suggested that any hearing with remaining 
joint and several respondent(s) be cast in terms of the total penalty 
assessment made with the understanding that, if there was a settlement 
payment, the Agency could only collect the remaining amount due after 
subtracting the amount of the settlement payment from the amount of the 
total assessment made.
    Response: In light of comments received, as well as further 
internal review of the issue of joint and several liability, the Agency 
has decided not to make the changes to Sec.  904.107 included in the 
proposed rule. However, the Agency has amended Sec.  904.107(a) to 
clarify what happens to a hearing request when the requesting party 
settles with the Agency prior to the hearing.
Section 904.108--Factors Considered in Assessing Penalties
    Comment 12: One commenter expressed concern that it is unclear 
whether ``ability to pay'' is considered in making the initial penalty 
assessment or is an affirmative defense that may be raised by the 
respondent. In paragraph (b), the proposed regulation provides

[[Page 12445]]

that ``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 other relevant factors.'' Whereas paragraph (c) provides, 
``the respondent has the burden of proving [an] inability [to pay].''
    Response: Ability to pay must be considered by NOAA in determining 
an initial penalty assessment whenever the statute being enforced so 
requires. In those cases, it is the Agency's burden to show that it 
considered the respondent's ability to pay in determining the initial 
penalty assessment. Both in such cases, and in cases where the statute 
being enforced does not require that NOAA consider ability to pay, a 
respondent may seek to have the proposed penalty reduced based on 
alleged inability to pay. In those instances, the respondent must 
submit verifiable, complete and accurate financial information to 
support their claim. The burden of proving inability to pay lies with 
the respondent.
    Comment 13: One commenter noted that the provisions in paragraph 
(e) establish three different time frames in which a respondent can 
submit financial information regarding ability to pay. They are: (a) 
Within sixty (60) days of receipt of the NOVA; (b) at least thirty (30) 
days in advance of the hearing if the respondent requested a hearing 
and wishes his or her inability to pay to be considered by the judge in 
the initial decision; and (c) at the hearing, in which case Agency 
counsel will have 30 days after the hearing in which to respond to the 
submission.
    Response: In keeping with statutory requirements, for 
administrative efficiency, and to establish a single, consistent time 
frame for submitting ability to pay information, the language in 
paragraph (e) will be modified to clarify that in order to be 
considered by agency counsel, or in the initial decision of the 
administrative law judge, ability to pay information must be submitted 
to Agency Counsel at least 30 days prior to the hearing. Any 
information regarding the respondent's ability to pay submitted after 
that time may not be considered by Agency Counsel or by the judge. If 
the Judge decides to admit any information submitted less than 30 days 
in advance of the hearing then Agency Counsel will have 30 days to 
respond to the submission from the date of admission.
Section 904.200--Scope and Applicability
    Comment 14: One commenter noted that in the preamble of the 
proposed regulations, the discussion of 904.200 (b) states: ``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.'' The 
commenter finds the statement that the Judge's authority is not subject 
to the administrative direction of the Chief Administrative Law Judge 
both unnecessary and confusing. First, ALJs derive their independence 
from the APA, which sets out their duties and imperatives in some 
detail. See 5 U.S.C. 554; see also Butz v. Economou, 438 U.S. 478, 513 
(1978). There has never been any question relating to the independence 
of ALJs or their authority to hear APA cases.
    Second, the reference to ``administrative direction'' and the 
Judges not being subject to such direction is incorrect. Things like 
proper assignment of cases to judges are mandated. See 5 U.S.C. 3105. 
Further, judges' travel authorizations, procurement activities, use of 
legal assistance, hiring of court reporters, and many other aspects of 
``administrative direction,'' are valid and necessary. The commenter 
believes that the supplemental information remark regarding paragraph 
(b) is unnecessary, might be contrary to law and should be eliminated.
    Response: The remarks in the preamble of the proposed regulations 
were not intended to conflict with existing law, or with the 
established administrative practices among ALJs who hear NOAA 
enforcement cases. This change was not included in the final language 
of NOAA's Civil Procedure regulations published here and therefore is 
to be given no effect.
Section 904.201--Hearing Requests and Case Docketing
    Comment 15: In Sec.  904.201, the commenter suggested replacing 
``Office of Administrative Law Judges'' with ``ALJ Docketing Center''.
    Response: The Agency agrees and has made this change throughout 
NOAA's Civil Procedure regulations.
    Comment 16: One commenter suggested that NOAA rule on the 
timeliness of hearing requests because the ALJ is without authority to 
do so. If the Agency decides not to handle such rulings it needs to 
establish a procedure for alerting the docketing center of late 
filings.
    Response: The Agency believes that the determination of whether a 
request is untimely properly lies with the ALJ. The determination that 
a request is untimely is dispositive. It is therefore the role of the 
ALJ to consider the procedural history and any attendant arguments and 
render a final decision. This process is consistent with Federal 
District Court practice.
    The Agency will forward any untimely hearing requests to the Chief 
Administrative Law Judge at the ALJ Docketing Center along with a 
Motion in Opposition, documentation of service and any other materials 
that support the Agency's claim that the hearing request is untimely. 
The Agency will request that the Chief Administrative Law Judge deny 
the untimely hearing request. The Chief Administrative Law Judge shall 
issue an order on the timeliness of the hearing request.
Section 904.202--Filing of Documents
    Comment 17: One commenter suggested that discovery requests and 
answers be required to be filed with the ALJ in order to facilitate 
discovery, which can often become complicated and cause unnecessary 
delay.
    Response: The Agency appreciates the fact that discovery might be 
facilitated by participation by the ALJ. However, discovery is an 
opportunity for both parties to develop their cases independent of 
judicial review. Issues relating to contested requests for discovery, 
failure to comply with discovery orders or requests, or timeliness of 
discovery, for example, are appropriate for adjudication by the ALJ 
prior to hearing. The content of discovery requests and responses, 
however, should remain between the parties. Information that is 
discoverable is not always admissible, therefore, to the greatest 
extent possible such information should not be provided to the ALJ in 
advance of the hearing. Therefore, the Agency declines to include this 
suggested change in the final rule.
Section 904.204--Duties and Powers of Judge
    Comment 18: One commenter suggested changing Sec.  904.204(k) to 
clarify that the section is only applicable to expert witnesses.
    Response: This section affords the ALJ the authority to ``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.'' One commenter suggests that requiring a witness to state a 
position or theory is objectionable and irrelevant unless the witness 
is an expert. However, that is not true in an administrative hearing 
conducted pursuant to the APA. As stated at Sec.  904.251(a)(2), all 
evidence

[[Page 12446]]

that is relevant, material, reliable, and probative is admissible at a 
hearing. Formal rules of evidence do not necessarily apply to 
administrative proceedings. The nature of an administrative hearing is 
less formal than a trial and the goal is to allow the parties to 
introduce any and all relevant evidence to assist the ALJ in making an 
informed decision. Should the ALJ feel that the position or theory of a 
party or witness would be informative or useful to the ALJ's 
determination, these procedural rules grant the ALJ the authority to 
solicit that information. The ALJ may ask a party or a witness any 
question they deem relevant and, as the trier of fact, determine the 
appropriate weight to attach. Additionally, nothing in this section 
prevents an ALJ from requiring that a party or witness be qualified as 
an expert before accepting opinion or theory testimony.
    Comment 19: One commenter questioned the source of NOAA's authority 
to collect attorney's fees and expenses and whether this provision 
conflicts with the Equal Access to Justice Act.
    Response: The regulation in question plainly states that the ALJ 
may ``award attorney fees and expenses as provided by applicable 
statute or regulation.'' See 15 CFR Sec.  904.204 (o). The 
qualification clearly limits the ALJ to awards of attorney fees that 
are expressly allowed by law under the statutes enforced by NOAA. 
Further, the regulation comports with the Equal Access to Justice Act 
(EAJA) in that EAJA expressly allows the payment of attorney fees and 
expenses to respondents in certain instances. See 5 U.S.C. 504 (a). 
Nothing in the clear language of this regulation expands or limits the 
ALJ's authority beyond what expressly exists in an applicable statute 
and/or regulation.
    Comment 20: One commenter suggested that provisions for assessment 
of penalties and fees for violations of Agency procedural rules and ALJ 
orders be eliminated as few agencies allow for such. The commenter 
further suggests that if NOAA maintains these provisions a process 
needs to be established for determining and enforcing penalties.
    Response: The commenter is correct that some Federal agencies do 
not give ALJs the authority to impose monetary sanctions for violations 
of the agency's procedural rules or an ALJ's order. However, a number 
of agencies do give the ALJ the authority to impose monetary sanctions, 
including: The Office of the Comptroller of the Currency, the FDIC, the 
Commodity Futures Trading Commission, the United States International 
Trade Commission, the Social Security Administration, and the 
Department of Health and Human Services. The Federal Labor Relations 
Authority leaves open the possibility of monetary sanctions, but does 
not specifically address it in its regulations. Section 904.204 (q) 
lays out the grounds for imposing a sanction, the types of available 
sanctions and the procedures for imposing a sanction.
    Comment 21: One commenter noted that the imposition of sanctions, 
under Sec.  904.204 (q), is subject to interlocutory review. 
Interlocutory review is infrequently used in NOAA proceedings. The 
commenter suggests that allowing it here would cause delay. The 
commenter recommends that the Agency eliminate interlocutory review in 
its entirety because it is inconsistent with the elimination of the 
administrative appeals process and because most agencies do not allow 
for interlocutory review.
    Response: While NOAA appreciates the fact that interlocutory review 
may cause delay in administrative proceedings, the Agency has chosen to 
keep the interlocutory review process. Although it is an infrequently 
exercised option, in certain instances it is important tool for all 
parties to address issues of immediate concern. Further, the Agency 
believes that it is appropriate for sanctions to be subject to 
interlocutory review in the same manner as other rulings by the ALJ. 
ALJ-imposed sanctions could dramatically affect the remainder of the 
case, and possibly the outcome, and therefore warrant interlocutory 
review. The commenter's concern with the inconsistency between the 
elimination of administrative appeals and interlocutory review is now 
moot as the Agency has decided not to eliminate administrative appeals.
    Comment 22: One commenter suggested that Sec.  904.204 (q) provide 
for the removal of counsel from the proceeding for misconduct. The 
commenter further suggests the development of provisions to prevent 
such counsel from representing clients in future administrative 
enforcement actions.
    Response: The sanction provisions established in Sec.  904.204 (q) 
are quite broad and allow the ALJs latitude to fashion an appropriate 
sanction. The Agency has articulated certain examples of types of 
sanctions, but did not make the list exhaustive in order to allow the 
ALJ to ensure that any sanction imposed meet the needs of that 
particular case. The language of Sec.  904.204 (q)(2) reads: 
``Sanctions which may be imposed include, but are not limited to, one 
or more of the following[.]'' Under the Agency's reading of this 
language, an ALJ would be authorized to remove counsel or other 
authorized representative from the proceeding for misconduct. However, 
at this time, the Agency is not prepared to develop provisions that 
would extend such a removal beyond an individual case.
    Comment 23: One commenter expressed concern that the authority to 
impose sanctions not be tailored to benefit only the Agency.
    Response: The proposed rule adds a paragraph (q) to 15 CFR Sec.  
904.204. As indicated in paragraph (q), this gives the judge authority, 
upon the motion of any party, to impose sanctions on another party. The 
ability to be subjected to sanctions by the ALJ or to make a motion to 
impose sanctions on another party is identical for both the Agency and 
respondents. This change affects all parties equally.
Section 904.205--Disqualification of Judge
    Comment 24: One commenter suggested that Sec.  904.205 be revised 
to make clear that an adverse ruling on a motion to withdraw or 
disqualify a judge is not subject to interlocutory review.
    Response: This comment is outside the scope of the proposed rule, 
as this provision has not been changed from its current iteration, 
however, the Agency continues to believe that adverse rulings on a 
motion to withdraw or disqualify a judge falls appropriately within the 
scope of issues on which a party may request interlocutory review.
Section 904.207--Amendment of Pleading or Record
    Comment 25: One commenter suggested that Sec.  904.207 (a) be 
revised to lengthen the time period allowed for amending a pleading or 
record.
    Response: NOAA does not expect that allowing amendment of a 
pleading until 20 days before a hearing as a matter of course will 
cause the proceeding to be delayed. Historically, such amendments are 
unusual and, when made, generally do not dramatically change the theory 
of the case requiring new methods of proof or additional time to 
prepare a defense. Examples of such non-prejudicial amendments have 
included NOAA's withdrawal of one count out of multiple counts, 
addition of a necessary party such as the reinstated corporate form of 
an individually charged party, and correction of transposed numbers for 
a date of violation or vessel documentation. Allowing the parties to 
amend their pleadings until 20 days prior to hearing without leave of 
the

[[Page 12447]]

court facilitates administrative efficiency. In the event amendments 
made until 20 days prior to hearing are documented as causing 
significant delays in the proceedings, NOAA may revisit this section at 
another time to address the concern.
Section 904.211--Failure To Appear
    Comment 26: A few commenters suggested that the language of Sec.  
904.211 (a) be revised to better describe the section's application to 
NOVAs, NOPSs and NIDPs and to clarify the language regarding dismissals 
and default judgments. Another commenter noted that the authority to 
enter a default judgment or impose sanctions should not be tailored to 
benefit only the Agency.
    Response: The Agency agrees that the language of Sec.  904.211 (a) 
should be revised to improve its clarity. This provision is not 
intended to benefit only the Agency, it is intended to treat parties 
equally. The proposed rule amends section 904.211 (a) to reflect that 
if the respondent fails to appear at a hearing then the ALJ is 
authorized to find the facts as alleged in the NOVA, NOPS and/or NIDP 
and enter a default judgment against the respondent. Similarly, if the 
Agency fails to appear at a hearing, the ALJ is authorized to dismiss 
the case against the Respondent(s) with prejudice. The final rule has 
been amended to clarify the Agency's intention as described above, and 
to address the other concerns raised by the commenters.
    Comment 27: One commenter suggested that if the ALJ has authority 
akin to the model rules of Civil Procedure such authority should 
include dismissal and/or summary judgment upon motion of either party 
without requiring approval of the non-moving party.
    Response: The Agency has the authority to establish the rules of 
procedure for its administrative enforcement program. In some ways, 
NOAA's regulations do mirror the Federal Rules of Civil Procedure 
(FRCP), but in many ways they do not. Many of the more elaborate 
procedures found in the FRCP are not conducive to the objectives of the 
Agency's administrative enforcement program. The Agency believes that 
the proposals made by this commenter will decrease the effectiveness 
and efficiency of NOAA's administrative process and have therefore 
elected not to make the suggested changes.
Section 904.213--Settlements
    Comment 28: One commenter suggested that the Agency clarify Sec.  
904.213 to better describe how the amount of a settlement against one 
joint and several respondent will be communicated to the ALJ. See also 
Sec.  904.107 (b) and (c).
    Response: As discussed above, the Agency has decided not make to 
make its proposed changes to Sec.  904.107, and instead is reverting 
back to the existing language. However, the Agency has added a 
clarification to Sec.  904.107 (a) to better describe how a settlement 
with one joint and several respondents affects any other joint and 
several respondents.
Section 904.215--Consolidation
    Comment 29: One commenter suggested revising Sec.  904.215 to 
authorize the Chief Administrative Law Judge, rather than individual 
Administrative Law Judges, to consolidate cases.
    Response: The Agency concurs. NOAA uses the Administrative Law 
Judge Docketing Center of the U.S. Coast Guard to assign administrative 
law judges to hear the Agency's administrative penalty cases. 
Therefore, using case consolidation procedures that coincide with USCG 
administrative practice and that the U.S. Coast Guard Administrative 
Law Judges are already accustomed to using will result in a more 
efficient administration of the Agency's cases. Moreover, this change 
with create no additional procedural burdens for the Agency or the 
respondents.
Section 904.216--Prehearing Conferences
    Comment 30: One commenter suggested that Sec.  904.216 needs to be 
clarified and raises two specific questions. First, the commenter 
questions whether the ALJ is required to use a court reporter to record 
a pre-hearing conference, and second, whether the ALJ should always 
order transcripts of the pre-hearing conference even when the parties 
have not requested such transcripts.
    Response: The Agency agrees that Sec.  904.216 needs to be modified 
to provide that any certified court reporter, including stenographers, 
are an alternative to the ALJ creating his own audio recording. Section 
904.216 (a) as proposed states that the ALJ ``shall record such 
conference by audio recording or stenographer''. How the ALJ causes 
such recording to be made is subject to the discretion of the ALJ. 
However, the Agency anticipates that, if practicable, the ALJ would 
exercise that discretion after determining the preferences and concerns 
of the parties. In certain cases, the ALJ may decide that a simple 
audio recording taken by the ALJ or the ALJ's assistant is sufficient. 
In other cases, circumstances (such as the quality of the ALJ's 
recording equipment, the complexity of the issues or the number of 
conference participants) may warrant the hiring of a court reporter to 
record the conference.
    Although many court reporters use stenographic equipment, the 
Agency does not intend to limit the equipment or recording media that 
can be used by a court reporter. Accordingly, the Agency has deleted 
the word ``stenographer'' and inserted the phrase ``court reporter''. 
Use of ``reporter'' or ``court reporter'' is consistent with the rules 
governing U.S. District Courts, including 28 U.S.C. 753. Moreover, with 
regard to whether a transcript is provided, if the ALJ or any party to 
the proceeding desires to have a transcript of all or a portion of the 
prehearing conference, then the ALJ has the responsibility to order and 
arrange for a prompt transcription of the record.
Section 904.240--Discovery Generally
    Comment 31: One commenter suggested that the deadline for discovery 
be changed to thirty days before the hearing instead of twenty days.
    Response: The commenter's suggested revision is outside of the 
scope of the proposed rule, therefore, it is not addressed here.
Section 904.254--Interlocutory Review
    Comment 32: One commenter suggested that Sec.  904.254 be revised 
to eliminate interlocutory review and if the Agency elects not to 
eliminate interlocutory review, the commenter suggests clarifying 
judicial authority.
    Response: The Agency does not wish to eliminate interlocutory 
review at this point. Although infrequently utilized, it provides an 
important tool to all parties during the administrative process. The 
proposed and final rule expands this section and clarifies the 
appropriate circumstances for interlocutory review.
Section 904.255--Ex Parte Communication
    Comment 33: One commenter raised the question of whether denial of 
a party's claim based on ex parte communication under Sec.  904.255 is 
subject to interlocutory review.
    Response: Section 904.255 does not explicitly make denials of a 
party's claim based on ex parte communications subject to interlocutory 
review. Therefore, whether or not interlocutory review is appropriate 
for review of such a denial is governed by the language of section 
904.254 and

[[Page 12448]]

would need to meet the requirements of that section.
    Comment 34: One commenter suggested that Sec.  904.255(d)(2) be 
revised to clarify how classified information should be presented to 
the ALJ, how the ALJ should identify classified information, and 
whether or not the ALJs need security clearance to review classified 
evidence.
    Response: There are guidelines that cover the transfer and release 
of classified information to judicial organizations. This is covered in 
Chapter 21 of the Department of Commerce Manual of Security Policies 
and Procedures. This policy will apply to the Administrative Law Judges 
who hear NOAA's civil administrative enforcement cases. The policy also 
clarifies how to identify classified information. Security clearances 
are required to review classified evidence, however the security 
clearances possessed by the Administrative Law Judges who hear NOAA's 
administrative cases is appropriate.
Section 904.273--Administrative Review of Decision
    Comment 35: One commenter thought that direct appeal to U.S. 
District Court leaves too much control over civil penalty assessments 
in the hands of Agency enforcement attorneys.
    Response: The Agency, in large part in response to comments 
received on its proposed rule, has decided not to eliminate 
administrative appeals, therefore this comment is now moot. However, 
neither the suggestion to eliminate administrative appeals nor the 
decision to keep them affects civil penalty assessments.
    Comment 36: One commenter thought that it is unclear whether or not 
the revisions create a right for the Agency to appeal to U.S. District 
Court. If they do, the commenter suggests that such a right is not 
authorized by the Magnuson-Stevens Fishery Conservation and Management 
Act.
    Response: The Agency, in large part in response to comments 
received on its proposed rule, has decided not to eliminate 
administrative appeals, therefore this comment is now moot.
    Comment 37: One commenter suggested that direct appeal to U.S. 
District Court creates a disincentive for respondents to seek due 
process because it is cost prohibitive.
    Response: The Agency, in large part in response to comments 
received on its proposed rule, has decided not to eliminate 
administrative appeals, therefore this comment is now moot. However, 
concern over issues raised by commenters, such as costs to respondents, 
played an important role in the Agency's determination not to eliminate 
the administrative appeals process.
    Comment 38: One commenter recommended that the Agency reconsider 
its decision to eliminate the administrative appeals process because 
such a decision presents numerous issues for the Agency. The commenter 
highlighted several benefits that are derived from administrative 
review. First, requiring parties to pursue all administrative solutions 
prior to seeking judicial relief preserves judicial economy. Second, it 
protects the Agency's interests by giving the Agency an opportunity to 
develop a factual record and apply its expertise. Third, agency 
autonomy is preserved and judicial resources are conserved, because the 
agency is given an opportunity to discover and correct its mistakes 
before the matter is ever subject to judicial review and possibly 
resolve conflicts without judicial intervention. Fourth, the agency is 
able to establish policy through adjudication.
    In addition, the commenter noted several disadvantages to 
eliminating administrative appeals because it may lead to inconsistent 
adjudication among ALJs; difficulty identifying precedent; negative 
impact on the Agency's ability to articulate its policies; and negative 
impact on respondents.
    Overall, commenters representing a wide range of interests stressed 
the importance of administrative review and the benefits to both the 
Agency and parties from having the administrative process occur between 
the ALJ decision and any judicial review in Federal court.
    Response: After consideration of these and the other comments 
listed above advocating retention of the administrative appeals process 
as well as the Agency's further analysis of the potential impacts of 
eliminating administrative appeals, the Agency has decided not to 
eliminate the administrative appeals process. In fact, the comments on 
this point convinced the Agency that the administrative process should 
be mandatory for any party who wants to obtain review of the ALJ 
decision. Accordingly, Sec.  904.273 has been retained, with some 
modifications as described above.

IV. Administrative Requirements

A. The Regulatory Flexibility Act

    When this rule was proposed, the Administrator certified, pursuant 
to the Regulatory Flexibility Act, 5 U.S.C. 601-612, that it would not 
have a significant economic impact on a substantial number of small 
entities. No comments were received on the certification to lead the 
Agency to change that determination.

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. It was determined when this rule was proposed that it 
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

    At the proposed rule stage, it was determined that this regulatory 
action contains no information collection activities and, therefore, no 
information collection request (ICR) was 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: March 2, 2006.
James R. Walpole,
General Counsel, National Oceanic and Atmospheric Administration.

0
For the reasons set forth in the preamble, the NOAA Office of General 
Counsel for Enforcement and Litigation revises 15 CFR part 904 as 
follows:

0
1. Part 904 is revised to read 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 civil penalty.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing civil penalties.

[[Page 12449]]

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 administrative 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.
904.273 Administrative review of decision.
Subpart D--Permit Sanctions and Denials

General

904.300 Scope and applicability.
904.301 Bases for permit 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.

Permit Sanctions for Noncompliance

904.310 Nature of permit sanctions.
904.311 Compliance.

Permit Sanctions for Violations

904.320 Nature of permit 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 violation.
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 this 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, Public 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);
    (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 or 
authorities 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

[[Page 12450]]

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.
    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)).
    Civil penalty means a civil administrative monetary penalty 
assessed under the civil administrative process described in this part.
    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 U.S. Government by court order or by order of the 
Administrator under a statute.
    Hearing means a civil administrative hearing on a NOVA, NOPS and/or 
NIDP.
    Initial decision means a decision of the Judge that, under 
applicable statute and regulation, is subject to review by the 
Administrator.
    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 penalty.
    Party means the respondent and the Agency; a joint and several 
respondent, vessel owner, or permit holder, if they enter an 
appearance; 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.
    Permit sanction means suspension, revocation, or modification of a 
permit (see Sec.  904.320).
    PPIP means Preliminary Position on Issues and Procedures.
    Respondent means a person issued a written warning, NOVA, NOPS, 
NIDP or other notice.
    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 U.S. 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 has been documented against the person or against the vessel 
which is owned or operated by the person, where no civil penalty or 
permit sanction is imposed or assessed.


Sec.  904.3  Filing and service of notices, documents, and other 
papers.

    (a) Service of a NOVA (Sec.  904.101), NOPS (Sec.  904.302), NIDP 
(Sec.  904.303), Notice of Proposed Forfeiture (Sec.  904.504), Notice 
of Seizure (Sec.  904.501), Notice of Summary Sale (Sec.  904.505) or 
Written Warning (Sec.  904.402) 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 such Notices as 
described in paragraph (a) of this section, may be made by first class 
mail (postage 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 the date of postmark (or as otherwise shown for 
government-franked mail), 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.

    For a NOVA, NOPS or NIDP, the 30 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

[[Page 12451]]

legal holidays will be excluded in the computation.


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 NOVA, NOPS, NIDP, 
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 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 
respondent(s). 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 administrative 
decision and order of NOAA 30 days 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 civil penalty.

    (a) Respondent must make full payment of the civil penalty within 
30 days of the date upon which the NOVA becomes effective as the final 
administrative decision and order of NOAA under Sec.  904.104 or the 
date of the final administrative decision as provided in 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 
U.S. currency in the amount of the assessment to the ``Department of 
Commerce/NOAA,'' by credit card, or as otherwise directed.
    (b) Upon any failure to pay the civil penalty assessed, NOAA may 
request the U.S. Department of Justice to recover the amount assessed 
in any appropriate district court of the United States, 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 assessed, or 
which is subject to assessment, 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 a representative subject to the 
requirements of Sec.  904.5. 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 a NOVA becomes final.
    (d) NOAA will not compromise, modify, or remit a civil penalty 
assessed, or subject to assessment, under the Deep Seabed Hard Mineral 
Resources Act while an action to review or recover the civil 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, in total, no more than the amount 
finally assessed may be collected from the respondents.
    (b) A hearing request by one joint and several respondent is 
considered a request by the other joint and several

[[Page 12452]]

respondent(s). Agency counsel, having received a hearing request from 
one joint and several respondent, will send a copy of it to the other 
joint and several respondent(s) in the case. However, if the requesting 
joint and several respondent settles with the Agency prior to the 
hearing, upon notification by the Agency, any remaining joint and 
several respondent(s) must affirmatively request a hearing within the 
time period specified or the case will be removed from the court's 
docket as provided in Sec.  904.213.
    (c) A final administrative decision by the Judge or the 
Administrator after a hearing requested by one joint and several 
respondent is binding on all parties including all other joint and 
several respondent(s), whether or not they entered an appearance unless 
they have otherwise resolved the matter through settlement with the 
Agency.


Sec.  904.108  Factors considered in assessing civil penalties.

    (a) Factors to be taken into account in assessing a civil 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 violations, 
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 civil penalty from an amount that would 
otherwise be warranted by the other relevant factors. A civil penalty 
may be increased if a respondent's ability to pay is such that a higher 
civil penalty is necessary to deter future violations, or for 
commercial violators, to make a civil penalty more than a cost of doing 
business. A civil penalty may be decreased if the respondent 
establishes that he or she is unable to pay an otherwise appropriate 
civil penalty amount.
    (c) Except as provided in paragraph (g) of this section, if a 
respondent asserts that a civil 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 civil 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 tax 
returns; past, present, and future 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 
civil 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 civil 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 as soon as possible after the 
receipt of the NOVA. If a respondent has requested a hearing on the 
violation alleged in the NOVA and wants the initial decision of the 
Judge to consider his or her inability to pay, verifiable, complete, 
and accurate financial information must be submitted to Agency counsel 
at least 30 days in advance of the hearing, except where the applicable 
statute expressly provides for a different time period. No information 
regarding the respondent's ability to pay submitted by the respondent 
less than 30 days in advance of the hearing will be admitted at the 
hearing or considered in the initial decision of the Judge, unless the 
Judge rules otherwise. If the Judge decides to admit any information 
related to the respondent's ability to pay submitted less than 30 days 
in advance of the hearing, Agency Counsel will have 30 days to respond 
to the submission from the date of admission. 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 
prior to or at the hearing.
    (g) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a civil penalty, NOAA will 
take into consideration information available to it concerning a 
respondent's ability to pay. In all cases, the NOVA will advise, in 
accordance with Sec.  904.102, that the respondent may seek to have the 
civil penalty amount modified by Agency counsel on the basis that he or 
she does not have the ability to pay the civil penalty assessed. A 
request to have the civil 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 that the 
respondent submit such additional verifiable, complete and accurate 
financial information as Agency counsel determines is necessary to 
evaluate the 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 civil 
penalty assessed in the NOVA.
    (h) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a civil penalty and the 
respondent has requested a hearing on the violation 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 civil 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 civil 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 involving alleged violations of the laws cited in Sec.  
904.1(c) and regulations implementing these laws, including

[[Page 12453]]

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 constitutional issues or challenges 
to the validity of regulations promulgated by the Agency or statutes 
administered by NOAA.
    (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 
respondent must either attach a copy of the NOVA, NOPS or NIDP or refer 
to the relevant NOAA case number. Agency counsel will promptly forward 
the request for hearing to the ALJ Docketing Center.
    (b) If a written application is made to NOAA after the expiration 
of the time period established in this part for the required filing of 
hearing requests, Agency counsel will promptly forward the request for 
hearing along with a motion in opposition, documentation of service and 
any other relevant materials to the ALJ Docketing Center for a 
determination on whether such request shall be considered timely filed. 
Determinations by the ALJ regarding untimely hearing requests under 
this section shall be in writing.
    (c) Upon its receipt for filing in the ALJ Docketing Center, each 
request for hearing will be promptly 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 hearing, 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 hearing 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 rule on 
motions to close the hearing 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 contested 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;
    (l) Take official notice of any matter not appearing in evidence 
that is among traditional matters of judicial notice; 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 civil penalty de novo 
without being bound by the civil penalty 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; or
    (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 administrative 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 administrative proceeding.
    (2) Sanctions that 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 administrative 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,

[[Page 12454]]

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 an administrative 
proceeding 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 service of 
the motion. 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 raised in the answer may be served within 15 
days after 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 its pleading as a matter of course at least 
20 days prior to a hearing. Within 20 days prior to a hearing a party 
may amend its pleading only by leave of the Judge or by written consent 
of the adverse party; 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 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, 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 administrative 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 the administrative proceeding. A motion by a party 
to expedite the administrative proceeding may, at the discretion of the 
Judge, be made orally or in writing with concurrent actual notice to 
all parties. Upon granting a motion to expedite the scheduling of an 
administrative proceeding, the Judge may expedite pleading schedules, 
prehearing conferences and the hearing, as appropriate. If a motion for 
an expedited administrative proceeding is granted, a hearing on the 
merits may not be scheduled with less than 5 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 administrative proceeding if:
    (a) Jointly requested by every party to the administrative 
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, any party appears at the 
hearing and an opposing party fails to appear, the Judge is authorized 
to:
    (1) Dismiss the case with prejudice, where the Agency is a non-
appearing party; or
    (2) Where the respondents have failed to appear, find the facts as 
alleged in the NOVA, NOPS and/or NIDP and enter a default judgment 
against the respondents.
    (b) Following an order of default judgment, a 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 Judge's decision.


Sec.  904.212  Failure to prosecute or defend.

    (a) Whenever the record discloses the failure of any party to file 
documents,

[[Page 12455]]

respond to orders or notices from the Judge, or otherwise indicates an 
intention on the part of any party not to participate further in the 
administrative proceeding, the Judge may issue:
    (1) An order requiring any 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 any 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 administrative 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 Chief Administrative Law Judge may order that two or more 
administrative proceedings that involve substantially the same parties 
or the same issues be consolidated and/or heard together, either upon 
request of a party or sua sponte.


Sec.  904.216  Prehearing conferences.

    (a) Prior to any hearing or at any 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 24 hours 
notice of the conference to the parties, and shall record such 
conference by audio recording or court reporter, 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 administrative 
proceeding;
    (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 
administrative 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 (PPIP). Prior to 
hearing the Judge will ordinarily require the parties to submit a 
written PPIP. Except for information regarding a respondent's ability 
to pay an assessed civil 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 by 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 civil 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 the 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 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

[[Page 12456]]

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; or
    (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 on any 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 5 days of service of the questions.
    (d) Use of depositions at hearing. (1) At hearing, part or all of 
any 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, 
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 
15 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, the 
requesting party may request the U.S. Department of Justice 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

[[Page 12457]]

less than 20 days after service of the notice of hearing unless the 
hearing is expedited as provided under paragraph (c) of this section.
    (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 administrative 
proceeding, the Judge may order that one or more issues be heard on 
submissions or affidavits if it appears that such issues may be 
resolved by means of written materials and that efficient disposition 
of those issues can be made without an in-person hearing.
    (d) At any time after commencement of an administrative proceeding, 
any party may move to expedite the scheduling of the administrative 
proceeding as provided in Sec.  904.209.


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 
administrative proceedings, and hearsay evidence is not inadmissible as 
such.
    (3) In any case involving a charged violation of law in which the 
respondent 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, 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 written stipulation at any 
stage of the administrative proceeding or orally at the hearing, agree 
upon any matters. 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 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 administrative proceeding, 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

[[Page 12458]]

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 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 administrative 
proceeding, 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 administrative proceeding 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 administrative proceeding, 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 administrative proceeding.
    (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; and
    (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 this 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 U.S. 
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, NIDP or any other notice and until a final 
administrative decision is rendered, but in no event shall they begin 
to apply later than the time at which an administrative 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 ALJ Docketing Center. Transcripts of testimony will be 
available in any hearing 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 administrative 
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 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 administrative proceedings; exhibits 
admitted into evidence; briefs, pleadings, and other documents filed in 
the administrative

[[Page 12459]]

proceeding; and descriptions or copies of matters, facts, or documents 
officially noticed in the administrative 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 administrative proceeding, which place of storage need not 
necessarily be located physically within the ALJ Docketing Center.


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. In such cases, the Judge may 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, the Assistant General Counsel for Enforcement and Litigation, 
and the Administrator 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 and upon 
request 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 60 days after service, unless:
    (1) Otherwise provided by statute or regulations;
    (2) The Judge grants a petition for reconsideration under Sec.  
904.272; or
    (3) A petition for discretionary review is filed or the 
Administrator issues an order to review upon his/her own initiative 
under Sec.  904.273.


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 administrative proceeding may 
file an answer in support or in opposition.


Sec.  904.273  Administrative review of decision.

    (a) Subject to the requirements of this section, any party who 
wishes to seek review of an initial decision of a Judge must petition 
for review of the initial decision within 30 days after the date the 
decision is served. The petition must be served on the Administrator by 
registered or certified mail, return receipt requested at the following 
address: Administrator, National Oceanic and Atmospheric 
Administration, Department of Commerce, Room 5128, 14th Street and 
Constitution Avenue, NW., Washington, DC 20230. Copies of the petition 
for review, and all other documents and materials required in paragraph 
(d) of this section, must be served on all parties and the Assistant 
General Counsel for Enforcement and Litigation at the following 
address: Assistant General Counsel for Enforcement and Litigation, 
National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, 
Suite 400, Silver Spring, MD 20910.
    (b) The Administrator may elect to issue an order to review the 
initial decision without petition and may affirm, reverse, modify or 
remand the Judge's initial decision. Any such order must be issued 
within 60 days after the date the initial decision is served.
    (c) Review by the Administrator of an initial decision is 
discretionary and is not a matter of right. If a party files a timely 
petition for discretionary review, or review is timely undertaken on 
the Administrator's own initiative, the effectiveness of the initial 
decision is stayed until further order of the Administrator or until 
the initial decision becomes final pursuant to paragraph (h) of this 
section.
    (d) A petition for review must comply with the following 
requirements regarding format and content:
    (1) The petition must include a concise statement of the case, 
which must contain a statement of facts relevant to the issues 
submitted for review, and a summary of the argument, which must contain 
a succinct, clear and accurate statement of the arguments made in the 
body of the petition;
    (2) The petition must set forth, in detail, specific objections to 
the initial decision, the bases for review, and the relief requested;
    (3) Each issue raised in the petition must be separately numbered, 
concisely stated, and supported by detailed citations to specific pages 
in the record, and to statutes, regulations, and principal authorities. 
Petitions may not refer to or incorporate by reference entire documents 
or transcripts;
    (4) A copy of the Judge's initial decision must be attached to the 
petition;
    (5) Copies of all cited portions of the record must be attached to 
the petition;
    (6) A petition, exclusive of attachments and authorities, must not 
exceed 20 pages in length and must be in the form articulated in 
section 904.206(b); and
    (7) Issues of fact or law not argued before the Judge may not be 
raised in the petition unless such issues were raised for the first 
time in the Judge's initial decision, or could not reasonably have been 
foreseen and raised by the parties during the hearing. The 
Administrator will not consider new or additional evidence that is not 
a part of the record before the Judge.
    (e) The Administrator may deny a petition for review that is 
untimely or fails to comply with the format and content requirements in 
paragraph (d) of this section without further review.
    (f) No oral argument on petitions for discretionary review will be 
allowed.
    (g) Within 30 days after service of a petition for discretionary 
review, any party may file and serve an answer in support or in 
opposition. An answer must comport with the format and content 
requirements in paragraphs (d)(5) through (d)(7) of this section and 
set forth detailed responses to the specific objections, bases for 
review and relief requested in the petition. No further replies are 
allowed, unless requested by the Administrator.
    (h) If the Administrator has taken no action in response to the 
petition within 120 days after the petition is served, said petition 
shall be deemed denied and the Judge's initial decision shall become 
the final agency decision with

[[Page 12460]]

an effective date 150 days after the petition is served.
    (i) If the Administrator issues an order denying discretionary 
review, the order will be served on all parties personally or by 
registered or certified mail, return receipt requested, and will 
specify the date upon which the Judge's decision will become effective 
as the final agency decision. The Administrator need not give reasons 
for denying review.
    (j) If the Administrator grants discretionary review or elects to 
review the initial decision without petition, the Administrator will 
issue an order to that effect. Such order may identify issues to be 
briefed and a briefing schedule. Such issues may include one or more of 
the issues raised in the petition for review and any other matters the 
Administrator wishes to review. Only those issues identified in the 
order may be argued in any briefs permitted under the order. The 
Administrator may choose to not order any additional briefing, and may 
instead make a final determination based on any petitions for review, 
any responses and the existing record.
    (k) If the Administrator grants or elects to take discretionary 
review, and after expiration of the period for filing any additional 
briefs under paragraph (j) of this section, the Administrator will 
render a written decision on the issues under review. The Administrator 
will transmit the decision to each of the parties by registered or 
certified mail, return receipt requested. The Administrator's decision 
becomes the final administrative decision on the date it is served, 
unless otherwise provided in the decision, and is a final agency action 
for purposes of judicial review; except that an Administrator's 
decision to remand the initial decision to the Judge is not final 
agency action.
    (l) An initial decision shall not be subject to judicial review 
unless:
    (1) The party seeking judicial review has exhausted its opportunity 
for administrative review by filing a petition for review with the 
Administrator in compliance with this section, and
    (2) The Administrator has issued a final ruling on the petition 
that constitutes final agency action under paragraph (k) of this 
section or the Judge's initial decision has become the final agency 
decision under paragraph (h) of this section.
    (m) For purposes of any subsequent judicial review of the agency 
decision, any issues that are not identified in any petition for 
review, in any answer in support or opposition, by the Administrator, 
or in any modifications to the initial decision are waived.
    (n) If an action is filed for judicial review of a final agency 
decision, and the decision is vacated or remanded by a court, the 
Administrator shall issue an order addressing further administrative 
proceedings in the matter. Such order may include a remand to the Chief 
Administrative Law Judge for further proceedings consistent with the 
judicial decision, or further briefing before the Administrator on any 
issues the Administrator deems appropriate.

Subpart D--Permit Sanctions and Denials

General


Sec.  904.300  Scope and applicability.

    (a) This subpart sets forth 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 of this part 
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 permit 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 violation 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 of this part;
    (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 permit sanction may be imposed, or a permit denied, under 
this subpart with respect to the particular permit pertaining to the 
violation 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.
    (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 permit sanction may not be extinguished by sale or transfer. 
A vessel's permit sanction 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 on the permit holder as provided in Sec.  
904.3. 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 permit sanction to be imposed, the 
bases for the permit sanction, and any opportunity for a hearing. It 
will state the effective date of the permit sanction, which will 
ordinarily not be earlier than 30 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 permit sanction has 
taken effect. The effectiveness of the permit 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 permit applicant has been charged 
with a violation of a statute, regulation, or permit administered by 
NOAA, for

[[Page 12461]]

failure to pay a civil penalty or criminal fine, 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.  
904.3.
    (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 an 
administrative or judicial proceeding, 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 30 days 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.

Permit Sanctions for Noncompliance


Sec.  904.310  Nature of permit 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 civil 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 of the conditions in paragraph (a) of this section is 
applicable.


Sec.  904.311  Compliance.

    If the permit holder pays the criminal fine or civil 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.

Permit Sanction for Violations


Sec.  904.320  Nature of permit 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, a 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:
    (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 violation.

    A written warning may be used as a basis for dealing more severely 
with a subsequent violation, including, but not limited to, a violation 
of the same statute or a violation involving an activity that is 
related to the prior violation.


Sec.  904.402  Procedures.

    (a) Any person authorized to enforce the laws listed in Sec.  
904.1(c) or Agency

[[Page 12462]]

counsel may issue a written warning to a respondent as provided in 
Sec.  904.3.
    (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 respondent of its effect in the event of a future 
violation; and
    (4) Inform the respondent 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 
respondent previously committed a similar violation for which a written 
warning was issued or other enforcement action was taken, NOAA may 
withdraw the warning and commence other administrative or judicial 
proceedings.


Sec.  904.403  Review and appeal of a written warning.

    (a) If a respondent receives a written warning from an authorized 
officer, the respondent 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 respondent of his or her determination. The Agency counsel's 
determination constitutes the final agency action, unless it is 
appealed pursuant to paragraph (b) of this section.
    (b) If a respondent receives a written warning from Agency counsel, 
or receives a determination from Agency counsel affirming a written 
warning issued by an authorized officer, the respondent 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 & 
Constitution Avenue, NW., Washington, DC 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 
respondent 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 serve the 
Notice of Seizure as provided in Sec.  904.3 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; a 
Notice of Seizure 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 service of the Notice. 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. Department of Justice 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 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 requester 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 requester 
will be deposited in a NOAA expense 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 requester 
constitutes a waiver by requester 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

[[Page 12463]]

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) 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, U.S. District Court, or the U.S. 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, as 
provided in Sec.  904.3, 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 timely filed in accordance with this section, 
NOAA will refer the matter to the U.S. Department of Justice to 
institute forfeiture proceedings in the appropriate U.S. District 
Court.
    (4) If a claim is not filed within 30 days of the date the final 
Notice is 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 as provided in Sec.  904.3, 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 as provided in Sec.  904.3. 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 U.S. 
Department of Justice to institute in rem proceedings in the 
appropriate U.S. 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 as provided under Sec.  
904.3, to the owner or consignee, if known or easily ascertainable, or 
to any other party that 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 U.S. 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

[[Page 12464]]

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 U.S. 
Department of Justice for institution of judicial proceedings, and 
until the proceedings are completed, any petition received by NOAA will 
be forwarded to the U.S. Department of Justice 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 submission of 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 U.S. Government will be regarded as 
a 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 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;

[[Page 12465]]

    (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 U.S. 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 civil 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 U.S. 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 it 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.
    (g) Destruction. (1) Property not otherwise disposed of may be 
destroyed.
    (2) Destruction will be accomplished in accordance with the 
requirements of 41 CFR parts 101 through 145.
    (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) Recordkeeping. 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 U.S. 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 serve a Notice of the Return of property as 
provided by Sec.  904.3, 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. 06-2187 Filed 3-9-06; 8:45 am]
BILLING CODE 3510-12-P