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###### Department of Commerce

###### National Oceanic and Atmospheric Administration

          - [Docket No. 101014509-0508-01] 
          - RIN 0648-XZ62 

# AGENCY:

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

# ACTION:

Notice of availability; request for comments.

# SUMMARY:

The National Oceanic and Atmospheric Administration (NOAA) announces the availability of a draft Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions (Penalty Policy) for public review and comment. 

# DATES:

The draft Penalty Policy will remain available for public review until December 20, 2010. To ensure that comments will be considered, NOAA must receive written comments by December 20, 2010. 

# ADDRESSES:

Interested persons may submit comments by any of the following methods: 
      -  Electronic Submissions:                          Submit electronic public comments via the Federal e-Rulemaking portal                          http://www.regulations.gov                          or                          penaltypolicy@noaa.gov; 
      -  Fax:                          301 427-2210; Attn: Frank Sprtel;                     
      -  Mail:                          Office of General Counsel for Enforcement and Litigation, National Oceanic and Atmospheric Administration, 8484 Georgia Avenue, Suite 400, Silver Spring, MD 20910, Attn: Frank Sprtel.                     

                        The draft Penalty Policy is available electronically at the following Web site:                         *http://www.nmfs.noaa.gov/​ole/​penaltypolicy.html.*                         Commenters may also request a hard copy of the draft Penalty Policy by sending a self-addressed envelope (size 8.5 x 11 inches) to the street address provided above. Comments submitted in response to this notice are a matter of public record. Before including an address, phone number, e-mail address, or other personal identifying information in a comment, please be aware that comments—including any personal identifying information—can and will be made publicly available. While a request can be made to withhold personal identifying information from public review, NOAA cannot ensure that it will be able to do so.                     

# FOR FURTHER INFORMATION CONTACT:

Frank Sprtel at the above address or by telephone at 301 495-7147. 

# SUPPLEMENTARY INFORMATION:

                    The draft 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 draft Penalty Policy, the purpose of the 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 particular violators and the regulated community 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                           ( print page 64988)                        transparency in enforcement, and more effectively protect natural resources.                 

Under the proposed penalty policy, penalties and permit sanctions are based on three criteria: (1) A base penalty amount and permit sanction reflective of the seriousness of the violation; (2) an adjustment of the base penalty and permit sanction upward or downward to reflect particular circumstances of a specific violation; and (3) an additional amount added to the adjusted base penalty to recoup the 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 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. 

When finalized, this draft Penalty Policy will supersede previous guidance regarding assessment of penalties or permit sanctions and previous penalty and permit sanction schedules issued by the NOAA Office of the General Counsel. This Penalty Policy provides guidance for the NOAA Office of the 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 penalty policy, along with examples, matrixes, and schedules, can be found at                     *http://www.nmfs.noaa.gov/​ole/​penaltypolicy.html.*                     NOAA is seeking public comment on all portions of the penalty policy, but specifically asks for comment in the following areas: (1) The handling of recreational, versus commercial, activity in assessing penalties—specifically, whether to create separate matrixes and/or schedules for recreational activity in the penalty policy, or to leave such distinctions as an “adjustment” factor, as currently written; (2) the evaluation of prior violations in assessing penalties—specifically, whether to create upward penalty assessments based on prior charged conduct, or only to consider prior conduct that is fully adjudicated; (3) whether the proposed use of permit sanctions in the penalty policy is appropriate; (4) whether any additional upward or downward “adjustment” factors should be considered in assessing penalties under the penalty policy; (5) whether the matrixes and schedules in the penalty policy (Appendices 2 and 3), adequately reflect an appropriate range of penalties for particular violations; and (6) whether there should be any change in the proposed method of calculating economic benefit in the penalty policy.                 

Dated: October 15, 2010.

Lois J. Schiffer, 

General Counsel, National Oceanic and Atmospheric Administration. 

[FR Doc. 2010-26417 Filed 10-15-10; 4:15 pm]

BILLING CODE 3510-12-P