Rule2022-13492
Civil Procedures in Civil Administrative Enforcement Proceedings
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 30, 2022
Effective
August 1, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NOAA is amending procedures governing its civil administrative enforcement proceedings. The principal changes 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 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 testify 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 update titles and addresses and correct clerical errors.
Full Text
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<title>Federal Register, Volume 87 Issue 125 (Thursday, June 30, 2022)</title>
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[Federal Register Volume 87, Number 125 (Thursday, June 30, 2022)]
[Rules and Regulations]
[Pages 38934-38943]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13492]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 904
[Docket No. 220609-0132]
RIN 0648-BI72
Civil Procedures in Civil Administrative Enforcement Proceedings
AGENCY: Office of General Counsel (OGC), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NOAA is amending procedures governing its civil administrative
enforcement proceedings. The principal changes 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 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 testify 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,
[[Page 38935]]
and allow NOAA to publish a Notice of Proposed Forfeiture on an
official government website. In addition, minor changes update titles
and addresses and correct clerical errors.
DATES: This rule becomes effective August 1, 2022.
FOR FURTHER INFORMATION CONTACT: Patrick Carroll or Meggan Engelke-Ros,
GCES, (301) 427-2202.
SUPPLEMENTARY INFORMATION: A detailed description of the changes and
clarifications proposed for regulations at 15 CFR part 904 is found in
the proposed rule that NOAA published in the Federal Register at 87 FR
16687 (March 24, 2022) and is not repeated here.
Public Comments Received
NOAA received one comment from the public during the comment period
for the proposed rule. This comment is summarized here and is directly
followed by NOAA's response.
Comment: The commenter generally suggests that the revisions to 15
CFR part 904, characterized by NOAA as non-substantive, in fact
diminish the due process protections afforded to Respondents and
restrict their ability to contest violations charged under these
regulations. The commenter also expresses a general belief that this
revision provides some undue advantage to NOAA, restricts an
administrative law judge's authority to issue decisions, and makes it
more difficult for the public to understand their rights within this
civil administrative process. Specifically, the commenter challenges
NOAA's explanation that the proposed removal and reservation of 15 CFR
904.103 merely removes language that is redundant with other existing
provision; the commenter requests that NOAA explain what language in 15
CFR 904.103 was redundant.
Response: As explained within the proposed rule, all of the
revisions to 15 CFR part 904 merely refine the procedures applicable to
NOAA's civil administrative enforcement proceedings. The principal
changes afford greater transparency in the application of the NOAA
Administrator's discretionary review authority, emphasize impartiality
within the written warning appeal process, ensure that responses to
requests for admission mirror similar requirements found in Federal
Rule of Civil Procedure 36, and clarify the proper channels by which
certain appeals and petitions for relief may be filed, including new
and updated mailing and electronic mailing addresses.
Other changes remove the requirement for NOAA attorneys to
challenge late hearing requests in all circumstances, and simplify and
modernize discovery filings, the taking of depositions by
videoconference, and the arrangement of interpreters. NOAA is also
clarifying its permit sanction procedures and administrative forfeiture
proceedings to better explain the application of those provisions, and
is authorizing the publication of a Notice of Proposed Forfeiture on a
publically available and official government website to expand the
available options for achieving effective public notice of the
information and rights described at 15 CFR 904.504(b)(2).
Neither the aforementioned revisions nor any of the several
clerical corrections made in this final rule undermine principles of
due process or diminish a respondent's right to contest a charged
violation. Instead, NOAA's amendments increase the accessibility of
these procedures and advance fair and just outcomes in NOAA's civil
administrative enforcement proceedings.
With respect to the commenter's query regarding 15 CFR 904.103,
that section merely reiterates that hearing requests are governed by
the procedures set forth in Subpart C of these regulations. 15 CFR
904.200 explains the scope and applicability of Subpart C, and provides
that this subpart ``sets forth the procedures governing the conduct of
hearings.'' In addition, 15 CFR 904.201 specifically addresses the
filing and receipt of hearing requests as well as the docketing of
matters with the Office of Administrative Law Judges. Furthermore, the
various sections within Subpart C all govern hearing and appeal
procedures. As a result, 15 CFR 904.103 is repetitive of the provisions
located within Subpart C, and thus, that section is removed and
reserved to delete redundancy.
In order to ensure that respondents are apprised of their rights,
as a matter of practice and as required by these procedural
regulations, NOAA attorneys provide a copy of 15 CFR part 904 to a
respondent whenever an enforcement action is initiated against them.
See 15 CFR 904.101(a)(5). In addition, these regulations remain
publicly available within the United States Code of Federal
Regulations, and NOAA continues to include a link to these regulations
on the NOAA Office of General Counsel website. See <a href="https://www.gc.noaa.gov/enforce-office4.html">https://www.gc.noaa.gov/enforce-office4.html</a>.
Changes From the Proposed Rule
This final rule contains no changes from the proposed rule.
Classification
This final rule has been determined to be not significant for
purposes of Executive Order 12866.
There are no reporting, recordkeeping or other compliance
requirements in this rule. Nor does this 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
certified to the Chief Counsel for Advocacy of the Small Business
Administration during the proposed rule stage that this action would
not have a significant economic impact on a substantial number of small
entities. The factual basis for the certification was published in the
proposed rule and is not repeated here. No comments were received
regarding this certification. As a result, a final regulatory
flexibility analysis was not required and none was prepared.
List of Subjects in 15 CFR Part 904
Administrative practice and procedure, fisheries, fishing, fishing
vessels, penalties, seizures and forfeitures.
Dated: June 17, 2022.
Walker Smith,
General Counsel, National Oceanic and Atmospheric Administration.
For reasons set forth in the preamble, 15 CFR part 904 is amended
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 (34) and add
paragraphs (c)(35) through (40) to read as follows:
[[Page 38936]]
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 paragraph (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 38937]]
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 38938]]
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 38939]]
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 38940]]
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 <a href="/cdn-cgi/l/email-protection#aacbcec7c3c4c3d9ded8cbdec3dccf84cbdadacfcbc6d9eac4c5cbcb84cdc5dc"><span class="__cf_email__" data-cfemail="a1c0c5ccc8cfc8d2d5d3c0d5c8d7c48fc0d1d1c4c0cdd2e1cfcec0c08fc6ced7">[email protected]</span></a> 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 38941]]
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
[[Page 38942]]
that forms the basis for the NOPS or 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
0
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 <a href="/cdn-cgi/l/email-protection#48292c252126213b3c3a293c213e2d662938382d29243b0826272929662f273e"><span class="__cf_email__" data-cfemail="86e7e2ebefe8eff5f2f4e7f2eff0e3a8e7f6f6e3e7eaf5c6e8e9e7e7a8e1e9f0">[email protected]</span></a> 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:
[[Page 38943]]
Sec. 904.505 Summary sale.
* * * * *
(c) NOAA will serve the Notice of the Summary Sale on the owner or
consignee, if known or easily 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
<a href="/cdn-cgi/l/email-protection#2d4c49404443445e595f4c59445b48034c5d5d484c415e6d43424c4c034a425b"><span class="__cf_email__" data-cfemail="cfaeaba2a6a1a6bcbbbdaebba6b9aae1aebfbfaaaea3bc8fa1a0aeaee1a8a0b9">[email protected]</span></a> 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. 2022-13492 Filed 6-29-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on June 30, 2022.
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