2011-9021. Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions

AGENCY:

Office of General Counsel (OGC), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

ACTION:

Notice of issuance; final policy.

SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) announces the publication and issuance of a final Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions (Penalty Policy).

DATES:

The final Penalty Policy was issued on March 16, 2011, and became effective on that date.

ADDRESSES:

The final Penalty Policy is available electronically on NOAA's website at http://www.gc.noaa.gov/​enforce-office1.html. A paper copy of the Penalty Policy may be requested by sending a self-addressed envelope (size 8.5 x 11 inches) to the individual under the heading FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT:

Frank Sprtel by telephone at [phone]; by fax at [phone]; by e-mail at [e-mail]; or by mail at: Office of General Counsel for Enforcement and Litigation, National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910.

SUPPLEMENTARY INFORMATION:

The Penalty Policy is intended to provide guidance for the assessment of civil administrative penalties and permit sanctions under the statutes and regulations enforced by NOAA. As explained more fully in the text of the policy, the purpose of the Penalty Policy is to ensure that: (1) Civil administrative penalties and permit sanctions are assessed in accordance with the laws that NOAA enforces in a fair and consistent manner; (2) penalties and permit sanctions are appropriate for the gravity of the violation; (3) penalties and permit sanctions are sufficient to deter both individual violators and the regulated community as a whole from committing violations; (4) economic incentives for noncompliance are eliminated; and (5) compliance is expeditiously achieved and maintained to protect natural resources. Under this Policy, NOAA expects to improve consistency at a national level, provide greater predictability for the regulated community and the public, improve transparency in enforcement, and more effectively protect natural resources.

Under the new Penalty Policy, penalties and permit sanctions are based on two criteria: (1) A “base penalty” calculated by adding an initial base penalty amount and permit sanction reflective of the gravity of the violation and the culpability of the violator and adjustments to the initial base penalty and permit sanction upward or downward to reflect the particular circumstances of a specific violation; and (2) an additional amount added to the base penalty to recoup the proceeds of any unlawful activity and any additional economic benefit of noncompliance. We note that the new Penalty Policy is a departure from NOAA's prior practice of developing detailed penalty schedules by region and by specific types of violations with broad ranges for both penalty and permit sanctions. The new policy uses a simplified approach of one penalty and permit sanction matrix for each major statute that NOAA enforces, to be applied nationally, with narrower penalty and permit sanction ranges. This approach assures that NOAA attorneys are provided with greater guidance in recommending penalties, and should assure fairness and consistency of approach across NOAA statutes, across fisheries, and across the country.

NOAA sought public comment on the proposed draft penalty policy between October 21, 2010 and December 20, 2010. NOAA received written input on the proposed policy from regional fishery management councils, industry trade groups, commercial interests, nonprofit organizations, academic institutions, and federal, state, and interstate agencies. A summary of the comments received along with NOAA's responses to these comments is available at the website above.

The final Penalty Policy supersedes previous guidance regarding assessment of penalties or permit sanctions and previous penalty and permit sanction schedules issued by the NOAA Office of General Counsel, and goes into effect immediately for any cases charged after its issuance date. This Penalty Policy provides guidance for the NOAA Office of General Counsel, but does not, nor is it intended to, create a right or benefit, substantive or procedural, enforceable at law or in equity, in any person or company.

The full final Penalty Policy, along with examples, matrixes, and schedules, may be found at http://www.gc.noaa.gov/​enforce-office1.html.

Dated: April 5, 2011.

Lois J. Schiffer,

General Counsel, National Oceanic and Atmospheric Administration.