(each day of a continuing violation is a separate offense):

(i) Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 through 1882;

(ii) Endangered Species Act of 1973, 16 U.S.C. 1531 through 1543;

(iii) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 through 1407;

(iv) Lacey Act, 16 U.S.C. 3371 through 3378;

(v) Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401, et seq.;

(vi) Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101, et seq.; (vii) Marine Protection, Research and Sanctuaries Act of 1972, 16 U.S.C. 1431 through 1434;

(viii) Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971 through 971g; (ix) Northern Pacific Halibut Act, 16 U.S.C. 773 through 773j;

(x) Tuna Conventions Act of 1950, 16 U.S.C. 951 through 961;

(xi) North Pacific Fisheries Act, 16 U.S.C. 1021 et seq.

(2) This subpart provides uniform rules and procedures for assessing civil penalties under the statutes listed in paragraph (a)(1) of this section.

(b) Filing and service of documents. (1) Whenever this subpart requires service of a document or other paper, such service may effectively be made on the agent for service of process or on the attorney for the person to be served. Refusal by the person to be served, or his or her agency or attorney, 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.

(2) Whenever this subpart or an order issued hereunder requires a document or other paper to be filed within a certain period of time, such document will be considered filed as of the date of the postmark (or as otherwise shown for government-franked mail), if mailed, or (if not mailed) as of the date actually delivered to the office where filing is required. Time periods begin to run on the day following the date of the document, paper, or event which begins the time period and, unless otherwise provided by law or these regulations, includes the last day of the period, unless such day is a Saturday, Sunday, or Federal holiday,

in which event it includes the next following day which is not a Saturday, Sunday, or Federal holiday. This method of computing time periods also applies to any act, such as paying a civil penalty, required by this subpart to take place within a specified period of time.

(3) If an oral or written application is made to the Administrator within 10 days after the expiration of a time period established in this subpart for the required filing of documents or other papers, the Administrator may permit a late filing if the Administrator finds reasonable grounds for an inability or failure to file within the time period. All extensions will be in writing. Except as specifically proIvided in this part, or by order of an Administrative Law Judge under this part, no requests for an extension of time may be granted.

(c) Definitions. Unless the context otherwise requires, terms in this subpart have the meanings prescribed in the applicable statute or in Subpart A. In addition, the following definitions apply:

(1) Administrator. Means the Administrator of NOAA or a designee.

(2) Affected permit. Means a permit or license issued by NOAA under an applicable statute that may be subject to sanctions as a result of civil penalty proceedings under this part.

(3) Affected vessel. Means any vessel that is liable in rem for any civil penalty proceedings under this part, or whose permit may be subject to sanction as a result of civil penalty proceedings under this part.

(4) Applicable statute. Means a statute listed in § 904.100(a), and its implementing regulations, under which a civil penalty is assessed, or proposed to be assessed.

(5) Final administrative decision. Means an order of the Administrator assessing a civil penalty 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.

(6) Permit. Means any license, permit, certificate or other approval issued by NOAA under an applicable statute.

(d) Exceptions. Whenever a particular statute under which a penalty is assessed requires procedures different from the procedures in this subpart, the alternative procedures for that statute are set forth in the last paragraph of the section of this subpart which is affected.

[46 FR 61644, Dec. 18, 1981; 47 FR 19990, May 10, 1982; 47 FR 54429, Dec. 3, 1982]

§ 904.101 A Notice of Violation and Assessment (NOVA).

(a) A notice of violation and assessment (NOVA) will be issued by the Administrator and served personally or by registered or certified mail, return receipt requested, upon the person alleged to be subject to a civil penalty (the respondent). A copy of the NOVA will similarly be served upon the holder of an affected permit, or the owner of an affected vessel, if the holder or owner is not the respondent. Although no specific form is prescribed, the NOVA will contain: (1) A concise statement of the facts believed to show a violation; (2) a specific reference to the provisions of the Act, regulation, license, permit, agreement, or order allegedly violated; (3) the findings and conclusions upon which the Administrator bases the proposed assessment; and (4) the amount of the civil penalty proposed to be assessed.

(b) In respect to the amount of civil penalty, the Administrator will take into account information available to the agency concerning any factor to be considered under the applicable statute, and any other matter that justice or the purposes of the statute require.

(c) The NOVA may also contain an initial proposal for compromise or settlement of the case. The Administrator may also attach documents which illuminate the facts believed to show a violation. The NOVA will advise of the respondent's rights at that point in the proceeding, and will be accompanied by a copy of the regulations in this part governing civil procedures.

(1) Accept the proposed penalty or compromise penalty, if any, by taking the actions specified in the NOVA;

(2) Seek to have the NOVA amended or modified under paragraph (b) of this section;

(3) Request a hearing under paragraph (e) of this section;

(4) Request an extension of time to respond to the NOVA under paragraph (c) of this section; or

(5) Take no action, in which case the NOVA becomes final in accordance with 904.104. Options (2), (3), (4), and (5) may also be exercised by the holder of an affected permit or the owner of an affected vessel.

(b) The respondent, the permit holder, or the vessel owner may seek amendment or modification of the NOVA to conform to the facts or law as that person sees them by notifying the Administrator at the telephone number or address specified in the NOVA. If amendment or modification is sought, the Administrator will either amend the NOVA or decline to amend it, and so notify the respondent, permit holder or vessel owner, as appropriate.

(c) The respondent, permit holder, or vessel owner may, within the 30-day period specified in paragraph (a) of this section, request an extension of time to respond. The Administrator may grant an extension of up to 30 days unless the Administrator determines that the requestor could, exercising reasonable diligence, respond within the 30-day period. If the Administrator does not respond to the request within 48 hours of its receipt by the Administrator, 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 effective response, and will be followed by written confirmation.

(d) The Administrator may, for good cause, grant an additional extension beyond the thirty day period specified in paragraph (c) of this section.

(e) If the respondent, the permit holder, or the vessel owner wishes a hearing, the request shall be dated and in writing, and shall be served either in person or by certified or registered mail, return receipt requested,

(a) Any hearing request under § 904.102(e) is governed by the hearing and review procedures in Subpart C.

(b) In any hearing held in response to a request under § 904.102(e), the Administrative Law Judge will render an initial decision. Any party to the hearing may seek the Administrator's review of the Judge's initial decision, subject to the provisions of Subpart C.

§ 904.104 Final administrative decision.

(a) If no request for hearing is filed as provided in § 904.102(e), the NOVA becomes effective as the final administrative decision and order of the Administrator on the 30th day after service of the NOVA, or on the last day of any delay period granted.

(b) If a request for hearing is filed in accordance with § 904.102(e), the date of the final administrative decision is as provided in Subpart C.

§ 904.105 Payment of final assessment.

(a) Respondent shall make full payment of the civil penalty assessed within 30 days of the date upon which the assessment becomes effective as the final administrative decision and order of the Administrator under § 904.104 or Subpart C, or, if the respondent initiates judicial review of the assessment in accordance with the applicable statute during the 30 day period, within 10 days after the appropriate court enters final judgment in favor of the Administrator, unless the court's order provides otherwise. Payment shall be made by mailing or delivering to the Administrator at the address specified in the NOVA a check

or money order made payable in United States currency in the amount of the assessment to the "Treasurer of the United States."

(b) Upon any failure to pay the civil penalty assessed, the Administrator may request the Attorney General of the United States to recover the amount assessed in any appropriate district court of the United States, or may act under § 904.106.

§ 904.106 Compromise of civil penalty.

(a) The Administrator, in the Administrator's sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty imposed, or which is subject to imposition, except as stated in paragraph (e) of this section.

(b) The compromise authority of the Administrator under this section is in addition to any similar authority provided in any applicable statute or regulation, and may be exercised either upon the initiative of the Administrator or in response to a request of the alleged violator or other interested person.

(c) If the Administrator acts under this section prior to issuing a NOVA or after a final assessment is payable under § 904.105, the Administrator will prepare a document indicating the action taken and citing this paragraph and the applicable statutory provision as authority. Once the case has been assigned for hearing under Subpart C, the Administrator will, except in unusual circumstances, defer any compromise action under this section until the Administrative Law Judge has rendered an initial decision in the matter. Neither the existence of the compromise authority of the Administrator under this section nor the Administrator's exercise thereof at any time changes the date upon which an assessment is final or payable.

(d) If compromise action is requested or otherwise becomes appropriate for the Administrator's consideration during the pendency of a petition for relief from forfeiture filed under Subpart F, the Administrator may consolidate, in a manner consistent with the provisions of any statute or regulation

applicable to the forfeiture, consideration of the two matters.

(e) Exception: The Administrator will not compromise, modify, or remit a civil penalty imposed, or subject to imposition, under the Deep Seabed Hard Mineral Resources Act while an action to review or recover the penalty is pending in a court of the United States.

§ 904.107 Application of this subpart to permit holders and vessel owners.

(a) This subpart applies to holders of the affected permits as defined in § 904.100(c)(2).

(b) This subpart also applies to owners of affected vessels as defined in § 904.100(c)(3).

Subpart C-Hearing and Appeal Procedures

AUTHORITY: Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971, 89 Stat. 385; Deep Seabed Hard Mineral Resources Act, 30 U.S.C. 1401, 94 Stat. 553; Endangered Species Act of 1973, 16 U.S.C. 1531, 87 Stat. 884; Lacey Act, 16 U.S.C. 3371-3378, 62 Stat. 686; Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801, 90 Stat. 331; Marine Mammal Protection Act of 1972, 16 U.S.C. 1361, 86 Stat. 1027; Marine Protection, Research, and Sanctuaries Act of 1972, Title III, 16 U.S.C. 1431, 86 Stat. 1061; Northern Pacific Halibut Act, 16 U.S.C. 773, 50 Stat. 325; Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. 9101, 94 Stat. 974; Tuna Conventions Act of 1950, 16 U.S.C. 951, 64 Stat. 777; North Pacific Fisheries Act of 1954, 16 U.S.C. 1021 et seq.

SOURCE: 46 FR 61646, Dec. 18, 1981, unless otherwise noted.

GENERAL

§ 904.200 Scope and applicability.

(a) These rules establish uniform procedures for the conduct of hearings and the issuance of initial, recommended, and final decisions of the National Oceanic and Atmospheric Administration (NOAA) in cases involving alleged violations of the laws listed above and regulations implementing these Acts, including civil penalty assessments and permit sanctions. By separate regulation, these rules may be applied to proceedings which do not involve alleged violations of law. These rules shall govern proceedings for

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which no other rules of practice have been promulgated. By delegation from the Secretary of Commerce or the statute itself, the Administrator of NOAA has authority to carry out the provisions of the Acts and is authorized further to delegate these authorities. These rules are an exercise of that authority.

(b) Subject to the administrative direction of the Chief Administrative Law Judge, each Administrative Law Judge (Judge) assigned by the Chief Administrative Law Judge is delegated authority to make the initial, recommended, or final decision of the agency (whichever is made appropriate by regulation outside this subpart) in proceedings subject to the provisions of this subpart and to take actions to promote the efficient and fair conduct of hearings as set out in these rules, except that no Administrative Law Judge has authority to rule on challenges to the validity of regulations promulgated by the agency.

(c) The rules in this subpart will not serve as an independent basis for claiming the right to a hearing, but instead prescribe procedures for the conduct of hearings, the right to which is provided by other authority, including other subparts in this part.

§ 904.201 Definitions.

"Administrator" means the Administrator of NOAA or a designee.

"Affected licensee" means the holder of a license or permit issued by the agency which may be subject to sanctions by the agency as a result of proceedings under this subpart.

"Affected vessel" means a vessel whose agency-issued permit may be subject to sanctions by the agency as a result of proceedings under this subpart, or would be liable in rem for a civil penalty assessed under this subpart.

"Initial decision" means a decision of the Administrative Law Judge which, under applicable statute and regulation, is subject to review by the Administrator, but which becomes the final agency decision in the absence of such review.

"Final decision" when used in reference to an Administrative Law Judge

decision, means a decision of the Administrative Law Judge which, under applicable statute and regulation, is the final agency decision and is not subject to review by the Administrator.

"Recommended decision" means a decision of the Administrative Law Judge which, under applicable statute and regulation, is a recommendation considered by the Administrator in reaching a final agency decision, but which does not itself become the final agency decision.

"Agency" means NOAA.

"Decision" means an initial, recommended, or final decision of the Administrative Law Judge.

§ 904.202 Use of gender and number.

Words importing the singular number may extend and be applied to several persons or things; words importing the plural may include the singular; and words importing the masculine gender include the feminine gender and the feminine the masculine.

§ 904.203 Docket number.

Each request for hearing promptly upon its receipt for filing in the Office of Administrative Law Judges will be assigned a docket number and thereafter the proceeding shall be referred to by such number.

§ 904.204 Notice of assignment.

Written notice of the assignment of hearing to the Judge will promptly be given to the parties and thereafter all pleadings, papers, and other documents in the proceeding shall be filed directly with the Judge with copies served on the opposing party.

§ 904.205 Appearances.

A party may appear in person or by or with counsel or other qualified representative.

§ 904.206 Duties and powers of Judge.

(a) The Judge shall have all powers and responsibilities necessary to preside over the parties and the proceeding, to hold prehearing conferences, to conduct the hearing, and to make the decision in accordance with these regulations and 5 U.S.C. 554 through 557,

including, but not limited to, the authority and duty to:

(1) Rule on a request to participate as a party in the proceeding by allowing, denying, or limiting such participation; provided, however, that the respondent, agency counsel, and if they enter an appearance, the owner of an affected vessel and the holder of an affected license, shall be parties, and provided further that the Judge shall prior to ruling ascertain the views of other parties and base the ruling on whether the request is from a person who could be directly and adversely affected by the decision and who may contribute materially to the disposition of the proceedings;

(2) Schedule the time and place and manner of conducting the pre-hearing conference or hearing, continue the hearing from day to day, adjourn the hearing to a later date or a different place, and reopen the hearing at any time before issuance of the decision, all in the Judge's discretion, having due regard for the convenience and necessity of the parties and witnesses;

(3) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to close the hearings in the interests of justice; seal the record from public scrutiny to protect privileged information, trade secrets, and confidential commercial or financial information; and strike testimony of a witness refusing to answer a question ruled to be proper;

(4) Administer oaths and affirmations to witnesses;

(5) Rule on discovery requests, establish discovery schedules, and, whenever the ends of justice would thereby be served, take or cause depositions or interrogatories to be taken and issue protective orders under § 904.240;

(6) Rule on motions, procedural requests, and similar matters;

(7) Receive, exclude, limit, and otherwise rule on offers of proof and evidence;

(8) Examine and cross-examine witnesses and introduce into the record on the Judge's own initiative documentary or other evidence;

(9) Rule on requests for appearance of witnesses or production of documents and take appropriate action