[Federal Register Volume 60, Number 148 (Wednesday, August 2, 1995)]
[Rules and Regulations]
[Pages 39249-39251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18899]
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DEPARTMENT OF COMMERCE
15 CFR Part 905
[Docket No. 950104002-5188-02; I.D. 061394C]
RIN 0648-AE40
Use in Enforcement Proceedings of Information Collected by
Voluntary Fishery Data Collectors
AGENCY: National Oceanic and Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
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SUMMARY: The Secretary of Commerce (Secretary), through NOAA, publishes
this final rule restricting the use of information collected by
voluntary fishery data collectors (VFDC). This rule limits the extent
to which such information can be used in civil and criminal enforcement
proceedings conducted pursuant to the Magnuson Fishery Conservation and
Management Act (Magnuson Act), the Endangered Species Act (ESA), and
the Marine Mammal Protection Act (MMPA). In implementing these
regulations, NOAA seeks to encourage the use of VFDCs by the fishing
industry, while protecting the necessary use of observer information by
law enforcement personnel.
EFFECTIVE DATE: August 2, 1995.
FOR FURTHER INFORMATION CONTACT: Joel La Bissonniere, (301) 427-2202.
SUPPLEMENTARY INFORMATION: Section 303(f) of the Magnuson Act calls
upon
[[Page 39250]]
the Secretary to issue regulations that restrict, in civil and criminal
enforcement proceedings conducted under the Magnuson Act, MMPA, and
ESA, the use of information collected by VFDCs for conservation and
management purposes while aboard a vessel.
On March 3, 1995, NOAA published a proposed rule in the Federal
Register (60 FR 11947) implementing this statutory mandate. The
proposed rule encouraged industry participation in voluntary observer
programs by limiting the risk of prosecution based upon information
collected by a VFDC. The proposed rule also protected essential law
enforcement activities by allowing the use of VFDC information in
limited circumstances. With this proposed rule, NOAA sought to balance
two equally important methods of conserving and managing living marine
resources: The use of observer data for scientific purposes and for
compliance monitoring.
Under the proposed rule, information collected by a VFDC may not
initially be introduced as evidence by the government against any
consenting owner that is a party to an enforcement proceeding. By
contrast, any party other than the government may introduce such
information, presumably for purposes of establishing innocence. Once
introduced, however, any party including the government may introduce
all other information collected by the VFDC.
The proposed rule provided two exceptions to these general
restrictions. First, the restrictions do not apply to the use of
independent evidence derived from information collected by a VFDC.
Second, the restrictions do not apply in any enforcement proceeding
alleging the assault, intimidation, or harassment of any person, or the
impairment or interference with the duties of a VFDC.
Comments and Responses
Comments on this proposed rule were invited until May 2, 1995. Two
organizations responded: The Center for Marine Conservation (CMC); and
the Manomet Observatory for Conservation and Sciences (Manomet).
Comment: Manomet believes that the restrictions outlined in the
proposed rule will not adequately encourage industry participation with
voluntary observer programs. Rather, industry participation would be
enhanced if NOAA prohibited the use, in any prosecution against a
consenting owner, of information collected by a VFDC.
Response: A total prohibition on the use of VFDC information is
inappropriate for several reasons. First, a total prohibition is
contrary to the plain language of the statute. Section 303(f) of the
Magnuson Act calls for regulations that restrict the use of VFDC
information in enforcement proceedings. The statute does not call for a
total prohibition on the use of VFDC information.
Second, a total prohibition is inconsistent with the larger goals
established by Congress. All three statutes seek to manage and conserve
living marine resources through the acquisition of scientific data and
through effective enforcement. Historically, observers have played a
critical role in facilitating both goals. A total prohibition ignores
the essential role played by enforcement. By restricting the use of
VFDC information, NOAA seeks to balance these important management
tools, providing industry with an incentive to carry voluntary
observers, while protecting the government's ability to use such
information in very limited circumstances.
Third, a total prohibition is constitutionally suspect. In certain
instances, information collected by a VFDC may establish a party's
innocence. Denying a party the right to use VFDC information in a
criminal proceeding might run counter to a party's right to compulsory
process under the Sixth Amendment of the U.S. Constitution.
Comment: Manomet is opposed to the use of VFDC information for
investigative purposes. In a somewhat related comment, CMC supports the
use of independent evidence derived from information collected by
VFDCs.
Response: Consistent with section 303(f) of the Magnuson Act, these
regulations only govern the use of VFDC information in civil and
criminal enforcement proceedings. They do not control the use of VFDC
information for other investigative purposes. Information obtained by
VFDCs may be used for investigative purposes, provided that it is
accessible to enforcement personnel.
These regulations, however, do not expand enforcement's authority
to access information collected by VFDCs. Rather, access to information
collected by VFDCs remains subject to existing statutory, regulatory
and internal agency provisions that govern access to various categories
of information collected by the government.
NOAA supports the use, in enforcement proceedings, of independent
evidence derived from information collected by VFDCs. Absent this
exception, prosecutors might be denied use of relevant evidence, wholly
unrelated to the purposes of part 905, simply because the evidence was
acquired through information collected by a VFDC.
Comment: Manomet believes that information collected by a VFDC
should be admissible if a VFDC, stationed aboard one vessel, observes a
violation that is committed aboard another vessel.
Response: NOAA agrees with this comment. Under these regulations,
information collected by a VFDC may not be introduced by the government
against any consenting party to an enforcement proceeding. A consenting
party is defined to include only the owner, operator, or crewmember of
a vessel carrying a VFDC.
Comment: Manomet believes that NOAA should clarify which observer
programs are entitled to the evidentiary protections afforded by these
regulations. Some uncertainty remains since some programs that are
mandatory in nature, are operated on a voluntary basis. With such
programs, confusion exists as to whether observers are stationed on a
voluntary or mandatory basis.
Response: Pursuant to section 303(f) of the Magnuson Act, NOAA must
implement regulations restricting the use of observer information, when
the observer stationed aboard a vessel is not required by the Magnuson
Act, MMPA, ESA, or implementing regulations. Consistent with this
mandate, these evidentiary restrictions only apply when the observer is
stationed aboard a vessel under a purely voluntary scheme. These
restrictions do not apply to mandatory programs that are operated on a
voluntary basis.
Comment: Manomet supports the government's ability to use
information collected by a VFDC in any enforcement proceeding that
alleges the assault, intimidation, or harassment of an observer.
Response: NOAA agrees with this comment. In fact, these evidentiary
restrictions do not apply in any enforcement proceeding that alleges
the assault, intimidation, or harassment of any person, including a
VFDC. This expansive language is premised upon the view that these
restrictions seek to reduce the risk of prosecution for fishing-related
violations. They are not designed to shield misconduct unrelated to
fishing activities.
Changes From the Proposed Rule
The language of this final rule is identical to the language
contained in the proposed rule that was published on March 3, 1995.
[[Page 39251]]
Classification
This action has been determined to be not significant for the
purposes of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Chief Counsel for Advocacy of
the Small Business Administration that this rule would not have a
significant economic impact on a substantial number of small entities.
The reasons were published along with the proposed rule. As a result, a
regulatory flexibility analysis was not prepared.
List of Subjects in 15 CFR Part 905
Fisheries, Statistics.
Dated: July 26, 1995.
Terry D. Garcia,
General Counsel, National Oceanic and Atmospheric Administration.
For the reasons set out in the preamble, 15 CFR part 905 is added
to read as follows:
PART 905--USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED
BY VOLUNTARY FISHERY DATA COLLECTORS
Sec.
905.1 Scope.
905.2 Definitions.
905.3 Access to information.
905.4 Use of information.
905.5 Exceptions.
Authority: 16 U.S.C. 1853(f).
Sec. 905.1 Scope.
This part applies to the use, in enforcement proceedings conducted
pursuant to the Magnuson Act, the MMPA, and the ESA, of information
collected by voluntary fishery data collectors.
Sec. 905.2 Definitions.
When used in this part:
Consenting owner means the owner, operator, or crewmember of a
vessel carrying a voluntary fishery data collector.
Enforcement proceeding means any judicial or administrative trial
or hearing, initiated for the purpose of imposing any civil or criminal
penalty authorized under the Magnuson Act, MMPA, or ESA, including but
not limited to, any proceeding initiated to: Impose a monetary penalty;
modify, sanction, suspend or revoke a lease, license or permit; secure
forfeiture of seized property; or incarcerate an individual.
ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et
seq., and implementing regulations.
Information means all observations, data, statistics, photographs,
film, or recordings collected by a voluntary fishery data collector for
conservation and management purposes, as defined by the Magnuson Act,
MMPA, or ESA, while onboard the vessel of a consenting owner.
Magnuson Act means the Magnuson Fishery Conservation and Management
Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations.
MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C.
1361 et seq., and implementing regulations.
Secretary means the Secretary of Commerce, the Secretary of the
Interior, their chosen designees, or any other Federal agency
authorized to enforce the provisions of the Magnuson Act, MMPA, or ESA.
Vessel means any vessel as defined at 16 U.S.C. 1802(31).
Voluntary fishery data collector means:
(1) Any person, including an observer or a sea sampler;
(2) Placed aboard a vessel by the Secretary;
(3) For the purpose of collecting information; and
(4) Whose presence aboard that vessel is not required by the
Secretary pursuant to provisions of the Magnuson Act, MMPA, or ESA, or
their implementing regulations.
Sec. 905.3 Access to information.
Information collected by a voluntary fishery data collector:
(a) Is subject to disclosure to both the Secretary and the public,
to the extent required or authorized by law; and
(b) Is subject to discovery by any party to an enforcement
proceeding, to the extent required or authorized by law.
Sec. 905.4 Use of information.
(a) Except as provided for in paragraph (b) of this section,
information collected by a voluntary fishery data collector may not be
introduced by the Secretary as evidence against any consenting owner
that is a party to an enforcement proceeding.
(b) Provided that all applicable evidentiary requirements are
satisfied:
(1) Information collected by a voluntary fishery data collector may
be introduced in an enforcement proceeding by any party except the
Secretary;
(2) If information is introduced pursuant to paragraph (b)(1) of
this section, all information collected by a voluntary fishery data
collector may be introduced by any other party, including the
Secretary.
(c) Independent evidence derived from information collected by a
voluntary fishery data collector may be introduced by any party,
including the Secretary, in an enforcement proceeding.
Sec. 905.5 Exceptions.
The provisions of this part shall not apply in any enforcement
proceeding against a consenting owner that alleges the actual or
attempted:
(a) Assault, intimidation, or harassment (including sexual
harassment) of any person; or
(b) Impairment or interference with the duties of a voluntary
fishery data collector.
[FR Doc. 95-18899 Filed 8-1-95; 8:45 am]
BILLING CODE 3510-22-F
