114. Civil penalties and permit sanctions; rebuttable presumptions.

[MSFCMA sections 308 and 310]


Summary:

Section 308(a) adopts a compromise between the Hill and NOAA-GC regarding the "ability to pay" provision in the previous version of the Magnuson Act. It deletes the old mandatory requirement and substitutes an optional consideration more favorable to NOAA. Section 308(b) provides for judicial review of permit sanctions. Previously, review of penalties was expressly provided for, but the Act was silent on judicial review of permit sanctions. Section 308(g)(1)(C) allows for imposition of permit sanctions for non-payment of civil forfeitures and non-payment for observer services. Section 310(e) now provides that vessels in the U.S. EEZ or beyond the EEZ of any nation, with gear on board capable of use for large-scale driftnet fishing, will be presumed to be engaged in such fishing. This should make proving cases easier, as they will no longer depend on catching a vessel in the act.

Legislative history:

Permit sanctions for non-payment of civil forfeitures was a necessary fix after the adverse decision NOAA received on the issue in the Key Bank v. F/V Concepcion case.

Issues:

GCEL will have to revise the 904 regulations. Issues include shifting of the burden of proof and retrospective application. Judicial review of permit sanctions is not extended to those imposed for non-payment of a penalty or fine. The provision requiring service of a complaint for judicial review of a permit sanction on the Attorney General and the appropriate United States Attorney has been removed.
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