[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
