4

NOAA's Regional General Counsel Offices develop the guidelines

for the fisheries in their regions and submit them for review and approval by headquarters. The guidelines are tailored to the characteristics of the particular regional fisheries, with input from NMFS, Coast Guard, and the relevant Fishery Management

-

Councils. The penalty must be fair, yet provide for sufficient deterrence that is, it must represent more than just a cost of doing business. Ordinarily the guidelines provide the

flexibility necessary to reflect all relevant factors, including those which the Magnuson Act requires to be considered. The single most important factor is the respondent's violation history. Both aggravating and mitigating circumstances, are also factored in, as is the value of the catch and whether or not the catch was seized. NOAA's procedural rules address consideration of a respondent's ability to pay the penalty assessed. See 15 CFR 904.108. The respondent is responsible for supplying the financial information necessary to make this determination. То aid in this purpose, NOAA attorneys provide respondents with simplified financial forms.

Each region also utilizes "summary settlement schedules." For certain minor, first-time violations, the enforcement agent may issue summary settlements to alleged violators based upon lower fixed penalty amounts for specified violations on the "schedule." A person issued a summary settlement form may, within 20 days, elect either to pay the summary settlement amount or to wait for

ATTACHMENT 1

Data Requested by the Committee on the Judiciary
NOAA's Civil Penalty Assessments and

Other Enforcement Actions

During the year beginning July 1, 1991, the following enforcement actions were taken:

1. Violations documented by enforcement officers: 3,020 cases [3,925 counts] [This includes violations documented by all sources: Coast Guard, NMFS, and deputized State officers.]

2. Written warnings issued: 598 cases [811 counts]

[This figure includes written warnings issued by field officers, regional enforcement offices and by NOAA General Counsel enforcement attorneys. It does not include verbal warnings: no records are kept.]

3. Cases referred to NOAA General Counsel for civil penalty prosecution: 1,266 cases

Notices of Violation and Assessment (NOVAs): 770

[1,366 counts]

Notices of Permit Sanction (NOPS) (other than for
nonpayment of penalty): 6 cases

Forfeitures: 36 federal district court cases

236 cases of property forfeited by settlement

Criminal referrals: 95 cases

The data refers to the number of a particular type of enforcement action taken during the period. For instance, while 3020 violations were documented and 598 written warnings issued during this period, the 598 written warnings may include violations documented before July 1, 1991. A "case" may involve more than one violation ("count"). Where appropriate (and data available), the number of both "cases" and "counts" is given.

2

5. Civil penalty cases dismissed or settled without request for hearing:

Cases dismissed or downgraded to warnings, prosecutions 957 cases [1,328 counts]

declined:

[This includes actions taken by either NMFS Enforcement or NOAA GC.]

Cases settled by NOAA GC: 453 cases [695 counts]

6. Number of hearing requests: 299 cases (268 letters of request).

7. Number of hearings held: 43 cases

[The cases involved 56 separate counts and, since the Judge
consolidated some cases for hearing, resulted in 34 written
decisions. Of the hearing requests, 185 cases settled prior
to hearing, 11 were denied as untimely, 44 were dismissed
for cause (generally failure to pursue the action), and 16
were withdrawn by respondent.]

8. Number of cases where penalty proposed in the NOVA sustained by the ALJ: 25 cases (33 counts)

9. Number of cases where penalty proposed in the NOVA was reduced by the ALJ: 14 cases (17 counts)

10. Number of cases where penalty proposed in the NOVA was increased by the ALJ: 1 case (1 counts)

11. Number of cases dismissed by the ALJ: 3 cases (5 counts)

12. Number of cases where the ALJ's decision was overturned by the NOAA Administrator: 25 cases were appealed to the NOAA Administrator. The penalty was sustained in 23 of those cases and reduced in 2. The Administrator also ruled against the Agency in 44 (related) cases, upholding the ALJ's dismissal of those cases with prejudice against the Agency.

10324

Federal Register / Vol. 52, No. 61 / Tuesday, March 31, 1987 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric
Administration

15 CFR Part 904

50 CFR Parts 219 and 621 [Docket No. 41157-6187)

Civil Procedure Regulations

AGENCY: National Oceanic and
Atmospheric Administration (NOAA).
Commerce.

ACTION: Final rule.

SUMMARY: NOAA publishes final
regulations revising and consolidating
its procedures governing administrative
proceedings for the assessment of civil
penalties, for the imposition of permit
sanctions and permit denials for
enforcement-related reasons, for the
review and appeal of written warnings.
and for the release or forfeiture of seized
property. The regulations revise those
published as interim final rules on
December 18, 1981 (46 FR 61644), as
amended on May 10, 1982 (47 FR 19990):
January 6, 1984 (49 FR 1036); January 11,
1984 (49 FR 1464); and April 1, 1985 (50
FR 12781). These revisions will make it
easier for members of the public to use
the regulations.

EFFECTIVE DATE: March 31, 1987.

FOR FURTHER INFORMATION CONTACT.
Linda I. Marks, 202-673-5220.
SUPPLEMENTARY INFORMATION:
Discussion

These regulations revise and
consolidate NOAA's civil procedure
regulations previously published as
interim final rules. The regulations
govern civil penalty, property forfeiture.
and permit sanction proceedings
conducted under the various statutes
NOAA enforces, including the
Magnuson Fishery Conservation and
Management Act, the Lacey Act
Amendments of 1981, the Marine
Mammal Protection Act of 1972, the
Endangered Species Act of 1973, and the
Northern Pacific Halibut Act of 1982.

New Subpart A of Part 904 sets forth the scope of the regulations, defines a number of terms used throughout the Part, and consolidates procedures governing the filing and service of documents that were previously scattered throughout Subparts B through E. "Permit holder" and "vessel owner" are defined and used throughout the regulations; the definitions for "affected permit" and "affected vessel" are deleted since the terms are no longer used. In § 904.3(a) (former

904.100(b)(1)). language was added to

state that service of a document is
effective when mailed to a last-known,
address; in § 904.3(c) (former

904.100(b)(1) and 904.220(d)).
provision is made for service and/or
filing by electronic mail. A provision
was added to § 904.3(e) (former

904.100(b)(2)) to exclude Saturdays,
Sundays, and legal holidays from time
periods less than 11 days. This rule is
identical to Rule 6(a) of the Federal
Rules of Civil Procedure. Former
904.100(d), regarding exceptions to
particular regulations, is removed.
Subpart B sets forth procedures
applicable to civil penalty assessments.
Language was added to § 904.102(e) to
state that NOAA ("Agency") counsel
will promptly forward to the Office of
Administrative Law Judges requests for
hearing. In § 904.105, a clause was
removed concerning when payment of a
penalty is due in situations where the
respondent seeks judicial review.
Section 904.106(b) was revised to
provide that requests to compromise.
modify, remit, or mitigate a penalty
should be sent to Agency counsel. The.
first two sentences of paragraph (c) of
§ 904.106 were removed, as was former
paragraph (d). Section 904.107 is
replaced with a section on joint and
several respondents. In § 904.108,
concerning ability to pay, a requirement
was added to submit financial
information to NOAA counsel 15 days
before a scheduled hearing.

Subpart C governs the conduct of
hearings and appeals. Section 904.202
(Use of gender and number) is removed.
New § 904.202 provides that discovery:
requests and answers need not be filed
with the Administrative Law Judge
(ALJ). In § 904.204 (former § 904.206), a
subsection was added as notice to
respondents that an ALJ has the power
to assess a penalty de novo. Five days
were added to answer motions or other
pleadings, and to reply to answers.
Sections 904.240 through 904.245 were
rewritten to spell out discovery
procedures with more particularity.
However, the primary discovery method
will be a submission on issues ordered
by the ALJ. and parties will have to
apply to the ALJ for all other forms of
discovery. Section 904.250 was amended
to extend the time for notice of hearing
to 20 days. Provision was also made for
testimony to be taken via telephone.
Paragraphs (d) and (e) in § 904.251 are
from former § 904.252, and add the
requirement that a party having
documents translated into English must
provide the opposing party with the
name of the translator. Paragraph (f), on
proof of foreign law, is new and is taken
from the Federal Rules of Civil
Procedure. In & 904.252. a provision is

added that whenever possible. interpreters used at hearings should be certified by the federal courts. Section 904.262 is former § 904.263, and adds paragraph (c) on retention of physical evidence by other than the ALJ. Paragraph (c) was added to § 904.270 (Record of decision) to clarify that posthearing exhibits are not part of the record unless specifically admitted. Section 904.272 (Petition for reconsideration) is the former § 904.261; the time to reply to a petition for reconsideration is increased from 10 to 15 days. Section 904.273 is the former 904.272, with additions. In paragraph (d), a sentence is added specifying that no new evidence may be submitted on review. In paragraph (f), the time to reply was increased from 21 to 30 days. Paragraph (h) was amended to specify that the Administrator, if he grants a petition for review, must allow briefs to be filed before deciding the case. Paragraph (i) was added on service and -the effective date of the Administrator's decision.

Subpart D covers procedures for permit sanctions and denials for enforcement-related reasons. Section 904.306 was deleted due to a revised delegation of authority within NOAA that makes permit sanction proceedings parallel with civil penalty proceedings. This means the ALJ will now issue an Initial Decision, which will be subject to discretionary review by the

Administrator of NOAA. In § 904.322. the standard for interim action was modified to "protect" marine resources instead of to "prevent substantial harm" to the resources.

Subpart E governs the issuance, review, and appeal of written warnings. Section 904.403 (former § 904.420) was amended so that a written warning issued by an enforcement agent may be appealed first to a Regional Attorney, then to the Assistant General Counsel for Enforcement and Litigation (AGC/ EL); however, a written warning issued by a Regional Attorney (or Staff attorney) may be appealed directly to the AGC/EL

Subpart F provides procedures for the disposition of seized property. One revision permits a certified check to be used instead of a bond when a person files a claim for seized property

(§ 904.504(b)(3)(ii)). New § 904.508 is the former Subpart C of 50 CFR Part 219. and governs the disposal of forfeited or abandoned property.

Response to Public Comments

Public comments were received when Subparts D and E were first published in