September 28, 2004



PROPOSED CHANGES TO NOAA’S CIVIL PROCEDURE REGULATIONS



NOAA is proposing amendments and technical refinements to its Civil Procedures, found at 15 C.F.R Part 904. The proposed amendments are expected to appear in the Federal Register within the next week.


These regulations, which govern 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, have been virtually unchanged since 1987.


In broad terms, the proposed changes are intended to: (1) conform the civil procedure rules to changes in applicable federal laws and regulations; (2) improve the efficiency and fairness of administrative proceedings; (3) clarify any ambiguities or inconsistencies in the existing civil procedure rules; (4) eliminate redundant language and correct language errors; and (5) conform the civil procedure rules to current agency practice.


While many of the proposed changes are purely technical in nature, some do reflect significant substantive changes in procedure. For example, under the proposed amendments:

 

1.        The regulations pertaining to notice of seizure will be amended to comport with the Civil Asset Forfeiture Reform Act of 2000 (CAFRA).

 

2.         Any attorney or other person will be required to enter a written notice of appearance when representing a person in an Agency enforcement matter or civil administrative hearing.

 

3.          The process by which appeals from ALJ decisions can be made to the Administrator of NOAA will be removed. Under the new regulations, all appeals will be made to Federal District Court.

 

4.         The ALJ will be authorized to enter a default judgment for failure to appear at an administrative hearing.

 

5.         The ALJ will be authorized to impose sanctions for failure to comply with the civil procedure regulations or any order issued thereunder.

 

6.         Respondents will be required to list all defenses, along with a summary of all facts and law supporting those defenses, in their PPIP (Preliminary Position on Issues and Procedures).


The total package of proposed amendments is large and, as it includes changes that impact all stages of administrative proceedings, NOAA invites comments from all interested parties. There will be a 60-day period during which comments may be submitted, in writing, to Meggan Engelke-Ros, Enforcement Attorney, Office of General Counsel for Enforcement and Litigation, 8484 Georgia Avenue, Suite 400, Silver Spring, Maryland 20910.