Pennsylvania Code › Title 58 - RECREATION › Part II - FISH AND BOAT COMMISSION › Subpart A - General Provisions › Chapter 51 - ADMINISTRATIVE PROVISIONS › Subchapter K - CIVIL PENALTY FORFEITURE PROCESS › Section 51.105 - Amount of proposed civil penalty forfeiture

Current through Register Vol. 54, No. 28, July 13, 2024
(a)
Amount
. The amount of
					 the proposed civil penalty forfeiture will be set forth in the order to show
					 cause for civil penalty forfeiture. In determining the amount of the proposed
					 forfeiture, the Executive Director or a designee will consider:
(1)
Health and safety of
					 public
. The hazards posed to the health or safety of the public. The
					 minimum proposed civil penalty forfeiture will be $2,500 if the Executive
					 Director or a designee determines, based on the uses of the waters, that the
					 unmarked dam poses substantial danger to the angling, boating and wading
					 public.
(2)
Negligence,
					 recklessness or intentional failure
. Whether the violation was caused
					 by a negligent, reckless or intentional failure to comply. A civil penalty of
					 at least $500 should be proposed in cases of negligent failure to comply. A
					 civil penalty of at least $2,000 should be proposed where there is probable
					 cause to believe that the lack of compliance was based on reckless misconduct.
					 A civil penalty of at least $3,000 should be proposed when there is probable
					 cause to believe that the lack of compliance was based on wilful or intentional
					 misconduct.
(3)
Speed of
					 compliance
. A credit will be given of up to $1,000 based on the
					 attempt of the owner or permittee to achieve rapid compliance after the owner
					 or permittee knew or should have known of the violation. The credit will be
					 available to offset only civil penalties assessed for the specific violation at
					 issue.
(4)
Cost to the
					 Commonwealth
. In proposing the amount of a civil penalty forfeiture,
					 the costs to the Commonwealth will be considered. The costs may include:
(i) Administrative costs.
(ii) Costs of inspection.
(iii) Costs of preventive or restorative
					 measures taken by the Commission or the Department of Environmental Protection
					 to prevent or lessen the threat of damage to persons or property.
(5)
Savings to the dam
					 owner/permittee
. If the owner or permittee of the dam who fails to
					 comply gains economic benefit as a result of the noncompliance, the proposed
					 civil penalty may include an amount equal to the savings up to the statutory
					 maximum for each violation.
(6)
History of previous violations
. In determining a proposed
					 civil penalty for a violation, the Executive Director or a designee will
					 consider previous noncompliance with the requirements of section 3510 of the
					 code (relating to marking of dams) for which the same owner or permittee has
					 been found to have been responsible in a prior adjudicated proceeding,
					 agreement, consent order or decree that became final within the previous 3-year
					 period. The penalty otherwise assessable for noncompliance shall be increased
					 by a factor of 25% for each previous violation. The total increase in
					 assessment based on the history of the previous violation will not exceed
					 $1,000.
(i) A previous instance of
					 noncompliance will not be counted if it is the subject of pending
					 administrative or judicial review, or if the time to request the review or to
					 appeal the administrative or judicial decision determining the previous
					 violation has not expired.
(ii)
					 Each previous instance of noncompliance will be counted without regard to
					 whether it led to a civil penalty assessment.