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Presiding Officer, who will notify the The witness presenting the statement parties of his assignment.
shall swear to or affirm the statement (b) Notice of hearing. If the respondent and shall be subject to appropriate oral requests a hearing in his answer, or one cross-examination. is ordered by the Presiding Officer, the (d) Admission of affidavits where the Presiding Officer shall serve upon the witness is unavailable. The Presiding Ofparties a notice setting forth a time ficer may admit into evidence affidaand place for the hearing. The Pre- vits of witnesses who are "unavailsiding 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 8672.15 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
$ 672.16 Objections and offers of proof. mission, disposition, and use of evi- (a) Objection. Any objection condence, the Presiding Officer shall pre- cerning the conduct of the hearing may serve the confidentiality of trade se- be 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 Preshall not, however, preclude its intro- siding 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
8 672.17 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
civil penalty, revocation, suspension, the reasons for the findings and concluor other sanction, is appropriate. Fol- sions, a recommended civil penalty aslowing the establishment of a prima sessment or other sanction, if approfacie case, respondent has the burden priate, and a proposed final order. Upon of presenting and of going forward with receipt of an initial decision, the Hearany defense to the allegations set forth ing Clerk shall forward a copy to all in the complaint. The Presiding Officer parties, and shall send the original, shall decide all controverted matters along with the record of the proupon a preponderance of the evidence. ceeding, to the Director.
(b) Amount of civil penalty. If the Pre$ 672.18 Filing the transcript.
siding Officer determines that a violaThe hearing shall be transcribed ver tion has occurred, he shall set the dolbatim. After the Presiding Officer lar amount of the recommended civil closes the record, the reporter shall penalty in the initial decision in acpromptly transmit the original and cordance with any criteria set forth in certified copies to the Hearing Clerk, the Act, and must consider any civil and one certified copy directly to the penalty guidelines issued by NSF. If Presiding Officer. A certificate of serv- the Presiding Officer decides to assess ice shall accompany each copy of the a penalty different in amount from the transcript. The Hearing Clerk shall no- penalty recommended in the comtify all parties of the availability of plaint, he shall set forth in the initial the transcript and shall furnish the decision the specific reasons for the inparties with a copy of the transcript crease or decrease. The Presiding Offiupon payment of the cost of reproduc cer shall not raise a penalty from that tion, unless a party can show that the recommended in the complaint if the cost is unduly burdensome. Any person respondent has defaulted. not a party to the proceeding may ob (c) Effect of initial decision. The initial tain a copy of the transcript upon pay decision of the Presiding Officer shall ment of the reproduction fee, except become the final order of the Agency for those parts of the transcript or within forty-five (45) days after its dered to be kept confidential by the service upon the parties and without Presiding Officer.
further proceedings unless (1) an appeal
to the Director is filed by a party to § 672.19 Proposed findings, conclu. the proceedings; or (2) the Director sions, and order.
elects, sua sponte, to review the initial Unless otherwise ordered by the Pre- decision. siding Officer, any party may submit (d) Motion to reopen a hearing. A moproposed findings of fact, conclusions tion to reopen a hearing to take furof law, and a proposed order, together ther evidence must be made no later with supporting briefs, within twenty than twenty (20) days after service of (20) days after the parties are notified the initial decision on the parties and of the availability of the transcript. shall (1) state the specific grounds upon The Presiding Officer shall set a time which relief is sought; (2) state briefly by which reply briefs must be sub the nature and purpose of the evidence mitted. All submissions shall be in to be adduced; (3) show that such eviwriting, shall be served upon all par dence is not cumulative; and (4) show ties, and shall contain adequate ref- good cause why such evidence was not erences to the record and relied-upon adduced at the hearing. The motion authorities.
shall be made to the Presiding Officer
and filed with the Hearing Clerk. Par$ 672.20 Initial decision.
ties shall have ten (10) days following (a) Filing and contents. The Presiding service to respond. The Presiding OffiOfficer shall issue and file with the cer shall grant or deny such motion as Hearing Clerk an initial decision as soon as practicable. The conduct of any soon as practicable after the period for proceeding which may be required as a filing reply briefs, if any, has expired. result of the granting of any motion to The initial decision shall contain find- reopen shall be governed by the proviings of fact, conclusions regarding all sions of the applicable sections of these material issues of law or discretion, rules. The filing of a motion to reopen
a hearing shall automatically stay the running of all time periods specified under these Rules until such time as the motion is denied or the reopened hearing is concluded.
8 672.21 Appeal from or review of in
terlocutory orders or rulings. (a) Request for interlocutory orders or rulings. Except as provided in this section, appeals to the Director or, upon delegation, to the General Counsel, shall obtain as a matter of right only from a default order, an accelerated decision or decision to dismiss, or an initial decision rendered after an evidentiary hearing. Appeals from other orders or rulings shall lie only if the Presiding Officer, upon motion of a party, certifies such orders or rulings to the Director on appeal. Requests for such certification shall be filed in writing within six (6) days of notice of the ruling or service of the order, and shall state briefly the grounds to be relied upon on appeal.
(b) Availability of interlocutory appeal. The Presiding Officer may certify any ruling for appeal to the Director when (1) the order or ruling involves an important question of law or policy and there is substantial grounds for difference of opinion; and (2) either (i) an immediate appeal from the order or ruling will materially advance the ultimate resolution of the proceeding, or (ii) review after the final order is issued will be inadequate or ineffective.
(c) Decision. If the Director or the General Counsel takes no action within thirty (30) days of the certification, the appeal is dismissed. If the Director or the General Counsel decides to hear the interlocutory appeal, he shall make and transmit his findings and conclusions to the Presiding Officer. When the Presiding Officer declines to certify an order or ruling to the Director on interlocutory appeal, it may be reviewed by the Director only upon appeal from the initial decision.
(d) Stay of proceedings. The Presiding Officer may stay the proceedings for an interlocutory appeal. Proceedings will not be stayed except in extraordinary circumstances. Where the Presiding Officer grants a stay of more than thirty (30) days, such stay must be separately approved by the Director.
$672.22 Appeal from or review of ini.
tial decision. (a) Notice of appeal. Any party may appeal any adverse initial decision of the Presiding Officer by filing a notice of appeal and an accompanying appellate brief with the Hearing Clerk and upon all other parties and amicus curiae within twenty (20) days after the initial decision is served upon the parties. The notice of appeal shall set forth alternative findings of fact, alternative conclusions regarding issues of law or discretion, and a proposed order together with relevant references to the record and the initial decision. The appellant's brief shall contain a statement of the issues presented for review, argument on the issues presented, and a short conclusion stating the precise relief sought, together with appropriate references to the record. Within twenty (20) days of the service of notices of appeal and briefs, any other party or amicus curiae may file with the Hearing Clerk a reply brief responding to argument raised by the appellant, together with references to the relevant portions of the record, initial decision, or opposing brief. Reply briefs shall be limited to the scope of the appeal brief.
(b) Sua sponte review by the Director. Whenever the Director determines sua sponte to review an initial decision, the Hearing Clerk shall serve notice of such intention on the parties within forty-five (45) days after the initial decision is served upon the parties. The notice shall include a statement of issues to be briefed by the parties and a time schedule for the service and filing of briefs.
(c) Scope of appeal or review. The appeal of the initial decision shall be limited to those issues raised by the parties during the course of the proceeding. If the Director determines that issues raised, but not appealed by the parties, should be argued, he shall give the parties or their representatives written notice of such determination to permit preparation of adequate argument. Nothing herein shall prohibit the Director from remanding the case to the Presiding Officer for further proceedings.
(d) Argument. The Director may, upon violation and $11,000 for knowing violarequest of a party or sua sponte, assign tions. a time and place for oral argument.
(c) For violations occurring after Au
gust 31, 2002, the maximum civil pen$ 672.23 Final order on appeal.
alty is adjusted under authority of the (a) Contents of the final order. When Federal Civil Penalties Inflation Adan appeal has been taken or the Direc- justment Act of 1990 (28 U.S.C. 2461 tor issues a notice of intent to conduct note) as amended by the Debt Collecreview sua sponte, the Director shall tion Improvement Act of 1996 (Pub. L. issue a final order as soon as prac 104-134) to $6,500 for any violation and ticable after the filing of all appellate $11,000 for knowing violations. briefs or oral argument. The Director shall adopt. modify or set aside the [67 FR 55729, Aug. 30, 2002] findings and conclusions contained in the decision or order being reviewed PART 673–ANTARCTIC NONand shall set forth in the final order GOVERNMENTAL EXPEDITIONS the reasons for his actions. The Director may, in his discretion, increase or Sec. decrease the assessed penalty from the 673.1 Purpose of regulations. amount recommended in the decision 673.2 Scope. or order being reviewed, except that if 673.3 Definitions. the order being reviewed is a default 673.4 Environmental protection informaorder, the Director may not increase tion. the amount of the penalty.
673.5 Emergency response plan. (b) Payment of a civil penalty. The re
AUTHORITY: 16 U.S.C. 2401 et. seq. spondent shall pay the full amount of the civil penalty assessed in the final SOURCE: 66 FR 42451, Aug. 13, 2001, unless order within sixty (60) days after re
ty (60) days after re otherwise noted. ceipt of the final order unless otherwise agreed by the parties. Payment 8673.1 Purpose of regulations. shall be made by forwarding to the The purpose of the regulations in this Hearing Clerk a cashier's check or cer- part is to implement the Antarctic tified check in the amount of the pen- Conservation Act of 1978, Public Law alty assessed in the final order, payable 95–541, as amended by the Antarctic to the Treasurer, United States of Science, Tourism and Conservation Act America.
of 1996, Public Law 104–227, and Article (c) Money due and owing the United 15 of the Protocol on Environmental States by virtue of an unappealed final Protection to the Antarctic Treaty decision or settlement order may be done at Madrid on October 4, 1991. Specollected by referral to the Department cifically, this part requires that all of Justice for appropriate civil action non-governmental expeditions, for against respondent.
which advance notice by the United
States is required under the Antarctic 8672.24 Maximum civil monetary pen.
Treaty, who use non-flagged vessels enalties for violations.
sure that the vessel owner or operator (a) For violations occurring before
has an appropriate emergency response August 1, 1998, the maximum civil pen
plan. This part is also designed to enalty that may be assessed under
sure that expedition members are in$$ 672.20(b) and 672.23(a) is set by the
formed of their environmental protecstatute at $5,000 for any violation and
tion obligations under the Antarctic $10,000 for knowing violations.
Conservation Act. (b) For violations occurring between August 1, 1998 and August 31, 2002, the (Approved by the Office of Management and maximum civil penalty was adjusted
Budget under control number 3145-0180). under authority of the Federal Civil Penalties Inflation Adjustment Act of
8 673.2 Scope. 1990 (28 U.S.C. 2461 note) as amended by The requirements in this part apply the Debt Collection Improvement Act to non-governmental expeditions to or of 1996 (Pub. L. 104-134) to $5,500 for any within Antarctica for which the United States is required to give advance no- as modified by the Protocol of 1978 retice under Paragraph (5) of Article VII lating thereto (MARPOL 73/78), has of the Antarctic Treaty.
provisions for prompt and effective re
sponse action to such emergencies as $673.3 Definitions,
might arise in the performance of the In this part:
vessel's activities in Antarctica. Any Antarctica means the area south of 60 emergency response plan which satisdegrees south latitude.
fies the requirements contained in 33 Expedition means an activity under CFR 151.26 of the U.S. Coast Guard regtaken by one or more non-govern ulations will also satisfy the requiremental persons organized within or ments of this paragraph. If the vessel proceeding from the United States to owner or operator does not have a shipor within Antarctica for which advance board oil pollution emergency plan, a notification is required under Para separate plan for prompt and effective graph 5 of Article VII of the Antarctic response action is required. Treaty.
(b) The vessel owner or operator Person has the meaning given that
agrees to take all reasonable measures term in section 1 of title 1, United
to implement the plan for a prompt States Code, and includes any person
and effective response action in the subject to the jurisdiction of the
event of an emergency, taking into acUnited States except that the term
count considerations of risk to human does not include any department, agen
life and safety. cy, or other instrumentality of the Federal Government.
PART 675-MEDICAL CLEARANCE $ 673.4 Environmental protection in PROCESS FOR DEPLOYMENT TO formation.
ANTARCTICA (a) Any person who organizes a nongovernmental expedition to Antarctica Sec. and who does business in the United 675.1 Purpose and authority. States shall notify expedition members 675.2 Medical examinations. of the environmental protection obli- 675.3 Medical clearance criteria. gations of the Antarctic Conservation 675.4 Waiver process. Act.
AUTHORITY: 42 U.S.C. 1870. (b) The National Science Foundation's Office of Polar Programs may SOURCE: 62 FR 31522, June 10, 1997, unless prepare for publication and distribu
otherwise noted. tion explanation of the prohibited acts
$ 675.1 Purpose and authority. set forth in the Antarctic Conservation Act, as well as other appropriate edu (a) This part sets forth the procecational material for tour operators, dures for medical screening to detertheir clients, and employees. Such ma- mine whether candidates for participaterial provided to tour operators for tion in the United States Antarctic distribution to their passengers and Program (USAP) are physically qualicrew shall be disseminated prior to or fied and psychologically adapted for asduring travel to the Antarctic.
signment or travel to Antarctica. Med
ical screening examinations are nec§ 673.5 Emergency response plan. essary to determine the presence of
Any person organizing a non-govern any physical or psychological condimental expedition to or within Antarc- tions that would threaten the health or tica who is transporting passengers safety of the candidate or other USAP aboard a non-U.S. flagged vessel shall participants or that could not be effecensure that:
tively treated by the limited medical (a) The vessel owner's or operator's care capabilities in Antarctica. shipboard oil pollution emergency (b) Presidential Memorandum No. plan, prepared and maintained accord- 6646 (February 5, 1982) (available from ing to Regulation 26 of Annex I of the the National Science Foundation, OfInternational Convention for the Pre- fice of Polar Programs, room 755, 4201 vention of Pollution from Ships, 1973, Wilson Blvd., Arlington, VA 22230) sets