Marine Commercial License Suspension and Revocation Policy
I. Purpose
To establish policy guidelines, procedures, and definitions necessary to administer marine commercial license and permit suspensions and revocations as provided in 6NYCRR part 175.5.
II Background
Authority and general procedures for revoking and suspending marine commercial licenses and permits are set forth in 6NYCRR Part 175.5. To implement such revocations additional policy guidelines are needed. Such guidelines are needed to establish the recommended duration of revocations for various violations of the ECL and regulations, based on number of convictions, relative seriousness of offenses and defined mitigating circumstances. This will ensure that individual revocation decisions are grounded in a policy framework so that such decisions are consistent and are not arbitrary and capricious.
III Policy
It shall be the policy of the Department to ensure consistent, fair, and effective marine commercial license and permit suspensions and revocations.
IV Responsibility
The policy will be carried out by the Divisions of Fish, Wildlife, and Marine Resources and Law Enforcement following the procedures set forth in 6NYCRR part 175.5. The Chief Administrative Law Judge or his/her designee will conduct hearings and render decisions on appeals made under 6NYCRR Part 175.5 pursuant to authority previously delegated by the Directors of Marine Resources and Fish and Wildlife.
V Procedures
1. The Department is broadly authorized under Articles 3, 11, 13, and 71 to suspend or revoke licenses and permits as a result of non-compliance. Procedures for suspension and revocation are set forth in 6NYCRR Part 175.5. In accordance with Part 175.5(a) grounds for revocation include (1) materially false or inaccurate statements in the application, supporting papers or required reports; (2) failure by the licensee or permittee to comply with any terms or conditions of the license or permit; (3) exceeding the scope of the purpose or activities described in the application; (4) noncompliance with any provisions of the Environmental Conservation Law, any other State or Federal laws or regulations of the department directly related to the licensed or permitted activity; and (5) checks, money orders or vouchers, submitted by the applicant for a license, permit or application fee which are subsequently returned to the department for insufficient funds or nonpayment after the license or permit has been issued.
2. This is a draft of the proposed policy guidelines for non-mandatory suspension and revocation of marine resource licenses and permits. The draft consists of: description of Group A and Group B licenses and permits; schedule of revocation and suspension durations; and table of revocation and suspension standards.
The table of revocation and suspension standards identifies all potential marine resource violations, assigns each violation to Group A or B, and assigns a priority of 1 to 5 (1 being least serious, 5 being most serious) for a 1st, 2nd, or 3rd+ conviction. "Conviction" is defined below. The table of revocation and suspension standards will be updated periodically, consistent with this policy, to reflect changes in the ECL and Rules and Regulations. Notice of updating will be made in the Environmental Notice Bulletin.
The description of Group A and B explains the difference between two types of licenses/permits: Those that authorize activity that generally produce all business activity or income of the holder (Group A), and those that authorize generally a portion or limited amount of business activity or income of the holder (Group B). please note that this is a distinction between a type of license or permit and not a distinction between whether the holder works full or part time in the activity.
The schedule of revocation and suspension durations identifies a proposed duration of revocation and suspension for Groups A and B licenses/permits and for priority 1 to 5 convictions (priorities are referred to here as "Class 1" to "Class 5"), and also discusses adjustment factors that can affect the length or timing of revocations and suspensions.
3. This policy will not supercede the provisions for mandatory license revocation under ECL 71-0927.
4. Definition of Conviction: For the purposes of this policy "conviction" is defined as any settlement resulting from an original Environmental Conservation Law (ECL) charge where a party is found liable, judged guilty, or accepts a plea for an offense. "Conviction" includes settlements that are criminal dispositions, civil dispositions, and consent orders. For the purposes of this policy, convictions shall only include dispositions of offenses that occurred subsequent to the date of adoption of this policy.
5. Definition of probation: Where a permittee has been sentenced to a period of probation as a result of a violation of the ECL or 6NYCRR, and if the permittee should be charged with a subsequent violation of the ECL or 6NYCRR, then the Department will issue a Notice of Intent to Revoke the permittee's license.
6. The policies and procedures set out in this document are intended solely for the use and guidance of DEC personnel. They are not intended to create any substantive or procedural rights, enforceable by any party in administrative and judicial litigation with the State of New York. DEC reserves the right to act at variance with these policies and procedures and to change them at any time without public notice. Administrative Law Judges and prosecuting representatives of the Department of Environmental Conservation (DEC) should consider this guidance in recommending penalty terms for all Orders executed by or for the Commissioner of Environmental Conservation.
Group A/Group B Description
Group A - Licenses and/or permits which authorize activities that generally produce all or essentially all the business activity and/or income* of the holder. These include commercial food fish licenses, commercial lobster licenses, shellfish diggers permits, shellfish shippers permits, surf clam permits, microbiological cleansing permits, shellfish transplant permits, marine hatchery permits, and on/off bottom culture permits.
Group B - Licenses and/or permits which authorize activities that generally produce only a portion or limited amount of the business activity and/or income of the holder. All other permits and licensed fall into this Group.
*Based on general/potential importance of permit/license to holders thereof. Individual income circumstances are not relevant to placement in the Group.
License/permit Revocation Durations
I. Schedule of Recommended Revocation Lengths| Group A | Group B | |
|---|---|---|
| Class 1 | No action | No action |
| Class 2 | Warning | Warning/probation |
| Class 3 | 30 days | 90 days |
| Class 4 | 90 days | 1 year |
| Class 5 | 180 days, also for 2 class 5's within 5 years, suspend/revoke all licenses and permits |
3 years, also suspend/revoke any related "umbrella" licenses + for 2 Class 5's within 5 years, suspend/ revoke all permits, licenses |
Note: All revocation lengths are considered minimums. Longer durations may be warranted, based on "adjustment factors" - see below.
II. Adjustment Factors - The following factors should be used to adjust the length or timing of a revocation:
- Ability of revokee to recoup income lost during revocation period;
- Schedule revocations so they do not overlap with scheduled season closures or periods of low activity;
- Criminal conduct associated with the violation and seriousness of violation;
- Parties on probation when a new violation is documented should get a longer revocation.
