[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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