Civil Procedures, 12440-12465 [06-2187]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

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



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Part II





Department of Commerce





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National Oceanic and Atmospheric Administration



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15 CFR Parts 904



Civil Procedures; Final Rule

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

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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 904

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


Civil Procedures

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

ACTION: Final rule.

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SUMMARY: NOAA is amending its Civil Procedures governing NOAA's 
administrative proceedings for assessment of civil penalties; 
suspension, revocation, modification, or denial of permits; issuance 
and use of written warnings; and release or forfeiture of seized 
property. The intended impact of this action is to conform the civil 
procedure rules to changes in applicable Federal laws and regulations, 
improve the efficiency and fairness of administrative proceedings, 
clarify any ambiguities or inconsistencies in the existing civil 
procedure rules, eliminate redundant language and correct language 
errors and conform the civil procedure rules to current agency 
practice.

DATES: This rule becomes effective April 10, 2006.

SUPPLEMENTARY INFORMATION:

I. Background

    As announced in the Federal Register on October 12, 2004 (69 FR 
60569), NOAA is amending its Civil Procedures governing the Agency's 
administrative proceedings for assessment of civil penalties; 
suspension, revocation, modification, or denial of permits; issuance 
and use of written warnings; and release or forfeiture of seized 
property. The initial comment period for the proposed rule closed on 
December 13, 2004. In response to requests from interested parties, the 
comment period was reopened on January 5, 2005 (70 FR 740), and the 
second comment period closed on January 31, 2005.

II. Revisions to Final Rule

General Revisions

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

Subpart A--General

1. Purpose and Scope

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

2. Definitions

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

[[Page 12441]]

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

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

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

4. Computation of Time Periods

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

5. Appearance

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

Subpart B--Civil Penalties

1. Notice of Violation and Assessment (NOVA)

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

2. Final Administrative Decision

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

3. Payment of Final Civil Penalty

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

4. Compromise of Civil Penalty

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

5. Joint and Several Respondents

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

6. Factors Considered in Assessing Civil Penalties

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

Subpart C--Hearing and Appeal Procedures

1. Scope and Applicability

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

2. Hearing Requests and Case Docketing

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

3. Duties and Powers of Judge

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

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

4. Disqualification of Judge

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

5. Pleadings, Motions, and Service

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

6. Extensions of Time

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

7. Expedited Administrative Proceedings

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

8. Failure To Appear

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

9. Failure To Prosecute or Defend

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

10. Consolidation

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

11. Prehearing Conference

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

Discovery

1. Discovery Generally

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

2. Subpoenas

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

Hearings

1. Notice of Time and Place of Hearing

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

2. Evidence

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

3. Ex Parte Communications

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

Post-Hearing

1. Recordation of Hearing

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

2. Post Hearing Briefs

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

Decision

1. Initial Decision

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

2. Administrative Review of Decision

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

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

Subpart D--Permit Sanctions and Denials

General

1. Scope and Applicability

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

2. Bases for Permit Sanctions and Denials

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

3. Notice of Permit Sanction (NOPS)

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

4. Notice of Intent To Deny Permit (NIDP)

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

5. Opportunity for Hearing

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

6. Final Administrative Decision

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

Permit Sanctions for Noncompliance

1. Compliance

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

Subpart E--Written Warnings

1. Procedures

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

2. Review and Appeal of a Written Warning

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

Subpart F--Seizure and Forfeiture Procedures

1. Notice of Seizure

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

2. Bonded Release of Seized Property

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

3. Administrative Forfeiture Proceedings

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

[[Page 12444]]

4. Summary Sale

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

5. Return of Seized Property

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

III. Response to Comments

General Comments

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

[[Page 12445]]

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

[[Page 12446]]

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

[[Page 12447]]

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

[[Page 12448]]

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

IV. Administrative Requirements

A. The Regulatory Flexibility Act

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

B. Executive Order 12866

    Under Executive Order 12866 (58 FR 51,735 (October 4, 1993)) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. It was determined when this rule was proposed that it 
is not a ``significant regulatory action'' under the terms of Executive 
Order 12866 and is therefore not subject to OMB review.

C. Paperwork Reduction Act

    At the proposed rule stage, it was determined that this regulatory 
action contains no information collection activities and, therefore, no 
information collection request (ICR) was submitted to the Office of 
Management and Budget (OMB) for review in compliance with the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq.

List of Subjects in 15 CFR Part 904

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

    Dated: March 2, 2006.
James R. Walpole,
General Counsel, National Oceanic and Atmospheric Administration.

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

0
1. Part 904 is revised to read as follows:

PART 904--CIVIL PROCEDURES

Subpart A--General
Sec.
904.1 Purpose and scope.
904.2 Definitions and acronyms.
904.3 Filing and service of notices, documents, and other papers.
904.4 Computation of time periods.
904.5 Appearances.
Subpart B--Civil Penalties
904.100 General.
904.101 Notice of violation and assessment (NOVA).
904.102 Procedures upon receipt of a NOVA.
904.103 Hearing.
904.104 Final administrative decision.
904.105 Payment of final civil penalty.
904.106 Compromise of civil penalty.
904.107 Joint and several respondents.
904.108 Factors considered in assessing civil penalties.

[[Page 12449]]

Subpart C--Hearing and Appeal Procedures

General

904.200 Scope and applicability.
904.201 Hearing requests and case docketing.
904.202 Filing of documents.
904.203 [Reserved]
904.204 Duties and powers of Judge.
904.205 Disqualification of Judge.
904.206 Pleadings, motions, and service.
904.207 Amendment of pleading or record.
904.208 Extensions of time.
904.209 Expedited administrative proceedings.
904.210 Summary decision.
904.211 Failure to appear.
904.212 Failure to prosecute or defend.
904.213 Settlements.
904.214 Stipulations.
904.215 Consolidation.
904.216 Prehearing conferences.

Discovery

904.240 Discovery generally.
904.241 Depositions.
904.242 Interrogatories.
904.243 Admissions.
904.244 Production of documents and inspection.
904.245 Subpoenas.

Hearings

904.250 Notice of time and place of hearing.
904.251 Evidence.
904.252 Witnesses.
904.253 Closing of record.
904.254 Interlocutory review.
904.255 Ex parte communications.

Post-Hearing

904.260 Recordation of hearing.
904.261 Post-hearing briefs.

Decision

904.270 Record of decision.
904.271 Initial decision.
904.272 Petition for reconsideration.
904.273 Administrative review of decision.
Subpart D--Permit Sanctions and Denials

General

904.300 Scope and applicability.
904.301 Bases for permit sanctions or denials.
904.302 Notice of permit sanction (NOPS).
904.303 Notice of intent to deny permit (NIDP).
904.304 Opportunity for hearing.
904.305 Final administrative decision.

Permit Sanctions for Noncompliance

904.310 Nature of permit sanctions.
904.311 Compliance.

Permit Sanctions for Violations

904.320 Nature of permit sanctions.
904.321 Reinstatement o