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
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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