Seattle’s own Marten Law recently published an article on NOAA’s draft penalty policy, which aims to synchronize fair civil penalties and permit sanctions across the various statutes under which NOAA enforcement actions are brought.
It never ceases to amaze me how fraught with controversy something as seemingly mundane as the standardization of Civil Administrative Penalties can turn out to be. According to Marten Law, the proposed NOAA changes were prompted by a Department of Commerce Inspector General report* reviewing the agency’s enforcement policies, which found “systemic, nationwide issues” and recommended revisions to procedural regulations and penalty schedules “in order to provide greater consistency and clarity.”
A more recent follow-up to the report criticized the agency for “unfair treatment and overzealous enforcement.” This report investigated 27 individual complaints – all raised by fishermen – that range from “abusive conduct” to “unduly complicated, unclear, and confusing fishing regulations.” After reviewing and substantiating the complaints (of the 27, 19 were classified as “Appropriate for Further Review”), the Inspector General presented several different recommendations, including, again, a revision of the penalty and permit sanction schedules.
So what does the new policy look like? According to the NOAA news release, “under the new draft penalty policy, NOAA will improve consistency at the national level, and will provide a clearer understanding of NOAA’s penalty policies. The proposed policy will help NOAA to protect fisheries and natural resources consistently and effectively.” Specifically, the policy creates one penalty matrix for each of the seven statutes most commonly enforced by NOAA. The two axes on each matrix are Level of Harm and Level of Intent (Unintentional, Negligent, Reckless, or Willful), which are then weighed together to assess the egregiousness of the violation, and associated base penalty. The penalty may then be adjusted to reflect specific circumstances (e.g. history of non-compliance) or to recoup the economic benefit of noncompliance.
[Base Penalty based on Seriousness] +
[Upward/Downward Adjustment for Specific Circumstances] +
[Economic Benefit] =
[Penalty Assessment and Permit Sanctions]
NOAA wraps up the draft policy with specific examples to illustrate application of the matrices. One case describes a man who “began to toss rocks onto one large bull elephant seal while attempting to take photographs of the animal’s reaction,” and who, finally, “hit the animal on the tail with a large stick, which elicited an aggressive response (charge) from the animal.” The man in this example was, as to be expected, charged with extreme willfulness.
Through all of this, it is difficult not to speculate at the degree of culpability behind NOAA’s reported “abusive conduct.” Do these new guidelines help make up for the seriousness of their transgressions? Comments on the draft may be submitted to Penaltypolicy@noaa.gov before December 20, 2010.
*You can read this, related reports, and supporting materials going back to 1998 in the “NOAA Fisheries Enforcement Reading Room.”