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complaint under the Act and these rules.
(b) If the complainant has reason to believe that (1) a permittee violated any term or condition of the permit, or (2) a permittee misrepresented or inaccurately described any material fact in the permit application or failed to disclose all relevant facts in the permit application, or (3) other good cause exists for such action, he may institute a proceeding for the revocation or suspension of a permit by issuing a complaint under the Act and these rules. A complaint may seek suspension or revocation of a permit in addition to the assessment of a civil penalty.
(c) Content and amendment of the complaint. All complaints shall include: (1) A statement
ment reciting reciting the
the section(s) of the Act, regulations, and or permit authorizing the issuance of the complaint;
(2) A concise statement of the factual basis for all alleged violations; and
(3) Notice of the respondent's right to request a hearing on any material fact contained in the complaint, or on the appropriateness of the proposed sanction.
(d) Each complaint for the assessment of a civil penalty shall also include:
(1) Specific reference to each provision of the Act and implementing regulations which respondent is alleged to have violated;
(2) The amount of the civil penalty which is proposed to be assessed; and
(3) A statement explaining the reasoning behind the proposed penalty;
(e) Each complaint for the revocation or suspension of a permit shall also include:
(1) Specific reference to each term or condition of the permit which the respondent is alleged to have violated, to each alleged inaccuracy or misrepresentation in respondent's permit application, to each fact which the respondent allegedly failed to disclose in his permit application, or to other reasons which form the basis for the complaint;
(2) A request for an order to either revoke or suspend the permit and a statement of the terms and conditions of any proposed partial suspension or revocation; and
(3) A statement indicating the basis for recommending the revocation, rather than the suspension, of the permit, or vice versa.
A copy of these rules shall accompany each complaint served.
(1) Derivation of proposed civil penalty. The complainant shall determine the dollar amount of the proposed civil penalty in accordance with any crite set forth in the Act and with any civil penalty guidance issued by NSF.
(g) Amendment of the complaint. The complainant may amend the complaint once as a matter of right at any time before the answer is filed. Otherwise the complainant may amend the complaint only upon motion granted by the Presiding Officer. Respondent shall have twenty (20) additional days from the date of service of the amended complaint to file his answer.
(h) Withdrawal of the complaint. The complainant may withdraw the complaint, or any part thereof, without prejudice one time before the answer has been filed. After one withdrawal before the filing of an answer, or after the filing of an answer, the complainant may withdraw the complaint, or any part thereof, without prejudice, only upon motion granted by the Presiding Officer.
(1) Complainant, in cooperation with the Office of General Counsel, may refer cases to the Department of Justice for possible criminal prosecution if there is reason to believe that respondent willfully violated the Antarctic Conservation Act or its attendant regulations. Such referral does not automatically preclude NSF from proceeding administratively under the Act and these rules against the same respondent.
8672.8 Answer to the complaint.
(a) General. Where respondent (1) contests any material fact upon which the complaint is based; (2) contends that the amount of the penalty proposed in the complaint or the proposed revocation or suspension, as the case may be, is inappropriate; or (3) contends that he is entitled to judgment as a matter of law, he shall file a written answer to the complaint with the Hearing Clerk. Any such answer to the complaint must be filed with the Hearing Clerk
within twenty (20) days after service of other appropriate orders concerning the complaint.
the disposition of motions. (b) Contents of the answer. The answer (c) Ruling on Motions. The Presiding shall clearly and directly admit, deny Officer shall rule on all motions, unless or explain each of the factual allega otherwise provided in these rules. The tions contained in the complaint. If re- Presiding Officer may permit oral arspondent asserts he has no knowledge gument if he considers it necessary or of a particular factual allegation, the desirable. allegation is deemed denied. The answer shall also state (1) the cir
8 672.10 Default order. cumstances or arguments which are al
(a) Default. The Presiding Officer leged to constitute the grounds of de
may find a party in default (1) after fense; (2) the facts which respondent in
motion, upon failure to file a timely tends to place at issue; and (3) whether
answer to the complaint; (2) after moa hearing is requested.
tion or sua sponte, upon failure to com(c) Request for hearing. A hearing ply with a prehearing or hearing order upon the issues raised by the complaint of the Presiding Officer; or (3) after and answer shall be held upon request motion or sua sponte, upon failure to of respondent in the answer. The Pre
appear at a conference or hearing withsiding Officer may deem the right to a out good cause being shown. No finding hearing waived if it is not requested by of default on the basis of a failure to respondent. In addition, a hearing may appear at a hearing shall be made be held at the discretion of the Presid against the respondent unless the coming Officer, sua sponte, to examine is plainant presents sufficient evidence to sues raised in the answer.
the Presiding Officer to establish a (d) Failure to admit, deny, or explain. prima facie case against the respondFailure of respondent to admit, deny, ent. Any motion for a default order or explain any material factual allega shall include a proposed default order tion contained in the complaint con- and shall be served upon all parties. stitutes an admission of the allegation. The alleged defaulting party shall have
(e) Amendment of the answer. The re twenty (20) days from service to reply spondent may amend the answer to the to the motion. Default by respondent complaint upon motion granted by the constitutes, for purposes of the pending Presiding Officer.
action only, an admission of all facts
alleged in the complaint and a waiver $672.9 Motions.
of respondent's right to a hearing on ) General. All motions, except those such factual allegations. If the commade orally on the record during a
plaint is for the assessment of a civil hearing, shall (1) be in writing; (2) state penalty, the penalty proposed in the the basis or grounds with particularity; complaint shall become due and pay(3) set forth the relief or order sought; able by respondent without further and (4) be accompanied by any affida proceedings sixty (60) days after a final vit, certificate, or other evidence or
order issued upon default. If the comlegal memorandum relied upon.
plaint is for the revocation or suspen(b) Response to motions. A party must sion of a permit, the conditions of revfile a response to any written motion
ocation or suspension proposed in the within ten (10) days after service of complaint shall become effective withsuch motion, unless the Presiding Offi- out further proceedings on the date cer allows additional time. The re designated by the Presiding Officer in sponse shall be accompanied by any af his final order issued upon default. Defidavit, certificate, other evidence, or fault by the complainant shall result in legal memorandum relied upon. If no the dismissal of the complaint with response is filed within the designated prejudice. period, the Presiding Officer may deem (b) Procedures upon default. When the the parties to have waived any objec- Presiding Officer finds a default has oction to the granting of the motion. The curred, he shall issue a default order Presiding Officer may also set a short against the defaulting party. This er time for response, or make such order shall constitute the initial deci
sion, and shall be filed with the Hearing Clerk.
(c) Contents of a default order. A default order shall include findings of fact showing the grounds for the order, conclusions regarding all material issues of law or discretion, and the penalty which is recommended, or the terms and conditions of permit revocation or suspension, or other sanctions.
(d) The Presiding Officer may set aside a default order for good cause shown.
8 672.11 Informal settlement; consent
agreement and order. (a) Settlement policy. The Agency encourages settlement of a proceeding at any time if the settlement is consistent with the provisions and objectives of the Act and applicable regulations. The respondent may confer with complainant concerning settlement whether or not the respondent requests a hearing. Settlement conferences shall not affect the respondent's obligation to file a timely answer.
(b) Consent agreement. The parties shall forward a written consent agreement and a prcposed consent order to the Presiding Officer whenever settlement or compromise is proposed. The consent agreement shall state that, for the purpose of this proceeding, respondent (1) admits the jurisdictional allegations of the complaint; (2) admits the facts stipulated in the consent agreement or neither admits nor denies specific factual allegations contained in the complaint; and (3) consents to the assessment of a stated civil penalty or to the stated permit revocation or suspension, or to other sanctions or actions in mitigation. The consent agreement shall include any and all terms of the agreement, and shall be signed by all parties or their counsel or representatives.
(c) Consent order. No settlement or consent agreement shall dispose of any proceeding under the rules without a consent order from the Director or his delegatee. Before signing such an order, the Director or his delegatee may require that the parties to the settlement appear before him to answer inquiries relating to the consent agreement or order.
(d) Actions by respondent to clean, protect, enhance, or benefit the environment. NSF may accept from respondent environmentally beneficial actions, in lieu of penalties, in whole or in part, assessed under the Antarctic Conservation Act. An assessment of the monetary value of any action in mitigation shall be made before that action is incorporated as a part of any consent agreement and order. 8672.12 Prehearing conference.
(a) Purpose of prehearing conference. Unless a conference appears unnecessary, the Presiding Officer, at any time before the hearing begins, shall direct the parties and their counsel or other representatives to appear at a conference before him to consider:
(1) The settlement of the case;
(2) The simplification of issues and stipulation of facts not in dispute;
(3) The necessity or desirability of amendments to pleadings;
(4) The exchange of exhibits, documents, prepared testimony, and admissions or stipulations of fact which will avoid unnecessary proof;
(5) The limitation of the number of expert or other witnesses;
(6) Setting a time and place for the hearing; and
(7) Any other matters which may expedite the proceeding.
(b) Exchange of witness lists and documents. Unless otherwise ordered by the Presiding Officer, each party at the prehearing conference shall make available to all other parties (1) the names of the expert and other witnesses he intends to call, together with a brief narrative summary of their expected testimony, and (2) copies of all documents and exhibits which each party intends to introduce into evidence. Documents and exhibits shall be marked for identification as ordered by the Presiding Officer. The Presiding Officer may exclude from evidence any document or testimony not disclosed at the prehearing conference. If the Presiding Officer permits the submittal of new evidence, he will grant parties & reasonable opportunity to respond.
(c) Record of the prehearing conference. No transcript of a prehearing conference relating to settlement shall be made. With respect to other prehearing
conferences, no transcript of any prehearing conferences shall be made un less ordered by the Presiding Officer upon motion of a party or sua sponte. The Presiding Officer shall prepare and file for the record a written summary of the action taken at the conference. The summary shall incorporate any written stipulations or agreements of the parties and all rulings and appropriate orders containing directions to the parties.
(d) Unavailability of a prehearing conference. If a prehearing conference is unnecessary or impracticable, the Presiding Officer, on motion or sua sponte, may conduct a telephonic conference or direct the parties to correspond with him to accomplish any of the objectives set forth in this section
(e) Other discovery. (1) Except as provided by paragraph (b) of this section, further discovery shall be permitted only upon determination by the Presiding Officer that (i) such discovery will not in any way unreasonably delay the proceeding; (ii) the information to be obtained is not otherwise obtainable; and (iii) such information has significant probative value.
(2) The Presiding Officer shall order depositions upon oral questions only upon a showing of good cause and upon & finding that (i) the information sought cannot be obtained by alternative methods; or (ii) there is substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing.
(3) Any party may request further discovery by motion. Such a motion shall set forth (i) the circumstances warranting the taking of the discovery; (ii) the nature of the information expected to be discovered; and (iii) the proposed time and place where it will be taken. If the Presiding Officer determines that the motion should be granted, he shall issue an order granting discovery, with any qualifying conditions and terms.
(4) When the information sought to e obtained is within the control of one of the parties, failure to comply with an order issued pursuant to this paragraph may lead to (i) the inference that the information to be discovered would be adverse to the party from whom the
information was sought; or (ii) the issuance of a default. 8672.13 Accelerated decision; decision 96
to dismiss. (a) General. The Presiding Officer, upon motion of any party or sua sponte, may at any time render an accelerated decision in favor of the complainant or the respondent as to all or any part of the proceeding, without further hearing or upon such limited additional evidence, such as affidavits, as he may require, if no genuine issue of material fact exists and a party is entitled to judgment as a matter of law regarding all or any part of the proceeding. In addition, the Presiding Officer, upon motion of the respondent, may at any time dismiss an action without further hearing or upon such limited additional evidence as he requires, if complainant fails to establish a prima facie case, or if other grounds show complainant has no right to relief.
(b) Effect. (1) If an accelerated decision or a decision to dismiss is issued as to all the issues and claims in the proceeding, the decision constitutes an initial decision of the Presiding Officer, and shall be filed with the Hearing Clerk.
(2) If an accelerated decision or a decision to dismiss is rendered on less than all issues or claims in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted in good faith. He shall then issue an interlocutory order specifying the facts which appear substantially uncontroverted, and the issues and claims upon which the hearing will proceed.
8672.14 Scheduling the hearing.
(a) When an answer is filed, the Hearing Clerk shall forward the complaint, the answer, and any other documents filed thus far in the proceeding to the Presiding Officer, who will notify the parties of his assignment.
(b) Notice of hearing. If the respondent requests a hearing in his answer, or one is ordered by the Presiding Officer, the Presiding Officer shall serve upon the parties a notice setting forth a time
and place for the hearing. The Presid- vits of witnesses who are “unavailing Officer may issue the notice of able,” within the meaning of that term hearing at any appropriate time, but under Rule 804(a) of the Federal Rules not later than twenty (20) days prior to of Evidence. the date set for the hearing.
(e) Exhibits. Where practicable, an (c) Postponement of hearing. The Pre original and one copy of each exhibit siding Officer will not grant a request shall be filed with the Presiding Officer for postponement of a hearing except for the record and a copy shall be furupon motion and for good cause shown. nished to each party. A true copy of
any exhibit may be substituted for the 8 672.15 Evidence.
original. (a) General. The Presiding Officer (f) Official notice. Official notice may shall admit all evidence which is not be taken of any matter judicially noirrelevant, immaterial, unduly repeti ticeable in the Federal courts and of tious, or otherwise unreliable or of lit other facts within the specialized tle probative value. Notwithstanding knowledge and experience of the Agenthe preceding sentence, evidence relat- cy. Opposing parties shall be given adeing to settlement which would be ex quate opportunity to show that such cluded in the federal courts under Rule facts are erroneously noticed. 408 of the Federal Rules of Evidence is inadmissible. In the presentation, ad
8 672.16 Objections and offers of proof. mission, disposition, and use of evi (a) Objection. Any objection concerndence, the Presiding Officer shall pre ing the conduct of the hearing may be serve the confidentiality of trade se made orally or in writing during the crets and other commercial and finan hearing. The party raising the objeccial information. The confidential or tion must supply a short statement of trade secret status of any information its grounds. The ruling by the Presidshall not, however, preclude its intro ing Officer on any objection and the duction into evidence. The Presiding reasons given for it shall be part of the Officer may review such evidence in record. An exception to each objection camera, and issue appropriate protec overruled shall be automatic and is not tive orders.
waived by further participation in the (b) Examination of witnesses. Parties hearing. shall examine witnesses orally, under (b) offer of proof. Whenever evidence oath or affirmation, except as other- is excluded from the record, the party wise provided in these rules or by the offering the evidence may make an Presiding Officer. Parties shall have offer of proof, which shall be included the right to cross-examine a witness in the record. The offer of proof for exwho appears at the hearing.
cluded oral testimony shall consist of a (c) Verified statements. The Presiding brief statement describing the nature Officer may admit into the record as of the evidence excluded. The offer of evidence, in lieu of oral testimony, proof for excluded documents or exhibstatements of fact or opinion prepared its shall consist of the insertion in the by a witness. The admissibility of the record of the documents or exhibits exevidence contained in the statement cluded. shall be subject to the same rules as if the testimony were produced under
8672.17 Burden of presentation; buroral examination. Before any such
den of persuasion. statement is read or admitted into evi- The complainant has the burden of dence, the witness shall deliver a copy going forward with and of proving that of the statement to the Presiding Offi- the violation occurred as set forth in cer, the reporter, and opposing counsel. the complaint and that the proposed The witness presenting the statement civil penalty, revocation, suspension, shall swear to or affirm the statement or other sanction, is appropriate. Foland shall be subject to appropriate oral lowing the establishment of a prima cross-examination.
facie case, respondent has the burden (d) Admission of affidavits where the of presenting and of going forward with witness is unavailable. The Presiding Of- any defense to the allegations set forth ficer may admit into evidence affida- in the complaint. The Presiding Officer