PROPOSED RULEMAKING
FISH AND BOAT COMMISSION
[58 PA. CODE CH. 51]
Civil Penalty Forfeiture Process
[30 Pa.B. 4619] The Fish and Boat Commission (Commission) proposes to adopt Chapter 51, Subchapter K (relating to civil penalty forfeiture process). The Commission is publishing this proposed rulemaking under the authority of 30 Pa.C.S. (relating to the Fish and Boat Code) (code). The proposed regulations relate to the forfeiture of civil penalties for failure to comply with section 3510 of the code (relating to marking of dams).
A. Effective Date
The proposed regulations, if approved on final rulemaking, will go into effect upon publication of an order adopting the regulations in the Pennsylvania Bulletin.
B. Contact Person
For further information on the proposed regulations, contact Laurie E. Shepler, Assistant Counsel, (717) 657-4546, P. O. Box 67000, Harrisburg, PA 17106-7000. This proposal is available electronically through the Commission's Web site (http://www.fish.state.pa.us).
C. Statutory Authority
The proposed regulations are published under the statutory authority of section 3510 of the code.
D. Purpose and Background
The act of June 18, 1998 (P. L. 702, No. 91) effective January 1, 1999, amended the code by adding section 3510. This section applies to owners of existing run-of-the-river dams and permittees for the construction or installation of new run-of-the-river dams. Specifically, it requires the owners of dams identified by the Department of Environmental Protection (DEP) as meeting the statutory definition of a ''run-of-the-river'' dam to mark the areas above and below the dams and on the banks immediately adjacent to the dams with signs and buoys. The design and content of these signs and buoys was determined by the Commission after consultation with DEP. The signs are intended to warn the swimming, fishing and boating public of the hazards posed by the dam.
E. Summary of Proposal
Section 3510 of the code provides that any person who fails to comply with the marking requirements shall forfeit and pay a civil penalty of not less than $500 nor more than $5,000. This section further provides that any person who fails to comply with the maintenance requirements shall forfeit and pay a civil penalty of not less than $250 nor more than $5,000. To recover civil penalties, the Commission must have an administrative process for forfeiture of civil penalties in place. Accordingly, the Commission proposes the new regulations as set forth in Annex A.
F. Paperwork
The proposed regulations will not increase paperwork and will create no new paperwork requirements.
G. Fiscal Impact
The proposed regulations will have no adverse fiscal impact on the Commonwealth or its political subdivisions. The proposed regulations will impose no new costs on the private sector or the general public.
H. Public Comments
Interested persons are invited to submit written comments, objections or suggestions about the proposed regulations to the Executive Director, Fish and Boat Commission, P. O. Box 67000, Harrisburg, PA 17106-7000, within 30 days after publication of this notice in the Pennsylvania Bulletin. Comments submitted by facsimile will not be accepted.
Comments also may be submitted electronically at ''regulations@fish.state.pa.us.'' A subject heading of the proposal and a return name and address must be included in each transmission. In addition, all electronic comments must be contained in the text of the transmission, not in an attachment. If an acknowledgment ofelectronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.
PETER A. COLANGELO,
Executive DirectorFiscal Note: 48A-108. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 58. RECREATION
PART II. FISH AND BOAT COMMISSION
Subpart B. FISHING
CHAPTER 51. ADMINISTRATIVE PROVISIONS
Subchapter K. CIVIL PENALTY
FORFEITURE PROCESSSec.
51.101. General. 51.102. Initiation of process. 51.103. Compliance notification. 51.104. Order to show cause for forfeiture of civil penalty. 51.105. Amount of proposed civil penalty forfeiture. 51.106. Procedure in lieu of hearing. 51.107. Hearings. 51.108. Report of the presiding officer. 51.109. Final administrative action. § 51.101. General.
(a) Under section 3510(h) of the code (relating to marking of dams), a person failing to comply with section 3510(a) or (b) of the code shall forfeit a civil penalty of not less than $500 nor more than $5,000.
(b) Under section 3510(h) of the code, a person failing to comply with section 3510(c) of the code shall forfeit a civil penalty of not less than $250 nor more than $5,000.
(c) The civil penalties described in subsections (a) and (b) may be recovered by civil suit or process in the name of the Commonwealth. The purpose of this subchapter is to describe the administrative process for forfeiture of civil penalties under the code.
§ 51.102. Initiation of process.
(a) The administrative process to effect the forfeiture of a civil penalty under section 3510(h) of the code may be initiated by any person authorized to enforce the code and any employe of the Commission or the Department of Environmental Protection authorized by the Executive Director to initiate the process.
(b) A person authorized to initiate the process under subsection (a) shall do so by completing a report on a form approved by the Executive Director. The report, to be executed under penalty of law, will, at a minimum, describe:
(1) The name of the owner or permittee of the dam.
(2) The location of the dam, including county and township or other political subdivision.
(3) The dates the dam was inspected.
(4) The nature of the noncompliance.
§ 51.103. Compliance notification.
(a) Prior to serving an order to show cause for civil penalty under section 3510 of the code, the Executive Director or a designee will send the owner or permittee of the dam in question a written compliance notification that will describe the nature of the alleged noncompliance with section 3510 of the code.
(b) The compliance notification shall give the owner or permittee of the dam not less than 15 nor more than 30 days to demonstrate to the satisfaction of the Executive Director or a designee that the owner or permittee has brought the dam into compliance with section 3510 of the code or face forfeiture of civil penalties.
§ 51.104. Order to show cause for forfeiture of civil penalty.
(a) If the owner or permittee fails to demonstrate compliance after the notification described in § 51.103 (relating to compliance notification), the Executive Director or a designee will serve on the owner or permittee of the dam an order to show cause for forfeiture of civil penalty in a form approved by the Executive Director or designee. Service will be by registered or certified mail, or by personal service. If the mail is tendered at the address in the permit, or at an address where the owner or permittee is located, and delivery is refused, or mail is not collected, the requirements of this section shall be deemed to have been complied with upon tender.
(b) The owner or permittee who has been served with an order to show cause in accordance with subsection (a) has 30 days to file an answer to the order to show cause. If no answer is submitted, the failure to submit a timely answer will operate as a waiver and the proposed forfeiture of civil penalty will become a final forfeiture upon the expiration of the 30-day period unless the Executive Director or a designee determines to hold a hearing on the proposed forfeiture under the procedures in § 51.107 (relating to hearings).
§ 51.105. Amount of proposed civil penalty forfeiture.
(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.
(b) Maximum penalty. If consideration of the factors described in this section yields a penalty in excess of the statutory maximum, the maximum civil penalty will be proposed for that violation.
(c) Revision of proposed civil penalty. The Executive Director, upon his own initiative or upon written request received within 15 days of issuance of an order to show cause, may revise a proposed civil penalty calculated in accordance with the dollar limits in subsection (a). If the Executive Director revises the civil penalty, the Department of Environmental Protection will use the general criteria in subsection (a) to determine the appropriate civil penalty. When the Executive Director has elected to revise a civil penalty, he will give a written explanation of the basis for the revised civil penalty to the dam owner or permittee to whom the order to show cause was issued.
§ 51.106. Procedure in lieu of hearing.
(a) When for any reason a hearing is not held with regard to forfeiture, the entire written file on the case shall be submitted to the Commission, which will review the matter and make a final determination as to its disposition. The action of the Commission is considered the final agency action.
(b) Subsection (a) supersedes 1 Pa. Code § 35.226 (relating to final orders).
§ 51.107. Hearings.
(a) If an owner or permittee of a dam requests a hearing, or the Executive Director or a designee determines a hearing is appropriate, the Executive Director will appoint a presiding officer to conduct the hearing on behalf of the Commission. This subsection supersedes 1 Pa. Code § 35.185 (relating to designation of presiding officers).
(b) Hearings will be conducted at the Harrisburg office of the Commission or at another location the presiding officer or Executive Director may designate. Dam owners or permittees will be given at least 10 days written notice of the date and time of the hearing.
(c) The burden of proof to justify the proposed forfeiture will be on the Commission to prove by a preponderance of the evidence that the proposed action is justified by the facts and circumstances.
(d) The presiding officer will permit either oral argument at the conclusion of the hearing or the filing of written briefs, but not both, except in cases of extraordinary complexity when the presiding officer finds, upon motion of the parties or his own motion, that the ends of justice require allowance of both. When briefs are to be filed, the procedures of 1 Pa. Code §§ 35.191--35.193 (relating to proceedings in which briefs are to be filed; content and form of briefs; and filing and service of briefs) will be followed. This subsection supersedes 1 Pa. Code § 35.204 (relating to oral argument before presiding officer).
§ 51.108. Report of the presiding officer.
(a) After the hearing is closed, the transcript prepared, and briefs, if any, received, the presiding officer will prepare a proposed report, the contents of which shall be in substantial compliance with 1 Pa. Code § 35.205 (relating to contents of proposed reports).
(b) A copy of the proposed report shall be served on the owner or permittee of the dam, the Commission staff and other parties of record who shall thereafter have 30 days to file exceptions to the report together with any brief on exceptions. Briefs opposing exceptions may be filed in accordance with 1 Pa. Code § 35.211 (relating to procedure to except to proposed report).
(c) If no timely exceptions to the proposed report are filed, the proposed report will be considered the final administrative adjudication of the Commission.
(d) If exceptions to the proposed report are filed, the proposed report, together with the entire record, the briefs, the exceptions, and briefs on and opposing exceptions will be subject to review by the Commission under § 51.109 (relating to final administrative action).
§ 51.109. Final administrative action.
(a) When exceptions are filed to the proposed report or which are disposed of under § 51.106 (relating to procedure in lieu of hearing), the members of the Commission will review the case file, together with other matters of record and filings in the proceedings. At a public meeting convened under 65 Pa.C.S. Chapter 7 (relating to the Sunshine Act), the Commission will consider the matter. Unless ordered by the Commission, oral argument will not be permitted at the public meeting nor will the respondent be permitted to reargue or retry matters that were raised or could have been raised before the presiding officer. The Commission will vote to approve or disapprove a proposed report or, in cases under § 51.106, to issue an order as appropriate.
(b) The action by the Commission will be considered the final administrative adjudication with respect to the forfeiture of civil penalties. The dam owner or permittee will be notified in writing of the final action. The final order will be considered officially entered on the date it is mailed or otherwise served, whichever comes first.
(c) If, after the entry of a final order, the dam owner or permittee files a timely petition for review or judicial appeal of the adjudication, the owner or permittee may apply in writing to the Executive Director for a stay of the effective date of the order. The filing of a petition for review or judicial appeal does not operate as an automatic stay. The Executive Director may grant a stay for good cause shown.
[Pa.B. Doc. No. 00-1505. Filed for public inspection September 1, 2000, 9:00 a.m.]
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