THE NOAA CIVIL PENALTY PROCESS: From Receipt Of File Through Closing Of Case

Charles R. Juliand, Esq.Senior Enforcement Attorney - Northeast RegionOffice of General Counsel National Oceanic and Atmospheric Administration

H:\ENFNE\CoastGuard\NRFTCshow.crj

Case logged in and reviewed by Paralegal

Calendar marked - 45/60 days Enforcement attorney assigned Case information entered into EMIS Paralegal completes file review form Memo sent to F/EN if file incomplete Enforcement history (“priors”) checked Documents re: prior offenses put in file File goes into attorney’s “pending” drawer

3

Attorney reviews file & checks evidence for sufficiency to allow prosecution

If important data is missing, return to F/EN.

If complete but inadequate (i.e. not all elements of offense charged are provable) it will be dismissed

If adequate, but offense is minor a written warning is issued

4

Issuing a NOVA (Notice of Violation and Assessment)

NOVA is the charging document issued by attorney

NOVA must be sent certified mail or delivered in hand.

NOVA consists of Respondents’ names, addresses, description of violation, regulation, statute, and assessed penalties

Agents should not discuss potential penalties with respondents

5

Respondents’ Options

Ignore it and owe assessed amount after 30 days

Request modifications or corrections

Pay in full Offer settlement (ability to pay

taken into consideration) Request a hearing

6

Seizures and Forfeitures

Vessels and/or their catch are subject to seizure for violations or unpaid penalties

Seizure tags are used Notices of Seizure and Sale are issued - Civil Asset

Forfeiture Reform Act (CAFRA) rules apply Checks from sale of seized fish are held in an escrow

account pending outcome Seized vessels are held by CG or at approved facilities

until the case is resolved (or until they are released on bond)

7

Seized Proceeds:

NOAA prefers that Respondent sign a consent to delay form

Information re: sale is published in a local newspaper for 3 weeks for seizures of $1,000 plus

Sales under $1,000 require only posting of a notice in a public place (e.g., NMFS office)

If respondent is found not responsible, proceeds are returned

If respondent owes penalty, usually proceeds are forfeited

8

Penalty assessment

Penalty schedules are reviewed and used as a “guidelines”

Different statutes have different maximum penalties per offense (e.g., MSFCMA = $120,000.00)

Enforcement histories affect penalty levels (subsequent offenses require higher penalties)

Aggravating and mitigating factors are considered (e.g., was the respondent courteous or uncooperative, did the offense appear to be intentional, etc. ...?)

9

Summary Settlement & Fix IT Tickets

Minor offenses may receive a summary settlement from F/EN or CG

Summary settlement results in a small fine, $50 to $1,500.

“Fix It” ticket requires that respondent remedy the situation, but involves no monetary penalty

10

Permit Sanctions

Vessel permits and/or operator permits are subject to sanction A Notice of Permit Sanction (NOPS) is served on the permitted

party Sanctions are incurred only for serious violations Sanctions can vary in length from a few days to permanent

revocation Sanctions can be issued to affect some, or all, of a permit

holder’s permits Sanctions are given, as well, when penalties aren’t paid

11

Administrative Hearing Process

Respondent requests a hearing after receiving a NOVA/NOPS

Hearing requests must be in writing

Hearing request is forwarded to the Administrative Law Judge (ALJ) docketing center

Currently there are a half dozen ALJs hearing NOAA cases

12

Notice and Order Issued Requiring Parties To File Preliminary Positions On Issues and Procedures (PPIPs)

Are there any legal or factual issues in dispute?

Is penalty amount in dispute? Is ability to pay an issue?

Must identify witnesses and content of their testimony

What exhibits will be offered? When and where do parties want

hearing to be held?

13

WITNESS PREPARATION:

Dress well, be confident (but not a wise guy)

Don’t guess, tell the TRUTH

Review OIRs, but don’t try to memorize them

If you need to refer to OIR, do so (that’s why it exists)

Pause before answering, pay attention to precise query

Don’t answer compound questions

If allowed to attend hearing, pay attention to all testimony

Write up OIRs and other docs ASAP after incident

14

More Witness Preparation

Be sure to initial or sign EVERY document you produce

Include ALL case notes, photos, etc. in the file

The other side is entitled to FULL discovery

There should be no “surprises” (withheld evidence) showing up late

Follow the procedures in boarding checklists

Use the correct forms and fill them out legibly & completely

Don’t get angry on stand or in deposition

Look at ALJ when answering questions / Speak in a loud, clear voice

15

The Hearing ALJ presides (Makes factual findings & legal rulings) Rules of evidence don’t normally apply Burden of proof is a “preponderance of the evidence” Both counsel may make opening statements Agency puts on its case first All witnesses and exhibits are subject to direct and re-

direct, cross and re-cross examination The ALJ may question the witnesses Objections and arguments from counsel are expected Agency rests after all essential evidence is in the record Defense counsel puts in his/her case Both counsel may make closing statements

16

Post-Hearing Initial Briefs are filed by both parties (These are documents

drafted by the attorneys which lay out the facts as the parties see them, supported by arguments and by citations to particular testimony and exhibits of record.)

Reply Briefs may be filed by either, or both, parties (These briefs respond to specific arguments made in the other parties’ Initial Brief.)

Initial Decision (This is a written decision by the ALJ in which he or she makes findings of fact and law, decides whether the Agency has met its burden of proof with regard to each violation charged, and, if so, assesses monetary penalties and/or permit sanctions.)

17

Appeals Motion For Reconsideration (Can be filed by either

party if they want the ALJ to reconsider any of the findings in the Initial Decision .)

Petition For Discretionary Review (Can be filed by either party. Is directed to the Administrator of NOAA and must state proper grounds for appeal or it will be denied. Proper grounds are:1. a finding of material fact is clearly erroneous, based on the record, 2. A necessary legal conclusion is contrary to law or precedent, 3. A substantial and important question of law, policy, or discretion is involved, or 4. A prejudicial procedural error has occurred.) This decision constitutes a “final agency action”.

Respondents may appeal to U.S. District Court (but the ID won’t be set aside if it is supported by “substantial evidence” in the record - APA controls

18

COLLECTIONS:

U.S. Attorney can initiate collection action

A maritime lien can be filed on vessel

Vessel can be seized and sold to pay debt

Permits can be sanctioned for non-payment

Case is sent to IRS - debt considered taxable income

19

Any Questions??

Thanks for your time and attention.

If you’d like to reach me, call 978-281-9240 or e-mail me at Charles.R.Juliand@noaa.gov