50 CFR § 228.1 - 228.21 - Notice and Hearings on Section 103 (d) Regulations

5 SUBCHAPTER C—MARINE MAMMALS PART 228—NOTICE AND HEARING ON SECTION 103(d) REGULATIONS Sec. 228.1 Basis and purpose. 228.2 Definitions. 228.3 Scope of regulations. 228.4 Notice of hearing. 228.5 Notification by interested persons. 228.6 Presiding officer. 228.7 Direct testimony submitted as written documents. 228.8 Mailing address. 228.9 Inspection and copying of documents. 228.10 Ex parte communications. 228.11 Prehearing conference. 228.12 Final agenda of the hearing. 228.13 Determination to cancel the hearing. 228.14 Rebuttal testimony and new issues of fact in final agenda. 228.15 Waiver of right to participate. 228.16 Conduct of the hearing. 228.17 Direct testimony. 228.18 Cross-examination. 228.19 Oral and written arguments. 228.20 Recommended decision, certification of the transcript and submission of com ments on the recommended decision. 228.21 Assistant Administrator’s decision. AUTHORITY: 16 U.S.C. 1361 et seq. SOURCE: 65 FR 39560, June 27, 2000, unless otherwise noted. § 228.1 Basis and purpose. (a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protec tion Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these reg ulations authorize the Assistant Ad ministrator of the National Marine Fisheries Service, to: (1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations; (2) Waive the moratorium and to adopt regulations with respect to the taking and importing of animals from each species of marine mammals under the Assistant Administrator’s jurisdic tion; (3) Prescribe regulations governing the taking of depleted marine mam mals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sec tions, the Act refers the Assistant Ad ministrator to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Assistant Administrator to waive the moratorium pursuant to sec tion 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)). (b) The purpose of this part is to es tablish rules of practice and procedure for all hearings conducted pursuant to section 103(d) of the Act. § 228.2 Definitions. (a) Party means, for the purposes of this subpart: (1) The Assistant Administrator or the Assistant Administrator’s rep resentative; (2) A person who has notified the As sistant Administrator by specified dates of his or her intent to participate in the hearing pursuant to §§ 228.5 and 228.14(b). (b) Witness means, for the purpose of this part, any person who submits writ ten direct testimony on the proposed regulations. A person may be both a party and a witness. § 228.3 Scope of regulations. The procedural regulations in this part govern the practice and procedure in hearings held under section 103(d) of the Act. These hearings will be gov erned by the provisions of 5 U.S.C. 556 and section 557 of the Administrative Procedure Act. The regulations shall be construed to secure the just, speedy and inexpensive determination of all issues raised with respect to any waiv er or regulation proposed pursuant to section 103(d) of the Act with full pro tection for the rights of all persons af fected thereby. § 228.4 Notice of hearing. (a) A notice of hearing on any pro posed regulations shall be published in the FEDERAL REGISTER, together with the Assistant Administrator’s proposed determination to waive the morato rium pursuant to section 101(a)(3)(A) of the Act (16 U.S.C. 1371(a)(3)(A)), where applicable. (b) The notice shall state: 6 50 CFR Ch. II (10–1–23 Edition) § 228.5 (1) The nature of the hearing; (2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hear ing; (3) The legal authority under which the hearing is to be held; (4) The proposed regulations and waiver, where applicable, and a sum mary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d)); (5) Issues of fact which may be in volved in the hearing; (6) If a draft Environmental Impact Statement is required, the date of pub lication of the draft and the place(s) where the draft and comments thereon may be viewed and copied; (7) Any written advice received from the Marine Mammal Commission; (8) The place(s) where records and submitted direct testimony will be kept for public inspection; (9) The final date for filing with the Assistant Administrator a notice of in tent to participate in the hearing pur suant to § 228.5; (10) The final date for submission of direct testimony on the proposed regu lations and waiver, if applicable, and the number of copies required; (11) The docket number assigned to the case which shall be used in all sub sequent proceedings; and (12) The place and date of the pre hearing conference. § 228.5 Notification by interested per sons. Any person desiring to participate as a party shall notify the Assistant Ad ministrator, by certified mail, on or be fore the date specified in the notice. § 228.6 Presiding officer. (a) Upon publication of the notice of hearing pursuant to § 228.4, the Assist ant Administrator shall appoint a pre siding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such pro ceeding. (b) The presiding officer, in any pro ceeding under this subpart, shall have power to: (1) Change the time and place of the hearing and adjourn the hearing; (2) Evaluate direct testimony sub mitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing con ference to determine the issues for the hearing agenda, and cause to be pub lished in the FEDERAL REGISTER a final hearing agenda; (3) Rule upon motions, requests and admissibility of direct testimony; (4) Administer oaths and affirma tions, question witnesses and direct witnesses to testify; (5) Modify or waive any rule (after notice) when determining that no party will be prejudiced; (6) Receive written comments and hear oral arguments; (7) Render a recommended decision; and (8) Do all acts and take all measures, including regulation of media cov erage, for the maintenance of order at and the efficient conduct of the pro ceeding. (c) In case of the absence of the origi nal presiding officer or the original presiding officer’s inability to act, the powers and duties to be performed by the original presiding officer under this subpart in connection with a pro ceeding may, without abatement of the proceeding, be assigned to any other presiding officer unless otherwise or dered by the Assistant Administrator. (d) The presiding officer may upon the presiding officer’s own motion withdraw as presiding officer in a pro ceeding if the presiding officer deems himself or herself to be disqualified. (e) A presiding officer may be re quested to withdraw at any time prior to the recommended decision. Upon the filing by an interested person in good faith of a timely and sufficient affi davit alleging the presiding officer’s personal bias, malice, conflict of inter est or other basis which might result in prejudice to a party, the hearing shall recess. The Assistant Administrator shall immediately determine the mat ter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as the Assistant Administrator may deem appropriate in the cir cumstances. 7 Nat’l Marine Fish. Serv./NOAA, Comm. § 228.11 § 228.7 Direct testimony submitted as written documents. (a) Unless otherwise specified, all di rect testimony, including accom panying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 228.4), the final hearing agenda (§ 228.12), or within 15 days after the conclusion of the prehearing con ference (§ 228.14) as the case may be. All direct testimony shall be in affidavit form and exhibits constituting part of such testimony, referred to in the affi davit and made a part thereof, must be attached to the affidavit. Direct testi mony submitted with exhibits must state the issue to which the exhibit re lates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the FEDERAL REGISTER. (b) The direct testimony submitted shall contain: (1) A concise statement of the wit ness’ interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the wit ness shall state the witness’ relation ship to the party; and (2) Facts that are relevant and mate rial. (c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing. (d) Ten copies of all direct testimony must be submitted unless the notice of the hearing specifies otherwise. (e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number. (f) Contemporaneous with the publi cation of the notice of hearing, the As sistant Administrator’s direct testi mony in support of the proposed regu lations and waiver, where applicable, shall be available for public inspection as specified in the notice of hearing. The Assistant Administrator may sub mit additional direct testimony during the time periods allowed for submis sion of such testimony by witnesses. § 228.8 Mailing address. Unless otherwise specified in the no tice of hearing, all direct testimony shall be addressed to the Presiding Of ficer, c/o Assistant Administrator, Na tional Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. All affidavits and exhibits shall be clearly marked with the docket number of the proceedings. § 228.9 Inspection and copying of doc uments. Any document in a file pertaining to any hearing authorized by this subpart or any document forming part of the record of such a hearing may be in spected and/or copied in the Office of the Assistant Administrator, National Marine Fisheries Service, 1315 East West Highway, Silver Spring, MD 20910–unless the file is in the care and custody of the presiding officer, in which case the presiding officer shall notify the parties as to where and when the record may be inspected. § 228.10 Ex parte communications. (a) After notice of a hearing is pub lished in the FEDERAL REGISTER, all communications, whether oral or writ ten, involving any substantive or pro cedural issue and directed either to the presiding officer or to the Assistant Administrator, Deputy Assistant Ad ministrator, or Chief of the Marine Mammal Division, National Marine Fisheries Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for decision. (b) A record of oral conversations shall be made by the persons who are contacted. All communications shall be available for public viewing at the place(s) specified in the notice of hear ing. (c) The presiding office shall not con sult any person or party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate. § 228.11 Prehearing conference. (a) After an examination of all the di rect testimony submitted pursuant to § 228.7, the presiding officer shall make a preliminary determination of issues 8 50 CFR Ch. II (10–1–23 Edition) § 228.12 of fact which may be addressed at the hearing. (b) The presiding officer’s prelimi nary determination shall be made available at the place or places pro vided in the notice of the hearing (§ 228.4(b)(8)) at least 5 days before the prehearing conference. (c) The purpose of the prehearing conference shall be to enable the pre siding officer to determine, on the basis of the direct testimony submitted and prehearing discussions: (1) Whether the presiding officer’s preliminary determination of issues of fact for the hearing has omitted any significant issues; (2) What facts are not in dispute; (3) Which witnesses may appear at the hearing; and (4) The nature of the interest of each party and which parties’ interests are adverse. (d) Only parties may participate in the hearing conference and a party may appear in person or be represented by counsel. (e) Parties who do not appear at the prehearing conference shall be bound by the conference’s determinations. § 228.12 Final agenda of the hearing. (a) After the prehearing conference, the presiding officer shall prepare a final agenda which shall be published in the FEDERAL REGISTER within 10 days after the conclusion of the con ference. A copy of the final agenda shall be mailed to all parties. (b) The final agenda shall list: (1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the di rect testimony submitted which bears on the issues; and (2) A final date for submission of di rect testimony on issues of fact not in cluded in the notice of hearing if such issues are presented. The final agenda may also specify a final date for sub mission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing. (c) The presiding officer shall publish with the final agenda a list of wit nesses who may appear at the hearing, a list of parties, the nature of the in terest of each party, and which parties’ interests are adverse on the issues pre sented. § 228.13 Determination to cancel the hearing. (a) If the presiding officer concludes that no issues of fact are presented by the direct testimony submitted, the presiding officer shall publish such conclusion and notice in the FEDERAL REGISTER that a hearing shall not be held and shall also publish a date for filing written comments on the pro posed regulations. Written comments may include proposed findings and con clusions, arguments or briefs. (b) A person need not be a party to submit any written comments. (c) Promptly after expiration of the period for receiving written comments, the presiding officer shall make a rec ommended decision based on the record, which in this case shall consist of the direct testimony and written comments submitted. He shall transfer to the Assistant Administrator his rec ommended decision, the record and a certificate stating that the record con tains all the written direct testimony and comments submitted. The Assist ant Administrator shall then make a final decision in accordance with these regulations (§ 228.21). § 228.14 Rebuttal testimony and new issues of fact in final agenda. (a) Direct testimony to rebut testi mony offered during the time period specified in the notice of hearing may be submitted pursuant to these regula tions within fifteen days after the con clusion of the prehearing conference unless the presiding officer otherwise specifies in the final agenda. (b) If the final agenda presents issues not included in the notice of the hear ing published pursuant to § 228.4: (1) Any person interested in partici pating at the hearing on such issues presented shall notify the Assistant Administrator by certified mail of an intent to participate not later than 10 days after publication of the final agenda. Such person may present di rect testimony or cross-examine wit nesses only on such issues presented unless that person previously notified the Assistant Administrator pursuant to § 228.5; and 9 Nat’l Marine Fish. Serv./NOAA, Comm. § 228.17 (2) Additional written direct testi mony concerning such issues may be submitted within the time provided in the final agenda. Such direct testi mony will comply with the require ments of § 228.7. § 228.15 Waiver of right to participate. Persons who fail to notify the Assist ant Administrator pursuant to §§ 228.5 and 228.14 shall be deemed to have waived their right to participate as parties in any part of the hearing. § 228.16 Conduct of the hearing. (a) The hearing shall be held at the time and place fixed in the notice of the hearing, unless the presiding offi cer changes the time or place. If a change occurs, the presiding officer shall publish the change in the FED ERAL REGISTER and shall expeditiously notify all parties by telephone or by mail: Provided, that if that change in time or place of hearing is made less than 5 days before the date previously fixed for the hearing, the presiding offi cer shall also announce, or cause to be announced, the change at the time and place previously fixed for the hearing. (b) The presiding officer shall, at the commencement of the hearing, intro duce into the record: the notice of hearing as published in the FEDERAL REGISTER; all subsequent documents published in the FEDERAL REGISTER; the draft Environmental Impact State ment if it is required and the com ments thereon and agency responses to the comments; and a list of all parties. Direct testimony shall then be received with respect to the matters specified in the final agenda in such order as the presiding officer shall announce. With respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing conference, the presiding officer shall determine the relevancy of such testi mony. (c) The hearing shall be publicly con ducted and reported verbatim by an of ficial reporter. (d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding of ficer during the hearing, he or she shall state briefly the grounds of such objec tion, whereupon an automatic excep tion will follow if the objection is over ruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling by the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Assistant Administrator’s final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings. (e) All motions and requests shall be addressed to, and ruled on by, the pre siding officer, if made prior to his cer tification of the transcript or by the Assistant Administrator if made there after. § 228.17 Direct testimony. (a) Only direct testimony submitted by affidavit as provided in these regu lations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony shall not be read into evidence but shall be come a part of the record subject to ex clusion of irrelevant and immaterial parts thereof; (b) The witness introducing direct testimony shall: (1) State his or her name, address and occupation; (2) State qualifications for intro ducing the direct testimony. If an ex pert, the witness shall briefly state the scientific or technical training which qualifies the witness as an expert; (3) Identify the direct testimony pre viously submitted in accordance with these regulations; and (4) Submit to appropriate cross and direct examination. Cross-examination shall be by a party whose interests are adverse on the issue presented, to the witness’, if the witness is a party, or to the interests of the party who pre sented the witness. (c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct testi mony. (d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States: Provided, that parties shall be given 10 50 CFR Ch. II (10–1–23 Edition) § 228.18 adequate notice, by the presiding offi cer, at the hearing, of matters so no ticed and shall be given adequate op portunity to show that such facts are inaccurate or are erroneously noticed. § 228.18 Cross-examination. (a) The presiding officer may: (1) Require the cross-examiner to outline the intended scope of the cross examination; (2) Prohibit parties from cross-exam ining witnesses unless the presiding of ficer has determined that the cross-ex aminer has an adverse interest on the facts at issue to the party-witness or the party presenting the witness. For the purposes of this subsection, the As sistant Administrator’s or his or her representative’s interest shall be con sidered adverse to all parties; (3) Limit the number of times any party or parties having a common in terest may cross-examine an ‘‘adverse’’ witness on the same matter; and (4) Exclude cross-examination ques tions that are immaterial, irrelevant or unduly repetitious. (b) Any party shall be given an op portunity to appear, either in person or through an authorized counsel or rep resentative, to cross-examine wit nesses. Before cross-examining a wit ness, the party or counsel shall state his or her name, address and occupa tion. If counsel cross-examines the wit ness, counsel shall state for the record the authority to act as counsel. Cross examiners shall be assumed to be fa miliar with the direct testimony. (c) Any party or party’s counsel who fails to appear at the hearing to cross examine an ‘‘adverse’’ witness shall be deemed to have waived the right to cross-examine that witness. (d) Scientific, technical or commer cial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination un less previously submitted and intro duced in accordance with these regula tions. § 228.19 Oral and written arguments. (a) The presiding officer may, in his or her discretion, provide for oral argu ment at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding. (b) The presiding officer shall an nounce at the hearing a reasonable pe riod of time within which any inter ested person may file with the pre siding officer any written comments on the proposed regulations and waiver, including proposed findings and conclu sions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the pre siding officer to reconsider any objec tion made by such party to a ruling of the presiding officer, the party shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state their argu ments thereon as a part of the brief. (c) Oral or written arguments shall be limited to issues arising from direct testimony on the record. § 228.20 Recommended decision, cer tification of the transcript and sub mission of comments on the rec ommended decision. (a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a rec ommended decision based on the record and transmit the decision to the As sistant Administrator. The rec ommended decision shall include: (1) A statement containing a descrip tion of the history of the proceedings; (2) Findings on the issues of fact with the reasons therefor; and (3) Rulings on issues of law. (b) The presiding officer shall also transmit to the Assistant Adminis trator the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a cer tificate stating that, to the best of his knowledge and belief, the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified. (c) Immediately after receipt of the recommended decision, the Assistant Administrator shall give notice thereof in the FEDERAL REGISTER, send copies of the recommended decision to all par ties, and provide opportunity for the 11 Nat’l Marine Fish. Serv./NOAA, Comm. § 229.1 submission of comments. The rec ommended decision may be reviewed and/or copied in the office of the As sistant Administrator, National Ma rine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. (d) Within 20 days after the notice of receipt of the recommended decision has been published in the FEDERAL REGISTER, any interested person may file with the Assistant Administrator any written comments on the rec ommended decision. All comments, in cluding recommendations from or con sultation with the Marine Mammal Commission, must be submitted during the 20-day period to the Assistant Ad ministrator at the previously men tioned address. § 228.21 Assistant Administrator’s deci sion. (a) Upon receipt of the recommended decision and transcript and after the 20-day period for receiving written comments on the recommended deci sion has passed, the Assistant Adminis trator shall make a final decision on the proposed regulations and waiver, where applicable. The Assistant Ad ministrator’s decision may affirm, modify, or set aside, in whole or in part, the recommended findings, con clusions and decision of the presiding officer. The Assistant Administrator may also remand the hearing record to the presiding officer for a fuller devel opment of the record. (b) The Assistant Administrator’s de cision shall include: (1) A statement containing a descrip tion of the history of the proceeding; (2) Findings on the issues of fact with the reasons therefor; and (3) Rulings on issues of law. (4) The Assistant Administrator’s de cision shall be published in the FED ERAL REGISTER. If the waiver is ap proved, the final adopted regulations shall be promulgated with the decision. PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTEC TION ACT OF 1972 Subpart A—General Provisions Sec. 229.1 Purpose and scope. 229.2 Definitions. 229.3 Prohibitions. 229.4 Requirements for Category I and II fisheries. 229.5 Requirements for Category III fish eries. 229.6 Reporting requirements. 229.7 Monitoring of incidental mortalities and serious injuries. 229.8 Publication of List of Fisheries. 229.9 Emergency regulations. 229.10 Penalties. 229.11 Confidential fisheries data. 229.12 Consultation with the Secretary of the Interior. Subpart B—Takes of Endangered and Threatened Marine Mammals 229.20 Issuance of permits. Subpart C—Take Reduction Plan Regulations and Emergency Regulations 229.30 Basis. 229.31 Pacific Offshore Cetacean Take Re duction Plan. 229.32 Atlantic large whale take reduction plan regulations. 229.33 Harbor Porpoise Take Reduction Plan Regulations—New England. 229.34 Harbor Porpoise Take Reduction Plan—Mid-Atlantic. 229.35 Bottlenose Dolphin Take Reduction Plan. 229.36 Atlantic Pelagic Longline Take Re duction Plan (PLTRP). FIGURE 1 TO PART 229—DRIFT GILLNET PINGER CONFIGURATION AND EXTENDER REQUIRE MENTS 229.37 False Killer Whale Take Reduction Plan. AUTHORITY: 16 U.S.C. 1361 et seq.; § 229.32(f) also issued under 16 U.S.C. 1531 et seq. SOURCE: 60 FR 45100, Aug. 30, 1995, unless otherwise noted. Subpart A—General Provisions § 229.1 Purpose and scope. (a) The regulations in this part im plement sections 101(a)(5)(E) and 118 of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C. 1371(a)(5)(E)