[Federal Register Volume 75, Number 120 (Wednesday, June 23, 2010)]
[Rules and Regulations]
[Pages 35631-35632]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-15213]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 904

[Docket No. 100216090-0205-02]
RIN 0648-AY66


Regulations to Amend the Civil Procedures

AGENCY:  Office of General Counsel (OGC), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION:  Final rule.

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SUMMARY: This rule amends the procedures governing NOAA's 
administrative proceedings for the assessment of civil penalties; 
suspension, revocation, modification, or denial of permits; issuance 
and use of written warnings; and release or forfeiture of seized 
property. The principal change removes the requirement that an 
Administrative Law Judge state good reason(s) for departing from the 
civil penalty or permit sanction assessed by NOAA in its charging 
document. This revision eliminates any presumption in favor of the 
civil penalty or permit sanction assessed by NOAA. The other change 
corrects a clerical error in a citation to rules pertaining to 
protective orders issued by Administrative Law Judges.

DATES: This rule becomes effective June 23, 2010.

FOR FURTHER INFORMATION CONTACT: Frank Sprtel, 301-427-2202.

SUPPLEMENTARY INFORMATION: A summary of the changes proposed for 
regulations at 15 CFR part 904 is found in the proposed rule that NOAA 
published in the Federal Register at 75 FR 13050 (March 18, 2010) and 
is not repeated here.

Public Comments Received

    NOAA received two comments from the public during the comment 
period for the proposed rule. Those comments are summarized here, and 
are directly followed by NOAA's response to them.
    Comment 1: One commenter wrote generally in support of the proposed 
changes. While the commenter felt that the proposed changes were a good 
start, the commenter offered the view that they do not go far enough in 
bringing greater balance into NOAA's civil administrative process. The 
commenter encouraged NOAA to examine what other Federal agencies do in 
similar proceedings, and to make further changes to its civil procedure 
regulations as a result of this review. Finally, the commenter 
addressed the enforcement provisions of pending Senate Bill 2870, the 
International Fisheries Stewardship and Enforcement Act.
    Response: NOAA is not, at this time, changing its civil procedures 
beyond the revisions described in this rule. NOAA continues to evaluate 
whether other provisions in the civil procedures found at 15 CFR part 
904 should be revised. As NOAA conducts this evaluation, it will 
consider as appropriate the processes and procedures of other Federal 
agencies. As for the comments concerning Senate Bill 2870, NOAA has no 
response here, as the comments are beyond the scope of this rulemaking.
    Comment 2: Another commenter also offered support for the proposed 
changes, but stated that this one regulatory change was not enough to 
address other problems that the commenter perceived exist in NOAA's 
civil enforcement procedures under the Magnuson-Stevens Fishery 
Conservation and Management Act. The commenter asserted that NOAA 
enforcement attorneys should be available to testify as to the basis 
for penalty assessments in any particular case, because they are the 
individuals responsible for determining the penalty amount. The 
commenter expressed the view that, if NOAA continues to authorize its 
enforcement attorneys to assess fines and permit sanctions, then they 
should be produced as witnesses in administrative proceedings, and it 
is up to the individual NOAA enforcement attorney involved in the case 
to decide whether or not to withdraw from the case based on that 
consideration.
    The commenter also believes that the changes finalized by this rule 
will not address concerns the commenter expressed regarding NOAA's 
current penalty schedules, or language in NOAA's Notices of Violation 
Assessment (NOVAs) that suggests that the Administrative Law Judge may 
increase the proposed penalty assessments or permit sanctions. Finally, 
the commenter requested that NOAA address its seizure policies, permit 
restrictions, and several other approaches to law enforcement that the 
commenter believes should be changed.
    Response: As noted above, NOAA is not, at this time, changing its 
civil procedures beyond the revisions described in this rule. NOAA 
continues to evaluate whether other provisions in the civil procedures 
found at 15 CFR part 904 should be revised. As for the comments 
concerning application of NOAA's penalty schedules, language in NOAA's 
NOVAs, seizure policies, permit restrictions, and other issues related 
to NOAA's approaches to law enforcement raised by the commenter, NOAA 
has no response here, as these comments are beyond the scope of this 
rulemaking.
    With respect to the commenter's contention that NOAA attorneys 
should be available to testify at hearings before an Administrative Law 
Judge as to the basis for penalty assessments in any particular case, 
we disagree. NOAA is changing its regulations at 15 CFR part 904 to 
remove the requirement in 15 CFR Sec.  904.204(m) that an 
Administrative Law Judge state good reason(s) for departing from the 
civil penalty or permit sanction, condition, revocation, or denial of 
permit application (collectively, ``civil penalty or permit sanction'') 
assessed by NOAA in its charging document. This revision eliminates any 
presumption in favor of the civil penalty or permit sanction assessed 
by NOAA in its charging document (see ``In the Matter of: AGA Fishing 
Corp.'', 2001 WL 34683852 (NOAA Mar. 17, 2001)). It requires instead 
that NOAA justify at a hearing provided for under this Part that its 
proposed penalty or permit sanction is appropriate, taking into account 
all the factors required by applicable law. Respondents have a full and 
fair opportunity to challenge the proposed Agency action as set forth 
in detail in

[[Page 35632]]

NOAA's procedural regulations. It appears that the commenter is seeking 
to probe the NOAA attorney's thought processes in deciding what facts 
and arguments to present. As the U.S. Supreme Court established in 
Hickman v. Taylor, 329 U.S. 495 (1947), such thought processes are 
protected from disclosure absent a compelling need, which is not 
present here. See also Shelton v. American Motors Corp., 805 F.2d 1323 
(8th Cir. 1986) (party seeking to depose opposing counsel in a pending 
case must show that (1) no other means exist to obtain the information 
than to depose opposing counsel; (2) the information sought is relevant 
and nonprivileged; and (3) the information is crucial to the 
preparation of the case); Nationwide Mut. Ins. Co. v. Home Ins. Co., 
278 F.3d 621, 628 (6th Cir. 2002) (adopting the Eight Circuit test in 
Shelton).

Classification

    This final rule has been determined to be not significant for 
purposes of Executive Order 12866.
    There are no reporting, recordkeeping or other compliance 
requirements in this rule. Nor does this rule contain an information-
collection request that would implicate the Paperwork Reduction Act, 44 
U.S.C. Sec.  3501, et seq.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration during the proposed rule stage that this action would 
not have a significant economic impact on a substantial number of small 
entities. The factual basis for the certification was published in the 
proposed rule and is not repeated here. No comments were received 
regarding this certification. As a result, a regulatory flexibility 
analysis was not required and none was prepared.
    Pursuant to 5 U.S.C Sec.  553(d)(3), NOAA finds that there is good 
cause to waive the 30-day delay in the effective date of this rule. 
This rule is purely procedural in nature: it does not affect the 
substantive requirements of the regulations at 15 CFR part 904, nor 
does it modify, add, or revoke any existing rights and obligations of 
affected parties or the public. NOAA, therefore, finds that there is 
good cause, within the meaning of 5 U.S.C Sec.  553(d)(3) and in 
accordance with the Congressional Review Act, 5 U.S.C Sec.  808(2), to 
make this rule effective immediately.

List of Subjects in 15 CFR Part 904

    Administrative practice and procedure, fisheries, fishing, fishing 
vessels, penalties, seizures and forfeitures.

    Dated: June 14, 2010.
Lois J. Schiffer,
General Counsel, National Oceanic and Atmospheric Administration.

0
For reasons set forth in the preamble, 15 CFR part 904 is amended as 
follows:

PART 904-CIVIL PROCEDURES

0
1. The authority citation for part 904 continues to read as follows:

    Authority:  16 U.S.C. 1801 et seq., 16 U.S.C. 1531-1544, 16 
U.S.C. 1361 et seq., 16 U.S.C. 3371-3378, 16 U.S.C. 1431-1445c-1, 16 
U.S.C. 773-773k, 16 U.S.C. 951-962, 16 U.S.C. 5001-5012, 16 U.S.C. 
3631-3645, 42 U.S.C. 9101 et seq., 30 U.S.C. 1401 et seq., 16 U.S.C. 
971-971k, 16 U.S.C. 781-785, 16 U.S.C. 2401-2413, 16 U.S.C. 2431-
2444, 16 U.S.C. 972-972h, 16 U.S.C. 916-916l, 16 U.S.C. 1151 et 
seq., 16 U.S.C. 3601-3608, 16 U.S.C. 3631-3645, 16 U.S.C. 1851 note; 
15 U.S.C. 5601 et seq., Pub. L. 105-277, 16 U.S.C. 1822 note, 
Section 801(f), 16 U.S.C. 2465(a), 16 U.S.C. 5103(b), 16 U.S.C. 1385 
et seq., 16 U.S.C. 1822 note (Section 4006), 16 U.S.C. 4001-4017, 22 
U.S.C. 1980(g), 16 U.S.C. 5506(a), 16 U.S.C. 5601-5612, 16 U.S.C. 
1822, 16 U.S.C. 973-973R, 15 U.S.C. 330-330(e)

0
2. Section 904.204 to subpart C is amended by revising paragraphs (f) 
and (m) to read as follows:

Subpart C-Hearing and Appeal Procedures


Sec.  904.204  Duties and powers of Judge.

* * * * *
    (f) Rule on contested discovery requests, establish discovery 
schedules, and, whenever the ends of justice would thereby be served, 
take or cause depositions or interrogatories to be taken and issue 
protective orders under Sec.  904.251(h);
* * * * *
    (m) Assess a civil penalty or impose a permit sanction, condition, 
revocation, or denial of permit application, taking into account all of 
the factors required by applicable law;
* * * * *
[FR Doc. 2010-15213 Filed 6-22-10; 8:45 am]
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