[Federal Register Volume 60, Number 42 (Friday, March 3, 1995)]
[Proposed Rules]
[Pages 11947-11950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5221]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 905
[Docket No. 950104002-5002-01; 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: Proposed rule.
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SUMMARY: The Secretary of Commerce (Secretary), through NOAA, is
publishing proposed regulations that would restrict the use of
information collected by voluntary fishery data collectors (VFDC).
These regulations would limit the extent to which such information
could 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 promulgating 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.
DATES: Comments must be submitted by May 2, 1995.
ADDRESSES: Comments may be mailed to the National Oceanic and
Atmospheric Administration, Office of General Counsel, Enforcement and
Litigation Section, 8484 Georgia Avenue, 4th Floor, Silver Spring, MD
20910.
FOR FURTHER INFORMATION CONTACT: Joel La Bissonniere, (301) 427-2202.
SUPPLEMENTARY INFORMATION:
Background
The Magnuson Act, 16 U.S.C. 1801, et seq. and the MMPA, 16 U.S.C.
1361 et seq. specifically authorize the stationing of observers aboard
fishing vessels.
Observers serve two separate and essential purposes. First,
observers collect scientific information essential to the effective
management and protection by the National Marine Fisheries Service
(NMFS) of ocean fisheries and protected species. Second, observers
monitor compliance with existing Federal laws. Information collected by
an observer that establishes a violation of the Magnuson Act, the MMPA
or the ESA, 16 U.S.C. 1531 et [[Page 11948]] seq. may be used to
prosecute the owner or operator of that vessel in a subsequent civil or
criminal enforcement proceeding.
Most observer programs are mandatory in nature. For example, under
the Magnuson Act, domestic vessels participating in the groundfish
fishery of the Gulf of Alaska are required to carry an observer if
ordered to do so. (See 50 CFR 672.27). Under the MMPA, U.S. commercial
vessels in the eastern tropical Pacific yellowfin tuna purse seine
fishery must carry an observer, (See 16 U.S.C. 1374(h)(2)(B)(viii)), as
must any vessel selected by NMFS while operating pursuant to a special
exemption permit in a Category I fishery. (See 16 U.S.C.
1383a(b)(3)(B)). Under the ESA, NMFS occasionally requires observers as
a condition of a section 7 incidental take statement. (See 16 U.S.C.
1536(b)).
Pursuant to all three acts, however, voluntary observer programs
also have been utilized. For example, under the MMPA's interim
exemption program for commercial fisheries, NMFS may, with the consent
of a vessel owner, station an observer aboard a vessel that is not
fishing in a Category I fishery. (See 16 U.S.C. 1383a(e)(3)). Under
this and other programs, fishermen who are under no legal obligation to
do so, may voluntarily agree to carry observers selected by NMFS.
Although most observer programs implemented by NMFS are mandatory in
nature, voluntary programs are widely used to gather scientific
information along the northeastern and southeastern coasts of the
United States.
Concerns have arisen within the fishing industry and NMFS as to
whether information collected by voluntary observers should be used in
subsequent enforcement proceedings. Many fear that fishermen will be
reluctant to carry voluntary observers if the information collected by
the observer can be used to prosecute them. Without the cooperation of
the fishing industry, the voluntary observer program might deteriorate,
depriving NMFS of information that is essential to living marine
resource management and protection. Conversely, others worry that
unduly restricting the use of such information will undermine the
ability to effectively prosecute violations of each statute.
In response to these concerns, Congress enacted 16 U.S.C. 1853(f)
of the Magnuson Act. This amendment, codified at section 303(f) of the
Magnuson Act, requires the issuance of regulations that restrict, in
civil and criminal enforcement proceedings conducted under the Magnuson
Act, MMPA, and ESA, the use of information collected by VFDCs while
aboard a vessel for conservation and management purposes.
These proposed regulations have been prepared to satisfy this
statutory directive. They do so in a manner that balances the competing
concerns associated with the use of information collected by voluntary
observers. Specifically, the regulations would encourage industry
participation in voluntary observer programs by limiting the risk of
civil or criminal prosecution under the Magnuson Act, MMPA, and ESA,
based upon information collected by a VFDC. At the same time, the
regulations would protect essential enforcement activities by
permitting the use of such information in limited circumstances.
Scope
These proposed regulations would add a new part to title 15 of the
Code of Federal Regulations, and would apply to the use of information
collected by VFDCs. Section 905.5 would define a VFDC as an observer or
sea sampler whose presence aboard a vessel is not required pursuant to
any provision of the Magnuson Act, MMPA, ESA or supporting regulations.
By definition, these proposed regulations would only apply when an
observer is aboard a vessel at the sole discretion of the owner or
operator.
These regulations would not categorically prohibit the use of
information collected by VFDCs in enforcement proceedings. Rather, the
regulations would restrict the use of such information. Restricting the
use of information collected by a VFDC is consistent with the plain
language of the statute, and strikes a balance between separate and
sometimes conflicting goals of the Magnuson Act, MMPA, and ESA: the
management and protection of species through the acquisition of
scientific information and through the effective prosecution of
prohibited conduct.
These regulations would apply to any enforcement proceeding
initiated pursuant to the Magnuson Act, MMPA, or ESA. The term
``enforcement proceeding'' is broadly defined to encompass any judicial
or administrative action that is initiated for the purpose of imposing
any civil or criminal penalty that is authorized by the Magnuson Act,
MMPA, or ESA.
These regulations would apply even if the information collected
relates to the violation of a statute subject to this proposed rule
that is different from the one giving rise to the VFDC's presence
onboard a vessel. For example, assume that a VFDC is stationed aboard a
fishing vessel pursuant to a voluntary program authorized by the
Magnuson Act. These regulations would restrict the use of information
collected by the VFDC in an enforcement proceeding arising from a
violation of the Magnuson Act. The regulations, however, also would
restrict the use of information collected by this same VFDC in an
enforcement proceeding arising from a violation of the MMPA or ESA.
Information
Part 905 would restrict the use of information collected by a VFDC
in enforcement proceedings conducted under the Magnuson Act, MMPA, and
ESA. The term ``information'' would be defined in Sec. 905.2 to include
all observations, data, statistics, photographs, film, or recordings
collected by a VFDC. Under this broad definition, information may take
the form of recorded data or activities seen or heard by the observer.
This definition is intended to encompass any type of information,
regardless of form.
The restrictions, however, would not apply to independent evidence
that is derived from information collected by a VFDC. In practice,
evidence initially collected by enforcement personnel frequently leads
to the discovery of additional evidence. These regulations would not
restrict the use of additional evidence acquired in this manner. Absent
this exception, prosecutors might be denied use of relevant evidence,
wholly unrelated to the purposes of part 905, simply because it was
acquired through information collected by a VFDC.
For example, assume a VFDC observed a fishing vessel land fish in
excess of the vessel's authorized limit. Under these proposed
regulations, the government could not rely upon the VFDC's observations
in any subsequent prosecution. Aware of these observations, however,
enforcement personnel could obtain additional evidence, such as landing
slips, that independently establish the violation. These proposed
regulations would not restrict the use of the landing slips in any
subsequent prosecution.
Access to Information
Part 905 would restrict the use of information collected by a VFDC
in an enforcement proceeding conducted pursuant to the Magnuson Act,
MMPA or ESA. It would not restrict access to this same information by
any party to an enforcement proceeding. Instead, access to such
information remains subject to existing Federal statutes and rules. For
example, access to information collected [[Page 11949]] by Federal
agencies is subject to the Freedom of Information Act and the Privacy
Act. Information collected by NMFS pursuant to the Magnuson Act and the
MMPA may only be disclosed consistent with the confidentiality
provisions of both statutes. Within enforcement proceedings, access to
information is governed by discovery provisions set forth in the
Federal rules of civil and criminal procedure, and agency regulations
that control discovery. (See 15 CFR 904.240).
Use of Information
Under proposed Sec. 905.4(a), information collected by a VFDC may
not initially be introduced by the government as evidence against any
consenting owner that is a party to an enforcement proceeding. A
``consenting owner'' is defined as the owner, operator or crewmember of
a vessel carrying a VFDC.
This restriction, however, would not apply to other parties. Under
proposed Sec. 905.4(b)(1), any other party to an enforcement proceeding
may introduce such information. This exception recognizes the fact
that, in certain cases, information collected by a VFDC may establish a
party's innocence. Denying a party the right to use such 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.
While VFDC-collected information will ordinarily be introduced to
establish innocence, such information may be introduced for any reason
by any party other than the government, regardless of their status as a
plaintiff or defendant.
Once information collected by a VFDC has been introduced, any
party, including the government, may introduce any information
collected by a VFDC. (See Sec. 905.4(b)(2)). In most instances, parties
will offer additional information when necessary to clarify, explain,
or contradict information previously introduced. Pursuant to proposed
Sec. 905.4(b)(2), however, any other information may be introduced
against any party for any purpose, within the sound discretion of the
court or tribunal.
Exceptions
While the restrictions proposed in part 905 are intended to apply
to the vast majority of enforcement proceedings conducted under the
Magnuson Act, MMPA, and ESA, exception is made for a few limited
categories of actions. Pursuant to proposed Sec. 905.5, the provisions
of part 905 would not apply to enforcement proceedings based upon: (1)
The assault, intimidation, or harassment of any person; or (2) the
impairment or interference with the duties of a VFDC. These regulations
are intended to promote voluntary observer programs by reducing the
risk of prosecution for fishing-related violations, not improper
conduct directed against a VFDC. Extending the restrictions of part 905
to conduct of this nature would jeopardize the safety of VFDCs and
undermine the quality of any data collected.
Classification
The Assistant General Counsel for Legislation and Regulations of
the Department of Commerce has certified to the Chief Counsel for
Advocacy of the Small Business Administration that this proposed rule,
if adopted, would not have a significant economic effect on a
substantial number of small businesses. This proposed rule is
procedural in nature, limiting the use of specific information in
enforcement proceedings. As a result, a regulatory flexibility analysis
has not been prepared.
This action has been determined to be not significant for the
purposes of E.O. 12866.
List of Subjects in 15 CFR Part 905
Fisheries, Statistics
Dated: February 21, 1995.
Terry D. Garcia,
General Counsel, National Oceanic and Atmospheric Administration.
For the reasons set out in the preamble, 15 CFR part 905 is
proposed to be 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 [[Page 11950]] 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. 95-5221 Filed 3-2-95; 8:45 am]
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