[Code of Federal Regulations]

[Title 33, Volume 3]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 33CFR326.6]



[Page 456-462]

 

                TITLE 33--NAVIGATION AND NAVIGABLE WATERS

 

 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 

                                 DEFENSE

 

PART 326_ENFORCEMENT--Table of Contents

 

Sec.  326.6  Class I administrative penalties.



    (a) Introduction. (1) This section sets forth procedures for 

initiation and administration of Class I administrative penalty orders 

under section 309(g) of the Clean Water Act, and section 205 of the 

National Fishing Enhancement Act. Under section 309(g)(2)(A) of the 

Clean Water Act, Class I civil penalties may not exceed $11,000 per 

violation, except that the maximum amount of any Class I civil penalty 

shall not exceed $27,500. Under section 205(e) of the National Fishing 

Enhancement Act, penalties for violations of permits issued in 

accordance with that Act shall not exceed $11,000 for each violation.

    (2) These procedures supplement the existing enforcement procedures 

at Sec. Sec.  326.1 through 326.5. However, as a matter of Corps 

enforcement discretion once the Corps decides to proceed with an 

administrative penalty under these procedures it shall not subsequently 

pursue judicial action pursuant to Sec.  326.5. Therefore, an 

administrative penalty should not be pursued if a subsequent judicial 

action for civil penalties is desired. An administrative civil penalty 

may be pursued in conjunction with a compliance order; request for 

restoration and/or request for mitigation issued under Sec.  326.4.

    (3) Definitions. For the purposes of this section of the regulation:

    (i) Corps means the Secretary of the Army, acting through the U.S. 

Army Corps of Engineers, with respect to the matters covered by this 

regulation.

    (ii) Interested person outside the Corps includes the permittee, any 

person who filed written comments on the proposed penalty order, and any 

other person not employed by the Corps with an interest in the subject 

of proposed penalty order, and any attorney of record for those persons.

    (iii) Interested Corps staff means those Corps employees, whether 

temporary or permanent, who may investigate, litigate, or present 

evidence, arguments, or the position of the Corps in the hearing or who 

participated in the preparation, investigation or deliberations 

concerning the proposed penalty order, including any employee, 

contractor, or consultant who may be called as a witness.

    (iv) Permittee means the person to whom the Corps issued a permit 

under section 404 of the Clean Water Act, (or section 10 of the Rivers 

and Harbors Act for an Artificial Reef) the conditions and limitations 

of which permit have allegedly been violated.

    (v) Presiding Officer means a member of Corps Counsel staff or any 

other qualified person designated by the District Engineer (DE), to hold 

a hearing on a proposed administrative civil penalty order (hereinafter 

referred to as ``proposed order'') in accordance with the rules set 

forth in this regulation and to make such recommendations to the DE as 

prescribed in this regulation.

    (vi) Ex parte communication means any communication, written or 

oral, relating to the merits of the proceeding, between the Presiding 

Officer and an interested person outside the Corps or the interested 

Corps staff, which was not originally filed or stated in the 

administrative record or in the hearing. Such communication is not an 

``ex parte communication'' if all parties have received prior written 

notice of the proposed communication and have been given the opportunity 

to participate herein.



[[Page 457]]



    (b) Initiation of action. (1) If the DE or a delegatee of the DE 

finds that a recipient of a Department of the Army permit (hereinafter 

referred to as ``the permittee'') has violated any permit condition or 

limitation contained in that permit, the DE is authorized to prepare and 

process a proposed order in accordance with these procedures. The 

proposed order shall specify the amount of the penalty which the 

permittee may be assessed and shall describe with reasonable specificity 

the nature of the violation.

    (2) The permittee will be provided actual notice, in writing, of the 

DE's proposal to issue an administrative civil penalty and will be 

advised of the right to request a hearing and to present evidence on the 

alleged violation. Notice to the permittee will be provided by certified 

mail, return receipt requested, or other notice, at the discretion of 

the DE when he determines justice so requires. This notice will be 

accompanied by a copy of the proposed order, and will include the 

following information:

    (i) A description of the alleged violation and copies of the 

applicable law and regulations;

    (ii) An explanation of the authority to initiate the proceeding;

    (iii) An explanation, in general terms, of the procedure for 

assessing civil penalties, including opportunities for public 

participation;

    (iv) A statement of the amount of the penalty that is proposed and a 

statement of the maximum amount of the penalty which the DE is 

authorized to assess for the violations alleged;

    (v) A statement that the permittee may within 30 calendar days of 

receipt of the notice provided under this subparagraph, request a 

hearing prior to issuance of any final order. Further, that the 

permittee must request a hearing within 30 calendar days of receipt of 

the notice provided under this subparagraph in order to be entitled to 

receive such a hearing;

    (vi) The name and address of the person to whom the permittee must 

send a request for hearing;

    (vii) Notification that the DE may issue the final order on or after 

30 calendar days following receipt of the notice provided under these 

rules, if the permittee does not request a hearing; and

    (viii) An explanation that any final order issued under this section 

shall become effective 30 calendar days following its issuance unless a 

petition to set aside the order and to hold a hearing is filed by a 

person who commented on the proposed order and such petition is granted 

or an appeal is taken under section 309(g)(8) of the Clean Water Act.

    (3) At the same time that actual notice is provided to the 

permittee, the DE shall give public notice of the proposed order, and 

provide reasonable opportunity for public comment on the proposed order, 

prior to issuing a final order assessing an administrative civil 

penalty. Procedures for giving public notice and providing the 

opportunity for public comment are contained in Sec.  326.6(c).

    (4) At the same time that actual notice is provided to the 

permittee, the DE shall provide actual notice, in writing, to the 

appropriate state agency for the state in which the violation occurred. 

Procedures for providing actual notice to and consulting with the 

appropriate state agency are contained in Sec.  326.6(d).

    (c) Public notice and comment. (1) At the same time the permittee 

and the appropriate state agency are provided actual notice, the DE 

shall provide public notice of and a reasonable opportunity to comment 

on the DE's proposal to issue an administrative civil penalty against 

the permittee.

    (2) A 30 day public comment period shall be provided. Any person may 

submit written comments on the proposed administrative penalty order. 

The DE shall include all written comments in an administrative record 

relating to the proposed order. Any person who comments on a proposed 

order shall be given notice of any hearing held on the proposed order. 

Such persons shall have a reasonable opportunity to be heard and to 

present evidence in such hearings.

    (3) If no hearing is requested by the permittee, any person who has 

submitted comments on the proposed order shall be given notice by the DE 

of any final order issued, and will be



[[Page 458]]



given 30 calendar days in which to petition the DE to set aside the 

order and to provide a hearing on the penalty. The DE shall set aside 

the order and provide a hearing in accordance with these rules if the 

evidence presented by the commenter in support of the commenter's 

petition for a hearing is material and was not considered when the order 

was issued. If the DE denies a hearing, the DE shall provide notice to 

the commenter filing the petition for the hearing, together with the 

reasons for the denial. Notice of the denial and the reasons for the 

denial shall be published in the Federal Register by the DE.

    (4) The DE shall give public notice by mailing a copy of the 

information listed in paragraph (c)(5), of this section to:

    (i) Any person who requests notice;

    (ii) Other persons on a mailing list developed to include some or 

all of the following sources:

    (A) Persons who request in writing to be on the list;

    (B) Persons on ``area lists'' developed from lists of participants 

in past similar proceedings in that area, including hearings or other 

actions related to section 404 permit issuance as required by Sec.  

325.3(d)(1). The DE may update the mailing list from time to time by 

requesting written indication of continued interest from those listed. 

The DE may delete from the list the name of any person who fails to 

respond to such a request.

    (5) All public notices under this subpart shall contain at a minimum 

the information provided to the permittee as described in Sec.  

326.6(b)(2) and:

    (i) A statement of the opportunity to submit written comments on the 

proposed order and the deadline for submission of such comments;

    (ii) Any procedures through which the public may comment on or 

participate in proceedings to reach a final decision on the order;

    (iii) The location of the administrative record referenced in Sec.  

326.6(e), the times at which the administrative record will be available 

for public inspection, and a statement that all information submitted by 

the permittee and persons commenting on the proposed order is available 

as part of the administrative record, subject to provisions of law 

restricting the public disclosure of confidential information.

    (d) State consultation. (1) At the same time that the permittee is 

provided actual notice, the DE shall send the appropriate state agency 

written notice of proposal to issue an administrative civil penalty 

order. This notice will include the same information required pursuant 

to Sec.  326.6(c)(5).

    (2) For the purposes of this regulation, the appropriate State 

agency will be the agency administering the 401 certification program, 

unless another state agency is agreed to by the District and the 

respective state through formal/informal agreement with the state.

    (3) The appropriate state agency will be provided the same 

opportunity to comment on the proposed order and participate in any 

hearing that is provided pursuant to Sec.  326.6(c).

    (e) Availability of the administrative record. (1) At any time after 

the public notice of a proposed penalty order is given under Sec.  

326.6(c), the DE shall make available the administrative record at 

reasonable times for inspection and copying by any interested person, 

subject to provisions of law restricting the public disclosure of 

confidential information. Any person requesting copies of the 

administrative record or portions of the administrative record may be 

required by the DE to pay reasonable charges for reproducing the 

information requested.

    (2) The administrative record shall include the following:

    (i) Documentation relied on by the DE to support the violations 

alleged in the proposed penalty order with a summary of violations, if a 

summary has been prepared;

    (ii) Proposed penalty order or assessment notice;

    (iii) Public notice of the proposed order with evidence of notice to 

the permittee and to the public;

    (iv) Comments by the permittee and/or the public on the proposed 

penalty order, including any requests for a hearing;

    (v) All orders or notices of the Presiding Officer;

    (vi) Subpoenas issued, if any, for the attendance and testimony of 

witnesses



[[Page 459]]



and the production of relevant papers, books, or documents in connection 

with any hearings;

    (vii) All submittals or responses of any persons or comments to the 

proceeding, including exhibits, if any;

    (viii) A complete and accurate record or transcription of any 

hearing;

    (ix) The recommended decision of the Presiding Officer and final 

decision and/or order of the Corps issued by the DE; and

    (x) Any other appropriate documents related to the administrative 

proceeding;

    (f) Counsel. A permittee may be represented at all stages of the 

proceeding by counsel. After receiving notification that a permittee or 

any other party or commenter is represented by counsel, the Presiding 

Officer and DE shall direct all further communications to that counsel.

    (g) Opportunity for hearing. (1) The permittee may request a hearing 

and may provide written comments on the proposed administrative penalty 

order at any time within 30 calendar days after receipt of the notice 

set forth in Sec.  326.6(b)(2). The permittee must request the hearing 

in writing, specifying in summary form the factual and legal issues 

which are in dispute and the specific factual and legal grounds for the 

permittee's defense.

    (2) The permittee waives the right to a hearing to present evidence 

on the alleged violation or violations if the permittee does not submit 

the request for the hearing to the official designated in the notice of 

the proposed order within 30 calendar days of receipt of the notice. The 

DE shall determine the date of receipt of notice by permittee's signed 

and dated return receipt or such other evidence that constitutes proof 

of actual notice on a certain date.

    (3) The DE shall promptly schedule requested hearings and provide 

reasonable notice of the hearing schedule to all participants, except 

that no hearing shall be scheduled prior to the end of the thirty day 

public comment period provided in Sec.  326.6(c)(2). The DE may grant 

any delays or continuances necessary or desirable to resolve the case 

fairly.

    (4) The hearing shall be held at the district office or a location 

chosen by the DE, except the permittee may request in writing upon a 

showing of good cause that the hearing be held at an alternative 

location. Action on such request is at the discretion of the DE.

    (h) Hearing. (1) Hearings shall afford permittees with an 

opportunity to present evidence on alleged violations and shall be 

informal, adjudicatory hearings and shall not be subject to section 554 

or 556 of the Administrative Procedure Act. Permittees may present 

evidence either orally or in written form in accordance with the hearing 

procedures specified in Sec.  326.6(i).

    (2) The DE shall give written notice of any hearing to be held under 

these rules to any person who commented on the proposed administrative 

penalty order under Sec.  326.6(c). This notice shall specify a 

reasonable time prior to the hearing within which the commenter may 

request an opportunity to be heard and to present oral evidence or to 

make comments in writing in any such hearing. The notice shall require 

that any such request specify the facts or issues which the commenter 

wishes to address. Any commenter who files comments pursuant to Sec.  

326.6(c)(2) shall have a right to be heard and to present evidence at 

the hearing in conformance with these procedures.

    (3) The DE shall select a member of the Corps counsel staff or other 

qualified person to serve as Presiding Officer of the hearing. The 

Presiding Officer shall exercise no other responsibility, direct or 

supervisory, for the investigation or prosecution of any case before 

him. The Presiding Officer shall conduct hearings as specified by these 

rules and make a recommended decision to the DE.

    (4) The Presiding Officer shall consider each case on the basis of 

the evidence presented, and must have no prior connection with the case. 

The Presiding Officer is solely responsible for the recommended decision 

in each case.

    (5) Ex Parte Communications. (i) No interested person outside the 

Corps or member of the interested Corps staff shall make, or knowingly 

cause to be made, any ex parte communication on the merits of the 

proceeding.

    (ii) The Presiding Officer shall not make, or knowingly cause to be 

made,



[[Page 460]]



any ex parte communication on the proceeding to any interested person 

outside the Corps or to any member of the interested Corps staff.

    (iii) The DE may replace the Presiding Officer in any proceeding in 

which it is demonstrated to the DE's satisfaction that the Presiding 

Officer has engaged in prohibited ex parte communications to the 

prejudice of any participant.

    (iv) Whenever an ex parte communication in violation of this section 

is received by the Presiding Officer or made known to the Presiding 

Officer, the Presiding Officer shall immediately notify all participants 

in the proceeding of the circumstances and substance of the 

communication and may require the person who made the communication or 

caused it to be made, or the party whose representative made the 

communication or caused it to be made, to the extent consistent with 

justice and the policies of the Clean Water Act, to show cause why that 

person or party's claim or interest in the proceedings should not be 

dismissed, denied, disregarded, or otherwise adversely affected on 

account of such violation.

    (v) The prohibitions of this paragraph apply upon designation of the 

Presiding Officer and terminate on the date of final action or the final 

order.

    (i) Hearing Procedures. (1) The Presiding Officer shall conduct a 

fair and impartial proceeding in which the participants are given a 

reasonable opportunity to present evidence.

    (2) The Presiding Officer may subpoena witnesses and issue subpoenas 

for documents pursuant to the provisions of the Clean Water Act.

    (3) The Presiding Officer shall provide interested parties a 

reasonable opportunity to be heard and to present evidence. Interested 

parties include the permittee, any person who filed a request to 

participate under 33 CFR 326.6(c), and any other person attending the 

hearing. The Presiding Officer may establish reasonable time limits for 

oral testimony.

    (4) The permittee may not challenge the permit condition or 

limitation which is the subject matter of the administrative penalty 

order.

    (5) Prior to the commencement of the hearing, the DE shall provide 

to the Presiding Officer the complete administrative record as of that 

date. During the hearing, the DE, or an authorized representative of the 

DE may summarize the basis for the proposed administrative order. 

Thereafter, the administrative record shall be admitted into evidence 

and the Presiding Officer shall maintain the administrative record of 

the proceedings and shall include in that record all documentary 

evidence, written statements, correspondence, the record of hearing, and 

any other relevant matter.

    (6) The Presiding Officer shall cause a tape recording, written 

transcript or other permanent, verbatim record of the hearing to be 

made, which shall be included in the administrative record, and shall, 

upon written request, be made available, for inspection or copying, to 

the permittee or any person, subject to provisions of law restricting 

the public disclosure of confidential information. Any person making a 

request may be required to pay reasonable charges for copies of the 

administrative record or portions thereof.

    (7) In receiving evidence, the Presiding Officer is not bound by 

strict rules of evidence. The Presiding Officer may determine the weight 

to be accorded the evidence.

    (8) The permittee has the right to examine, and to respond to the 

administrative record. The permittee may offer into evidence, in written 

form or through oral testimony, a response to the administrative record 

including, any facts, statements, explanations, documents, testimony, or 

other exculpatory items which bear on any appropriate issues. The 

Presiding Officer may question the permittee and require the 

authentication of any written exhibit or statement. The Presiding 

Officer may exclude any repetitive or irrelevant matter.

    (9) At the close of the permittee's presentation of evidence, the 

Presiding Officer should allow the introduction of rebuttal evidence. 

The Presiding Officer may allow the permittee to respond to any such 

rebuttal evidence submitted and to cross-examine any witness.



[[Page 461]]



    (10) The Presiding Officer may take official notice of matters that 

are not reasonably in dispute and are commonly known in the community or 

are ascertainable from readily available sources of known accuracy. 

Prior to taking official notice of a matter, the Presiding Officer shall 

give the Corps and the permittee an opportunity to show why such notice 

should not be taken. In any case in which official notice is taken, the 

Presiding Officer shall place a written statement of the matters as to 

which such notice was taken in the record, including the basis for such 

notice and a statement that the Corps or permittee consented to such 

notice being taken or a summary of the objections of the Corps or the 

permittee.

    (11) After all evidence has been presented, any participant may 

present argument on any relevant issue, subject to reasonable time 

limitations set at the discretion of the Presiding Officer.

    (12) The hearing record shall remain open for a period of 10 

business days from the date of the hearing so that the permittee or any 

person who has submitted comments on the proposed order may examine and 

submit responses for the record.

    (13) At the close of this 10 business day period, the Presiding 

Officer may allow the introduction of rebuttal evidence. The Presiding 

Officer may hold the record open for an additional 10 business days to 

allow the presentation of such rebuttal evidence.

    (j) The decision. (1) Within a reasonable time following the close 

of the hearing and receipt of any statements following the hearing and 

after consultation with the state pursuant to Sec.  326.6(d), the 

Presiding Officer shall forward a recommended decision accompanied by a 

written statement of reasons to the DE. The decision shall recommend 

that the DE withdraw, issue, or modify and issue the proposed order as a 

final order. The recommended decision shall be based on a preponderance 

of the evidence in the administrative record. If the Presiding Officer 

finds that there is not a preponderance of evidence in the record to 

support the penalty or the amount of the penalty in a proposed order, 

the Presiding Officer may recommend that the order be withdrawn or 

modified and then issued on terms that are supported by a preponderance 

of evidence on the record. The Presiding Officer also shall make the 

complete administrative record available to the DE for review.

    (2) The Presiding Officer's recommended decision to the DE shall 

become part of the administrative record and shall be made available to 

the parties to the proceeding at the time the DE's decision is released 

pursuant to Sec.  326.6(j)(5). The Presiding Officer's recommended 

decision shall not become part of the administrative record until the 

DE's final decision is issued, and shall not be made available to the 

permittee or public prior to that time.

    (3) The rules applicable to Presiding Officers under Sec.  

326.6(h)(5) regarding ex parte communications are also applicable to the 

DE and to any person who advises the DE on the decision or the order, 

except that communications between the DE and the Presiding Officer do 

not constitute ex parte communications, nor do communications between 

the DE and his staff prior to issuance of the proposed order.

    (4) The DE may request additional information on specified issues 

from the participants, in whatever form the DE designates, giving all 

participants a fair opportunity to be heard on such additional matters. 

The DE shall include this additional information in the administrative 

record.

    (5) Within a reasonable time following receipt of the Presiding 

Officer's recommended decision, the DE shall withdraw, issue, or modify 

and issue the proposed order as a final order. The DE's decision shall 

be based on a preponderance of the evidence in the administrative 

record, shall consider the penalty factors set out in section 309(g)(3) 

of the CWA, shall be in writing, shall include a clear and concise 

statement of reasons for the decision, and shall include any final order 

assessing a penalty. The DE's decision, once issued, shall constitute 

final Corps action for purposes of judicial review.

    (6) The DE shall issue the final order by sending the order, or 

written notice of its withdrawal, to the permittee by



[[Page 462]]



certified mail. Issuance of the order under this subparagraph 

constitutes final Corps action for purposes of judicial review.

    (7) The DE shall provide written notice of the issuance, 

modification and issuance, or withdrawal of the proposed order to every 

person who submitted written comments on the proposed order.

    (8) The notice shall include a statement of the right to judicial 

review and of the procedures and deadlines for obtaining judicial 

review. The notice shall also note the right of a commenter to petition 

for a hearing pursuant to 33 CFR 326.6(c)(3) if no hearing was 

previously held.

    (k) Effective date of order. (1) Any final order issued under this 

subpart shall become effective 30 calendar days following its issuance 

unless an appeal is taken pursuant to section 309(g)(8) of the Clean 

Water Act, or in the case where no hearing was held prior to the final 

order, and a petition for hearing is filed by a prior commenter.

    (2) If a petition for hearing is received within 30 days after the 

final order is issued, the DE shall:

    (i) Review the evidence presented by the petitioner.

    (ii) If the evidence is material and was not considered in the 

issuance of the order, the DE shall immediately set aside the final 

order and schedule a hearing. In that case, a hearing will be held, a 

new recommendation will be made by the Presiding Officer to the DE and a 

new final decision issued by the DE.

    (iii) If the DE denies a hearing under this subparagraph, the DE 

shall provide to the petitioner, and publish in the Federal Register, 

notice of, and the reasons for, such denial.

    (l) Judicial review. (1) Any permittee against whom a final order 

assessing a civil penalty under these regulations or any person who 

provided written comments on a proposed order may obtain judicial review 

of the final order.

    (2) In order to obtain judicial review, the permittee or commenter 

must file a notice of appeal in the United States District Court for 

either the District of Columbia, or the district in which the violation 

was alleged to have occurred, within 30 calendar days after the date of 

issuance of the final order.

    (3) Simultaneously with the filing of the notice of appeal, the 

permittee or commenter must send a copy of such notice by certified mail 

to the DE and the Attorney General.



[54 FR 50709, Dec. 8, 1989, as amended at 69 FR 35518, June 25, 2004]