cfr_sections
Data license: Public Domain (U.S. Government data) · Data source: Federal Register API & Regulations.gov API
130 rows where part_number = 904 sorted by section_id
This data as json, CSV (advanced)
Suggested facets: title_name, chapter, subchapter, part_name, subpart, subpart_name, amendment_citations
| section_id ▼ | title_number | title_name | chapter | subchapter | part_number | part_name | subpart | subpart_name | section_number | section_heading | agency | authority | source_citation | amendment_citations | full_text |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 10:10:5.0.2.5.39.1.16.1 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.1 Purpose. | DOE | (a) The Secretary of Energy, acting by and through the Administrator of the Western Area Power Administration (Administrator), is authorized and directed to promulgate charges for the sale of power generated at the Boulder Canyon Project powerplant, and also to promulgate such general regulations as the Secretary finds necessary and appropriate in accordance with the power marketing authorities in the Reclamation Act of 1902 (32 Stat. 388) and all acts amendatory thereof and supplementary thereto, and the Department of Energy Organization Act (42 U.S.C. 7101 et seq. ). (b) In accordance with the Boulder Canyon Project Act of 1928 (43 U.S.C. 617 et seq. ), as amended and supplemented (Project Act); the Boulder Canyon Project Adjustment Act of 1940 (43 U.S.C. 618 et seq. ), as amended and supplemented (Adjustment Act); the Department of Energy Organization Act (42 U.S.C. 7101 et seq. ); and the Hoover Power Plant Act of 1984 (98 Stat. 1333 (43 U.S.C. 619 et seq. )) (Hoover Power Plant Act); the Western Area Power Administration (Western) promulgates these General Regulations for the Charges for the Sale of Power From the Boulder Canyon Project (General Regulations) defining the methodology to be used in the computation of the charges for the sale of power from the Boulder Canyon Project. | |||||
| 10:10:5.0.2.5.39.1.16.10 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.10 Excess energy. | DOE | (a) If excess Energy is determined by the United States to be available, it shall be made available to the Contractors, in accordance with the priority entitlement of section 105(a)(1)(C) of the Hoover Power Plant Act (43 U.S.C. 619(a)(1)(c)). After the annual first- and second-priority entitlement to excess energy has been obligated for delivery, Western will make available one-third of the third-priority excess energy to the Arizona Power Authority, one-third to the Colorado River Commission of Nevada, and one-third to the California Contractors. (b) Western will make available third-priority excess energy to the California Contractors based on the following formula: F = 1/2 (A/B + C/D) (E); Where: A = Contractor's allocated Capacity B = Total California allocated Capacity C = Contractor's allocated Firm Energy D = Total California allocated Firm Energy E = Third-priority Excess Energy available to California F = Contractor's third-priority Excess Energy A = Contractor's allocated Capacity B = Total California allocated Capacity C = Contractor's allocated Firm Energy D = Total California allocated Firm Energy E = Third-priority Excess Energy available to California F = Contractor's third-priority Excess Energy (c) The charge for all Excess Energy shall be the charge for Boulder Canyon Project Firm Energy existing at the time the Excess Energy is made available to the Contractor, including the appropriate Lower Basin Development Fund Contribution Charge. | |||||
| 10:10:5.0.2.5.39.1.16.11 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.11 Lay off of energy. | DOE | (a) If any Contractor determines that it is temporarily unable to utilize Firm Energy or Excess Energy, Western will, at the Contractor's request, attempt to lay off the Firm Energy or Excess Energy the Contractor declares to be available for lay off, pursuant to the provisions for lay off of energy specified in the Contract. (b) If Western is unable to lay off such energy, or if the Contractor fails to request Western to attempt to lay off the energy, the Contractor will be billed for the Firm Energy or Excess Energy that was available to the Contractor but could not be delivered to the Contractor or sold to another customer. (c) In the event that Western must lay off the Firm Energy or Excess Energy at a rate lower than the effective Firm Energy rate, the Contractor will be billed for the difference between the amount that Western would have received at the then existing Firm Energy rate, including the appropriate Lower Basin Development Fund Contribution Charge, and the amount actually received. | |||||
| 10:10:5.0.2.5.39.1.16.12 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.12 Payments to contractors. | DOE | (a) Funds advanced to the Secretary of the Interior for the Uprating Program and costs reasonably incurred by the Contractor in advancing such funds, as approved by Western, shall be returned to the Contractor advancing the funds during the Contract period through credits on that Contractor's power bills. Appropriate credits will be developed and applied pursuant to terms and conditions agreed to by contract or agreement. (b) All other obligations of the United States to return funds to a Contractor shall be repaid to such Contractor through credits on power bills, with or without interest, pursuant to terms and conditions agreed to by contract or agreement. | |||||
| 10:10:5.0.2.5.39.1.16.13 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.13 Disputes. | DOE | (a) All actions by the Secretary of Energy, acting by and through the Administrator of Western, shall be binding unless or until reversed or modified in accordance with provisions contained herein. (b) Any disputes or disagreements as to interpretation or performance of the provisions of these General Regulations under the responsibility of Western shall first be presented to and decided by the Administrator. The Administrator shall be deemed to have denied the Contractor's contention or claim if it is not acted upon within ninety (90) days of its having been presented. (c) The decision of the Administrator shall be final unless, within thirty (30) days from the date of such decision, a written request for arbitration is received by the Administrator. The Administrator shall have ninety (90) days from the date of receipt of a request for arbitration either to concur in or deny in writing the request for such arbitration. Failure by the Administrator to take any action within the ninety (90) day period shall be deemed a denial of the request for arbitration. In the event of a denial of a request for arbitration, the decision of the Administrator shall become final. Upon a decision becoming final, the disputing Contractor's remedy lies with the appropriate Federal court. Any claim that a final decision of the Administrator violates any right accorded the Contractor under the Project Act, the Adjustment Act, or Title I of the Hoover Power Plant Act is barred unless suit asserting such claim is filed in a Federal court of competent jurisdiction within one (1) year after final refusal by the Administrator to correct the action complained of, in accordance with section 105(h) of the Hoover Power Plant Act. (d) When a timely request for arbitration is received by the Administrator and the Administrator concurs in writing, the disputing Contractor and the Administrator shall, within thirty (30) days after receipt of notice of such concurrence, each name one arbitrator to the panel of arbitrators which will decide the … | |||||
| 10:10:5.0.2.5.39.1.16.14 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.14 Future regulations. | DOE | (a) Western may from time to time promulgate such additional or amendatory regulations as deemed necessary for the administration of the Project in accordance with applicable law; Provided, That no right under any Contract shall be impaired or obligation thereunder be extended thereby. (b) Any modification, extension, or waiver of any provision of these General Regulations granted for the benefit of any one or more Contractors shall not be denied to any other Contractor. (c) Western reserves the right to terminate, modify, or extend these regulations, either partially or in their entirety, to the extent permitted by law or existing contract. | |||||
| 10:10:5.0.2.5.39.1.16.2 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.2 Scope. | DOE | These General Regulations are effective June 1, 1987, and shall apply as the basis for computation of all charges applicable to any sale of power from the Boulder Canyon Project after May 31, 1987. “General Regulations for Power Generation, Operation, Maintenance, and Replacement at the Boulder Canyon Project, Arizona/Nevada” are the subject of a separate rulemaking of the Department of the Interior under 43 CFR part 431. The “General Regulations for Generation and Sale of Power in Accordance with the Boulder Canyon Project Adjustment Act” (1941 General Regulations) dated May 20, 1941, and the “General Regulations for Lease of Power” dated April 25, 1930, terminate May 31, 1987. | |||||
| 10:10:5.0.2.5.39.1.16.3 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.3 Definitions. | DOE | The following terms wherever used herein shall have the following meanings: (a) Billing Period shall mean the service period beginning on the first day and extending through the last day of any calendar month. (b) Boulder City Area Projects shall mean the Boulder Canyon Project, the Parker-Davis Project, and the United States entitlement in the Navajo Generating Station (a feature of the Central Arizona Project). (c) Capacity shall mean the aggregate of contingent capacity specified in section 105(a)(1)(A) and the contingent capacity specified in section 105(A)(1)(B) of the Hoover Power Plant Act (43 U.S.C. 619). (d) Central Arizona Project shall mean those works as described in section 1521(a) of the Colorado River Basin Project Act of 1968 (43 U.S.C. 1501 et seq. ), as amended. (e) Colorado River Dam Fund or Fund shall mean that special fund established by section 2 of the Project Act and which is to be used only for the purposes specified in the Project Act, the Adjustment Act, the Colorado River Basin Project Act of 1968, and the Hoover Power Plant Act. (f) Contract shall mean any contract for the sale of Boulder Canyon Project capacity and energy for delivery after May 31, 1987, between Western and any contractor. (g) Contractor shall mean the entities entering into contracts with Western for electric service pursuant to the Hoover Power Plant Act. (h) Excess Capacity shall mean capacity which is in excess of the lesser of: (1) Capacity that Hoover Powerplant is capable of generating with all units in service at a net effective head of 498 feet, or (2) 1,951,000 kW. (i) Excess Energy shall mean energy obligated from the Project pursuant to section 105(a)(1)(C) of the Hoover Power Plant Act (43 U.S.C. 619). (j) Firm Energy shall mean energy obligated from the Project pursuant to section 105(a)(1)(A) and section 105(a)(1)(B) of the Hoover Power Plant Act (43 U.S.C. 619). (k) Overruns shall mean the use of capacity or energy, without the approval of Western, in amounts greate… | |||||
| 10:10:5.0.2.5.39.1.16.4 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.4 Marketing responsibilities. | DOE | (a) Capacity and energy available from the Project will be marketed by Western under terms of the Conformed General Consolidated Power Marketing Criteria or Regulations for Boulder City Area Projects (Conformed Criteria) published in the Federal Register (49 FR 50582) on December 28, 1984. Western shall dispose of capacity and energy from the Project in accordance with section 105(a)(1) of the Hoover Power Plant Act (43 U.S.C. 619(a)(1)), these General Regulations, and the Contracts between the Contractors and Western. (b) Procedures for the scheduling and delivery of capacity and energy shall be provided for in the Contracts between the Contractors and Western. | |||||
| 10:10:5.0.2.5.39.1.16.5 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.5 Revenue requirements. | DOE | (a) Western shall collect all electric service revenues from the Project in accordance with applicable statutes and regulations and deposit such revenues into the Colorado River Dam Fund. All receipts from the Project shall be available for payment of the costs and financial obligations associated with the Project. The Secretary of the Interior is responsible for the administration of the Colorado River Dam Fund. (b) The electric service revenue of the Project shall be collected through a charge, computed to be sufficient, together with other net revenues from the Project, to recover the following costs and financial obligations associated with the Project over the appropriate repayment periods set out in paragraph (c) of this section: (1) Annual costs of operation and maintenance; (2) Annual interest on unpaid investments in accordance with appropriate statutory authorities; (3) Annual repayment of funds, and all reasonable costs incurred in obtaining such funds, advanced by non-Federal Contractors to the Secretary of the Interior for the Uprating Program; (4) The annual payment of $300,000 to each of the States of Arizona and Nevada provided for in section 618(c) of the Adjustment Act and section 1543(c)(2) of the Colorado River Basin Project Act (43 U.S.C. 1501 et seq. ) (Basin Act), as amended or supplemented; (5) Capital costs of investments and Replacements, including amounts readvanced from the United States Treasury (Treasury); (6) Repayment to the Treasury of the advances to the Colorado River Dam Fund for the Project made prior to May 31, 1987, for which payment was deferred because of a deficiency in firm energy generation due to a shortage of available water, as provided for in article 14(a) of the 1941 General Regulations and section 8 of the Boulder City Act of 1958 (72 Stat. 1726), as shown on the books of accounts of Reclamation as of May 31, 1987; (7) Repayment to the Treasury of the first $25,000,000 of advances made to the Colorado River Dam Fund deemed to be allocated to flood control… | |||||
| 10:10:5.0.2.5.39.1.16.6 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.6 Charge for capacity and firm energy. | DOE | The charge for Capacity and Firm Energy from the Project shall be composed of two separate charges; a charge to provide for the basic revenue requirements, as identified in paragraphs (b), (c), and (d) of § 904.5 of these General Regulations (Base Charge), and a charge to provide the surplus revenue for the Lower Colorado River Basin Development Fund contribution, as identified in paragraph (e) of § 904.5 of these General Regulations (Lower Basin Development Fund Contribution Charge). | |||||
| 10:10:5.0.2.5.39.1.16.7 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.7 Base charge. | DOE | (a) The Base Charge shall be developed by the Administrator and promulgated in accordance with appropriate DOE regulations. The Base Charge shall be composed of a capacity component and an energy component. (b) The capacity component of the Base Charge shall be a dollar per kilowattmonth amount determined by (1) multiplying the estimated average annual revenue requirement developed pursuant to paragraphs (b), (c), and (d) of § 904.5 of these General Regulations by 50 percent, and (2) dividing the results of that multiplication by the estimated average annual kW rating of the Project, and (3) dividing the quotient by 12. The total estimated kW rating will be based on the powerplant output capability with all units in service at 498 feet of net effective head or 1,951,000 kW, whichever is less. The capacity component of the Base Charge shall be applied each billing period to each kW of rated output to which each Contractor is entitled by Contract. Adjustments to the application of the capacity component shall be made during outages which cause significant reductions in capacity as provided by the Contract. (c) The energy component of the Base Charge shall be a mills per kWh amount determined by (1) multiplying the estimated average annual revenue requirements developed pursuant to paragraphs (b), (c), and (d) of § 904.5 of these General Regulations by 50 percent and (2) dividing the results of that multiplication by the average annual kWh estimated to be available from the Project. The energy component of the Base Charge shall be applied to each kWh made available to each Contractor, as provided for by Contract, except for the energy purchased by Western, at the request of a Contractor, to meet that Contractor's deficiency in Firm Energy pursuant to section 105(a)(2) of the Hoover Power Plant Act (43 U.S.C. 619(a)(2)) and section F of the Conformed Criteria, and that Contractor's Uprating Program credit carry forward, as provided by Contract. (d) Application of the Base Charge to capacity and energy overruns wil… | |||||
| 10:10:5.0.2.5.39.1.16.8 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.8 Lower basin development fund contribution charge. | DOE | (a) The Lower Basin Development Fund Contribution Charge will be developed by the Administrator of Western on the basis that the equivalent of 4 1/2 mills or 2 1/2 mills per kWh, as appropriate, required to be included in the rates charged to purchasers pursuant to section 1543(c)(2) of the Basin Act, as amended by the Hoover Power Plant Act, shall be collected from the energy sales of the Project. (b) The Lower Basin Development Fund Contribution Charge shall be applied to each kWh made available to each Contractor, as provided for by Contract, except for the energy purchased by Western at the request of a Contractor to meet: (1) That Contractor's deficiency in Firm Energy, pursuant to section 105(a)(2) of the Hoover Power Plant Act (43 U.S.C. 619(a)(2)) and section F of the Conformed Criteria; and (2) That Contractor's Uprating Program credit carry forward as provided by Contract. A 4 1/2 mills per kWh charge shall be applied to each kWh made available to an Arizona Contractor, and a 2 1/2 mills per kWh charge shall be applied to each kWh made available to a California or Nevada Contractor; provided, that after the repayment period of the Central Arizona Project, a 2 1/2 mills per kWh charge shall be applied to each kWh made available to the Arizona, California, and Nevada Contractors. The Lower Basin Development Fund Contribution Charge shall be applied to energy overruns. The Lower Basin Development Fund Contribution Charge shall be applied each billing period for each Contractor. | |||||
| 10:10:5.0.2.5.39.1.16.9 | 10 | Energy | III | 904 | PART 904—GENERAL REGULATIONS FOR THE CHARGES FOR THE SALE OF POWER FROM THE BOULDER CANYON PROJECT | A | Subpart A—Power Marketing | § 904.9 Excess capacity. | DOE | (a) If the Uprating Program results in Excess Capacity, Western shall be entitled to such Excess Capacity to integrate the operation of the Boulder City Area Projects and other Federal Projects on the Colorado River. Specific criteria for the use of Excess Capacity by Western will be provided by Contract. All Excess Capacity not required by Western for the purposes specified by Contract will be available to all Contractors at no additional cost on a pro rata basis based on the ratio of each Contractor's Capacity allocation to the total Capacity allocation. (b) Credits for benefits resulting from project integration shall be determined by Western and such benefits shall be apportioned in accordance with paragraph (9) of § 904.5 of these General Regulations. | |||||
| 15:15:4.1.2.1.4.1.9.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | A | Subpart A—General | § 904.1 Purpose and scope. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38935, June 30, 2022] | (a) This part sets forth the procedures governing NOAA's administrative proceedings for assessment of civil penalties, suspension, revocation, modification, or denial of permits, issuance and use of written warnings, and release or forfeiture of seized property. (b) This subpart defines terms appearing in this part and sets forth rules for the filing and service of documents in administrative proceedings covered by this part. (c) The following statutes authorize NOAA to assess civil penalties, impose permit sanctions, issue written warnings, and/or seize and forfeit property in response to violations of those statutes: (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 … | |||
| 15:15:4.1.2.1.4.1.9.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | A | Subpart A—General | § 904.2 Definitions and acronyms. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38936, June 30, 2022] | Unless the context otherwise requires, or as otherwise noted, terms in this Part have the meanings prescribed in the applicable statute or regulation. In addition, the following definitions apply: Administrator means the Administrator of NOAA or a designee. Agency means the National Oceanic and Atmospheric Administration (NOAA). Applicable statute means a statute cited in § 904.1(c), and any regulations issued by NOAA to implement it. Authorized officer means: (1) Any commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG); (2) Any special agent or fishery enforcement officer of NMFS; (3) Any officer designated by the head of any Federal or state agency that has entered into an agreement with the Secretary of Commerce to enforce the provisions of any statute administered by NOAA; or (4) Any USCG personnel accompanying and/or acting under the direction of any person described in paragraph (1), (2), or (3) of this definition. Citation means a written warning (see section 311(c) of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1861(c), and section 11(c) of the Northern Pacific Halibut Act of 1982, 16 U.S.C. 773i(c)). Civil penalty means a civil administrative monetary penalty assessed under the civil administrative process described in this part. Decision means an initial or final administrative decision of the Judge. Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but does not include inquiries regarding procedures, scheduling, and status. 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. Forfeiture includes, but is not limited to, surrender or relinquishment of any claim t… | |||
| 15:15:4.1.2.1.4.1.9.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | A | Subpart A—General | § 904.3 Filing and service. | NOAA | [87 FR 38936, June 30, 2022] | (a) Service of a NOVA (§ 904.101), NOPS (§ 904.302), NIDP (§ 904.303), Notice of Proposed Forfeiture (§ 904.504), Notice of Seizure (§ 904.501), Notice of Summary Sale (§ 904.505), Written Warning (§ 904.402), or Initial Decision (§ 904.271) may be made by certified mail (return receipt requested), electronic transmission, or third party commercial carrier to an addressee's last known address or by personal delivery. Service of a notice under this subpart will be considered effective upon receipt. (b) Service of documents and papers, other than those described in paragraph (a) of this section, may be made by first class mail (postage prepaid), electronic transmission, or third party commercial carrier, to an addressee's last known address or by personal delivery. Service of documents and papers will be considered effective upon the date of postmark (or as otherwise shown for government-franked mail), delivery to third party commercial carrier, electronic transmission, or upon personal delivery. (c) Whenever this part requires service of a document or other paper referred to in paragraph (a) or (b) of this section, such service may effectively be made on the agent for service of process, on the attorney for the person to be served, or other representative. Refusal by the person to be served (including an agent, attorney, or representative) of service of a document or other paper will be considered effective service of the document or other paper as of the date of such refusal. In cases where a document or paper described in paragraph (a) of this section is returned unclaimed, service will be considered effective if the U.S. Postal Service provides an affidavit stating that the party was receiving mail at the same address during the period when certified service was attempted. (d) Any documents and other papers filed or served must be signed: (1) By the person or persons filing the same; (2) By an officer thereof if a corporation; (3) By an officer or authorized employee if a government instrumentality; or (… | |||
| 15:15:4.1.2.1.4.1.9.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | A | Subpart A—General | § 904.4 Computation of time periods. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38936, June 30, 2022] | For a NOVA, NOPS or NIDP, the 30-day response period begins to run on the date the notice is received. All other time periods begin to run on the day following the service date of the document, paper, or event that begins the time period. Saturdays, Sundays, and Federal holidays will be included in computing such time, except that when such time expires on a Saturday, Sunday, or Federal holiday, in which event such period will be extended to include the next business day. This method of computing time periods also applies to any act, such as paying a civil penalty, required by this part to take place within a specified period of time. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays will be excluded in the computation. | |||
| 15:15:4.1.2.1.4.1.9.5 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | A | Subpart A—General | § 904.5 Appearances. | NOAA | (a) A party may appear in person or by or with counsel or other representative. (b) Whenever an attorney or other representative contacts the Agency on behalf of another person with regard to any matter that has resulted in, or may result in, a written warning, a NOVA, NOPS, NIDP, or a forfeiture proceeding, that attorney or other representative shall file a Notice of Appearance with the Agency. Such notice shall indicate the name of the person on whose behalf the appearance is made. (c) Each attorney or other representative who represents a party in any hearing shall file a written Notice of Appearance with the Judge. Such notice shall indicate the name of the case, the docket number, and the party on whose behalf the appearance is made. | ||||
| 15:15:4.1.2.1.4.2.9.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.100 General. | NOAA | This subpart sets forth the procedures governing NOAA administrative proceedings for the assessment of civil penalties under the statutes cited in § 904.1(c). | ||||
| 15:15:4.1.2.1.4.2.9.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.101 Notice of violation and assessment (NOVA). | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022] | (a) A NOVA will be issued by NOAA and served on the respondent(s). 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 NOAA bases the assessment; (4) The amount of the civil penalty assessed; and (5) Information concerning the respondent's rights upon receipt of the NOVA, and will be accompanied by a copy of the regulations in this part governing the proceedings. (b) In assessing a civil penalty, NOAA will take into account information available to the Agency concerning any factor to be considered under the applicable statute, and any other information that justice or the purposes of the statute require. (c) The NOVA may also contain a proposal for compromise or settlement of the case. NOAA may also attach documents that illuminate the facts believed to show a violation. | |||
| 15:15:4.1.2.1.4.2.9.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.102 Procedures upon receipt of a NOVA. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022] | (a) The respondent has 30 days from receipt of the NOVA in which to respond. During this time the respondent may: (1) Accept the penalty or compromise penalty, if any, by taking the actions specified in the NOVA; (2) Seek to have the NOVA amended, modified, or rescinded under paragraph (b) of this section; (3) Request a hearing under § 904.201(a); (4) Request an extension of time to respond under paragraph (c) of this section; or (5) Take no action, in which case the NOVA becomes a final administrative decision in accordance with § 904.104. (b) The respondent may seek amendment or modification of the NOVA to conform to the facts or law as that person sees them by notifying Agency counsel at the telephone number or address specified in the NOVA. If amendment or modification is sought, Agency counsel will either amend the NOVA or decline to amend it, and so notify the respondent. (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. | |||
| 15:15:4.1.2.1.4.2.9.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.103 [Reserved] | NOAA | |||||
| 15:15:4.1.2.1.4.2.9.5 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.104 Final administrative decision. | NOAA | (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOVA becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOVA or on the last day of any delay period granted. (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part. | ||||
| 15:15:4.1.2.1.4.2.9.6 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.105 Payment of final civil penalty. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022] | (a) Respondent must make full payment of the civil penalty within 30 days of the date upon which the NOVA becomes effective as the final administrative decision and order of NOAA under § 904.104 or the date of the final administrative decision as provided in subpart C of this part, as directed by NOAA. Payment must be made in accordance with the bill and instructions provided by NOAA. (b) Upon any failure to pay the civil penalty assessed, NOAA may request the U.S. Department of Justice to recover the amount assessed in any appropriate district court of the United States, may act under § 904.106, or may commence any other lawful action. | |||
| 15:15:4.1.2.1.4.2.9.7 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.106 Compromise of civil penalty. | NOAA | (a) NOAA, in its sole discretion, may compromise, modify, remit, or mitigate, with or without conditions, any civil penalty assessed, or which is subject to assessment, except as stated in paragraph (d) of this section. (b) The compromise authority of NOAA under this section may be exercised either upon the initiative of NOAA or in response to a request by the respondent or a representative subject to the requirements of § 904.5. Any such request should be sent to Agency counsel at the address specified in the NOVA. (c) Neither the existence of the compromise authority of NOAA under this section nor NOAA's exercise thereof at any time changes the date upon which a NOVA becomes final. (d) NOAA will not compromise, modify, or remit a civil penalty assessed, or subject to assessment, under the Deep Seabed Hard Mineral Resources Act while an action to review or recover the civil penalty is pending in a court of the United States. | ||||
| 15:15:4.1.2.1.4.2.9.8 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.107 Joint and several respondents. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 20222] | (a) A NOVA may assess a civil penalty against two or more respondents jointly and severally. Each joint and several respondent is liable for the entire penalty but, in total, no more than the amount finally assessed may be collected from the 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 § 904.213. (c) A final administrative decision by the Judge or the Administrator after a hearing requested by one joint and several respondent is binding on all parties including all other joint and several respondent(s), whether or not they entered an appearance unless they have otherwise resolved the matter through settlement with the Agency. | |||
| 15:15:4.1.2.1.4.2.9.9 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | B | Subpart B—Civil Penalties | § 904.108 Factors considered in assessing civil penalties. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022] | (a) Factors to be taken into account in assessing a civil penalty, depending upon the statute in question, may include the nature, circumstances, extent, and gravity of the alleged violation; the respondent's degree of culpability, any history of prior violations, and ability to pay; and such other matters as justice may require. (b) NOAA may, in consideration of a respondent's ability to pay, increase or decrease a civil penalty from an amount that would otherwise be warranted by the other relevant factors. A civil penalty may be increased if a respondent's ability to pay is such that a higher civil penalty is necessary to deter future violations, or for commercial violators, to make a civil penalty more than a cost of doing business. A civil penalty may be decreased if the respondent establishes that he or she is unable to pay an otherwise appropriate civil penalty amount. (c) Except as provided in paragraph (g) of this section, if a respondent asserts that a civil penalty should be reduced because of an inability to pay, the respondent has the burden of proving such inability by providing verifiable, complete, and accurate financial information to NOAA. NOAA will not consider a respondent's inability to pay unless the respondent, upon request, submits such financial information as Agency counsel determines is adequate to evaluate the respondent's financial condition. Depending on the circumstances of the case, Agency counsel may require the respondent to complete a financial information request form, answer written interrogatories, or submit independent verification of his or her financial information. If the respondent does not submit the requested financial information, he or she will be presumed to have the ability to pay the civil penalty. (d) Financial information relevant to a respondent's ability to pay includes but is not limited to, the value of respondent's cash and liquid assets; ability to borrow; net worth; liabilities; income tax returns; past, present, and future income; prior and anticipated… | |||
| 15:15:4.1.2.1.4.3.10.18 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.240 Discovery generally. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022] | (a) Initial Disclosures. Prior to hearing, the Judge shall require the parties to submit Initial Disclosures and set a deadline for their submission. Except for information regarding a respondent's ability to pay an assessed civil penalty, these Initial Disclosures will normally obviate the need for further discovery. (1) The Initial Disclosures shall include the following information: A factual summary of the case; a summary of all factual and legal issues in dispute; a list of all defenses that will be asserted, together with a summary of all factual and legal bases supporting each defense; a list of all potential witnesses, together with a summary of their anticipated testimony; and a list of all potential exhibits. (2) The Initial Disclosures must be signed by the parties or their attorneys and must be served on all parties in conformance with § 904.3, along with a copy of each potential exhibit listed therein. (3) A party has the affirmative obligation to supplement their Initial Disclosures as available information or documentation relevant to the stated charges or defenses becomes known to the party. (b) Additional discovery. Upon written motion by a party, the Judge may allow additional discovery only upon a showing of relevance, need, and reasonable scope of the evidence sought, by one or more of the following methods: Deposition upon oral examination or written questions, written interrogatories, production of documents or things for inspection and other purposes, and requests for admission. With respect to information regarding a respondent's ability to pay an assessed civil penalty, the Agency may serve any discovery request ( i.e., deposition, interrogatories, admissions, production of documents) directly upon the respondent in conformance with § 904.3 of this part without first seeking an order from the Judge. (c) Time limits. Motions for depositions, interrogatories, admissions, or production of documents or things may not be filed within 20 days of the hearing except on order of the Ju… | |||
| 15:15:4.1.2.1.4.3.10.19 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.241 Depositions. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022] | (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. (b) Taking the deposition. Depositions may be taken before any officer authorized to administer oaths by the law of the United States or of the place where the examination is to be held, or before a person appointed by the Judge. Each deponent will be sworn, and any party has the right to cross-examine. Objections are not waived by failure to make them during the deposition unless the ground of the objection is one that might have been removed if presented at that time. The deposition will be recorded, transcribed, signed by the deponent, unless waived, and certified by the officer before whom the deposition was taken. All transcription costs associated with the testimony of a deponent will be borne by the party seeking the deposition. Each party will bear its own expense for any copies of the transcript. See also § 904.252(a). (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) Use of depositions at hearing. (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 … | |||
| 15:15:4.1.2.1.4.3.10.20 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.242 Interrogatories. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) Service and use. If ordered by the Judge, any party may serve upon any other party written interrogatories in conformance with § 904.3. (b) Answers and objections. Answers and objections must be made in writing under oath, and reasons for the objections must be stated. Answers must be signed by the person making them and objections must be signed by the party or attorney making them. Unless otherwise ordered, answers and objections must be served on all parties within 20 days after service of the interrogatories in conformance with § 904.3. (c) Option to produce records. Where the answer to an interrogatory may be ascertained from the records of the party upon whom the interrogatory is served, it is sufficient to specify such records and afford the party serving the interrogatories an opportunity to examine them. (d) Use of interrogatories at hearing. Answers may be used at hearing in the same manner as depositions under § 904.241(d). | |||
| 15:15:4.1.2.1.4.3.10.21 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.243 Admissions. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) Request. If ordered by the Judge, any party may serve on any other party a written request for admission of the truth of any relevant matter of fact set forth in the request in conformance with § 904.3, including the genuineness of any relevant document described in the request. Copies of documents must be served with the request. Each matter for which an admission is requested must be separately stated. (b) Response. Each matter is admitted unless a written answer or objection is served within 20 days of service of the request in conformance with § 904.3, or within such other time as the Judge may allow. The answering party must specifically admit or deny each matter, or state the reasons why he or she cannot truthfully admit or deny it. A denial must fairly respond to the substance of the matter; and when good faith requires that a party qualify an answer or deny only a part of a matter, the answer must specify the part admitted and qualify or deny the rest. The answering party may assert lack of knowledge or information as a reason for failing to admit or deny only if the party states that it has made reasonable inquiry and that the information it knows or can readily obtain is insufficient to enable it to admit or deny. (c) Effect of admission. Any matter admitted is conclusively established unless the Judge on motion permits withdrawal or amendment of it for good cause shown. | |||
| 15:15:4.1.2.1.4.3.10.22 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.244 Production of documents and inspection. | NOAA | (a) Scope. If ordered by the Judge, any party may serve on any other party a request to produce a copy of any document or specifically designated category of documents, or to inspect, copy, photograph, or test any such document or tangible thing in the possession, custody, or control of the party upon whom the request is served. (b) Procedure. The request must set forth: (1) The items to be produced or inspected by item or by category, described with reasonable particularity, and (2) A reasonable time, place, and manner for inspection. The party upon whom the request is served must serve within 20 days a response or objections, which must address each item or category and include copies of the requested documents. | ||||
| 15:15:4.1.2.1.4.3.10.23 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.245 Subpoenas. | NOAA | (a) In general. Subpoenas for the attendance and testimony of witnesses and the production of documentary evidence for the purpose of discovery or hearing may be issued as authorized by the statute under which the proceeding is conducted. (b) Timing. Applications for subpoenas must be submitted at least 15 days before the scheduled hearing or deposition. (c) Motions to quash. Any person to whom a subpoena is directed or any party may move to quash or limit the subpoena within 10 days of its service or on or before the time specified for compliance, whichever is shorter. The Judge may quash or modify the subpoena. (d) Enforcement. In case of disobedience to a subpoena, the requesting party may request the U.S. Department of Justice to invoke the aid of any court of the United States in requiring the attendance and testimony of witnesses and the production of documentary evidence. | ||||
| 15:15:4.1.2.1.4.3.11.24 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.250 Notice of time and place of hearing. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (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. (b) A request for a change in the time, place, or date of the hearing may be granted by the Judge. (c) Upon the consent of each party to the administrative proceeding, the Judge may order that one or more issues be heard on submissions or affidavits if it appears that such issues may be resolved by means of written materials and that efficient disposition of those issues can be made without an in-person hearing. (d) At any time after commencement of an administrative proceeding, any party may move to expedite the scheduling of the administrative proceeding as provided in § 904.209. | |||
| 15:15:4.1.2.1.4.3.11.25 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.251 Evidence. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) In general. (1) At the hearing, every party has the right to present oral or documentary evidence in support of its case or defense, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. This paragraph may not be interpreted to diminish the powers and duties of the Judge under § 904.204. (2) All evidence that is relevant, material, reliable, and probative, and not unduly repetitious or cumulative, is admissible at the hearing. Formal rules of evidence do not necessarily apply to the administrative proceedings, and hearsay evidence is not inadmissible as such. (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. (b) Objections and offers of proof. (1) A party shall state the grounds for objection to the admission or exclusion of evidence. Rulings on all objections shall appear in the record. Only objections made before the Judge may be raised on appeal. (2) Whenever evidence is excluded from the record, the party offering such evidence may make an offer of proof, which shall be included in the record. (c) Testimony. (1) Testimony may be received into evidence by the following means: (i) Oral presentation; and (ii) Subject to the discretion of the Judge, written affidavit, telephone, video or other electronic media. (2) Regardless of form, all testimony shall be under oath or affirmation requiring the witness to declare that the witness will testify truthfully, and subject to cross examination. (d) Exhibits and documents. (1) All exhibits shall be numbered and marked with a designation identifying the sponsor. To prove the content of an exhibit, the original writing, recording or photograph is required except that a duplicate or copy is admissible to the same extent as an original unless a genuine question is raised as to the authenticity of the original or, given the circumstances, it … | |||
| 15:15:4.1.2.1.4.3.11.26 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.252 Witnesses. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (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. (b) Witness counsel. Any witness not a party may have personal counsel to advise him or her as to his or her rights, but such counsel may not otherwise participate in the hearing. (c) Witness exclusion. Witnesses who are not parties may be excluded from the hearing room prior to the taking of their testimony. An authorized officer is considered a party for the purposes of this subsection. (d) Oath or affirmation. Witnesses shall testify under oath or affirmation requiring the witness to declare that the witness will testify truthfully. (e) Failure or refusal to testify. If a witness fails or refuses to testify, the failure or refusal to answer any question found by the Judge to be proper may be grounds for striking all or part of the testimony given by the witness, or any other action deemed appropriate by the Judge. (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. | |||
| 15:15:4.1.2.1.4.3.11.27 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.253 Closing of record. | NOAA | At the conclusion of the hearing, the evidentiary record shall be closed unless the Judge directs otherwise. Once the record is closed, no additional evidence shall be accepted except upon a showing that the evidence is material and that there was good cause for failure to produce it in a timely fashion. The Judge shall reflect in the record, however, any approved correction to the transcript. | ||||
| 15:15:4.1.2.1.4.3.11.28 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.254 Interlocutory review. | NOAA | (a) Application for interlocutory review shall be made to the Judge. The application shall not be certified to the Administrator except when the Judge determines that: (1) The ruling involves a dispositive question of law or policy about which there is substantial ground for difference of opinion; or (2) An immediate ruling will materially advance the completion of the proceeding; or (3) The denial of an immediate ruling will cause irreparable harm to a party or the public. (b) Any application for interlocutory review shall: (1) Be filed with the Judge within 30 days after the Judge's ruling; (2) Designate the ruling or part thereof from which appeal is being taken; (3) Set forth the ground on which the appeal lies; and (4) Present the points of fact and law relied upon in support of the position taken. (c) Any party that opposes the application may file a response within 20 days after service of the application. (d) The certification to the Administrator by the Judge shall stay proceedings before the Judge until the matter under interlocutory review is decided. | ||||
| 15:15:4.1.2.1.4.3.11.29 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.255 | NOAA | (a) Except to the extent required for disposition of ex parte matters as authorized by law, the Judge may not consult a person or party on any matter relevant to the merits of the administrative proceeding, unless there has been notice and opportunity for all parties to participate. (b) Except to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the Agency shall make or knowingly cause to be made to the Judge, the Administrator, or any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding an ex parte communication relevant to the merits of the adjudication; and (2) Neither the Administrator, the Judge, nor any Agency employee who is or may reasonably be expected to be involved in the decisional process of the administrative proceeding, shall make or knowingly cause to be made to any interested person outside the agency an ex parte communication relevant to the merits of the administrative proceeding. (c) The Administrator, the Judge, or any Agency employee who is or may reasonably be expected to be involved in the decisional process who receives, makes, or knowingly causes to be made a communication prohibited by this rule shall place in the record of decision: (1) All such written communications; (2) Memoranda stating the substance of all such oral communications; and (3) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (c)(1) and (c)(2) of this section. (d)(1) Paragraphs (a), (b) and (c) of this section do not apply to communications concerning national defense or foreign policy matters. Such ex parte communications to or from an Agency employee on national defense or foreign policy matters, or from employees of the U.S. Government involving intergovernmental negotiations, are allowed if the communicator's position with respect to those matters cannot otherwise be fairly presented for … | ||||
| 15:15:4.1.2.1.4.3.12.30 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.260 Recordation of hearing. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) All hearings shall be recorded. (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. (c) The Judge may determine whether “ordinary copy”, “daily copy”, or other copy (as those terms are defined by contract) will be necessary and required for the proper conduct of the administrative proceeding. | |||
| 15:15:4.1.2.1.4.3.12.31 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.261 Post-hearing briefs. | NOAA | (a) The parties may file post-hearing briefs that include proposed findings of fact and conclusions of law within 30 days from service of the hearing transcript. Reply briefs may be submitted within 15 days after service of the proposed findings and conclusions to which they respond. (b) The Judge, in his or her discretion, may establish a different date for filing either initial briefs or reply briefs with the court. (c) In cases involving few parties, limited issues, and short hearings, the Judge may require or a party may request that any proposed findings and conclusions and reasons in support be presented orally at the close of a hearing. In granting such cases, the Judge will advise the parties in advance of hearing. | ||||
| 15:15:4.1.2.1.4.3.13.32 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.270 Record of decision. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) The exclusive record of decision consists of the official transcript of testimony and administrative proceedings; exhibits admitted into evidence; briefs, pleadings, and other documents filed in the administrative proceeding; and descriptions or copies of matters, facts, or documents officially noticed in the administrative proceeding. Any other exhibits and records of any ex parte communications will accompany the 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. | |||
| 15:15:4.1.2.1.4.3.13.33 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.271 Initial decision. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38939, June 30, 2022] | (a) After expiration of the period provided in § 904.261 for the filing of reply briefs (unless the parties have waived briefs or presented proposed findings orally at the hearing), the Judge will render an Initial Decision upon the record in the case, setting forth: (1) Findings and conclusions, and the reasons or bases therefor, on all material issues of fact, law, or discretion presented on the record; (2) An order as to the final disposition of the case, including any appropriate ruling, order, sanction, relief, or denial thereof; (3) The date upon which the decision will become effective; and (4) A statement of further right to appeal. (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: (1) Otherwise provided by statute or regulations; (2) The Judge grants a petition for reconsideration under § 904.272; or (3) A petition for discretionary review is filed or the Administrator issues an order to review upon his/her own initiative under § 904.273. | |||
| 15:15:4.1.2.1.4.3.13.34 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.272 Petition for reconsideration. | NOAA | [87 FR 38940, June 30, 2022] | 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. | |||
| 15:15:4.1.2.1.4.3.13.35 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.273 Administrative review of decision. | NOAA | [87 FR 38940, June 30, 2022] | (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 § 904.3(b) at the following address: Administrator, National Oceanic and Atmospheric Administration, Department of Commerce, Room 5128, 14th Street and Constitution Avenue NW, Washington, DC 20230. Copies of the Petition for Review, and all other documents and materials required in paragraph (d) of this section, must be served in conformance with § 904.3(b) on all parties and to either administrative.appeals@noaa.gov or the following address: Chief, Oceans and Coasts Section, NOAA Office of General Counsel, 1305 East-West Highway, SSMC 4, Suite 6111, Silver Spring, MD 20910. (b) The Administrator may elect to issue an order to review the Initial Decision without petition and may affirm, reverse, modify or remand, in whole or in part, the Judge's Initial Decision. Any such order must be issued within 60 days after the date the Initial Decision is served. (c) Review by the Administrator of an Initial Decision is discretionary and is not a matter of right. If a party files a timely petition for discretionary review, or review is timely initiated by the Administrator, the effectiveness of the Initial Decision is stayed until further order of the Administrator or until the Initial Decision becomes final pursuant to paragraph (h) of this section. In determining whether or not to grant discretionary review, the Administrator will consider: (1) Whether the Initial Decision contains significant factual or legal errors that warrant further review by the Administrator; and (2) Whether fairness or other policy considerations warrant further consideration by the Administrator. Types of cases that fall within these criteria include, but are not limited to, those in which; (i) The Initial Decision conflicts with one or more other NOAA … | |||
| 15:15:4.1.2.1.4.3.9.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.200 Scope and applicability. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38937, June 30, 2022] | (a) This subpart sets forth the procedures governing the conduct of hearings and the issuance of initial and final administrative decisions of NOAA involving alleged violations of the laws cited in § 904.1(c) and any other laws or authorities administered by NOAA and regulations implementing these laws, including civil penalty assessments and permit sanctions and denials. By separate regulation, these rules may be applied to other proceedings. (b) The Judge is delegated authority to make the initial or final administrative decision of the Agency 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 this subpart. The Judge has no authority to rule on constitutional issues or challenges to the validity of regulations promulgated by the Agency or statutes administered by NOAA. (c) This subpart is not an independent basis for claiming the right to a hearing but, instead, prescribes procedures for the conduct of hearings, the right to which is provided by other authority. | |||
| 15:15:4.1.2.1.4.3.9.10 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.209 Expedited administrative proceedings. | NOAA | [87 FR 38938, June 30, 2022] | 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. | |||
| 15:15:4.1.2.1.4.3.9.11 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.210 Summary decision. | NOAA | The Judge may render a summary decision disposing of all or part of the administrative proceeding if: (a) Jointly requested by every party to the administrative proceeding; and (b) There is no genuine issue as to any material fact and a party is entitled to summary decision as a matter of law. | ||||
| 15:15:4.1.2.1.4.3.9.12 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.211 Failure to appear. | NOAA | (a) If, after proper service of notice, any party appears at the hearing and an opposing party fails to appear, the Judge is authorized to: (1) Dismiss the case with prejudice, where the Agency is a non-appearing party; or (2) Where the respondents have failed to appear, find the facts as alleged in the NOVA, NOPS and/or NIDP and enter a default judgment against the respondents. (b) Following an order of default judgment, a non-appearing party may file a petition for reconsideration, in accordance with § 904.272. Only petitions citing reasons for non-appearance, as opposed to arguing the merits of the case, will be considered. (c) The Judge will place in the record all the facts concerning the issuance and service of the notice of time and place of hearing. (d) The Judge may deem a failure of a party to appear after proper notice a waiver of any right to a hearing and consent to the making of a decision on the record. (e) Failure to appear at a hearing shall not be deemed to be a waiver of the right to be served with a copy of the Judge's decision. | ||||
| 15:15:4.1.2.1.4.3.9.13 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.212 Failure to prosecute or defend. | NOAA | (a) Whenever the record discloses the failure of any party to file documents, respond to orders or notices from the Judge, or otherwise indicates an intention on the part of any party not to participate further in the administrative proceeding, the Judge may issue: (1) An order requiring any party to show why the matter that is the subject of the failure to respond should not be disposed of adversely to that party's interest; (2) An order requiring any party to certify intent to appear at any scheduled hearing; or (3) Any order, except dismissal, as is necessary for the just and expeditious resolution of the case. (b) [Reserved] | ||||
| 15:15:4.1.2.1.4.3.9.14 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.213 Settlements. | NOAA | If settlement is reached before the Judge has certified the record, the Judge shall remove the case from the docket upon notification by the Agency. | ||||
| 15:15:4.1.2.1.4.3.9.15 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.214 Stipulations. | NOAA | [87 FR 38938, June 30, 2022] | 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. | |||
| 15:15:4.1.2.1.4.3.9.16 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.215 Consolidation. | NOAA | The Chief Administrative Law Judge may order that two or more administrative proceedings that involve substantially the same parties or the same issues be consolidated and/or heard together, either upon request of a party or sua sponte. | ||||
| 15:15:4.1.2.1.4.3.9.17 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.216 Prehearing conferences. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022] | (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: (1) Simplification or clarification of the issues or settlement of the case by consent; (2) The possibility of obtaining stipulations, admissions, agreements, and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof; (3) Agreements and rulings to facilitate the discovery process; (4) Limitation of the number of expert witnesses or other avoidance of cumulative evidence; (5) The procedure, course, and conduct of the administrative proceeding; (6) The distribution to the parties and the Judge prior to the hearing of written testimony and exhibits in order to expedite the hearing; or (7) Such other matters as may aid in the disposition of the administrative proceeding, including the status of settlement discussions. (b) The Judge in his or her discretion may issue an order showing the matters disposed of in such conference, and shall provide a transcript of the conference upon the request of a party. | |||
| 15:15:4.1.2.1.4.3.9.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.201 Hearing requests and case docketing. | NOAA | [87 FR 38937, June 30, 2022] | (a) If the respondent wishes a hearing on a NOVA, NOPS or NIDP, the request must be dated and in writing, and must be served in conformance with § 904.3 on the Agency counsel specified in the notice. The respondent must either attach a copy of the NOVA, NOPS or NIDP or refer to the relevant NOAA case number. Agency counsel will promptly forward the request for hearing to the Office of Administrative Law Judges. (b) Any party requesting a hearing under § 904.102(a)(3) must provide current contact information, including a working telephone number and email address (if one is available). The Agency and the Office of Administrative Law Judges must be promptly notified of any changes to this information. (c) If a written application is made to NOAA after the expiration of the time period established in this part for the required filing of hearing requests, Agency counsel will promptly forward the request for hearing along with documentation of service and any other relevant materials to the Office of Administrative Law Judges for a determination on whether such request shall be considered timely filed. Determinations by the Judge regarding 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. | |||
| 15:15:4.1.2.1.4.3.9.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.202 Filing of documents. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022] | (a) Pleadings, papers, and other documents in the proceeding must be filed directly with the Office of Administrative Law Judges, be served on all other parties, and conform with all applicable requirements of § 904.3. (b) Unless otherwise ordered by the Judge, discovery requests and answers will be served on the opposing party and need not be filed with the Judge. | |||
| 15:15:4.1.2.1.4.3.9.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.203 [Reserved] | NOAA | |||||
| 15:15:4.1.2.1.4.3.9.5 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.204 Duties and powers of Judge. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 75 FR 35632, June 23, 2010; 87 FR 38938, June 30, 2022] | The Judge has all powers and responsibilities necessary to preside over the parties and the hearing, to hold prehearing conferences, to conduct the hearing, and to render decisions in accordance with these regulations and 5 U.S.C. 554 through 557, including, but not limited to, the authority and duty to do the following: (a) Rule on timeliness of hearing requests pursuant to § 904.201(c); (b) Rule on a request to participate as a party in the hearing by allowing, denying, or limiting such participation (such ruling will consider views of the parties and be based on whether the requester could be directly and adversely affected by the determination and whether the requester can be expected to contribute materially to the disposition of the proceedings); (c) Schedule the time, 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; (d) Schedule and regulate the course of the hearing and the conduct of the participants and the media, including the power to rule on motions to close the hearing 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 who refuses to answer a question ruled to be proper; (e) Administer oaths and affirmations to witnesses; (f) Rule on contested 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 § 904.251(h); (g) Rule on motions, procedural requests, and similar matters; (h) Receive, exclude, limit, and otherwise rule on offers of proof and evidence; (i) Examine and cross-examine witnesses and introduc… | |||
| 15:15:4.1.2.1.4.3.9.6 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.205 Disqualification of Judge. | NOAA | (a) The Judge may withdraw voluntarily from an administrative proceeding when the Judge deems himself/herself disqualified. (b) A party may in good faith request the Judge to withdraw on the grounds of personal bias or other disqualification. The party seeking the disqualification must file with the Judge a timely affidavit or statement setting forth in detail the facts alleged to constitute the grounds for disqualification, and the Judge will rule on the matter. If the Judge rules against disqualification, the Judge will place all matters relating to such claims of disqualification in the record. | ||||
| 15:15:4.1.2.1.4.3.9.7 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.206 Pleadings, motions, and service. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38938, June 30, 2022] | (a) The original of all pleadings and documents must be filed with the Judge and a copy served on the Office of Administrative Law Judges and each party. All pleadings or documents when submitted for filing must show that service has been made upon all parties. Such service must be made in accordance with § 904.3(b). (b) Pleadings and documents to be filed may be reproduced by printing or any other process, provided the copies are clear and legible; must be dated, signed; and must show the docket description and title of the proceeding, and the title, if any, address, and telephone number of the signatory. If typewritten, the impression may be on only one side of the paper and must be double spaced, if possible, except that quotations may be single spaced and indented. (c) Motions must normally be made in writing and must state clearly and concisely the purpose of and relief sought by the motion, the statutory or principal authority relied upon, and the facts claimed to constitute the grounds requiring the relief requested. (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. (e) A response to an answer will be called a reply. A short reply restricted to new matters raised in the answer may be served within 15 days after service of an answer. The Judge has discretion to dispense with the reply. No further responses are permitted. | |||
| 15:15:4.1.2.1.4.3.9.8 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.207 Amendment of pleading or record. | NOAA | (a) A party may amend its pleading as a matter of course at least 20 days prior to a hearing. Within 20 days prior to a hearing a party may amend its pleading only by leave of the Judge or by written consent of the adverse party; leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period is longer, unless the Judge otherwise orders. (b) The Judge, upon his or her own initiative or upon application by a party, may order a party to make a more definite statement of any pleading. (c) Harmless errors in pleadings or elsewhere in the record may be corrected (by deletion or substitution of words or figures), and broad discretion will be exercised by the Judge in permitting such corrections. | ||||
| 15:15:4.1.2.1.4.3.9.9 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | C | Subpart C—Hearing and Appeal Procedures | § 904.208 Extensions of time. | NOAA | If appropriate and justified, the Judge may grant any request for an extension of time. Requests for extensions of time must, except in extraordinary circumstances, be made in writing. | ||||
| 15:15:4.1.2.1.4.4.14.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.300 Scope and applicability. | NOAA | [87 FR 38941, June 30, 2022] | (a) This subpart sets forth procedures governing the suspension, revocation, modification, and denial of permits. The bases for sanctioning a permit are set forth in § 904.301. (1) Revocation. A permit may be cancelled, with or without prejudice to issuance of the permit in the future. Additional requirements for issuance of any future permit may be imposed. (2) Suspension. A permit may be suspended either for a specified period of time or until stated requirements are met, or both. If contingent on stated requirements being met, the suspension is with prejudice to issuance of any permit until the requirements are met. (3) Modification. A permit may be modified, as by imposing additional conditions and restrictions. If the permit was issued for a foreign fishing vessel under section 204(b) of the 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. | |||
| 15:15:4.1.2.1.4.4.14.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.301 Bases for permit sanctions or denials. | NOAA | [87 FR 38941, June 30, 2022] | (a) Unless otherwise specified in a settlement agreement, or otherwise provided by statutes or in this subpart, NOAA may sanction any permit issued under the statutes cited in § 904.1(c). The bases for an action to sanction or deny a permit include the following: (1) Violation of any statute administered by NOAA, including violation of any regulation promulgated 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. | |||
| 15:15:4.1.2.1.4.4.14.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.302 Notice of permit sanction (NOPS). | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022] | (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. (b) The NOPS will set forth the permit sanction to be imposed, the bases for the permit sanction, and any opportunity for a hearing. It will state the effective date of the permit sanction, which will ordinarily not be earlier than 30 days after the date of receipt of the NOPS (see § 904.322). (c) Upon demand by an authorized enforcement officer, a permit holder must surrender a permit against which a permit sanction has taken effect. The effectiveness of the permit sanction, however, does not depend on surrender of the permit. | |||
| 15:15:4.1.2.1.4.4.14.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.303 Notice of intent to deny permit (NIDP). | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022] | (a) [Reserved] (b) The NIDP will set forth the basis for its issuance and any opportunity for a hearing. (c) NOAA will not refund any fee(s) submitted with a permit application if a NIDP is issued. (d) A NIDP may be issued in conjunction with or independent of a NOPS. | |||
| 15:15:4.1.2.1.4.4.14.5 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.304 Opportunity for hearing. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38941, June 30, 2022] | (a) Except as provided in paragraph (b) of this section, the recipient of a NOPS or NIDP will be provided an opportunity for a hearing, as governed by § 904.201. (b) There will be no opportunity for a hearing to contest a NOPS or NIDP if the permit holder/applicant had a previous opportunity to participate as a party in an administrative or judicial proceeding with respect to the violation that forms the basis for the NOPS or NIDP, whether or not the permit holder/applicant did participate, and whether or not such a proceeding was held. | |||
| 15:15:4.1.2.1.4.4.14.6 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.305 Final administrative decision. | NOAA | (a) If no request for hearing is timely filed as provided in § 904.201(a), the NOPS or NIDP becomes effective as the final administrative decision and order of NOAA 30 days after service of the NOPS or NIDP or on the last day of any delay period granted. (b) If a request for hearing is timely filed in accordance with § 904.201(a), the date of the final administrative decision is as provided in subpart C of this part. | ||||
| 15:15:4.1.2.1.4.4.15.7 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.310 [Reserved] | NOAA | |||||
| 15:15:4.1.2.1.4.4.15.8 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.311 Effect of payment on permit sanction. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | Where a permit has been sanctioned on one of the bases set forth in § 904.301(a)(2) through (4) and the permit holder/applicant pays the criminal fine, civil penalty, or amount in settlement of a civil forfeiture in full or agrees to terms satisfactory to NOAA for payment: (a) The suspension will not take effect; (b) Any permit suspended under § 904.301(a)(2) through (4) will be reinstated by order of NOAA; or (c) Any application by the permit holder may be granted if the permit holder is otherwise qualified to receive the permit. | |||
| 15:15:4.1.2.1.4.4.16.10 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.321 Reinstatement of permit. | NOAA | (a) A permit suspended for a specified period of time will be reinstated automatically at the end of the period. (b) A permit suspended until stated requirements are met will be reinstated only by order of NOAA. | ||||
| 15:15:4.1.2.1.4.4.16.11 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.322 Interim action. | NOAA | (a) To protect marine resources during the pendency of an action under this subpart, in cases of willfulness, or as otherwise required in the interest of public health, welfare, or safety, a Judge may order immediate suspension, modification, or withholding of a permit until a decision is made on the action proposed in a NOPS or NIDP. (b) The Judge will order interim action under paragraph (a) of this section, only after finding that there exists probable cause to believe that the violation charged in the NOPS or NIDP was committed. The Judge's finding of probable cause, which will be summarized in the order, may be made: (1) After review of the factual basis of the alleged violation, following an opportunity for the parties to submit their views (orally or in writing, in the Judge's discretion); or (2) By adoption of an equivalent finding of probable cause or an admission in any administrative or judicial proceeding to which the recipient of the NOPS or NIDP was a party, including, but not limited to, a hearing to arrest or set bond for a vessel in a civil forfeiture action or an arraignment or other hearing in a criminal action. Adoption of a finding or admission under this paragraph may be made only after the Judge reviews pertinent portions of the transcript or other records, documents, or pleadings from the other proceeding. (c) An order for interim action under paragraph (a) of this section is unappealable and will remain in effect until a decision is made on the NOPS or NIDP. Where such interim action has been taken, the Judge will expedite any hearing requested under § 904.304. | ||||
| 15:15:4.1.2.1.4.4.16.9 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | D | Subpart D—Permit Sanctions and Denials | § 904.320 [Reserved] | NOAA | |||||
| 15:15:4.1.2.1.4.5.17.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | E | Subpart E—Written Warnings | § 904.400 Purpose and scope. | NOAA | This subpart sets forth the policy and procedures governing the issuance and use of written warnings by persons authorized to enforce the statutes administered by NOAA, and the review of such warnings. A written warning may be issued in lieu of assessing a civil penalty or initiating criminal prosecution for violation of any of the laws cited in § 904.1(c). | ||||
| 15:15:4.1.2.1.4.5.17.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | E | Subpart E—Written Warnings | § 904.401 Written warning as a prior violation. | NOAA | A written warning may be used as a basis for dealing more severely with a subsequent violation, including, but not limited to, a violation of the same statute or a violation involving an activity that is related to the prior violation. | ||||
| 15:15:4.1.2.1.4.5.17.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | E | Subpart E—Written Warnings | § 904.402 Procedures. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | (a) Any person authorized to enforce the laws listed in § 904.1(c) or Agency counsel may serve a written warning on a respondent. (b) The written warning will: (1) State that it is a “written warning”; (2) State the factual and statutory or regulatory basis for its issuance; (3) Advise the respondent of its effect in the event of a future violation; and (4) Inform the respondent of the right of review and appeal under § 904.403. (c) NOAA will maintain a record of written warnings that are issued. (d) If, within 120 days of the date of the written warning, further investigation indicates that the violation is more serious than realized at the time the written warning was issued, or that the respondent previously committed a similar violation for which a written warning was issued or other enforcement action was taken, NOAA may withdraw the warning and commence other administrative or judicial proceedings. | |||
| 15:15:4.1.2.1.4.5.17.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | E | Subpart E—Written Warnings | § 904.403 Review and appeal of a written warning. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | (a) [Reserved] (b) The recipient of a written warning may appeal to the NOAA Deputy General Counsel. The appeal must be served in conformance with § 904.3 and submitted to administrative.appeals@noaa.gov or the NOAA Office of the General Counsel, Herbert Hoover Office Building, 14th & Constitution Avenue NW, Washington, DC 20230, within 60 days of receipt of the written warning. (1) An appeal from a written warning must be in writing and must present the facts and circumstances that explain or deny the violation described in the written warning. (2) [Reserved] (c) The NOAA Deputy General Counsel may, in his or her discretion, affirm, vacate, or modify the written warning and will notify the respondent of the determination. The NOAA Deputy General Counsel's determination constitutes the final agency action. | |||
| 15:15:4.1.2.1.4.6.17.1 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.500 Purpose and scope. | NOAA | [87 FR 38942, June 30, 2022] | (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 § 904.1(c). (b) Except as provided in this subpart, these regulations apply to all seized property subject to forfeiture under any of the laws cited in § 904.1(c). This subpart is in addition to, and not in contradiction of, any special rules regarding seizure, holding or disposition of property seized under these statutes. | |||
| 15:15:4.1.2.1.4.6.17.10 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.509 Disposal of forfeited property. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38943, June 30, 2022] | (a) Delivery to Administrator. Upon forfeiture of any fish, wildlife, parts or products thereof, or other property to the United States, including the abandonment or waiver of any claim to any such property, it will be delivered to NOAA for storage or disposal according to the provisions of this section. (b) Disposal. Disposal may be accomplished by one of the following means unless the property is the subject of a petition for remission or mitigation of forfeiture or disposed of by court order: (1) Return to the wild; (2) Use by NOAA or transfer to another government agency for official use; (3) Donation or loan; (4) Sale; or (5) Destruction. (c) Purposes of disposal. Disposal procedures may be used to alleviate overcrowding of evidence storage facilities; to avoid the accumulation of seized property where disposal is not otherwise accomplished by court order; to address the needs of governmental agencies and other institutions and organizations for such property for scientific, educational, and public display purposes; and for other valid reasons. In no case will property be used for personal purposes, either by loan recipients or government personnel. (d) Disposal of evidence. Property that is evidence may be disposed of only after authorization by the NOAA Office of General Counsel. Disposal approval usually will not be given until the case involving the evidence is closed, except that perishable property may be authorized for disposal sooner. (e) Loans —(1) To institutions. Property approved for disposal may be loaned to institutions or organizations requesting such property for scientific, educational, or public display purposes. Property will be loaned only after execution of a loan agreement which provides, among other things, that the loaned property will be used only for noncommercial scientific, educational, or public display purposes, and that it will remain the property of the U.S. Government, which may demand its return at any time. Parties requesting the loan of property must de… | |||
| 15:15:4.1.2.1.4.6.17.11 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.510 Return of seized property. | NOAA | (a) Return. In cases where NOAA, in its sole discretion, determines that forfeiture of seized property would not be in the best interest of the U.S. Government, NOAA will make a reasonable attempt to determine the party that the facts of record indicate has a predominant ownership interest in the seized property and, provided such a determination can be made, will arrange for return of the seized property to that party by appropriate means. (b) Notice. NOAA will serve a Notice of the Return of property as provided by § 904.3, to the owner, consignee, or other party the facts of record indicate has an interest in the seized property. The Notice will describe the seized property, state the time, place, and reason for the seizure and return, and will identify the owner or consignee, and if appropriate, the bailee of the seized property. The Notice of the return also will state that the party to whom the property is being returned is responsible for any distribution of the property to any party who holds a valid claim, right, title or interest in receiving the property, in whole or in part. The Notice also will provide that on presentation of the Notice and proper identification, and the signing of a receipt provided by NOAA, the seized property is authorized to be released. | ||||
| 15:15:4.1.2.1.4.6.17.2 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.501 Notice of seizure. | NOAA | [87 FR 38942, June 30, 2022] | Within 60 days from the date of the seizure, NOAA will serve a Notice of Seizure on the owner or consignee, if known or easily ascertainable, or other party that the facts of record indicate has an interest in the seized property. In cases where the property is seized by a state or local law enforcement agency; a Notice of Seizure will be served in the above manner within 90 days from the date of the seizure. The Notice will describe the seized property and state the time, place and reason for the seizure, including the provisions of law alleged to have been violated. The Notice will inform each interested party of his or her right to file a claim to the seized property, and state a date by which a claim must be filed, which may not be less than 35 days after service of the Notice. The Notice may be combined with a Notice of the sale of perishable fish issued under § 904.505. If a claim is filed, the case will be referred promptly to the U.S. Department of Justice for institution of judicial proceedings. | |||
| 15:15:4.1.2.1.4.6.17.3 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.502 Bonded release of seized property. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | (a) As authorized by applicable statute, at any time after seizure of any property, NOAA may, in its sole discretion, release any seized property upon deposit with NOAA of the full value of the property or such lesser amount as NOAA deems sufficient to protect the interests served by the applicable statute. In addition, NOAA may, in its sole discretion, accept a bond or other security in place of fish, wildlife, or other property seized. The bond will contain such conditions as NOAA deems appropriate. (b) Property may be released under this section only if possession thereof will not violate or frustrate the purpose or policy of any applicable law or regulation. Property that will not be released includes, but is not limited to: (1) Property in which NOAA is not satisfied that the requester has a substantial interest; (2) Property whose entry into the commerce of the United States is prohibited; (3) Live animals, except in the interest of the animals' welfare; or (4) Property whose release appears to NOAA not to be in the best interest of the United States or serve the purposes of the applicable statute. (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. (d) A request for release need not be in any particular form, but must set forth the following: (1) A description of the property seized; (2) The date and place of the seizure; (3) The requester's interest in the property, supported as appropriate by bills of sale, contracts, mortgages, or other satisfactory evidence; (4) The facts and circumstances relied upon by the requester to justify the r… | |||
| 15:15:4.1.2.1.4.6.17.4 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.503 Appraisement. | NOAA | [87 FR 38942, June 30, 2022] | 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. | |||
| 15:15:4.1.2.1.4.6.17.5 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.504 Administrative forfeiture proceedings. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | (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) Procedure. (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. (2) The Notice of Proposed Forfeiture will: (i) Describe the seized property, including any applicable registration or serial numbers; (ii) State the time, place and reason for the seizure, including the provisions of law allegedly violated; and (iii) Describe the rights of an interested person to file a claim to the property (including the right to petition to remit or mitigate the forfeiture). (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. (ii) Filing a claim does not entitle the claimant to possession of the property. However, it does stop ad… | |||
| 15:15:4.1.2.1.4.6.17.6 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.505 Summary sale. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38942, June 30, 2022] | (a) In view of the perishable nature of fish, any person authorized to enforce a statute administered by NOAA may, as authorized by law, sell or cause to be sold, and any person may purchase, for not less than its domestic fair market value, fish seized under such statute. (b) Any person purchasing fish subject to this section must deliver the proceeds of the sale to a person authorized to enforce a statute administered by NOAA immediately upon request of such authorized person. Anyone who does not so deliver the proceeds may be subject to penalties under the applicable statute or statutes. (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. (d) The proceeds of the sale, after deducting any reasonable costs of the sale, will be subject to any administrative or judicial proceedings in the same manner as the seized fish would have been, including an action in rem for the forfeiture of the proceeds. Pending disposition of such proceedings, the proceeds will, as appropriate, either be deposited in a NOAA suspense account or submitted to the appropriate court. (e) Seizure and sale of fish is without prejudice to any other remedy or sanction authorized by law. | |||
| 15:15:4.1.2.1.4.6.17.7 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.506 Remission of forfeiture and restoration of proceeds of sale. | NOAA | [71 FR 12448, Mar. 10, 2006, as amended at 87 FR 38943, June 30, 2022] | (a) Application of this section. (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. (2) Although NOAA may properly consider a petition for remission or mitigation of forfeiture and restoration of proceeds of sale along with other consequences of a violation, the remission or mitigation of a forfeiture and restoration of proceeds is not dispositive of any criminal charge filed, civil penalty assessed, or permit sanction proposed, unless NOAA expressly so states. Remission or mitigation of forfeiture and restoration of proceeds is in the nature of executive clemency and is granted in the sole discretion of NOAA only when consistent with the purposes of the particular statute involved and this section. (3) If no petition is timely filed, or if the petition is denied, prior to depositing the proceeds NOAA may use the proceeds of sale to reimburse the U.S. Government for any costs that by law may be paid from such sums. (4) If NOAA remits the forfeiture and the forfeited property has not been sold, then restoration may be conditioned upon payment of any applicable costs as defined in this subpart. (b) Petition for relief from forfeiture. (1) Any person claiming an interest in any property which has been or may be administratively forfeited under the provisions of § 904.504 may, at any time after seizure of the property, but no later than 90 days after the date of forfeiture, petition for a remission or mitigation of the forfeiture and restoration of the proceeds of such sale, or such part thereof as may be claimed by the petitioner by serving the petition in conformance with § 904.3 on administrative.appeals@noaa.gov or the Chief of the Enforcement Section of the NOAA Office of General Counsel, 1315 East-West Highway, SSMC 3, Suite 15828, Silver Spring, MD 20910. (2) The petition need not b… | |||
| 15:15:4.1.2.1.4.6.17.8 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.507 Recovery of certain storage costs. | NOAA | If any fish, wildlife, or evidentiary property is seized and forfeited under the Endangered Species Act, 16 U.S.C. 1531 through 1543, any person whose act or omission was the basis for the seizure may be charged a reasonable fee for expenses to the United States connected with the transfer, board, handling or storage of such property. If any fish or wildlife is seized in connection with a violation of the Lacey Act Amendments of 1981, 16 U.S.C. 3371 through 3378, or any property is seized in connection with a violation of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 through 1882, any person convicted thereof, or assessed a civil penalty therefor, may be assessed a reasonable fee for expenses of the United States connected with the storage, care and maintenance of such property. Within a reasonable time after forfeiture, NOAA will send to such person by registered or certified mail, return receipt requested, a bill for such fee. The bill will contain an itemized statement of the applicable costs, and instructions on the time and manner of payment. Payment must be made in accordance with the bill. If the recipient of the bill objects to the reasonableness of the costs assessed he or she may, within 30 days of receipt, file written objections with NOAA at the address stated in the bill. NOAA will promptly review the written objections and within 30 days mail the final determination to the party who filed them. NOAA's determination will constitute final agency action on the matter. | ||||
| 15:15:4.1.2.1.4.6.17.9 | 15 | Commerce and Foreign Trade | IX | A | 904 | PART 904—CIVIL PROCEDURES | F | Subpart F—Seizure and Forfeiture Procedures | § 904.508 Voluntary forfeiture by abandonment. | NOAA | (a) The owner of seized property may voluntarily forfeit all right, title, and interest in the property by abandoning it to NOAA. Voluntary forfeiture by abandonment under this section may be accomplished by various means, including, but not limited to: expressly waiving any claim to the property by voluntarily relinquishing any right, title, and interest by written agreement or otherwise; or refusing or otherwise avoiding delivery of returned property; or failing to respond within 90 days of service of any certified or registered notice regarding a return of seized property issued under § 904.510(b). (b) Property will be declared finally forfeited by abandonment, without recourse, upon a finding of abandonment by NOAA. | ||||
| 24:24:4.1.3.1.4.2.5.1 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.101 Introduction. | HUD | [39 FR 10966, Mar. 22, 1974. Redesignated at 40 FR 15580, Apr. 7, 1975, and 49 FR 6714, Feb. 23, 1984, and amended at 56 FR 922, Jan. 9, 1991] | (a) Purpose. This subpart sets forth the essential elements of the HUD Homeownership Opportunities Program for Low-Income Families (Turnkey III). (b) Applicability. This subpart is applicable to Turnkey III developments operated by LHA. For Turnkey III developments operated by an Indian Housing Authority, applicable provisions are found at 24 CFR part 905, subpart G. (1) With respect to any development to be operated as Turnkey III, the Annual Contributions Contract (ACC) shall contain the “Special Provisions for Turnkey III Homeownership Opportunity Project” as set forth in Appendix I. A Turnkey III development may include only units which are to be operated as such under Homebuyers Ownership Opportunity Agreements. If for any reason it is determined that certain units should be operated as conventional rental units, such units must comprise or be made part of a conventional rental project. (2) With respect to Turnkey III developments pursuant to an executed ACC where no Agreements with Homebuyers have been signed, the ACC shall be amended (i) to include the “Special Provisions” set forth in Appendix I, (ii) to extend its term to 30 years, and (iii) to reduce its Maximum Contribution Percentage to a rate that will amortize the debt in 30 years at the minimum Loan Interest Rate specified in the ACC for the specific Turnkey III project involved. Further development and operation shall be in accordance with this subpart including use of the form of Homebuyers Ownership Opportunity Agreement set forth in Appendix II. (3) With respect to developments where Agreements with homebuyers have been signed, the following steps shall be taken: (i) The ACC shall be amended to include the Special Provisions” set forth in Appendix I; further development and operation of the Project shall be in accordance with this subpart. (ii) The LHA shall offer all qualified homebuyers in the development a new Homebuyers Ownership Opportunity Agreement as set forth in Appendix II with an amendment to section 16a to refer to “the la… | ||||
| 24:24:4.1.3.1.4.2.5.10 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.110 Earned Home Payments Account (EHPA) | HUD | (a) Credits to the account. The LHA shall establish and maintain a separate EHPA for each homebuyer. Since the homebuyer is responsible for maintaining the home, a portion of his required monthly payment equal to the LHA's estimate, approved by HUD, of the monthly cost for such routine maintenance, taking into consideration the relative type and size of the homebuyer's home, shall be set aside in his EHPA. In addition, this account shall be credited with (1) Any voluntary payments made pursuant to paragraph (f) of this section, and (2) Any amount earned through the performance of maintenance as provided in paragraph (d) of this section and § 904.111(c). (b) Charges to the account. (1) If for any reason the homebuyer is unable or fails to perform any item of required maintenance as described in § 904.107(a), the LHA shall arrange to have the work done in accordance with the procedures established by the LHA and the HBA and the cost thereof shall be charged to the homebuyer's EHPA. Inspections of the home shall be made jointly by the LHA and the HBA. (2) To the extent NRMR expense is attributable to the negligence of the homebuyer as determined by the HBA and approved by the LHA (see § 904.111), the cost thereof shall be charged to the EHPA. (c) Exercise of option; required amount in EHPA. The homebuyer may exercise his option to buy the home, by paying the applicable purchase price pursuant to § 904.113 or § 904.115, only after satisfying the following conditions precedent: (1) Within the first two years of his occupancy, he has achieved a balance in his EHPA equal to 20 times the amount of the monthly EHPA credit as initially determined in accordance with paragraph (a) of this section; (2) He has met, and is continuing to meet, the requirements of the Homebuyers Ownership Opportunity Agreement; (3) He has rendered, and is continuing to render, satisfactory performance of his responsibilities to the HBA. When the homebuyer has met these conditions precedent, the LHA shall give the homebuyer a certif… | |||||
| 24:24:4.1.3.1.4.2.5.11 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.111 Nonroutine Maintenance Reserve (NRMR). | HUD | (a) Purpose of reserve. The LHA shall establish and maintain a separate NRMR for each home, using a portion of the homebuyer's monthly payment. The purpose of the NRMR is to provide funds for the nonroutine maintenance of the home, which consists of the infrequent and costly items of maintenance and replacement shown on the Nonroutine Maintenance Schedule for the home (see paragraph (b) of this section). Such maintenance may include the replacement of dwelling equipment (such as range and refrigerator), replacement of roof, exterior painting, major repairs to heating and plumbing systems, etc. The NRMR shall not be used for nonroutine maintenance of common property, or for nonroutine maintenance relating to the home to the extent such maintenance is attributable to the Homebuyer's negligence or to defective materials or workmanship. (b) Amount of reserve. The amount of the monthly payments to be set aside for NRMR shall be determined by the LHA, with the approval of HUD, on the basis of the Nonroutine Maintenance Schedule showing the amount likely to be needed for nonroutine maintenance of the home during the term of the Homebuyers Ownership Opportunity Agreement, taking into consideration the type of construction and dwelling equipment. This Schedule shall (1) list each item of nonroutine maintenance (e.g., range, refrigerator, plumbing, heating system, roofing, tile flooring, exterior painting, etc.), (2) show for each listed item the estimated frequency of maintenance or useful life before replacement, the estimated cost of maintenance or replacement (including installation) for each occasion, and the annual reserve requirement, and (3) show the total reserve requirements for all the listed items, on an annual and a monthly basis. This Schedule shall be prepared by the LHA and approved by HUD as part of the submission required to determine the financial feasibility of the Project. The Schedule shall be revised after approval of the working drawings and specifications, and shall thereafter be reexamined an… | |||||
| 24:24:4.1.3.1.4.2.5.12 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.112 Operating reserve. | HUD | (a) Purpose of reserve. To the extent that total operating receipts (including subsidies for operations) exceed total operating expenditures of the Project, the LHA shall establish an operating reserve up to the maximum approved by HUD in connection with its approval of the annual operating budgets for the Project. The purpose of this reserve is to provide funds for (1) The infrequent but costly items of nonroutine maintenance and replacements of common property, taking into consideration the types of items which constitute common property, such as nondwelling structures and equipment, and in certain cases, common elements of dwelling structures, (2) Nonroutine maintenance for the homes to the extent such maintenance is attributable to defective materials or workmanship not covered by warranty, (3) Working capital for payment of a deficit in a homebuyer's NRMR, until such deficit is offset by future monthly payments by the homebuyer or at settlement in the event the homebuyer should purchase, and (4) A deficit in the operation of the Project for a fiscal year, including a deficit resulting from monthly payments totaling less than the break-even amount for the Project. (b) Nonroutine maintenance—common property (Contribution to operating reserve). The amount under this heading to be included in operating expense (and in the break-even amount) established for the fiscal year (see § 904.108 and § 904.109) shall be determined by the LHA, with the approval of HUD, on the basis of estimates of the monthly amount needed to accumulate an adequate reserve for the items described in paragraph (a)(1) of this section. This amount shall be subject to revision in the light of experience. This contribution to the operating reserve shall be made only during the period the LHA is responsible for the maintenance of any common property; and during such period, the amount shall be determined on the basis of the requirements of all common property in the development in a manner similar to that explained in § 904.109(c). When… | |||||
| 24:24:4.1.3.1.4.2.5.13 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.113 Achievement of ownership by initial homebuyer. | HUD | (a) Determination of initial purchase price. The LHA shall determine the initial purchase price of the home by two basic steps, as follows: Step 1: The LHA shall take the Estimated Total Development Cost (including the full amount for contingencies as authorized by HUD) of the development as shown in the Development Cost Budget in effect upon award of the Main Construction Contract or execution of the Contract of Sale, and shall deduct therefrom the amounts, if any, attributed to (1) relocation costs, (2) counseling and training costs, and (3) the cost of any community, administration or management facilities including the land, equipment, and furnishings attributable to such facilities as set forth in the development program for the development. The resulting amount is herein called Estimated Total Development Cost for Homebuyers. Step 2: The LHA shall apportion the Estimated Total Development Cost for Homebuyers among all the homes in the development. This apportionment shall be made by obtaining an FHA appraisal of each home and adjusting such appraised values (upward or downward) by the percentage difference between the total of the appraisal for all the Homes and the Estimated Total Development Cost for Homebuyers. The adjusted amount for each home shall be the initial purchase price for that home. Step 1: The LHA shall take the Estimated Total Development Cost (including the full amount for contingencies as authorized by HUD) of the development as shown in the Development Cost Budget in effect upon award of the Main Construction Contract or execution of the Contract of Sale, and shall deduct therefrom the amounts, if any, attributed to (1) relocation costs, (2) counseling and training costs, and (3) the cost of any community, administration or management facilities including the land, equipment, and furnishings attributable to such facilities as set forth in the development program for the development. The resulting amount is herein called Estimated Total Development Cost for Homebuyers. Step 2:… | |||||
| 24:24:4.1.3.1.4.2.5.14 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.114 Payment upon resale at profit. | HUD | (a) Promissory note. (1) When a homebuyer achieves ownership (regardless of whether ownership is achieved under § 904.113 or § 904.115), he shall sign a note obligating him to make a payment to the LHA, subject to the provisions of paragraph (a)(2) or this section, in the event he resells his home at a profit within 5 years of actual residence in the home after he becomes a homeowner. If, however, the homeowner should purchase and occupy another home within one year (18 months in case of a newly constructed home) of the resale of the Turnkey III home, the LHA shall refund to the homeowner the amount previously paid by him under the note, less the amount, if any, by which the resale price of the Turnkey III home exceeds the acquisition price of the new home, provided that application for such refund shall be made no later than 30 days after the date of acquisition of the new home. (2) The note to be signed by the homebuyer pursuant to paragraph (a)(1) of this section shall be a non interest-bearing promissory note (see Appendix IV) to the LHA. The note shall be executed at the time the homebuyer becomes a homeowner and shall be secured by a second mortgage. The initial amount of the note shall be computed by taking the appraised value of the home at the time the homebuyer becomes a homeowner and subtracting (i) the homebuyer's purchase price plus the Incidental Costs and (ii) the increase in value of the home, determined by appraisal, caused by improvements paid for by the homebuyer with funds from sources other than the EHPA or NRMR. The note shall provide that this initial amount shall be automatically reduced by 20 percent thereof at the end of each year of residency as a homeowner, with the note terminating at the end of the five-year period of residency, as determined by the LHA. To protect the homeowner, the note shall provide that the amount payable under it shall in no event be more than the net profit on the resale, that is, the amount by which the resale price exceeds the sum of (A) the homebuyer's pu… | |||||
| 24:24:4.1.3.1.4.2.5.15 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.115 Achievement of ownership by subsequent homebuyers. | HUD | (a) Definition. In the event the initial homebuyer and his family vacate the home before having acquired ownership, a subsequent occupant who enters into a Homebuyer's Ownership Opportunity Agreement and who is not a successor pursuant to § 904.107(l)(2) is herein called a “subsequent homebuyer.” (b) Determination of initial purchase price. The initial purchase price for a subsequent homebuyer shall be an amount equal to (1) the purchase price shown in the initial homebuyer's Purchase Price Schedule as of the date of this Agreement with the subsequent homebuyer plus (2) the amount, if any, by which the appraised fair market value of the home, determined or approved by HUD as of the same date, exceeds the purchase price specified in paragraph (b)(1) of this section. (c) Purchase price schedule. The subsequent homebuyer's Purchase Price Schedule shall be the same as the unexpired portion of the initial homebuyer's Purchase Price Schedule except that where his purchase price includes an additional amount as specified in paragraph (b)(2) of this section, the initial homebuyer's Purchase Price Schedule shall be followed by an Additional Purchase Price Schedule for such additional amount based upon the same monthly debt service and the same interest rate as applied to the initial homebuyer's Purchase Price Schedule. (d) Residual receipts. After payment in full of the LHA's debt, if there are any subsequent homebuyers who have not acquired ownership of their homes, the LHA shall continue to pay to HUD all residual receipts from the operation of the Project, including payments received on account of any Additional Purchase Price Schedules applicable to the homes, provided the aggregate amount of such payments of residual receipts does not exceed the aggregate amount of annual contributions paid by HUD with respect to the Project. | |||||
| 24:24:4.1.3.1.4.2.5.16 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.116 Transfer of title to homebuyer. | HUD | When the homebuyer is to obtain ownership as described in § 904.113 or § 904.115, a closing date shall be mutually agreed upon by the parties. On the closing date the homebuyer shall pay the required amount of money to the LHA, sign the promissory note pursuant to § 904.114, and receive a deed for the home. | |||||
| 24:24:4.1.3.1.4.2.5.17 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.117 Responsibilities of homebuyer after acquisition of ownership. | HUD | After acquisition of ownership, each homeowner shall be required to pay to the LHA or to the homeowners association, as appropriate, a monthly fee for (a) the maintenance and operation of community facilities including utility facilities, if any, (b) the maintenance of grounds and other common areas and, (c) such other purposes as determined by the LHA or the homeowners association, as appropriate, including taxes and a provision for a reserve. This requirement shall be set out in the planned unit development or condominium documents which shall be recorded prior to the date of full availability, or in an LHA-homeowner contract in this regard. | |||||
| 24:24:4.1.3.1.4.2.5.18 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.118 Homeowners association—planned unit development (PUD). | HUD | If the development is organized as a planned unit development: (a) Ownership and maintenance of common property. The common areas, sidewalks, parking lots, and other common property in the development shall be owned and maintained as provided for in the approved planned unit development (PUD) program except that the LHA shall be responsible for maintenance until such time as the homeowners association assumes such responsibility (see § 904.112(d)). (b) Title restrictions. The title ultimately conveyed to each homebuyer shall be subject to restrictions and encumbrances to protect the rights and property of all other owners. The homeowners association shall have the right and obligation to enforce such restrictions and encumbrances and to assess owners for the costs incurred in connection with common areas and property and other responsibilities. (c) Votes in association. There shall be as many votes in the association as there are homes in the development, and, at the outset, all the voting rights shall be held by the LHA. As each home is conveyed to the homebuyer, one vote shall automatically go to the homeowner so that, when all the homes have been conveyed, the LHA shall no longer have any interest in the homeowners association. (d) Voting control. The LHA shall not lose its majority voting interest in the association as soon as a majority of the homes have been conveyed, unless the law of the state requires control to be transferred at a particular time, or the LHA so desires. If permitted by state law, provision shall be made for each home owned by the LHA to carry three votes, while each home owned by a homeowner shall carry one vote. Under this weighted voting plan, the LHA shall continue to have voting control until 75 percent of the homes have been acquired by homeowners. However, at its discretion, the LHA may transfer voting control to the homeowners when at least 50 percent of the homes have been acquired by the homeowners. | |||||
| 24:24:4.1.3.1.4.2.5.19 | 24 | Housing and Urban Development | IX | 904 | PART 904—LOW RENT HOUSING HOMEOWNERSHIP OPPORTUNITIES | B | Subpart B—Turnkey III Program Description | § 904.119 Homeowners association—condominium. | HUD | If the development is organized as a condominium: (a) The LHA at the outset shall own each condominium unit and its undivided interest in the common areas; (b) All the land, including that land under the housing units, shall be a part of the common areas; (c) The homeowners association shall own no property but shall maintain and operate the common areas for the individual owners of the condominium units except that the LHA shall be responsible for maintenance until such time as the homeowners association assumes such responsibility (see § 904.112(d)); (d) The percentage of undivided interest attached to each condominium unit shall be based on the ratio of the value of the units to the value of all units and shall be fixed when the development is completed. This percentage shall determine the homeowner's liability for the maintenance of the common areas and facilities; (e) Each homeowner's vote in the homeowners association shall be identical with the percentage of undivided interest attached to his unit; and (f) The LHA shall not lose its majority voting interest in the association as soon as units representing 50 percent of the value of all units have been conveyed, unless the law of the state requires control to be transferred at a particular time or the LHA so desires. For voting purposes, until units representing 75 percent of the value of all units have been acquired by homeowners, the total undivided interest attributable to the homes owned by the LHA shall be multiplied by three, if such weighted voting plan is permitted by state law. Under this plan, the LHA shall continue to maintain voting control until 75 percent of the homes have been acquired by homeowners. However, at its discretion, the LHA may transfer voting control to the homeowners when units representing at least 50 percent of the value of all units have been acquired by the homeowners. |
Advanced export
JSON shape: default, array, newline-delimited, object
CREATE TABLE cfr_sections (
section_id TEXT PRIMARY KEY,
title_number INTEGER,
title_name TEXT,
chapter TEXT,
subchapter TEXT,
part_number TEXT,
part_name TEXT,
subpart TEXT,
subpart_name TEXT,
section_number TEXT,
section_heading TEXT,
agency TEXT,
authority TEXT,
source_citation TEXT,
amendment_citations TEXT,
full_text TEXT
);
CREATE INDEX idx_cfr_title ON cfr_sections(title_number);
CREATE INDEX idx_cfr_part ON cfr_sections(part_number);
CREATE INDEX idx_cfr_agency ON cfr_sections(agency);