Revisions to NOAA's Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions
| Published date | 02 May 2019 |
| Citation | 84 FR 18808 |
| Record Number | 2019-08895 |
| Section | Notices |
| Court | National Oceanic And Atmospheric Administration |
18808
Federal Register / Vol. 84, No. 85 / Thursday, May 2, 2019 / Notices
Endangered Species Act
Section 7(a)(2) of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et
seq.) requires that each Federal agency
insure that any action it authorizes,
funds, or carries out is not likely to
jeopardize the continued existence of
any endangered or threatened species or
result in the destruction or adverse
modification of designated critical
habitat. To ensure ESA compliance for
the issuance of IHAs, NMFS consults
internally, in this case with the NMFS
Greater Atlantic Regional Fisheries
Office (GARFO), whenever we propose
to authorize take for endangered or
threatened species.
The NMFS Office of Protected
Resources is authorizing the incidental
take of three species of marine mammals
which are listed under the ESA: The
North Atlantic right, fin, and sperm
whale. BOEM consulted with NMFS
GARFO under section 7 of the ESA on
commercial wind lease issuance and
site assessment activities on the Atlantic
Outer Continental Shelf in
Massachusetts, Rhode Island, New York
and New Jersey Wind Energy Areas.
NMFS GARFO issued a programmatic
Biological Opinion in 2013 concluding
that these activities may adversely affect
but are not likely to jeopardize the
continued existence of the North
Atlantic right, fin, and sperm whale.
The Biological Opinion was later
amended to include the Office of
Protected Resources as an action agency.
The Biological Opinion can be found
online at: www.fisheries.noaa.gov/
national/marine-mammal-protection/
incidental-take-authorizations-other-
energy-activities-renewable. The
programmatic consultation established a
procedure for reviewing future actions
to determine if they and their effects fell
within the scope of the Biological
Opinion, and noted that for future
MMPA authorizations for such
activities, the Biological Opinion’s
incidental take statement (ITS) could be
amended to exempt the take of ESA
listed marine mammals. In April 2018,
NMFS GARFO amended the ITS to
exempt the take of right, sperm and fin
whales as a result of the site
characterization surveys authorized via
the previously issued IHA.
NMFS GARFO has determined that
the 2013 Biological Opinion remains
valid and that this MMPA authorization
provides no new information about the
effects of the action, nor does it change
the extent of effects of the action, or any
other basis to require reinitiation of the
opinion. The Biological Opinion meets
the requirements of section 7(a)(2) of the
ESA and implementing regulations at 50
CFR 402 for our issuance of an IHA
under the MMPA, and no further
consultation is required.
Renewal
NMFS has issued an IHA Renewal to
Equinor for conducting marine site
characterization surveys off the coast of
New York and coastal waters where
cable route corridors will be established,
from April 24, 2019 through April 23,
2020.
Dated: April 29, 2019.
Donna S. Wieting,
Director, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. 2019–08949 Filed 5–1–19; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[Docket No. 190325274–9274–01]
RIN 0648–XG926
Revisions to NOAA’s Policy for the
Assessment of Civil Administrative
Penalties and Permit Sanctions
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 draft
revisions to NOAA’s Policy for the
Assessment of Civil Administrative
Penalties and Permit Sanctions (Penalty
Policy) for public review and comment.
The revisions to the policy reflect new
legislation enacted and regulations
promulgated, the most recent
adjustments to the maximum civil
monetary penalties authorized under
statutes administered and enforced by
NOAA, pursuant to the Federal Civil
Penalties Inflation Adjustment Act of
1990, and clarifications to improve
enforcement consistency nationally,
increase predictability in enforcement,
improve transparency in enforcement,
and more effectively protect natural
resources.
DATES
: The draft revisions to the Penalty
Policy will remain available for public
review until June 3, 2019. To ensure
that comments will be considered,
NOAA must receive written comments
by June 3, 2019.
ADDRESSES
: Interested persons may
submit comments by any of the
following methods:
•Electronic Submissions: Submit
electronic public comments, identified
by NOAA–HQ–2019–0029, at http://
www.regulations.gov. The docket
established for this rule-making can be
found at: http://www.regulations.gov/
#!docketDetail;D=NOAA-HQ-2019-0029.
Click the ‘‘Comment Now!’’ icon,
complete the required fields, and enter
or attach your comments.
•Mail: Enforcement Section, Office
of the General Counsel, National
Oceanic and Atmospheric
Administration, 1315 East-West
Highway, SSMC–3 15424, Silver Spring,
MD 20910, Attn: Meggan Engelke-Ros.
The draft revisions to the Penalty
Policy are available electronically at the
following website: https:/
www.gc.noaa.gov/enforce-office3.html.
Commenters may also request a hard
copy of the draft revisions to the 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, email 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.
Comments submitted electronically
will generally be posted to http://
www.regulations.gov without change.
For posted comments, all personal
identifying information (e.g., name,
address, etc.), confidential business
information, or otherwise sensitive
information submitted voluntarily by
the sender is publicly accessible. NOAA
will accept anonymous comments (enter
‘‘N/A’’ in the required fields if you wish
to remain anonymous).
FOR FURTHER INFORMATION CONTACT
:
Meggan Engelke-Ros at 301–427–2202.
SUPPLEMENTARY INFORMATION
: On April
14, 2011, NOAA published its new
NOAA Policy for the Assessment of
Civil Administrative Penalties and
Permit Sanctions (76 FR 20959). On July
1, 2014, NOAA issued a revised Penalty
Policy. As explained more fully in the
text of the revised Penalty Policy, the
purpose of this Policy is to continue 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
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18809
Federal Register / Vol. 84, No. 85 / Thursday, May 2, 2019 / Notices
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.
This revised Penalty Policy also
reflects legislation passed and
regulations promulgated since issuance
of the 2014 Policy, in particular:
•The Illegal, Unreported, and
Unregulated Fishing Enforcement Act of
2015, Public Law 114–81, which
implemented the Agreement on Port
State Measures to Prevent, Deter and
Eliminate Illegal, Unreported, and
Unregulated Fishing and amended the
enforcement provisions of a number of
statutes administered by NOAA; and
•The most recent adjustments to the
maximum civil monetary penalties
authorized under statutes administered
and enforced by NOAA, pursuant to the
Federal Civil Penalties Inflation
Adjustment Act of 1990 (see 84 FR
2445, February 7, 2019).
Under this revised Policy, NOAA will
continue to promote consistency at a
national level, provide greater
predictability for the regulated
community and the public, maintain
transparency in enforcement, and more
effectively protect natural resources.
The major changes to the existing
Penalty Policy made by this revision
include:
(1) Additional clarity on what would
be considered ‘‘such other matters as
justice may require’’ under the
adjustment factors;
(2) Clarification on our policy for
when and how the newly adjusted
statutory penalty maximums will apply;
(3) Clarification of the policy on
application of prior offenses to penalty
assessments;
(4) Updates to the penalty schedules
to reflect new statutory authorities or
regulations;
(5) Adjustments to the penalty
matrixes to reflect the most recent
adjustments to the maximum civil
monetary penalties.
Some of the statutory adjustments to
the maximum civil monetary penalties
were significant and required a
rebalancing of our distribution of the
penalty ranges in the penalty matrixes.
In making these adjustments, there were
two primary considerations that affected
the revised penalty matrixes. First, for
each matrix that was adjusted, a
percentage increase was applied across
the entire matrix and the percentage
increase was, in all cases, less than the
percentage increase to the statutory
maximum (numbers were rounded).
This was done so as to take a
conservative approach to the statutory
penalty increases, which reflected a
‘‘catch-up’’ application of adjustments
for inflation causing some significant
penalty increases. Second, the matrixes
were adjusted to ensure each individual
matrix utilized the full penalty range in
a balanced manner so that the penalty
ranges increased gradually as the gravity
level of the violations increased, rather
than having an exponential increase in
penalty ranges from one gravity level to
the next.
The revised Penalty Policy will
supersede the previous Penalty Policy
regarding the assessment of penalties or
permit sanctions, and previous penalty
and permit sanction schedules issued by
the NOAA Office of General Counsel.
This Penalty Policy provides guidance
for the NOAA General Counsel’s Office
in assessing penalties but is not
intended to create a right or benefit,
substantive or procedural, enforceable at
law or in equity, in any person or
company. NOAA retains discretion to
assess the full range of penalties
authorized by statute in any particular
case.
The full revised Penalty Policy, along
with examples, matrixes, and schedules
can be found at https://
www.gc.noaa.gov/enforce-office3.html.
More information about the NOAA
General Counsel Enforcement Section
can be found at https://
www.gc.noaa.gov/enforce-office.html.
Dated: April 25, 2019.
Jeff Dillen,
Deputy General Counsel, National Oceanic
and Atmospheric Administration.
[FR Doc. 2019–08895 Filed 5–1–19; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XG818
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to U.S. Navy
Target and Missile Launch Activities
on San Nicolas Island, California
AGENCY
: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION
: Notice; proposed incidental
harassment authorization; request for
comments on proposed authorization
and possible renewal.
SUMMARY
: NMFS has received a request
from the U.S. Navy (Navy) for
authorization to take marine mammals
incidental to target and missile launch
activities on San Nicolas Island (SNI),
California for the Naval Air Warfare
Center Weapons Division (NAWCWD),
Point Mugu Sea Range (PMSR).
Pursuant to the Marine Mammal
Protection Act (MMPA), NMFS is
requesting comments on its proposal to
issue an incidental harassment
authorization (IHA) to incidentally take
marine mammals during the specified
activities. NMFS is also requesting
comments on a possible one-year
renewal that could be issued under
certain circumstances and if all
requirements are met, as described in
Request for Public Comments at the end
of this notice. NMFS will consider
public comments prior to making any
final decision on the issuance of the
requested MMPA authorizations and
agency responses will be summarized in
the final notice of our decision. The
Navy’s activity is considered a military
readiness activity pursuant to MMPA, as
amended by the National Defense
Authorization Act for Fiscal Year 2004
(NDAA).
DATES
: Comments and information must
be received no later than June 3, 2019.
ADDRESSES
: Comments should be
addressed to Jolie Harrison, Chief,
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service. Physical
comments should be sent to 1315 East-
West Highway, Silver Spring, MD 20910
and electronic comments should be sent
to ITP.Egger@noaa.gov.
Instructions: NMFS is not responsible
for comments sent by any other method,
to any other address or individual, or
received after the end of the comment
period. Comments received
electronically, including all
attachments, must not exceed a 25-
megabyte file size. Attachments to
electronic comments will be accepted in
Microsoft Word or Excel or Adobe PDF
file formats only. All comments
received are a part of the public record
and will generally be posted online at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-under-
marine-mammal-protection-act without
change. All personal identifying
information (e.g., name, address)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
FOR FURTHER INFORMATION CONTACT
:
Stephanie Egger, Office of Protected
Resources, NMFS, (301) 427–8401.
Electronic copies of the application and
supporting documents, as well as a list
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