§ 971.901 Formal hearing procedures. ( a ) *General.* ( 1 ) All hearings described in § 971.900 are governed by subpart C of 15 CFR part 904, as modified by this section. The rules in this subpart take precedence over 15 CFR part 904, subpart C, to the extent there is a conflict.
( 2 ) Hearings held under this section will be consolidated insofar as practicable with hearings held by other agencies.
( 3 ) For the purposes of this subpart, *involved applicant, licensee or permittee* means an applicant, licensee or permittee the status of whose application, license, permit or activities conducted under the license or permit may be altered by the Administrator as a result of proceedings under this subpart.
( b ) *Decision to hold a hearing.* Whenever the Administrator finds that a formal hearing is required by the provisions of this part or 15 CFR part 970, he will provide for a formal hearing. Upon deciding to hold a formal hearing, the Administrator will refer the proceeding to the Department of Commerce Office of Administrative Law Judges for assignment to an Administrative Law Judge to serve as presiding officer for the hearing.
( c ) *Notice of formal hearing.* ( 1 ) The Administrator will publish notice of the formal hearing in the Federal Register at least 15 days before the beginning of the hearing, and will send written notice by registered or certified mail to any involved applicant, licensee or permittee and to all persons who submitted written comments upon the action in question, or who testified at any prior informal hearing on the action or who filed a request for the formal hearing under this part or 15 CFR part 970.
( 2 ) Notice of a formal hearing will include, among other things: ( i ) Time and place of the hearing and the name of the presiding judge, as determined under paragraph (b) of this section;
( ii ) The name and address of the person(s) requesting the formal hearing or a statement that the formal hearing is being held by order of the Administrator;
( iii ) The issues in dispute which are to be resolved in the formal hearing;
( iv ) The due date for filing a written request to participate in the hearing in accordance with paragraphs (f)(2) and (f)(3) of this section; and
( v ) Reference to any prior informal hearing from which the issues to be determined arose.
( d ) *Powers and duties of the administrative law judge.* In addition to the powers enumerated in 15 CFR part 904. Subpart C, judges will have the power to: ( 1 ) Regulate the course of the hearing and the conduct of the parties, interested persons and others submitting evidence, including but not limited to the power to require the submission of part or all of the evidence in written form if the judge determines a party will not be prejudiced thereby, and if otherwise in accordance with law;
( 2 ) Rule upon requests submitted in accordance with paragraph (f)(2) of this section to participate as a party, or requests submitted in accordance with paragraph (f)(3) of this section to participate as an interested person in a proceeding, by allowing, denying, or limiting such participation; and
( 3 ) Require at or prior to any hearing, the submission and exchange of evidence.
( e ) *Argument.* At the close of the formal hearing, each party will be given the opportunity to submit written arguments on the issues before the judge.
( f ) *Hearing participation.* ( 1 ) Parties to the formal hearing will include: ( i ) The NOAA General Counsel;
( ii ) Any involved applicant, licensee or permittee; and
( iii ) Any other person determined by the judge, in accordance with paragraph (f)(2) below, to be eligible to participate as a full party.
( 2 ) Any person desiring to participate as a party in a formal hearing must submit a request to the judge to be admitted as a party. The request must be submitted within ten days after the date of mailing or publication of notice of a decision to hold a formal hearing, whichever occurs later. Such person will be allowed to participate if the judge finds that the interests of justice and a fair determination of the issues would be served by granting the request. The judge may entertain a request submitted after the expiration of the ten days, but such a request may only be granted upon an express finding on the record that: ( i ) Special circumstances justify granting the request;
( ii ) The interests of justice and a fair determination of the issues would be served by granting the request;
( iii ) The requestor has consented to be bound by all prior written agreements and stipulations agreed to by the existing parties, and all prior orders entered in the proceedings; and
( iv ) Granting the request will not cause undue delay or prejudice the rights of the existing parties.
( 3 ) ( i ) Any interested person who desires to submit evidence in a formal hearing must submit a request within ten days after the dates of mailing or publication of notice of a decision to hold a formal hearing, whichever occurs later. The judge may waive the ten day rule for good cause, such as if the interested person, making this request after the expiration of the ten days, the formal hearing, and the evidence he proposes to submit may significantly affect the outcome of the proceedings.
( ii ) The judge may permit an interested person to submit evidence at any formal hearing if the judge determines that such evidence is relevant to facts in dispute concerning the issue(s) being adjudicated. The fact that an interested person may submit evidence under this paragraph at a hearing does not entitle the interested person to participate in other ways in the hearing unless allowed by the judge under paragraph (f)(3)(iii) below.
( iii ) The judge may allow an interested person to submit oral testimony, oral arguments or briefs, or to cross-examine witnesses or participate in other ways, if the judge determines: ( A ) That the interests of justice would be better served by allowing such participation by the interested person; and
( B ) That there are compelling circumstances favoring such participation by the interested person.
( g ) *Definition of issues.* ( 1 ) Whenever a formal hearing is conducted pursuant to this section the Administrator may certify the issues for decision to the judge, and if the issues are so certified, the formal hearing will be limited to those issues.
( 2 ) Whenever a formal hearing is conducted pursuant to a request by an applicant, licensee or permittee for review of a denial of certification, issuance or transfer of a license or permit in accordance with section 106(a)(4) of the Act, or pursuant to an objection to any term, condition, or restriction in a permit in accordance with section 105(b)(3) or (c)(4) of the Act, no issues may be raised by any party or interested person that were not previously raised in the administrative proceedings on the action pursuant to any such section, unless the judge determines that good cause is shown for the failure to raise them. Good cause includes the case where the party seeking to raise the new issues shows that it could not reasonably have ascertained the issues at a prior stage in the administrative process, or that it could not have reasonably anticipated the relevance or materiality of the information sought to be introduced.
( h ) *Decisions* — ( 1 ) *Proposed findings of fact and conclusions of law.* The judge will allow each party to file with the judge proposed findings of fact, and in appropriate cases conclusions of law, together with a supporting brief expressing the reasons for such proposals. Such proposals and briefs must be filed within ten days after the hearing or within such additional time as the judge may allow. Such proposals and briefs must refer to all portions of the record and to all authorities relied upon in support of each proposal. Reply briefs must be submitted within ten days after receipt of the proposed findings and conclusions to which they respond, unless the judge allows additional time.
( 2 ) *Recommended decision.* ( i ) As soon as practicable, but normally not later than 90 days after the conclusion of the formal hearing, the judge will evaluate the record of the formal hearing and prepare and file a recommended decision with the Administrator. The decision will contain findings of fact, when appropriate, conclusions regarding all material isuses of law, and a recommendation as to the appropriate action to be taken by the Administrator. The judge will serve a copy of the decision on each party and upon the Administrator.
( ii ) Within thirty days after the date the recommended decision is served, any party may file with the Administrator exceptions to the recommended decision. The exceptions must refer to all portions of the record and to all authorities relied on in support of the exceptions.
( 3 ) *Final decision.* ( i ) As soon as practicable, but normally not later than 60 days after receipt of the recommended decision, the Administrator will issue a final decision. The final decision will include findings of fact and conclusions regarding material issues of law or discretion, as well as reasons therefor. The final decision may accept or reject all or part of the recommended decision. The Administrator shall assure that the record shows the ruling on each exception presented.
( ii ) With respect to hearings held pursuant to section 116(b), the Administrator may defer announcement of his findings of fact until the time he takes final action with respect to any action described in section 116(a).
( iii ) The Administrator will base the final decision upon the record already made except that the Administrator may issue orders: ( A ) Specifying the filing of supplemental briefs; or
( B ) Remanding the matter to the judge for the receipt of further evidence, or otherwise assisting in the determination of the matter.
( i ) *Filing and service of documents.* ( 1 ) Whenever the regulations in this subpart or an order issued hereunder require a document to be filed within a certain period of time, such document will be considered filed as of the date of the postmark, if mailed, or (if not mailed) as of the date actually delivered to the office where filing is required. Time periods will begin to run on the day following the date of the document, paper, or event which begins at the time period.
( 2 ) All submissions must be signed by the person making the submission, or by the person's attorney or other authorized agent or representative.
( 3 ) Service of a document must be made by delivering or mailing a copy of the document to the known address of the person being served.
( 4 ) Whenever the regulations in this subpart require service of a document, such service may effectively be made on the agent for the service of process or on the attorney for the person to be served.
( 5 ) Refusal of service of a document by the person, his agent, or attorney will be deemed effective service of the document as of the date of such refusal.
( 6 ) A certficate of the person serving the document by personal delivery or by mailing, setting forth the manner of the service, will be proof of the service.