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###### National Oceanic and Atmospheric Administration

          - 50 CFR Part 228 
          - [Docket No. 000619186-0186-01; I.D.051500B] 
          - RIN 0648-AO17 

# AGENCY:

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

# ACTION:

Final rule. 

# SUMMARY:

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

# DATES:

Effective June 27, 2000. 

# ADDRESSES:

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

# FOR FURTHER INFORMATION CONTACT:

Caroline Good, (301) 713-2322, x117. 

# SUPPLEMENTARY INFORMATION: 

## Background 

The MMPA gives the Secretaries of Commerce and Interior broad authority to issue and implement regulations related to the conservation or taking of marine mammals. In some cases (e.g., regulating subsistence harvest by Alaskan Natives), the MMPA requires a hearing on the record as provided in section 103(d) of the MMPA. The Endangered Species Act (ESA) also requires a formal rulemaking hearing before the Secretaries of Commerce or Interior can limit the subsistence take of threatened or endangered species of fish or wildlife by Alaska Natives. These ESA formal rulemaking provisions cross-reference section 103(d) of the MMPA, 16 U.S.C. 1539(e)(4). 

Prior to 1995, the rules of practice and procedure for hearings conducted pursuant to section 103(d) of the MMPA were codified at 50 CFR 216.71. In 1995, NMFS removed these rules as part of an effort to simplify the Code of Federal Regulations. Such hearings had not been convened for more than 15 years, and NMFS did not anticipate using the rules in the foreseeable future. 

NMFS now anticipates conducting formal rulemaking to promulgate regulations governing the subsistence harvest of certain marine mammals by Alaska Natives. NMFS is reinstating the rules of practice and procedure that were removed in 1995. This final rule reinstates these rules as they appeared prior to 1995 with only minor technical corrections to incorporate current terminology, such as Assistant Administrator for Fisheries rather than Director, NMFS. 

## Classification 

This final rule establishes agency rules of practice and procedure. Under section 553(b)(3)(A) of the Administrative Procedure Act (APA), prior notice and opportunity for comment is not required for the promulgation of agency rules of practice and procedure. Under section 553(d) of the APA, only substantive rules require publication 30 days prior to their effective date. This final rule is effective upon publication. 

Because prior notice and opportunity for public comment are not required to be provided for this final rule by 5 U.S.C. 553 or by any other law, the analytical requirements of the Regulatory Flexibility Act do not apply. 

This final rule is not subject to review under Executive Order 12866. 

The promulgation of regulations establishing rules of practice and procedure in this instance is categorically excluded by NOAA Administrative Order 216-6 from the requirement to prepare an environmental assessment or an environmental impact statement under the National Environmental Policy Act. 

This final rule does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act of 1980. 

This final rule does not contain policies with federalism implications sufficient to warrant preparation of a federalism assessment under E.O. 13132. 

# List of Subjects in 50 CFR Part 228

      - Administrative practice and procedure
      - Endangered and threatened species
      - Marine mammals

Dated: June 21, 2000. 

Andrew A. Rosenberg, 

Deputy Assistant Administrator for Fisheries, National Marine Fisheries Service. 

For reasons set forth in the preamble, 50 CFR part 228 is added to read as follows: 

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

        - 228.1
        - Basis and purpose. 
        - 228.2
        - Definitions. 
        - 228.3
        - Scope of regulations. 
        - 228.4
        - Notice of hearing. 
        - 228.5
        - Notification by interested persons. 
        - 228.6
        - Presiding officer. 
        - 228.7
        - Direct testimony submitted as written documents. 
        - 228.8
        - Mailing address. 
        - 228.9
        - Inspection and copying of documents. 
        - 228.10
        - Ex parte communications. 
        - 228.11
        - Prehearing conference. 
        - 228.12
        - Final agenda of the hearing. 
        - 228.13
        - Determination to cancel the hearing. 
        - 228.14
        - Rebuttal testimony and new issues of fact in final agenda. 
        - 228.15
        - Waiver of right to participate. 
        - 228.16
        - Conduct of the hearing. 
        - 228.17
        - Direct testimony. 
        - 228.18
        - Cross-examination. 
        - 228.19
        -                                 Oral and written arguments.                                        ( print page 39561)      
        - 228.20
        - Recommended decision, certification of the transcript and submission of comments on the recommended decision. 
        - 228.21
        - Assistant Administrator's decision. 

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

§ 228.1

(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these regulations authorize the Assistant Administrator of the National Marine Fisheries Service, to: 

(1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations; 

(2) Waive the moratorium and to adopt regulations with respect to the taking and importing of animals from each species of marine mammals under the Assistant Administrator's jurisdiction; 

(3) Prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sections, the Act refers the Assistant Administrator to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Assistant Administrator to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)). 

(b) The purpose of this part is to establish rules of practice and procedure for all hearings conducted pursuant to section 103(d) of the Act. 

§ 228.2

                                (a)                                 *Party*                                 means, for the purposes of this subpart:                             

(1) The Assistant Administrator or the Assistant Administrator's representative; 

(2) A person who has notified the Assistant Administrator by specified dates of his or her intent to participate in the hearing pursuant to §§ 228.5 and 228.14(b). 

                                (b)                                 *Witness*                                 means, for the purpose of this part, any person who submits written direct testimony on the proposed regulations. A person may be both a party and a witness.                             

§ 228.3

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

§ 228.4

                                (a) A notice of hearing on any proposed regulations shall be published in the                                 **Federal Register**                                , together with the Assistant Administrator's proposed determination to waive the moratorium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where applicable.                             

(b) The notice shall state: 

(1) The nature of the hearing; 

(2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing; 

(3) The legal authority under which the hearing is to be held; 

(4) The proposed regulations and waiver, where applicable, and a summary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d)); 

(5) Issues of fact which may be involved in the hearing; 

(6) If a draft Environmental Impact Statement is required, the date of publication of the draft and the place(s) where the draft and comments thereon may be viewed and copied; 

(7) Any written advice received from the Marine Mammal Commission; 

(8) The place(s) where records and submitted direct testimony will be kept for public inspection; 

(9) The final date for filing with the Assistant Administrator a notice of intent to participate in the hearing pursuant to § 228.5; 

(10) The final date for submission of direct testimony on the proposed regulations and waiver, if applicable, and the number of copies required; 

(11) The docket number assigned to the case which shall be used in all subsequent proceedings; and 

(12) The place and date of the pre-hearing conference. 

§ 228.5

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

§ 228.6

(a) Upon publication of the notice of hearing pursuant to § 228.4, the Assistant Administrator shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding. 

(b) The presiding officer, in any proceeding under this subpart, shall have power to: 

(1) Change the time and place of the hearing and adjourn the hearing; 

                                (2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the                                 **Federal Register**                                 a final hearing agenda;                             

(3) Rule upon motions, requests and admissibility of direct testimony; 

(4) Administer oaths and affirmations, question witnesses and direct witnesses to testify; 

(5) Modify or waive any rule (after notice) when determining that no party will be prejudiced; 

(6) Receive written comments and hear oral arguments; 

(7) Render a recommended decision; and 

(8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding. 

(c) In case of the absence of the original presiding officer or the original presiding officer's inability to act, the powers and duties to be performed by the original presiding officer under this subpart in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer unless otherwise ordered by the Assistant Administrator. 

(d) The presiding officer may upon the presiding officer's own motion withdraw as presiding officer in a proceeding if the presiding officer deems himself or herself to be disqualified. 

(e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. Upon the filing by an interested person in good faith of a timely and sufficient affidavit alleging the presiding officer's personal bias, malice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Assistant Administrator shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as the Assistant Administrator may deem appropriate in the circumstances. 

§ 228.7

                                (a) Unless otherwise specified, all direct testimony, including                                       ( print page 39562)                                    accompanying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 228.4), the final hearing agenda (§ 228.12), or within 15 days after the conclusion of the prehearing conference (§ 228.14) as the case may be. All direct testimony shall be in affidavit form and exhibits constituting part of such testimony, referred to in the affidavit and made a part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the                                 **Federal Register**                                .                             

(b) The direct testimony submitted shall contain: 

(1) A concise statement of the witness' interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state the witness' relationship to the party; and 

(2) Facts that are relevant and material. 

(c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing. 

(d) Ten copies of all direct testimony must be submitted unless the notice of the hearing specifies otherwise. 

(e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number. 

(f) Contemporaneous with the publication of the notice of hearing, the Assistant Administrator's direct testimony in support of the proposed regulations and waiver, where applicable, shall be available for public inspection as specified in the notice of hearing. The Assistant Administrator may submit additional direct testimony during the time periods allowed for submission of such testimony by witnesses. 

§ 228.8

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

§ 228.9

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

§ 228.10

                                (a) After notice of a hearing is published in the                                 **Federal Register**                                , all communications, whether oral or written, involving any substantive or procedural issue and directed either to the presiding officer or to the Assistant Administrator, Deputy Assistant Administrator, or Chief of the Marine Mammal Division, National Marine Fisheries Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for decision.                             

(b) A record of oral conversations shall be made by the persons who are contacted. All communications shall be available for public viewing at the place(s) specified in the notice of hearing. 

(c) The presiding office shall not consult any person or party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate. 

§ 228.11

(a) After an examination of all the direct testimony submitted pursuant to § 228.7, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing. 

(b) The presiding officer's preliminary determination shall be made available at the place or places provided in the notice of the hearing (§ 228.4(b)(8)) at least 5 days before the prehearing conference. 

(c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions: 

(1) Whether the presiding officer's preliminary determination of issues of fact for the hearing has omitted any significant issues; 

(2) What facts are not in dispute; 

(3) Which witnesses may appear at the hearing; and 

(4) The nature of the interest of each party and which parties' interests are adverse. 

(d) Only parties may participate in the hearing conference and a party may appear in person or be represented by counsel. 

(e) Parties who do not appear at the prehearing conference shall be bound by the conference's determinations. 

§ 228.12

                                (a) After the prehearing conference, the presiding officer shall prepare a final agenda which shall be published in the                                 **Federal Register**                                 within 10 days after the conclusion of the conference. A copy of the final agenda shall be mailed to all parties.                             

(b) The final agenda shall list: 

(1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted which bears on the issues; and 

(2) A final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The final agenda may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing. 

(c) The presiding officer shall publish with the final agenda a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties' interests are adverse on the issues presented. 

§ 228.13

                                (a) If the presiding officer concludes that no issues of fact are presented by the direct testimony submitted, the presiding officer shall publish such conclusion and notice in the                                 **Federal Register**                                 that a hearing shall not be held and shall also publish a date for filing written comments on the proposed regulations. Written comments may include proposed findings and conclusions, arguments or briefs.                             

(b) A person need not be a party to submit any written comments. 

(c) Promptly after expiration of the period for receiving written comments, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and written comments submitted. He shall transfer to the Assistant Administrator his recommended decision, the record and a certificate stating that the record contains all the written direct testimony and comments submitted. The Assistant Administrator shall then make a final decision in accordance with these regulations (§ 228.21). 

      ( print page 39563)    
§ 228.14

(a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the final agenda. 

(b) If the final agenda presents issues not included in the notice of the hearing published pursuant to § 228.4: 

(1) Any person interested in participating at the hearing on such issues presented shall notify the Assistant Administrator by certified mail of an intent to participate not later than 10 days after publication of the final agenda. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless that person previously notified the Assistant Administrator pursuant to § 228.5; and 

(2) Additional written direct testimony concerning such issues may be submitted within the time provided in the final agenda. Such direct testimony will comply with the requirements of § 228.7. 

§ 228.15

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

§ 228.16

                                (a) The hearing shall be held at the time and place fixed in the notice of the hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the                                 **Federal Register**                                 and shall expeditiously notify all parties by telephone or by mail: Provided, that if that change in time or place of hearing is made less than 5 days before the date previously fixed for the hearing, the presiding officer shall also announce, or cause to be announced, the change at the time and place previously fixed for the hearing.                             

                                (b) The presiding officer shall, at the commencement of the hearing, introduce into the record: the notice of hearing as published in the                                 **Federal Register**                                ; all subsequent documents published in the                                 **Federal Register**                                ; the draft Environmental Impact Statement if it is required and the comments thereon and agency responses to the comments; and a list of all parties. Direct testimony shall then be received with respect to the matters specified in the final agenda in such order as the presiding officer shall announce. With respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing conference, the presiding officer shall determine the relevancy of such testimony.                             

(c) The hearing shall be publicly conducted and reported verbatim by an official reporter. 

(d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he or she shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling by the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Assistant Administrator's final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings. 

(e) All motions and requests shall be addressed to, and ruled on by, the presiding officer, if made prior to his certification of the transcript or by the Assistant Administrator if made thereafter. 

§ 228.17

(a) Only direct testimony submitted by affidavit as provided in these regulations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof; 

(b) The witness introducing direct testimony shall: 

(1) State his or her name, address and occupation; 

(2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training which qualifies the witness as an expert; 

(3) Identify the direct testimony previously submitted in accordance with these regulations; and 

(4) Submit to appropriate cross and direct examination. Cross-examination shall be by a party whose interests are adverse on the issue presented, to the witness', if the witness is a party, or to the interests of the party who presented the witness. 

(c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct testimony. 

(d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States: Provided, that parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed. 

§ 228.18

(a) The presiding officer may: 

(1) Require the cross-examiner to outline the intended scope of the cross-examination; 

(2) Prohibit parties from cross-examining witnesses unless the presiding officer has determined that the cross-examiner has an adverse interest on the facts at issue to the party-witness or the party presenting the witness. For the purposes of this subsection, the Assistant Administrator's or his or her representative's interest shall be considered adverse to all parties; 

(3) Limit the number of times any party or parties having a common interest may cross-examine an “adverse” witness on the same matter; and 

(4) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious. 

(b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his or her name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony. 

(c) Any party or party's counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness. 

(d) Scientific, technical or commercial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination unless previously submitted and introduced in accordance with these regulations. 

§ 228.19

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

                                (b) The presiding officer shall announce at the hearing a reasonable                                       ( print page 39564)                                    period of time within which any interested person may file with the presiding officer any written comments on the proposed regulations and waiver, including proposed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, the party shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state their arguments thereon as a part of the brief.                             

(c) Oral or written arguments shall be limited to issues arising from direct testimony on the record. 

§ 228.20

(a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Assistant Administrator. The recommended decision shall include: 

(1) A statement containing a description of the history of the proceedings; 

(2) Findings on the issues of fact with the reasons therefor; and 

(3) Rulings on issues of law. 

(b) The presiding officer shall also transmit to the Assistant Administrator the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified. 

                                (c) Immediately after receipt of the recommended decision, the Assistant Administrator shall give notice thereof in the                                 **Federal Register**                                , send copies of the recommended decision to all parties, and provide opportunity for the submission of comments. The recommended decision may be reviewed and/or copied in the office of the Assistant Administrator, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910.                             

                                (d) Within 20 days after the notice of receipt of the recommended decision has been published in the                                 **Federal Register**                                , any interested person may file with the Assistant Administrator any written comments on the recommended decision. All comments, including recommendations from or consultation with the Marine Mammal Commission, must be submitted during the 20-day period to the Assistant Administrator at the previously mentioned address.                             

§ 228.21

(a) Upon receipt of the recommended decision and transcript and after the 20-day period for receiving written comments on the recommended decision has passed, the Assistant Administrator shall make a final decision on the proposed regulations and waiver, where applicable. The Assistant Administrator's decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the presiding officer. The Assistant Administrator may also remand the hearing record to the presiding officer for a fuller development of the record. 

(b) The Assistant Administrator's decision shall include: 

(1) A statement containing a description of the history of the proceeding; 

(2) Findings on the issues of fact with the reasons therefor; and 

(3) Rulings on issues of law. 

                                (4) The Assistant Administrator's decision shall be published in the                                 **Federal Register**                                . If the waiver is approved, the final adopted regulations shall be promulgated with the decision.                             

[FR Doc. 00-16229 Filed 6-26-00; 8:45 am] 

BILLING CODE 3510-22-F