[Federal Register Volume 75, Number 52 (Thursday, March 18, 2010)]
[Proposed Rules]
[Pages 13050-13051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5988]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 904

[Docket No. 100216090-0123-01]
RIN 0648-AY66


Regulations to Amend the Civil Procedures

AGENCY: Office of General Counsel (OGC), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule.

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SUMMARY: This rule amends the procedures governing NOAA's 
administrative proceedings for the 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 principal change removes the requirement that an 
Administrative Law Judge state good reason(s) for departing from the 
civil penalty or permit sanction assessed by NOAA in its charging 
document. This revision eliminates any presumption in favor of the 
civil penalty or permit sanction assessed by NOAA. The other change 
corrects a clerical error in a citation to rules pertaining to 
protective orders issued by Administrative Law Judges.

DATES: Written comments on this proposed rule must be submitted by 
April 16, 2010.

[[Page 13051]]


ADDRESSES: You may submit comments, identified by RIN 0648-AY66, by any 
one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov
     Fax: 301-427-2211, Attn: Frank M. Sprtel, Attorney-Advisor
     Mail: Office of General Counsel for Enforcement and 
Litigation (GCEL), 8484 Georgia Avenue, Suite 400, Silver Spring, MD 
20910
    Instructions: No comments will be posted for public viewing until 
after the comment period has closed. All comments received are a part 
of the public record and will generally be posted to http://www.regulations.gov without change. All Personal Identifying 
Information (for example, name, address, etc.) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit Confidential 
Business Information or otherwise sensitive or protected information. 
NOAA will accept anonymous comments (enter N/A in the required fields, 
if you wish to remain anonymous). You may submit attachments to 
electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF 
file formats only.

FOR FURTHER INFORMATION CONTACT: Frank M. Sprtel, GCEL, (301) 427-2202.

SUPPLEMENTARY INFORMATION:

I. Background

    NOAA is proposing to amend the civil procedure rules that apply to 
its administrative proceedings as described below. NOAA is proposing 
the changes described here: (1) to improve the efficiency and fairness 
of administrative proceedings; and (2) to correct a citation error.

II. Proposed Revisions

Subpart C--Hearing and Appeal Procedures

Duties and Powers of Judge
    Section 904.204: This revision removes the requirement in 15 CFR 
904.204(m) that an Administrative Law Judge state good reason(s) for 
departing from the civil penalty or permit sanction, condition, 
revocation, or denial of permit application (collectively, ``civil 
penalty or permit sanction'') assessed by NOAA in its charging 
document. This revision eliminates any presumption in favor of the 
civil penalty or permit sanction assessed by NOAA in its charging 
document (see In the Matter of: AGA Fishing Corp., 2001 WL 34683852 
(NOAA Mar. 17, 2001)). It requires instead that NOAA justify at a 
hearing provided for under this Part that its proposed penalty or 
permit sanction is appropriate, taking into account all the factors 
required by applicable law. Additionally, by explicitly removing this 
presumption, this change provides Respondents with a full and fair 
opportunity to challenge the proposed Agency action.
    This revision also corrects a citation in the regulation pertaining 
to protective orders issued by an Administrative Law Judge that is 
codified at 15 CFR 904.204(f). The current regulation incorrectly cites 
Sec.  904.240(d). The regulation is revised to correctly cite Sec.  
904.251(h).

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule. Nor does this rule contain an 
information-collection request that would implicate the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The small businesses, as defined in the Regulatory Flexibility Act, 
5 U.S.C. 601, et seq., that this rule may affect include, but are not 
limited to, vessel owners, vessel operators, fish dealers, individual 
fishermen, small corporations, and others engaged in commercial and 
recreational activities regulated by NOAA. However, this rule does not 
have any compliance costs or associated fees for businesses, large or 
small. This rule is purely procedural, and merely amends and refines 
NOAA's existing rules of civil procedure.
    Because this regulation will impose no significant costs on any 
small entities, but rather will only modify existing procedural rules, 
the overall economic impact on small entities, if any, is expected to 
be nominal. Accordingly, this rule will not substantially impact a 
significant number of small businesses.
    As a result of this certification, an initial regulatory 
flexibility analysis is not required and none has been prepared.

List of Subjects in 15 CFR Part 904

    Administrative practice and procedure, fisheries, fishing, fishing 
vessels, penalties, seizures and forfeitures.

    Dated: March 12, 2010.
Lois J. Schiffer,
General Counsel, National Oceanic and Atmospheric Administration.
    For reasons set forth in the preamble, 15 CFR part 904 is proposed 
to be amended as follows:

PART 904--CIVIL PROCEDURES

    1. The authority citation for part 904 continues to read as 
follows:

    Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 1531-1544, 16 
U.S.C. 1361 et seq., 16 U.S.C. 3371-3378, 16 U.S.C. 1431-1445c-1, 16 
U.S.C. 773-773k, 16 U.S.C. 951-962, 16 U.S.C. 5001-5012, 16 U.S.C. 
3631-3645, 42 U.S.C. 9101 et seq., 30 U.S.C. 1401 et seq., 16 U.S.C. 
971-971k, 16 U.S.C. 781-785, 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 et 
seq., 16 U.S.C. 3601-3608, 16 U.S.C. 3631-3645, 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. 973-973R, 15 U.S.C. 330-330(e).
    2. Section 904.204 to subpart C is amended by revising paragraphs 
(f) and (m) to read as follows:

Subpart C--Hearing and Appeal Procedures


Sec.  904.204  Duties and powers of Judge.

* * * * *
    (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.  904.251(h);
* * * * *
    (m) Assess a civil penalty or impose a permit sanction, condition, 
revocation, or denial of permit application, taking into account all of 
the factors required by applicable law;
* * * * *
[FR Doc. 2010-5988 Filed 3-17-10; 8:45 am]
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