WASHINGTON (Saving Seafood) 7 Feb. 2013 — National Oceanic and Atmospheric Administration General Counsel Lois Schiffer has denied seven changes requested by three prominent attorneys and former NOAA officials to procedures related to the adjudication of NOAA Fisheries Enforcement cases. Attorney James (Bud) Walsh of Davis Wright Tremaine LLP in San Francisco, together with Attorney Eldon Greenberg of Garvey Schubert Barer in Washington, DC and Attorney Michael Stanley of Juneau, Alaska petitioned NOAA to make these changes last June. In her response, Ms. Schiffer stated that her office "reexamined NOAA's civil procedure regulations and continue to believe that they are reasonable, impartial, and fair."
Mr. Walsh served as Deputy Administrator of NOAA from 1978-1981. Mr. Greenberg served as general counsel of NOAA during the Carter Administration, and is an Adjunct Professor of Law at Georgetown University. Mr. Stanley is a former NOAA Enforcement attorney.
The following is a description by the petitioning attorneys of the changes they requested:
1. Have a NOAA program official participate in bringing cases, as is the case with Coast Guard civil penalty cases. At NOAA, enforcement attorneys act alone in bringing cases. In other agencies, such as the Federal Trade Commission, the Commission must approve bringing a case after recommendation by its enforcement staff.
2. Allow a respondent to ask for a delay in the hearing request if the Notice of Violation and Assessment (NOVA) is erroneous or needs to be changed. As it is, all one can do is ask for a full-blown hearing to remedy such an error. This creates pressure to settle, even if the NOVA is incorrect, given the cost of hearings.
3. Federal Rules of Evidence do not apply in hearings before an Administrative Law Judge (ALJ), leaving it uncertain as to whether any rules apply. Other agencies, such as the Federal Maritime Commission, apply those rules, which are known to all lawyers and are universally workable.
4. Make the regulations clear that NOAA has the burden of proof in all cases, including with respect to the basis of the penalty.
5. Allow the respondent to ask for the hearing record to include the record of development of the regulation itself, if its legality is at issue.
6. Provide for summary adjudication of an issue if there is no dispute at to material facts, if the respondent requests it. Now, NOAA attorneys can veto summary adjudication of issues not really in dispute, forcing a respondent to go to a costly hearing.
7. Provide provisions to allow for alternative dispute settlement, rather than just the all-or-nothing hearing option which gives NOAA’s attorneys great leverage over settlement.
The attorneys note that all of their suggestions are found in the regular practice of other agencies, which they noted in their letter. They argue that these changes would provide more balance to the NOAA procedures and perhaps avoid the serious problems found to exist in a number of cases by Special Master Charles Swartwood.
In denying the request of Attorneys Walsh, Greenburg, and Stanley, NOAA General Counsel Lois Schiffer wrote:
You seek seven changes to NOAA's civil procedure regulations. As outlined below, we believe that four of your proposed changes are already addressed by current regulations, and we have legal or policy concerns with the remaining three. On balance, while we appreciate your attention to NOAA's enforcement process, we have decided not to initiate rulemaking on these regulations at this time.
Your petition indicates that it is supported, in part, by the Department of Commerce Inspector General's findings during 2010, and the April 2011 Report and Recommendations of Special Master Charles B. Swartwood, III. It is important to emphasize that since 2010, NOAA has made transformational changes to its enforcement program, creating a more effective, fair, and transparent enforcement process. An extensive list of modifications to the enforcement program is provided at [web address]. This list includes issuance in June 2010 of a new civil procedure regulation relating to burden of proof on penalties; mandated headquarters review and approval of all charging and settlement decisions since March 18, 2010; issuance of a new national penalty policy; implementation of greater compliance assistance by the Office of Law Enforcement; implementation of a new Office of Law Enforcement workforce management plan; replacement of key enforcement leadership and personnel; the creation, with public input, of national and regional enforcement priorities; implementation of a new Enforcement Section internal operations and procedures manual; publication of on-line biannual reports of enforcement charging and settlement decisions; a significant increase in oversight of the Asset Forfeiture Fund; development and implementation of a new Enforcement Section case tracking database system; and Secretarial commitment to work with fishery councils, fisherman, and stakeholders to streamline and simplify fishing regulations. In short, the enforcement program is substantially different from the program considered in the materials you reference.
We also note that NOAA periodically reviews its civil procedure regulations to ensure that they are both fair and efficient.' NOAA's most recent revision of its civil procedure regulations occurred in June, 2010. This revision eliminated the presumption in favor of NOAA's assessed penalty or sanction at a hearing, thereby enhancing the fairness of NOAA's administrative proceedings. See 75 Fed. Reg. 35631 (June 23, 2010). In light of your petition, we have reexamined NOAA's civil procedure regulations and continue to believe that they are reasonable, impartial, and fair.
Read the complete response from NOAA General Counsel Lois Schiffer
Read the initial petition by Attorneys Walsh, Greenburg, and Stanley
Read news coverage of the request from July 13, 2012