Civil Procedures in Civil Administrative Enforcement Proceedings, 16687-16698 [2022-05845]

Download as PDF Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules * * * * * Issued in Washington, DC, on March 17, 2022. Scott M. Rosenbloom, Manager, Airspace Rules and Regulations. [FR Doc. 2022–06065 Filed 3–23–22; 8:45 am] BILLING CODE 4910–13–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 904 [Docket No. 220114–0015] RIN 0648–BI72 Civil Procedures in Civil Administrative Enforcement Proceedings Office of General Counsel (OGC), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. AGENCY: NOAA proposes to amend procedures governing its civil administrative enforcement proceedings. The principal changes would include updates to statutory references, clarifications regarding the Administrator’s discretionary review, revised directions for appealing a written warning, revised requirements for denying a request for admission, and revised directions for electronic service related to certain appeals and petitions. Other changes would remove the requirement for NOAA to challenge late hearing requests, simplify the use of electronic signatures, rename discovery filings, allow depositions by videoconference, require discovery filings to state when a witness is expected to speak in a language other than the English language in order to arrange interpretation, clarify when failing to pay can be a basis for permit sanctions, incorporate Civil Asset Forfeiture Reform Act deadlines into administrative forfeiture proceedings, and allow NOAA to publish a Notice of Proposed Forfeiture on an official government website. In addition, minor changes would update titles and addresses and correct clerical errors. DATES: Comments and information must be received no later than 5 p.m. Eastern Time on April 25, 2022. ADDRESSES: You may submit comments on this document, identified by NOAA– HQ–2022–0016, by any of the following methods: • Electronic submission: Submit electronic public comments via the khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter [NOAA–HQ–2022–0016] in the Search box. Click on the ‘‘Comment’’ icon, complete the required fields, and enter or attach your comments. • Mail: Submit written comments to: Office of General Counsel Enforcement Section (GCES), 1315 East-West Highway, SSMC–3—Room 15862, Silver Spring, MD 20910, Attn: Patrick Carroll. Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NOAA. Comments submitted in response to this notice are a matter of public record. Before including an address, phone number, email address, or other personal identifying information in a comment, please be aware that comments— including any personal identifying information—can and will be made publicly available. While a request can be made to withhold personal identifying information from public review, NOAA cannot ensure that it will be able to do so. Comments received electronically will generally be posted to www.regulations.gov without change. For posted comments, all personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NOAA will accept anonymous comments (enter ‘‘N/A’’ in the required fields if you wish to remain anonymous). FOR FURTHER INFORMATION CONTACT: Patrick Carroll or Meggan Engelke-Ros, GCES, (301) 427–2202. SUPPLEMENTARY INFORMATION: I. Background NOAA is proposing to amend the civil procedure regulations that apply to its administrative proceedings (15 CFR part 904), as described below. This includes proposed changes to update the statutory references subject to the application of this chapter of the Code of Federal Regulations, the titles and addresses for various offices of NOAA, the procedures for collection of civil monetary payments, the process for appealing written warnings issued by an authorized officer, and references to the office of Administrative Law Judges. This action would also provide clarifications to NOAA’s filing requirements, requirements for an answering party to deny a request for admissions, deadlines in an administrative forfeiture proceeding, the PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 16687 availability of a NOAA email address to electronically submit appeals of written warnings, petitions to the Administrator, petitions for relief from forfeiture, the process to identify witnesses that are expected to testify in a foreign language, and the criteria the Administrator may rely on to determine whether or not to grant discretionary review. Furthermore, this action would add provisions to the forfeiture section to authorize the posting of notices online, and would correct erroneous cross-references, grammatical issues, internal inconsistencies, typos, and other clerical errors that have resulted from the passage of time or were inadvertently left unaddressed in the last major revision to the regulations and have since been identified. II. Proposed Revisions Subpart A—General Purpose and Scope Section 904.1: Paragraph (c) would be amended to update the list of statutes enforced by NOAA pursuant to the procedures set forth in 15 CFR part 904. Specifically, the proposed amendments would remove references to statutes that have been repealed and statutes that are not enforced by NOAA. References to statutes enacted, or amended to include civil administrative enforcement provisions, since 15 CFR part 904 was last amended, would be added. Definitions and Acronyms Section 904.2: This section would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center; to clarify that when U.S. Coast Guard (USCG) personnel are accompanying or acting under the direction of any authorized officer, those USCG personnel are authorized officers; to clarify that it is the Secretary of Commerce that may enter into agreements with Federal and state agencies to enforce statutes administered by NOAA; to clarify that a written warning may be a final administrative decision; and to rename initial discovery filings. Filing and Service Section 904.3: The heading of this section would be simplified to reflect that its provisions pertain to the service of any documents rather than specific filings, such as filings with the Office of Administrative Law Judges. Paragraph (a) would be amended to clarify that the requirements related to service apply to Initial Decisions as well as to notices and Written Warnings, and conforming amendments would be made to E:\FR\FM\24MRP1.SGM 24MRP1 16688 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules paragraphs (b), (c), and (d). Paragraphs (a) and (b) would also be amended to remove service by facsimile, given the diminished prevalence of this form of communication and the current use of electronic transmission. Computation of Time Periods Section 904.4: The first line of this section would be amended to correct a typographical error. Subpart B—Civil Penalties Notice of Violation and Assessment (NOVA) Section 904.101: Introductory paragraph (a) would be amended to correct a typographical error. Procedures Upon Receipt of a NOVA Section 904.102: Paragraphs (c) and (d) of this section would be amended to correct typographical errors. Hearing Section 904.103: This section would be removed and reserved. This is not a substantive change because the existing language merely reiterates requirements more clearly articulated in other provisions of NOAA’s civil procedures regulations. This revision proposes to delete the redundant text. Payment of Final Civil Penalty Section 904.105: Paragraph (a) would be amended by replacing the instructions for payment of civil penalties with language reflecting current practices. Instructions related to the form of payment are no longer included in the Notice of Violation and Assessment of civil penalty (NOVA) or settlement agreement, but are instead provided by NOAA in an initial bill. Joint and Several Respondents Section 904.107: The last sentence of paragraph (b) would be amended to ensure consistent and correct use of terms. khammond on DSKJM1Z7X2PROD with PROPOSALS Factors Considered in Assessing Civil Penalties Subpart C—Hearing and Appeal Processes Section 904.200: Paragraph (a) would be amended to clarify that this subpart also pertains to violations of other laws Jkt 256001 Section 904.201: Paragraph (a) would be amended to require hearing requests to conform to the service requirements in § 904.3. Paragraph (b) would be inserted to clarify that a request for a hearing must contain current contact information, including an active telephone number and email address (if available), and that NOAA and the Office of Administrative Law Judges must be promptly notified of any changes to that information. Accordingly, paragraphs (b) and (c) would be renamed paragraphs (c) and (d), respectively. Paragraphs (a), (c) and (d), as renumbered, would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center. Paragraph (c), as renumbered, would be amended to ensure consistent and correct use of terms. Filing of Documents Section 904.202: Paragraph (a) would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center, and to incorporate the filing requirements specified at § 904.3. Duties and Powers of Judge Section 904.204: Paragraph (a) would be amended to reference § 904.201(c) rather than § 904.201(b) to reflect the change in the numbering of § 904.201. Pleadings, Motions, and Service Section 904.206: Paragraph (a) would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center. Paragraph (b) would be amended to allow pleadings to be signed in any manner to allow flexibility in electronic filing. Section 904.209: This section would be amended to correct a typographical error. Stipulations Section 904.214: This section would be amended to correct a typographical error. Prehearing Conferences Scope and Applicability 16:36 Mar 23, 2022 Hearing Requests and Case Docketing Expedited Administrative Proceedings Section 904.108: The last sentence of paragraph (e) and first sentence of paragraph (h) would be amended to reflect the fact that the Administrative Law Judge is assessing a penalty as a matter of first impression rather than reviewing a final agency action. VerDate Sep<11>2014 or authorities administered by NOAA to mirror the scope of § 904.1. Section 904.216: Introductory paragraph (a) of this section would be amended to correct a typographical error. PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 Discovery Generally Section 904.240: Throughout this section, initial discovery filings would be renamed for clarity and to more accurately describe the purpose of these filings in NOAA’s administrative proceedings. Conforming changes would be made throughout 15 CFR part 904 for consistency. Paragraph (a) would be amended to clarify that the Administrative Law Judge will set the deadline for the parties to submit their initial discovery filings. Paragraph (a)(2) would be amended to clarify who must sign the initial discovery filings, and that those filings must be served in conformance with § 904.3. Paragraph (b) would be amended to allow for service of discovery requests regarding ability to pay in conformance with § 904.3. Paragraph (f) would be amended to clarify that the provisions regarding the failure to comply with discovery obligations also apply to initial discovery filings. Depositions Section 904.241: Paragraph (a) would be amended to require the written notice of deposition to also provide the phone number and email address (if available) of the person before whom the deposition would be taken. Paragraph (c) would be amended to allow depositions to take place by videoconference. Paragraph (d) would be amended to clarify that the admissibility of depositions is determined under this part rather than the Federal Rules of Evidence, consistent with § 904.251, which states the formal rules of evidence do not necessarily apply. Interrogatories Section 904.242: Paragraphs (a) and (b) would be amended to clarify that service of interrogatories must be in conformance with § 904.3. Paragraph (a) would also be amended to move the requirement that answers to interrogatories be used in the same manner as depositions into new paragraph (d) to match the organization of other sections. Admissions Section 904.243: Paragraphs (a) and (b) would be amended to clarify that service of admission requests and responses must be in conformance with § 904.3. Paragraph (b) would be amended to require a denial to fairly respond to the substance of the matter and specify which part of an answer is denied. Paragraph (b) would also be amended to require a party failing to admit or deny an admission to state that it has made reasonable inquiry and E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules assert that the information known or readily obtainable is insufficient to admit or deny. The proposed language mirrors requirements in Rule 36 of the Federal Rules of Civil Procedures. Hearings Section 904.250: Paragraph (a) would be amended to correct the internal reference to paragraph (d) of the same section regarding the scheduling of expedited proceedings. Evidence Section 904.251: Paragraph (a)(3) would be amended to clarify that evidence may still be presented to establish matters of aggravation or mitigation where the respondent admits an allegation. Existing paragraph (i) would be separated into two paragraphs, so that new paragraph (i) would address foreign law and new paragraph (j) would address foreign language exhibits. This is an organizational change with no amendments to the content of the rules. Witnesses Section 904.252: Paragraph (a) would be amended to state that certain witnesses are eligible to receive fees rather than required to receive fees; this change would cover circumstances where the witness declines to receive payment. Paragraph (f) would be amended to require a party to state in its initial discovery filings if a witness the party sponsors is expected to testify in a language other than the English language and removes the requirement for the party sponsoring the witness to provide for the services. The proposed change would provide more notice than the current requirement of advising opposing counsel 10 days prior to a hearing and would create more flexibility to successfully arrange for the use of a certified interpreter. Recordation of Hearing Section 904.260: Paragraph (b) would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center. khammond on DSKJM1Z7X2PROD with PROPOSALS Record of Decision Section 904.270: Paragraph (b) would be amended to reflect that the Administrative Law Judges currently hearing NOAA enforcement cases do not have a docketing center. Initial Decision Section 904.271: The title and contents of this section would be amended to ensure correct capitalization. Conforming changes VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 would be made throughout this part. Paragraphs (a) and (c) would be amended to clarify that this section applies to the Administrative Law Judge’s Initial Decision upon the case. Paragraph (c) would be revised to reflect the current title of the Chief of the Enforcement Section of NOAA’s Office of General Counsel. Paragraph (c) would also be amended to remove the reference to § 904.3 because § 904.3(a) already explicitly references Initial Decisions. Petition for Reconsideration Section 904.272: This section would be amended to correct typographical errors. Administrative Review of Decision Section 904.273: Paragraph (a) would be revised to update the directions for filing petitions for review, including by changing the NOAA Office of General Counsel section that must receive copies of any petitions for review, and providing both mail and electronic transmission options for service. Paragraph (a) would also clarify that service must be made in conformance with § 904.3(b). Paragraph (b) would be revised to clarify that the Administrator may affirm, reverse, modify or remand, in whole or in part, an Administrative Law Judge’s Initial Decision. Paragraph (c) would be revised to clarify the factors the Administrator will consider in determining whether to grant discretionary review. Paragraph (d) would be amended to ensure correct capitalization, and conforming changes would be made throughout this part for consistency. Paragraphs (i) and (k) would be amended to allow for service consistent with § 904.3. Paragraph (l)(2) would be revised to correct an omission of paragraph (i) as actions constituting final agency action. Subpart D—Permit Sanctions and Denials Scope and Applicability Section 904.300: Paragraph (a) would be amended to define the scope of permit sanctions such as the revocation, suspension, modification, and denial of permits. The scope of permit revocation, suspension, and modification would be moved into this paragraph from § 904.320. The scope of a permit denial would be added to clarify that the term permit sanction includes the denial of issuance of a permit in the future. Paragraph (b) would be amended to exclude the Land Remote Sensing Policy Act of 1992, as amended (Act), from this subpart, as regulations at 15 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 16689 CFR part 960 apply to license denials under the Act. Bases for Permit Sanctions Section 904.301: The title of this section would be amended to reflect that permit denials are a form of permit sanction. Paragraph (a) would be amended to clarify that NOAA cannot sanction a permit in a manner inconsistent with an underlying statute. Paragraph (a)(1) and (a)(2) would be amended to simplify the language. Paragraph (a)(4) would be amended to incorporate statutory language from 16 U.S.C. 1858(g)(1)(C) regarding sanctions for failure to pay any amount in settlement of a civil forfeiture on a vessel or other property. Paragraph (b) would be amended to simplify the language regarding which permits a sanction may apply to. Paragraphs (b)(1) through (b)(3), containing hypotheticals where sanctions may be assessed, would be removed to avoid confusion and eliminate dated hypotheticals. These changes are meant to simplify the language and would not change the substance of the provisions related to imposition of sanctions. Notice of Permit Sanction Section 904.302: Paragraph (a) would be amended to remove the crossreference to § 904.3 to avoid repetition. Notice of Intent To Deny Permit Section 904.303: Paragraph (a) would be removed and reserved because the substance of paragraph (a) regarding when NOAA may issue a notice of intent to deny permit is already stated in detail in § 904.301. Paragraph (b) would be amended to remove the crossreference to § 904.3 to avoid repetition. Paragraph (d) would be amended by removing language referencing §§ 904.310 and 904.320 as redundant given earlier changes. Opportunity for Hearing Section 904.304: Paragraph (b) would be amended to simplify the language. Nature of Permit Sanctions Section 904.310: This section would be removed and reserved because the content of this section is already explained in § 904.301, which addresses the bases for permit sanctions. Compliance Section 904.311: The name of this section would be amended to better reflect the specific action addressed in the regulation. Additionally, language would be added to clarify that this regulates sanctions such as permit suspensions, denials, and modifications. E:\FR\FM\24MRP1.SGM 24MRP1 16690 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules Nature of Permit Sanctions Administrative Forfeiture Proceedings Section 904.320: This section would be removed and reserved. The contents of this section provide the scope of three types of permit sanctions and are proposed to be moved to § 904.300 at the beginning of subpart D, which addresses the scope and applicability of permit sanctions. Section 904.504: Paragraph (a) would be amended to conform with the amendments made to § 904.503. Paragraph (b)(1) would be amended to provide a deadline to publish the Notice of Proposed Forfeiture consistent with the Civil Asset Forfeiture Reform Act. Paragraph (b)(1) will also be amended to enable NOAA to publish a Notice of Proposed Forfeiture on an official government website. Paragraph (b)(1) would also remove a repetitive reference to § 904.3. Paragraph (b)(3)(i) would be amended by removing a confusing cross-reference to paragraph (b)(4). Subpart E—Written Warnings Procedures Section 904.402: Paragraph (a) would be amended to remove the crossreference to § 904.3 regarding service to avoid repetition. Section 904.3(a) already explicitly references service of written warnings. Review and Appeal of a Written Warning Section 904.403: Paragraph (a) would be removed and reserved. Paragraph (b) would be revised to direct all appeals of written warnings to the NOAA Deputy General Counsel. This change would ensure that any person involved in the decision to issue a written warning is not responsible for deciding the appeal. Conforming changes would be made to paragraph (b). Paragraph (b) would be further amended to include the procedures for appealing any written warnings and allow for electronic service. Subpart F—Seizure and Forfeiture Procedures Purpose and Scope Notice of Seizure Section 904.501: This section would be revised to correct grammatical errors, and would remove repetitive references to § 904.3. Bonded Release of Seized Property khammond on DSKJM1Z7X2PROD with PROPOSALS Section 904.502: Paragraph (c) would be revised to correct a typographical error. Appraisement Section 904.503: This section would be revised to make the language regarding appraising seized property permissible rather than mandatory to reflect NOAA’s authority to sell perishable property through bids rather than appraisals. 16:36 Mar 23, 2022 Section 904.505: Paragraph (c) would be amended to correct grammatical errors and to remove a redundant reference to § 904.3. Remission of Forfeiture and Restoration of Proceeds of Sale Section 904.506: Paragraph (a)(1) would be amended to correct grammatical errors and to mirror paragraph (b) of this section. Paragraph (b)(1) would be revised to reflect the current title of the Chief of the Enforcement Section of NOAA’s Office of General Counsel and to allow persons to petition for relief from forfeiture electronically in addition to by mail. Paragraph (b)(1) would also be revised to clarify that property is administratively forfeited under § 904.504 and not § 904.506. Disposal of Forfeited Property Section 904.500: Paragraph (a) would be simplified to remove internal inconsistencies. Paragraphs (a) and (b) would be revised to specify that the seizure and forfeiture regulations apply to any laws cited in paragraph (c) of § 904.1. VerDate Sep<11>2014 Summary Sale Jkt 256001 Section 904.509: Paragraph (g)(2) would be amended to reference the updated Federal Property Management regulations. Classification This proposed rule has been determined to be not significant for purposes of Executive Order 12866. Pursuant to the Executive Order on federalism, Executive Order 13132, this proposed rule does not have federalism effects and that a federalism assessment is not required. There are no reporting, recordkeeping or other compliance requirements in the proposed rule. Nor does this proposed rule contain an information-collection request that would implicate the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 economic impact on a substantial number of small entities. The small businesses, as defined in the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., that this proposed rule may affect include, but are not limited to, vessel owners, vessel operators, fish dealers, individual fishermen, small corporations, and others engaged in commercial and recreational activities regulated by NOAA. However, this proposed rule does not have any compliance costs or associated fees for businesses, large or small. This proposed rule is purely procedural, and merely amends and refines NOAA’s existing rules of civil procedure. Because this proposed rule would only modify existing procedural rules, the overall economic impact on small entities, if any, is expected to be nominal. Accordingly, this proposed rule will not have a substantial impact on a significant number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared. List of Subjects in 15 CFR Part 904 Administrative practice and procedure, Fisheries, Fishing, Fishing vessels, Penalties, Seizures and forfeitures. Dated: March 15, 2022. Walker Smith, General Counsel, National Oceanic and Atmospheric Administration. For reasons set forth in the preamble, NOAA proposes to amend 15 CFR part 904 to read as follows: PART 904—CIVIL PROCEDURES 1. The authority citation for part 904 is revised to read as follows: ■ Authority: 16 U.S.C. 1801 et seq., 16 U.S.C. 1531 et seq., 16 U.S.C. 1361 et seq., 16 U.S.C. 3371 et seq., 16 U.S.C. 1431 et seq., 16 U.S.C. 6901 et seq., 16 U.S.C. 773 et seq., 16 U.S.C. 951 et seq., 16 U.S.C. 5001 et seq., 16 U.S.C. 3631 et seq., 42 U.S.C. 9101 et seq., 30 U.S.C. 1401 et seq., 16 U.S.C. 971 et seq., 16 U.S.C. 781 et seq., 16 U.S.C. 2431 et seq., 16 U.S.C. 972 et seq., 16 U.S.C. 916 et seq., 16 U.S.C. 1151 et seq., 16 U.S.C. 3601 et seq., 16 U.S.C. 1851 note; 15 U.S.C. 330 et seq., 16 U.S.C. 2461 et seq., 16 U.S.C. 5101 et seq., 16 U.S.C. 1371 et seq., 16 U.S.C. 3601 et seq., 16 U.S.C. 1822 note, 16 U.S.C. 4001 et seq., 16 U.S.C. 5501 et seq., 16 U.S.C. 5601 et seq., 16 U.S.C. 973 et seq., 16 U.S.C. 1827a, 16 U.S.C. 7701 et seq., 16 U.S.C. 7801 et seq., 16 U.S.C. 1826g, 51 U.S.C. 60101 et seq., 16 U.S.C. 7001 et seq., 16 U.S.C. 7401 et seq., 16 U.S.C. 2401 et seq., 16 U.S.C. 1826k note, 1857 note, 22 U.S.C. 1980, Pub. L. 116–340, 134 Stat. 5128. 2. In § 904.1, revise paragraphs (c)(1) through (40) to read as follows: ■ E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules § 904.1 Purpose and scope. khammond on DSKJM1Z7X2PROD with PROPOSALS * * * * * (c) * * * (1) Anadromous Fish Products Act, 16 U.S.C. 1822 note; (2) Antarctic Conservation Act of 1978, 16 U.S.C. 2401 et seq.; (3) Antarctic Marine Living Resources Convention Act of 1984, 16 U.S.C. 2431 et seq.; (4) Antarctic Mineral Resources Protection Act of 1990, 16 U.S.C. 2461 et seq.; (5) Atlantic Coastal Fisheries Cooperative Management Act, 16 U.S.C. 5101 et seq.; (6) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601 et seq.; (7) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note; (8) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971 et seq.; (9) Billfish Conservation Act of 2012, 16 U.S.C. 1827a; (10) DESCEND Act of 2020, Public Law 116–340, 134 Stat. 5128; (11) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et seq.; (12) Dolphin Protection Consumer Information Act, 16 U.S.C. 1371 et seq.; (13) Driftnet Impact Monitoring, Assessment, and Control Act, 16 U.S.C. 1822 note; (14) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972 et seq.; (15) Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.; (16) Ensuring Access to Pacific Fisheries Act, 16 U.S.C. 7701 et seq. (North Pacific), 16 U.S.C. 7801 et seq. (South Pacific); (17) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001 et seq.; (18) Fisherman’s Protective Act of 1967, 22 U.S.C. 1980; (19) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151 et seq.; (20) High Seas Driftnet Fishing Moratorium Protection Act, 16 U.S.C. 1826g; (21) High Seas Fishing Compliance Act, 16 U.S.C. 5501 et seq.; (22) Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.; (23) Land Remote Sensing Policy Act of 1992, as amended, 51 U.S.C. 60101 et seq.; (24) Magnuson–Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq.; (25) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.; (26) National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.; (27) North Pacific Anadromous Stocks Convention Act of 1992, 16 U.S.C. 5001 et seq.; (28) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773 et seq.; VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 (29) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 5601 et seq.; (30) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et seq.; (31) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631 et seq.; (32) Pacific Whiting Act of 2006, 16 U.S.C. 7001 et seq.; (33) Port State Measures Agreement Act of 2015, 16 U.S.C. 7401 et seq.; (34) Shark Conservation Act of 2010, 16 U.S.C. 1826k note, 1857 note; (35) South Pacific Tuna Act of 1988, 16 U.S.C. 973 et seq.; (36) Sponge Act, 16 U.S.C. 781 et seq.; (37) Tuna Conventions Act of 1950, 16 U.S.C. 951 et seq.; (38) Weather Modification Reporting Act, 15 U.S.C. 330 et seq.; (39) Western and Central Pacific Fisheries Convention Implementation Act, 16 U.S.C. 6901 et seq.; and (40) Whaling Convention Act of 1949, 16 U.S.C. 916 et seq. * * * * * ■ 3. In § 904.2: ■ a. Remove the definition of ‘‘ALJ Docketing Center’’; ■ b. Revise the definitions of ‘‘Applicable statute’’, ‘‘Authorized officer’’, and ‘‘Final administrative decision’’; and ■ c. Remove the definition of ‘‘PPIP’’. The revisions read as follows: § 904.2 Definitions and acronyms. * * * * * Applicable statute means a statute cited in § 904.1(c), and any regulations issued by NOAA to implement it. Authorized officer means: (1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG); (2) Any special agent or fishery enforcement officer of NMFS; (3) Any officer designated by the head of any Federal or state agency that has entered into an agreement with the Secretary of Commerce to enforce the provisions of any statute administered by NOAA; or (4) Any USCG personnel accompanying and/or acting under the direction of any person described in paragraphs (1), (2), or (3) of this definition. * * * * * Final administrative decision means an order or decision of NOAA assessing a civil penalty, permit sanction, or written warning, which is not subject to further Agency review under this part, and which is subject to collection proceedings or judicial review in an appropriate Federal district court as authorized by law. * * * * * PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 ■ 16691 4. Revise § 904.3 to read as follows: § 904.3 Filing and service. (a) Service of a NOVA (§ 904.101), NOPS (§ 904.302), NIDP (§ 904.303), Notice of Proposed Forfeiture (§ 904.504), Notice of Seizure (§ 904.501), Notice of Summary Sale (§ 904.505), Written Warning (§ 904.402), or Initial Decision (§ 904.271) may be made by certified mail (return receipt requested), electronic transmission, or third party commercial carrier to an addressee’s last known address or by personal delivery. Service of a notice under this subpart will be considered effective upon receipt. (b) Service of documents and papers, other than those described in paragraph (a) of this section, may be made by first class mail (postage prepaid), electronic transmission, or third party commercial carrier, to an addressee’s last known address or by personal delivery. Service of documents and papers will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), delivery to third party commercial carrier, electronic transmission, or upon personal delivery. (c) Whenever this part requires service of a document or other paper referred to in paragraph (a) or (b) of this section, such service may effectively be made on the agent for service of process, on the attorney for the person to be served, or other representative. Refusal by the person to be served (including an agent, attorney, or representative) of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. In cases where a document or paper described in paragraph (a) of this section is returned unclaimed, service will be considered effective if the U.S. Postal Service provides an affidavit stating that the party was receiving mail at the same address during the period when certified service was attempted. (d) Any documents and other papers filed or served must be signed: (1) By the person or persons filing the same; (2) By an officer thereof if a corporation; (3) By an officer or authorized employee if a government instrumentality; or (4) By an attorney or other person having authority to sign. ■ 5. In § 904.4, revise the first sentence to read as follows: E:\FR\FM\24MRP1.SGM 24MRP1 16692 § 904.4 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules Computation of time periods. For a NOVA, NOPS or NIDP, the 30day response period begins to run on the date the notice is received. * * * ■ 6. In § 904.101, revise paragraph (a) introductory text to read as follows: § 904.101 Notice of violation and assessment (NOVA). (a) A NOVA will be issued by NOAA and served on the respondent(s). The NOVA will contain: * * * * * ■ 7. In § 904.102, revise paragraphs (c) and (d) to read as follows: § 904.102 NOVA. Procedures upon receipt of a * * * * * (c) The respondent may, within the 30-day period specified in paragraph (a) of this section, request an extension of time to respond. Agency counsel may grant an extension of up to 30 days unless he or she determines that the requester could, exercising reasonable diligence, respond within the 30-day period. If Agency counsel does not respond to the request within 48 hours of its receipt, the request is granted automatically for the extension requested, up to a maximum of 30 days. A telephonic response to the request within the 48-hour period is considered an effective response, and will be followed by written confirmation. (d) Agency counsel may, for good cause, grant an additional extension beyond the 30-day period specified in paragraph (c) of this section. § 904.103 [Removed and Reserved] 8. Remove and reserve § 904.103. 9. In § 904.105, revise paragraph (a) to read as follows: ■ ■ khammond on DSKJM1Z7X2PROD with PROPOSALS § 904.105 Payment of final civil penalty. (a) Respondent must make full payment of the civil penalty within 30 days of the date upon which the NOVA becomes effective as the final administrative decision and order of NOAA under § 904.104 or the date of the final administrative decision as provided in subpart C of this part, as directed by NOAA. Payment must be made in accordance with the bill and instructions provided by NOAA. * * * * * ■ 10. In § 904.107, revise paragraph (b) to read as follows: § 904.107 Joint and several respondents. * * * * * (b) A hearing request by one joint and several respondent is considered a request by the other joint and several respondent(s). Agency counsel, having VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 received a hearing request from one joint and several respondent, will send a copy of it to the other joint and several respondent(s) in the case. However, if the requesting joint and several respondent settles with the Agency prior to the hearing, upon notification by the Agency, any remaining joint and several respondent(s) must affirmatively request a hearing within the time period specified or the case will be removed from the hearing docket as provided in § 904.213. * * * * * ■ 11. In § 904.108, revise paragraphs (e), (f), and (h) to read as follows: § 904.108 Factors considered in assessing civil penalties. * * * * * (e) Financial information regarding respondent’s ability to pay should be submitted to Agency counsel as soon as possible after the receipt of the NOVA. If a respondent has requested a hearing on the violation alleged in the NOVA and wants the Initial Decision of the Judge to consider his or her inability to pay, verifiable, complete, and accurate financial information must be submitted to Agency counsel at least 30 days in advance of the hearing, except where the applicable statute expressly provides for a different time period. No information regarding the respondent’s ability to pay submitted by the respondent less than 30 days in advance of the hearing will be admitted at the hearing or considered in the Initial Decision of the Judge, unless the Judge rules otherwise. If the Judge decides to admit any information related to the respondent’s ability to pay submitted less than 30 days in advance of the hearing, Agency counsel will have 30 days to respond to the submission from the date of admission. In deciding whether to submit such information, the respondent should keep in mind that the Judge may assess a civil penalty either greater or smaller than that assessed in the NOVA. (f) Issues regarding ability to pay will not be considered in an administrative review of an Initial Decision if the financial information was not previously presented by the respondent to the Judge prior to or at the hearing. * * * * * (h) Whenever a statute requires NOAA to take into consideration a respondent’s ability to pay when assessing a civil penalty and the respondent has requested a hearing on the violation alleged in the NOVA, the Agency must submit information on the respondent’s financial condition so that the Judge may consider that information, along with any other PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 factors required to be considered, in the Judge’s assessment of a civil penalty. Agency counsel may obtain such financial information through discovery procedures under § 904.240, or otherwise. A respondent’s refusal or failure to respond to such discovery requests may serve as the basis for inferring that such information would have been adverse to any claim by respondent of inability to pay the assessed civil penalty, or result in respondent being barred from asserting financial hardship. * * * * * ■ 12. In § 904.200, revise paragraph (a) to read as follows: § 904.200 Scope and applicability. (a) This subpart sets forth the procedures governing the conduct of hearings and the issuance of initial and final administrative decisions of NOAA involving alleged violations of the laws cited in § 904.1(c) and any other laws or authorities administered by NOAA and regulations implementing these laws, including civil penalty assessments and permit sanctions and denials. By separate regulation, these rules may be applied to other proceedings. * * * * * ■ 13. Revise § 904.201 to read as follows: § 904.201 Hearing requests and case docketing. (a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the request must be dated and in writing, and must be served in conformance with § 904.3 on the Agency counsel specified in the notice. The respondent must either attach a copy of the NOVA, NOPS or NIDP or refer to the relevant NOAA case number. Agency counsel will promptly forward the request for hearing to the Office of Administrative Law Judges. (b) Any party requesting a hearing under § 904.102(a)(3) must provide current contact information, including a working telephone number and email address (if one is available). The Agency and the Office of Administrative Law Judges must be promptly notified of any changes to this information. (c) If a written application is made to NOAA after the expiration of the time period established in this part for the required filing of hearing requests, Agency counsel will promptly forward the request for hearing along with documentation of service and any other relevant materials to the Office of Administrative Law Judges for a determination on whether such request shall be considered timely filed. Determinations by the Judge regarding E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules untimely hearing requests under this section shall be in writing. (d) Upon its receipt for filing in the Office of Administrative Law Judges, each request for hearing will be promptly assigned a docket number and thereafter the proceeding will be referred to by such number. Written notice of the assignment of hearing to a Judge will promptly be given to the parties. ■ 14. In § 904.202, revise paragraph (a) to read as follows: § 904.202 Filing of documents. (a) Pleadings, papers, and other documents in the proceeding must be filed directly with the Office of Administrative Law Judges, be served on all other parties, and conform with all applicable requirements of § 904.3. * * * * * ■ 15. In § 904.204, revise paragraphs (a) and (m) to read as follows: § 904.204 Duties and powers of Judge. * * * * * (a) Rule on timeliness of hearing requests pursuant to § 904.201(c); * * * * * (m) Assess a civil penalty or impose a permit sanction, condition, revocation, or denial of permit application, taking into account all of the factors required by applicable law; * * * * * ■ 16. In § 904.206, revise paragraphs (a), (b), and (d) to read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS § 904.206 Pleadings, motions, and service. (a) The original of all pleadings and documents must be filed with the Judge and a copy served on the Office of Administrative Law Judges and each party. All pleadings or documents when submitted for filing must show that service has been made upon all parties. Such service must be made in accordance with § 904.3(b). (b) Pleadings and documents to be filed may be reproduced by printing or any other process, provided the copies are clear and legible; must be dated, signed; and must show the docket description and title of the proceeding, and the title, if any, address, and telephone number of the signatory. If typewritten, the impression may be on only one side of the paper and must be double spaced, if possible, except that quotations may be single spaced and indented. * * * * * (d) Unless otherwise provided, the answer to any written motion, pleading, or petition must be served within 20 days after service of the motion. If a motion states that opposing counsel has VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 no objection, it may be acted upon as soon as practicable, without awaiting the expiration of the 20-day period. Answers must be in writing, unless made in response to an oral motion made at a hearing; must fully and completely advise the parties and the Judge concerning the nature of the opposition; must admit or deny specifically and in detail each material allegation of the pleading answered; and must state clearly and concisely the facts and matters of law relied upon. Any new matter raised in an answer will be deemed controverted. * * * * * ■ 17. Revise § 904.209 to read as follows: § 904.209 Expedited administrative proceedings. In the interests of justice and administrative efficiency, the Judge, on his or her own initiative or upon the application of any party, may expedite the administrative proceeding. A motion by a party to expedite the administrative proceeding may, at the discretion of the Judge, be made orally or in writing with concurrent actual notice to all parties. Upon granting a motion to expedite the scheduling of an administrative proceeding, the Judge may expedite pleading schedules, prehearing conferences and the hearing, as appropriate. If a motion for an expedited administrative proceeding is granted, a hearing on the merits may not be scheduled with less than 5 business days’ notice, unless all parties consent to an earlier hearing. ■ 18. Revise § 904.214 to read as follows: § 904.214 Stipulations. The parties may, by stipulation, agree upon any matters involved in the administrative proceeding and include such stipulations in the record with the consent of the Judge. Written stipulations must be signed and served on all parties. ■ 19. In § 904.216, revise paragraph (a) introductory text to read as follows: § 904.216 Prehearing conferences. (a) Prior to any hearing or at any other time deemed appropriate, the Judge may, upon his or her own initiative, or upon the application of any party, direct the parties to appear for a conference or arrange a telephone conference. The Judge shall provide at least 24 hours’ notice of the conference to the parties, and shall record such conference by audio recording or court reporter, to consider: * * * * * PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 16693 20. In § 904.240, revise paragraphs (a), (b), and (f) introductory text to read as follows: ■ § 904.240 Discovery generally. (a) Initial Disclosures. Prior to hearing, the Judge shall require the parties to submit Initial Disclosures and set a deadline for their submission. Except for information regarding a respondent’s ability to pay an assessed civil penalty, these Initial Disclosures will normally obviate the need for further discovery. (1) The Initial Disclosures shall include the following information: A factual summary of the case; a summary of all factual and legal issues in dispute; a list of all defenses that will be asserted, together with a summary of all factual and legal bases supporting each defense; a list of all potential witnesses, together with a summary of their anticipated testimony; and a list of all potential exhibits. (2) The Initial Disclosures must be signed by the parties or their attorneys and must be served on all parties in conformance with § 904.3, along with a copy of each potential exhibit listed therein. (3) A party has the affirmative obligation to supplement their Initial Disclosures as available information or documentation relevant to the stated charges or defenses becomes known to the party. (b) Additional discovery. Upon written motion by a party, the Judge may allow additional discovery only upon a showing of relevance, need, and reasonable scope of the evidence sought, by one or more of the following methods: Deposition upon oral examination or written questions, written interrogatories, production of documents or things for inspection and other purposes, and requests for admission. With respect to information regarding a respondent’s ability to pay an assessed civil penalty, the Agency may serve any discovery request (i.e., deposition, interrogatories, admissions, production of documents) directly upon the respondent in conformance with § 904.3 of this part without first seeking an order from the Judge. * * * * * (f) Failure to comply. If a party fails to comply with any provision of this section, including with respect to their Initial Disclosures, a subpoena, or an order concerning discovery, the Judge may, in the interest of justice: * * * * * ■ 21. In § 904.241, revise paragraphs (a), (c), and (d)(1) to read as follows: E:\FR\FM\24MRP1.SGM 24MRP1 16694 § 904.241 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules Depositions. § 904.243 (a) Notice. If a motion for deposition is granted, and unless otherwise ordered by the Judge, the party taking the deposition of any person must serve on that person and on any other party written notice at least 15 days before the deposition would be taken (or 25 days if the deposition is to be taken outside the United States). The notice must state the name and address of each person to be examined, the time and place where the examination would be held, the name, mailing address, telephone number, and email address (if one is available) of the person before whom the deposition would be taken, and the subject matter about which each person would be examined. * * * * * (c) Alternative deposition methods. By order of the Judge, the parties may use other methods of deposing parties or witnesses, such as telephonic depositions, depositions through videoconference, or depositions upon written questions. Objections to the form of written questions are waived unless made within 5 days of service of the questions. (d) * * * (1) At hearing, part or all of any deposition, so far as admissible under this Part as though the witness were then testifying, may be used against any party who was present or represented at the taking of the deposition or had reasonable notice. * * * * * ■ 22. In § 904.242, revise paragraphs (a) and (b) and add paragraph (d) to read as follows: khammond on DSKJM1Z7X2PROD with PROPOSALS § 904.242 Interrogatories. (a) Service and use. If ordered by the Judge, any party may serve upon any other party written interrogatories in conformance with § 904.3. (b) Answers and objections. Answers and objections must be made in writing under oath, and reasons for the objections must be stated. Answers must be signed by the person making them and objections must be signed by the party or attorney making them. Unless otherwise ordered, answers and objections must be served on all parties within 20 days after service of the interrogatories in conformance with § 904.3. * * * * * (d) Use of interrogatories at hearing. Answers may be used at hearing in the same manner as depositions under § 904.241(d). ■ 23. In § 904.243, revise paragraphs (a) and (b) to read as follows: VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 Admissions. (a) Request. If ordered by the Judge, any party may serve on any other party a written request for admission of the truth of any relevant matter of fact set forth in the request in conformance with § 904.3, including the genuineness of any relevant document described in the request. Copies of documents must be served with the request. Each matter for which an admission is requested must be separately stated. (b) Response. Each matter is admitted unless a written answer or objection is served within 20 days of service of the request in conformance with § 904.3, or within such other time as the Judge may allow. The answering party must specifically admit or deny each matter, or state the reasons why he or she cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. * * * * * ■ 24. In § 904.250, revise paragraph (a) to read as follows: § 904.250 hearing. Notice of time and place of (a) The Judge shall be responsible for scheduling the hearing. With due regard for the convenience of the parties, their representatives, or witnesses, the Judge shall fix the time, place and date for the hearing and shall notify all parties of the same. The Judge will promptly serve on the parties notice of the time and place of hearing. The hearing will not be held less than 20 days after service of the notice of hearing unless the hearing is expedited as provided under paragraph (d) of this section. * * * * * ■ 25. In § 904.251, revise paragraphs (a)(3) and (i) and add paragraph (j) to read as follows: § 904.251 Evidence. (a) * * * (3) In any case involving a charged violation of law in which the respondent has admitted an allegation, evidence may still be presented to establish matters of aggravation or mitigation. * * * * * PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 (i) Foreign law. A party who intends to raise an issue concerning the law of a foreign country must give reasonable notice. The Judge, in determining foreign law, may consider any relevant material or source, whether or not submitted by a party. (j) Foreign language exhibits. Exhibits in a foreign language must be translated into English before such exhibits are offered into evidence. Copies of both the untranslated and translated versions of the proposed exhibits, along with the name and qualifications of the translator, must be served on the opposing party at least 10 days prior to the hearing unless the parties otherwise agree. ■ 26. In § 904.252, revise paragraphs (a) and (f) to read as follows: § 904.252 Witnesses. (a) Fees. Witnesses, other than employees of a Federal agency, summoned in an administrative proceeding, including discovery, are eligible to receive the same fees and mileage as witnesses in the courts of the United States. * * * * * (f) Testimony in a foreign language. If a witness is expected to testify in a language other than the English language, the party sponsoring the witness must indicate that in its Initial Disclosures so that an interpreter can be arranged for the hearing. When available, the interpreter should be court certified under 28 U.S.C. 1827. ■ 27. In § 904.260, revise paragraph (b) to read as follows: § 904.260 Recordation of hearing. * * * * * (b) The official transcript of testimony taken, together with any exhibits, briefs, or memoranda of law filed therewith, will be filed with the Office of Administrative Law Judges. Transcripts of testimony will be available in any hearing and will be supplied to the parties at the cost of the Agency. * * * * * ■ 28. In § 904.270, revise paragraph (b) to read as follows: § 904.270 Record of decision. * * * * * (b) The Judge will arrange for appropriate storage of the records of any administrative proceeding, which place of storage need not necessarily be located physically within the Office of Administrative Law Judges. ■ 29. In § 904.271, revise paragraphs (a) introductory text, (b), (c), and (d) introductory text to read as follows: E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules § 904.271 Initial Decision. (a) After expiration of the period provided in § 904.261 for the filing of reply briefs (unless the parties have waived briefs or presented proposed findings orally at the hearing), the Judge will render an Initial Decision upon the record in the case, setting forth: * * * * * (b) If the parties have presented oral proposed findings at the hearing or have waived presentation of proposed findings, the Judge may at the termination of the hearing announce the decision, subject to later issuance of a written Initial Decision under paragraph (a) of this section. In such cases, the Judge may direct the prevailing party to prepare proposed findings, conclusions, and an order. (c) The Judge will serve the Initial Decision on each of the parties, the Chief of the Enforcement Section of the NOAA Office of General Counsel, and the Administrator. Upon request, the Judge will promptly certify to the Administrator the record, including the original copy of the Initial Decision, as complete and accurate. (d) An Initial Decision becomes effective as the final administrative decision of NOAA 60 days after service, unless: * * * * * ■ 30. Revise § 904.272 to read as follows: § 904.272 Petition for reconsideration. khammond on DSKJM1Z7X2PROD with PROPOSALS Unless an order or Initial Decision of the Judge specifically provides otherwise, any party may file a petition for reconsideration of an order or Initial Decision issued by the Judge. Such petitions must state the matter claimed to have been erroneously decided, and the alleged errors and relief sought must be specified with particularity. Petitions must be filed within 20 days after the service of such order or Initial Decision. The filing of a petition for reconsideration shall operate as a stay of an order or Initial Decision or its effectiveness date unless specifically so ordered by the Judge. Within 15 days after the petition is filed, any party to the administrative proceeding may file an answer in support or in opposition. ■ 31. Revise § 904.273 to read as follows: § 904.273 decision. Administrative review of (a) Subject to the requirements of this section, any party who wishes to seek review of an Initial Decision of a Judge must Petition for Review of the Initial Decision within 30 days after the date the decision is served. The petition must be served on the Administrator in VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 conformance with § 904.3(b) at the following address: Administrator, National Oceanic and Atmospheric Administration, Department of Commerce, Room 5128, 14th Street and Constitution Avenue NW, Washington, DC 20230. Copies of the Petition for Review, and all other documents and materials required in paragraph (d) of this section, must be served in conformance with § 904.3(b) on all parties and to either administrative.appeals@noaa.gov or the following address: Chief, Oceans and Coasts Section, NOAA Office of General Counsel, 1305 East-West Highway, SSMC 4, Suite 6111, Silver Spring, MD 20910. (b) The Administrator may elect to issue an order to review the Initial Decision without petition and may affirm, reverse, modify or remand, in whole or in part, the Judge’s Initial Decision. Any such order must be issued within 60 days after the date the Initial Decision is served. (c) Review by the Administrator of an Initial Decision is discretionary and is not a matter of right. If a party files a timely petition for discretionary review, or review is timely initiated by the Administrator, the effectiveness of the Initial Decision is stayed until further order of the Administrator or until the Initial Decision becomes final pursuant to paragraph (h) of this section. In determining whether or not to grant discretionary review, the Administrator will consider: (1) Whether the Initial Decision contains significant factual or legal errors that warrant further review by the Administrator; and (2) Whether fairness or other policy considerations warrant further consideration by the Administrator. Types of cases that fall within these criteria include, but are not limited to, those in which; (i) The Initial Decision conflicts with one or more other NOAA administrative decisions or federal court decisions on an important issue of federal law; (ii) The Judge decided an important federal question in a way that conflicts with prior rulings of the Administrator; (iii) The Judge decided a question of federal law that is so important that the Administrator should pass upon it even absent a conflict; or (iv) The Judge so far departed from the accepted and usual course of administrative proceedings as to call for an exercise of the Administrator’s supervisory power. (d) A Petition for Review must comply with the following requirements regarding format and content: PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 16695 (1) The petition must include a concise statement of the case, that contains a statement of facts relevant to the issues submitted for review, and a summary of the argument that contains a succinct, clear and accurate statement of the arguments made in the body of the petition; (2) The petition must set forth, in detail, specific objections to the Initial Decision, the bases for review, and the relief requested; (3) Each issue raised in the petition must be separately numbered, concisely stated, and supported by detailed citations to specific pages in the record, and to statutes, regulations, and principal authorities. Petitions may not refer to or incorporate by reference entire documents or transcripts; (4) A copy of the Judge’s Initial Decision must be attached to the petition; (5) Copies of all cited portions of the record must be attached to the petition; (6) A petition, exclusive of attachments and authorities, must not exceed 20 pages in length and must be in the form articulated in § 904.206(b); and (7) Issues of fact or law not argued before the Judge may not be raised in the petition unless such issues were raised for the first time in the Judge’s Initial Decision, or could not reasonably have been foreseen and raised by the parties during the hearing. The Administrator will not consider new or additional evidence that is not a part of the record before the Judge. (e) The Administrator may deny a Petition for Review that is untimely or fails to comply with the format and content requirements in paragraph (d) of this section without further review. (f) No oral argument on Petitions for Review will be allowed. (g) Within 30 days after service of a petition for discretionary review, any party may file and serve an answer in support or in opposition. An answer must comport with the format and content requirements in paragraphs (d)(5) through (d)(7) of this section and set forth detailed responses to the specific objections, bases for review and relief requested in the petition. No further replies are allowed, unless requested by the Administrator. (h) If the Administrator has taken no action in response to the petition within 120 days after the petition is served, said petition shall be deemed denied and the Judge’s Initial Decision shall become the final agency decision with an effective date 150 days after the petition is served. (i) If the Administrator issues an order denying discretionary review, the order E:\FR\FM\24MRP1.SGM 24MRP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 16696 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules will be served on all parties in conformance with § 904.3, and will specify the date upon which the Judge’s Initial Decision will become effective as the final agency decision. The Administrator need not give reasons for denying review. (j) If the Administrator grants discretionary review or elects to review the Initial Decision without petition, the Administrator will issue an order to that effect. Such order may identify issues to be briefed and a briefing schedule. Such issues may include one or more of the issues raised in the Petition for Review and any other matters the Administrator wishes to review. Only those issues identified in the order may be argued in any briefs permitted under the order. The Administrator may choose to not order any additional briefing, and may instead make a final determination based on any Petitions for Review, any responses and the existing record. (k) If the Administrator grants or elects to take discretionary review, and after expiration of the period for filing any additional briefs under paragraph (j) of this section, the Administrator will render a written decision on the issues under review. The Administrator will serve the decision on each of the parties in conformance with § 904.3. The Administrator’s decision becomes the final administrative decision on the date it is served, unless otherwise provided in the decision, and is a final agency action for purposes of judicial review; except that an Administrator’s decision to remand the Initial Decision to the Judge is not final agency action. (l) An Initial Decision shall not be subject to judicial review unless: (1) The party seeking judicial review has exhausted its opportunity for administrative review by filing a Petition for Review with the Administrator in compliance with this section, and (2) The Administrator has issued a final ruling on the petition that constitutes final agency action under paragraph (k) of this section or the Judge’s Initial Decision has become the final agency decision under paragraph (h) or (i) of this section. (m) For purposes of any subsequent judicial review of the agency decision, any issues that are not identified in any Petition for Review, in any answer in support or opposition, by the Administrator, or in any modifications to the Initial Decision are waived. (n) If an action is filed for judicial review of a final agency decision, and the decision is vacated or remanded by a court, the Administrator shall issue an order addressing further administrative proceedings in the matter. Such order VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 may include a remand to the Chief Administrative Law Judge for further proceedings consistent with the judicial decision, or further briefing before the Administrator on any issues the Administrator deems appropriate. ■ 32. Revise § 904.300 to read as follows: § 904.300 Scope and applicability. (a) This subpart sets forth procedures governing the suspension, revocation, modification, and denial of permits. The bases for sanctioning a permit are set forth in § 904.301. (1) Revocation. A permit may be cancelled, with or without prejudice to issuance of the permit in the future. Additional requirements for issuance of any future permit may be imposed. (2) Suspension. A permit may be suspended either for a specified period of time or until stated requirements are met, or both. If contingent on stated requirements being met, the suspension is with prejudice to issuance of any permit until the requirements are met. (3) Modification. A permit may be modified, as by imposing additional conditions and restrictions. If the permit was issued for a foreign fishing vessel under section 204(b) of the MagnusonStevens Fishery Conservation and Management Act, additional conditions and restrictions may be imposed on the application of the foreign nation involved and on any permits issued under such application. (4) Denial. Issuance of a permit in the future may be denied through imposition of a permit denial. (b) This subpart does not apply to the Land Remote Sensing Policy Act of 1992, as amended (51 U.S.C. 60101 et seq.), or to the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.). Regulations governing denials of licenses issued under the Land Remote Sensing Policy Act of 1992, as amended (51 U.S.C. 60101 et seq.), appear at 15 CFR part 960. Regulations governing sanctions and denials of permits issued under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.) appear at 15 CFR part 970. ■ 33. Revise § 904.301 to read as follows: § 904.301 Bases for permit sanctions. (a) Unless otherwise specified in a settlement agreement, or otherwise provided by statutes or in this subpart, NOAA may sanction any permit issued under the statutes cited in § 904.1(c). The bases for an action to sanction or deny a permit include the following: (1) Violation of any statute administered by NOAA, including violation of any regulation promulgated PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 or permit condition or restriction prescribed thereunder, by the permit holder/applicant or with the use of a permitted vessel; (2) The failure to pay a civil penalty imposed under any marine resource law administered by NOAA; (3) The failure to pay a criminal fine imposed or to satisfy any other liability incurred in a judicial proceeding under any of the statutes administered by NOAA; or (4) The failure to pay any amount in settlement of a civil forfeiture imposed on a vessel or other property. (b) A sanction may be applied to a permit involved in the underlying violation, as well as to any permit held or sought by the permit holder/ applicant, including permits for other vessels. (See, e.g., 16 U.S.C. 1858(g)(1)(i)). (c) A permit sanction may not be extinguished by sale or transfer. A vessel’s permit sanction is not extinguished by sale or transfer of the vessel, nor by dissolution or reincorporation of a vessel owner corporation, and shall remain with the vessel until lifted by NOAA. ■ 34. In § 904.302, revise paragraph (a) to read as follows: § 904.302 (NOPS). Notice of permit sanction (a) Service of a NOPS against a permit issued to a foreign fishing vessel will be made on the agent authorized to receive and respond to any legal process for vessels of that country. * * * * * ■ 35. In § 904.303: ■ a. Remove and reserve paragraph (a); and ■ b. Revise paragraphs (b) and (d), The revisions read as follows: § 904.303 (NIDP). Notice of intent to deny permit * * * * * (b) The NIDP will set forth the basis for its issuance and any opportunity for a hearing. * * * * * (d) A NIDP may be issued in conjunction with or independent of a NOPS. ■ 36. In § 904.304, revise paragraph (b) to read as follows: § 904.304 Opportunity for hearing. * * * * * (b) There will be no opportunity for a hearing to contest a NOPS or NIDP if the permit holder/applicant had a previous opportunity to participate as a party in an administrative or judicial proceeding with respect to the violation that forms the basis for the NOPS or E:\FR\FM\24MRP1.SGM 24MRP1 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules NIDP, whether or not the permit holder/ applicant did participate, and whether or not such a proceeding was held. § 904.310 [Removed and Reserved] 37. Remove and reserve § 904.310. 38. In § 904.311, revise the section heading, introductory text, and paragraph (b) to read as follows: ■ ■ § 904.311 Effect of payment on permit sanction. Where a permit has been sanctioned on one of the bases set forth in § 904.301(a)(2) through (4) and the permit holder/applicant pays the criminal fine, civil penalty, or amount in settlement of a civil forfeiture in full or agrees to terms satisfactory to NOAA for payment: * * * * * (b) Any permit suspended under § 904.301(a)(2) through (4) will be reinstated by order of NOAA; or * * * * * § 904.320 [Removed and Reserved] 39. Remove and reserve § 904.320. 40. In § 904.402, revise paragraph (a) to read as follows: ■ ■ § 904.402 Procedures. (a) Any person authorized to enforce the laws listed in § 904.1(c) or Agency counsel may serve a written warning on a respondent. * * * * * ■ 41. In § 904.403: ■ a. Remove and reserve paragraph (a); and b. Revise paragraph (b). The revision reads as follows: § 904.403 warning. Review and appeal of a written khammond on DSKJM1Z7X2PROD with PROPOSALS * * * * * (b) The recipient of a written warning may appeal to the NOAA Deputy General Counsel. The appeal must be served in conformance with § 904.3 and submitted to administrative.appeals@ noaa.gov or the NOAA Office of the General Counsel, Herbert Hoover Office Building, 14th & Constitution Avenue NW, Washington, DC 20230, within 60 days of receipt of the written warning. (1) An appeal from a written warning must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning. (2) [Reserved] * * * * * ■ 42. Revise § 904.500 to read as follows: § 904.500 Purpose and scope. (a) This subpart sets forth procedures governing the release, abandonment, VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 forfeiture, remission of forfeiture, or return of property seized under any of the laws cited in § 904.1(c). (b) Except as provided in this subpart, these regulations apply to all seized property subject to forfeiture under any of the laws cited in § 904.1(c). This subpart is in addition to, and not in contradiction of, any special rules regarding seizure, holding or disposition of property seized under these statutes. ■ 43. Revise § 904.501 to read as follows § 904.501 Notice of seizure. Within 60 days from the date of the seizure, NOAA will serve a Notice of Seizure on the owner or consignee, if known or easily ascertainable, or other party that the facts of record indicate has an interest in the seized property. In cases where the property is seized by a state or local law enforcement agency; a Notice of Seizure will be served in the above manner within 90 days from the date of the seizure. The Notice will describe the seized property and state the time, place and reason for the seizure, including the provisions of law alleged to have been violated. The Notice will inform each interested party of his or her right to file a claim to the seized property, and state a date by which a claim must be filed, which may not be less than 35 days after service of the Notice. The Notice may be combined with a Notice of the sale of perishable fish issued under § 904.505. If a claim is filed, the case will be referred promptly to the U.S. Department of Justice for institution of judicial proceedings. ■ 44. In § 904.502, revise paragraph (c) to read as follows: § 904.502 property. Bonded release of seized * * * * * (c) If NOAA grants the request, the amount paid by the requester will be deposited in a NOAA suspense account. The amount so deposited will for all purposes be considered to represent the property seized and subject to forfeiture, and payment of the amount by requester constitutes a waiver by requester of any claim rising from the seizure and custody of the property. NOAA will maintain the money so deposited pending further order of NOAA, order of a court, or disposition by applicable administrative proceedings. * * * * * ■ 45. Revise § 904.503 to read as follows: § 904.503 Appraisement. PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 which such or similar property is offered for sale at the time and place of appraisement in the ordinary course of trade. If there is no market for the seized property at the place of appraisement, the value in the principal market nearest the place of appraisement may be used. If the seized property may not lawfully be sold in the United States, its domestic value may be determined by other reasonable means. ■ 46. In § 904.504, revise paragraphs (a), (b)(1), and (b)(3)(i) to read as follows: § 904.504 Administrative forfeiture proceedings. (a) When authorized. This section applies to property with a value of $500,000 or less, and that is subject to administrative forfeiture under the applicable statute. This section does not apply to conveyances seized in connection with criminal proceedings. (b) * * * (1) Within 60 days from the date of the seizure, or within 90 days of the date of the seizure where the property is seized by a state or local law enforcement agency, NOAA will publish a Notice of Proposed Forfeiture once a week for at least three successive weeks in a newspaper of general circulation in the Federal judicial district in which the property was seized or post a notice on an official government forfeiture website for at least 30 consecutive days. However, if the value of the seized property does not exceed $1,000, the Notice may be published by posting for at least three successive weeks in a conspicuous place accessible to the public at the National Marine Fisheries Service Enforcement Office, U.S. District Court, or the U.S. Customs House nearest the place of seizure, with the date of posting indicated on the Notice. In addition, a reasonable effort will be made to serve the Notice on each person whose identity, address and interest in the property are known or easily ascertainable. * * * * * (3)(i) Any person claiming the seized property may file a claim with NOAA, at the address indicated in the Notice, within 30 days of the date the final Notice was published or posted. The claim must state the claimant’s interest in the property. * * * * * ■ 47. In § 904.505, revise paragraph (c) to read as follows: § 904.505 Summary sale. * NOAA may appraise seized property to determine its domestic value. Domestic value means the price at 16697 * * * * (c) NOAA will serve the Notice of the Summary Sale on the owner or consignee, if known or easily E:\FR\FM\24MRP1.SGM 24MRP1 16698 Federal Register / Vol. 87, No. 57 / Thursday, March 24, 2022 / Proposed Rules ascertainable, or to any other party that the facts of record indicate has an interest in the seized fish, unless the owner or consignee or other interested party has otherwise been personally notified. Notice will be sent either prior to the sale, or as soon thereafter as practicable. * * * * * ■ 48. In § 904.506, revise paragraphs (a)(1) and (b)(1) to read as follows: § 904.506 Remission of forfeiture and restoration of proceeds of sale. Disposal of forfeited property. * * * * * (g) * * * (2) Destruction will be accomplished in accordance with the requirements of 41 CFR parts 101–1 through 101–49. * * * * * khammond on DSKJM1Z7X2PROD with PROPOSALS [FR Doc. 2022–05845 Filed 3–23–22; 8:45 am] BILLING CODE 3510–22–P Coast Guard 33 CFR Part 100 [Docket Number USCG–2022–0135] RIN 1625–AA08 Special Local Regulation: Luminsea Offshore Powerboat Race; Atlantic Ocean, Miami Beach, FL Coast Guard, DHS. Notice of proposed rulemaking. AGENCY: (a) * * * (1) This section establishes procedures for filing with NOAA a petition for the return of any property which has been or may be administratively forfeited under the provisions of any statute administered by NOAA that authorizes the remission or mitigation of forfeitures. * * * * * (b) * * * (1) Any person claiming an interest in any property which has been or may be administratively forfeited under the provisions of § 904.504 may, at any time after seizure of the property, but no later than 90 days after the date of forfeiture, petition for a remission or mitigation of the forfeiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by the petitioner by serving the petition in conformance with § 904.3 on administrative.appeals@noaa.gov or the Chief of the Enforcement Section of the NOAA Office of General Counsel, 1315 East-West Highway, SSMC 3, Suite 15828, Silver Spring, MD 20910. * * * * * ■ 49. In § 904.509, revise paragraph (g)(2) to read as follows: § 904.509 DEPARTMENT OF HOMELAND SECURITY ACTION: The Coast Guard is proposing to establish a special local regulation (SLR) on certain navigable waters of the Atlantic Ocean, offshore of Miami Beach, FL, in connection with the Luminsea Offshore Powerboat Race. The race will include approximately 55 offshore powerboats, ranging from 30 to 50 feet in length. The SLR is needed to protect personnel, vessels, and the marine environment from potential hazards associated with the high-speed powerboat race. The special local regulation establishes a race area where all persons and vessels, except those persons and vessels who are participating in the race, will be prohibited from entering, transiting through, anchoring in, or remaining within unless authorized by the Captain of the Port (COTP) Miami or a designated representative. We invite your comments on this proposed rulemaking. DATES: Comments and related material must be received by the Coast Guard on or before April 8, 2022. ADDRESSES: You may submit comments identified by docket number USCG– 2022–0135 using the Federal Decision Making Portal at https:// www.regulations.gov. See the ‘‘Public Participation and Request for Comments’’ portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments. FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed rule, call or email Omar Beceiro, Sector Miami Waterways Management Division, U.S. Coast Guard at 305–535– 4317 or Omar.Beceiro@uscg.mil. SUPPLEMENTARY INFORMATION: SUMMARY: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code VerDate Sep<11>2014 16:36 Mar 23, 2022 Jkt 256001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 II. Background, Purpose, and Legal Basis On February 15, 2022, Cigarette Racing Team, LLC. notified the Coast Guard they would be sponsoring an offshore powerboat race on May 6, 2022 from 8 a.m. to 6 p.m. and May 7, 2022 from 8 a.m. to 6 p.m. The race would take place in the Atlantic Ocean, offshore of Miami Beach, FL and involve approximately 55 powerboats ranging from 30 to 50 feet in length. Approximately 500 spectator crafts are anticpated to attend the event. The COTP Miami has determined potential hazards associated with the high-speed boat race would be a safety concern for participants, participant vessels, and general public. The purpose of this rulemaking is to protect event participants, spectators, and vessels on certain navigable waters of the Atlantic Ocean, offshore of Miami Beach, FL before, during, and after the scheduled event. The Coast Guard is proposing this rulemaking under authority in 46 U.S.C. 70034. The Coast Guard is issuing this notice of proposed rulemaking (NPRM) with a 15-day prior notice and opportunity to comment pursuant to section (b)(3) of the Administrative Procedure Act (APA) (5 U.S.C. 553). This provision authorizes an agency to publish a rule in less than 30 days before its effective date for ‘‘good cause found and published with the rule.’’ Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for publishing this NPRM with a 15-day comment period because the Coast Guard was given short notice from the event sponsor, and this not a recurring event that would be listed in the existing annual marine event table as outlined in 33 CFR 100.702, Table 1. Therefore, it is impracticable to provide a 30-day comment period because we must establish this safety zone by May 6, 2022. A 15-day comment period would allow the Coast Guard to provide for public notice and comment, but also update the proposed regulation soon enough that the length of the notice and comment period does not compromise safety. III. Discussion of Proposed Rule The COTP proposes to establish an SLR from 8 a.m. until 6 p.m., on May 6, 2022 and May 7, 2022. The safety zone would cover certain navigable waters of the Atlantic Ocean beginning approximately 0.5 miles north of Government Cut and continuing north approximately 3.5 miles. The SLR extends approximately 2.5 miles offshore. The duration of the zone is intended to protect personnel, vessels, and the E:\FR\FM\24MRP1.SGM 24MRP1

Agencies

[Federal Register Volume 87, Number 57 (Thursday, March 24, 2022)]
[Proposed Rules]
[Pages 16687-16698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05845]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 904

[Docket No. 220114-0015]
RIN 0648-BI72


Civil Procedures in Civil Administrative Enforcement Proceedings

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NOAA proposes to amend procedures governing its civil 
administrative enforcement proceedings. The principal changes would 
include updates to statutory references, clarifications regarding the 
Administrator's discretionary review, revised directions for appealing 
a written warning, revised requirements for denying a request for 
admission, and revised directions for electronic service related to 
certain appeals and petitions. Other changes would remove the 
requirement for NOAA to challenge late hearing requests, simplify the 
use of electronic signatures, rename discovery filings, allow 
depositions by videoconference, require discovery filings to state when 
a witness is expected to speak in a language other than the English 
language in order to arrange interpretation, clarify when failing to 
pay can be a basis for permit sanctions, incorporate Civil Asset 
Forfeiture Reform Act deadlines into administrative forfeiture 
proceedings, and allow NOAA to publish a Notice of Proposed Forfeiture 
on an official government website. In addition, minor changes would 
update titles and addresses and correct clerical errors.

DATES: Comments and information must be received no later than 5 p.m. 
Eastern Time on April 25, 2022.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-HQ-2022-0016, by any of the following methods:
     Electronic submission: Submit electronic public comments 
via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov 
and enter [NOAA-HQ-2022-0016] in the Search box. Click on the 
``Comment'' icon, complete the required fields, and enter or attach 
your comments.
     Mail: Submit written comments to: Office of General 
Counsel Enforcement Section (GCES), 1315 East-West Highway, SSMC-3--
Room 15862, Silver Spring, MD 20910, Attn: Patrick Carroll.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NOAA. Comments submitted in response to this 
notice are a matter of public record. Before including an address, 
phone number, email address, or other personal identifying information 
in a comment, please be aware that comments--including any personal 
identifying information--can and will be made publicly available. While 
a request can be made to withhold personal identifying information from 
public review, NOAA cannot ensure that it will be able to do so.
    Comments received electronically will generally be posted to 
www.regulations.gov without change. For posted comments, all personal 
identifying information (e.g., name, address, etc.), confidential 
business information, or otherwise sensitive information submitted 
voluntarily by the sender will be publicly accessible. NOAA will accept 
anonymous comments (enter ``N/A'' in the required fields if you wish to 
remain anonymous).

FOR FURTHER INFORMATION CONTACT: Patrick Carroll or Meggan Engelke-Ros, 
GCES, (301) 427-2202.

SUPPLEMENTARY INFORMATION:

I. Background

    NOAA is proposing to amend the civil procedure regulations that 
apply to its administrative proceedings (15 CFR part 904), as described 
below. This includes proposed changes to update the statutory 
references subject to the application of this chapter of the Code of 
Federal Regulations, the titles and addresses for various offices of 
NOAA, the procedures for collection of civil monetary payments, the 
process for appealing written warnings issued by an authorized officer, 
and references to the office of Administrative Law Judges. This action 
would also provide clarifications to NOAA's filing requirements, 
requirements for an answering party to deny a request for admissions, 
deadlines in an administrative forfeiture proceeding, the availability 
of a NOAA email address to electronically submit appeals of written 
warnings, petitions to the Administrator, petitions for relief from 
forfeiture, the process to identify witnesses that are expected to 
testify in a foreign language, and the criteria the Administrator may 
rely on to determine whether or not to grant discretionary review. 
Furthermore, this action would add provisions to the forfeiture section 
to authorize the posting of notices online, and would correct erroneous 
cross-references, grammatical issues, internal inconsistencies, typos, 
and other clerical errors that have resulted from the passage of time 
or were inadvertently left unaddressed in the last major revision to 
the regulations and have since been identified.

II. Proposed Revisions

Subpart A--General

Purpose and Scope
    Section 904.1: Paragraph (c) would be amended to update the list of 
statutes enforced by NOAA pursuant to the procedures set forth in 15 
CFR part 904. Specifically, the proposed amendments would remove 
references to statutes that have been repealed and statutes that are 
not enforced by NOAA. References to statutes enacted, or amended to 
include civil administrative enforcement provisions, since 15 CFR part 
904 was last amended, would be added.
Definitions and Acronyms
    Section 904.2: This section would be amended to reflect that the 
Administrative Law Judges currently hearing NOAA enforcement cases do 
not have a docketing center; to clarify that when U.S. Coast Guard 
(USCG) personnel are accompanying or acting under the direction of any 
authorized officer, those USCG personnel are authorized officers; to 
clarify that it is the Secretary of Commerce that may enter into 
agreements with Federal and state agencies to enforce statutes 
administered by NOAA; to clarify that a written warning may be a final 
administrative decision; and to rename initial discovery filings.
Filing and Service
    Section 904.3: The heading of this section would be simplified to 
reflect that its provisions pertain to the service of any documents 
rather than specific filings, such as filings with the Office of 
Administrative Law Judges. Paragraph (a) would be amended to clarify 
that the requirements related to service apply to Initial Decisions as 
well as to notices and Written Warnings, and conforming amendments 
would be made to

[[Page 16688]]

paragraphs (b), (c), and (d). Paragraphs (a) and (b) would also be 
amended to remove service by facsimile, given the diminished prevalence 
of this form of communication and the current use of electronic 
transmission.
Computation of Time Periods
    Section 904.4: The first line of this section would be amended to 
correct a typographical error.

Subpart B--Civil Penalties

Notice of Violation and Assessment (NOVA)
    Section 904.101: Introductory paragraph (a) would be amended to 
correct a typographical error.
Procedures Upon Receipt of a NOVA
    Section 904.102: Paragraphs (c) and (d) of this section would be 
amended to correct typographical errors.
Hearing
    Section 904.103: This section would be removed and reserved. This 
is not a substantive change because the existing language merely 
reiterates requirements more clearly articulated in other provisions of 
NOAA's civil procedures regulations. This revision proposes to delete 
the redundant text.
Payment of Final Civil Penalty
    Section 904.105: Paragraph (a) would be amended by replacing the 
instructions for payment of civil penalties with language reflecting 
current practices. Instructions related to the form of payment are no 
longer included in the Notice of Violation and Assessment of civil 
penalty (NOVA) or settlement agreement, but are instead provided by 
NOAA in an initial bill.
Joint and Several Respondents
    Section 904.107: The last sentence of paragraph (b) would be 
amended to ensure consistent and correct use of terms.
Factors Considered in Assessing Civil Penalties
    Section 904.108: The last sentence of paragraph (e) and first 
sentence of paragraph (h) would be amended to reflect the fact that the 
Administrative Law Judge is assessing a penalty as a matter of first 
impression rather than reviewing a final agency action.

Subpart C--Hearing and Appeal Processes

Scope and Applicability
    Section 904.200: Paragraph (a) would be amended to clarify that 
this subpart also pertains to violations of other laws or authorities 
administered by NOAA to mirror the scope of Sec.  904.1.
Hearing Requests and Case Docketing
    Section 904.201: Paragraph (a) would be amended to require hearing 
requests to conform to the service requirements in Sec.  904.3. 
Paragraph (b) would be inserted to clarify that a request for a hearing 
must contain current contact information, including an active telephone 
number and email address (if available), and that NOAA and the Office 
of Administrative Law Judges must be promptly notified of any changes 
to that information. Accordingly, paragraphs (b) and (c) would be 
renamed paragraphs (c) and (d), respectively. Paragraphs (a), (c) and 
(d), as renumbered, would be amended to reflect that the Administrative 
Law Judges currently hearing NOAA enforcement cases do not have a 
docketing center. Paragraph (c), as renumbered, would be amended to 
ensure consistent and correct use of terms.
Filing of Documents
    Section 904.202: Paragraph (a) would be amended to reflect that the 
Administrative Law Judges currently hearing NOAA enforcement cases do 
not have a docketing center, and to incorporate the filing requirements 
specified at Sec.  904.3.
Duties and Powers of Judge
    Section 904.204: Paragraph (a) would be amended to reference Sec.  
904.201(c) rather than Sec.  904.201(b) to reflect the change in the 
numbering of Sec.  904.201.
Pleadings, Motions, and Service
    Section 904.206: Paragraph (a) would be amended to reflect that the 
Administrative Law Judges currently hearing NOAA enforcement cases do 
not have a docketing center. Paragraph (b) would be amended to allow 
pleadings to be signed in any manner to allow flexibility in electronic 
filing.
Expedited Administrative Proceedings
    Section 904.209: This section would be amended to correct a 
typographical error.
Stipulations
    Section 904.214: This section would be amended to correct a 
typographical error.
Prehearing Conferences
    Section 904.216: Introductory paragraph (a) of this section would 
be amended to correct a typographical error.
Discovery Generally
    Section 904.240: Throughout this section, initial discovery filings 
would be renamed for clarity and to more accurately describe the 
purpose of these filings in NOAA's administrative proceedings. 
Conforming changes would be made throughout 15 CFR part 904 for 
consistency. Paragraph (a) would be amended to clarify that the 
Administrative Law Judge will set the deadline for the parties to 
submit their initial discovery filings. Paragraph (a)(2) would be 
amended to clarify who must sign the initial discovery filings, and 
that those filings must be served in conformance with Sec.  904.3. 
Paragraph (b) would be amended to allow for service of discovery 
requests regarding ability to pay in conformance with Sec.  904.3. 
Paragraph (f) would be amended to clarify that the provisions regarding 
the failure to comply with discovery obligations also apply to initial 
discovery filings.
Depositions
    Section 904.241: Paragraph (a) would be amended to require the 
written notice of deposition to also provide the phone number and email 
address (if available) of the person before whom the deposition would 
be taken. Paragraph (c) would be amended to allow depositions to take 
place by videoconference. Paragraph (d) would be amended to clarify 
that the admissibility of depositions is determined under this part 
rather than the Federal Rules of Evidence, consistent with Sec.  
904.251, which states the formal rules of evidence do not necessarily 
apply.
Interrogatories
    Section 904.242: Paragraphs (a) and (b) would be amended to clarify 
that service of interrogatories must be in conformance with Sec.  
904.3. Paragraph (a) would also be amended to move the requirement that 
answers to interrogatories be used in the same manner as depositions 
into new paragraph (d) to match the organization of other sections.
Admissions
    Section 904.243: Paragraphs (a) and (b) would be amended to clarify 
that service of admission requests and responses must be in conformance 
with Sec.  904.3. Paragraph (b) would be amended to require a denial to 
fairly respond to the substance of the matter and specify which part of 
an answer is denied. Paragraph (b) would also be amended to require a 
party failing to admit or deny an admission to state that it has made 
reasonable inquiry and

[[Page 16689]]

assert that the information known or readily obtainable is insufficient 
to admit or deny. The proposed language mirrors requirements in Rule 36 
of the Federal Rules of Civil Procedures.
Hearings
    Section 904.250: Paragraph (a) would be amended to correct the 
internal reference to paragraph (d) of the same section regarding the 
scheduling of expedited proceedings.
Evidence
    Section 904.251: Paragraph (a)(3) would be amended to clarify that 
evidence may still be presented to establish matters of aggravation or 
mitigation where the respondent admits an allegation. Existing 
paragraph (i) would be separated into two paragraphs, so that new 
paragraph (i) would address foreign law and new paragraph (j) would 
address foreign language exhibits. This is an organizational change 
with no amendments to the content of the rules.
Witnesses
    Section 904.252: Paragraph (a) would be amended to state that 
certain witnesses are eligible to receive fees rather than required to 
receive fees; this change would cover circumstances where the witness 
declines to receive payment. Paragraph (f) would be amended to require 
a party to state in its initial discovery filings if a witness the 
party sponsors is expected to testify in a language other than the 
English language and removes the requirement for the party sponsoring 
the witness to provide for the services. The proposed change would 
provide more notice than the current requirement of advising opposing 
counsel 10 days prior to a hearing and would create more flexibility to 
successfully arrange for the use of a certified interpreter.
Recordation of Hearing
    Section 904.260: Paragraph (b) would be amended to reflect that the 
Administrative Law Judges currently hearing NOAA enforcement cases do 
not have a docketing center.
Record of Decision
    Section 904.270: Paragraph (b) would be amended to reflect that the 
Administrative Law Judges currently hearing NOAA enforcement cases do 
not have a docketing center.
Initial Decision
    Section 904.271: The title and contents of this section would be 
amended to ensure correct capitalization. Conforming changes would be 
made throughout this part. Paragraphs (a) and (c) would be amended to 
clarify that this section applies to the Administrative Law Judge's 
Initial Decision upon the case. Paragraph (c) would be revised to 
reflect the current title of the Chief of the Enforcement Section of 
NOAA's Office of General Counsel. Paragraph (c) would also be amended 
to remove the reference to Sec.  904.3 because Sec.  904.3(a) already 
explicitly references Initial Decisions.
Petition for Reconsideration
    Section 904.272: This section would be amended to correct 
typographical errors.
Administrative Review of Decision
    Section 904.273: Paragraph (a) would be revised to update the 
directions for filing petitions for review, including by changing the 
NOAA Office of General Counsel section that must receive copies of any 
petitions for review, and providing both mail and electronic 
transmission options for service. Paragraph (a) would also clarify that 
service must be made in conformance with Sec.  904.3(b). Paragraph (b) 
would be revised to clarify that the Administrator may affirm, reverse, 
modify or remand, in whole or in part, an Administrative Law Judge's 
Initial Decision. Paragraph (c) would be revised to clarify the factors 
the Administrator will consider in determining whether to grant 
discretionary review. Paragraph (d) would be amended to ensure correct 
capitalization, and conforming changes would be made throughout this 
part for consistency. Paragraphs (i) and (k) would be amended to allow 
for service consistent with Sec.  904.3. Paragraph (l)(2) would be 
revised to correct an omission of paragraph (i) as actions constituting 
final agency action.

Subpart D--Permit Sanctions and Denials

Scope and Applicability
    Section 904.300: Paragraph (a) would be amended to define the scope 
of permit sanctions such as the revocation, suspension, modification, 
and denial of permits. The scope of permit revocation, suspension, and 
modification would be moved into this paragraph from Sec.  904.320. The 
scope of a permit denial would be added to clarify that the term permit 
sanction includes the denial of issuance of a permit in the future. 
Paragraph (b) would be amended to exclude the Land Remote Sensing 
Policy Act of 1992, as amended (Act), from this subpart, as regulations 
at 15 CFR part 960 apply to license denials under the Act.
Bases for Permit Sanctions
    Section 904.301: The title of this section would be amended to 
reflect that permit denials are a form of permit sanction. Paragraph 
(a) would be amended to clarify that NOAA cannot sanction a permit in a 
manner inconsistent with an underlying statute. Paragraph (a)(1) and 
(a)(2) would be amended to simplify the language. Paragraph (a)(4) 
would be amended to incorporate statutory language from 16 U.S.C. 
1858(g)(1)(C) regarding sanctions for failure to pay any amount in 
settlement of a civil forfeiture on a vessel or other property. 
Paragraph (b) would be amended to simplify the language regarding which 
permits a sanction may apply to. Paragraphs (b)(1) through (b)(3), 
containing hypotheticals where sanctions may be assessed, would be 
removed to avoid confusion and eliminate dated hypotheticals. These 
changes are meant to simplify the language and would not change the 
substance of the provisions related to imposition of sanctions.
Notice of Permit Sanction
    Section 904.302: Paragraph (a) would be amended to remove the 
cross-reference to Sec.  904.3 to avoid repetition.
Notice of Intent To Deny Permit
    Section 904.303: Paragraph (a) would be removed and reserved 
because the substance of paragraph (a) regarding when NOAA may issue a 
notice of intent to deny permit is already stated in detail in Sec.  
904.301. Paragraph (b) would be amended to remove the cross-reference 
to Sec.  904.3 to avoid repetition. Paragraph (d) would be amended by 
removing language referencing Sec. Sec.  904.310 and 904.320 as 
redundant given earlier changes.
Opportunity for Hearing
    Section 904.304: Paragraph (b) would be amended to simplify the 
language.
Nature of Permit Sanctions
    Section 904.310: This section would be removed and reserved because 
the content of this section is already explained in Sec.  904.301, 
which addresses the bases for permit sanctions.
Compliance
    Section 904.311: The name of this section would be amended to 
better reflect the specific action addressed in the regulation. 
Additionally, language would be added to clarify that this regulates 
sanctions such as permit suspensions, denials, and modifications.

[[Page 16690]]

Nature of Permit Sanctions
    Section 904.320: This section would be removed and reserved. The 
contents of this section provide the scope of three types of permit 
sanctions and are proposed to be moved to Sec.  904.300 at the 
beginning of subpart D, which addresses the scope and applicability of 
permit sanctions.

Subpart E--Written Warnings

Procedures
    Section 904.402: Paragraph (a) would be amended to remove the 
cross-reference to Sec.  904.3 regarding service to avoid repetition. 
Section 904.3(a) already explicitly references service of written 
warnings.
Review and Appeal of a Written Warning
    Section 904.403: Paragraph (a) would be removed and reserved. 
Paragraph (b) would be revised to direct all appeals of written 
warnings to the NOAA Deputy General Counsel. This change would ensure 
that any person involved in the decision to issue a written warning is 
not responsible for deciding the appeal. Conforming changes would be 
made to paragraph (b). Paragraph (b) would be further amended to 
include the procedures for appealing any written warnings and allow for 
electronic service.

Subpart F--Seizure and Forfeiture Procedures

Purpose and Scope
    Section 904.500: Paragraph (a) would be simplified to remove 
internal inconsistencies. Paragraphs (a) and (b) would be revised to 
specify that the seizure and forfeiture regulations apply to any laws 
cited in paragraph (c) of Sec.  904.1.
Notice of Seizure
    Section 904.501: This section would be revised to correct 
grammatical errors, and would remove repetitive references to Sec.  
904.3.
Bonded Release of Seized Property
    Section 904.502: Paragraph (c) would be revised to correct a 
typographical error.
Appraisement
    Section 904.503: This section would be revised to make the language 
regarding appraising seized property permissible rather than mandatory 
to reflect NOAA's authority to sell perishable property through bids 
rather than appraisals.
Administrative Forfeiture Proceedings
    Section 904.504: Paragraph (a) would be amended to conform with the 
amendments made to Sec.  904.503. Paragraph (b)(1) would be amended to 
provide a deadline to publish the Notice of Proposed Forfeiture 
consistent with the Civil Asset Forfeiture Reform Act. Paragraph (b)(1) 
will also be amended to enable NOAA to publish a Notice of Proposed 
Forfeiture on an official government website. Paragraph (b)(1) would 
also remove a repetitive reference to Sec.  904.3. Paragraph (b)(3)(i) 
would be amended by removing a confusing cross-reference to paragraph 
(b)(4).
Summary Sale
    Section 904.505: Paragraph (c) would be amended to correct 
grammatical errors and to remove a redundant reference to Sec.  904.3.
Remission of Forfeiture and Restoration of Proceeds of Sale
    Section 904.506: Paragraph (a)(1) would be amended to correct 
grammatical errors and to mirror paragraph (b) of this section. 
Paragraph (b)(1) would be revised to reflect the current title of the 
Chief of the Enforcement Section of NOAA's Office of General Counsel 
and to allow persons to petition for relief from forfeiture 
electronically in addition to by mail. Paragraph (b)(1) would also be 
revised to clarify that property is administratively forfeited under 
Sec.  904.504 and not Sec.  904.506.
Disposal of Forfeited Property
    Section 904.509: Paragraph (g)(2) would be amended to reference the 
updated Federal Property Management regulations.

Classification

    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    Pursuant to the Executive Order on federalism, Executive Order 
13132, this proposed rule does not have federalism effects and that a 
federalism assessment is not required.
    There are no reporting, recordkeeping or other compliance 
requirements in the proposed rule. Nor does this proposed rule contain 
an information-collection request that would implicate the Paperwork 
Reduction Act, 44 U.S.C. 3501, et seq.
    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities.
    The small businesses, as defined in the Regulatory Flexibility Act, 
5 U.S.C. 601, et seq., that this proposed rule may affect include, but 
are not limited to, vessel owners, vessel operators, fish dealers, 
individual fishermen, small corporations, and others engaged in 
commercial and recreational activities regulated by NOAA. However, this 
proposed rule does not have any compliance costs or associated fees for 
businesses, large or small. This proposed rule is purely procedural, 
and merely amends and refines NOAA's existing rules of civil procedure.
    Because this proposed rule would only modify existing procedural 
rules, the overall economic impact on small entities, if any, is 
expected to be nominal. Accordingly, this proposed rule will not have a 
substantial impact on a significant number of small entities. As a 
result, an initial regulatory flexibility analysis is not required and 
none has been prepared.

List of Subjects in 15 CFR Part 904

    Administrative practice and procedure, Fisheries, Fishing, Fishing 
vessels, Penalties, Seizures and forfeitures.

    Dated: March 15, 2022.
Walker Smith,
General Counsel, National Oceanic and Atmospheric Administration.

    For reasons set forth in the preamble, NOAA proposes to amend 15 
CFR part 904 to read as follows:

PART 904--CIVIL PROCEDURES

0
1. The authority citation for part 904 is revised to read as follows:

    Authority:  16 U.S.C. 1801 et seq., 16 U.S.C. 1531 et seq., 16 
U.S.C. 1361 et seq., 16 U.S.C. 3371 et seq., 16 U.S.C. 1431 et seq., 
16 U.S.C. 6901 et seq., 16 U.S.C. 773 et seq., 16 U.S.C. 951 et 
seq., 16 U.S.C. 5001 et seq., 16 U.S.C. 3631 et seq., 42 U.S.C. 9101 
et seq., 30 U.S.C. 1401 et seq., 16 U.S.C. 971 et seq., 16 U.S.C. 
781 et seq., 16 U.S.C. 2431 et seq., 16 U.S.C. 972 et seq., 16 
U.S.C. 916 et seq., 16 U.S.C. 1151 et seq., 16 U.S.C. 3601 et seq., 
16 U.S.C. 1851 note; 15 U.S.C. 330 et seq., 16 U.S.C. 2461 et seq., 
16 U.S.C. 5101 et seq., 16 U.S.C. 1371 et seq., 16 U.S.C. 3601 et 
seq., 16 U.S.C. 1822 note, 16 U.S.C. 4001 et seq., 16 U.S.C. 5501 et 
seq., 16 U.S.C. 5601 et seq., 16 U.S.C. 973 et seq., 16 U.S.C. 
1827a, 16 U.S.C. 7701 et seq., 16 U.S.C. 7801 et seq., 16 U.S.C. 
1826g, 51 U.S.C. 60101 et seq., 16 U.S.C. 7001 et seq., 16 U.S.C. 
7401 et seq., 16 U.S.C. 2401 et seq., 16 U.S.C. 1826k note, 1857 
note, 22 U.S.C. 1980, Pub. L. 116-340, 134 Stat. 5128.

0
2. In Sec.  904.1, revise paragraphs (c)(1) through (40) to read as 
follows:

[[Page 16691]]

Sec.  904.1  Purpose and scope.

* * * * *
    (c) * * *
    (1) Anadromous Fish Products Act, 16 U.S.C. 1822 note;
    (2) Antarctic Conservation Act of 1978, 16 U.S.C. 2401 et seq.;
    (3) Antarctic Marine Living Resources Convention Act of 1984, 16 
U.S.C. 2431 et seq.;
    (4) Antarctic Mineral Resources Protection Act of 1990, 16 U.S.C. 
2461 et seq.;
    (5) Atlantic Coastal Fisheries Cooperative Management Act, 16 
U.S.C. 5101 et seq.;
    (6) Atlantic Salmon Convention Act of 1982, 16 U.S.C. 3601 et seq.;
    (7) Atlantic Striped Bass Conservation Act, 16 U.S.C. 1851 note;
    (8) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971 et seq.;
    (9) Billfish Conservation Act of 2012, 16 U.S.C. 1827a;
    (10) DESCEND Act of 2020, Public Law 116-340, 134 Stat. 5128;
    (11) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401 et 
seq.;
    (12) Dolphin Protection Consumer Information Act, 16 U.S.C. 1371 et 
seq.;
    (13) Driftnet Impact Monitoring, Assessment, and Control Act, 16 
U.S.C. 1822 note;
    (14) Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972 et 
seq.;
    (15) Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.;
    (16) Ensuring Access to Pacific Fisheries Act, 16 U.S.C. 7701 et 
seq. (North Pacific), 16 U.S.C. 7801 et seq. (South Pacific);
    (17) Fish and Seafood Promotion Act of 1986, 16 U.S.C. 4001 et 
seq.;
    (18) Fisherman's Protective Act of 1967, 22 U.S.C. 1980;
    (19) Fur Seal Act Amendments of 1983, 16 U.S.C. 1151 et seq.;
    (20) High Seas Driftnet Fishing Moratorium Protection Act, 16 
U.S.C. 1826g;
    (21) High Seas Fishing Compliance Act, 16 U.S.C. 5501 et seq.;
    (22) Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
    (23) Land Remote Sensing Policy Act of 1992, as amended, 51 U.S.C. 
60101 et seq.;
    (24) Magnuson-Stevens Fishery Conservation and Management Act, 16 
U.S.C. 1801 et seq.;
    (25) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.;
    (26) National Marine Sanctuaries Act, 16 U.S.C. 1431 et seq.;
    (27) North Pacific Anadromous Stocks Convention Act of 1992, 16 
U.S.C. 5001 et seq.;
    (28) Northern Pacific Halibut Act of 1982, 16 U.S.C. 773 et seq.;
    (29) Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. 
5601 et seq.;
    (30) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101 et 
seq.;
    (31) Pacific Salmon Treaty Act of 1985, 16 U.S.C. 3631 et seq.;
    (32) Pacific Whiting Act of 2006, 16 U.S.C. 7001 et seq.;
    (33) Port State Measures Agreement Act of 2015, 16 U.S.C. 7401 et 
seq.;
    (34) Shark Conservation Act of 2010, 16 U.S.C. 1826k note, 1857 
note;
    (35) South Pacific Tuna Act of 1988, 16 U.S.C. 973 et seq.;
    (36) Sponge Act, 16 U.S.C. 781 et seq.;
    (37) Tuna Conventions Act of 1950, 16 U.S.C. 951 et seq.;
    (38) Weather Modification Reporting Act, 15 U.S.C. 330 et seq.;
    (39) Western and Central Pacific Fisheries Convention 
Implementation Act, 16 U.S.C. 6901 et seq.; and
    (40) Whaling Convention Act of 1949, 16 U.S.C. 916 et seq.
* * * * *
0
3. In Sec.  904.2:
0
a. Remove the definition of ``ALJ Docketing Center'';
0
b. Revise the definitions of ``Applicable statute'', ``Authorized 
officer'', and ``Final administrative decision''; and
0
c. Remove the definition of ``PPIP''.
    The revisions read as follows:


Sec.  904.2  Definitions and acronyms.

* * * * *
    Applicable statute means a statute cited in Sec.  904.1(c), and any 
regulations issued by NOAA to implement it.
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard (USCG);
    (2) Any special agent or fishery enforcement officer of NMFS;
    (3) Any officer designated by the head of any Federal or state 
agency that has entered into an agreement with the Secretary of 
Commerce to enforce the provisions of any statute administered by NOAA; 
or
    (4) Any USCG personnel accompanying and/or acting under the 
direction of any person described in paragraphs (1), (2), or (3) of 
this definition.
* * * * *
    Final administrative decision means an order or decision of NOAA 
assessing a civil penalty, permit sanction, or written warning, which 
is not subject to further Agency review under this part, and which is 
subject to collection proceedings or judicial review in an appropriate 
Federal district court as authorized by law.
* * * * *
0
4. Revise Sec.  904.3 to read as follows:


Sec.  904.3  Filing and service.

    (a) Service of a NOVA (Sec.  904.101), NOPS (Sec.  904.302), NIDP 
(Sec.  904.303), Notice of Proposed Forfeiture (Sec.  904.504), Notice 
of Seizure (Sec.  904.501), Notice of Summary Sale (Sec.  904.505), 
Written Warning (Sec.  904.402), or Initial Decision (Sec.  904.271) 
may be made by certified mail (return receipt requested), electronic 
transmission, or third party commercial carrier to an addressee's last 
known address or by personal delivery. Service of a notice under this 
subpart will be considered effective upon receipt.
    (b) Service of documents and papers, other than those described in 
paragraph (a) of this section, may be made by first class mail (postage 
prepaid), electronic transmission, or third party commercial carrier, 
to an addressee's last known address or by personal delivery. Service 
of documents and papers will be considered effective upon the date of 
postmark (or as otherwise shown for government-franked mail), delivery 
to third party commercial carrier, electronic transmission, or upon 
personal delivery.
    (c) Whenever this part requires service of a document or other 
paper referred to in paragraph (a) or (b) of this section, such service 
may effectively be made on the agent for service of process, on the 
attorney for the person to be served, or other representative. Refusal 
by the person to be served (including an agent, attorney, or 
representative) of service of a document or other paper will be 
considered effective service of the document or other paper as of the 
date of such refusal. In cases where a document or paper described in 
paragraph (a) of this section is returned unclaimed, service will be 
considered effective if the U.S. Postal Service provides an affidavit 
stating that the party was receiving mail at the same address during 
the period when certified service was attempted.
    (d) Any documents and other papers filed or served must be signed:
    (1) By the person or persons filing the same;
    (2) By an officer thereof if a corporation;
    (3) By an officer or authorized employee if a government 
instrumentality; or
    (4) By an attorney or other person having authority to sign.
0
5. In Sec.  904.4, revise the first sentence to read as follows:

[[Page 16692]]

Sec.  904.4   Computation of time periods.

    For a NOVA, NOPS or NIDP, the 30-day response period begins to run 
on the date the notice is received. * * *
0
6. In Sec.  904.101, revise paragraph (a) introductory text to read as 
follows:


Sec.  904.101   Notice of violation and assessment (NOVA).

    (a) A NOVA will be issued by NOAA and served on the respondent(s). 
The NOVA will contain:
* * * * *
0
7. In Sec.  904.102, revise paragraphs (c) and (d) to read as follows:


Sec.  904.102  Procedures upon receipt of a NOVA.

* * * * *
    (c) The respondent may, within the 30-day period specified in 
paragraph (a) of this section, request an extension of time to respond. 
Agency counsel may grant an extension of up to 30 days unless he or she 
determines that the requester could, exercising reasonable diligence, 
respond within the 30-day period. If Agency counsel does not respond to 
the request within 48 hours of its receipt, the request is granted 
automatically for the extension requested, up to a maximum of 30 days. 
A telephonic response to the request within the 48-hour period is 
considered an effective response, and will be followed by written 
confirmation.
    (d) Agency counsel may, for good cause, grant an additional 
extension beyond the 30-day period specified in paragraph (c) of this 
section.


Sec.  904.103  [Removed and Reserved]

0
8. Remove and reserve Sec.  904.103.
0
9. In Sec.  904.105, revise paragraph (a) to read as follows:


Sec.  904.105   Payment of final civil penalty.

    (a) Respondent must make full payment of the civil penalty within 
30 days of the date upon which the NOVA becomes effective as the final 
administrative decision and order of NOAA under Sec.  904.104 or the 
date of the final administrative decision as provided in subpart C of 
this part, as directed by NOAA. Payment must be made in accordance with 
the bill and instructions provided by NOAA.
* * * * *
0
10. In Sec.  904.107, revise paragraph (b) to read as follows:


Sec.  904.107   Joint and several respondents.

* * * * *
    (b) A hearing request by one joint and several respondent is 
considered a request by the other joint and several respondent(s). 
Agency counsel, having received a hearing request from one joint and 
several respondent, will send a copy of it to the other joint and 
several respondent(s) in the case. However, if the requesting joint and 
several respondent settles with the Agency prior to the hearing, upon 
notification by the Agency, any remaining joint and several 
respondent(s) must affirmatively request a hearing within the time 
period specified or the case will be removed from the hearing docket as 
provided in Sec.  904.213.
* * * * *
0
11. In Sec.  904.108, revise paragraphs (e), (f), and (h) to read as 
follows:


Sec.  904.108   Factors considered in assessing civil penalties.

* * * * *
    (e) Financial information regarding respondent's ability to pay 
should be submitted to Agency counsel as soon as possible after the 
receipt of the NOVA. If a respondent has requested a hearing on the 
violation alleged in the NOVA and wants the Initial Decision of the 
Judge to consider his or her inability to pay, verifiable, complete, 
and accurate financial information must be submitted to Agency counsel 
at least 30 days in advance of the hearing, except where the applicable 
statute expressly provides for a different time period. No information 
regarding the respondent's ability to pay submitted by the respondent 
less than 30 days in advance of the hearing will be admitted at the 
hearing or considered in the Initial Decision of the Judge, unless the 
Judge rules otherwise. If the Judge decides to admit any information 
related to the respondent's ability to pay submitted less than 30 days 
in advance of the hearing, Agency counsel will have 30 days to respond 
to the submission from the date of admission. In deciding whether to 
submit such information, the respondent should keep in mind that the 
Judge may assess a civil penalty either greater or smaller than that 
assessed in the NOVA.
    (f) Issues regarding ability to pay will not be considered in an 
administrative review of an Initial Decision if the financial 
information was not previously presented by the respondent to the Judge 
prior to or at the hearing.
* * * * *
    (h) Whenever a statute requires NOAA to take into consideration a 
respondent's ability to pay when assessing a civil penalty and the 
respondent has requested a hearing on the violation alleged in the 
NOVA, the Agency must submit information on the respondent's financial 
condition so that the Judge may consider that information, along with 
any other factors required to be considered, in the Judge's assessment 
of a civil penalty. Agency counsel may obtain such financial 
information through discovery procedures under Sec.  904.240, or 
otherwise. A respondent's refusal or failure to respond to such 
discovery requests may serve as the basis for inferring that such 
information would have been adverse to any claim by respondent of 
inability to pay the assessed civil penalty, or result in respondent 
being barred from asserting financial hardship.
* * * * *
0
12. In Sec.  904.200, revise paragraph (a) to read as follows:


Sec.  904.200  Scope and applicability.

    (a) This subpart sets forth the procedures governing the conduct of 
hearings and the issuance of initial and final administrative decisions 
of NOAA involving alleged violations of the laws cited in Sec.  
904.1(c) and any other laws or authorities administered by NOAA and 
regulations implementing these laws, including civil penalty 
assessments and permit sanctions and denials. By separate regulation, 
these rules may be applied to other proceedings.
* * * * *
0
13. Revise Sec.  904.201 to read as follows:


Sec.  904.201  Hearing requests and case docketing.

    (a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the 
request must be dated and in writing, and must be served in conformance 
with Sec.  904.3 on the Agency counsel specified in the notice. The 
respondent must either attach a copy of the NOVA, NOPS or NIDP or refer 
to the relevant NOAA case number. Agency counsel will promptly forward 
the request for hearing to the Office of Administrative Law Judges.
    (b) Any party requesting a hearing under Sec.  904.102(a)(3) must 
provide current contact information, including a working telephone 
number and email address (if one is available). The Agency and the 
Office of Administrative Law Judges must be promptly notified of any 
changes to this information.
    (c) If a written application is made to NOAA after the expiration 
of the time period established in this part for the required filing of 
hearing requests, Agency counsel will promptly forward the request for 
hearing along with documentation of service and any other relevant 
materials to the Office of Administrative Law Judges for a 
determination on whether such request shall be considered timely filed. 
Determinations by the Judge regarding

[[Page 16693]]

untimely hearing requests under this section shall be in writing.
    (d) Upon its receipt for filing in the Office of Administrative Law 
Judges, each request for hearing will be promptly assigned a docket 
number and thereafter the proceeding will be referred to by such 
number. Written notice of the assignment of hearing to a Judge will 
promptly be given to the parties.
0
14. In Sec.  904.202, revise paragraph (a) to read as follows:


Sec.  904.202  Filing of documents.

    (a) Pleadings, papers, and other documents in the proceeding must 
be filed directly with the Office of Administrative Law Judges, be 
served on all other parties, and conform with all applicable 
requirements of Sec.  904.3.
* * * * *
0
15. In Sec.  904.204, revise paragraphs (a) and (m) to read as follows:


Sec.  904.204  Duties and powers of Judge.

* * * * *
    (a) Rule on timeliness of hearing requests pursuant to Sec.  
904.201(c);
* * * * *
    (m) Assess a civil penalty or impose a permit sanction, condition, 
revocation, or denial of permit application, taking into account all of 
the factors required by applicable law;
* * * * *
0
16. In Sec.  904.206, revise paragraphs (a), (b), and (d) to read as 
follows:


Sec.  904.206  Pleadings, motions, and service.

    (a) The original of all pleadings and documents must be filed with 
the Judge and a copy served on the Office of Administrative Law Judges 
and each party. All pleadings or documents when submitted for filing 
must show that service has been made upon all parties. Such service 
must be made in accordance with Sec.  904.3(b).
    (b) Pleadings and documents to be filed may be reproduced by 
printing or any other process, provided the copies are clear and 
legible; must be dated, signed; and must show the docket description 
and title of the proceeding, and the title, if any, address, and 
telephone number of the signatory. If typewritten, the impression may 
be on only one side of the paper and must be double spaced, if 
possible, except that quotations may be single spaced and indented.
* * * * *
    (d) Unless otherwise provided, the answer to any written motion, 
pleading, or petition must be served within 20 days after service of 
the motion. If a motion states that opposing counsel has no objection, 
it may be acted upon as soon as practicable, without awaiting the 
expiration of the 20-day period. Answers must be in writing, unless 
made in response to an oral motion made at a hearing; must fully and 
completely advise the parties and the Judge concerning the nature of 
the opposition; must admit or deny specifically and in detail each 
material allegation of the pleading answered; and must state clearly 
and concisely the facts and matters of law relied upon. Any new matter 
raised in an answer will be deemed controverted.
* * * * *
0
17. Revise Sec.  904.209 to read as follows:


Sec.  904.209  Expedited administrative proceedings.

    In the interests of justice and administrative efficiency, the 
Judge, on his or her own initiative or upon the application of any 
party, may expedite the administrative proceeding. A motion by a party 
to expedite the administrative proceeding may, at the discretion of the 
Judge, be made orally or in writing with concurrent actual notice to 
all parties. Upon granting a motion to expedite the scheduling of an 
administrative proceeding, the Judge may expedite pleading schedules, 
prehearing conferences and the hearing, as appropriate. If a motion for 
an expedited administrative proceeding is granted, a hearing on the 
merits may not be scheduled with less than 5 business days' notice, 
unless all parties consent to an earlier hearing.
0
18. Revise Sec.  904.214 to read as follows:


Sec.  904.214  Stipulations.

    The parties may, by stipulation, agree upon any matters involved in 
the administrative proceeding and include such stipulations in the 
record with the consent of the Judge. Written stipulations must be 
signed and served on all parties.
0
19. In Sec.  904.216, revise paragraph (a) introductory text to read as 
follows:


Sec.  904.216  Prehearing conferences.

    (a) Prior to any hearing or at any other time deemed appropriate, 
the Judge may, upon his or her own initiative, or upon the application 
of any party, direct the parties to appear for a conference or arrange 
a telephone conference. The Judge shall provide at least 24 hours' 
notice of the conference to the parties, and shall record such 
conference by audio recording or court reporter, to consider:
* * * * *
0
20. In Sec.  904.240, revise paragraphs (a), (b), and (f) introductory 
text to read as follows:


Sec.  904.240  Discovery generally.

    (a) Initial Disclosures. Prior to hearing, the Judge shall require 
the parties to submit Initial Disclosures and set a deadline for their 
submission. Except for information regarding a respondent's ability to 
pay an assessed civil penalty, these Initial Disclosures will normally 
obviate the need for further discovery.
    (1) The Initial Disclosures shall include the following 
information: A factual summary of the case; a summary of all factual 
and legal issues in dispute; a list of all defenses that will be 
asserted, together with a summary of all factual and legal bases 
supporting each defense; a list of all potential witnesses, together 
with a summary of their anticipated testimony; and a list of all 
potential exhibits.
    (2) The Initial Disclosures must be signed by the parties or their 
attorneys and must be served on all parties in conformance with Sec.  
904.3, along with a copy of each potential exhibit listed therein.
    (3) A party has the affirmative obligation to supplement their 
Initial Disclosures as available information or documentation relevant 
to the stated charges or defenses becomes known to the party.
    (b) Additional discovery. Upon written motion by a party, the Judge 
may allow additional discovery only upon a showing of relevance, need, 
and reasonable scope of the evidence sought, by one or more of the 
following methods: Deposition upon oral examination or written 
questions, written interrogatories, production of documents or things 
for inspection and other purposes, and requests for admission. With 
respect to information regarding a respondent's ability to pay an 
assessed civil penalty, the Agency may serve any discovery request 
(i.e., deposition, interrogatories, admissions, production of 
documents) directly upon the respondent in conformance with Sec.  904.3 
of this part without first seeking an order from the Judge.
* * * * *
    (f) Failure to comply. If a party fails to comply with any 
provision of this section, including with respect to their Initial 
Disclosures, a subpoena, or an order concerning discovery, the Judge 
may, in the interest of justice:
* * * * *
0
21. In Sec.  904.241, revise paragraphs (a), (c), and (d)(1) to read as 
follows:

[[Page 16694]]

Sec.  904.241  Depositions.

    (a) Notice. If a motion for deposition is granted, and unless 
otherwise ordered by the Judge, the party taking the deposition of any 
person must serve on that person and on any other party written notice 
at least 15 days before the deposition would be taken (or 25 days if 
the deposition is to be taken outside the United States). The notice 
must state the name and address of each person to be examined, the time 
and place where the examination would be held, the name, mailing 
address, telephone number, and email address (if one is available) of 
the person before whom the deposition would be taken, and the subject 
matter about which each person would be examined.
* * * * *
    (c) Alternative deposition methods. By order of the Judge, the 
parties may use other methods of deposing parties or witnesses, such as 
telephonic depositions, depositions through videoconference, or 
depositions upon written questions. Objections to the form of written 
questions are waived unless made within 5 days of service of the 
questions.
    (d) * * *
    (1) At hearing, part or all of any deposition, so far as admissible 
under this Part as though the witness were then testifying, may be used 
against any party who was present or represented at the taking of the 
deposition or had reasonable notice.
* * * * *
0
22. In Sec.  904.242, revise paragraphs (a) and (b) and add paragraph 
(d) to read as follows:


Sec.  904.242  Interrogatories.

    (a) Service and use. If ordered by the Judge, any party may serve 
upon any other party written interrogatories in conformance with Sec.  
904.3.
    (b) Answers and objections. Answers and objections must be made in 
writing under oath, and reasons for the objections must be stated. 
Answers must be signed by the person making them and objections must be 
signed by the party or attorney making them. Unless otherwise ordered, 
answers and objections must be served on all parties within 20 days 
after service of the interrogatories in conformance with Sec.  904.3.
* * * * *
    (d) Use of interrogatories at hearing. Answers may be used at 
hearing in the same manner as depositions under Sec.  904.241(d).
0
23. In Sec.  904.243, revise paragraphs (a) and (b) to read as follows:


Sec.  904.243  Admissions.

    (a) Request. If ordered by the Judge, any party may serve on any 
other party a written request for admission of the truth of any 
relevant matter of fact set forth in the request in conformance with 
Sec.  904.3, including the genuineness of any relevant document 
described in the request. Copies of documents must be served with the 
request. Each matter for which an admission is requested must be 
separately stated.
    (b) Response. Each matter is admitted unless a written answer or 
objection is served within 20 days of service of the request in 
conformance with Sec.  904.3, or within such other time as the Judge 
may allow. The answering party must specifically admit or deny each 
matter, or state the reasons why he or she cannot truthfully admit or 
deny it. A denial must fairly respond to the substance of the matter; 
and when good faith requires that a party qualify an answer or deny 
only a part of a matter, the answer must specify the part admitted and 
qualify or deny the rest. The answering party may assert lack of 
knowledge or information as a reason for failing to admit or deny only 
if the party states that it has made reasonable inquiry and that the 
information it knows or can readily obtain is insufficient to enable it 
to admit or deny.
* * * * *
0
24. In Sec.  904.250, revise paragraph (a) to read as follows:


Sec.  904.250  Notice of time and place of hearing.

    (a) The Judge shall be responsible for scheduling the hearing. With 
due regard for the convenience of the parties, their representatives, 
or witnesses, the Judge shall fix the time, place and date for the 
hearing and shall notify all parties of the same. The Judge will 
promptly serve on the parties notice of the time and place of hearing. 
The hearing will not be held less than 20 days after service of the 
notice of hearing unless the hearing is expedited as provided under 
paragraph (d) of this section.
* * * * *
0
25. In Sec.  904.251, revise paragraphs (a)(3) and (i) and add 
paragraph (j) to read as follows:


Sec.  904.251  Evidence.

    (a) * * *
    (3) In any case involving a charged violation of law in which the 
respondent has admitted an allegation, evidence may still be presented 
to establish matters of aggravation or mitigation.
* * * * *
    (i) Foreign law. A party who intends to raise an issue concerning 
the law of a foreign country must give reasonable notice. The Judge, in 
determining foreign law, may consider any relevant material or source, 
whether or not submitted by a party.
    (j) Foreign language exhibits. Exhibits in a foreign language must 
be translated into English before such exhibits are offered into 
evidence. Copies of both the untranslated and translated versions of 
the proposed exhibits, along with the name and qualifications of the 
translator, must be served on the opposing party at least 10 days prior 
to the hearing unless the parties otherwise agree.
0
26. In Sec.  904.252, revise paragraphs (a) and (f) to read as follows:


Sec.  904.252  Witnesses.

    (a) Fees. Witnesses, other than employees of a Federal agency, 
summoned in an administrative proceeding, including discovery, are 
eligible to receive the same fees and mileage as witnesses in the 
courts of the United States.
* * * * *
    (f) Testimony in a foreign language. If a witness is expected to 
testify in a language other than the English language, the party 
sponsoring the witness must indicate that in its Initial Disclosures so 
that an interpreter can be arranged for the hearing. When available, 
the interpreter should be court certified under 28 U.S.C. 1827.
0
27. In Sec.  904.260, revise paragraph (b) to read as follows:


Sec.  904.260  Recordation of hearing.

* * * * *
    (b) The official transcript of testimony taken, together with any 
exhibits, briefs, or memoranda of law filed therewith, will be filed 
with the Office of Administrative Law Judges. Transcripts of testimony 
will be available in any hearing and will be supplied to the parties at 
the cost of the Agency.
* * * * *
0
28. In Sec.  904.270, revise paragraph (b) to read as follows:


Sec.  904.270  Record of decision.

* * * * *
    (b) The Judge will arrange for appropriate storage of the records 
of any administrative proceeding, which place of storage need not 
necessarily be located physically within the Office of Administrative 
Law Judges.
0
29. In Sec.  904.271, revise paragraphs (a) introductory text, (b), 
(c), and (d) introductory text to read as follows:

[[Page 16695]]

Sec.  904.271  Initial Decision.

    (a) After expiration of the period provided in Sec.  904.261 for 
the filing of reply briefs (unless the parties have waived briefs or 
presented proposed findings orally at the hearing), the Judge will 
render an Initial Decision upon the record in the case, setting forth:
* * * * *
    (b) If the parties have presented oral proposed findings at the 
hearing or have waived presentation of proposed findings, the Judge may 
at the termination of the hearing announce the decision, subject to 
later issuance of a written Initial Decision under paragraph (a) of 
this section. In such cases, the Judge may direct the prevailing party 
to prepare proposed findings, conclusions, and an order.
    (c) The Judge will serve the Initial Decision on each of the 
parties, the Chief of the Enforcement Section of the NOAA Office of 
General Counsel, and the Administrator. Upon request, the Judge will 
promptly certify to the Administrator the record, including the 
original copy of the Initial Decision, as complete and accurate.
    (d) An Initial Decision becomes effective as the final 
administrative decision of NOAA 60 days after service, unless:
* * * * *
0
30. Revise Sec.  904.272 to read as follows:


Sec.  904.272  Petition for reconsideration.

    Unless an order or Initial Decision of the Judge specifically 
provides otherwise, any party may file a petition for reconsideration 
of an order or Initial Decision issued by the Judge. Such petitions 
must state the matter claimed to have been erroneously decided, and the 
alleged errors and relief sought must be specified with particularity. 
Petitions must be filed within 20 days after the service of such order 
or Initial Decision. The filing of a petition for reconsideration shall 
operate as a stay of an order or Initial Decision or its effectiveness 
date unless specifically so ordered by the Judge. Within 15 days after 
the petition is filed, any party to the administrative proceeding may 
file an answer in support or in opposition.
0
31. Revise Sec.  904.273 to read as follows:


Sec.  904.273  Administrative review of decision.

    (a) Subject to the requirements of this section, any party who 
wishes to seek review of an Initial Decision of a Judge must Petition 
for Review of the Initial Decision within 30 days after the date the 
decision is served. The petition must be served on the Administrator in 
conformance with Sec.  904.3(b) at the following address: 
Administrator, National Oceanic and Atmospheric Administration, 
Department of Commerce, Room 5128, 14th Street and Constitution Avenue 
NW, Washington, DC 20230. Copies of the Petition for Review, and all 
other documents and materials required in paragraph (d) of this 
section, must be served in conformance with Sec.  904.3(b) on all 
parties and to either [email protected] or the following 
address: Chief, Oceans and Coasts Section, NOAA Office of General 
Counsel, 1305 East-West Highway, SSMC 4, Suite 6111, Silver Spring, MD 
20910.
    (b) The Administrator may elect to issue an order to review the 
Initial Decision without petition and may affirm, reverse, modify or 
remand, in whole or in part, the Judge's Initial Decision. Any such 
order must be issued within 60 days after the date the Initial Decision 
is served.
    (c) Review by the Administrator of an Initial Decision is 
discretionary and is not a matter of right. If a party files a timely 
petition for discretionary review, or review is timely initiated by the 
Administrator, the effectiveness of the Initial Decision is stayed 
until further order of the Administrator or until the Initial Decision 
becomes final pursuant to paragraph (h) of this section. In determining 
whether or not to grant discretionary review, the Administrator will 
consider:
    (1) Whether the Initial Decision contains significant factual or 
legal errors that warrant further review by the Administrator; and
    (2) Whether fairness or other policy considerations warrant further 
consideration by the Administrator. Types of cases that fall within 
these criteria include, but are not limited to, those in which;
    (i) The Initial Decision conflicts with one or more other NOAA 
administrative decisions or federal court decisions on an important 
issue of federal law;
    (ii) The Judge decided an important federal question in a way that 
conflicts with prior rulings of the Administrator;
    (iii) The Judge decided a question of federal law that is so 
important that the Administrator should pass upon it even absent a 
conflict; or
    (iv) The Judge so far departed from the accepted and usual course 
of administrative proceedings as to call for an exercise of the 
Administrator's supervisory power.
    (d) A Petition for Review must comply with the following 
requirements regarding format and content:
    (1) The petition must include a concise statement of the case, that 
contains a statement of facts relevant to the issues submitted for 
review, and a summary of the argument that contains a succinct, clear 
and accurate statement of the arguments made in the body of the 
petition;
    (2) The petition must set forth, in detail, specific objections to 
the Initial Decision, the bases for review, and the relief requested;
    (3) Each issue raised in the petition must be separately numbered, 
concisely stated, and supported by detailed citations to specific pages 
in the record, and to statutes, regulations, and principal authorities. 
Petitions may not refer to or incorporate by reference entire documents 
or transcripts;
    (4) A copy of the Judge's Initial Decision must be attached to the 
petition;
    (5) Copies of all cited portions of the record must be attached to 
the petition;
    (6) A petition, exclusive of attachments and authorities, must not 
exceed 20 pages in length and must be in the form articulated in Sec.  
904.206(b); and
    (7) Issues of fact or law not argued before the Judge may not be 
raised in the petition unless such issues were raised for the first 
time in the Judge's Initial Decision, or could not reasonably have been 
foreseen and raised by the parties during the hearing. The 
Administrator will not consider new or additional evidence that is not 
a part of the record before the Judge.
    (e) The Administrator may deny a Petition for Review that is 
untimely or fails to comply with the format and content requirements in 
paragraph (d) of this section without further review.
    (f) No oral argument on Petitions for Review will be allowed.
    (g) Within 30 days after service of a petition for discretionary 
review, any party may file and serve an answer in support or in 
opposition. An answer must comport with the format and content 
requirements in paragraphs (d)(5) through (d)(7) of this section and 
set forth detailed responses to the specific objections, bases for 
review and relief requested in the petition. No further replies are 
allowed, unless requested by the Administrator.
    (h) If the Administrator has taken no action in response to the 
petition within 120 days after the petition is served, said petition 
shall be deemed denied and the Judge's Initial Decision shall become 
the final agency decision with an effective date 150 days after the 
petition is served.
    (i) If the Administrator issues an order denying discretionary 
review, the order

[[Page 16696]]

will be served on all parties in conformance with Sec.  904.3, and will 
specify the date upon which the Judge's Initial Decision will become 
effective as the final agency decision. The Administrator need not give 
reasons for denying review.
    (j) If the Administrator grants discretionary review or elects to 
review the Initial Decision without petition, the Administrator will 
issue an order to that effect. Such order may identify issues to be 
briefed and a briefing schedule. Such issues may include one or more of 
the issues raised in the Petition for Review and any other matters the 
Administrator wishes to review. Only those issues identified in the 
order may be argued in any briefs permitted under the order. The 
Administrator may choose to not order any additional briefing, and may 
instead make a final determination based on any Petitions for Review, 
any responses and the existing record.
    (k) If the Administrator grants or elects to take discretionary 
review, and after expiration of the period for filing any additional 
briefs under paragraph (j) of this section, the Administrator will 
render a written decision on the issues under review. The Administrator 
will serve the decision on each of the parties in conformance with 
Sec.  904.3. The Administrator's decision becomes the final 
administrative decision on the date it is served, unless otherwise 
provided in the decision, and is a final agency action for purposes of 
judicial review; except that an Administrator's decision to remand the 
Initial Decision to the Judge is not final agency action.
    (l) An Initial Decision shall not be subject to judicial review 
unless:
    (1) The party seeking judicial review has exhausted its opportunity 
for administrative review by filing a Petition for Review with the 
Administrator in compliance with this section, and
    (2) The Administrator has issued a final ruling on the petition 
that constitutes final agency action under paragraph (k) of this 
section or the Judge's Initial Decision has become the final agency 
decision under paragraph (h) or (i) of this section.
    (m) For purposes of any subsequent judicial review of the agency 
decision, any issues that are not identified in any Petition for 
Review, in any answer in support or opposition, by the Administrator, 
or in any modifications to the Initial Decision are waived.
    (n) If an action is filed for judicial review of a final agency 
decision, and the decision is vacated or remanded by a court, the 
Administrator shall issue an order addressing further administrative 
proceedings in the matter. Such order may include a remand to the Chief 
Administrative Law Judge for further proceedings consistent with the 
judicial decision, or further briefing before the Administrator on any 
issues the Administrator deems appropriate.
0
32. Revise Sec.  904.300 to read as follows:


Sec.  904.300   Scope and applicability.

    (a) This subpart sets forth procedures governing the suspension, 
revocation, modification, and denial of permits. The bases for 
sanctioning a permit are set forth in Sec.  904.301.
    (1) Revocation. A permit may be cancelled, with or without 
prejudice to issuance of the permit in the future. Additional 
requirements for issuance of any future permit may be imposed.
    (2) Suspension. A permit may be suspended either for a specified 
period of time or until stated requirements are met, or both. If 
contingent on stated requirements being met, the suspension is with 
prejudice to issuance of any permit until the requirements are met.
    (3) Modification. A permit may be modified, as by imposing 
additional conditions and restrictions. If the permit was issued for a 
foreign fishing vessel under section 204(b) of the Magnuson-Stevens 
Fishery Conservation and Management Act, additional conditions and 
restrictions may be imposed on the application of the foreign nation 
involved and on any permits issued under such application.
    (4) Denial. Issuance of a permit in the future may be denied 
through imposition of a permit denial.
    (b) This subpart does not apply to the Land Remote Sensing Policy 
Act of 1992, as amended (51 U.S.C. 60101 et seq.), or to the Deep 
Seabed Hard Mineral Resources Act (30 U.S.C. 1401 et seq.). Regulations 
governing denials of licenses issued under the Land Remote Sensing 
Policy Act of 1992, as amended (51 U.S.C. 60101 et seq.), appear at 15 
CFR part 960. Regulations governing sanctions and denials of permits 
issued under the Deep Seabed Hard Mineral Resources Act (30 U.S.C. 1401 
et seq.) appear at 15 CFR part 970.
0
33. Revise Sec.  904.301 to read as follows:


Sec.  904.301  Bases for permit sanctions.

    (a) Unless otherwise specified in a settlement agreement, or 
otherwise provided by statutes or in this subpart, NOAA may sanction 
any permit issued under the statutes cited in Sec.  904.1(c). The bases 
for an action to sanction or deny a permit include the following:
    (1) Violation of any statute administered by NOAA, including 
violation of any regulation promulgated or permit condition or 
restriction prescribed thereunder, by the permit holder/applicant or 
with the use of a permitted vessel;
    (2) The failure to pay a civil penalty imposed under any marine 
resource law administered by NOAA;
    (3) The failure to pay a criminal fine imposed or to satisfy any 
other liability incurred in a judicial proceeding under any of the 
statutes administered by NOAA; or
    (4) The failure to pay any amount in settlement of a civil 
forfeiture imposed on a vessel or other property.
    (b) A sanction may be applied to a permit involved in the 
underlying violation, as well as to any permit held or sought by the 
permit holder/applicant, including permits for other vessels. (See, 
e.g., 16 U.S.C. 1858(g)(1)(i)).
    (c) A permit sanction may not be extinguished by sale or transfer. 
A vessel's permit sanction is not extinguished by sale or transfer of 
the vessel, nor by dissolution or reincorporation of a vessel owner 
corporation, and shall remain with the vessel until lifted by NOAA.
0
34. In Sec.  904.302, revise paragraph (a) to read as follows:


Sec.  904.302  Notice of permit sanction (NOPS).

    (a) Service of a NOPS against a permit issued to a foreign fishing 
vessel will be made on the agent authorized to receive and respond to 
any legal process for vessels of that country.
* * * * *
0
35. In Sec.  904.303:
0
a. Remove and reserve paragraph (a); and
0
b. Revise paragraphs (b) and (d),
    The revisions read as follows:


Sec.  904.303  Notice of intent to deny permit (NIDP).

* * * * *
    (b) The NIDP will set forth the basis for its issuance and any 
opportunity for a hearing.
* * * * *
    (d) A NIDP may be issued in conjunction with or independent of a 
NOPS.
0
36. In Sec.  904.304, revise paragraph (b) to read as follows:


Sec.  904.304  Opportunity for hearing.

* * * * *
    (b) There will be no opportunity for a hearing to contest a NOPS or 
NIDP if the permit holder/applicant had a previous opportunity to 
participate as a party in an administrative or judicial proceeding with 
respect to the violation that forms the basis for the NOPS or

[[Page 16697]]

NIDP, whether or not the permit holder/applicant did participate, and 
whether or not such a proceeding was held.


Sec.  904.310  [Removed and Reserved]

0
37. Remove and reserve Sec.  904.310.
0
38. In Sec.  904.311, revise the section heading, introductory text, 
and paragraph (b) to read as follows:


Sec.  904.311  Effect of payment on permit sanction.

    Where a permit has been sanctioned on one of the bases set forth in 
Sec.  904.301(a)(2) through (4) and the permit holder/applicant pays 
the criminal fine, civil penalty, or amount in settlement of a civil 
forfeiture in full or agrees to terms satisfactory to NOAA for payment:
* * * * *
    (b) Any permit suspended under Sec.  904.301(a)(2) through (4) will 
be reinstated by order of NOAA; or
* * * * *


Sec.  904.320  [Removed and Reserved]

0
39. Remove and reserve Sec.  904.320.
0
40. In Sec.  904.402, revise paragraph (a) to read as follows:


Sec.  904.402  Procedures.

    (a) Any person authorized to enforce the laws listed in Sec.  
904.1(c) or Agency counsel may serve a written warning on a respondent.
* * * * *
0
41. In Sec.  904.403:
0
a. Remove and reserve paragraph (a); and
    b. Revise paragraph (b).
    The revision reads as follows:


Sec.  904.403  Review and appeal of a written warning.

* * * * *
    (b) The recipient of a written warning may appeal to the NOAA 
Deputy General Counsel. The appeal must be served in conformance with 
Sec.  904.3 and submitted to [email protected] or the 
NOAA Office of the General Counsel, Herbert Hoover Office Building, 
14th & Constitution Avenue NW, Washington, DC 20230, within 60 days of 
receipt of the written warning.
    (1) An appeal from a written warning must be in writing and must 
present the facts and circumstances that explain or deny the violation 
described in the written warning.
    (2) [Reserved]
* * * * *
0
42. Revise Sec.  904.500 to read as follows:


Sec.  904.500  Purpose and scope.

    (a) This subpart sets forth procedures governing the release, 
abandonment, forfeiture, remission of forfeiture, or return of property 
seized under any of the laws cited in Sec.  904.1(c).
    (b) Except as provided in this subpart, these regulations apply to 
all seized property subject to forfeiture under any of the laws cited 
in Sec.  904.1(c). This subpart is in addition to, and not in 
contradiction of, any special rules regarding seizure, holding or 
disposition of property seized under these statutes.
0
43. Revise Sec.  904.501 to read as follows


Sec.  904.501  Notice of seizure.

    Within 60 days from the date of the seizure, NOAA will serve a 
Notice of Seizure on the owner or consignee, if known or easily 
ascertainable, or other party that the facts of record indicate has an 
interest in the seized property. In cases where the property is seized 
by a state or local law enforcement agency; a Notice of Seizure will be 
served in the above manner within 90 days from the date of the seizure. 
The Notice will describe the seized property and state the time, place 
and reason for the seizure, including the provisions of law alleged to 
have been violated. The Notice will inform each interested party of his 
or her right to file a claim to the seized property, and state a date 
by which a claim must be filed, which may not be less than 35 days 
after service of the Notice. The Notice may be combined with a Notice 
of the sale of perishable fish issued under Sec.  904.505. If a claim 
is filed, the case will be referred promptly to the U.S. Department of 
Justice for institution of judicial proceedings.
0
44. In Sec.  904.502, revise paragraph (c) to read as follows:


Sec.  904.502  Bonded release of seized property.

* * * * *
    (c) If NOAA grants the request, the amount paid by the requester 
will be deposited in a NOAA suspense account. The amount so deposited 
will for all purposes be considered to represent the property seized 
and subject to forfeiture, and payment of the amount by requester 
constitutes a waiver by requester of any claim rising from the seizure 
and custody of the property. NOAA will maintain the money so deposited 
pending further order of NOAA, order of a court, or disposition by 
applicable administrative proceedings.
* * * * *
0
45. Revise Sec.  904.503 to read as follows:


Sec.  904.503  Appraisement.

    NOAA may appraise seized property to determine its domestic value. 
Domestic value means the price at which such or similar property is 
offered for sale at the time and place of appraisement in the ordinary 
course of trade. If there is no market for the seized property at the 
place of appraisement, the value in the principal market nearest the 
place of appraisement may be used. If the seized property may not 
lawfully be sold in the United States, its domestic value may be 
determined by other reasonable means.
0
46. In Sec.  904.504, revise paragraphs (a), (b)(1), and (b)(3)(i) to 
read as follows:


Sec.  904.504  Administrative forfeiture proceedings.

    (a) When authorized. This section applies to property with a value 
of $500,000 or less, and that is subject to administrative forfeiture 
under the applicable statute. This section does not apply to 
conveyances seized in connection with criminal proceedings.
    (b) * * *
    (1) Within 60 days from the date of the seizure, or within 90 days 
of the date of the seizure where the property is seized by a state or 
local law enforcement agency, NOAA will publish a Notice of Proposed 
Forfeiture once a week for at least three successive weeks in a 
newspaper of general circulation in the Federal judicial district in 
which the property was seized or post a notice on an official 
government forfeiture website for at least 30 consecutive days. 
However, if the value of the seized property does not exceed $1,000, 
the Notice may be published by posting for at least three successive 
weeks in a conspicuous place accessible to the public at the National 
Marine Fisheries Service Enforcement Office, U.S. District Court, or 
the U.S. Customs House nearest the place of seizure, with the date of 
posting indicated on the Notice. In addition, a reasonable effort will 
be made to serve the Notice on each person whose identity, address and 
interest in the property are known or easily ascertainable.
* * * * *
    (3)(i) Any person claiming the seized property may file a claim 
with NOAA, at the address indicated in the Notice, within 30 days of 
the date the final Notice was published or posted. The claim must state 
the claimant's interest in the property.
* * * * *
0
47. In Sec.  904.505, revise paragraph (c) to read as follows:


Sec.  904.505  Summary sale.

* * * * *
    (c) NOAA will serve the Notice of the Summary Sale on the owner or 
consignee, if known or easily

[[Page 16698]]

ascertainable, or to any other party that the facts of record indicate 
has an interest in the seized fish, unless the owner or consignee or 
other interested party has otherwise been personally notified. Notice 
will be sent either prior to the sale, or as soon thereafter as 
practicable.
* * * * *
0
48. In Sec.  904.506, revise paragraphs (a)(1) and (b)(1) to read as 
follows:


Sec.  904.506  Remission of forfeiture and restoration of proceeds of 
sale.

    (a) * * *
    (1) This section establishes procedures for filing with NOAA a 
petition for the return of any property which has been or may be 
administratively forfeited under the provisions of any statute 
administered by NOAA that authorizes the remission or mitigation of 
forfeitures.
* * * * *
    (b) * * *
    (1) Any person claiming an interest in any property which has been 
or may be administratively forfeited under the provisions of Sec.  
904.504 may, at any time after seizure of the property, but no later 
than 90 days after the date of forfeiture, petition for a remission or 
mitigation of the forfeiture and restoration of the proceeds of such 
sale, or such part thereof as may be claimed by the petitioner by 
serving the petition in conformance with Sec.  904.3 on 
[email protected] or the Chief of the Enforcement Section 
of the NOAA Office of General Counsel, 1315 East-West Highway, SSMC 3, 
Suite 15828, Silver Spring, MD 20910.
* * * * *
0
49. In Sec.  904.509, revise paragraph (g)(2) to read as follows:


Sec.  904.509  Disposal of forfeited property.

* * * * *
    (g) * * *
    (2) Destruction will be accomplished in accordance with the 
requirements of 41 CFR parts 101-1 through 101-49.
* * * * *
[FR Doc. 2022-05845 Filed 3-23-22; 8:45 am]
BILLING CODE 3510-22-P