[Federal Register Volume 60, Number 42 (Friday, March 3, 1995)]
[Proposed Rules]
[Pages 11947-11950]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-5221]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 905

[Docket No. 950104002-5002-01; I.D. 061394C]
RIN 0648-AE40


Use in Enforcement Proceedings of Information Collected by 
Voluntary Fishery Data Collectors

AGENCY: National Oceanic and Atmospheric Administration (NOAA), 
Commerce.

ACTION: Proposed rule.

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SUMMARY: The Secretary of Commerce (Secretary), through NOAA, is 
publishing proposed regulations that would restrict the use of 
information collected by voluntary fishery data collectors (VFDC). 
These regulations would limit the extent to which such information 
could be used in civil and criminal enforcement proceedings conducted 
pursuant to the Magnuson Fishery Conservation and Management Act 
(Magnuson Act), the Endangered Species Act (ESA), and the Marine Mammal 
Protection Act (MMPA). In promulgating these regulations, NOAA seeks to 
encourage the use of VFDCs by the fishing industry, while protecting 
the necessary use of observer information by law enforcement personnel.

DATES: Comments must be submitted by May 2, 1995.

ADDRESSES: Comments may be mailed to the National Oceanic and 
Atmospheric Administration, Office of General Counsel, Enforcement and 
Litigation Section, 8484 Georgia Avenue, 4th Floor, Silver Spring, MD 
20910.

FOR FURTHER INFORMATION CONTACT: Joel La Bissonniere, (301) 427-2202.

SUPPLEMENTARY INFORMATION:

Background

    The Magnuson Act, 16 U.S.C. 1801, et seq. and the MMPA, 16 U.S.C. 
1361 et seq. specifically authorize the stationing of observers aboard 
fishing vessels.
    Observers serve two separate and essential purposes. First, 
observers collect scientific information essential to the effective 
management and protection by the National Marine Fisheries Service 
(NMFS) of ocean fisheries and protected species. Second, observers 
monitor compliance with existing Federal laws. Information collected by 
an observer that establishes a violation of the Magnuson Act, the MMPA 
or the ESA, 16 U.S.C. 1531 et [[Page 11948]] seq. may be used to 
prosecute the owner or operator of that vessel in a subsequent civil or 
criminal enforcement proceeding.
    Most observer programs are mandatory in nature. For example, under 
the Magnuson Act, domestic vessels participating in the groundfish 
fishery of the Gulf of Alaska are required to carry an observer if 
ordered to do so. (See 50 CFR 672.27). Under the MMPA, U.S. commercial 
vessels in the eastern tropical Pacific yellowfin tuna purse seine 
fishery must carry an observer, (See 16 U.S.C. 1374(h)(2)(B)(viii)), as 
must any vessel selected by NMFS while operating pursuant to a special 
exemption permit in a Category I fishery. (See 16 U.S.C. 
1383a(b)(3)(B)). Under the ESA, NMFS occasionally requires observers as 
a condition of a section 7 incidental take statement. (See 16 U.S.C. 
1536(b)).
    Pursuant to all three acts, however, voluntary observer programs 
also have been utilized. For example, under the MMPA's interim 
exemption program for commercial fisheries, NMFS may, with the consent 
of a vessel owner, station an observer aboard a vessel that is not 
fishing in a Category I fishery. (See 16 U.S.C. 1383a(e)(3)). Under 
this and other programs, fishermen who are under no legal obligation to 
do so, may voluntarily agree to carry observers selected by NMFS. 
Although most observer programs implemented by NMFS are mandatory in 
nature, voluntary programs are widely used to gather scientific 
information along the northeastern and southeastern coasts of the 
United States.
    Concerns have arisen within the fishing industry and NMFS as to 
whether information collected by voluntary observers should be used in 
subsequent enforcement proceedings. Many fear that fishermen will be 
reluctant to carry voluntary observers if the information collected by 
the observer can be used to prosecute them. Without the cooperation of 
the fishing industry, the voluntary observer program might deteriorate, 
depriving NMFS of information that is essential to living marine 
resource management and protection. Conversely, others worry that 
unduly restricting the use of such information will undermine the 
ability to effectively prosecute violations of each statute.
    In response to these concerns, Congress enacted 16 U.S.C. 1853(f) 
of the Magnuson Act. This amendment, codified at section 303(f) of the 
Magnuson Act, requires the issuance of regulations that restrict, in 
civil and criminal enforcement proceedings conducted under the Magnuson 
Act, MMPA, and ESA, the use of information collected by VFDCs while 
aboard a vessel for conservation and management purposes.
    These proposed regulations have been prepared to satisfy this 
statutory directive. They do so in a manner that balances the competing 
concerns associated with the use of information collected by voluntary 
observers. Specifically, the regulations would encourage industry 
participation in voluntary observer programs by limiting the risk of 
civil or criminal prosecution under the Magnuson Act, MMPA, and ESA, 
based upon information collected by a VFDC. At the same time, the 
regulations would protect essential enforcement activities by 
permitting the use of such information in limited circumstances.

Scope

    These proposed regulations would add a new part to title 15 of the 
Code of Federal Regulations, and would apply to the use of information 
collected by VFDCs. Section 905.5 would define a VFDC as an observer or 
sea sampler whose presence aboard a vessel is not required pursuant to 
any provision of the Magnuson Act, MMPA, ESA or supporting regulations. 
By definition, these proposed regulations would only apply when an 
observer is aboard a vessel at the sole discretion of the owner or 
operator.
    These regulations would not categorically prohibit the use of 
information collected by VFDCs in enforcement proceedings. Rather, the 
regulations would restrict the use of such information. Restricting the 
use of information collected by a VFDC is consistent with the plain 
language of the statute, and strikes a balance between separate and 
sometimes conflicting goals of the Magnuson Act, MMPA, and ESA: the 
management and protection of species through the acquisition of 
scientific information and through the effective prosecution of 
prohibited conduct.
    These regulations would apply to any enforcement proceeding 
initiated pursuant to the Magnuson Act, MMPA, or ESA. The term 
``enforcement proceeding'' is broadly defined to encompass any judicial 
or administrative action that is initiated for the purpose of imposing 
any civil or criminal penalty that is authorized by the Magnuson Act, 
MMPA, or ESA.
    These regulations would apply even if the information collected 
relates to the violation of a statute subject to this proposed rule 
that is different from the one giving rise to the VFDC's presence 
onboard a vessel. For example, assume that a VFDC is stationed aboard a 
fishing vessel pursuant to a voluntary program authorized by the 
Magnuson Act. These regulations would restrict the use of information 
collected by the VFDC in an enforcement proceeding arising from a 
violation of the Magnuson Act. The regulations, however, also would 
restrict the use of information collected by this same VFDC in an 
enforcement proceeding arising from a violation of the MMPA or ESA.

Information

    Part 905 would restrict the use of information collected by a VFDC 
in enforcement proceedings conducted under the Magnuson Act, MMPA, and 
ESA. The term ``information'' would be defined in Sec. 905.2 to include 
all observations, data, statistics, photographs, film, or recordings 
collected by a VFDC. Under this broad definition, information may take 
the form of recorded data or activities seen or heard by the observer. 
This definition is intended to encompass any type of information, 
regardless of form.
    The restrictions, however, would not apply to independent evidence 
that is derived from information collected by a VFDC. In practice, 
evidence initially collected by enforcement personnel frequently leads 
to the discovery of additional evidence. These regulations would not 
restrict the use of additional evidence acquired in this manner. Absent 
this exception, prosecutors might be denied use of relevant evidence, 
wholly unrelated to the purposes of part 905, simply because it was 
acquired through information collected by a VFDC.
    For example, assume a VFDC observed a fishing vessel land fish in 
excess of the vessel's authorized limit. Under these proposed 
regulations, the government could not rely upon the VFDC's observations 
in any subsequent prosecution. Aware of these observations, however, 
enforcement personnel could obtain additional evidence, such as landing 
slips, that independently establish the violation. These proposed 
regulations would not restrict the use of the landing slips in any 
subsequent prosecution.

Access to Information

    Part 905 would restrict the use of information collected by a VFDC 
in an enforcement proceeding conducted pursuant to the Magnuson Act, 
MMPA or ESA. It would not restrict access to this same information by 
any party to an enforcement proceeding. Instead, access to such 
information remains subject to existing Federal statutes and rules. For 
example, access to information collected [[Page 11949]] by Federal 
agencies is subject to the Freedom of Information Act and the Privacy 
Act. Information collected by NMFS pursuant to the Magnuson Act and the 
MMPA may only be disclosed consistent with the confidentiality 
provisions of both statutes. Within enforcement proceedings, access to 
information is governed by discovery provisions set forth in the 
Federal rules of civil and criminal procedure, and agency regulations 
that control discovery. (See 15 CFR 904.240).

Use of Information

    Under proposed Sec. 905.4(a), information collected by a VFDC may 
not initially be introduced by the government as evidence against any 
consenting owner that is a party to an enforcement proceeding. A 
``consenting owner'' is defined as the owner, operator or crewmember of 
a vessel carrying a VFDC.
    This restriction, however, would not apply to other parties. Under 
proposed Sec. 905.4(b)(1), any other party to an enforcement proceeding 
may introduce such information. This exception recognizes the fact 
that, in certain cases, information collected by a VFDC may establish a 
party's innocence. Denying a party the right to use such information in 
a criminal proceeding might run counter to a party's right to 
compulsory process under the Sixth Amendment of the U.S. Constitution. 
While VFDC-collected information will ordinarily be introduced to 
establish innocence, such information may be introduced for any reason 
by any party other than the government, regardless of their status as a 
plaintiff or defendant.
    Once information collected by a VFDC has been introduced, any 
party, including the government, may introduce any information 
collected by a VFDC. (See Sec. 905.4(b)(2)). In most instances, parties 
will offer additional information when necessary to clarify, explain, 
or contradict information previously introduced. Pursuant to proposed 
Sec. 905.4(b)(2), however, any other information may be introduced 
against any party for any purpose, within the sound discretion of the 
court or tribunal.

Exceptions

    While the restrictions proposed in part 905 are intended to apply 
to the vast majority of enforcement proceedings conducted under the 
Magnuson Act, MMPA, and ESA, exception is made for a few limited 
categories of actions. Pursuant to proposed Sec. 905.5, the provisions 
of part 905 would not apply to enforcement proceedings based upon: (1) 
The assault, intimidation, or harassment of any person; or (2) the 
impairment or interference with the duties of a VFDC. These regulations 
are intended to promote voluntary observer programs by reducing the 
risk of prosecution for fishing-related violations, not improper 
conduct directed against a VFDC. Extending the restrictions of part 905 
to conduct of this nature would jeopardize the safety of VFDCs and 
undermine the quality of any data collected.

Classification

    The Assistant General Counsel for Legislation and Regulations of 
the Department of Commerce has certified to the Chief Counsel for 
Advocacy of the Small Business Administration that this proposed rule, 
if adopted, would not have a significant economic effect on a 
substantial number of small businesses. This proposed rule is 
procedural in nature, limiting the use of specific information in 
enforcement proceedings. As a result, a regulatory flexibility analysis 
has not been prepared.
    This action has been determined to be not significant for the 
purposes of E.O. 12866.

List of Subjects in 15 CFR Part 905

    Fisheries, Statistics

    Dated: February 21, 1995.
Terry D. Garcia,
General Counsel, National Oceanic and Atmospheric Administration.
    For the reasons set out in the preamble, 15 CFR part 905 is 
proposed to be added to read as follows:

PART 905--USE IN ENFORCEMENT PROCEEDINGS OF INFORMATION COLLECTED 
BY VOLUNTARY FISHERY DATA COLLECTORS

    Sec.
    905.1 Scope.
    905.2 Definitions.
    905.3 Access to information.
    905.4 Use of information.
    905.5 Exceptions.

    Authority: 16 U.S.C. 1853(f).


Sec. 905.1  Scope.

    This part applies to the use, in enforcement proceedings conducted 
pursuant to the Magnuson Act, the MMPA, and the ESA, of information 
collected by voluntary fishery data collectors.


Sec. 905.2  Definitions.

    When used in this part:
    Consenting owner means the owner, operator, or crewmember of a 
vessel carrying a voluntary fishery data collector.
    Enforcement proceeding means any judicial or administrative trial 
or hearing, initiated for the purpose of imposing any civil or criminal 
penalty authorized under the Magnuson Act, MMPA, or ESA, including but 
not limited to, any proceeding initiated to: impose a monetary penalty; 
modify, sanction, suspend or revoke a lease, license or permit; secure 
forfeiture of seized property; or incarcerate an individual.
    ESA means the Endangered Species Act, as amended, 16 U.S.C. 1531 et 
seq., and implementing regulations.
    Information means all observations, data, statistics, photographs, 
film, or recordings collected by a voluntary fishery data collector for 
conservation and management purposes, as defined by the Magnuson Act, 
MMPA, or ESA, while onboard the vessel of a consenting owner.
    Magnuson Act means the Magnuson Fishery Conservation and Management 
Act, as amended, 16 U.S.C. 1801 et seq., and implementing regulations.
    MMPA means the Marine Mammal Protection Act, as amended, 16 U.S.C. 
1361 et seq., and implementing regulations.
    Secretary means the Secretary of Commerce, the Secretary of the 
Interior, their chosen designees, or any other Federal agency 
authorized to enforce the provisions of the Magnuson Act, MMPA, or ESA.
    Vessel means any vessel as defined at 16 U.S.C. 1802(31).
    Voluntary fishery data collector means:
    (1) Any person, including an observer or a sea sampler;
    (2) Placed aboard a vessel by the Secretary;
    (3) For the purpose of collecting information; and
    (4) Whose presence aboard that vessel is not required by the 
Secretary pursuant to provisions of the Magnuson Act, MMPA, or ESA, or 
their implementing regulations.


Sec. 905.3  Access to information.

    Information collected by a voluntary fishery data collector:
    (a) Is subject to disclosure to both the Secretary and the public, 
to the extent required or authorized by law; and
    (b) Is subject to discovery by any party to an enforcement 
proceeding, to the extent required or authorized by law.


Sec. 905.4  Use of information.

    (a) Except as provided for in paragraph (b) of this section, 
information collected by a voluntary fishery data collector may not be 
introduced by the Secretary as evidence [[Page 11950]] against any 
consenting owner that is a party to an enforcement proceeding.
    (b) Provided that all applicable evidentiary requirements are 
satisfied:
    (1) Information collected by a voluntary fishery data collector may 
be introduced in an enforcement proceeding by any party except the 
Secretary;
    (2) If information is introduced pursuant to paragraph (b)(1) of 
this section, all information collected by a voluntary fishery data 
collector may be introduced by any other party, including the 
Secretary.
    (c) Independent evidence derived from information collected by a 
voluntary fishery data collector may be introduced by any party, 
including the Secretary, in an enforcement proceeding.


Sec. 905.5  Exceptions.

    The provisions of this part shall not apply in any enforcement 
proceeding against a consenting owner that alleges the actual or 
attempted:
    (a) Assault, intimidation, or harassment (including sexual 
harassment) of any person; or
    (b) Impairment or interference with the duties of a voluntary 
fishery data collector.
[FR Doc. 95-5221 Filed 3-2-95; 8:45 am]
BILLING CODE 3510-22-F