96-26944. Civil Enforcement Proceedings: Opportunity for an In-Person Hearing  

  • [Federal Register Volume 61, Number 205 (Tuesday, October 22, 1996)]
    [Rules and Regulations]
    [Pages 54729-54731]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 96-26944]
    
    
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    DEPARTMENT OF COMMERCE
    
    National Oceanic and Atmospheric Administration
    
    15 CFR Part 904
    
    [Docket No. 961004279-6279-01; I.D. 111695A]
    RIN 0648-AI53
    
    
    Civil Enforcement Proceedings: Opportunity for an In-Person 
    Hearing
    
    AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
    Commerce.
    
    ACTION: Final rule.
    
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    SUMMARY: NOAA is amending procedural regulations that govern civil 
    administrative enforcement proceedings that it conducts. Necessitated 
    by the Oceans Act of 1992, these regulatory amendments ensure the 
    opportunity for an in-person hearing in administrative enforcement 
    proceedings conducted by NOAA.
    
    
    [[Page 54730]]
    
    
    EFFECTIVE DATE: October 22, 1996.
    
    FOR FURTHER INFORMATION CONTACT: Joel La Bissonniere, (301) 427-2202.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        The Secretary of Commerce (Secretary), through NOAA, is responsible 
    for enforcing a broad array of Federal statutes that protect living 
    marine resources, including the Magnuson Fishery Conservation and 
    Management Act, the Endangered Species Act (ESA), and the Marine Mammal 
    Protection Act. In addition to criminal and forfeiture provisions, 
    these statutes authorize NOAA to administratively assess civil 
    penalties, including monetary fines and permit sanctions.
        Under each of these statutes, entities that are accused of 
    violations (respondents) are afforded the opportunity for a hearing. At 
    this hearing, the respondent may challenge either the violations 
    alleged or the penalty assessed.
        NOAA has implemented extensive procedural regulations that govern 
    these administrative hearings (see 15 CFR part 904). Under these 
    regulations, once a violation has been documented, NOAA may issue a 
    Notice of Violation and Assessment (NOVA) (see 15 CFR 904.101). This 
    charging document identifies the respondent, the violation committed, 
    and the penalty assessed. Once charged, a respondent may request an 
    administrative hearing on the NOVA. This hearing, which ordinarily is 
    held in-person before an administrative law judge (Judge), allows a 
    respondent to present evidence challenging either the charges alleged 
    or the penalty assessed.
        Under the existing regulatory scheme, the opportunity for an in-
    person administrative hearing is qualified. The Judge may dispense with 
    an in-person hearing if the Judge believes that it is more appropriate 
    to resolve the proceeding by summary decision (see 15 CFR 904.210), or 
    through the submission of affidavits and other written materials (see 
    15 CFR 904.250(c)). Additionally, the Judge may deny the opportunity 
    for an administrative hearing as a sanction for failing to prosecute or 
    defend a case in a timely manner, (see 15 CFR 904.212), or for failing 
    to obey an order concerning discovery (see 15 CFR 904.240(f)(5)-(6)).
        Congress has voiced concerns over whether Judges have used these 
    procedural regulations wrongfully to deny in-person hearings to 
    respondents. Concerns were based upon past administrative enforcement 
    proceedings involving shrimp fishermen accused of failing to use a 
    turtle excluder device in violation of the ESA. Believing that some of 
    these cases were appropriate for summary decision under 15 CFR 904.210, 
    a Judge refused to provide an in-person hearing, unless the respondent 
    was able to show a genuine dispute as to a material fact. In the view 
    of Congress, failure to provide an in-person hearing may violate the 
    ESA and a respondent's due process rights under the Fifth Amendment of 
    the U.S. Constitution.
        Congress addressed these concerns in the Oceans Act of 1992, Pubic 
    Law No. 102-587, Section 5218, 106 Stat. 5039 (Oceans Act). Under this 
    section of the Oceans Act, Congress directed the Coast Guard and the 
    Secretary to enter into a Memorandum of Agreement (MOA) regarding 
    fisheries enforcement practices and procedures that provides, at a 
    minimum, ``for the opportunity, if timely requested, to appear in 
    person to respond to charges of violation of law or regulation when the 
    opportunity for a hearing is granted by statute.''
        By enacting this provision, Congress called upon NOAA to establish 
    procedures that ``facilitate the appearance of individuals at hearings 
    rather than setting up barriers to these appearances.'' H.R. Rep. No. 
    564, 102nd Cong., 19 (1992). To that end, a hearing request should be 
    construed as a request for an in-person hearing, not simply a request 
    to have the record reviewed by a Judge. Even in the absence of disputed 
    facts, an in-person hearing should be provided so that a respondent may 
    present his side of the story and any extenuating circumstances that 
    properly relate to the proposed penalty. Id.
        In compliance with this statutory mandate, NOAA and the Coast Guard 
    executed a MOA in July 1993. This MOA is an addendum to an existing 
    interagency agreement relating to joint fisheries enforcement practices 
    and procedures. The MOA provides that individuals charged with 
    violating Federal fisheries laws shall be informed of their rights when 
    their case is processed. These rights include the opportunity, if 
    timely requested, to an in-person hearing when the opportunity for a 
    hearing is provided for by statute.
        In addition to developing this MOA, and consistent with the intent 
    of Congress, NOAA is now amending agency procedural regulations that 
    govern administrative enforcement proceedings. With these amendments, 
    NOAA seeks to ensure that respondents who file a timely request are 
    provided with the opportunity for an in-person hearing.
    
    Summary Decision
    
        Under the current regulatory scheme, respondents may involuntarily 
    lose their opportunity for an in-person hearing if the proceeding is 
    resolved by summary decision. Section 904.210 presently authorizes the 
    Judge to render a decision without a hearing if there is no genuine 
    issue as to a material fact and a party is entitled to a summary 
    decision as a matter of law. A summary decision may be requested by any 
    party to the proceeding, or ordered by the Judge if deemed appropriate. 
    The decision to dispose of a case by way of summary disposition rests 
    exclusively with the discretion of the Judge.
        In response to concerns expressed by Congress, NOAA is amending 
    this provision. As amended, the Judge may dispose of all or part of a 
    proceeding by way of summary decision only if each and every party to 
    the proceeding concurs. If any party to the proceeding objects, summary 
    decision is unavailable, notwithstanding the absence of any genuine 
    issue concerning any material fact. By requiring unanimous concurrence, 
    the opportunity for an in-person hearing cannot be lost, unless 
    voluntarily waived by a respondent.
    
    Dismissal for Failure to Defend
    
        Respondents also may lose their opportunity for an in-person 
    hearing if they fail to proceed properly with their defense (see 15 CFR 
    904.212). Failure to defend may occur if a respondent fails to file 
    documents, fails to comply with orders issued by the Judge, or 
    indicates in any other manner an intention to terminate participation 
    in the proceeding. In such instances, the Judge is authorized to issue 
    any order that will facilitate resolution of the case, including 
    dismissing the case or rendering a final decision adverse to the 
    respondent.
        In light of the Oceans Act, NOAA is amending this provision. As 
    amended, if a respondent fails to participate as required by these 
    regulations, the Judge may issue any order that will facilitate 
    resolution, except an order which dismisses the case. This amendment 
    prevents the Judge from denying a respondent an in-person hearing for 
    failing to timely defend, or otherwise comply with any order issued by 
    the Judge.
        Notwithstanding this amendment, NOAA recognizes that justice is 
    poorly served unless respondents properly pursue their claims. 
    Respondents that timely request a hearing, but subsequently fail to 
    file documents, comply with judicial orders, or advance
    
    [[Page 54731]]
    
    their defense in any way, squander valuable and limited agency 
    resources, and frustrate implicit statutory goals. The administration 
    of justice necessitates regulations that vest judges with the authority 
    to secure compliance with procedural requirements, and the authority to 
    expeditiously conclude proceedings that are abandoned by a respondent.
        Accordingly, as amended, Sec. 904.212 permits the Judge to fashion 
    any order, short of dismissal, that may be appropriate in the event a 
    party fails to participate as required by these regulations. Such order 
    may include, but is not limited to, sanctions consistent with those set 
    forth in Sec. 904.240(f).
    
    Discovery Sanctions
    
        Under Sec. 904.240(f), the opportunity for a hearing also may be 
    forfeited if a respondent fails to comply with discovery that is 
    ordered by the Judge. Separate and apart from the authority found at 
    Sec. 904.212, the Judge may impose a wide array of sanctions for 
    failure to obey any subpoena or order concerning discovery. Sanctions 
    include striking all or part of a pleading (including a hearing 
    request) (see 15 CFR 904.240(f)(5)), and rendering a decision of the 
    proceeding against a party (see 15 CFR 904.240(f)(6)).
        Consistent with the intent of Congress as set forth in the Oceans 
    Act, NOAA is amending this provision. Under this amendment, the Judge 
    may strike any pleading (except a hearing request), motion, or other 
    submission concerning any matter covered by a subpoena or order defied 
    by a respondent. Section 904.240(f)(6) is deleted entirely. The effect 
    of these changes is that a respondent cannot be denied an in-person 
    hearing as a sanction for failing to comply with a subpoena or order 
    concerning discovery.
        As with respondents who fail to pursue their claims, NOAA 
    understands the need for effective sanctions that will ensure 
    compliance with prehearing discovery requirements. To that end, all 
    other sanctions set forth in Sec. 904.240(f) remain in effect and may 
    be used to penalize respondents that either fail or refuse to obey 
    subpoenas or orders concerning discovery.
    
    Submission of Written Materials
    
        Finally, respondents also may lose the opportunity for an in-person 
    hearing if the Judge believes that the filing of written submissions 
    obviates the need for oral hearing. Pursuant to Sec. 904.250, a Judge 
    may order that all or part of a proceeding be heard on submissions or 
    affidavits, if it appears that all issues of material fact may be 
    resolved by means of written submissions, without the need of oral 
    testimony. Unlike Sec. 904.210, which applies to summary decisions, the 
    Judge may forego an in-person hearing even if material facts are 
    genuinely in dispute. The decision to proceed by way of written 
    submissions rests exclusively with the Judge.
        Consistent with the intent of Congress, NOAA is amending this 
    provision. As amended, the Judge may hear a proceeding by way of 
    written submissions only if acceptable to each party to the proceeding. 
    By requiring the unanimous concurrence of each party to the proceeding, 
    the opportunity for an in-person hearing will not be lost, unless 
    voluntarily waived by a respondent.
    
    Classification
    
        This final rule is a rule of agency procedure, which amends 
    regulations governing civil administrative enforcement proceedings. As 
    such, NOAA finds that pursuant to 5 U.S.C. 553(b)(A), prior notice and 
    opportunity for public comment are not required. Additionally, because 
    notice and opportunity for comment are not required under 5 U.S.C. 553 
    or any other law, there is no need to comply with the provisions of the 
    Regulatory Flexibility Act. 5 U.S.C. 601 et seq.
        Because this is not a substantive rule, it is not subject to the 
    30-day delay in effective date required by 5 U.S.C. 553(d).
    
    List of Subjects in 15 CFR Part 904
    
        Fisheries, Enforcement.
    
        Dated: October 8, 1996.
    Terry D. Garcia,
    General Counsel, National Oceanic and Atmospheric Administration.
        For the reasons set out in the preamble, 15 CFR part 904 is amended 
    as follows:
    
    PART 904--CIVIL PROCEDURES
    
        1. The authority citation for part 904 is revised to read as 
    follows:
    
        Authority: 16 U.S.C. 1801-1882; 16 U.S.C. 1531-1543; 16 U.S.C. 
    1361-1407; 16 U.S.C. 3371-3378; 16 U.S.C. 1431-1439; 16 U.S.C. 773-
    773k; 16 U.S.C. 951-961; 16 U.S.C. 1021-1032; 16 U.S.C. 3631-3644; 
    42 U.S.C. 9101 et seq.; 30 U.S.C. 1401 et seq.; 16 U.S.C. 971-971i; 
    16 U.S.C. 781 et seq.; 16 U.S.C. 2401-2412; 16 U.S.C. 2431-2444; 16 
    U.S.C. 972-972h; 16 U.S.C. 916-916l; 16 U.S.C. 1151-1175; 16 U.S.C. 
    3601-3608; 16 U.S.C. 1851 note; 15 U.S.C. 4201 et seq.; Pub. L. 102-
    587, 106 Stat. 5039.
    
        2. Section 904.210 is revised to read as follows:
    
    
    Sec. 904.210  Summary decision.
    
        The Judge may render a summary decision disposing of all or part of 
    the proceeding if:
        (a) Jointly requested by every party to the proceeding; and
        (b) There is no genuine issue as to any material fact and a party 
    is entitled to summary decision as a matter of law.
        3. Section 904.212 is revised to read as follows:
    
    
    Sec. 904.212  Failure to prosecute or defend.
    
        Whenever the record discloses the failure of either party to file 
    documents, respond to orders or notices from the Judge, or otherwise 
    indicates an intention on the part of either party not to participate 
    further in the proceeding, the Judge may issue any order, except 
    dismissal, that is necessary for the just and expeditious resolution of 
    the case.
        4. Section 904.240 is amended by revising paragraph (f)(5) and 
    removing paragraph (f)(6):
    
    
    Sec. 904.240  Discovery generally.
    
    * * * * *
        (f) * * *
        (5) Strike part or all of a pleading (except a request for 
    hearing), a motion or other submission by the party, concerning the 
    matter or matters covered by the order or subpoena.
        5. Section 904.250 is amended by revising paragraph (c) to read as 
    follows:
    
    
    Sec. 904.250  Notice of time and place of hearing.
    
    * * * * *
        (c) Upon the consent of each party to the proceeding, the Judge may 
    order that all or part of a proceeding be heard on submissions or 
    affidavits if it appears that substantially all important issues may be 
    resolved by means of written materials and that efficient disposition 
    of the proceeding can be made without an in-person hearing. For good 
    cause, the Judge may, in his sole discretion, order that the testimony 
    of witnesses be taken by telephone.
    [FR Doc. 96-26944 Filed 10-21-96; 8:45 am]
    BILLING CODE 3510-22-F
    
    
    

Document Information

Effective Date:
10/22/1996
Published:
10/22/1996
Department:
National Oceanic and Atmospheric Administration
Entry Type:
Rule
Action:
Final rule.
Document Number:
96-26944
Dates:
October 22, 1996.
Pages:
54729-54731 (3 pages)
Docket Numbers:
Docket No. 961004279-6279-01, I.D. 111695A
RINs:
0648-AI53
PDF File:
96-26944.pdf
CFR: (4)
15 CFR 904.210
15 CFR 904.212
15 CFR 904.240
15 CFR 904.250