50 C.F.R. Subpart G—Notice and Hearing on Section 103 Regulations
Title 50 - Wildlife and Fisheries
Source: 41 FR 5396, Feb. 6, 1976, unless otherwise noted.
(a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protection Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these regulations authorize the Director, U.S. Fish and Wildlife Service, to: (1) Impose regulations governing the taking of marine mammals incidental to commercial fishing operations; (2) waive the moratorium and adopt regulations with respect to the taking and importing of animals from each species of marine mammals under his jurisdiction; and (3) prescribe regulations governing the taking of depleted marine mammals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sections, the act refers the Director to section 103 (16 U.S.C. 1373). In accordance with section 103(d), regulations must be made on the record after opportunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Director to waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)). (b) [Reserved] Definitions shall be the same as in subpart A of this part except as follows: (a) Party means for the purposes of this subpart: (1) The Director or his representative; or (2) A person who has notified the Director by specified dates of his or her intent to participate in the hearing pursuant to §§18.75 and 18.84(b). (b) Presiding officer means, for the purposes of this subpart, an administrative law judge of the Office of Hearings and Appeals appointed in accordance with 5 U.S.C. 3105. (c) Witness means, for the purposes of this subpart, any person who provides direct testimony on the proposed regulations and waiver. A person may be both a party and a witness. The procedural regulations in this subpart govern the practice and procedure in hearings held under section 103(d) of the Act. These hearings will be governed by the provisions of sections 556 and 557 of the Administrative Procedure Act (5 U.S.C. 556 and 557). The regulations shall be construed to secure the just, speedy, and inexpensive determination of all issues raised with respect to any waiver and/or regulation proposed pursuant to section 103(d) of the act in a manner which gives full protection to the rights of all persons affected thereby. The proponents of the proposed regulations and waiver must demonstrate that any taking or importation of any marine mammal under such proposed regulations and waiver would be consistent with the act. (a) A notice of hearing on any proposed regulations shall be published in the (b) The notice shall state: (1) The nature of the hearing; (2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hearing; (3) The legal authority under which the hearing is to be held; (4) The proposed regulations and waiver, where applicable, and a summary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d)); (5) Issues of fact which may be involved in the hearing; (6) If an Environmental Impact Statement is required, the date of publication of the Statement and the times and place(s) where the Statement and comments thereon may be viewed and copied; (7) Any written advice received from the Marine Mammal Commission; (8) The times and place(s) where records and submitted direct testimony will be kept for public inspection, along with appropriate references to any other documents; (9) The final date for filing with the Director a notice of intent to participate in the hearing pursuant to §18.75; (10) The final date for submission of direct testimony on the proposed regulations and waiver, if applicable, and the number of copies required; (11) The docket number assigned to the case which shall be used in all subsequent proceedings; and (12) The place and date of the prehearing conference. Any person desiring to participate as a party shall notify the Director, by certified mail, on or before the date specified in the notice of hearing. (a) Upon publication of the notice of hearing pursuant to §18.74, the Office of Hearings and Appeals shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding. (b) The presiding officer, in any proceeding under this subpart, shall have power to: (1) Change the time and place of the hearing and adjourn the hearing; (2) Evaluate direct testimony submitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing conference to determine the issues for the hearing agenda, and cause to be published in the (3) Rule upon motions, requests and admissibility of direct testimony; (4) Administer oaths and affirmations, question witnesses and direct witnesses to testify; (5) Modify or waive any rule (after notice) when determining no party will be prejudiced; (6) Receive written comments and hear oral arguments; (7) Render a recommended decision; and (8) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding. (c) In case of the absence of the original presiding officer or his inability to act, the powers and duties to be performed by the original presiding officer under this part in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer by the Office of Hearings and Appeals unless otherwise ordered by the Director. (d) The presiding officer shall withdraw from the proceeding upon his own motion or upon the filing of a motion by a party under §18.76(e) if he deems himself disqualified under recognized canons of judicial ethics. (e) A presiding officer may be requested to withdraw at any time prior to the recommended decision. If there is filed by a party in good faith a timely and sufficient affidavit alleging the presiding officer's personal bias, malice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Director of the Office of Hearings and Appeals shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both, as he may deem appropriate in the circumstances. (a) Unless otherwise specified, all direct testimony, including accompanying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§18.74), the prehearing order (§18.82), or within 15 days after the conclusion of the prehearing conference (§18.84) as the case may be. All direct testimony, referred to in the affidavit and made a part thereof, must be attached to the affidavit. Direct testimony submitted with exhibits must state the issue to which the exhibit relates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the (b) The direct testimony submitted shall contain: (1) A concise statement of the witness' interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state his relationship to the party; and (2) Facts that are relevant and material. (c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing. (d) Ten copies of all direct testimony must be submitted unless the notice of the hearing otherwise specifies. (e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number. (f) Contemporaneous with the publication of the notice of hearing, the Director's direct testimony in support of the proposed regulations and waiver, where applicable, shall be available for public inspection as specified in the notice of hearing. The Director may submit additional direct testimony during the time periods allowed for submission of such testimony by witnesses. Unless otherwise specified in the notice of hearing, all direct testimony shall be addressed to the Presiding Officer, c/o Director, U.S. Fish and Wildlife Service, Washington, DC 20240. All affidavits and exhibits shall be clearly marked with the docket number of the proceedings. Any document in a file pertaining to any hearing authorized by this subpart or any document forming part of the record of such a hearing may be inspected and/or copied in the Office of the Director, U.S. Fish and Wildlife Service, Washington, DC 20240, unless the file is in the care and custody of the presiding officer, in which case he shall notify the parties as to where and when the record may be inspected. (a) After notice of a hearing is published in the (b) A record of oral conversations shall be made by the above persons who are contacted. All communications shall be available for public viewing at times and place(s) specified in the notice of hearing. (c) The presiding officer shall not communicate with any party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate. (a) After an examination of all the direct testimony submitted pursuant to §18.77, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing. (b) The presiding officer's preliminary determination shall be made available at the place or places provided in the notice of the hearing (§18.74(b)(8)) at least five days before the prehearing conference is held. (c) The purpose of the prehearing conference shall be to enable the presiding officer to determine, on the basis of the direct testimony submitted and prehearing discussions: (1) Whether the presiding officer's preliminary determination of issues of fact for the hearing has omitted any significant issues; (2) What facts are not in dispute; (3) Which witnesses may appear at the hearing; and (4) The nature of the interest of each party and which parties' interests are adverse. (d) Only parties may participate in the prehearing conference, and a party may appear in person or be represented by counsel. (a) After the prehearing conference, the presiding officer shall prepare a prehearing order which shall be published in the (b) The prehearing order shall list: (1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testimony submitted which bears on the issues; and (2) a final date for submission of direct testimony on issues of fact not included in the notice of hearing if such issues are presented. The prehearing order may also specify a final date for submission of direct testimony to rebut testimony previously submitted during the time specified in the notice of the hearing. (c) The presiding officer shall publish with the prehearing order a list of witnesses who may appear at the hearing, a list of parties, the nature of the interest of each party, and which parties interests are adverse on the issues presented. (d) All parties shall be bound by the prehearing order. (a) If the presiding officer determines that no issues of material fact are presented by the direct testimony submitted prior to the date of the hearing, he may publish in the (b) Promptly after oral argument, if any, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and any oral argument presented. He shall transmit to the Director his recommended decision, the record and a certificate stating that the record contains all the written direct testimony. The Director shall then make a final decision in accordance with these regulations (§18.91). (a) Direct testimony to rebut testimony offered during the time period specified in the notice of hearing may be submitted pursuant to these regulations within fifteen days after the conclusion of the prehearing conference unless the presiding officer otherwise specifies in the prehearing order. (b) If the prehearing order presents issues not included in the notice of the hearing published pursuant to §18.74: (1) Any person interested in participating at the hearing on such issues presented shall notify the Director by certified mail of an intent to participate not later than ten days after publication of the prehearing order. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless he previously notified the Director pursuant to §18.75; and (2) Additional written direct testimony concerning such issues may be submitted within the time provided in the prehearing order. Such direct testimony will comply with the requirements of §18.77. Any person who fails to notify the Director of his intent to participate pursuant to §18.75 or §18.84 shall be deemed to have waived his right to participate as a party. (a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall publish the change in the (b) The presiding officer shall, at the commencement of the hearing, introduce into the record the notice of hearing as published in the (c) The hearing shall be publicly conducted and reported verbatim by an official reporter. (d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding officer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the presiding officer. The ruling of the presiding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Director's final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings. (e) All motions and requests shall be addressed to, and ruled on by, the presiding officer if made prior to his certification of the transcript, or by the Director if made thereafter. (a) Only direct testimony submitted as provided in these regulations and introduced at the hearing by a witness shall be considered part of the record. Such direct testimony, when written, shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof. (b) The witness introducing direct testimony shall: (1) State his name, address and occupation; (2) State qualifications for introducing the direct testimony. If an expert, the witness shall briefly state the scientific or technical training which qualifies him as an expert; (3) Identify the direct testimony previously submitted in accordance with these regulations; and (4) Submit to appropriate cross- and direct-examination. Cross-examination shall be by a party whose interests are adverse on the issue presented to the witness if the witness is a party, or to the interests of the party who presented the witness. (c) A party shall be deemed to have waived the right to introduce direct-testimony if such party fails to present a witness to introduce the direct-testimony. (d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States. Parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed. (a) The presiding officer may: (1) Require the cross-examiner to outline the intended scope of the examination; and (2) Exclude cross-examination questions that are immaterial, irrelevant or unduly repetitious. (b) Any party shall be given an opportunity to appear, either in person or through an authorized counsel or representative, to cross-examine witnesses. Before cross-examining a witness, the party or counsel shall state his name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-examiners shall be assumed to be familiar with the direct testimony. (c) Any party or party's counsel who fails to appear at the hearing to cross-examine an “adverse” witness shall be deemed to have waived the right to cross-examine that witness. (d) Scientific, technical or commercial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination unless previously submitted and introduced in accordance with these regulations. (a) The presiding officer may, in his discretion, provide for oral argument by parties at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding. (b) The presiding officer shall announce at the hearing a reasonable period of time within which any party may file with the presiding officer proposed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by such party to a ruling of the presiding officer, he shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state his arguments thereon as a part of the brief. (c) Oral or written arguments shall be limited to issues arising from direct testimony on the record. (a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Director. The recommended decision shall include: (1) A statement containing a description of the history of the proceedings; (2) Findings on the issues of fact with the reasons therefor; and (3) Rulings on issues of law. (b) The presiding officer shall also transmit to the Director the transcript of the hearing, the original and all copies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that to the best of his knowledge and belief the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified. (c) Upon receipt of the recommended decision, the Director shall send a copy thereof to each party by certified mail and shall publish in the (1) A summary of the recommended decision; (2) A statement that any interested person may file written comments on the recommended decision with the Director by a specified date; (3) The time(s) and place(s) where the record of the hearing transmitted to the Director pursuant to paragraph (b) of this section may be inspected by interested persons; and (4) The time(s) and place(s) where the recommended decision may be inspected and/or copied by interested persons. (d) Within thirty days after the notice of receipt of the recommended decision has been published in the (a) Upon receipt of the recommended decision and transcript and after the thirty-day period for receiving written comments on the recommended decision has passed, the Director shall make a final decision on the proposed regulations and waiver, where applicable. The Director's decision may affirm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the presiding officer. The Director may also remand the hearing record to the presiding officer for a fuller development of the record. (b) The Director's decision shall include: (1) A statement containing a description of the history of the proceeding; (2) Findings on the issues of fact with the reasons therefor; (3) Rulings on issues of law; and (4) Any other relevant information which the Director deems appropriate. (c) The Director's decision shall be published in the
Title 50: Wildlife and Fisheries
PART 18—MARINE MAMMALS
Subpart G—Notice and Hearing on Section 103 Regulations
§ 18.70 Basis and purpose.
§ 18.71 Definitions.
§ 18.72 Scope of regulations.
§ 18.73 Burden of proof.
§ 18.74 Notice of hearing.
§ 18.75 Notification by interested persons.
§ 18.76 Presiding officer.
§ 18.77 Direct testimony submitted as written documents.
§ 18.78 Mailing address.
§ 18.79 Inspection and copying of documents.
§ 18.80 Ex parte communications.
§ 18.81 Prehearing conference.
§ 18.82 Prehearing order.
§ 18.83 Determination to cancel the hearing.
§ 18.84 Rebuttal testimony and new issues of fact in prehearing order.
§ 18.85 Waiver of right to participate.
§ 18.86 Conduct of the hearing.
§ 18.87 Direct testimony.
§ 18.88 Cross-examination.
§ 18.89 Oral and written arguments.
§ 18.90 Recommended decision, certification of the transcript and submission of comments on the recommended decision.
§ 18.91 Director's decision.
