Page images


in these rules shall be resolved at the discretion of the Director or Presiding Officer.

Sec. 672.1 Hearing Procedures Scope of these

rules. 672.2 Definitions. 672.3 Powers and duties of the Director;

Presiding Official; Office of Polar Pro

grams. 672.4 Filing, service, and form of pleadings

and documents. 672.5 Filing and service of rulings, orders,

and decisions. 672.6 Appearances. 672.7 Issuance of complaint. 672.8 Answer to the complaint. 672.9 Motions. 672.10 Default order. 672.11 Informal settlement; consent agree

ment and order. 672.12 Prehearing conference. 672.13 Accelerated decision; decision to dis

miss. 672.14 Scheduling the hearing. 672.15 Evidence. 672.16 Objections and offers of proof. 672.17 Burden of presentation; burden of

persuasion. 672.18 Filing the transcript. 672.19 Proposed findings, conclusions, and

order. 672.20 Initial decision. 672.21 Appeal from or review of interlocu

tory orders or rulings. 672.22 Appeal from or review of initial deci

sion. 672.23 Final order on appeal. AUTHORITY: 16 U.S.C. 2401 et seq.

SOURCE: 54 FR 7132, Feb. 16. 1989, unless otherwise noted. Redesignated at 58 FR 34718, June 29, 1993.

8 672.2 Definitions.

(a) Throughout these rules, words in the singular also include the plural, and words in the masculine gender also include the feminine, and vice versa.

(b) Act means the particular statute authorizing the initiation of the proceeding.

(c) Administrative Law Judge means an Administrative Law Judge appointed under 5 U.S.C. 3105 (see also Pub. L. 95251, 92 Stat. 183)

(d) Complainant means any person authorized to issue a complaint on behalf of the Agency to persons alleged to be in violation of the Act. The complainant shall not be the Presiding Officer or any other person who will participate or advise in the decision.

(e) Complaint means a written communication, alleging one or more violations of specific provisions of the Act, Treaties, NSF regulations or a permit promulgated thereunder, issued by the complainant to a person under this subpart.

(f) Consent Agreement means any written document, signed by the parties, containing stipulations or conclusions of fact or law, and a proposed penalty, revocation or suspension of a permit, or other sanction.

(8) Director means the Director of the National Science Foundation (NSF) or his delegatee.

(h) Final Order means (1) an order issued by the Director after an appeal of an initial decision, accelerated decision, a decision to dismi sion, a decision to dismiss, or default order, or (2) an initial decision which becomes a final order.

(i) Foundation, Agency, or NSF means the National Science Foundation.

(j) Hearing means a hearing on the record open to the public and conducted under these rules.

(k) Hearing Clerk is the person with whom all pleadings, motions, and other documents required under this subpart are filed.

(1) Initial Decision means the decision issued by the Presiding Officer based upon the official record of the proceedings.

8672.1 Hearing procedures Scope of

these rules. (a) These hearing rules govern all adjudicatory proceedings for the assessment of civil penalties or imposition of other sanctions pursuant to the Antarctic Conservation Act of 1978, 16 U.S.C. 2407; 2404(1); 2401-2412; and

(b) Other adjudicatory proceedings that the Foundation, in its discretion, determines are appropriate for handling under these rules, including proceedings governed by the Administrative Procedure Act requirements for “hearings on the record." 5 U.S.C. 554 (1982).

(c) Questions arising at any stage of the proceeding which are not addressed

(m) Party means any person that participates in a hearing as complainant, respondent, or intervenor.

(n) Permit means a permit issued under section 5 of the Antarctic Conservation Act of 1978, 16 U.S.C. section 2404.

(0) Person includes any individual, partnership, association, corporation, and any trustee, assignee, receiver or legal successor thereof; any organized group of persons whether incorporated or not; and any officer, employee, agent, department, agency or instrumentality of the Federal Government. of any State or local unit of govern ment, or of any foreign government.

(p) Presiding Officer means the attorney designated by the Director to con duct hearings or other proceedings under this subpart.

(q) Respondent means any person proceeded against in the complaint.

(r) Terms defined in the Act and not defined in these rules of practice are used consistent with the meanings given in the Act.

8672.3 Powers and duties of the Direc

tor; Presiding Official; Office of

Polar Programs. (a) Director. The Director of NSF shall exercise all powers and duties as prescribed or delegated under the Act and these rules.

(b) The Director may delegate all or part of his authority. Partial delegation does not prevent the Presiding Officer from referring any motion or case to the Director.

(c) Presiding Officer. The Director may designate one or more Presiding Officers to perform the functions described below. The Presiding Officers shall be attorneys who are permanent or temporary employees of the Foundation or some other Federal Agency and may perform other duties compatible with their authority as hearing officers. Administrative Law Judges may perform the functions of Presiding Officers. The Presiding Officer shall have performed no prosecutorial or investigatory functions in connection with any matter related to the hearing

(d) The Presiding Officer shall conduct a fair and impartial proceeding, assure that the facts are fully elicited, adjudicate all issues, and avoid delay.

The Presiding Officer shall have authority to:

(1) Conduct administrative hearings under these rules of practice;

(2) Rule upon motions, requests, and offers of proof, dispose of procedural requests, and issue all necessary orders;

(3) Administer oaths and affirmations and take affidavits;

(4) Examine witnesses and receive documentary or other evidence;

(5) For good cause, upon motion or sua sponte, order a party, or an officer or agent thereof, to produce testimony, documents, or other nonprivileged evidence, and failing the production thereof without good cause being shown, draw adverse inferences against that party;

(6) Admit or exclude evidence;

(7) Hear and decide questions of facts, law or discretion;

(8) Require parties to attend conferences for the settlement or simplification of the issues, or the expedition of facts, law or discretion;

(9) Issue subpoenas authorized by the Act; and

(10) Take all actions necessary for the maintenance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by these rules.

(e) Disqualification; Withdrawal. (1) The Presiding Officer may not participate in any matter in which he (i) has a financial interest or (ii) has any relationship with a party or with the subject matter which would make it inappropriate for him to act. Any party may at any time by motion made to the Director, or his delegatee, request that the Presiding Officer be disqualified from the proceeding.

(2) If the Presiding Officer is disqualified or withdraws from the proceeding, the Director shall assign a qualified replacement who has none of the infirmities listed in paragraph (e)(1) of this section. The Director, should he withdraw or disqualify himself, shall assign the Deputy Director to be his replacement.

(1) Office of Polar Programs. The Office of Polar Programs (OPP) manages and operates the national program in Antarctica, including administration of the Antarctic Conservation Act (ACA) permit system. OPP is responsible for

investigating alleged violations of the tions of the Antarctic Conservation "prohibited acts" section of the ACA Act. and alleged noncompliance with ACA permits. OPP will act as the official

(54 FR 7132, Feb. 16, 1989. Redesignated at 58

FR 34718. June 29, 1993, and amended at 59 FR complainant in all proceedings under

37438, July 22, 1994) the ACA governed by these rules. OPP may delegate all or part of its inves- 8672.4 Filing, service, and form of tigatory duties to other appropriate pleadings and documents. NSF employees, other qualified federal

(a) Filing of pleadings and documents. employees, or consultants. DPP will

(1) Except as otherwise provided, the prepare complaints with the assistance

original and one copy of the complaint, of designated prosecuting attorneys

and the original of the answer and of within NSF's Office of the General

all other documents served in the proCounsel, other qualified federal attor

ceeding, shall be filed with the Hearing neys, or other appropriate legal rep

Clerk. resentative selected jointly by OPP and OGC. The designated prosecuting

(2) A certificate of service shall ac

company each document filed or attorney will represent OPP in all pro

served. Except as otherwise provided, a ceedings governed by these rules.

party filing documents with the Hear(g) The Office of Polar Programs, act

ing Clerk, after the filing of the aning on behalf of the Director, may des

swer, shall serve copies thereof upon ignate qualified individuals as enforce

all other parties and the Presiding Offiment officers empowered to execute all

cer. The Presiding Officer shall mainof the law enforcement functions set

et tain a duplicate file during the course forth in section 10 of the ACA, 16 U.S.C.

of the proceeding. 2409, as well as any other appropriate

(3) When the Presiding Officer coractions ancillary to those statutory

responds directly with the parties, he duties. OPP will provide each enforce

shall file the original of the corment officer with official enforcement

respondence with the Hearing Clerk, credentials for identification purposes

maintain a copy in the duplicate file, and use during execution of official du

and send a copy to all parties. Parties

who correspond directly with the PreOPP may also designate knowledgeable

siding Officer shall in addition to servindividuals to provide educational and ing all other parties send a copy of all other information regarding the Ant

such correspondence to the Hearing arctic to tour operators, their clients

Clerk. A certificate of service shall acand employees, and other visitors to company each document served under the Antarctic.

this subsection. (h) The Office of Polar Programs

(b) Service of pleadings and docushall prepare for publication and dis ments-(1) Service of complaint. (i) Servtribution a clear, concise explanation ice of a copy of the signed original of of the prohibited acts set forth in the

the complaint, together with a copy of Antarctic Conservation Act, and other these rules, may be made personally or appropriate educational material. The by certified mail, return receipt reexplanation may be translated into quested, on the respondent or his repSpanish, French, German, or other for- resentative. eign languages. This material shall be

(ii) Service upon a domestic or forprovided to tour operators for distribu

eign corporation or upon a partnership tion to their passengers and crew prior or other unincorporated association to or during travel to the Antarctic. which is subject to suit under a comTour operators shall distribute pro mon name shall be made by personal vided materials to each passenger and service or certified mail, as prescribed crew member.

by paragraph (b)(1)(i) of this section, (1) The Office of the General Counsel, directed to an officer, partner, a manwith the concurrence of the Office of aging or general agent, or to any other Polar Programs, may refer appropriate person authorized by appointment or cases to the Department of Justice for by Federal or State law to receive servpossible prosecution of criminal viola- ice of process.


(iii) Service upon an officer or agency 8672.5 Filing and service of rulings, of the United States shall be made by orders, and decisions. delivering a copy of the complaint to (a) All rulings, orders, decisions, and the officer or agency, or in any manner other documents issued by the Presidprescribed for service by applicable

ing Officer shall be filed with the Hearregulations. If the agency is a corpora

ing Clerk. Copies of all such documents tion, the complaint shall be served as shall be served personally, or by cerprescribed in paragraph (b)(1)(ii) of this

tified mail, return receipt requested, section.

upon all parties. (iv) Service upon a State or local (b) Computation. In computing any unit of government, or a State or local period of time prescribed or allowed in officer, agency, department, corpora these rules, except as otherwise protion or other instrumentality shall be vided, computation is by calendar days made by serving a copy of the com- and does not include the day of the plaint in the manner prescribed by the event from which the designated period law of the State for the service of proc begins to run. When a stated time exess on any such persons, or

pires on a Saturday, Sunday or legal (A) If upon a State or local unit of holiday, the stated time period shall be government, or a State or local depart extended to include the next business ment, agency, corporation or other in- day. strumentality, by delivering a copy of (c) Extensions of time. The Presiding the complaint to the chief executive of Officer may grant an extension of time ficer thereof; or

for the filing of any pleading, docu(B) If upon a State or local officer by ment, or motion (1) upon timely modelivering a copy to such officer.

tion of a party to the proceeding, for (v) Proof of service of the complaint good cause shown, and after considershall be made by affidavit of the person ation of prejudice to other parties, or making personal service, or by prop (2) upon his own motion. Such a moerly executed return receipt. Such tion by a party may only be made after proof of service shall be filed with the notice to all other parties, unless the complaint immediately upon comple- movant can show good cause why servtion of service.

ing notice is impracticable. The mo(2) The first page of every pleading, tion shall be filed in advance of the letter, or other document shall contain date on which the pleading, document a caption identifying the respondent or motion is due to be filed, unless the and the docket number which is exhib- failure of a party to make timely moited on the complaint.

tion for extension of time was the re(3) The original of any pleading, let- sult of excusable neglect. ter, or other document (other than ex- (d) Service by mail. Service of the hibits) shall be signed by the party fil- complaint is complete when the return ing it or by his representative. The sig- receipt is signed. Service of all other nature constitutes a representation by pleadings and documents is complete the signer that he has read the plead- upon mailing. Where a pleading or docing, letter or other document, that to ument is served by mail, five (5) days the best of his knowledge, information shall be added to the time allowed by and belief, the statements made there- these rules for the filing of a responsive in are true, and that it is not inter- pleading or document. posed for delay.

(e) Er parte discussion of proceeding. (4) The initial document filed by any At no time after the issuance of the person shall contain his name, address complaint shall the Presiding Officer, and telephone number. Any changes in or any other person who is likely to adthis information shall be commu- vise these officials in the decision on nicated promptly to the Hearing Clerk, the case, discuss ex parte the merits of Presiding Officer, and all parties to the the proceeding with any interested perproceeding. A party who fails to fur- son outside the Agency, with any Agennish such information and any changes cy staff member who performs a prosthereto shall be deemed to have waived ecutorial or investigative function in his right to notice and service under the proceeding or other factually relatthese rules.

ed proceeding, or with any representa

manner. Agreements, arrangements, and other matters previously resolved during the proceeding are binding on the intervenor.

(d) Disposition. The Presiding Officer may grant leave to intervene only if the movant demonstrates that (1) his presence in the proceeding would not unduly prolong or otherwise prejudice the adjudication of the rights of the original parties; (2) the movant will be adversely affected by a final order; and (3) the interests of the movant are not being adequately represented by the original parties. The intervenor becomes a full party to the proceeding upon the granting of leave to intervene.

(e) Amicus curiae. Persons not parties to the proceeding who wish to file briefs may so move. The motion shall identify the interest of the applicant and shall state the reasons why the proposed amicus brief is desirable. If the motion is granted, the Presiding Officer or Director shall issue an order setting the time for filing such brief. An amicus curiae is eligible to participate in any briefing after his motion is granted, and shall be served with all briefs, motions, and orders relating to issues to be briefed.

(f) Consolidation. The Presiding Officer may, by motion or sua sponte, consolidate any or all matters at issue in two more proceedings docketed under these rules where (1) there exists common parties or common questions of fact or law; (2) consolidation would expedite and simplify consideration of the issues; and (3) consolidation would not adversely affect the rights of parties engaged in otherwise separate proceedings.



tive of such person. Any ex parte memorandum or other communication addressed to the Presiding Officer during the pendency of the proceeding and relating to the merits thereof, by or on behalf of any party, shall be regarded as argument made in the proceeding and shall be served upon all other parties. The Presiding Officer shall give the other parties an opportunity to reply.

(1) Subject to the provisions of law i restricting the public disclosure of con

fidential information, any person may, during Agency business hours, inspect

and copy any document filed in any i proceeding. Such documents shall be made available by the Hearing Clerk.

(8) The person seeking copies of any documents filed in a proceeding shall bear the cost of duplication. Upon a formal request the Agency may waive this cost in appropriate cases. $672.6 Appearances.

(a) Appearances. Any party may appear in person or by counsel or other

representative. A partner may appear I on behalf of a partnership and an offi

cer may appear on behalf of a corporaetion. Persons who appear as counsel or ; other representative must conform to

the standards of conduct and ethics required of practitioners before the courts of the United States.

(b) Intervention. A motion for leave to intervene in any proceeding conducted under these rules must set forth the grounds for the proposed intervention, the position and interest of the movant, and whether the intervention will cause delay. Any person already a party to the proceeding may file an answer to a motion to intervene, making specific reference to the factors set forth in the foregoing sentence and paragraph (c) of this section, within ten (10) days after service of the motion for leave to intervene.

(c) A motion for leave to intervene in a proceeding must ordinarily be filed before the first prehearing conference, or if there is no such conference, prior to the setting of a time and place for a hearing. Any motion filed after that time must include, in addition to the information set forth in paragraph (b) of this section, a statement of good cause for the failure to file in a timely

(8) Severance. The Presiding Officer may, by motion or sua sponte, for good cause shown order any proceedings severed with respect to any or all parties or issues.

8 672.7 Issuance of complaint.

(a) General. If the complainant has reason to believe that a person has violated any provision of the Antarctic Conservation Act, other Act or attendant regulations, or a permit issued under the ACA, he may institute a proceeding for the assessment of a civil penalty or other sanctions by issuing a

« PreviousContinue »