PART 672—ENFORCEMENT AND HEARING PROCEDURES 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. § 672.1 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(f); 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 in these rules shall be resolved at the discretion of the Director or Presiding Officer. § 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 (c) Administrative Law Judge (d) Complainant (e) Complaint (f) Consent Agreement (g) Director (h) Final Order (i) Foundation, Agency, NSF (j) Hearing (k) Hearing Clerk (l) Initial Decision (m) Party (n) Permit (o) Person (p) Presiding Officer (q) Respondent (r) Terms defined in the Act and not defined in these rules of practice are used consistent with the meanings given in the Act. § 672.3 Powers and duties of the Director; Presiding Official; Office of Polar Programs. (a) Director. (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. (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. (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. (f) Office of Polar Programs. (g) The Office of Polar Programs, acting on behalf of the Director, may designate qualified individuals as enforcement officers empowered to execute all of the law enforcement functions set forth in section 10 of the ACA, 16 U.S.C. 2409, as well as any other appropriate actions ancillary to those statutory duties. OPP will provide each enforcement officer with official enforcement credentials for identification purposes and use during execution of official duties. OPP may also designate knowledgeable individuals to provide educational and other information regarding the Antarctic to tour operators, their clients and employees, and other visitors to the Antarctic. (h) The Office of the General Counsel, with the concurrence of the Office of Polar Programs, may refer appropriate cases to the Department of Justice for possible prosecution of criminal violations of the Antarctic Conservation Act. [54 FR 7132, Feb. 16, 1989. Redesignated at 58 FR 34718, June 29, 1993, and amended at 59 FR 37438, July 22, 1994; 61 FR 51022, Sept. 30, 1996; 66 FR 42451, Aug. 13, 2001] § 672.4 Filing, service, and form of pleadings and documents. (a) Filing of pleadings and documents. (2) A certificate of service shall accompany each document filed or served. Except as otherwise provided, a party filing documents with the Hearing Clerk, after the filing of the answer, shall serve copies thereof upon all other parties and the Presiding Officer. The Presiding Officer shall maintain a duplicate file during the course of the proceeding. (3) When the Presiding Officer corresponds directly with the parties, he shall file the original of the correspondence with the Hearing Clerk, maintain a copy in the duplicate file, and send a copy to all parties. Parties who correspond directly with the Presiding Officer shall in addition to serving all other parties send a copy of all such correspondence to the Hearing Clerk. A certificate of service shall accompany each document served under this subsection. (b) Service of pleadings and documents Service of complaint. (ii) Service upon a domestic or foreign corporation or upon a partnership or other unincorporated association which is subject to suit under a common name shall be made by personal service or certified mail, as prescribed by paragraph (b)(1)(i) of this section, directed to an officer, partner, a managing or general agent, or to any other person authorized by appointment or by Federal or State law to receive service of process. (iii) Service upon an officer or agency of the United States shall be made by delivering a copy of the complaint to the officer or agency, or in any manner prescribed for service by applicable regulations. If the agency is a corporation, the complaint shall be served as prescribed in paragraph (b)(1)(ii) of this section. (iv) Service upon a State or local unit of government, or a State or local officer, agency, department, corporation or other instrumentality shall be made by serving a copy of the complaint in the manner prescribed by the law of the State for the service of process on any such persons, or (A) If upon a State or local unit of government, or a State or local department, agency, corporation or other instrumentality, by delivering a copy of the complaint to the chief executive officer thereof; or (B) If upon a State or local officer by delivering a copy to such officer. (v) Proof of service of the complaint shall be made by affidavit of the person making personal service, or by properly executed return receipt. Such proof of service shall be filed with the complaint immediately upon completion of service. (2) The first page of every pleading, letter, or other document shall contain a caption identifying the respondent and the docket number which is exhibited on the complaint. (3) The original of any pleading, letter, or other document (other than exhibits) shall be signed by the party filing it or by his representative. The signature constitutes a representation by the signer that he has read the pleading, letter or other document, that to the best of his knowledge, information and belief, the statements made therein are true, and that it is not interposed for delay. (4) The initial document filed by any person shall contain his name, address and telephone number. Any changes in this information shall be communicated promptly to the Hearing Clerk, Presiding Officer, and all parties to the proceeding. A party who fails to furnish such information and any changes thereto shall be deemed to have waived his right to notice and service under these rules. § 672.5 Filing and service of rulings, orders, and decisions. (a) All rulings, orders, decisions, and other documents issued by the Presiding Officer shall be filed with the Hearing Clerk. Copies of all such documents shall be served personally, or by certified mail, return receipt requested, upon all parties. (b) Computation. (c) Extensions of time. (d) Service by mail. (e) Ex parte discussion of proceeding. (f) Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during Agency business hours, inspect and copy any document filed in any proceeding. Such documents shall be made available by the Hearing Clerk. (g) 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. (b) Intervention. (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 manner. Agreements, arrangements, and other matters previously resolved during the proceeding are binding on the intervenor. (d) Disposition. (e) Amicus curiae. (f) Consolidation. (g) Severance. § 672.7 Issuance of complaint. (a) General. (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. (1) A statement reciting 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. (f) Derivation of proposed civil penalty. (g) Amendment of the complaint. (h) Withdrawal of the complaint. (i) 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. § 672.8 Answer to the complaint. (a) General. (b) Contents of the answer. (c) Request for hearing. (d) Failure to admit, deny, or explain. (e) Amendment of the answer. § 672.9 Motions. (a) General. (b) Response to motions. (c) Ruling on Motions. § 672.10 Default order. (a) Default. (b) Procedures upon default. (c) Contents of a default order. (d) The Presiding Officer may set aside a default order for good cause shown. § 672.11 Informal settlement; consent agreement and order. (a) Settlement policy. (b) Consent agreement. (c) Consent order. (d) Actions by respondent to clean, protect, enhance, or benefit the environment. § 672.12 Prehearing conference. (a) Purpose of prehearing conference. (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. (c) Record of the prehearing conference. (d) Unavailability of a prehearing conference. (e) Other discovery. (2) The Presiding Officer shall order depositions upon oral questions only upon a showing of good cause and upon a 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 be 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. § 672.13 Accelerated decision; decision to dismiss. (a) General. (b) Effect. (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. § 672.14 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. (c) Postponement of hearing. § 672.15 Evidence. (a) General. (b) Examination of witnesses. (c) Verified statements. (d) Admission of affidavits where the witness is unavailable. (e) Exhibits. (f) Official notice. § 672.16 Objections and offers of proof. (a) Objection. (b) Offer of proof. § 672.17 Burden of presentation; burden of persuasion. The complainant has the burden of going forward with and of proving that the violation occurred as set forth in the complaint and that the proposed civil penalty, revocation, suspension, or other sanction, is appropriate. Following the establishment of a prima facie case, respondent has the burden of presenting and of going forward with any defense to the allegations set forth in the complaint. The Presiding Officer shall decide all controverted matters upon a preponderance of the evidence. § 672.18 Filing the transcript. The hearing shall be transcribed verbatim. After the Presiding Officer closes the record, the reporter shall promptly transmit the original and certified copies to the Hearing Clerk, and one certified copy directly to the Presiding Officer. A certificate of service shall accompany each copy of the transcript. The Hearing Clerk shall notify all parties of the availability of the transcript and shall furnish the parties with a copy of the transcript upon payment of the cost of reproduction, unless a party can show that the cost is unduly burdensome. Any person not a party to the proceeding may obtain a copy of the transcript upon payment of the reproduction fee, except for those parts of the transcript ordered to be kept confidential by the Presiding Officer. § 672.19 Proposed findings, conclusions, and order. Unless otherwise ordered by the Presiding Officer, any party may submit proposed findings of fact, conclusions of law, and a proposed order, together with supporting briefs, within twenty (20) days after the parties are notified of the availability of the transcript. The Presiding Officer shall set a time by which reply briefs must be submitted. All submissions shall be in writing, shall be served upon all parties, and shall contain adequate references to the record and relied-upon authorities. § 672.20 Initial decision. (a) Filing and contents. (b) Amount of civil penalty. (c) Effect of initial decision. (d) Motion to reopen a hearing. § 672.21 Appeal from or review of interlocutory orders or rulings. (a) Request for interlocutory orders or rulings. (b) Availability of interlocutory appeal. (c) Decision. (d) Stay of proceedings. § 672.22 Appeal from or review of initial decision. (a) Notice of appeal. (b) Sua sponte review by the Director. (c) Scope of appeal or review. (d) Argument. § 672.23 Final order on appeal. (a) Contents of the final order. (b) Payment of a civil penalty. (c) Money due and owing the United States by virtue of an unappealed final decision or settlement order may be collected by referral to the Department of Justice for appropriate civil action against respondent. § 672.24 Maximum civil monetary penalties for violations. (a) For violations occurring prior to August 1, 2016, the maximum civil penalty is $6500 for any violation and $11,000 for knowing violations. (b) For violations occurring after August 1, 2016, but before January 1, 2017, the maximum civil penalty is adjusted to $16,250 for any violation and $27,500 for knowing violations. (c) For violations occurring on or after January 1, 2017, the maximum penalty, which may be assessed under part 672 of the title, is the larger of: (1) The amount for the previous calendar year, or (2) An amount adjusted for inflation, calculated by multiplying the amount for the previous calendar year by the percentage by which the CPI-U for the month of October preceding the current calendar year exceeds the CPI-U for the month of October of the calendar year two years prior to the current calendar year, adding that amount to the amount for the previous calendar year, and rounding the total to the nearest dollar. (d) Notice of the maximum penalty which may be assessed under part 672 of this title for calendar years after 2016 will be published by the NSF in the Federal Register [81 FR 41452, June 27, 2016]