This Part prescribes enforcement policies (Section326.2) and procedures applicable to activities performed without requiredDepartment of the Army permits (Section 326.3) and to activities not incompliance with the terms and conditions of issued Department of the Armypermits (Section 326.4). Procedures for initiating legal actions areprescribed in Section 326.5. Nothing contained in this Part shall establish a non-discretionary duty on the part of district engineers nor shall deviation from these procedures give rise to a private right of action against a district engineer.

Enforcement, as part of the overall regulatory programof the Corps, is based on a policy of regulating the waters of the UnitedStates by discouraging activities that have not been properly authorized and byrequiring corrective measures, where appropriate, to ensure those waters arenot misused and to maintain the integrity of the program. There are severalmethods discussed in the remainder of this part which can be used either singlyor in combination to implement this policy, while making the most effectiveuse of the enforcement resources available. As EPA has independent enforcementauthority under the Clean Water Act for unauthorized discharges, the districtengineer should normally coordinate with EPA to determine the most effectiveand efficient manner by which resolution of a section 404 violation can beachieved.

1. Surveillance. To detect unauthorized activities requiring permits,district engineers should make the best use of all available resources. Corpsemployees; members of the public; and representatives of state, local, andother Federal agencies should be encouraged to report suspected violations.Additionally, district engineers should consider developing joint surveillanceprocedures with Federal, state, or local agencies having similar regulatoryresponsibilities, special expertise, or interest.

2. Initial investigation. District engineers should take steps toinvestigate suspected violations in a timely manner. The scheduling ofinvestigations will reflect the nature and location of the suspectedviolations, the anticipated impacts, and the most effective use of inspectionresources available to the district engineer. These investigations shouldconfirm whether a violation exists, and if so, will identify the extent of theviolation and the parties responsible.

3. Formal notifications to parties responsible for violations. Oncethe district engineer has determined that a violation exists, he should takeappropriate steps to notify the responsible parties.
   1. If the violation involves a project that is not complete, thedistrict engineer's notification should be in the form of a cease and desistorder prohibiting any further work pending resolution of the violation inaccordance with the procedures contained in this part. See paragraph (4) belowfor exception to this procedure.

   2. If the violation involves a completed project, a cease and desistorder should not be necessary. However, the district engineer should stillnotify the responsible parties of the violation.

   3. All notifications, pursuant to paragraphs 1-2 above, should identifythe relevant statutory authorities, indicate potential enforcementconsequences, and direct the responsible parties to submit any additionalinformation that the district engineer may need at that time to determine whatcourse of action he should pursue in resolving the violation; furtherinformation may be requested, as needed, in the future.

   4. In situations which would, if a violation were not involved, qualifyfor emergency procedures pursuant to 33 CFR Part 325.2(e)(4), the districtengineer may decide it would not be appropriate to direct that the unauthorizedwork be stopped. Therefore, in such situations, the district engineer may, athis discretion, allow the work to continue, subject to appropriate limitationsand conditions as he may prescribe, while the violation is being resolved inaccordance with the procedures contained in this part.

   5. When an unauthorized activity requiring a permit has been undertakenby American Indians (including Alaskan natives, Eskimos, and Aleuts, but notincluding Native Hawaiians) on reservation lands or in pursuit of specifictreaty rights, the district engineer should use appropriate means to coordinateproposed directives and orders with the Assistant Chief Counsel for IndianAffairs (DAEN-CCI).

   6. When an unauthorized activity requiring a permit has been undertakenby an official acting on behalf of a foreign government, the district engineershould use appropriate means to coordinate proposed directives and orders withthe Office, Chief of Engineers, ATTN: DAEN-CCK.

4. Initial corrective measures.
   1. The district engineer should, inappropriate cases, depending upon the nature of the impacts associated with theunauthorized, completed work, solicit the views of the EnvironmentalProtection Agency; the U.S. Fish and Wildlife Service; the National MarineFisheries Service, and other Federal, state, and local agencies to facilitatehis decision on what initial corrective measures are required. If the districtengineer determines as a result of his investigation, coordination, andpreliminary evaluation that initial corrective measures are required, he shouldissue an appropriate order to the parties responsible for the violation. Indetermining what initial corrective measures are required, the districtengineer should consider whether serious jeopardy to life, property, orimportant public resources (see 33 CFR Part 320.4) may be reasonablyanticipated to occur during the period required for the ultimate resolution ofthe violation. In his order, the district engineer will specify the initialcorrective measures required and the time limits for completing this work. Inunusual cases where initial corrective measures substantially eliminate allcurrent and future detrimental impacts resulting from the unauthorized work,further enforcement actions should normally be unnecessary. For all othercases, the district engineer's order should normally specify that compliancewith the order will not foreclose the Government's options to initiateappropriate legal action or to later require the submission of a permitapplication.

   2. An order requiring initial corrective measures that resolve theviolation may also be issued by the district engineer in situations where theacceptance or processing of an after-the-fact permit application is prohibitedor considered not appropriate pursuant to 326.3(e)(1) (iii)-(iv) below.However, such orders will be issued only when the district engineer has reachedan independent determination that such measures are necessary and appropriate.

   3. It will not be necessary to issue a Corps permit in connection withinitial corrective measures undertaken at the direction of the districtengineer.

5. After-the-fact permit applications.
   1. Following the completion ofany required initial corrective measures, the district engineer will accept anafter-the-fact permit application unless he determines that one of theexceptions listed in subparagraphs i-iv below is applicable. Applications forafter-the-fact permits will be processed in accordance with the applicableprocedures in 33 CFR Parts 320-325. Situations where no permit applicationwill be processed or where the acceptance of a permit application must bedeferred are as follows:
      1. No permit application will be processed when restoration of thewaters of the United States has been completed that eliminates current andfuture detrimental impacts to the satisfaction of the district engineer.
      2. No permit application will be accepted in connection with aviolation where the district engineer determines that legal action isappropriate (Section 326.5(a)) until such legal action has been completed.
      3. No permit application will be accepted where a Federal, state, orlocal authorization or certification, required by Federal law, has already beendenied.
      4. No permit application will be accepted nor will the processing ofan application be continued when the district engineer is aware of enforcementlitigation that has been initiated by other Federal, state, or local regulatoryagencies, unless he determines that concurrent processing of an after-the-factpermit application is clearly appropriate.

   2. Upon completion of his review in accordance with 33 CFR Parts320-325, the district engineer will determine if a permit should be issued,with special conditions if appropriate, or denied. In reaching a decision toissue, he must determine that the work involved is not contrary to the publicinterest, and if section 404 is applicable, that the work also complies withthe Environmental Protection Agency's section 404(b)(1) guidelines. If hedetermines that a denial is warranted, his notification of denial shouldprescribe any final corrective actions required. His notification should alsoestablish a reasonable period of time for the applicant to complete suchactions unless he determines that further information is required before thecorrective measures can be specified. If further information is required, thefinal corrective measures may be specified at a later date. If an applicantrefuses to undertake prescribed corrective actions ordered subsequent to permitdenial or refuses to accept a conditioned permit, the district engineer mayinitiate legal action in accordance with Section 326.5.

6. Combining steps. The procedural steps in this section are in thenormal sequence. However, these regulations do not prohibit the streamlining ofthe enforcement process through the combining of steps.

7. Coordination with EPA. In all cases where the district engineer isaware that EPA is considering enforcement action, he should coordinate with EPAto attempt to avoid conflict or duplication. Such coordination applies tointerim protective measures and after-the-fact permitting, as well as toappropriate legal enforcement actions.

1. Inspections. District engineers will, at their discretion, takereasonable measures to inspect permitted activities, as required, to ensurethat these activities comply with specified terms and conditions. Tosupplement inspections by their enforcement personnel, district engineersshould encourage their other personnel; members of the public; and interestedstate, local, and other Federal agency representatives to report suspectedviolations of Corps permits. To facilitate inspections, district engineerswill, in appropriate cases, require that copies of ENG Form 4336 be postedconspicuously at the sites of authorized activities and will make available toall interested persons information on the terms and conditions of issuedpermits. The U.S. Coast Guard will inspect permitted ocean dumping activitiespursuant to section 107(c) of the Marine Protection, Research and SanctuariesAct of 1972, as amended.

2. Inspection limitations. Section 326.4 does not establish anon-discretionary duty to inspect permitted activities for safety, soundengineering practices, or interference with other permitted or unpermittedstructures or uses in the area. Further, the regulations implementing the Corpsregulatory program do not establish a non-discretionary duty to inspectpermitted activities for any other purpose.

3. Inspection expenses. The expenses incurred in connection with theinspection of permitted activities will normally be paid by the FederalGovernment unless daily supervision or other unusual expenses are involved. Insuch unusual cases, the district engineer may condition permits to requirepermittees to pay inspection expenses pursuant to the authority contained inSection 9701 of Pub L. 97-258 (33 U.S.C. 9701). The collection and dispositionof inspection expense funds obtained from applicants will be administered inaccordance with the relevant Corps regulations governing such funds.

4. Non-compliance. If a district engineer determines that a permitteehas violated the terms or conditions of the permit and that the violation issufficiently serious to require an enforcement action, then he should, unlessat his discretion he deems it inappropriate:
   1. First contact the permittee;
   2. request corrected plans reflecting actual work, if needed; and
   3. attemptto resolve the violation. Resolution of the violation may take the form of thepermitted project being voluntarily brought into compliance or of a permitmodification (33 CFR 325.7(b)).

   If a mutually agreeable solution cannot bereached, a written order requiring compliance should normally be issued anddelivered by personal service. Issuance of an order is not, however, aprerequisite to legal action. If an order is issued, it will specify a timeperiod of not more than 30 days for bringing the permitted project intocompliance, and a copy will be sent to the appropriate state official pursuantto section 404(s)(2) of the Clean Water Act. If the permittee fails to complywith the order within the specified period of time, the district engineer mayconsider using the suspension/revocation procedures in 33 CFR 325.7(c) and/orhe may recommend legal action in accordance with Section 326.5.

1. General. For cases the district engineer determines to beappropriate, he will recommend criminal or civil actions to obtain penaltiesfor violations, compliance with the orders and directives he has issuedpursuant to Section 326.3 and 326.4, or other relief as appropriate.Appropriate cases for criminal or civil action include, but are not limited to,violations which, in the district engineer's opinion, are willful, repeated,flagrant, or of substantial impact.

2. Preparation of case. If the district engineer determines that legalaction is appropriate, he will prepare a litigation report or such otherdocumentation that he and the local U.S. Attorney have mutually agreed to,which contains an analysis of the information obtained during his investigationof the violation or during the processing of a permit application and arecommendation of appropriate legal action. The litigation report oralternative documentation will also recommend what, if any, restoration ormitigative measures are required and will provide the rationale for any suchrecommendation.

3. Referral to the local U.S. Attorney. Except as provided inparagraph (d) of this section, district engineers are authorized to refercases directly to the U.S. Attorney. Because of the unique legal system in theTrust Territories, all cases over which the Department of Justice has noauthority will be referred to the Attorney General for the trust Territories.Information copies of all letters of referral shall be forwarded to theappropriate division counsel, the Office, Chief of Engineers, ATTN: DAEN-CCK,the Office of the Assistant Secretary of the Army (Civil Works), and the Chiefof the Environmental Defense Section, Lands and Natural Resources Division,U.S. Department of Justice.

4. Referral to the Office, Chief of Engineers. District engineers willforward litigation reports with recommendations through division offices tothe Office, Chief of Engineers, ATTN: DAEN-CCK, for all cases that qualifyunder the following criteria:
   1. Significant precedential or controversial questions of law or fact;
   2. Requests for elevation to the Washington level by the Department ofJustice;
   3. Violations of section 9 of the Rivers and Harbors Act of 1899;
   4. Violations of section 103 the Marine Protection, Research andSanctuaries Act of 1972;
   5. All cases involving violations by American Indians (original oflitigation report to DAEN-CCI with copy to DAEN-CCK) on reservation lands or inpursuit of specific treaty rights;
   6. All cases involving violations by officials acting on behalf offoreign governments; and
   7. Cases requiring action pursuant to paragraph (e) of this section.

5. Legal option not available. In cases where the local U.S. Attorneydeclines to take legal action, it would be appropriate for the districtengineer to close the enforcement case record unless he believes that the casewarrants special attention. In that situation, he is encouraged to forward alitigation report to the Office, Chief of Engineers, ATTN: DAEN-CCK, for directcoordination through the Office of the Assistant Secretary of the Army (CivilWorks) with the Department of Justice. Further, the case record should not beclosed if the district engineer anticipates that further administrativeenforcement actions, taken in accordance with the procedures prescribed in thispart, will identify remedial measures which, if not complied with by theparties responsible for the violation, will result in appropriate legal actionat a later date.

1. Introduction.
   1. This subpart sets forth procedures for initiation andadministration of Class I administrative penalty orders underSection 309 (g) of the Clean Water Act, and Section 205 of theNational Fishing Enhancement Act. Section 309 (g)(2)(A) specifiesthat Class I civil penalties may not exceed $10,000 per violation,except that the maximum amount of any Class I civil penalty shallnot exceed $25,000. The National Fishing Enhancement Act, Section205 (e), provides that penalties for violations of permits issuedin accordance with that Act shall not exceed $10,000 for eachviolation.

   2. These procedures supplement the existing enforcementprocedures at Sections 326.1 through 326.5. However, as a matterof Corps enforcement discretion once the Corps decides to proceedwith an administrative penalty under these procedures it shall notsubsequently pursue judicial action pursuant to section 326.5. Therefore, an administrative penalty should not be pursued if asubsequent judicial action for civil penalties is desired. Anadministrative civil penalty may be pursued in conjunction with acompliance order; request for restoration and/or request formitigation issued under section 326.4.

   3. Definitions. For the purposes of this section of theregulation:
      1. "Corps" means the Secretary of the Army, actingthrough the U.S. Army Corps of Engineers, with respect to thematters covered by this regulation.
      2. "Interested person outside the Corps" includes thepermittee, any person who filed written comments on the proposedpenalty order, and any other person not employed by the Corps withan interest in the subject of proposed penalty order, and anyattorney of record for those persons.
      3. "Interested Corps staff" means those Corpsemployees, whether temporary or permanent, who may investigate,litigate, or present evidence, arguments, or the position of theCorps in the hearing or who participated in the preparation,investigation or deliberations concerning the proposed penaltyorder, including any employee, contractor, or consultant who maybe called as a witness.
      4. "Permittee" means the person to whom the Corpsissued a permit under Section 404 of the Clean Water Act, (orSection 10 of the Rivers and Harbors Act for an Artificial Reef)the conditions and limitations of which permit have allegedly beenviolated.
      5. "Presiding Officer" means a member of Corps Counselstaff or any other qualified person designated by the DistrictEngineer (DE), to hold a hearing on a proposed administrativecivil penalty order [hereinafter referred to as "proposed order"]in accordance with the rules set forth in this regulation and tomake such recommendations to the DE as prescribed in thisregulation.
      6. "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 theCorps or the interested Corps staff, which was not originallyfiled or stated in the administrative record or in the hearing. Such communication is not an "ex parte communication" if allparties have received prior written notice of the proposedcommunication and have been given the opportunity to participateherein.

2. Initiation of Action.
   1. If the DE or a delegatee of the DE finds that a recipientof a Department of the Army permit [hereinafter referred to as"the permittee"] has violated any permit condition or limitationcontained in that permit, the DE is authorized to prepare andprocess a proposed order in accordance with these procedures. Theproposed order shall specify the amount of the penalty which thepermittee may be assessed and shall describe with reasonablespecificity 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 andwill be advised of the right to request a hearing and to presentevidence on the alleged violation. Notice to the permittee willbe provided by certified mail, return receipt requested, or othernotice, at the discretion of the DE when he determines justice sorequires. This notice will be accompanied by a copy of theproposed order, and will include the following information:
      1. A description of the alleged violation and copies ofthe applicable law and regulations;
      2. An explanation of the authority to initiate theproceeding;
      3. An explanation, in general terms, of the procedurefor assessing civil penalties, including opportunities for publicparticipation;
      4. A statement of the amount of the penalty that isproposed and a statement of the maximum amount of the penaltywhich the DE is authorized to assess for the violations alleged;
      5. A statement that the permittee may within 30calendar days of receipt of the notice provided under thissubparagraph, request a hearing prior to issuance of any finalorder. Further, that the permittee must request a hearing within30 calendar days of receipt of the notice provided under thissubparagraph in order to be entitled to receive such a hearing;
      6. The name and address of the person to whom thepermittee must send a request for hearing;
      7. Notification that the DE may issue the final orderon or after 30 calendar days following receipt of the noticeprovided under these rules, if the permittee does not request ahearing; and
      8. An explanation that any final order issued underthis subpart shall become effective 30 calendar days following itsissuance unless a petition to set aside the order and to hold ahearing is filed by a person who commented on the proposed orderand such petition is granted or an appeal is taken under Section309 (g) (8) of the Clean Water Act.

   3. At the same time that actual notice is provided to thepermittee, the DE shall give public notice of the proposed order,and provide reasonable opportunity for public comment on theproposed order, prior to issuing a final order assessing anadministrative civil penalty. Procedures for giving public noticeand providing the opportunity for public comment are contained insection 326.6 (c).

   4. At the same time that actual notice is provided to thepermittee, the DE shall provide actual notice, in writing, to theappropriate state agency for the state in which the violationoccurred. Procedures for providing actual notice to andconsulting with the appropriate state agency are contained insection 326.6 (d).

3. Public Notice and Comment.
   1. At the same time the permittee and the appropriate stateagency are provided actual notice, the DE shall provide publicnotice of and a reasonable opportunity to comment on the DE'sproposal to issue an administrative civil penalty against thepermittee.

   2. A 30 day public comment period shall be provided. Anyperson may submit written comments on the proposed administrativepenalty order. The DE shall include all written comments in anadministrative record relating to the proposed order. Any personwho comments on a proposed order shall be given notice of anyhearing held on the proposed order. Such persons shall have areasonable opportunity to be heard and to present evidence in suchhearings.

   3. If no hearing is requested by the permittee, any personwho has submitted comments on the proposed order shall be givennotice by the DE of any final order issued, and will be given 30calendar days in which to petition the DE to set aside the orderand to provide a hearing on the penalty. The DE shall set asidethe order and provide a hearing in accordance with these rules ifthe evidence presented by the commenter in support of thecommenter's petition for a hearing is material and was notconsidered when the order was issued. If the DE denies a hearing,the DE shall provide notice to the commenter filing the petitionfor the hearing, together with the reasons for the denial. Noticeof the denial and the reasons for the denial shall be published inthe Federal Register by the DE.

   4. The DE shall give public notice by mailing a copy of theinformation listed in subparagraph (5) to:
      1. any person who requests notice;
      2. other persons on a mailing list developed to include some or all of the following sources:
         1. persons who request in writing to be on the list;
         2. persons on "area lists" developed from lists ofparticipants in past similar proceedings in that area, includinghearings or other actions related to section 404 permit issuanceas required by section 325.3 (d) (1).
         The DE may update themailing list from time to time by requesting written indication ofcontinued interest from those listed. The DE may delete from thelist the name of any person who fails to respond to such arequest.

   5. All public notices under this subpart shall contain at aminimum the information provided to the permittee as described insection 326.6 (b) (2) and:
      1. A statement of the opportunity to submit writtencomments on the proposed order and the deadline for submission ofsuch comments;
      2. Any procedures through which the public may comment on or participate in proceedings to reach a final decisionon the order;
      3. The location of the administrative recordreferenced in section 326.6 (e), the times at which theadministrative record will be available for public inspection, anda statement that all information submitted by the permittee andpersons commenting on the proposed order is available as part ofthe administrative record, subject to provisions of lawrestricting the public disclosure of confidential information.

4. State Consultation.
   1. At the same time that the permittee is provided actualnotice, the DE shall send the appropriate state agency writtennotice of proposal to issue an administrative civil penalty order. This notice will include the same information required pursuant tosection 326.6 (c) (5).

   2. For the purposes of this regulation, the appropriateState agency will be the agency administering the 401certification program, unless another state agency is agreed to bythe District and the respective state through formal/informalagreement with the state.

   3. The appropriate state agency will be provided the sameopportunity to comment on the proposed order and participate inany hearing that is provided pursuant to section 326.6 (c).

5. Availability of the Administrative Record.
   1. At any time after the public notice of a proposed penaltyorder is given under section 326.6 (c), the DE shall makeavailable the administrative record at reasonable times forinspection and copying by any interested person, subject toprovisions of law restricting the public disclosure ofconfidential information. Any person requesting copies of theadministrative record or portions of the administrative record maybe required by the DE to pay reasonable charges for reproducingthe information requested.

   2. The administrative record shall include the following:
      1. Documentation relied on by the DE to support theviolations alleged in the proposed penalty order with a summary ofviolations, if a summary has been prepared;
      2. Proposed penalty order or assessment notice;
      3. Public notice of the proposed order with evidenceof notice to the permittee and to the public;
      4. Comments by the permittee and/or the public on theproposed penalty order, including any requests for a hearing;
      5. All orders or notices of the Presiding Officer;
      6. Subpoenas issued, if any, for the attendance andtestimony of witnesses and the production of relevant papers,books, or documents in connection with any hearings;
      7. All submittals or responses of any persons orcomments to the proceeding, including exhibits, if any;
      8. A complete and accurate record or transcriptionof any hearing;
      9. The recommended decision of the Presiding Officerand final decision and/or order of the Corps issued by the DE; and
      10. Any other appropriate documents related to theadministrative proceeding;

6. Counsel. A permittee may be represented at all stages of the proceedingby counsel. After receiving notification that a permittee or anyother party or commenter is represented by counsel, the PresidingOfficer and DE shall direct all further communications to thatcounsel.

7. Opportunity for Hearing.
   1. The permittee may request a hearing and may providewritten comments on the proposed administrative penalty order atany time within 30 calendar days after receipt of the notice setforth in section 326.6 (b) (2). The permittee must request thehearing in writing, specifying in summary form the factual andlegal issues which are in dispute and the specific factual andlegal grounds for the permittee's defense.

   2. The permittee waives the right to a hearing to presentevidence on the alleged violation or violations if the permitteedoes not submit the request for the hearing to the officialdesignated in the notice of the proposed order within 30 calendardays of receipt of the notice. The DE shall determine the date ofreceipt of notice by permittee's signed and dated return receiptor such other evidence that constitutes proof of actual notice ona certain date.

   3. The DE shall promptly schedule requested hearings andprovide reasonable notice of the hearing schedule to allparticipants, except that no hearing shall be scheduled prior tothe end of the thirty day public comment period provided insection 326.6 (c) (2). The DE may grant any delays orcontinuances necessary or desirable to resolve the case fairly.

   4. The hearing shall be held at the district office or alocation chosen by the DE, except the permittee may request inwriting upon a showing of good cause that the hearing be held atan alternative location. Action on such request is at thediscretion of the DE.

8. Hearing.
   1. Hearings shall afford permittees with an opportunity topresent evidence on alleged violations and shall be informal,adjudicatory hearings and shall not be subject to section 554 or556 of the Administrative Procedure Act. Permittees may presentevidence either orally or in written form in accordance with thehearing procedures specified in section 326.6 (i).

   2. The DE shall give written notice of any hearing to beheld under these rules to any person who commented on the proposedadministrative penalty order under section 326.6 (c). This noticeshall specify a reasonable time prior to the hearing within whichthe commenter may request an opportunity to be heard and topresent oral evidence or to make comments in writing in any suchhearing. The notice shall require that any such request specifythe facts or issues which the commenter wishes to address. Anycommenter who files comments pursuant to section 326.6 (c) (2)shall have a right to be heard and to present evidence at thehearing in conformance with these procedures.

   3. The DE shall select a member of the Corps counsel staffor other qualified person to serve as Presiding Officer of thehearing. The Presiding Officer shall exercise no otherresponsibility, direct or supervisory, for the investigation orprosecution of any case before him. The Presiding Officer shallconduct hearings as specified by these rules and make arecommended decision to the DE.

   4. The Presiding Officer shall consider each case on thebasis of the evidence presented, and must have no prior connectionwith the case. The Presiding Officer is solely responsible forthe recommended decision in each case.

   5. Ex Parte Communications:
      1. No interested person outside the Corps or member ofthe interested Corps staff shall make, or knowingly cause to bemade, any ex parte communication on the merits of the proceeding.
      2. The Presiding Officer shall not make, or knowinglycause to be made, any ex parte communication on the proceeding toany interested person outside the Corps or to any member of theinterested Corps staff.
      3. The DE may replace the Presiding Officer in anyproceeding in which it is demonstrated to the DE's satisfactionthat the Presiding Officer has engaged in prohibited ex partecommunications to the prejudice of any participant.
      4. Whenever an ex parte communication in violation ofthis section is received by the Presiding Officer or made known tothe Presiding Officer, the Presiding Officer shall immediatelynotify all participants in the proceeding of the circumstances andsubstance of the communication and may require the person who madethe communication or caused it to be made, or the party whoserepresentative made the communication or caused it to be made, tothe extent consistent with justice and the policies of the CleanWater Act, to show cause why that person or party's claim orinterest in the proceedings should not be dismissed, denied,disregarded, or otherwise adversely affected on account of suchviolation.
      5. The prohibitions of this paragraph apply upondesignation of the Presiding Officer and terminate on the date offinal action or the final order.

9. Hearing Procedures.
   1. The Presiding Officer shall conduct a fair and impartialproceeding in which the participants are given a reasonableopportunity to present evidence.

   2. The Presiding Officer may subpoena witnesses and issuesubpoenas for documents pursuant to the provisions of the CleanWater Act.

   3. The Presiding Officer shall provide interested parties areasonable opportunity to be heard and to present evidence. Interested parties include the permittee, any person who filed arequest to participate under 33 CFR 326.6 (c), and any otherperson attending the hearing. The Presiding Officer may establishreasonable time limits for oral testimony.

   4. The permittee may not challenge the permit condition orlimitation which is the subject matter of the administrativepenalty order.

   5. Prior to the commencement of the hearing, the DE shallprovide to the Presiding Officer the complete administrativerecord as of that date. During the hearing, the DE, or anauthorized representative of the DE may summarize the basis forthe proposed administrative order. Thereafter, the administrativerecord shall be admitted into evidence and the Presiding Officershall maintain the administrative record of the proceedings andshall include in that record all documentary evidence, writtenstatements, correspondence, the record of hearing, and any otherrelevant matter.

   6. The Presiding Officer shall cause a tape recording, written transcript or other permanent, verbatim record of thehearing to be made, which shall be included in the administrativerecord, and shall, upon written request, be made available, forinspection or copying, to the permittee or any person, subject toprovisions of law restricting the public disclosure ofconfidential information. Any person making a request may berequired to pay reasonable charges for copies of theadministrative record or portions thereof.

   7. In receiving evidence, the Presiding Officer is not boundby strict rules of evidence. The Presiding Officer may determinethe weight to be accorded the evidence.

   8. The permittee has the right to examine, and to respond tothe administrative record. The permittee may offer into evidence,in written form or through oral testimony, a response to theadministrative record including, any facts, statements,explanations, documents, testimony, or other exculpatory itemswhich bear on any appropriate issues. The Presiding Officer mayquestion the permittee and require the authentication of anywritten exhibit or statement. The Presiding Officer may excludeany repetitive or irrelevant matter.

   9. At the close of the permittee's presentation of evidence,the Presiding Officer should allow the introduction of rebuttalevidence. The Presiding Officer may allow the permittee torespond to any such rebuttal evidence submitted and tocross-examine any witness.

   10. The Presiding Officer may take official notice ofmatters that are not reasonably in dispute and are commonly knownin the community or are ascertainable from readily availablesources of known accuracy. Prior to taking official notice of amatter, the Presiding Officer shall give the Corps and thepermittee an opportunity to show why such notice should not betaken. In any case in which official notice is taken, thePresiding Officer shall place a written statement of the mattersas to which such notice was taken in the record, including thebasis for such notice and a statement that the Corps or permitteeconsented to such notice being taken or a summary of theobjections of the Corps or the permittee.

   11. After all evidence has been presented, any participantmay present argument on any relevant issue, subject to reasonabletime limitations set at the discretion of the Presiding Officer.

   12. The hearing record shall remain open for a period of 10business days from the date of the hearing so that the permitteeor any person who has submitted comments on the proposed order mayexamine and submit responses for the record.

   13. At the close of this 10 business day period, thePresiding Officer may allow the introduction of rebuttal evidence. The Presiding Officer may hold the record open for an additionalten business days to allow the presentation of such rebuttalevidence.

10. The Decision.
    1. Within a reasonable time following the close of thehearing and receipt of any statements following the hearing andafter consultation with the state pursuant to section 326.6 (d),the Presiding Officer shall forward a recommended decisionaccompanied by a written statement of reasons to the DE. Thedecision shall recommend that the DE withdraw, issue, or modifyand issue the proposed order as a final order. The recommendeddecision shall be based on a preponderance of the evidence in theadministrative record. If the Presiding Officer finds that thereis not a preponderance of evidence in the record to support thepenalty or the amount of the penalty in a proposed order, thePresiding Officer may recommend that the order be withdrawn ormodified and then issued on terms that are supported by apreponderance of evidence on the record. The Presiding Officeralso shall make the complete administrative record available tothe DE for review.

    2. The Presiding Officer's recommended decision to the DEshall become part of the administrative record and shall be madeavailable to the parties to the proceeding at the time the DE'sdecision is released pursuant to section 326.6 (j) (5). ThePresiding Officer's recommended decision shall not become part ofthe administrative record until the DE's final decision is issued,and shall not be made available to the permittee or public priorto that time.

    3. The rules applicable to Presiding Officers under section326.6 (h) (5) regarding ex parte communications are alsoapplicable to the DE and to any person who advises the DE on thedecision or the order, except that communications between the DEand the Presiding Officer do not constitute ex partecommunications, nor do communications between the DE and his staffprior to issuance of the proposed order.

    4. The DE may request additional information on specifiedissues from the participants, in whatever form the DE designates,giving all participants a fair opportunity to be heard on suchadditional matters. The DE shall include this additionalinformation in the administrative record.

    5. Within a reasonable time following receipt of thePresiding 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 theevidence in the administrative record, shall consider the penaltyfactors set out in Section 309 (g) (3) of the CWA, shall be inwriting, shall include a clear and concise statement of reasonsfor the decision, and shall include any final order assessing apenalty. The DE's decision, once issued, shall constitute finalCorps 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 certifiedmail. Issuance of the order under this subparagraph constitutesfinal 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 toevery person who submitted written comments on the proposed order.

    8. The notice shall include a statement of the right tojudicial review and of the procedures and deadlines for obtainingjudicial review. The notice shall also note the right of acommenter to petition for a hearing pursuant to 33 CFR 326.6(c)(3) if no hearing was previously held.

11. Effective Date of Order.
    1. Any final order issued under this subpart shall becomeeffective 30 calendar days following its issuance unless an appealis 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 daysafter the final order is issued, the DE shall:
       1. Review the evidence presented by the petitioner.
       2. If the evidence is material and was not consideredin the issuance of the order, the DE shall immediately set asidethe final order and schedule a hearing. In that case, a hearingwill be held, a new recommendation will be made by the PresidingOfficer to the DE and a new final decision issued by the DE.
       3. If the DE denies a hearing under thissubparagraph, the DE shall provide to the petitioner, and publishin the Federal Register, notice of, and the reasons for, suchdenial.

12. Judicial Review.
    1. Any permittee against whom a final order assessing acivil penalty under these regulations or any person who providedwritten comments on a proposed order may obtain judicial review ofthe final order.

    2. In order to obtain judicial review, the permittee orcommenter must file a notice of appeal in the United StatesDistrict Court for either the District of Columbia, or thedistrict in which the violation was alleged to have occurred,within 30 calendar days after the date of issuance of the finalorder.

    3. Simultaneously with the filing of the notice of appeal,the permittee or commenter must send a copy of such notice bycertified mail to the DE and the Attorney General.