Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60569

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric 

Administration

15 CFR Part 904

[Docket No. 040902252–4252–01; I.D. 

092804C]

RIN 0648–AS54

Civil Procedures

AGENCY: Office of General Counsel for 

Enforcement and Litigation, National 

Oceanic and Atmospheric 

Administration, Commerce.

ACTION: Proposed rule.

SUMMARY: NOAA is proposing 

amendments and technical refinements 

to its Civil Procedures which govern 

NOAA’s administrative proceedings for 

assessment of civil penalties; 

suspension, revocation, modification, or 

denial of permits; issuance and use of 

written warnings; and release or 

forfeiture of seized property.

DATES: Submit comments on or before 

December 13, 2004.

ADDRESSES: Comments should be 

submitted in writing to Meggan EngelkeRos, Enforcement Attorney, Office of 

General Counsel for Enforcement and 

Litigation, 8484 Georgia Avenue, Suite 

400, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Meggan Engelke-Ros or Susan S. 

Beresford, 301–427–2202.

SUPPLEMENTARY INFORMATION:

I. Background

NOAA is proposing to amend the civil 

procedure rules that apply to its 

administrative proceedings as described 

below. NOAA is proposing the changes 

described herein to: (1) Conform the 

civil procedure rules to changes in 

applicable federal laws and regulations; 

(2) improve the efficiency and fairness 

of administrative proceedings; (3) clarify 

any ambiguities or inconsistencies in 

the existing civil procedure rules; (4) 

eliminate redundant language and 

correct language errors; and (5) conform 

the civil procedure rules to current 

agency practice.

II. Proposed Revisions

Subpart A—General

1. Purpose and Scope

Section 904.1: This section would be 

amended to add new statutory 

references: American Fisheries Act of 

1998; Anadromous Fish Products Act; 

Antarctic Protection Act; Atlantic 

Coastal Fisheries Cooperative 

Management Act; Dolphin Protection 

Consumer Information Act; Driftnet 

Impact Monitoring, Assessment, and 

Control Act; Fish and Seafood 

Promotion Act of 1986; Fisherman’s 

Protective Act of 1967; High Seas 

Fishing Compliance Act; North Pacific 

Anadromous Stocks Convention Act of 

1992; Northwest Atlantic Fisheries 

Convention Act of 1995; Shark Finning 

Prohibition Act; South Pacific Tuna Act 

of 1988; and the Weather Modification 

Reporting Act. These additions would 

reflect statutes passed or amended since 

the last revision of these procedural 

regulations as well as statutes 

inadvertently left out of the current 

regulations. These statutes authorize 

NOAA to assess civil penalties and 

conduct seizures of property subject to 

forfeiture and, therefore, are subject to 

the application of this chapter of the 

Code of Federal Regulations.

Reference to the North Pacific 

Fisheries Act of 1954 was deleted 

because the statute is no longer in effect.

The proposed revision would also 

change ‘‘Magnuson Fishery 

Conservation and Management Act’’ to 

‘‘Magnuson-Stevens Fishery 

Conservation and Management Act’’ to 

reflect the amendment to the title of that 

statute. (For consistency, references to 

‘‘Magnuson Act’’ have been amended to 

‘‘Magnuson-Stevens Act’’ throughout 

these regulations.) Likewise, the 

proposed revision would change 

‘‘National Marine Protection, Research, 

and Sanctuaries Act’’ to ‘‘National 

Marine Sanctuaries Act’’.

2. Definitions

Section 904.2: The term ‘‘ALJ 

Docketing Center’’ is proposed for 

addition to the definitions section. The 

term ‘‘authorized officer’’ is proposed 

for addition to the definitions section. 

The definition of ‘‘decision’’ would be 

amended to coincide with the existing 

definitions of ‘‘initial decision’’ and 

‘‘final administrative decision’’. A 

definition of the acronym ‘‘NIDP would 

be added for clarity. A definition of the 

acronym ‘‘NMFS’’ would be added for 

clarity. A definition of the acronym 

‘‘NOPS’’ would be added for clarity. A 

definition of the acronym ‘‘PPIP’’ would 

be added for clarity. The term 

‘‘settlement agreement’’ would be added 

to the definitions section, and includes 

agreements providing for payment of 

civil penalties, eliminating the need for 

a separate definition of the term 

‘‘payment agreement’’, which is deleted. 

A definition of the acronym ‘‘USCG’’

would be added for clarity. The term 

‘‘vessel owner’’ would be revised to 

improve accuracy.

3. Filing and Service of Notices, 

Documents and Other Papers

Section 904.3: This section heading 

would be amended from ‘‘Filing and 

service of documents’’ to ‘‘Filing and 

service of notices, documents and other 

papers’’, to consolidate and distinguish 

procedures for service and filing of 

notices (NOVAs, NOPS, NIDPs) and 

other documents. (See § 904.202). 

During the review process, GCEL will be 

reviewing the technological issues 

related to the feasibility of etransmission of documents. If the 

technology and procedures for etransmission have developed to a point 

where they can be effectively utilized 

for notices and documents, GCEL will 

include the authority to permit etransmission, which may include the 

further development of specific 

language to address the unique issues 

associated with e-transmission. Any 

comments on the viability of etransmission for documents related to 

litigation are welcome.

4. Computation of Time Periods

Section 904.4: A new section, § 904.4, 

‘‘computation of time periods’’, would 

be created from the present § 904.3(d) to 

explain the rules relating to 

computation of time periods that apply 

to notices and to other types of 

documents which are filed and served. 

The proposed rules relating to 

computation of time periods comport 

with those established by the Federal 

Rules of Civil Procedure.

5. Appearances

Section 904.5: A new section, § 904.5, 

‘‘Appearances’’, would be created, 

replacing § 904.203, ‘‘Appearances’’, 

which would be eliminated. The new 

section would include the existing 

language of § 904.203, and add a new 

requirement that any attorney or other 

representative enter a written notice of 

appearance when representing a person 

regarding an Agency enforcement 

matter, or when representing a party in 

any civil administrative hearing.

Subpart B—Civil Penalties

1. Notice of Violation Assessment 

(NOVA)

Section 904.101: Paragraph (a) would 

be amended to delete redundant 

language in the first sentence pertaining 

to service of the NOVA, as this would 

be fully covered by the operative 

provisions of proposed § 904.3. The 

second sentence of § 904.101(a)(4) 

would be modified and designated as a 

new § 904.101(a)(5). No substantive 

change is intended by this revision.

60570 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

2. Procedures Upon Receipt of a NOVA

Section 904.102: Paragraph (a)(3) 

would be amended for internal 

consistency to specify the appropriate 

cross-reference to the section of the rule 

concerning hearing requests.

Paragraph (a)(5) would be amended to 

clarify that, if a respondent takes no 

action, the NOVA would become a final 

administrative decision, in accordance 

with § 904.104.

In paragraphs (b) and (c), the phrase 

‘‘permit holder or vessel owner’’ would 

be deleted, so that only the respondent 

has legal standing to seek amendment or 

modification of the NOVA, or to request 

an extension of time in which to 

respond to the NOVA. The sentence in 

paragraph (a)(5), allowing permit 

holders and vessel owners to respond to 

NOVAs, would be deleted so that only 

respondents may respond.

Paragraphs (e) through (g) would be 

deleted, as they would be fully covered 

by the proposed new and amended 

§ 904.201(a)-(c).

3. Hearing and Administrative Review

Section 904.103: Paragraph (a) would 

be amended for internal consistency to 

specify the appropriate cross-reference 

to the section of the rule regarding the 

right to request a hearing upon receipt 

of a NOVA, § 904.102(a)(3).

The first sentence of paragraph (b) 

would be deleted as the requirement for 

an initial decision would be covered 

under amended § 904.271. The second 

sentence of paragraph (b) would be 

deleted to remove reference to the 

discretionary review process currently 

described in § 904.273, which would be 

deleted so that the Judge’s decision 

(after consideration of any petition for 

reconsideration) would become the 

agency’s final decision.

4. Final Administrative Decision

Section 904.104: Paragraphs (a) and 

(b) would be amended for internal 

consistency to specify the appropriate 

cross-reference to the section of the rule 

regarding submitting hearing requests, 

§ 904.201(a).

5. Payment of Final Assessment

Section 904.105: Paragraph (a) would 

be amended to substitute ‘‘Department 

of Commerce/NOAA’’ for ‘‘Treasurer of 

the United States’’ to clarify that civil 

penalties are to be deposited to the 

Department of Commerce/NOAA 

account in the United States Treasury. 

Paragraph (b) would be amended to add 

the phrase ‘‘or may commence any other 

lawful action’’ to clarify that NOAA may 

pursue all lawful options for collecting 

an unpaid final civil penalty 

assessment. For example, NOAA may 

sanction a permit if the permit holder 

fails to pay a final assessment, pursuant 

to § 904.310, or the matter may be 

referred to a collection agency, or both. 

No substantive change is intended by 

this revision.

6. Compromise of Civil Penalty

Section 904.106: In paragraph (b) 

unnecessary language pertaining to the 

penalty compromise authority of NOAA 

would be deleted. For editorial 

consistency, the reference to the 

‘‘alleged violator’’ would be changed to 

‘‘respondent’’.

7. Joint and Several Respondents

Section 904.107: Paragraph (a) would 

be amended to clarify the extent of 

liability for civil penalties assessed 

against joint and several respondents.

Paragraph (b) would be amended to 

clarify and emphasize how a hearing 

request by a joint and several 

respondent would be processed.

Paragraph (d) would be added to 

specify that where Agency counsel has 

negotiated a settlement with one joint 

and severally liable respondent for less 

than the full amount of the proposed 

penalties and/or sanctions, then the 

remaining joint and several respondents 

would remain liable for the unsatisfied 

portion of the proposed penalties and 

sanctions.

8. Factors Considered in Assessing 

Penalties

Section 904.108: Paragraph (a) would 

be amended to reflect that NOAA will 

take into account a respondent’s ability 

to pay when assessing a civil penalty for 

a violation of a statute NOAA 

administers, when the statute in 

question so requires.

Paragraph (e) would be amended to 

establish the appropriate time period for 

submission, to NOAA, of financial 

information on ability to pay. Proposed 

paragraph (e) would provide that the 

information should be provided within 

60 days of the receipt of a Notice of 

Violation and Assessment. Paragraph (e) 

would also amend the deadline for 

submitting verifiable financial 

information when the respondent has 

requested an administrative hearing, 

and would like ability to pay to be 

considered by the administrative law 

judge. Under this paragraph, if a 

respondent produces financial 

information relating to ability to pay for 

the first time at hearing, then Agency 

counsel would have 30 days following 

the conclusion of the hearing to review 

and respond to the respondent’s 

information.

Two minor editorial changes would 

be made in paragraph (g). No 

substantive change is intended by these 

revisions.

Changes proposed for paragraph (h) 

would clarify that the Agency is 

required to submit information to the 

Judge regarding the respondent’s ability 

to pay only in those cases where the 

respondent has requested a hearing 

under a statute that requires NOAA to 

take into consideration a respondent’s 

ability to pay when assessing a penalty.

Subpart C—Hearings and Appeal 

Procedures

Subpart C governs the procedures for 

hearings and appeals, including case 

docketing, the filing of documents, the 

duties and powers of judges, evidentiary 

matters, discovery, post-hearing matters, 

and the process for filing administrative 

appeals.

General

1. Scope and Applicability

Section 904.200: Paragraph (a) would 

be amended to substitute ‘‘final 

administrative decisions’’ for ‘‘final 

decisions’’ to reflect the proposed 

amended definition of ‘‘Decision’’ in 

§ 904.2.

Paragraph (b) would be amended to 

delegate authority to the Judges to make 

initial and final decisions, and to take 

other actions related to the conduct of 

hearings, without that authority being 

subject to the administrative direction of 

the Chief Administrative Law Judge. 

This paragraph would also be amended 

to substitute ‘‘final administrative 

decisions’’ for ‘‘final decisions’’ to 

reflect the proposed amended definition 

of ‘‘decision’’ in § 904.2.

2. Hearing Requests and Case Docketing

Section 904.201: The heading would 

be amended to include reference to 

hearing requests. For clarity and brevity, 

paragraph (a) would be added to 

incorporate the language currently 

found at § 904.102(e) and would apply 

the procedures for requesting a hearing 

on a NOVAs, NIDPs and NOPSs. 

‘‘Notice’’ would be substituted for 

‘‘NOVA’’ for consistency with this 

revision.

Paragraph (b) would be added to 

incorporate and revise the language 

currently found at § 904.3(e) and 

§ 904.102(f), which have been proposed 

for deletion. Under the proposed 

addition, the 10–day period following 

the deadline for filing hearing requests 

and other documents would no longer 

apply to all filings, but only to hearing 

requests. Further, under the proposed 

addition, all hearing requests filed 

within this 10–day period would be 

considered timely filed. Hearing 

requests filed after the 10–day period

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60571

would be forwarded to the Office of 

Administrative Law Judges, where they 

would be deemed untimely. The 

applicant would be notified in writing 

that the hearing request was untimely. 

The proposed revision would eliminate 

the Administrative Law Judge’s 

authority to grant requests to extend the 

time for hearing requests and Agency 

counsel’s discretion to deny hearing 

requests within the 10–day period.

Paragraph (c) would be added to 

incorporate the language of existing 

paragraph 904.102(g), which is 

proposed for deletion. This paragraph 

has been revised to allow any written 

communication from a respondent to be 

treated as a request for a hearing, at 

Agency counsel’s discretion.

Paragraph (d) would be added to 

incorporate the language of existing 

§ 904.201, with no revisions.

3. Filing of Documents

Section 904.202: Paragraph (a) would 

be amended to remove reference to the 

discretionary review process currently 

described in § 904.273, which would be 

deleted so that the Judge’s decision 

(after consideration of any petition for 

reconsideration) would become the 

agency’s final decision.

4. Appearances

Section 904.203: This section is 

proposed for deletion. A new section, 

‘‘Appearances’’, is proposed at § 904.5.

5. Duties and Powers of Judge

Section 904.204: The introductory 

paragraph would be amended to 

substitute ‘‘render’’ for ‘‘make the’’, for 

consistency with the language of 

§ 904.271.

Paragraphs (b)-(o) would be 

redesignated as paragraphs (c)-(p). New 

paragraph (a) would be added to 

authorize the Judge to rule on the 

timeliness of hearing requests pursuant 

to proposed amended § 904.201(b).

New paragraph (q) would be added to 

authorize the Judge to impose sanctions 

on any party, or a party’s representative, 

for failure to comply with this part, or 

any order issued under this part. 

Sanctions may only be issued if the 

failure to comply materially injures or 

prejudices another party; is a clear and 

unexcused violation of this part, or any 

order issued under this part; or unduly 

delays the proceeding. Sanctions may be 

imposed upon the motion of any party 

or sua sponte.

Paragraph (q)(3) would provide that 

notice and an opportunity to be heard 

will be provided prior to the imposition 

of all sanctions, other than refusal to 

accept late filings.

Paragraph (q)(4) would provide that 

imposition of sanctions is subject to 

interlocutory review under § 904.254.

These amendments are intended to 

improve the fairness and efficiency of 

adjudicatory proceedings and comport 

with the civil procedures of other 

federal agencies.

6. Pleadings, Motions, and Service

Section 904.206: Paragraph (a) would 

be amended to substitute ‘‘Judge’’ for 

‘‘Office of Administrative Law Judges’’

and to add ‘‘ALJ Docketing Center’’. 

This proposed revision would promote 

efficiency because it would eliminate 

the need for the ALJ Docketing Center 

to forward pleadings to the Judges 

assigned to cases. A technical revision 

would also be made for internal 

consistency to specify the appropriate 

cross-reference to the new section of the 

rule, which would be § 904.3(b).

7. Amendment of Pleading or Record

Section 904.207: This section would 

be amended to create new paragraph (a) 

which would allow parties to amend 

their pleadings until 20 days prior to a 

hearing without receiving permission 

from a Judge, thus easing the hardship 

associated with amending a pleading. 

Within 20 days of a hearing, parties 

could amend a pleading only by leave 

of a Judge, or with the written consent 

of the adverse party, thereby facilitating 

non-contested amendments. The 

proposed revision would require that 

Judges provide leave to amend 

pleadings when justice so requires. 

Under the proposed revision, parties 

could also file responsive pleadings 

within the time that remains for 

responding to the original pleading, or 

within 10 days after service of the 

amended pleading, whichever time 

period is longer, unless otherwise 

ordered by a Judge.

Paragraph (b) would added based on 

language currently found in § 904.207, 

with a proposed amendment to remove 

the Judge’s discretion to permit a party 

to amend a pleading to make a more 

definite statement upon conditions fair 

to both parties. The Judge’s authority to 

permit an amendment of the pleadings 

for any reason, including to make a 

more definite statement, would be 

governed by revised § 904.207(a).

Paragraph (c) would be created from 

language currently found in existing 

§ 904.207, with a proposed amendment 

to emphasize that the Judge has broad 

discretion to allow corrections of 

harmless errors in pleadings and 

elsewhere in the record.

8. Expedited Proceedings

Section 904.209: This section would 

be amended to allow expedited hearings 

to be scheduled no earlier than five 

business days, rather than three days, 

after notice that an expedited hearing is 

granted, unless all parties consent to an 

earlier date. This proposed amendment 

would allow parties more time to 

prepare their cases for hearing than the 

current rule provides, although both the 

current and proposed rule allow the 

parties to agree to an earlier hearing 

date.

9. Failure to Appear

Section 904.211: Paragraph (a) would 

be amended to reflect the fact that, 

when a party appears at the hearing and 

no party appears for the opposing side, 

the Judge is authorized to dismiss the 

case or to find the facts as alleged in the 

NOVA and enter a default judgment 

against the non-appearing party. By 

authorizing the Judge to enter a default 

judgment when a party has failed to 

appear, the proposed amendments 

would create a disincentive for a party 

to fail to appear at a hearing once one 

has been requested and avoid the 

attendant expenses associated with 

putting on such hearings.

A new paragraph (b) would be added 

to allow a party to petition the Judge for 

reconsideration of a default judgment in 

accordance with § 904.272. Only 

petitions citing reasons for nonappearance will be considered.

Existing paragraphs (b) and (c) would 

be redesignated as (c) and (d).

A new paragraph (e) would be added 

to clarify that failure to appear at a 

hearing shall not be deemed to be a 

waiver of the right to be served with a 

copy of the Judge’s decision.

10. Failure to Prosecute or Defend

Section 904.212: This section would 

be amended to describe certain orders 

that the Judge may issue to bring about 

the efficient resolution of a case. 

Specifically, the amendments would 

clarify that the Judge may, whenever the 

record indicates that either party does 

not intend to participate further in the 

proceeding, issue an order requiring the 

party to show why the case should not 

be disposed of adversely to that party’s 

interests or to certify the party’s 

intention to appear at a scheduled 

hearing.

11. Settlements

Section 904.213: This section would 

be amended to require the Judge to 

remove a case from the docket upon 

notification by the Agency that a 

settlement has been reached, if 

settlement is reached before the record

60572 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

is certified. The proposed revision 

would clarify that Judges do not have 

the authority to approve or disapprove 

settlement agreements reached by the 

parties.

12. Prehearing Conferences

Section 904.216: Paragraph (a) would 

be amended to require Judges to give the 

parties at least twenty-four hours notice 

prior to requiring the parties to appear 

for a conference or to participate in a 

telephone conference, and would 

require that all conferences be recorded. 

Paragraph (a)(7) would be amended to 

emphasize that the Judge may hold a 

conference to discuss the status of any 

settlement discussions.

Paragraph (b) would be amended to 

require Judges to provide a transcript of 

pre-hearing conferences upon the 

request of the parties. The proposed 

amendment would provide the parties 

with accurate records of issues raised 

and matters decided during such 

conferences.

Discovery

1. Discovery Generally

Section 904.240: Paragraph (a) would 

amend the PPIP content and filing 

requirements. This section would list 

the information required to be 

submitted in a PPIP, and would include 

a new requirement that Respondents 

must list all defenses, together with a 

summary of all facts and law in support 

of each defense. This section would 

require the signature of the party and 

any attorney retained, and would 

require that copies of any exhibits listed 

be sent to the other parties. As the PPIP 

is the main tool of discovery in NOAA 

administrative proceedings, these 

requirements would further the 

purposes and goals of discovery. This 

proposed revision would also make two 

technical changes. The first change 

would be to move the text concerning 

the consequences of failing to provide 

the required information in a PPIP to 

paragraph (f) and the second would be 

to eliminate the cross-reference to 

§ 904.212.

2. Interrogatories

Section 904.242: The title of this 

section would be amended from 

‘‘Interrogatories to parties’’ to 

‘‘Interrogatories’’. This change is 

proposed because the title was 

redundant.

Paragraph (b) would be amended to 

require the signature of a party on 

answers and the signature of a party or 

attorney on objections. This proposed 

amendment would bring the language 

more in line with language of the 

Federal Rules of Civil Procedure.

Hearings

1. Notice of Time and Place of Hearing

Section 904.250: Paragraph (a) would 

be amended to emphasize that the Judge 

is responsible for scheduling the hearing 

and giving proper notice to the parties. 

This proposed revision would also 

strike the words ‘‘except in 

extraordinary circumstances’’ in regards 

to having a hearing in less than 20 days 

after notice has been given, and add the 

words ‘‘unless the hearing is expedited 

as provided under § 904.250(c)’’.

Paragraph (b) would be amended to 

delete language in the first sentence that 

would appear in proposed § 904.250(a). 

This paragraph would also be revised to 

clarify that the Judge has authority to 

change the date, time, or place of the 

hearing.

Paragraph (c) would be amended to 

eliminate provisions pertaining to 

telephonic testimony as those 

provisions would now appear at 

§ 904.251(c).

New paragraph (d) would state the 

procedures for expedited hearings.

2. Evidence

Section 904.251: Paragraphs (a), (b) 

and (d) would be redesignated as subparagraphs (a)(1) through (a)(3).

New paragraph (b), ‘‘Objections and 

offers of proof’’, would be added to 

specify the procedures for stating 

objections to the admission or exclusion 

of evidence.

New paragraph (c), ‘‘Testimony’’, 

would be added to specify the general 

requirements for receiving testimony 

into evidence.

New paragraph (d) would be added to 

address procedures for processing 

exhibits and documents.

Former paragraphs (e) and (f) would 

be combined and incorporated in a new 

paragraph (i), covering issues and 

procedures pertaining to proof of foreign 

law.

Replacement paragraph (e)(1) would 

specify that photographs, videotapes, 

etc. may be substituted for physical 

evidence at the discretion of the Judge. 

Replacement paragraph (e)(2) would 

specify when physical evidence will be 

retained by NOAA after a hearing. 

Replacement paragraph (f) would 

govern admission of stipulations.

New paragraph (g) would specify 

procedures governing when and how 

the judge could take official notice of 

certain matters.

New paragraph (h) would establish 

procedures to be administered by the 

judge governing parties’ access to 

documents containing classified, 

confidential, or sensitive information.

3. Witnesses

Section 904.252: Paragraph (a), 

regarding the right to have personal 

counsel, would be redesignated as 

paragraph (b), with a new subheading 

but no substantive revisions.

Paragraph (b), concerning witness 

exclusion, would be redesignated as 

paragraph (c). The redesignated 

paragraph would allow an authorized 

officer to be considered a party for the 

purpose of applying the witness 

exclusion rule.

Paragraph (c) would be redesignated 

as paragraph (a) regarding witness fees 

and would be amended to clarify when 

and on what basis witness fees would be 

paid.

Paragraph (d) would be redesignated 

as paragraph (f). A new paragraph (d) 

‘‘Oath or affirmation’’ would be added 

to specify that witnesses must testify 

under oath.

Paragraph (e) ‘‘Failure or refusal to 

testify’’ would be added to describe the 

actions the Judge may take in the event 

that a witness fails or refuses to testify.

Redesignated paragraph (f) was 

amended to clarify that the use of a 

court-certified interpreter is not 

mandatory, but is preferable.

4. Closing of Record

Section 904.253: This section would 

be redesignated as § 904.254, 

‘‘Interlocutory review’’.

A new § 904.253 would be added, 

entitled ‘‘Closing of record’’. The new 

section would require that, once the 

Judge closes the record, the record may 

only be reopened for good cause shown 

and that any approved corrections to the 

transcript be reflected in the record.

5. Interlocutory Review

Section 904.254: Current § 904.254 

would be redesignated as § 904.255 ‘‘Ex 

parte Communications’’. Redesignated 

§ 904.254 would be titled ‘‘Interlocutory 

Review’’.

The redesignated § 904.254 would be 

amended to provide more specific 

procedures and expand the bases for 

granting interlocutory appeal. The party 

opposing interlocutory appeal would be 

granted 20 days to file its response, 

instead of 10 days.

6. Ex Parte Communications

Section 904.254: This section would 

be redesignated as § 904.255 and 

amended for clarity. New paragraph (e) 

would be added to allow the presiding 

judge to require any party who has 

made an ex parte communication to 

show cause why its claim should not be 

dismissed or otherwise adversely 

affected as a result of making the 

communication. New paragraph (f)

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60573

would be added to explain when the 

prohibitions of this rule shall apply.

Post-Hearing

1. Recordation of Hearing

Section 904.260: Paragraph (a) would 

be redesignated as paragraph (b) and 

would be amended to require that the 

Agency assume the cost of all hearing 

transcripts provided to both Agency and 

non-Agency parties. This proposed 

amendment would codify the Agency’s 

current practice of providing 

Respondents with hearing transcripts at 

the Agency’s expense.

Paragraph (b) would be redesignated 

as paragraph (c) with no substantive 

revisions.

New paragraph (a) would clarify that 

all hearings must be recorded.

2. Post-Hearing Briefs

Section 904.261: Paragraph (a) has 

been amended for clarity and 

reorganized into paragraphs (a) and (b).

Existing paragraph (b) would be 

redesignated as new paragraph (c), and 

amended to state that a party may 

request that proposed findings and 

conclusions, and reasons in support, be 

presented orally at the close of the 

hearing. This proposed revision would 

promote prompt decisions by the 

Judges, and the reduction of posthearing costs to the parties in 

administrative cases.

3. Documents, Copies and Exhibits

Section 904.262: This section would 

be deleted. However, many of its 

provisions would be retained in the 

proposed revision to § 904.251.

Decision

1. Record of Decision

Section 904.270(c) would be amended 

and redesignated as § 904.253, entitled 

‘‘Closing of record’’.

2. Initial Decision

Section 904.271: The title of this 

section would be changed from 

‘‘Decision’’ to ‘‘Initial Decision’’ to 

conform with the new definition of 

‘‘Initial Decision’’ in amended § 904.2.

Paragraph (a)(1) would be amended 

by striking a redundant and unnecessary 

reference to proposed findings or 

conclusions presented by the parties.

Paragraph (a)(2) would be amended to 

delete a requirement that the Initial 

Decision must contain a statement of the 

facts noticed or relied upon in the 

decision. The requirement is already 

covered under paragraph (a)(1), which 

requires that the decision include 

findings and conclusions ‘‘on all 

material issues of fact’’.

Paragraph (a)(3) would be amended to 

delete the catch-all requirement that the 

Initial Decision include ‘‘[s]uch other 

matters as the Judge considers 

appropriate’’ and substitute a new, 

specific requirement that the decision 

set forth the date upon which the 

decision will become effective.

New paragraph (a)(4) would be added 

to require that the Initial Decision 

include a statement of the further right 

of appeal.

Paragraph (d) would be reorganized 

and amended for clarity. In addition, 

this paragraph would be amended to 

remove reference to the discretionary 

review process currently described in 

§ 904.273, which would be deleted so 

that the Judge’s decision (after 

consideration of any petition for 

reconsideration) would become the 

agency’s final decision.

3. Petition for Reconsideration

Section 904.272(a): This paragraph 

would be amended to allow the Judge to 

specify in an initial decision that a party 

may not file a petition for 

reconsideration of an order or initial 

decision. The proposed revision 

substitutes ‘‘initial decision’’ for 

‘‘decision’’ throughout this section to 

comport with the new definition of 

‘‘initial decision’’ in amended § 904.2. 

Under the proposed revision, petitions 

must state with particularity the alleged 

errors and relief sought. The proposed 

revision would provide that the filing of 

a petition for reconsideration will 

operate as a stay of an order or initial 

decision, or its date of effectiveness, 

unless ordered by the Judge. This 

revision is intended to avoid petitions 

for reconsideration becoming moot and, 

where appropriate, avoid permit 

sanctions and/or civil penalties going 

into effect prior to the Judge’s ruling on 

a petition for reconsideration.

Section 904.272(d): This paragraph 

would be amended to remove reference 

to the discretionary review process 

currently described in § 904.273, which 

would be deleted so that the Judge’s 

decision (after consideration of any 

petition for reconsideration) would 

become the agency’s final decision.

4. Administrative Review of Decision

Section 904.273: This section would 

be deleted so that the Judge’s decision 

(after consideration of any petition for 

reconsideration) would become the 

agency’s final decision. Currently, this 

section provides an opportunity to 

petition the Administrator for review of 

the Judge’s decision. Review by the 

Administrator is discretionary and only 

available in four limited circumstances. 

See 15 CFR 904.273(b). Therefore, the 

Administrator must make the 

preliminary determination that the 

necessary circumstances exist before 

reaching any decision on the merits of 

the petition. During the five-year period 

ending September 30, 2003, the 

Administrator found that one petition 

for review met the regulatory criteria. 

When granted, discretionary review is 

conducted on the record, without any 

opportunity for oral argument. In 

contrast, appeals to Federal District 

Court can provide a Respondent with 

increased opportunities to bring and 

present their case. Respondents 

currently have the option of appealing 

a Judge’s decision directly to Federal 

District Court; that option was 

employed twice during this five-year 

period. Requiring all appeals to proceed 

directly to Federal District Court would 

bring cases to resolution in a more 

timely manner, while preserving the 

Respondent’s opportunity for appeal.

Subpart D—Permit Sanctions and 

Denials

General

1. Scope and Applicability

Section 904.300: Paragraph (a) would 

be amended to delete the list of reasons 

for suspension, revocation, 

modification, and denial of permits, 

because these reasons are specified in 

§ 904.301.

Paragraph (b) would be amended to 

eliminate reference to regulations that 

have been repealed.

2. Bases for Sanctions or Denials

Section 904.301: Paragraph (a) would 

be amended to clarify that additional 

bases for sanctioning or denying permits 

may be authorized by statute. 

Paragraphs (a)(2) and (a)(3) would 

receive minor editorial revisions. New 

paragraph (a)(4) would be added to 

clarify that failure to comply with the 

terms of a settlement agreement can 

constitute grounds for a permit sanction. 

This amendment is intended to promote 

compliance with settlement agreements.

Paragraph (b) would be amended for 

clarity, including by specifying that a 

permit sanction may apply to a 

successor in interest to the permit, as 

authorized by statute. The term ‘‘fishery 

conservation zone’’ would be amended 

to ‘‘Exclusive Economic Zone’’.

Paragraph (c) would be amended for 

clarity. The sanction of a vessel permit 

is not extinguished by sale or transfer of 

the vessel, or change in ownership of 

the vessel, and remains in effect until 

lifted by NOAA.

60574 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

3. Notice of Permit Sanction (NOPS)

Section 904.302: Paragraph (a) would 

be amended to delete reference to 

service of a NOPS by registered mail. A 

NOPS must be served personally or by 

certified mail, return receipt requested.

4. Notice of Intent to Deny Permit 

(NIDP)

Section 904.303: This section would 

be amended to describe the bases for 

denying permits.

5. Opportunity for Hearing

Section 904.304: Paragraphs (a) would 

be amended to provide the appropriate 

cross-reference to § 904.201, Hearings. 

The provisions of paragraph (c) have 

been incorporated into new § 904.305(a) 

and (b) and § 904.201(a). Paragraph (d) 

would be deleted as it was determined 

to be unnecessary.

Sanctions for Noncompliance

The heading would be amended to 

accurately describe the section.

6. Nature of Sanctions

Section 904.310: Paragraph (a) would 

be amended to clarify that NOAA may 

also ‘‘modify, or deny’’ a permit. 

Paragraph (a)(1) would be revised to 

provide that permits may be suspended 

for noncompliance with any term of a 

settlement agreement, including failure 

to pay a civil penalty, until the 

respondent comes into compliance.

Paragraph (b) would be revised to add 

‘‘Stevens’’ in order to correctly identify 

the Magnuson-Stevens Fishery 

Conservation and Management Act.

7. Compliance

Section 904.311: Paragraph (b) would 

be amended to delete unnecessary 

language.

Sanctions for Violations

8. Nature of Sanctions

Section 904.320: Paragraph (c) would 

be revised to add ‘‘Stevens’’ in the 

second sentence in order to correctly 

identify the Magnuson-Stevens Fishery 

Conservation and Management Act.

9. Reinstatement of Permit

Section 904.321: Paragraph (b)would 

be revised to delete unnecessary 

language.

Subpart E—Written Warnings

1. Procedures

Section 904.402: Paragraph (e) of this 

section would be eliminated, to conform 

to current agency practice. The 

requirement that enforcement officers 

note written warnings for certain 

violations on the permits of vessels used 

in those violations was found to be 

impractical. Service of a written 

warning upon a violator, in accordance 

with the regulations set out in subpart 

A, of these regulations is the most 

commonly used procedure and best 

ensures compliance with due process 

interests.

2. Review and Appeal of a Written 

Warning

Section 904.403: This section would 

be revised to delete the current 

provisions of § 904.403. Currently, the 

provisions of § 904.403(a) provide that 

persons who receive written warnings 

from enforcement agents may seek 

review of the written warning within 90 

days by the appropriate NOAA Regional 

Attorney. Under current § 904.403(b), if 

a person receives a written warning 

from a Regional Attorney or staff 

attorney, or receives a decision from a 

Regional Attorney affirming a written 

warning, an appeal of the written 

warning or decision may be filed with 

the NOAA Assistant General Counsel 

for Enforcement and Litigation within 

30 days of receipt of the written warning 

or Regional Attorney’s decision. The 

current provisions of § 904.403 provide 

that appeals of written warnings issued 

by enforcement agents must be in 

writing and must explain or deny the 

violation described in the warning.

In the proposed revision, the term 

‘‘enforcement agent’’ would be replaced 

by ‘‘authorized officer’’, a term defined 

at amended § 904.2, to accurately 

describe all persons, other than Agency 

counsel, who may issue written 

warnings. The proposed revisions 

provide that persons receiving written 

warnings issued by authorized officers 

may seek review by Agency counsel and 

must file the request for review within 

60 days of receipt of the written warning 

with the Assistant General Counsel for 

Enforcement and Litigation. The 

proposed revisions also provide that 

written warnings issued by Agency 

counsel, and determinations from 

Agency counsel affirming written 

warnings issued by an authorized 

officer, must be filed with the NOAA 

Deputy General Counsel within 60 days 

of receiving the written warning or 

affirmation of the written warning. The 

addresses for the Assistant General 

Counsel and the Deputy General 

Counsel are provided in the proposed 

revision. The proposed revisions specify 

that the requirement for filing a written 

explanation or denial when appealing or 

requesting review of a written warning 

applies both to written warnings issued 

by authorized officers and those issued 

by Agency counsel. For purposes of 

accuracy, the proposed revisions would 

allow the reviewing or appellate 

authority to ‘‘vacate’’, rather than 

‘‘expunge’’, a written warning.

The proposed process for appealing 

written warnings reflects the 

reorganization of the management 

structure of NOAA’s Office of the 

General Counsel. Prior to the 

reorganization, the staff attorneys in 

NOAA’s regional offices who handled 

enforcement cases were supervised by 

Regional Attorneys. Currently, the 

Assistant General Counsel for 

Enforcement and Litigation (AGCEL) 

supervises all enforcement attorneys 

nationwide. The AGCEL is supervised 

by the NOAA Deputy General Counsel. 

The proposed revision would also result 

in a more uniform process for written 

warnings. Under the proposed rule, the 

period of time for appealing or seeking 

review of written warnings would be 

changed from 90 days for a written 

warning issued by an authorized officer, 

and 30 days from a written warning 

issued by Agency counsel, to a uniform 

60–day period.

Subpart F—Seizure and Forfeiture 

Procedures

1. Purpose and Scope

Section 904.500: Paragraph (a) would 

be amended to add ‘‘abandonment’’, 

‘‘remission of forfeiture’’, and ‘‘return’’

to the list of procedures governed by 

this provision. These changes would be 

made to more accurately reflect the 

activities governed by this section.

2. Notice of Seizure

Section 904.501: This section would 

be amended to comport with the new 

notice requirements dictated by the 

Civil Asset Forfeiture Reform Act of 

2000 (Public Law 106–185 enacted 

August 23, 2000; 18 U.S.C. 981 et seq.). 

The proposed new language reflects the 

CAFRA requirement that a federal 

government agency seizing property 

must notify, within 60 days from the 

date of the seizure, all parties who may 

have an interest in the seized property 

of their right to file a claim to that 

property. Such notice shall be by 

registered or certified mail. In cases 

where the property is seized by a state 

or local law enforcement agency, notice 

is required to be given in the above 

manner within 90 days from the date of 

the seizure. The notice must describe 

the seized property and state the time, 

place and reason for the seizure, 

including the provisions of law alleged 

to have been violated. The notice must 

inform each interested party of four 

options: a) file a claim to the seized 

property; b) consent to delay the timely 

institution of judicial or administrative

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60575

forfeiture proceedings; c) apply for 

remission of the forfeiture; or d) 

voluntarily forfeit the property by 

abandonment. The notice may be 

combined with a notice of the sale of 

perishable fish issued under § 904.505. 

If a claim is filed, the case will be 

referred promptly to the U.S. Attorney 

for institution of judicial proceedings. 

The U.S. Attorney will then have 90 

days from the date the claim is filed to 

institute forfeiture proceedings.

3. Bonded Release of Seized Property

Section 904.502: This section would 

incorporate provisions currently found 

in § 904.506 and eliminate crossreferences to § 904.506 since they would 

now be consolidated herein. The 

proposed revision would consolidate all 

of the provisions relating to the release 

of seized property. The proposed 

revision would also clarify that not all 

applicable statutes authorize bonded 

release of seized property.

4. Administrative Forfeiture 

Proceedings

Section 904.504: In accordance with 

16 U.S.C. 1607(a)(1), this section would 

be amended to change the threshold 

amount for administrative forfeitures 

from $100,000 to $500,000.

Paragraph (b) would be amended to 

comport with the Civil Asset Forfeiture 

Reform Act of 2000 (Public Law 106–

185 enacted August 23, 2000; 18 U.S.C. 

981 et seq.) and for clarity. Paragraph 

(b)(3) would be amended to eliminate 

the requirement of providing a cost 

bond. Paragraph (b)(2) would be 

amended to specify that the notice of 

proposed forfeiture will include the 

provisions of law allegedly violated. 

Provisions currently found in § 904.506 

would be consolidated into this section 

at (b)(4) to the procedures for a 

declaration of forfeiture, including the 

notice required for a declaration of 

forfeiture. The new language would 

more closely comport with language 

used in the regulations promulgated by 

the U.S. Fish and Wildlife Service.

5. Summary Sale

Section 904.505: Paragraph (d) would 

be amended to correct a typographical 

error that existed in the regulations and 

eliminate cross-references to other 

sections that have been modified or 

deleted.

6. Remission of Forfeiture and 

Restoration of Proceeds of Sale

The heading of this section would be 

amended to more accurately reflect the 

contents of this section.

Section 904.506: This section would 

be amended to incorporate the 

procedures of current § 904.507. The 

language in current §§ 904.506 and 

904.507, pertaining to the release of 

seized property, would be moved to 

§ 904.502 because release of seized 

property is addressed in that section. 

Current § 904.507 would be 

incorporated into § 904.506 to avoid 

duplication of common provisions. The 

proposed revisions would include 

amendments to clarify the time period 

and format requirements for petitions 

for relief from forfeiture, and the 

addition of the address where petitions 

for relief from forfeiture are to be filed.

7. Petition for Restoration of Proceeds

Section 904.507: This section would 

be incorporated into § 904.506 as 

described in the preceding paragraph.

8. Recovery of Certain Storage Costs

Section 904.508: This section would 

be redesignated as § 904.507. This 

section would be revised to add 

‘‘Stevens’’ in the second sentence in 

order to correctly identify the 

Magnuson-Stevens Fishery 

Conservation and Management Act.

9. Abandonment 

Section 904.509: The heading would 

be changed from ‘‘Abandonment’’ to 

‘‘Voluntary forfeiture by abandonment’’

and this section would be redesignated 

as § 904.508. The section would also be 

amended to more clearly explain the 

means by which property may be 

abandoned. This section would add that 

property will be deemed abandoned 

when the owner fails to respond within 

90 days of service of any certified or 

registered notice regarding a return of 

seized property.

10. Disposal of Forfeited or Abandoned 

Items

Section 904.510: The heading would 

be changed from ‘‘Disposal of forfeited 

or abandoned items’’ to ‘‘Disposal of 

forfeited property’’ and this section 

would be redesignated as § 904.509. 

This section would also be amended for 

accuracy to substitute the word 

‘‘property’’ in place of ‘‘items’’ wherever 

that term appears.

Paragraphs (b), (f), and (g) addressing 

disposal, sale and destruction of 

property, would be amended to more 

explicitly specify the manner in which 

those activities may be carried out. 

These means of disposal are authorized 

by the Fish and Wildlife Improvement 

Act, 16 U.S.C. 742l(c) and comply with 

General Services Administration (GSA) 

regulations relating to the handling of 

government property.

11. Return of Seized Property

Section 904.510: This new section 

would be added in order to address the 

issue of returning seized property. In 

those instances where the Agency 

decides to return seized property, 

paragraph (b) describes the proper 

notice and procedures for release of the 

property.

III. Invitation of Public Comment

NOAA invites comments on all 

aspects of the revisions proposed to part 

904. For the convenience of the reader 

only, NOAA is publishing, in its 

entirety, part 904 as it would be 

amended. NOAA is not proposing to 

readopt those portions of part 904 

which would remain unchanged. This 

Notice of Proposed Rulemaking is 

limited to those changes from the 

existing regulations described in this 

Notice.

Information on the time period for 

submission of comments and directions 

for their submission may be found in 

the DATES and ADDRESSES section of this 

document.

IV. Administrative Requirements

A. The Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 

5 U.S.C. 601–612, whenever an agency 

is required to publish a general notice 

of rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

impact of the rule on small entities, i.e., 

small business, small organizations, and 

small governmental jurisdictions. The 

analysis is not required, however, where 

the Administrator certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities.

This regulation will impose no 

significant costs on any small entities, 

because it creates no new regulatory 

requirements, but instead simplifies 

existing procedural rules. The overall 

economic impact on small entities is 

therefore believed to be nominal, if any 

at all. Accordingly, I hereby certify that 

this proposed regulation will not have a 

significant impact on a substantial 

number of small entities.

B. Executive Order 12866

Under Executive Order 12866, (58 FR 

51,735 (October 4, 1993)) the Agency 

must determine whether the regulatory 

action is ‘‘significant’’ and therefore 

subject to OMB review and the 

requirements of the Executive Order. 

The Order defines ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may:

60576 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local or tribal governments or 

communities;

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency;

(3) Materially alter the budgetary 

impact of entitlements, grants, user fees, 

or loan programs or the rights and 

obligations of recipients thereof; or

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order.

It has been determined that this rule 

is not a ‘‘significant regulatory action’’

under the terms of Executive Order 

12866 and is therefore not subject to 

OMB review.

C. Paperwork Reduction Act

This proposed rule contains no 

information collection activities and, 

therefore, no information collection 

request (ICR) will be submitted to the 

Office of Management and Budget 

(OMB) for review in compliance with 

the Paperwork Reduction Act, 44 U.S.C. 

3501, et seq.

List of Subjects in 15 CFR Part 904

Administrative practice and 

procedure, fisheries, fishing, fishing 

vessels, penalties, seizures and 

forfeitures.

Dated: September 29, 2004.

James R. Walpole,

General Counsel, National Oceanic and 

Atmospheric Administration.

For the reasons set forth in the 

preamble, the NOAA Office of General 

Counsel for Enforcement and Litigation 

proposes to revise 15 CFR part 904 as 

follows:

PART 904—CIVIL PROCEDURES

Subpart A—General

Sec.

904.1 Purpose and scope.

904.2 Definitions and acronyms.

904.3 Filing and service of notices, 

documents and other papers.

904.4 Computation of time periods.

904.5 Appearances.

Subpart B—Civil Penalties

904.100 General.

904.101 Notice of violation and assessment 

(NOVA).

904.102 Procedures upon receipt of a 

NOVA.

904.103 Hearing.

904.104 Final administrative decision.

904.105 Payment of final assessment.

904.106 Compromise of civil penalty.

904.107 Joint and several respondents.

904.108 Factors considered in assessing 

penalties.

Subpart C—Hearing and Appeal 

Procedures

GENERAL

904.200 Scope and applicability.

904.201 Hearing requests and case 

docketing.

904.202 Filing of documents.

904.203 [Reserved]

904.204 Duties and powers of Judge.

904.205 Disqualification of Judge.

904.206 Pleadings, motions, and service.

904.207 Amendment of pleading or record.

904.208 Extensions of time.

904.209 Expedited proceedings.

904.210 Summary decision.

904.211 Failure to appear.

904.212 Failure to prosecute or defend.

904.213 Settlements.

904.214 Stipulations.

904.215 Consolidation.

904.216 Prehearing conferences.

DISCOVERY

904.240 Discovery generally.

904.241 Depositions.

904.242 Interrogatories.

904.243 Admissions.

904.244 Production of documents and 

inspection.

904.245 Subpoenas.

HEARINGS

904.250 Notice of time and place of hearing.

904.251 Evidence.

904.252 Witnesses.

904.253 Closing of record.

904.254 Interlocutory review.

904.255 Ex parte communications.

POST-HEARING

904.260 Recordation of hearing.

904.261 Post-hearing briefs.

DECISION

904.270 Record of decision.

904.271 Initial decision.

904.272 Petition for reconsideration.

Subpart D—Permit Sanctions and 

Denials

GENERAL

904.300 Scope and applicability.

904.301 Bases for sanctions or denials.

904.302 Notice of permit sanction (NOPS).

904.303 Notice of intent to deny permit 

(NIDP).

904.304 Opportunity for hearing.

904.305 Final administrative decision.

SANCTIONS FOR NONCOMPLIANCE

904.310 Nature of sanctions.

904.311 Compliance.

SANCTIONS FOR VIOLATIONS

904.320 Nature of sanctions.

904.321 Reinstatement of permit.

904.322 Interim Action.

Subpart E—Written Warnings

904.400 Purpose and scope.

904.401 Written warning as a prior offense.

904.402 Procedures.

904.403 Review and appeal of a written 

warning.

Subpart F—Seizure and Forfeiture 

Procedures

904.500 Purpose and scope.

904.501 Notice of seizure.

904.502 Bonded release of seized property.

904.503 Appraisement.

904.504 Administrative forfeiture 

proceedings.

904.505 Summary sale.

904.506 Remission of forfeiture and 

restoration of proceeds of sale.

904.507 Recovery of certain storage costs.

904.508 Voluntary forfeiture by 

abandonment.

904.509 Disposal of forfeited property.

904.510 Return of seized property.

Authority: 16 U.S.C. 1801–1882; 16 U.S.C. 

1531–1543; 16 U.S.C. 1361–1407; 16 U.S.C. 

3371–3378; 16 U.S.C. 1431–1439; 16 U.S.C. 

773–773k; 16 U.S.C. 951–961; 16 U.S.C. 

5001–5012; 16 U.S.C. 3631–3644; 42 U.S.C. 

9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 

971–971k; 16 U.S.C. 781 et seq.; 16 U.S.C. 

2401–2413; 16 U.S.C. 2431–2444; 16 U.S.C. 

972–972h; 16 U.S.C. 916–916l; 16 U.S.C. 

1151–1175; 16 U.S.C. 3601–3608; 16 U.S.C. 

1851 note; 15 U.S.C. 5601 et seq.; Pub. L. 

105–277; 16 U.S.C. 1822 note, Section 801(f); 

16 U.S.C. 2465(a); 16 U.S.C. 5103(b); 16 

U.S.C. 1385 et seq.; 16 U.S.C. 1822 note 

(Section 4006); 16 U.S.C. 4001–4017; 22 

U.S.C. 1980(g); 16 U.S.C. 5506(a); 16 U.S.C. 

5601–5612; 16 U.S.C. 1822; 16 U.S.C. 973–

973(r); 15 U.S.C. 330–330(e).

Subpart A—General

§ 904.1 Purpose and scope.

(a) This part sets forth the procedures 

governing NOAA’s administrative 

proceedings for assessment of civil 

penalties, suspension, revocation, 

modification, or denial of permits, 

issuance and use of written warnings, 

and release or forfeiture of seized 

property.

(b) This subpart defines terms 

appearing in the part and sets forth rules 

for the filing and service of documents 

in administrative proceedings covered 

by this part.

(c) The following statutes authorize 

NOAA to assess civil penalties, impose 

permit sanctions, issue written 

warnings, and/or seize and forfeit 

property in response to violations of 

those statutes:

(1) American Fisheries Act of 1998, 

Pub. Law 105–277;

(2) Anadromous Fish Products Act, 16 

U.S.C. 1822 note, Section 801(f);

(3) Antarctic Conservation Act of 

1978, 16 U.S.C. 2401–2413;

(4) Antarctic Marine Living Resources 

Convention Act of 1984, 16 U.S.C. 

2431–2444;

(5) Antarctic Protection Act of 1990, 

16 U.S.C. 2465(a);

(6) Atlantic Coastal Fisheries 

Cooperative Management Act, 16 U.S.C. 

5103(b);

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60577

(7) Atlantic Salmon Convention Act of 

1982, 16 U.S.C. 3601–3608;

(8) Atlantic Striped Bass Conservation 

Act, 16 U.S.C. 1851 note;

(9) Atlantic Tunas Convention Act of 

1975, 16 U.S.C. 971–971k;

(10) Deep Seabed Hard Mineral 

Resources Act, 30 U.S.C. 1401 et seq.;

(11) Dolphin Protection Consumer 

Information Act, 16 U.S.C. 1385 et seq.;

(12) Driftnet Impact Monitoring, 

Assessment, and Control Act, 16 U.S.C. 

1822 note (Section 4006);

(13) Eastern Pacific Tuna Licensing 

Act of 1984, 16 U.S.C. 972–972h;

(14) Endangered Species Act of 1973, 

16 U.S.C. 1531–1543;

(15) Fish and Seafood Promotion Act 

of 1986, 16 U.S.C. 4001- 4017;

(16) Fisherman’s Protective Act of 

1967, 22 U.S.C. 1980(g);

(17) Fur Seal Act Amendments of 

1983, 16 U.S.C. 1151–1175;

(18) High Seas Fishing Compliance 

Act, 16 U.S.C. 5506(a);

(19) Lacey Act Amendments of 1981, 

16 U.S.C. 3371–3378;

(20) Land Remote-Sensing Policy Act 

of 1992, 15 U.S.C. 5601 et seq.;

(21) Magnuson-Stevens Fishery 

Conservation and Management Act, 16 

U.S.C. 1801–1882;

(22) Marine Mammal Protection Act 

of 1972, 16 U.S.C. 1361–1407;

(23) National Marine Sanctuaries Act, 

16 U.S.C. 1431–1439;

(24) North Pacific Anadromous Stocks 

Convention Act of 1992, 16 U.S.C. 

5001–5012;

(25) Northern Pacific Halibut Act of 

1982, 16 U.S.C. 773–773k;

(26) Northwest Atlantic Fisheries 

Convention Act of 1995, 16 U.S.C. 

5601–5612;

(27) Ocean Thermal Energy 

Conversion Act of 1980, 42 U.S.C. 9101 

et seq.;

(28) Pacific Salmon Treaty Act of 

1985, 16 U.S.C. 3631–3644;

(29) Shark Finning Prohibition Act, 16 

U.S.C. 1822;

(30) South Pacific Tuna Act of 1988, 

16 U.S.C. 973–973(r);

(31) Sponge Act, 16 U.S.C. 781 et seq.;

(32) Tuna Conventions Act of 1950, 

16 U.S.C. 951–961;

(33) Weather Modification Reporting 

Act, 15 U.S.C. 330 - 330e; and

(34) Whaling Convention Act of 1949, 

16 U.S.C. 916–916l.

(d) The procedures set forth in this 

part are intended to apply to 

administrative proceedings under these 

and any other statutes administered by 

NOAA.

§ 904.2 Definitions and acronyms.

Unless the context otherwise requires, 

or as otherwise noted, terms in this part 

have the meanings prescribed in the 

applicable statute or regulation. In 

addition, the following definitions 

apply:

Administrator means the 

Administrator of NOAA or a designee.

Agency means the National Oceanic 

and Atmospheric Administration 

(NOAA).

ALJ Docketing Center means the 

Docketing Center of the Office of 

Administrative Law Judges.

Applicable statute means a statute 

cited in § 904.1(c), and any regulations 

issued by NOAA to implement it.

Applicant means any person who 

applies or is expected to apply for a 

permit.

Authorized officer means:

(1) Any commissioned, warrant, or 

petty officer of the USCG;

(2) Any special agent or fishery 

enforcement officer of NMFS;

(3) Any officer designated by the head 

of any Federal or State agency that has 

entered into an agreement with the 

Secretary to enforce the provisions of 

any statute administered by NOAA; or

(4) Any USCG personnel 

accompanying and acting under the 

direction of any person described in 

paragraph (1) of this definition.

Citation means a written warning (see 

section 311(c) of the Magnuson-Stevens 

Fishery Conservation and Management 

Act, 16 U.S.C. 1861(c), and section 11(c) 

of the Northern Pacific Halibut Act of 

1982, 16 U.S.C. 773i(c)).

Decision means an initial or final 

administrative decision of the Judge.

Ex parte communication means an 

oral or written communication not on 

the public record with respect to which 

reasonable prior notice to all parties is 

not given, but does not include inquiries 

regarding procedures, scheduling, and 

status.

Final administrative decision means 

an order or decision of NOAA assessing 

a civil penalty or permit sanction which 

is not subject to further Agency review 

under this part, and which is subject to 

collection proceedings or judicial 

review in an appropriate Federal district 

court as authorized by law.

Forfeiture includes, but is not limited 

to, surrender or relinquishment of any 

claim to an item by written agreement, 

or otherwise; or extinguishment of any 

claim to, and transfer of title to an item 

to the Government by court order or by 

order of the Administrator under a 

statute.

Initial decision means a decision of 

the Judge which, under applicable 

statute and regulation, is subject to 

review by the Administrator, but which 

becomes the final administrative 

decision in the absence of such review.

Judge means Administrative Law 

Judge.

NIDP means Notice of Intent to Deny 

Permit.

NMFS means the National Marine 

Fisheries Service.

NOAA (see Agency) means either the 

Administrator or a designee acting on 

behalf of the Administrator.

NOPS means Notice of Permit 

Sanction.

NOVA means Notice of Violation and 

Assessment of civil monetary penalty.

Party means the respondent and the 

Agency as represented by counsel; if 

they enter an appearance, a joint and 

several respondent, vessel owner, or 

permit holder; and any other person 

allowed to participate under 

§ 904.204(b).

Permit means any license, permit, 

certificate, or other approval issued by 

NOAA under an applicable statute.

Permit holder means the holder of a 

permit or any agent or employee of the 

holder, and includes the owner and 

operator of a vessel for which the permit 

was issued.

PPIP means Preliminary Position on 

Issues and Procedures.

Sanction means suspension, 

revocation, or modification of a permit 

(see § 904.320).

Settlement agreement means any 

agreement resolving all or part of an 

administrative or judicial action. The 

terms of such an agreement may 

include, but are not limited to, payment 

of a civil penalty, and/or imposition of 

a permit sanction.

USCG means the United States Coast 

Guard.

Vessel owner means the owner of any 

vessel that may be liable in rem for any 

civil penalty, or whose permit may be 

subject to sanction in proceedings under 

this part.

Written warning means a notice in 

writing to a person that a violation of a 

minor or technical nature has been 

documented against the person or 

against the vessel which is owned or 

operated by the person.

§ 904.3 Filing and service of notices, 

documents and other papers.

(a) Service of a NOVA (§ 904.101), 

NOPS (§ 904.302), or NIDP (§ 904.303) 

may be made by certified mail (return 

receipt requested), facsimile, electronic 

transmission or third party commercial 

carrier to an addressee’s last known 

address or by personal delivery. Service 

of a notice under this subpart will be 

considered effective upon receipt.

(b) Service of documents and papers 

other than notices, as described in 

paragraph (a) of this section, may be 

made by first class mail (postage

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prepaid), facsimile, electronic 

transmission, or third party commercial 

carrier, to an addressee’s last known 

address or by personal delivery. Service 

of documents and papers will be 

considered effective upon mailing, 

facsimile transmission, delivery to third 

party commercial carrier, electronic 

transmission or upon personal delivery.

(c) Whenever this part requires 

service of a NOVA, NOPS, NIDP, 

document or other paper, such service 

may effectively be made on the agent for 

service of process, on the attorney for 

the person to be served, or other 

representative. Refusal by the person to 

be served (including an agent, attorney 

or representative) of service of a 

document or other paper will be 

considered effective service of the 

document or other paper as of the date 

of such refusal. In cases where certified 

notification is returned unclaimed, 

service will be considered effective if 

the U.S. Postal Service provides an 

affidavit stating that the party was 

receiving mail at the same address 

during the period when certified service 

was attempted.

(d) Any documents or pleadings filed 

or served must be signed:

(1) By the person or persons filing the 

same,

(2) By an officer thereof if a 

corporation,

(3) By an officer or authorized 

employee if a government 

instrumentality, or

(4) By an attorney or other person 

having authority to sign.

§ 904.4 Computation of time periods.

(a) Computation. For a NOVA, NOPS 

or NIDP, the thirty day response period 

begins to run on the date the Notice is 

received. All other time periods begin to 

run on the day following the service 

date of the document, paper, or event 

that begins the time period. Saturdays, 

Sundays, and Federal holidays will be 

included in computing such time, 

except that when such time expires on 

a Saturday, Sunday, or Federal holiday, 

in which event such period will be 

extended to include the next business 

day. This method of computing time 

periods also applies to any act, such as 

paying a civil penalty, required by this 

part to take place within a specified 

period of time. When the period of time 

prescribed or allowed is less than 11 

days, intermediate Saturdays, Sundays, 

and legal holidays will be excluded in 

the computation.

(b) Additional time after service by 

mail. Whenever a person has the right 

or is required to do some act or take 

some proceedings within a prescribed 

period after the service of a Notice, 

document or paper upon the person and 

the document or paper is served upon 

the party by mail, 3 calendar days shall 

be added to the prescribed period.

§ 904.5 Appearances.

(a) A party may appear in person or 

by or with counsel or other 

representative.

(b) Whenever an attorney or other 

representative contacts the Agency on 

behalf of another person with regard to 

any matter that has resulted in, or may 

result in, a written warning, a Notice of 

Violation and Assessment and/or a 

Notice of Permit Sanction, or a forfeiture 

proceeding, that attorney or other 

representative shall file a notice of 

appearance with the Agency. Such 

notice shall indicate the name of the 

person on whose behalf the appearance 

is made.

(c) Each attorney or other 

representative who represents a party in 

any civil administrative hearing shall 

file a written notice of appearance with 

the Judge. Such notice shall indicate the 

name of the case, the docket number, 

and the party on whose behalf the 

appearance is made.

Subpart B—Civil Penalties

§ 904.100 General.

This subpart sets forth the procedures 

governing NOAA administrative 

proceedings for the assessment of civil 

penalties under the statutes cited in 

§ 904.1(c).

§ 904.101 Notice of violation and 

assessment (NOVA).

(a) A NOVA will be issued by NOAA 

and served upon the person alleged to 

be subject to a civil penalty (the 

respondent). The NOVA will contain:

(1) A concise statement of the facts 

believed to show a violation;

(2) A specific reference to the 

provisions of the Act, regulation, 

license, permit, agreement, or order 

allegedly violated;

(3) The findings and conclusions 

upon which NOAA bases the 

assessment;

(4) The amount of the civil penalty 

assessed; and

(5) Information concerning the 

respondent’s rights upon receipt of the 

NOVA, and will be accompanied by a 

copy of the regulations in this part 

governing the proceedings.

(b) In assessing a civil penalty, NOAA 

will take into account information 

available to the Agency concerning any 

factor to be considered under the 

applicable statute, and any other 

information that justice or the purposes 

of the statute require.

(c) The NOVA may also contain a 

proposal for compromise or settlement 

of the case. NOAA may also attach 

documents that illuminate the facts 

believed to show a violation.

§ 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 

§ 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 § 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.

§ 904.103 Hearing.

(a) Any hearing request under 

§ 904.102(a)(3) is governed by the 

hearing and review procedures set forth 

in subpart C of this part.

(b) [Reserved]

§ 904.104 Final administrative decision.

(a) If no request for hearing is timely 

filed as provided in § 904.201(a), the 

NOVA becomes effective as the final

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administrative decision and order of 

NOAA on the 30th day after service of 

the NOVA or on the last day of any 

delay period granted.

(b) If a request for hearing is timely 

filed in accordance with § 904.201(a), 

the date of the final administrative 

decision is as provided in subpart C of 

this part.

§ 904.105 Payment of final assessment.

(a) Respondent must make full 

payment of the civil penalty assessed 

within 30 days of the date upon which 

the assessment becomes effective as the 

final administrative decision and order 

of NOAA under § 904.104 or subpart C 

of this part. Payment must be made by 

mailing or delivering to NOAA at the 

address specified in the NOVA a check 

or money order made payable in United 

States currency in the amount of the 

assessment to the ‘‘Department of 

Commerce/NOAA,’’ or as otherwise 

directed.

(b) Upon any failure to pay the civil 

penalty assessed, NOAA may request 

the Justice Department to recover the 

amount assessed in any appropriate 

district court of the United States, or 

may act under § 904.106, or may 

commence any other lawful action.

§ 904.106 Compromise of civil penalty.

(a) NOAA, in its sole discretion, may 

compromise, modify, remit, or mitigate, 

with or without conditions, any civil 

penalty imposed, or which is subject to 

imposition, except as stated in 

paragraph (d) of this section.

(b) The compromise authority of 

NOAA under this section may be 

exercised either upon the initiative of 

NOAA or in response to a request by the 

respondent or other interested person. 

Any such request should be sent to 

Agency counsel at the address specified 

in the NOVA.

(c) Neither the existence of the 

compromise authority of NOAA under 

this section nor NOAA’s exercise 

thereof at any time changes the date 

upon which an assessment is final or 

payable.

(d) NOAA will not compromise, 

modify, or remit a civil penalty 

imposed, or subject to imposition, under 

the Deep Seabed Hard Mineral 

Resources Act while an action to review 

or recover the penalty is pending in a 

court of the United States.

§ 904.107 Joint and several respondents.

(a) A NOVA may assess a civil penalty 

against two or more respondents jointly 

and severally. Each joint and several 

respondent is liable for the entire 

penalty, but no more than the amount 

finally assessed may be collected from 

the respondents.

(b) A hearing request by one joint and 

several respondent is not considered a 

request by the other joint and several 

respondents. If no request for hearing is 

timely filed by a joint and several 

respondent as provided in § 904.201(a), 

the NOVA becomes effective as the final 

administrative decision and order of 

NOAA against the non-requesting joint 

and several respondent on the 30th day 

after service of the NOVA or on the last 

day of any delay period granted.

(c) A settlement with one joint and 

several respondent shall not affect the 

liability of other joint and several 

respondent(s) for any remaining 

penalties and sanctions.

§ 904.108 Factors considered in assessing 

penalties.

(a) Factors to be taken into account in 

assessing a penalty, depending upon the 

statute in question, may include the 

nature, circumstances, extent, and 

gravity of the alleged violation; the 

respondent’s degree of culpability, any 

history of prior offenses, and ability to 

pay; and such other matters as justice 

may require.

(b) NOAA may, in consideration of a 

respondent’s ability to pay, increase or 

decrease a penalty from an amount that 

would otherwise be warranted by the 

other relevant factors. A penalty may be 

increased if a respondent’s ability to pay 

is such that a higher penalty is 

necessary to deter future violations, or 

for commercial violators, to make a 

penalty more than a cost of doing 

business. A penalty may be decreased if 

the respondent establishes that he or she 

is unable to pay an otherwise 

appropriate penalty amount.

(c) Except as provided in paragraph 

(g) of this section, if a respondent asserts 

that a penalty should be reduced 

because of an inability to pay, the 

respondent has the burden of proving 

such inability by providing verifiable, 

complete, and accurate financial 

information to NOAA. NOAA will not 

consider a respondent’s inability to pay 

unless the respondent, upon request, 

submits such financial information as 

Agency counsel determines is adequate 

to evaluate the respondent’s financial 

condition. Depending on the 

circumstances of the case, Agency 

counsel may require the respondent to 

complete a financial information request 

form, answer written interrogatories, or 

submit independent verification of his 

or her financial information. If the 

respondent does not submit the 

requested financial information, he or 

she will be presumed to have the ability 

to pay the penalty.

(d) Financial information relevant to a 

respondent’s ability to pay includes, but 

is not limited to, the value of 

respondent’s cash and liquid assets, 

ability to borrow, net worth, liabilities, 

income, prior and anticipated profits, 

expected cash flow, and the 

respondent’s ability to pay in 

installments over time. A respondent 

will be considered able to pay a penalty 

even if he or she must take such actions 

as pay in installments over time, borrow 

money, liquidate assets, or reorganize 

his or her business. NOAA’s 

consideration of a respondent’s ability 

to pay does not preclude an assessment 

of a penalty in an amount that would 

cause or contribute to the bankruptcy or 

other discontinuation of the 

respondent’s business.

(e) Financial information regarding 

respondent’s ability to pay should be 

submitted to Agency counsel within 

sixty (60) days of the receipt of the 

NOVA. If a respondent has requested a 

hearing on the offense alleged in the 

NOVA and wants his or her inability to 

pay considered in the initial decision of 

the Judge, verifiable financial 

information must be submitted to 

Agency counsel at least thirty (30) days 

in advance of the hearing. If a 

respondent submits financial 

information at the hearing and has not 

submitted such information to Agency 

counsel at least 30 days in advance of 

the hearing, Agency counsel will have 

30 days after the hearing in which to 

respond to the submission. In deciding 

whether to submit such information, the 

respondent should keep in mind that 

the Judge may assess de novo a civil 

penalty either greater or smaller than 

that assessed in the NOVA.

(f) Issues regarding ability to pay will 

not be considered in an administrative 

review of an initial decision if the 

financial information was not 

previously presented by the respondent 

to the Judge at the hearing.

(g) Whenever a statute requires NOAA 

to take into consideration a respondent’s 

ability to pay when assessing a penalty, 

NOAA will take into consideration 

information available to it concerning a 

respondent’s ability to pay. In such case, 

the NOVA will advise, in accordance 

with § 904.102, that respondent may 

seek to have the penalty amount 

modified by Agency counsel on the 

basis that he or she does not have the 

ability to pay the penalty assessed. A 

request to have the penalty amount 

modified on this basis must be made in 

accordance with § 904.102 and should 

be accompanied by supporting financial 

information. Agency counsel may 

request the respondent to submit such 

additional verifiable financial 

information as Agency counsel 

determines is necessary to evaluate the

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respondent’s financial condition (such 

as by responding to a financial 

information request form or written 

interrogatories, or by authorizing 

independent verification of 

respondent’s financial condition). A 

respondent’s failure to provide the 

requested information may serve as the 

basis for inferring that such information 

would not have supported the 

respondent’s assertion of inability to 

pay the penalty assessed in the NOVA.

(h) Whenever a statute requires 

NOAA to take into consideration a 

respondent’s ability to pay when 

assessing a penalty and the respondent 

has requested a hearing on the offense 

alleged in the NOVA, the Agency must 

submit information on the respondent’s 

financial condition so that the Judge 

may consider that information, along 

with any other factors required to be 

considered, in the Judge’s de novo

assessment of a penalty. Agency counsel 

may obtain such financial information 

through discovery procedures under 

§ 904.240, or otherwise. A respondent’s 

refusal or failure to respond to such 

discovery requests may serve as the 

basis for inferring that such information 

would have been adverse to any claim 

by respondent of inability to pay the 

assessed penalty, or result in respondent 

being barred from asserting financial 

hardship.

Subpart C—Hearing and Appeal 

Procedures

GENERAL

§ 904.200 Scope and applicability.

(a) This subpart sets forth the 

procedures governing the conduct of 

hearings and the issuance of initial and 

final administrative decisions of NOAA 

in administrative proceedings involving 

alleged violations of the laws cited in 

§ 904.1(c) and regulations implementing 

these laws, including civil penalty 

assessments and permit sanctions and 

denials. By separate regulation, these 

rules may be applied to other 

proceedings.

(b) The Judge is delegated authority to 

make the initial or final administrative 

decision of the Agency in proceedings 

subject to the provisions of this subpart, 

and to take actions to promote the 

efficient and fair conduct of hearings as 

set out in this subpart. The Judge has no 

authority to rule on challenges to the 

validity of regulations promulgated by 

the Agency.

(c) This subpart is not an independent 

basis for claiming the right to a hearing, 

but instead prescribes procedures for 

the conduct of hearings, the right to 

which is provided by other authority.

§ 904.201 Hearing requests and case 

docketing.

(a) If the respondent wishes a hearing 

on a NOVA, NOPS or NIDP, the request 

must be dated and in writing, and must 

be served either in person or mailed to 

the Agency counsel specified in the 

Notice. The requester must either attach 

a copy of the Notice or refer to the 

relevant NOAA case number. Agency 

counsel will promptly forward the 

request for hearing to the Office of 

Administrative Law Judges.

(b) If a written application is made to 

NOAA within ten (10) days after the 

expiration of a time period established 

in this part for the required filing of 

hearing requests, Agency counsel will 

promptly forward the request for 

hearing to the Office of Administrative 

Law Judges for a determination on 

whether such request shall be 

considered timely filed. A written 

application for a hearing filed more than 

ten (10) days after the expiration of a 

time period established in this part for 

the required filing of hearing requests, 

will be promptly forwarded to the Office 

of Administrative Law Judges by 

Agency counsel, and shall be deemed 

untimely filed by the Office of 

Administrative Law Judges. 

Determinations regarding untimely 

hearing requests under this section shall 

be in writing.

(c) Agency counsel may, in his or her 

discretion, treat any written 

communication from a respondent as a 

request for a hearing under paragraph 

(a) of this section.

(d) Each request for hearing promptly 

upon its receipt for filing in the Office 

of Administrative Law Judges will be 

assigned a docket number and thereafter 

the proceeding will be referred to by 

such number. Written notice of the 

assignment of hearing to a Judge will 

promptly be given to the parties.

§ 904.202 Filing of documents.

(a) Pleadings, papers, and other 

documents in the proceeding must be 

filed in conformance with § 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.

§ 904.203 [Reserved]

§ 904.204 Duties and powers of Judge.

The Judge has all powers and 

responsibilities necessary to preside 

over the parties and the proceeding, to 

hold prehearing conferences, to conduct 

the hearing, and to render decisions in 

accordance with these regulations and 5 

U.S.C. 554 through 557, including, but 

not limited to, the authority and duty to 

do the following:

(a) Rule on timeliness of hearing 

requests pursuant to § 904.201(b).

(b) Rule on a request to participate as 

a party in the proceeding by allowing, 

denying, or limiting such participation 

(such ruling will consider views of the 

parties and be based on whether the 

requester could be directly and 

adversely affected by the determination 

and whether the requester can be 

expected to contribute materially to the 

disposition of the proceedings);

(c) Schedule the time, place, and 

manner of conducting the pre-hearing 

conference or hearing, continue the 

hearing from day to day, adjourn the 

hearing to a later date or a different 

place, and reopen the hearing at any 

time before issuance of the decision, all 

in the Judge’s discretion, having due 

regard for the convenience and 

necessity of the parties and witnesses;

(d) Schedule and regulate the course 

of the hearing and the conduct of the 

participants and the media, including 

the power to close the hearings in the 

interests of justice; seal the record from 

public scrutiny to protect privileged 

information, trade secrets, and 

confidential commercial or financial 

information; and strike testimony of a 

witness who refuses to answer a 

question ruled to be proper;

(e) Administer oaths and affirmations 

to witnesses;

(f) Rule on discovery requests, 

establish discovery schedules, and, 

whenever the ends of justice would 

thereby be served, take or cause 

depositions or interrogatories to be 

taken and issue protective orders under 

§ 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;

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(l) Take official notice of any matter 

not appearing in evidence that is among 

traditional matters of judicial notice; or 

of technical or scientific facts within the 

general or specialized knowledge of the 

Department of Commerce as an expert 

body; or of a non-privileged document 

required by law or regulation to be filed 

with or published by a duly constituted 

government body; or of any reasonably 

available public document; Provided, 

that the parties will be advised of the 

matter noticed and given reasonable 

opportunity to show the contrary;

(m) For stated good reason(s), assess 

a penalty de novo without being bound 

by the amount assessed in the NOVA;

(n) Prepare and submit a decision or 

other appropriate disposition document 

and certify the record;

(o) Award attorney fees and expenses 

as provided by applicable statute or 

regulation;

(p) Grant preliminary or interim relief;

(q) Impose, upon the motion of any 

party, or sua sponte, appropriate 

sanctions.

(1) Sanctions may be imposed when 

any party, or any person representing a 

party, in an adjudicatory proceeding 

under this part has failed to comply 

with this part, or any order issued under 

this part, and such failure to comply:

(i) Materially injures or prejudices 

another party by causing additional 

expenses; prejudicial delay; or other 

injury or prejudice;

(ii) Is a clear and unexcused violation 

of this part, or any order issued under 

this part; or

(iii) Unduly delays the proceeding.

(2) Sanctions which may be imposed 

include, but are not limited to, one or 

more of the following:

(i) Issuing an order against the party;

(ii) Rejecting or striking any testimony 

or documentary evidence offered, or 

other papers filed, by the party;

(iii) Expelling the party from the 

proceedings;

(iv) Precluding the party from 

contesting specific issues or findings;

(v) Precluding the party from making 

a late filing or conditioning a late filing 

on any terms that are just;

(vi) Assessing reasonable expenses, 

incurred by any other party as a result 

of the improper action or failure to act; 

and

(vii) Taking any other action, or 

imposing any restriction or sanction, 

authorized by applicable statute or 

regulation, deemed appropriate by the 

Judge.

(3) No sanction authorized by this 

section, other than refusal to accept late 

filings, shall be imposed without prior 

notice to all parties and an opportunity 

for any party against whom sanctions 

would be imposed to be heard. Such 

opportunity to be heard may be on such 

notice, and the response may be in such 

form as the Judge directs and may be 

limited to an opportunity for a party or 

a party’s representative to respond 

orally immediately after the act or 

inaction is noted by the Judge.

(4) The imposition of sanctions is 

subject to interlocutory review pursuant 

to § 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.

§ 904.205 Disqualification of Judge.

(a) The Judge may withdraw 

voluntarily from a particular case when 

the Judge deems himself/herself 

disqualified.

(b) A party may in good faith request 

the Judge to withdraw on the grounds of 

personal bias or other disqualification. 

The party seeking the disqualification 

must file with the Judge a timely 

affidavit or statement setting forth in 

detail the facts alleged to constitute the 

grounds for disqualification, and the 

Judge will rule on the matter. If the 

Judge rules against disqualification, the 

Judge will place all matters relating to 

such claims of disqualification in the 

record.

§ 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 § 904.3(b).

(b) Pleadings and documents to be 

filed may be reproduced by printing or 

any other process, provided the copies 

are clear and legible; must be dated, the 

original signed in ink or as otherwise 

verified for electronic mail; and must 

show the docket description and title of 

the proceeding, and the title, if any, 

address, and telephone number of the 

signatory. If typewritten, the impression 

may be on only one side of the paper 

and must be double spaced, if possible, 

except that quotations may be single 

spaced and indented.

(c) Motions must normally be made in 

writing and must state clearly and 

concisely the purpose of and relief 

sought by the motion, the statutory or 

principal authority relied upon, and the 

facts claimed to constitute the grounds 

requiring the relief requested.

(d) Unless otherwise provided, the 

answer to any written motion, pleading, 

or petition must be served within 20 

days after date of service thereof. If a 

motion states that opposing counsel has 

no objection, it may be acted upon as 

soon as practicable, without awaiting 

the expiration of the 20–day period. 

Answers must be in writing, unless 

made in response to an oral motion 

made at a hearing; must fully and 

completely advise the parties and the 

Judge concerning the nature of the 

opposition; must admit or deny 

specifically and in detail each material 

allegation of the pleading answered; and 

must state clearly and concisely the 

facts and matters of law relied upon. 

Any new matter raised in an answer 

will be deemed controverted.

(e) A response to an answer will be 

called a reply. A short reply restricted 

to new matters may be served within 15 

days of service of an answer. The Judge 

has discretion to dispense with the 

reply. No further responses are 

permitted.

§ 904.207 Amendment of pleading or 

record.

(a) A party may amend the party’s 

pleading as a matter of course at least 

twenty (20) days prior to a hearing. 

Within twenty (20) days prior to a 

hearing a party may amend the party’s 

pleading only by leave of the Judge or 

by written consent of the adverse party; 

and leave shall be freely given when 

justice so requires. A party shall plead 

in response to an amended pleading 

within the time remaining for response 

to the original pleading or within ten 

(10) days after service of the amended 

pleading, whichever period is longer, 

unless the Judge otherwise orders.

(b) The Judge, upon his or her own 

initiative or upon application by a party, 

may order a party to make a more 

definite statement of any pleading.

(c) Harmless errors in pleadings or 

elsewhere in the record may be 

corrected (by deletion or substitution of 

words or figures), and broad discretion 

will be exercised by the Judge in 

permitting such corrections.

§ 904.208 Extensions of time.

If appropriate and justified, and as 

provided in § 904.201(b), the Judge may 

grant any request for an extension of 

time. Requests for extensions of time 

must, except in extraordinary 

circumstances, be made in writing.

§ 904.209 Expedited proceedings.

In the interests of justice and 

administrative efficiency, the Judge, on 

his or her own initiative or upon the 

application of any party, may expedite

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the proceeding. A motion of a party to 

expedite the proceeding may, in the 

discretion of the Judge, be made orally 

or in writing with concurrent actual 

notice to all parties. If a motion for an 

expedited hearing is granted, the 

hearing on the merits may not be 

scheduled with less than five business 

days’ notice, unless all parties consent 

to an earlier hearing.

§ 904.210 Summary decision.

The Judge may render a summary 

decision disposing of all or part of the 

proceeding if:

(a) Jointly requested by every party to 

the proceeding; and

(b) There is no genuine issue as to any 

material fact and a party is entitled to 

summary decision as a matter of law.

§ 904.211 Failure to appear.

(a) If, after proper service of notice, a 

party appears at the hearing and no 

party appears for the opposing side, the 

Judge is authorized to dismiss the case 

or to find the facts as alleged in the 

NOVA and enter a default judgment 

containing such findings and 

conclusions as are appropriate.

(b) Following an order of default 

judgment, the non-appearing party may 

file a petition for reconsideration, in 

accordance with § 904.272. Only 

petitions citing reasons for nonappearance, as opposed to arguing the 

merits of the case, will be considered.

(c) The Judge will place in the record 

all the facts concerning the issuance and 

service of the notice of time and place 

of hearing.

(d) The Judge may deem a failure of 

a party to appear after proper notice a 

waiver of any right to a hearing and 

consent to the making of a decision on 

the record.

(e) Failure to appear at a hearing shall 

not be deemed to be a waiver of the 

right to be served with a copy of the 

Administrative Law Judge’s decision.

§ 904.212 Failure to prosecute or defend.

(a) Whenever the record discloses the 

failure of either party to file documents, 

respond to orders or notices from the 

Judge, or otherwise indicates an 

intention on the part of either party not 

to participate further in the proceeding, 

the Judge may issue:

(1) An order requiring either party to 

show why the matter that is the subject 

of the failure to respond should not be 

disposed of adversely to that party’s 

interest;

(2) An order requiring either party to 

certify intent to appear at any scheduled 

hearing; or

(3) Any order, except dismissal, as is 

necessary for the just and expeditious 

resolution of the case.

(b) [Reserved]

§ 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.

§ 904.214 Stipulations.

The parties may, by stipulation, agree 

upon any matters involved in the 

proceeding and include such 

stipulations in the record with the 

consent of the Judge. Written 

stipulations must be signed and served 

upon all parties.

§ 904.215 Consolidation.

The Judge may order two or more 

proceedings that involve substantially 

the same parties or the same issues 

consolidated and/or heard together.

§ 904.216 Prehearing conferences.

(a) Prior to any hearing or at other 

time deemed appropriate, the Judge 

may, upon his or her own initiative, or 

upon the application of any party, direct 

the parties to appear for a conference or 

arrange a telephone conference. The 

Judge shall provide at least twenty-four 

hours notice of the conference to the 

parties, and shall record such 

conference by audio recording or 

stenographer, to consider:

(1) Simplification or clarification of 

the issues or settlement of the case by 

consent;

(2) The possibility of obtaining 

stipulations, admissions,

agreements, and rulings on 

admissibility of documents, 

understandings on matters already of 

record, or similar agreements that will 

avoid unnecessary proof;

(3) Agreements and rulings to 

facilitate the discovery process;

(4) Limitation of the number of expert 

witnesses or other avoidance of 

cumulative evidence;

(5) The procedure, course, and 

conduct of the hearing;

(6) The distribution to the parties and 

the Judge prior to the hearing of written 

testimony and exhibits in order to 

expedite the hearing; or

(7) Such other matters as may aid in 

the disposition of the proceeding, 

including the status of settlement 

discussions.

(b) The Judge in his or her discretion 

may issue an order showing the matters 

disposed of in such conference, and 

shall provide a transcript of the 

conference upon the request of a party.

DISCOVERY

§ 904.240 Discovery generally.

(a) Preliminary position on issues and 

procedures. Prior to hearing the Judge 

will ordinarily require the parties to 

submit a written Preliminary Position 

on Issues and Procedures (PPIP). Except 

for information regarding a respondent’s 

ability to pay an assessed penalty, this 

PPIP will normally obviate the need for 

further discovery.

(1) The PPIP shall include the 

following information: a factual 

summary of the case; a summary of all 

factual and legal issues in dispute; a list 

of all defenses that will be asserted, 

together with a summary of all factual 

and legal bases supporting each defense; 

a list of all potential witnesses, together 

with a summary of their anticipated 

testimony; and a list of all potential 

exhibits.

(2) The PPIP shall be signed by the 

party and an attorney, if one is retained. 

The PPIP shall be served upon all 

parties, along with a copy of each 

potential exhibit listed in the PPIP.

(3) A party has the affirmative 

obligation to supplement the PPIP as 

available information or documentation 

relevant to the stated charges or 

defenses becomes known to the party.

(b) Additional discovery. Upon 

written motion by a party, the Judge 

may allow additional discovery only 

upon a showing of relevance, need, and 

reasonable scope of the evidence sought, 

by one or more of the following 

methods: deposition upon oral 

examination or written questions, 

written interrogatories, production of 

documents or things for inspection and 

other purposes, and requests for 

admission. With respect to information 

regarding a respondent’s ability to pay 

an assessed penalty, the Agency may 

serve any discovery request (i.e., 

deposition, interrogatories, admissions, 

production of documents) directly upon 

the respondent without first seeking an 

order from the Judge.

(c) Time limits. Motions for 

depositions, interrogatories, admissions, 

or production of documents or things 

may not be filed within 20 days of 

hearing except on order of the Judge for 

good cause shown. Oppositions to a 

discovery motion must be filed within 

10 days of service unless otherwise 

provided in these rules or by the Judge.

(d) Oppositions. Oppositions to any 

discovery motion or portion thereof 

must state with particularity the 

grounds relied upon. Failure to object in 

a timely fashion constitutes waiver of 

the objection.

(e) Scope of discovery. The Judge may 

limit the scope, subject matter, method, 

time, or place of discovery. Unless 

otherwise limited by order of the Judge, 

the scope of discovery is as follows:

(1) In general. As allowed under 

paragraph (b) of this section, parties

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may obtain discovery of any matter, not 

privileged, that is relevant to the 

allegations of the charging document, to 

the proposed relief, or to the defenses of 

any respondent, or that appears 

reasonably calculated to lead to the 

discovery of admissible evidence.

(2) Hearing preparation: Materials. A 

party may not obtain discovery of 

materials prepared in anticipation of 

litigation except upon a showing that 

the party seeking discovery has a 

substantial need for the materials in 

preparation of his or her case, and is 

unable without undue hardship to 

obtain the substantial equivalent of the 

materials by other means. Mental 

impressions, conclusions, opinions, or 

legal theories of an attorney or other 

representative of a party are not 

discoverable under this section.

(3) Hearing preparation: Experts. A 

party may discover the substance of the 

facts and opinions to which an expert 

witness is expected to testify and a 

summary of the grounds for each 

opinion. A party may also discover facts 

known or opinions held by an expert 

consulted by another party in 

anticipation of litigation but not 

expected to be called as a witness upon 

a showing of exceptional circumstances 

making it impracticable for the party 

seeking discovery to obtain such facts or 

opinions by other means.

(f) Failure to comply. If a party fails 

to comply with any provision of this 

section, including any PPIP, subpoena 

or order concerning discovery, the Judge 

may, in the interest of justice:

(1) Infer that the admission, 

testimony, documents, or other 

evidence would have been adverse to 

the party;

(2) Rule that the matter or matters 

covered by the order or subpoena are 

established adversely to the party;

(3) Rule that the party may not 

introduce into evidence or otherwise 

rely upon, in support of any claim or 

defense, testimony by such party, 

officer, or agent, or the documents or 

other evidence;

(4) Rule that the party may not be 

heard to object to introduction and use 

of secondary evidence to show what the 

withheld admission, testimony, 

documents, or other evidence would 

have shown;

(5) Strike part or all of a pleading 

(except a request for hearing), a motion 

or other submission by the party, 

concerning the matter or matters 

covered by the order or subpoena.

§ 904.241 Depositions.

(a) Notice. If a motion for deposition 

is granted, and unless otherwise ordered 

by the Judge, the party taking the 

deposition of any person must serve on 

that person, and each other party, 

written notice at least 15 days before the 

deposition would be taken (or 25 days 

if the deposition is to be taken outside 

the United States). The notice must state 

the name and address of each person to 

be examined, the time and place where 

the examination would be held, the 

name and mailing address of the person 

before whom the deposition would be 

taken, and the subject matter about 

which each person would be examined.

(b) Taking the deposition. Depositions 

may be taken before any officer 

authorized to administer oaths by the 

law of the United States or of the place 

where the examination is to be held, or 

before a person appointed by the Judge. 

Each deponent will be sworn, and any 

party has the right to cross-examine. 

Objections are not waived by failure to 

make them during the deposition unless 

the ground of the objection is one that 

might have been removed if presented at 

that time. The deposition will be 

recorded, transcribed, signed by the 

deponent, unless waived, and certified 

by the officer before whom the 

deposition was taken. All transcription 

costs associated with the testimony of a 

deponent will be borne by the party 

seeking the deposition. Each party will 

bear its own expense for any copies of 

the transcript. See also § 904.252(a).

(c) Alternative deposition methods.

By order of the Judge, the parties may 

use other methods of deposing parties or 

witnesses, such as telephonic 

depositions or depositions upon written 

questions. Objections to the form of 

written questions are waived unless 

made within five days of service of the 

questions.

(d) Use of depositions at hearing. (1) 

At hearing any part or all of a 

deposition, so far as admissible under 

the rules of evidence applied as though 

the witness were then testifying, may be 

used against any party who was present 

or represented at the taking of the 

deposition, or had reasonable notice.

(2) The deposition of a witness may 

be used by any party for any purpose if 

the Judge finds:

(i) That the witness is unable to attend 

due to death, age, health, imprisonment, 

disappearance or distance from the 

hearing site; or

(ii) That exceptional circumstances 

make it desirable, in the interest of 

justice, to allow the deposition to be 

used.

(3) If only part of a deposition is 

offered in evidence by a party, any party 

may introduce any other part.

§ 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 

§ 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.

§ 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.

§ 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,

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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.

§ 904.245 Subpoenas.

(a) In general. Subpoenas for the 

attendance and testimony of witnesses 

and the production of documentary 

evidence for the purpose of discovery or 

hearing may be issued as authorized by 

the statute under which the proceeding 

is conducted.

(b) Timing. Applications for 

subpoenas must be submitted at least 10 

days before the scheduled hearing or 

deposition.

(c) Motions to quash. Any person to 

whom a subpoena is directed or any 

party may move to quash or limit the 

subpoena within 10 days of its service 

or on or before the time specified for 

compliance, whichever is shorter. The 

Judge may quash or modify the 

subpoena.

(d) Enforcement. In case of 

disobedience to a subpoena, NOAA may 

request the Justice Department to invoke 

the aid of any court of the United States 

in requiring the attendance and 

testimony of witnesses and the 

production of documentary evidence.

HEARINGS

§ 904.250 Notice of time and place of 

hearing.

(a) The Judge shall be responsible for 

scheduling the hearing. With due regard 

for the convenience of the parties, their 

representatives, or witnesses, the Judge 

shall fix the time, place and date for the 

hearing and shall notify all parties of the 

same. The Judge will promptly serve on 

the parties notice of the time and place 

of hearing. The hearing will not be held 

less than 20 days after service of the 

notice of hearing unless the hearing is 

expedited as provided under 

§ 904.250(c).

(b) A request for a change in the time, 

place, or date of the hearing may be 

granted by the Judge.

(c) Upon the consent of each party to 

the proceeding, the Judge may order that 

all or part of a proceeding be heard on 

submissions or affidavits if it appears 

that substantially all important issues 

may be resolved by means of written 

materials and that efficient disposition 

of the proceeding can be made without 

an in-person hearing.

(d) At any time after commencement 

of the proceeding, any party may move 

to expedite the scheduling of a 

proceeding.

(1) A party moving to expedite a 

proceeding shall describe the 

circumstances justifying expedition, and 

provide affidavits supporting any 

representations of fact.

(2) Upon granting a motion to 

expedite the scheduling of a proceeding, 

the Judge may expedite pleading 

schedules, prehearing conferences and 

the hearing, as appropriate.

§ 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 crossexamination 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 § 904.204.

(2) All evidence that is relevant, 

material, reliable, and probative, and 

not unduly repetitious or cumulative, is 

admissible at the hearing. Formal rules 

of evidence do not necessarily apply to 

the proceedings, and hearsay evidence 

is not inadmissible as such.

(3) In any case involving a charged 

violation of law in which the party 

charged has admitted an allegation, 

evidence may be taken to establish 

matters of aggravation or mitigation.

(b) Objections and offers of proof. (1) 

A party shall state the grounds for 

objection to the admission or exclusion 

of evidence. Rulings on all objections 

shall appear in the record. Only 

objections made before the Judge may be 

raised on appeal.

(2) Whenever evidence is excluded 

from the record, the party offering such 

evidence may make an offer of proof, 

which shall be included in the record.

(c) Testimony. (1) Testimony may be 

received into evidence by the following 

means:

(i) Oral presentation; and

(ii) Subject to the discretion of the 

Judge, written affidavit, telephone, or 

video or other electronic media.

(2) Regardless of form, all testimony 

shall be under oath or affirmation 

requiring the witness to declare that the 

witness will testify truthfully, and 

subject to cross examination.

(d) Exhibits and documents. (1) All 

exhibits shall be numbered and marked 

with a designation identifying the 

sponsor. To prove the content of an 

exhibit, the original writing, recording 

or photograph is required except that a 

duplicate or copy is admissible to the 

same extent as an original unless a 

genuine question is raised as to the 

authenticity of the original or, given the 

circumstances, it would be unfair to 

admit the duplicate in lieu of the 

original. The original is not required, 

and other evidence of the contents of a 

writing, recording, or photograph is 

admissible if the original is lost or 

destroyed, not obtainable, in the 

possession of the opponent, or not 

closely related to a controlling issue. 

Each exhibit offered in evidence or 

marked for identification shall be filed 

and retained in the record of decision, 

unless the Judge permits the 

substitution of copies for the original 

document.

(2) In addition to the requirements set 

forth in § 904.240(a)(2), parties shall 

exchange all remaining exhibits that 

will be offered at hearing prior to the 

beginning of the hearing, except for 

good cause or as otherwise directed by 

the Judge. Exhibits that are not 

exchanged as required may be denied 

admission into evidence. This 

requirement does not apply to 

demonstrative evidence.

(e) Physical evidence. (1) Photographs 

or videos or other electronic media may 

be substituted for physical evidence at 

the discretion of the Judge.

(2) Except upon the Judge’s order, or 

upon request by a party, physical 

evidence will be retained after the 

hearing by the Agency.

(f) Stipulations. The parties may by 

stipulation in writing at any stage of the 

proceeding or orally at the hearing agree 

upon any matters involved in the 

proceeding. Stipulations may be 

received in evidence before or during 

the hearing and, when received in 

evidence, shall be binding on the parties 

to the stipulation.

(g) Official notice. The Judge may take 

official notice of such matters as might 

be judicially noticed by the courts or of 

other facts within the specialized 

knowledge of the agency as an expert 

body. Where a decision or part thereof 

rests on official notice of a material fact 

not appearing in the evidence in the 

record, the fact of official notice shall be 

so stated in the decision, and any party, 

upon timely request, shall be afforded 

an opportunity to show the contrary.

(h) Confidential and sensitive 

information. (1) The Judge may limit 

introduction of evidence or issue 

protective orders that are required to 

prevent undue disclosure of classified, 

confidential, or sensitive matters, which 

include, but are not limited to, matters 

of a national security, business, 

personal, or proprietary nature. Where 

the Judge determines that information in 

documents containing classified, 

confidential, or sensitive matters should 

be made available to another party, the 

Judge may direct the offering party to

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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.

§ 904.252 Witnesses.

(a) Fees. Witnesses, other than 

employees of a federal agency, 

summoned in an adjudication, 

including discovery, shall receive the 

same fees and mileage as witnesses in 

the courts of the United States.

(b) Witness counsel. Any witness not 

a party may have personal counsel to 

advise him or her as to his or her rights, 

but such counsel may not otherwise 

participate in the hearing.

(c) Witness exclusion. Witnesses who 

are not parties may be excluded from 

the hearing room prior to the taking of 

their testimony. An authorized officer is 

considered a party for the purposes of 

this subsection.

(d) Oath or affirmation. Witnesses 

shall testify under oath or affirmation 

requiring the witness to declare that the 

witness will testify truthfully.

(e) Failure or refusal to testify. If a 

witness fails or refuses to testify, the 

failure or refusal to answer any question 

found by the Judge to be proper may be 

grounds for striking all or part of the 

testimony given by the witness, or any 

other action deemed appropriate by the 

Judge.

(f) Testimony in a foreign language. If 

a witness is expected to testify in a 

language other than the English 

language, the party sponsoring the 

witness must provide for the services of 

an interpreter and advise opposing 

counsel 10 days prior to the hearing 

concerning the extent to which 

interpreters are to be used. When 

available, the interpreter should be 

court certified under 28 U.S.C. 1827.

§ 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.

§ 904.254 Interlocutory review.

(a) Application for interlocutory 

review shall be made to the Judge. The 

application shall not be certified to the 

Administrator except when the Judge 

determines that:

(1) The ruling involves a dispositive 

question of law or policy about which 

there is substantial ground for difference 

of opinion; or

(2) An immediate ruling will 

materially advance the completion of 

the proceeding; or

(3) The denial of an immediate ruling 

will cause irreparable harm to a party or 

the public.

(b) Any application for interlocutory 

review shall:

(1) Be filed with the Judge within 30 

days after the Judge’s ruling;

(2) Designate the ruling or part thereof 

from which appeal is being taken;

(3) Set forth the ground on which the 

appeal lies; and

(4) Present the points of fact and law 

relied upon in support of the position 

taken.

(c) Any party that opposes the 

application may file a response within 

twenty (20) days after service of the 

application.

(d) The certification to the 

Administrator by the Judge shall stay 

proceedings before the Judge until the 

matter under interlocutory review is 

decided.

§ 904.255 Ex parte communications.

(a) Except to the extent required for 

disposition of ex parte matters as 

authorized by law, the Judge may not 

consult a person or party on any matter 

relevant to the merits of the 

adjudication, unless there has been 

notice and opportunity for all parties to 

participate.

(b) Except to the extent required for 

the disposition of ex parte matters as 

authorized by law:

(1) No interested person outside the 

Agency shall make or knowingly cause 

to be made to the Judge, the 

Administrator, or any Agency employee 

who is or may reasonably be expected 

to be involved in the decisional process 

of the adjudication an ex parte

communication relevant to the merits of 

the adjudication; and

(2) Neither the Administrator, the 

Judge, nor any Agency employee who is 

or may reasonably be expected to be 

involved in the decisional process of the 

adjudication, shall make or knowingly 

cause to be made to any interested 

person outside the agency an ex parte

communication relevant to the merits of 

the adjudication.

(c) The Administrator, the Judge, or 

any Agency employee who is or may 

reasonably be expected to be involved 

in the decisional process who receives, 

makes, or knowingly causes to be made 

a communication prohibited by this rule 

shall place in the record of decision:

(1) All such written communications;

(2) Memoranda stating the substance 

of all such oral communications;

(3) All written responses, and 

memoranda stating the substance of all 

oral responses, to the materials 

described in paragraphs (c)(1) and (c)(2) 

of his section.

(d)(1) Paragraphs (a), (b) and (c) of this 

section do not apply to communications 

concerning national defense or foreign 

policy matters. Such ex parte

communications to or from an Agency 

employee on national defense or foreign 

policy matters, or from employees of the 

United States Government involving 

intergovernmental negotiations, are 

allowed if the communicator’s position 

with respect to those matters cannot 

otherwise be fairly presented for reasons 

of foreign policy or national defense.

(2) Ex parte communications subject 

to this paragraph will be made a part of 

the record to the extent that they do not 

include information classified under an 

Executive Order. Classified information 

will be included in a classified portion 

of the record that will be available for 

review only in accordance with 

applicable law.

(e) Upon receipt of a communication 

made, or knowingly caused to be made, 

by a party in violation of this section the 

Judge may, to the extent consistent with 

the interests of justice, national security, 

the policy of underlying statutes, 

require the party to show cause why its 

claim or interest in the adjudication 

should not be dismissed, denied, 

disregarded, or otherwise adversely 

affected by reason of such violation.

(f) The prohibitions of this rule shall 

apply beginning after issuance of a 

NOVA, NOPS or NIDP and until a final 

administrative decision is rendered, but 

in no event shall they begin to apply

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later than the time at which a 

proceeding is noticed for hearing unless 

the person responsible for the 

communication has knowledge that it 

will be noticed, in which case the 

prohibitions shall apply beginning at 

the time of her/his acquisition of such 

knowledge.

POST-HEARING

§ 904.260 Recordation of Hearing.

(a) All hearings shall be recorded.

(b) The official transcript of testimony 

taken, together with any exhibits, briefs, 

or memoranda of law filed therewith, 

will be filed with the Office of 

Administrative Law Judges. Transcripts 

of testimony will be available in any 

proceeding and will be supplied to the 

parties at the cost of the Agency.

(c) The Judge may determine whether 

‘‘ordinary copy’’, ‘‘daily copy’’,or other 

copy (as those terms are defined by 

contract) will be necessary and required 

for the proper conduct of the 

proceeding.

§ 904.261 Post-hearing briefs.

(a) The parties may file post-hearing 

briefs that include proposed findings of 

fact and conclusions of law within 30 

calendar days from service of the 

hearing transcript. Reply briefs may be 

submitted within 15 days after service 

of the proposed findings and 

conclusions to which they respond.

(b) The Judge, in his or her discretion, 

may establish a different date for filing 

either initial briefs or reply briefs with 

the court.

(c) In cases involving few parties, 

limited issues, and short hearings, the 

Judge may require or a party may 

request that any proposed findings and 

conclusions and reasons in support be 

presented orally at the close of a 

hearing. In granting such cases, the 

Judge will advise the parties in advance 

of hearing.

DECISION

§ 904.270 Record of decision.

(a) The exclusive record of decision 

consists of the official transcript of 

testimony and proceedings; exhibits 

admitted into evidence; briefs, 

pleadings, and other documents filed in 

the proceeding; and descriptions or 

copies of matters, facts, or documents 

officially noticed in the proceeding. Any 

other exhibits and records of any ex 

parte communications will accompany 

the record of decision.

(b) The Judge will arrange for 

appropriate storage of the records of any 

proceeding, which place of storage need 

not necessarily be located physically 

within the Office of Administrative Law 

Judges.

§ 904.271 Initial decision.

(a) After expiration of the period 

provided in § 904.261 for the filing of 

reply briefs (unless the parties have 

waived briefs or presented proposed 

findings orally at the hearing), the Judge 

will render a written decision upon the 

record in the case, setting forth:

(1) Findings and conclusions, and the 

reasons or bases therefor, on all material 

issues of fact, law, or discretion 

presented on the record;

(2) An order as to the final disposition 

of the case, including any appropriate 

ruling, order, sanction, relief, or denial 

thereof;

(3) The date upon which the decision 

will become effective; and

(4) A statement of further right to 

appeal.

(b) If the parties have presented oral 

proposed findings at the hearing or have 

waived presentation of proposed 

findings, the Judge may at the 

termination of the hearing announce the 

decision, subject to later issuance of a 

written decision under paragraph (a) of 

this section. The Judge may in such case 

direct the prevailing party to prepare 

proposed findings, conclusions, and an 

order.

(c) The Judge will serve the written 

decision on each of the parties by 

registered or certified mail, return 

receipt requested and will promptly 

certify to the Administrator the record, 

including the original copy of the 

decision, as complete and accurate.

(d) An initial decision becomes 

effective as the final administrative 

decision of NOAA 30 days after service, 

unless: 

(1) Otherwise provided by statute or 

regulations; or 

(2) The Judge grants a petition for 

rehearing or reconsideration under 

§ 904.272.

§ 904.272 Petition for reconsideration.

Unless an order or initial decision of 

the Judge specifically provides 

otherwise, any party may file a petition 

for reconsideration of an order or initial 

decision issued by the Judge. Such 

petitions must state the matter claimed 

to have been erroneously decided, and 

the alleged errors and relief sought must 

be specified with particularity. Petitions 

must be filed within 20 days after the 

service of such order or initial decision. 

The filing of a petition for 

reconsideration shall operate as a stay of 

an order or initial decision or its 

effectiveness date unless specifically so 

ordered by the Judge. Within 15 days 

after the petition is filed, any party to 

the proceeding may file an answer in 

support or in opposition.

Subpart D—Permit Sanctions and 

Denials

GENERAL

§ 904.300 Scope and applicability.

(a) This subpart sets forth policies and 

procedures governing the suspension, 

revocation, modification, and denial of 

permits for reasons relating to 

enforcement of the statutes cited in 

§ 904.1(c), except for the statutes listed 

in paragraph (b) of this section. Nothing 

in this subpart precludes sanction or 

denial of a permit for reasons not 

relating to enforcement. As appropriate, 

and unless otherwise specified in this 

subpart, the provisions of Subparts A, B, 

and C apply to this subpart.

(b) Regulations governing sanctions 

and denials of permits issued under the 

Deep Seabed Hard Mineral Resources 

Act (30 U.S.C. 1401 et seq.) appear at 15 

CFR part 970.

§ 904.301 Bases for sanctions or denials.

(a) Unless otherwise specified in a 

settlement agreement, or otherwise 

provided in this subpart, NOAA may 

take action under this subpart with 

respect to any permit issued under the 

statutes cited in § 904.1(c). The bases for 

an action to sanction or deny a permit 

include but are not limited to the 

following:

(1) The commission of any offense 

prohibited by any statute administered 

by NOAA, including violation of any 

regulation promulgated or permit 

condition or restriction prescribed 

thereunder, by the permit holder or with 

the use of a permitted vessel;

(2) The failure to pay a civil penalty 

assessed under subparts B and C;

(3) The failure to pay a criminal fine 

imposed or to satisfy any other liability 

incurred in a judicial proceeding under 

any of the statutes administered by 

NOAA; or

(4) The failure to comply with any 

term of a settlement agreement.

(b) A sanction may be imposed, or a 

permit denied, under this subpart with 

respect to the particular permit 

pertaining to the offense or 

nonpayment, and may also be applied to 

any NOAA permit held or sought by the 

permit holder or successor in interest to 

the permit, including permits for other 

activities or for other vessels. Examples 

of the application of this policy are the 

following:

(1) NOAA suspends Vessel A’s fishing 

permit for nonpayment of a civil penalty 

pertaining to Vessel A. The owner of 

Vessel A buys Vessel B and applies for 

a permit for Vessel B to participate in 

the same or a different fishery. NOAA 

may withhold that permit until the 

sanction against vessel A is lifted.

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(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 

§ 904.320(c).)

(c) A sanction may not be 

extinguished by sale or transfer. The 

sanction of any vessel permit is not 

extinguished by sale or transfer of the 

vessel, nor by dissolution or 

reincorporation of a vessel owner 

corporation, and shall remain with the 

vessel until lifted by NOAA.

§ 904.302 Notice of permit sanction 

(NOPS).

(a) A NOPS will be served personally 

or by certified mail, return receipt 

requested, on the permit holder. When 

a foreign fishing vessel is involved, 

service will be made on the agent 

authorized to receive and respond to 

any legal process for vessels of that 

country.

(b) The NOPS will set forth the 

sanction to be imposed, the bases for the 

sanction, and any opportunity for a 

hearing. It will state the effective date of 

the sanction, which will ordinarily not 

be earlier than 30 calendar days after the 

date of receipt of the NOPS (see 

§ 904.322).

(c) Upon demand by an authorized 

enforcement officer, a permit holder 

must surrender a permit against which 

a sanction has taken effect. The 

effectiveness of the sanction, however, 

does not depend on surrender of the 

permit.

§ 904.303 Notice of intent to deny permit 

(NIDP).

(a) NOAA may issue a NIDP if the 

applicant has been charged with a 

violation of a statute, regulation, or 

permit administered by NOAA, for 

failure to pay a civil penalty, or for 

failure to comply with any term of a 

settlement agreement.

(b) The NIDP will set forth the basis 

for its issuance and any opportunity for 

a hearing, and will be served in 

accordance with § 904.302(a).

(c) NOAA will not refund any fee(s) 

submitted with a permit application if a 

NIDP is issued.

(d) A NIDP may be issued in 

conjunction with or independent of a 

NOPS. Nothing in this section should be 

interpreted to preclude NOAA from 

initiating a permit sanction action 

following issuance of the permit, or 

from withholding a permit under 

§ 904.310(c) or § 904.320.

§ 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 § 904.201.

(b) There will be no opportunity for 

a hearing if, with respect to the violation 

that forms the basis for the NOPS or 

NIDP, the permit holder had a previous 

opportunity to participate as a party in 

a judicial or administrative hearing, 

whether or not the permit holder did 

participate, and whether or not such a 

hearing was held.

§ 904.305 Final administrative decision.

(a) If no request for hearing is timely 

filed as provided in § 904.201(a), the 

NOPS or NIDP becomes effective as the 

final administrative decision and order 

of NOAA on the 30th day after service 

of the NOPS or NIDP or on the last day 

of any delay period granted.

(b) If a request for hearing is timely 

filed in accordance with § 904.201(a), 

the date of the final administrative 

decision is as provided in subpart C of 

this part.

SANCTIONS FOR NONCOMPLIANCE

§ 904.310 Nature of sanctions.

(a) NOAA may suspend, modify, or 

deny a permit if:

(1) A civil penalty has been assessed 

against the permit holder under 

subparts B and C of this part, but the 

permit holder has failed to pay the 

penalty, or has failed to comply with 

any term of a settlement agreement; or

(2) A criminal fine or other liability 

for violation of any of the statutes 

administered by NOAA has been 

imposed against the permit holder in a 

judicial proceeding, but payment has 

not been made.

(b) NOAA will suspend any permit 

issued to a foreign fishing vessel under 

section 204(b) of the Magnuson-Stevens 

Fishery Conservation and Management 

Act under the circumstances set forth in 

paragraph (a) of this section.

(c) NOAA will withhold any other 

permit for which the permit holder 

applies if either condition in paragraph 

(a) of this section is applicable.

§ 904.311 Compliance.

If the permit holder pays the fine or 

penalty in full or agrees to terms 

satisfactory to NOAA for payment:

(a) The suspension will not take 

effect;

(b) Any permit suspended under 

§ 904.310 will be reinstated by order of 

NOAA; or

(c) Any application by the permit 

holder may be granted if the permit 

holder is otherwise qualified to receive 

the permit.

SANCTIONS FOR VIOLATIONS

§ 904.320 Nature of sanctions.

Subject to the requirements of this 

subpart, NOAA may take any of the 

following actions or combination of 

actions if a permit holder or permitted 

vessel violates a statute administered by 

NOAA, or any regulation promulgated 

or permit condition prescribed 

thereunder:

(a) Revocation. A permit may be 

cancelled, with or without prejudice to 

issuance of the permit in the future. 

Additional requirements for issuance of 

any future permit may be imposed.

(b) Suspension. A permit may be 

suspended either for a specified period 

of time or until stated requirements are 

met, or both. If contingent on stated 

requirements being met, the suspension 

is with prejudice to issuance of any 

permit until the requirements are met.

(c) Modification. A permit may be 

modified, as by imposing additional 

conditions and restrictions. If the permit 

was issued for a foreign fishing vessel 

under section 204(b) of the MagnusonStevens 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.

§ 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.

§ 904.322 Interim action.

(a) To protect marine resources during 

the pendency of an action under this 

subpart, in cases of willfulness, or as 

otherwise required in the interest of 

public health, welfare, or safety, an 

Administrative Law Judge may order 

immediate suspension, modification, or 

withholding of a permit until a decision 

is made on the action proposed in a 

NOPS or NIDP.

(b) The Judge will order interim 

action under paragraph (a) of this 

section, only after finding that there 

exists probable cause to believe that the 

violation charged in the NOPS or NIDP 

was committed. The Judge’s finding of 

probable cause, which will be 

summarized in the order, may be made:

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(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 § 904.304.

Subpart E—Written Warnings

§ 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 § 904.1(c).

§ 904.401 Written warning as a prior 

offense.

A written warning may be used as a 

basis for dealing more severely with a 

subsequent offense, including, but not 

limited to, a violation of the same 

statute or an offense involving an 

activity that is related to the prior 

offense.

§ 904.402 Procedures.

(a) Any person authorized to enforce 

the laws listed in § 904.1(c) who finds 

a violation of one of the laws may issue 

a written warning to a violator in lieu 

of other law enforcement action that 

could be taken under the applicable 

statute.

(b) The written warning will:

(1) State that it is a ‘‘written warning’’;

(2) State the factual and statutory or 

regulatory basis for its issuance;

(3) Advise the violator of its effect in 

the event of a future violation; and

(4) Inform the violator of the right of 

review and appeal under § 904.403.

(c) NOAA will maintain a record of 

written warnings that are issued.

(d) If, within 120 days of the date of 

the written warning, further 

investigation indicates that the violation 

is more serious than realized at the time 

the written warning was issued, or that 

the violator previously committed a 

similar offense for which a written 

warning was issued or other 

enforcement action was taken, NOAA 

may withdraw the warning and 

commence other civil or criminal 

proceedings.

§ 904.403 Review and appeal of a written 

warning.

(a) If a person receives a written 

warning from an authorized officer, the 

person may seek review by Agency 

counsel. The request for review must be 

in writing and must present the facts 

and circumstances that explain or deny 

the violation described in the written 

warning. The request for review must be 

filed at the NOAA Office of the 

Assistant General Counsel for 

Enforcement and Litigation, 8484 

Georgia Avenue, Suite 400, Silver 

Spring, MD 20910, within 60 days of 

receipt of the written warning. Agency 

counsel may, in his or her discretion, 

affirm, vacate, or modify the written 

warning and will notify the person of 

his or her determination. The Agency 

counsel’s determination constitutes the 

final agency action, unless it is appealed 

pursuant to § 904.403(b).

(b) If a person receives a written 

warning from Agency counsel, or 

receives a determination from Agency 

counsel affirming a written warning 

issued by an authorized officer, the 

person may appeal to the NOAA Deputy 

General Counsel. The appeal must be 

filed at the NOAA Office of the General 

Counsel, Herbert Hoover Office 

Building, 14th and Constitution 

Avenue, N.W., Washington, D.C. 20230, 

within 60 days of receipt of the written 

warning issued by Agency counsel, or 

the determination from Agency counsel 

affirming a written warning issued by an 

authorized officer.

(1) An appeal from an Agency counsel 

issued written warning must be in 

writing and must present the facts and 

circumstances that explain or deny the 

violation described in the written 

warning.

(2) An appeal from an Agency 

counsel’s determination affirming a 

written warning issued by an authorized 

officer must be in writing and include 

a copy of the Agency counsel’s 

determination affirming the written 

warning.

(c) The NOAA Deputy General 

Counsel may, in his or her discretion, 

affirm, vacate, or modify the written 

warning and will notify the person of 

the determination. The NOAA Deputy 

General Counsel’s determination 

constitutes the final agency action.

Subpart F—Seizure and Forfeiture 

Procedures

§ 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.

§ 904.501 Notice of seizure.

Within 60 days from the date of the 

seizure, NOAA will mail notice of the 

seizure by registered or certified mail, 

return receipt requested, to the owner or 

consignee, if known or easily 

ascertainable, or other party that the 

facts of record indicate has an interest 

in the seized property. In cases where 

the property is seized by a state or local 

law enforcement agency notice will be 

given in the above manner within 90 

days from the date of the seizure. The 

notice will describe the seized property 

and state the time, place and reason for 

the seizure, including the provisions of 

law alleged to have been violated. The 

notice will inform each interested party 

of his or her right to file a claim to the 

seized property, and state a date by 

which a claim must be filed, which may 

not be less than 35 days after the date 

the notice is mailed. The notice may be 

combined with a notice of the sale of 

perishable fish issued under § 904.505. 

If a claim is filed the case will be 

referred promptly to the United States 

Attorney for institution of judicial 

proceedings.

§ 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

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bond will contain such conditions as 

NOAA deems appropriate.

(b) Property may be released under 

this section only if possession thereof 

will not violate or frustrate the purpose 

or policy of any applicable law or 

regulation. Property that will not be 

released includes, but is not limited to:

(1) Property in which NOAA is not 

satisfied that the petitioner has a 

substantial interest;

(2) Property whose entry into the 

commerce of the United States is 

prohibited;

(3) Live animals, except in the interest 

of the animals’ welfare; or

(4) Property whose release appears to 

NOAA not to be in the best interest of 

the United States or serve the purposes 

of the applicable statute.

(c) If NOAA grants the request, the 

amount paid by the petitioner will be 

deposited in a NOAA suspense account. 

The amount so deposited will for all 

purposes be considered to represent the 

property seized and subject to forfeiture, 

and payment of the amount by 

petitioner constitutes a waiver by 

petitioner of any claim rising from the 

seizure and custody of the property. 

NOAA will maintain the money so 

deposited pending further order of 

NOAA, order of a court, or disposition 

by applicable administrative 

proceedings.

(d) A request for release need not be 

in any particular form, but must set 

forth the following:

(1) A description of the property 

seized;

(2) The date and place of the seizure;

(3) The requester’s interest in the 

property, supported as appropriate by 

bills of sale, contracts, mortgages, or 

other satisfactory evidence;

(4) The facts and circumstances relied 

upon by the requester to justify the 

remission or mitigation;

(5) An offer of payment to protect the 

United States’ interest that requester 

makes in return for release;

(6) The signature of the requester, his 

or her attorney, or other authorized 

agent; and

(7) A request to defer administrative 

or judicial forfeiture proceedings until 

completion of all other related judicial 

or administrative proceedings 

(including any associated civil penalty 

or permit sanction proceedings).

§ 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.

§ 904.504 Administrative forfeiture 

proceedings.

(a) When authorized. This section 

applies to property that is determined 

under § 904.503 to have a value of 

$500,000 or less, and that is subject to 

administrative forfeiture under the 

applicable statute. This section does not 

apply to conveyances seized in 

connection with criminal proceedings.

(b) Procedure. (1) If seized property is 

appraised at a value of $500,000 or less, 

instead of referring the matter to the 

United States Attorney, NOAA will 

publish a notice of proposed forfeiture 

once a week for at least three successive 

weeks in a newspaper of general 

circulation in the Federal judicial 

district in which the property was 

seized. However, if the value of the 

seized property does not exceed $1,000, 

the notice may be published by posting 

for at least three successive weeks in a 

conspicuous place accessible to the 

public at the National Marine Fisheries 

Service Enforcement Office, United 

States District Court, or the United 

States Customs House nearest the place 

of seizure, with the date of posting 

indicated on the notice. In addition, a 

reasonable effort will be made to serve 

the notice personally, or by registered or 

certified mail, return receipt requested, 

on each person whose identity, address 

and interest in the property are known 

or easily ascertainable.

(2) The notice of proposed forfeiture 

will:

(i) Describe the seized property, 

including any applicable registration or 

serial numbers;

(ii) State the time, place and reason 

for the seizure, including the provisions 

of law allegedly violated; and

(iii) Describe the rights of an 

interested person to file a claim to the 

property (including the right to petition 

to remit or mitigate the forfeiture).

(3)(i) Except as provided in paragraph 

(b)(4) of this section, any person 

claiming the seized property may file a 

claim with NOAA, at the address 

indicated in the notice, within 30 days 

of the date the final notice was 

published or posted. The claim must 

state the claimant’s interest in the 

property.

(ii) Filing a claim does not entitle the 

claimant to possession of the property. 

However, it does stop administrative 

forfeiture proceedings.

(iii) If the claim is filed timely in 

accordance with this section, NOAA 

will refer the matter to the Attorney 

General to institute forfeiture 

proceedings in the appropriate United 

States District Court.

(4) If a claim is not filed within 30 

days of final notice published or posted 

in accordance with this section, NOAA 

will declare the property forfeited. The 

declaration of forfeiture will be in 

writing and will be served by registered 

or certified mail, return receipt 

requested, on each person whose 

identity and address and prior interest 

in the seized property are known or 

easily ascertainable. The declaration 

will describe the property and state the 

time, place, and reason for its seizure, 

including the provisions of law violated. 

The declaration will identify the notice 

of proposed forfeiture, describing the 

dates and manner of publication of the 

notice and any efforts made to serve the 

notice personally or by mail. The 

declaration will state that in response to 

the notice a proper claim was not timely 

received by the proper office from any 

claimant, and that therefore all potential 

claimants are deemed to admit the truth 

of the allegations of the notice. The 

declaration shall conclude with an order 

of condemnation and forfeiture of the 

property to the United States for 

disposition according to law. All 

forfeited property will be subject to 

disposition as authorized by law and 

regulations of NOAA.

(5) If the appraised value of the 

property is more than $500,000, or a 

timely and satisfactory claim for 

property appraised at $500,000 or less is 

submitted to NOAA, the matter will be 

referred to the Attorney General to 

institute in rem proceedings in the 

appropriate United States District Court.

§ 904.505 Summary sale.

(a) In view of the perishable nature of 

fish, any person authorized to enforce a 

statute administered by NOAA may, as 

authorized by law, sell or cause to be 

sold, and any person may purchase, for 

not less than its domestic fair market 

value, fish seized under such statute.

(b) Any person purchasing fish 

subject to this section must deliver the 

proceeds of the sale to a person 

authorized to enforce a statute 

administered by NOAA immediately 

upon request of such authorized person. 

Anyone who does not so deliver the 

proceeds may be subject to penalties 

under the applicable statute or statutes.

(c) NOAA will give notice of the sale 

by registered or certified mail, return 

receipt requested, to the owner or 

consignee, if known or easily 

ascertainable, or to any other party that

60590 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

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.

§ 904.506 Remission of forfeiture and 

restoration of proceeds of sale.

(a) Application of this section. (1) 

This section establishes procedures for 

filing with NOAA a petition for relief 

from forfeitures incurred, or alleged to 

have been incurred, and from potential 

forfeiture of seized property, under any 

statute administered by NOAA that 

authorizes the remission or mitigation of 

forfeitures.

(2) Although NOAA may properly 

consider a petition for remission or 

mitigation of forfeiture and restoration 

of proceeds of sale along with other 

consequences of a violation, the 

remission or mitigation of a forfeiture 

and restoration of proceeds is not 

dispositive of any criminal charge filed, 

civil penalty assessed, or permit 

sanction proposed, unless NOAA 

expressly so states. Remission or 

mitigation of forfeiture and restoration 

of proceeds is in the nature of executive 

clemency and is granted in the sole 

discretion of NOAA only when 

consistent with the purposes of the 

particular statute involved and this 

section.

(3) If no petition is timely filed, or if 

the petition is denied, prior to 

depositing the proceeds NOAA may use 

the proceeds of sale to reimburse the 

government for any costs that by law 

may be paid from such sums.

(4) If NOAA remits the forfeiture and 

the forfeited property has not been sold, 

then restoration may be conditioned 

upon payment of any applicable costs as 

defined in this subpart.

(b) Petition for relief from forfeiture.

(1) Any person claiming an interest in 

any property which has been or may be 

administratively forfeited under the 

provisions of this section may, at any 

time after seizure of the property, but no 

later than 90 days after the date of 

forfeiture, petition the Assistant General 

Counsel for Enforcement and Litigation, 

NOAA/GCEL, 8484 Georgia Avenue, 

Suite 400, Silver Spring, Maryland 

20910, for a remission or mitigation of 

the forfeiture and restoration of the 

proceeds of such sale, or such part 

thereof as may be claimed by the 

petitioner.

(2) The petition need not be in any 

particular form, but must set forth the 

following:

(i) A description of the property 

seized;

(ii) The date and place of the seizure;

(iii) The petitioner’s interest in the 

property, supported as appropriate by 

bills of sale, contracts, mortgages, or 

other satisfactory evidence;

(iv) The facts and circumstances 

relied upon by the petitioner to justify 

the remission or mitigation of forfeiture 

and restoration of proceeds. If the claim 

is made after the property is forfeited, 

the petitioner must provide satisfactory 

proof that the petitioner did not know 

of the seizure prior to the declaration or 

condemnation of forfeiture, was in such 

circumstances as prevented him or her 

from knowing of the same, and that 

such forfeiture was incurred without 

any willful negligence or intention to 

violate the applicable statute on the part 

of the petitioner; and

(v) The signature of the petitioner, his 

or her attorney, or other authorized 

agent.

(3) NOAA will not consider a petition 

for remission or mitigation of forfeiture 

and restoration of proceeds while a 

forfeiture proceeding is pending in 

federal court. Once such a case is 

referred to the Attorney General for 

institution of judicial proceedings, and 

until the proceedings are completed, 

any petition received by NOAA will be 

forwarded to the Attorney General for 

consideration.

(4) A false statement in a petition will 

subject petitioner to prosecution under 

18 U.S.C. 1001.

(c) Investigation. NOAA will 

investigate the facts and circumstances 

shown by the petition and seizure, and 

may in this respect appoint an 

investigator to examine the facts and 

prepare a report of investigation.

(d) Determination of petition. (1) After 

investigation under paragraph (c) of this 

section, NOAA will make a 

determination on the matter and notify 

the petitioner. NOAA may remit or 

mitigate the forfeiture, on such terms 

and conditions as are deemed 

reasonable and just under the applicable 

statute and the circumstances.

(2) Unless NOAA determines no valid 

purpose would be served, NOAA will 

condition a determination to remit or 

mitigate a forfeiture upon the 

petitioner’s submitting an agreement, in 

a form satisfactory to NOAA, to hold the 

United States and its officers or agents 

harmless from any and all claims based 

on loss of or damage to the seized 

property or that might result from grant 

of remission or mitigation and 

restoration of proceeds. If the petitioner 

is not the beneficial owner of the 

property, or if there are others with a 

proprietary interest in the property, 

NOAA may require the petitioner to 

submit such an agreement executed by 

the beneficial owner or other interested 

party. NOAA may also require that the 

property be promptly exported from the 

United States.

(e) Compliance with the 

determination. A determination by 

NOAA to remit or mitigate the forfeiture 

and restore the proceeds upon stated 

conditions, as upon payment of a 

specified amount, will be effective for 

60 days after the date of the 

determination. If the petitioner does not 

comply with the conditions within that 

period in a manner prescribed by the 

determination, or make arrangements 

satisfactory to NOAA for later 

compliance, the remission or mitigation 

and restoration of proceeds will be void, 

and judicial or administrative forfeiture 

proceedings will be instituted or 

resumed.

(f) Appropriated property. If forfeited 

property that is the subject of a claim for 

restoration of proceeds has been 

appropriated for official use, retention 

by the government will be regarded as 

sale for the purposes of this section.

§ 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

Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 60591

person by registered or certified mail, 

return receipt requested, a bill for such 

fee. The bill will contain an itemized 

statement of the applicable costs, and 

instructions on the time and manner of 

payment. Payment must be made in 

accordance with the bill. If the recipient 

of the bill objects to the reasonableness 

of the costs assessed he or she may, 

within 30 days of receipt, file written 

objections with NOAA at the address 

stated in the bill. NOAA will promptly 

review the written objections and 

within 30 days mail the final 

determination to the party who filed 

them. NOAA’s determination will 

constitute final agency action on the 

matter.

§ 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 § 904.510(b).

(b) Property will be declared finally 

forfeited by abandonment, without 

recourse, upon a finding of 

abandonment by NOAA.

§ 904.509 Disposal of forfeited property.

(a) Delivery to Administrator. Upon 

forfeiture of any fish, wildlife, parts or 

products thereof, or other property to 

the United States, including the 

abandonment or waiver of any claim to 

any such property, it will be delivered 

to NOAA for storage or disposal 

according to the provisions of this 

section.

(b) Disposal. Disposal may be 

accomplished by one of the following 

means unless the property is the subject 

of a petition for remission or mitigation 

of forfeiture or disposed of by court 

order:

(1) Return to the wild;

(2) Use by NOAA or transfer to 

another government agency for official 

use;

(3) Donation or loan;

(4) Sale; or

(5) Destruction.

(c) Purposes of disposal. Disposal 

procedures may be used to alleviate 

overcrowding of evidence storage 

facilities; to avoid the accumulation of 

seized property where disposal is not 

otherwise accomplished by court order; 

to address the needs of governmental 

agencies and other institutions and 

organizations for such property for 

scientific, educational, and public 

display purposes; and for other valid 

reasons. In no case will property be 

used for personal purposes, either by 

loan recipients or government 

personnel.

(d) Disposal of evidence. Property that 

is evidence may be disposed of only 

after authorization by the NOAA Office 

of General Counsel. Disposal approval 

usually will not be given until the case 

involving the evidence is closed, except 

that perishable property may be 

authorized for disposal sooner.

(e) Loans—(1) To institutions.

Property approved for disposal may be 

loaned to institutions or organizations 

requesting such property for scientific, 

educational, or public display purposes. 

Property will be loaned only after 

execution of a loan agreement which 

provides, among other things, that the 

loaned property will be used only for 

noncommercial scientific, educational, 

or public display purposes, and that it 

will remain the property of the United 

States government, which may demand 

its return at any time. Parties requesting 

the loan of property must demonstrate 

the ability to provide adequate care and 

security for the property. Loans may be 

made to responsible agencies of foreign 

governments in accordance with the 

Convention on International Trade in 

Endangered Species of Wild Fauna and 

Flora.

(2) To individuals. Property generally 

will not be loaned to individuals not 

affiliated with an institution or 

organization unless it is clear that the 

property will be used in a 

noncommercial manner, and for 

scientific, educational, or public display 

purposes which are in the public 

interest.

(3) Selection of loan recipients.

Recipients of property will be chosen so 

as to assure a wide distribution of the 

property throughout the scientific, 

educational, public display and 

museum communities. Other branches 

of NMFS, NOAA, the Department of 

Commerce, and other governmental 

agencies will have the right of first 

refusal of any property offered for 

disposal. The Administrator may solicit 

applications, by publication of a notice 

in the Federal Register, from qualified 

persons, institutions, and organizations 

who are interested in obtaining the 

property being offered. Such notice will 

contain a statement as to the availability 

of specific property for which 

transferees are being sought, and 

instructions on how and where to make 

application. Applications will be 

granted in the following order: other 

offices of NMFS, NOAA, and the 

Department of Commerce; U.S. Fish and 

Wildlife Service; other Federal agencies; 

other governmental agencies; scientific, 

educational, or other public or private 

institutions; and private individuals.

(4) Loan agreement. Property will be 

transferred under a loan agreement 

executed by the Administrator and the 

borrower. Any attempt on the part of the 

borrower to retransfer property, even to 

another institution for related purposes, 

will violate and invalidate the loan 

agreement, and entitle the United States 

to immediate repossession of the 

property, unless the prior approval of 

the Administrator has been obtained 

under § 904.510(d)(5). Violation of the 

loan agreement may also subject the 

violator to the penalties provided by the 

laws governing possession and transfer 

of the property.

(5) Temporary reloans; documents to 

accompany property. Temporary 

reloans by the borrower to another 

qualified borrower (as for temporary 

exhibition) may be made if the 

Administrator is advised in advance by 

the borrowers. Temporary loans for 

more than thirty days must be approved 

in advance in writing by the 

Administrator. A copy of the original 

loan agreement, and a copy of the 

written approval for reloan, if any, must 

accompany the property whenever it is 

temporarily reloaned or is shipped or 

transported across state or international 

boundaries.

(f) Sale. (1) Any fish, wildlife, parts or 

products thereof, and other property 

which has been voluntarily forfeited by 

abandonment to NOAA may be sold or 

offered for sale, with the exception of 

any species or property which is 

otherwise prohibited from being sold at 

the time it is to be sold or offered for 

sale.

(2) Property will be sold in 

accordance with current Federal 

Property Management Regulations (41 

CFR chapter 101) or United States 

Customs laws and regulations, except 

that NOAA may:

(i) Sell at fair market value perishable 

fish pursuant to the summary sales 

provisions of 15 CFR 904.505; and

(ii) Sell, destroy, or otherwise dispose 

of property for which it is determined 

the expense of keeping is 

disproportionate to the value thereof.

(3) The proceeds of sale may be used 

to reimburse NOAA for any costs which 

by law NOAA is authorized to recover 

or to pay any rewards which by law may 

be paid from sums that NOAA receives.

60592 Federal Register / Vol. 69, No. 196 / Tuesday, October 12, 2004 / Proposed Rules 

(g) Destruction. (1) Property not 

otherwise disposed of may be destroyed.

(2) Destruction will be accomplished 

in accordance with the requirements of 

41 CFR Subpart 101–45.9.

(3) When destroyed, the fact, manner, 

and date of destruction and the type and 

quantity destroyed must be certified by 

the official actually destroying the 

property.

(4) No duly authorized officer of 

NOAA shall be liable for the destruction 

or other disposition of property made 

pursuant to this section.

(h) Record-keeping. A disposal form 

will be completed each time property is 

disposed of pursuant to the policy and 

procedure established herein, and will 

be retained in the case file for the 

property. These forms will be available 

to the public.

§ 904.510 Return of seized property.

(a) Return. In cases where NOAA, in 

its sole discretion, determines that 

forfeiture of seized property would not 

be in the best interest of the 

Government, NOAA will make a 

reasonable attempt to determine the 

party that the facts of record indicate 

has a predominant ownership interest in 

the seized property and, provided such 

a determination can be made, will 

arrange for return of the seized property 

to that party by appropriate means.

(b) Notice. NOAA will mail notice of 

the return of property by registered or 

certified mail, return receipt requested, 

to the owner, consignee, or other party 

the facts of record indicate has an 

interest in the seized property. The 

notice will describe the seized property, 

state the time, place, and reason for the 

seizure and return, and will identify the 

owner or consignee, and if appropriate, 

the bailee of the seized property. The 

notice of the return also will state that 

the party to whom the property is being 

returned is responsible for any 

distribution of the property to any party 

who holds a valid claim, right, title or 

interest in receiving the property, in 

whole or in part. The notice also will 

provide that on presentation of the 

notice and proper identification, and the 

signing of a receipt provided by NOAA, 

the seized property is authorized to be 

released.

[FR Doc. 04–22598 Filed 10–6–04; 1:20 am]

BILLING CODE 3510–12–S

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 110 

[CGD05–03–036] 

RIN 1625–AA01 

Baltimore Harbor Anchorage Project

AGENCY: Coast Guard, DHS.

ACTION: Supplemental notice of 

proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

amend the geographic coordinates and 

modify the regulated use of the 

anchorages in Baltimore Harbor, MD. 

Since publication of the previous 

supplemental notice of proposed 

rulemaking (SNPRM), the Coast Guard 

also proposes to change the 

requirements for visitors on board 

vessels carrying Certain Dangerous 

Cargoes (CDC) and to reinstate time 

restrictions, inadvertently excluded 

from the notice of proposed rulemaking 

(NPRM) and previous SNPRM, for 

vessels anchored in designated 

anchorage grounds. This supplemental 

notice of proposed rulemaking solicits 

comments for those changes plus all 

original changes in the NPRM and the 

two changes published in the first 

SNPRM. An explanation of the 

additional changes can be found in the 

‘‘Discussion of Rule’’ section of this 

document.

DATES: Comments and related material 

must reach the Coast Guard on or before 

December 13, 2004.

ADDRESSES: Comments and material 

received from the public, as well as 

documents indicated in this preamble as 

being available in the docket, are part of 

docket CGD05–03–036 and are available 

for inspection or copying at 

Commander, Fifth Coast Guard District 

(oan), 431 Crawford Street, Portsmouth, 

VA, 23704–5004 between 9 a.m. and 3 

p.m., Monday through Friday, except 

Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Lieutenant Junior Grade Timothy 

Martin, Fifth Coast Guard District Aids 

to Navigation and Waterways 

Management Branch, (757) 398–6285, 

email: trmartin@lantd5.uscg.mil.

SUPPLEMENTARY INFORMATION: 

Request for Comments 

The Coast Guard encourages you to 

participate in this rulemaking by 

submitting comments and related 

material. If you do so, please include 

your name and address, identify the 

docket number for this rulemaking 

(CGD05–03–036), indicate the specific 

section of this document to which each 

comment applies, and give the reason 

for each comment. Please submit all 

comments and related material in an 

unbound format, no larger than 81⁄2 by 

11 inches, suitable for copying. If you 

would like to know they reached us, 

please enclose a stamped, self-addressed 

postcard or envelope. We will consider 

all comments and material received 

during the comment period. We may 

change this proposed rule in view of 

them. 

Regulatory Information 

On July 2, 2003, we published a 

notice of proposed rulemaking (NPRM) 

(68 FR 39503) entitled Baltimore Harbor 

Anchorage Project in the Federal 

Register. We received one phone call 

commenting on the NPRM. No public 

hearing was requested, and none was 

held. 

On January 14, 2004 we published a 

supplemental notice of proposed 

rulemaking (SNPRM) (69 FR 2095) also 

entitled Baltimore Harbor Anchorage 

Project in the Federal Register. Since 

then some point coordinates outlining 

Anchorages 1, 2, 5, 6, and 7 have been 

refined through telephone and email 

correspondences with the National 

Oceanic and Atmospheric 

Administration (NOAA) and the U.S. 

Army Corps of Engineers better aligning 

the new anchorages with the Federal 

Navigation project. 

In the NPRM and previous SNPRM, 

with the exception of specific time 

limitations in three of the anchorages, 

the regulatory text omitted the language 

from the current regulation regarding 

the length of time a vessel may remain 

anchored in the general anchorages. The 

changes to this rule do not affect the 

time limitations set out in the current 

regulation and therefore, that language 

will be reinstated in the regulatory text 

in the final rule. 

Background and Purpose 

The U.S. Army Corps of Engineers 

received Congressional authorization for 

the Baltimore Harbor Anchorage project 

in September 2001. The objective of this 

project was to increase the project 

depths of Anchorages 3 and 4 to 42ft 

and 35ft respectively. The original 

Federal anchorage project for Baltimore 

Harbor was designed to accommodate 

cargo ships with maximum drafts of 33ft 

and lengths of 550ft. The new 

dimensions of the anchorages were 

changed to accommodate larger ships 

calling on the Port that routinely 

approach 1000ft length, with drafts of 

36 to 38 feet or more. The new