[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]
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