Cal. Code Regs. Tit. 14, § 747 - Guidelines for Imposing Civil Penalties

(a) Purpose and Scope.

The provisions of this section shall be applicable for the purposes of imposing civil liability and civil penalties under Fish and Game Code sections 500 and 2580- 2589 for violations described therein.

(b) Definitions.

Definitions in the Fish and Game Code and regulations adopted pursuant thereto shall apply to this section unless otherwise provided herein.

For purposes of this section, the following definitions shall apply:

(1) The term "act done for profit or personal gain" shall mean an act done for the purpose of improving or which results in an improved financial, material, possessory or other position for the person. To establish that an act was done for profit or personal gain. the department need not establish that the value or benefit received from the act exceeded the costs of accomplishing the act.

(2) "Code" is defined as the Fish and Game Code.

(3) "Regulations" are defined as Title 14, Division 1, California Code of Regulations.

(4) "Civil penalty" shall mean both civil liability for prohibited acts as outlined in Section 2582 of the Code and civil penalty for prohibited acts as outlined in Section 2583 of the Code.

(5) "Item" shall mean an animal or its carcass in its entirety, or if the carcass is no longer maintained in its entirety, any part or product thereof.

(c) Imposition of Civil Penalties.

(1) In determining the amount of the civil penalty to be proposed in the complaint pursuant to sections 2582 and 2583 of the Code, and in determining the final civil penalty to be imposed pursuant to sections 2582 and 2583 of the Code, the Director shall consider the same factors, penalties and considerations as set forth for use by the qualified referee or hearing board (see subdivision (B) of section 2584 of the Fish and Game Code).

(2) If a violator has been previously put in jeopardy for the same act or conduct for which an action for a civil penalty is brought, the penalty established by the qualified referee or hearing board shall bear a rational relationship to compensating the State for its loss and will not be based upon the penalty criteria set forth below. In determining the loss to the State, the qualified referee or hearing board shall consider, among other things, investigation and prosecution fees and costs and reasonable liquidated damages, in addition to the impact that the violation had upon the resources.

(3) If the violation involves birds, mammals, amphibians, reptiles, or fish with a value in the aggregate of less than four hundred dollars ($400) and involves only the transporting, taking or receipt of fish or wildlife taken or possessed in violation of the Code, the civil penalty shall not exceed the maximum criminal fine provided by law for the violation in the Code or ten thousand dollars ($10,000), whichever is less.

(4) Civil penalties shall be imposed on a per item basis unless:

(A) Any of the aggravating factors specified in subsection (c)(8) of this section are found by the qualified referee or hearing board to be present. If any of the aggravating factors are found, the qualified referee or hearing board can impose the penalties as set forth in that subsection;

(B) The qualified referee or hearing board determines that it is impracticable to use a per item basis. In this case, the qualified referee or hearing board can determine a reasonable unit of measure and may impose a penalty based on that, but in no case can the cost per unit exceed the maximum per item penalty set forth below; or

(C) A mitigating factor is found by the qualified referee or hearing board to be present.

(5) The qualified referee or hearing board shall use the following considerations in assessing civil penalties within the ranges set forth below:

(A) The gravity of the violation, imposing lesser penalties for acts which have little significant effect upon the resources, and greater penalties for acts which may cause serious injury to the resources;

(B) The particular nature, extent, and circumstances of the violation; and

(C) The characteristics of the violator, including the violator's assets and other resources so as to ascertain the appropriate penalty level to deter future violations. This assessment shall also include a review of the violator's degree of culpability and involvement in the activity.

(6) In setting the civil penalties for acts set forth in sections 2582 and 2583 of the Code, the qualified referee or hearing board will base the penalty upon the fair market value of the item(s) plus the amounts for the items listed below. If no fair market value exist for the item, the Department may use any generally accepted valuation methodology generally in use at the time plus the amounts listed below:

	(A)	Big game as defined in Section 350 of the Regulations:	$400	-	$15,000
	(B)	Resident small game as defined in Section 257 of the Regulations:	$ 50	-	$ 1,000
	(C)	Migratory game birds as defined in Section 3500 of the Code:	$ 50	-	$ 1,000
	(D)	Nongame birds as defined in Section 3800 of the Code:	$ 50	-	$ 500
	(E)	Furbearing mammals as defined in Section 4000 of the Code:	$ 50	-	$ 1,000
	(F)	Marine mammals as defined in Section 4500 of the Code:	$400	-	$10,000
	(G)	Nongame mammals as defined in Section 4150 of the Code:	$ 50	-	$ 1,000
	(H)	Threatened, endangered, fully protected, specially protected and rare insects and animals as defined in sections 3511, 4700, 4800 and 5515 of the Code and Section 670.5 of the Regulations:	$400	-	$10,000
	(I)	Threatened, endangered, or rare plants, as defined in Section 670.2 of the Regulations:	$400	-	$ 5,000
	(J)	Fish as defined in Section 45 of the Code:	$.01	-	$ 1,000
	(K)	Reptiles:	$ 50	-	$ 1,000
	(L)	Wild animals as defined in Section 671 of the Regulations:	$400	-	$ 5,000

(7) In addition to the foregoing penalties, the qualified referee or hearing board may impose civil penalties for acts set forth in Code sections 2582(b) and 2582(c) and 2583 in the amounts as follows:

(A) Unlawfully exporting, importing, possessing, receiving, or transporting in interstate commerce any container or package that has not been marked, labeled, or tagged in accordance with the Code or Regulations and contains any bird, mammal, amphibian, reptile, or fish, or any endangered, rare, or threatened species, or any fully protected bird, mammal, amphibian, reptile or fish, or any part thereof, up to $1,000.00 for each container or package. The penalty under this section cumulatively shall not exceed $10,000.00 for acts or conduct taking place within a 24-hour period.

(B) Unlawful failure or refusal to maintain records or paperwork required by the Code or Regulations for the payment of taxes, fees, charges, or for export, import, possession, receipt or transport, up to $l,000.00 for each individual bird, mammal, amphibian, reptile or fish, or any endangered, rare or threatened species, or any full protected bird, mammal, amphibian, reptile or fish or any part thereof. The penalty under this section cumulatively shall not exceed $10,000.00 for acts or conduct taking place within a 24-hour period.

(8) If any one of the following aggravating factors is found by the qualified referee or hearing board to exist, the qualified referee or hearing board may, based on the totality of the circumstances surrounding the violation, impose a civil penalty of up to $10,000 for each bird, mammal, amphibian, reptile, fish or endangered or threatened species, or fully protected bird, mammal or fish:

(A) The violator's conduct was, in the opinion of the qualified referee or hearing board, intentional or reckless;

(B) The violator, within the last five (5) years, has been subject to a criminal or civil penalty for violation of the Code or related codes, been a subject to civil damages, or had any license document, including but not limited to a permit, suspended or revoked. This subsection shall not apply when the previous criminal or civil penalty, civil damage, or license suspension or revocation resulted from acts or conduct which are the same as those for which the civil penalty is currently sought;

(C) The acts of the violator could have resulted or did result in serious injury to the resources of the state;

(D) The acts of the violator were part of an illegal business enterprise or a legal business enterprise conducted illegally; or

(E) The acts of the violator took place in a wildlife management area. legislative refuge, ecological reserve, state marine reserve, state marine park, state marine conservation area, national wildlife refuge, national marine sanctuary, an area of critical concern, within the boundaries of a federal or state park or recreational area, or on other public lands or water set aside for the express purpose of protecting wildlife, plants, or habitat.

(d) If the qualified referee or hearing board finds that the violation was committed incidental to commercial fishing or processing activities, then the she/he shall impose a civil penalty based on the following schedule.

(1) If the illegally taken species constitute less than five percent, wet weight, of the load or lot, the civil penalty shall be $1,000.00, or the civil penalty listed in subsection (c)(6) above, whichever is less.

(2) If the illegally taken species constitutes five percent to ten percent, wet weight, of the load or lot, the civil penalty shall be $2,000.00, or the civil penalty listed in subsection (c)(6) above, whichever is less.

(3) If the illegally taken species constitute more than ten percent, wet weight, of the load or lot, the civil penalty listed in subsection (c)(6) above shall be imposed.

Notes

Cal. Code Regs. Tit. 14, § 747

1. New section filed 8-6-91; operative 9-5-91 (Register 92, No. 4).
2. Amendment of subsection (c)(8)(E) filed 3-8-2005; operative 4-7-2005 (Register 2005, No. 10).

Note: Authority cited: Sections 500 and 2589, Fish and Game Code. Reference: Sections 500 and 2580- 2589, Fish and Game Code.

1. New section filed 8-6-91; operative 9-5-91 (Register 92, No. 4).
2. Amendment of subsection (c)(8)(E) filed 3-8-2005; operative 4-7-2005 (Register 2005, No. 10).