Photo 6: Tuna ensnared near the mouth of the fish trap. (NOAA Photo Library)
Q: What do I do if I receive a Notice of Violation and Assessment and/or Notice of Permit Sanction?
A: You will receive a copy of 15 C.F.R. Part 904, NOAA's civil procedure regulations, with the Notice of Violation and Assessment (NOVA) and/or Notice of Permit Sanction (NOPS). The civil procedure regulations will provide you with all of the necessary information concerning your rights and options. This information is contained in the NOVA and/or NOPS, as well.
Q: What if I can't pay an assessed penalty?
A: You should contact the NOAA enforcement attorney who issued the NOVA and/or NOPS immediately to request financial forms for reporting information pertaining to your ability to pay the assessed penalty. NOAA will take your ability to pay, along with other pertinent factors, into account in determining the proper penalty to assess, provided that the information is submitted to NOAA in a timely manner. See 15 C.F.R. § 904.108.
Q: What happens if I don't pay an assessed penalty?
A: If you neither request a hearing within the time permitted, nor enter into a settlement agreement, you are liable for the civil penalty amount assessed in the NOVA. If you fail to pay this amount, or enter into a settlement agreement and fail to pay the agreed upon compromise civil penalty, NOAA will undertake all available measures to collect the monies owed. NOAA will send the delinquent debt to NOAA Finance for billing and collecting, and may take additional measures such as sanctioning permits until all monies owed to NOAA are paid, and forwarding the debt to the United States Treasury for a tax, or other government benefit offset. Your delinquent debt may also be turned over to a private collection agency. In addition, you will be liable for interest on the delinquent debt.
Q: What do I do if I get a bill from NOAA Finance?
A: NOAA Finance is responsible for billing and collecting delinquent and time payment civil monetary penalties. NOAA Finance will provide you with instructions as to where to send the payment, and the name and address of a NOAA Finance contact person regarding the monetary aspect of the bill or dunning letter. All other questions pertaining to the case should be made to the attorney who issued the NOVA and/or NOPS.
Q: Can I have a jury trial?
A: No. A jury trial is not authorized in civil administrative proceedings. You will have the opportunity to have your case heard and decided by an administrative law judge.
Q: Who will be the judge in my case?
A: If you choose to have a hearing, your case will be heard by an administrative law judge. Currently, administrative law judges employed by the Environmental Protection Agency (EPA) hear NOAA cases.
Q: Will the charges in the NOVA/NOPS count as a criminal conviction?
A: No. You are being charged with a civil violation, not a criminal violation.
Q: Does a lawyer have to represent me?
A: No. Anyone can represent you or you may represent yourself. It is your decision whether to be represented by a lawyer.
Q: If I cannot afford a lawyer will one be provided?
A: No. You are not entitled to a public defender.
Q: Where can I read the judge's decisions?
A: NOAA's civil administrative case law is posted at the following link: http://www.gc.noaa.gov/enforce-office6.html and available on-line through LexisNexis and Westlaw.
Q: Can I appeal the decision of the judge?
A: Yes, you may file a petition for reconsideration of an initial decision issued by the judge, pursuant to 15 C.F.R. 904.272. You may also file for administrative review by the NOAA Administrator of the judge's initial decision, as discussed in 15 C.F.R. 904.273. Finally, pursuant to15 C.F.R 904.273, you may seek judicial review in district court of the NOAA Administrator's decision.
Q: What is a written warning?
A: A written warning may be issued in lieu of a Notice of Violation and Assessment. Enforcement Section attorneys, NOAA Office of Law Enforcement, and the U.S. Coast Guard may issue written warnings. While a written warning does not assess a civil penalty, it may be used as the basis for dealing more severely with a subsequent offense. Written warnings may be appealed, pursuant to NOAA's procedural regulations. See 15 C.F.R. Part 904, Subpart E.
Q: What do I do if I receive a summary settlement?
A: A summary settlement affords you with the opportunity to choose not to contest an alleged violation and to pay a reduced penalty within a specified time period following receipt of the Summary Settlement Notice. If you choose not to accept the summary settlement offer, your case will be forwarded to NOAA's Office of General Counsel (OGC) for prosecution.
Q: What do I do if I want to report a violation?
A: To report a violation, you should contact the NOAA Office of Law Enforcement hotline at 1-800-853-1964.
Q: Who should I contact if I wish to comment on the enforcement activities of NOAA?
A: In accordance with the provisions of the Small Business Regulatory Enforcement Fairness Act, the Small Business Administration has established a National Small Business and Agriculture Regulatory Ombudsman and ten Regional Small Business Fairness Boards to receive comments from small businesses about federal agency enforcement actions. The Ombudsman annually evaluates enforcement activities and rates each agency's responsiveness to small businesses. If a small business wishes to comment on the enforcement actions of NOAA, it may do so via the internet at www.sba.gov/ombudsman, email, mail (Small Business Administration, Office of the National Ombudsman, 409 Third St. SW, Washington, D.C. 20416), or by calling 1-888-REG-FAIR.
The Office of the National Ombudsman of the Small Business Administration (SBA) has asked all Federal agencies to make clear that, if a small business requests Ombudsman assistance on a matter or otherwise questions or complaints about a Federal agency action, the agency will not retaliate in response.
The Department of Commerce is committed to fair regulatory practices, supports the right of the regulated community to raise concerns about regulatory enforcement actions without the fear of retaliation, and will investigate any allegations of retaliation and take appropriate action. We take such concerns and allegations very seriously and strive to avoid even the appearance of impropriety. However, while the Department will investigate any allegation of retaliation, a complaint to the Ombudsman will not stop or delay investigations and legal or administrative proceedings as part of the Department's ongoing responsibility to enforce relevant Federal laws.
The right to file comments with the Ombudsman is in addition to any rights a small business may have, including the right to contest the assessment of a civil monetary penalty or permit sanction. Filing a comment with the Ombudsman neither takes the place of filing a request for an administrative hearing contesting the assessment of a penalty or permit sanction, as required by 15 C.F.R. Part 904, nor extends the maximum time period for requesting such a hearing.