Civil Monetary Penalty Inflation Adjustment Rule, 75340-75346 [E8-29380]
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option under 28 U.S.C. 2675(a) shall not
accrue until six months after the filing
of an amendment.
§ 912.9
[Amended]
4. Amend § 912.9 as follows:
a. In paragraph (b), remove the
address ‘‘P.O. Box 66640, St. Louis, MO
63166–6640’’ and add ‘‘P.O. Box 66640,
St. Louis, MO 63141–0640’’ in its place.
■ b. In paragraph (c), remove the
address ‘‘P.O. Box 66640, St. Louis, MO
63166–6640’’ and add ‘‘P.O. Box 66640,
St. Louis, MO 63141–0640’’ in its place.
■
■
Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. E8–29299 Filed 12–10–08; 8:45 am]
BILLING CODE 7710–12–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 19 and 27
[FRL–8750–4]
RIN 2020–AA46
Civil Monetary Penalty Inflation
Adjustment Rule
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AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Environmental Protection
Agency (EPA) is issuing this final Civil
Monetary Penalty Inflation Adjustment
Rule, as mandated by the Debt
Collection Improvement Act of 1996
(DCIA), to adjust for inflation the
statutory civil monetary penalties that
may be assessed for violations of EPAadministered statutes and their
implementing regulations. The Agency
is required to review the civil monetary
penalties under the statutes it
administers at least once every four
years and to adjust such penalties as
necessary for inflation according to a
formula specified in the DCIA. Table 1
of the regulations, which appears near
the end of this rule, contains a list of all
civil monetary penalty authorities under
EPA-administered statutes and the
applicable statutory amounts, as
adjusted for inflation.
DATES: Effective Date: January 12, 2009.
FOR FURTHER INFORMATION CONTACT:
David Abdalla, Special Litigation and
Projects Division (2248A), Office of
Civil Enforcement, Office of
Enforcement and Compliance
Assurance, U.S. Environmental
Protection Agency, 1200 Pennsylvania
Avenue, NW., Washington, DC 20460,
(202) 564–2413.
SUPPLEMENTARY INFORMATION:
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I. Background
Pursuant to section 4 of the Federal
Civil Penalties Inflation Adjustment Act
of 1990, 28 U.S.C. 2461 note, as
amended by the DCIA, 31 U.S.C. 3701
note, each federal agency is required to
issue regulations adjusting for inflation
the statutory civil monetary penalties 1
(‘‘civil penalties’’ or ‘‘penalties’’) that
can be imposed under the laws
administered by that agency. The
purpose of these adjustments is to
maintain the deterrent effect of civil
penalties and to further the policy goals
of the underlying statutes. The DCIA
requires adjustments to be made at least
once every four years following the
initial adjustment. EPA’s initial
adjustment to each statutory civil
penalty amount was published in the
Federal Register on December 31, 1996
(61 FR 69360), and became effective on
January 30, 1997. EPA’s second and
most recent adjustment to each civil
penalty amount was published in the
Federal Register on February 13, 2004
(69 FR 7121) and became effective on
March 15, 2004 (‘‘the 2004 Rule’’).
This rule, specifically Table 1 in 40
CFR 19.4, adjusts in accordance with
the DCIA the maximum and, in some
cases, the minimum amount of each
statutory civil penalty that may be
imposed for violations of EPAadministered statutes and their
implementing regulations. Table 1
identifies the applicable EPAadministered statutes and sets out the
inflation-adjusted civil penalty amounts
that may be imposed pursuant to each
statutory provision. This rule also
clarifies that the adjusted penalty
amounts in 40 CFR 19.4 are applicable
to violations that occur after the
effective date of this rule.
The formula provided by the DCIA for
determining the cost-of-living
adjustment to statutory civil penalties
consists of a four-step process. The first
step entails determining the inflation
adjustment factor. This is done by
calculating the percentage increase by
which the Consumer Price Index 2 for all
urban consumers (CPI–U) for the month
1 Section 3 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461 note, as
amended by the DCIA, 31 U.S.C. 3701 note, defines
‘‘civil monetary penalty’’ to mean ‘‘any penalty, fine
or other sanction that—(A)(i) is for a specific
monetary amount as provided by federal law; or (ii)
has a maximum amount provided for by federal law
* * *.’’
2 Section 3 of the DCIA defines ‘‘Consumer Price
Index’’ to mean ‘‘the Consumer Price Index for allurban consumers published by the Department of
Labor.’’ Interested parties may find the relevant
Consumer Price Index, published by the
Department of Labor’s Bureau of Labor Statistics, on
the Internet. To access this information, go to the
CPI Home Page at: ftp://ftp.bls.gov/pub/
special.requests/cpi/cpiai.txt.
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of June of the calendar year preceding
the adjustment exceeds the CPI–U for
the month of June of the calendar year
in which the amount of such civil
monetary penalty was last set or
adjusted.3 Accordingly, the inflation
adjustment factor for the present
adjustment equals the CPI–U for June
2007 (i.e., June of the year preceding
this year), divided by the CPI–U for June
2004. Given that the last adjustment was
made and published on February 13,
2004, the inflation adjustment for most
civil penalties set forth in this rule was
calculated by comparing the CPI–U for
June 2004 (189.7) with the CPI–U for
June 2007 (208.352), resulting in an
inflation adjustment factor of 9.83
percent. Certain civil penalties that had
not been adjusted since the initial 1996
adjustment were adjusted by an
inflation adjustment of 32.96 percent
calculated comparing the CPI–U for
June 1996 (156.7) with the CPI–U for
June 2007 (208.352).
Once the inflation adjustment factor is
determined, the second step is to
multiply the inflation adjustment factor
by the current civil penalty amount to
calculate the raw inflation increase. The
third step is to round this raw inflation
increase according to the section 5(a) of
the DCIA. The DCIA’s rounding rules
require that any increase be rounded to
the nearest multiple of: $10 in the case
of penalties less than or equal to $100;
$100 in the case of penalties greater
than $100 but less than or equal to
$1,000; $1,000 in the case of penalties
greater than $1,000 but less than or
equal to $10,000; $5,000 in the case of
penalties greater than $10,000 but less
than or equal to $100,000; $10,000 in
the case of penalties greater than
$100,000 but less than or equal to
$200,000; and $25,000 in the case of
penalties greater than $200,000. (See
section 5(a) of the Federal Civil
Penalties Inflation Adjustment Act of
1990, 28 U.S.C. 2461 note, as amended
by the DCIA, 31 U.S.C. 3701 note.) Once
the inflation increase has been rounded
pursuant to the DCIA, the fourth step is
to add the rounded inflation increase to
the current civil penalty amount to
obtain the new, inflation-adjusted civil
penalty amount.
For most civil penalties, the amount
of the last adjusted civil penalty
reflected in Table 1 of the 2004 Rule
3 Section 5(b) of the DCIA requires that statutory
civil penalties be adjusted to reflect ‘‘the percentage
(if any) for each civil monetary penalty by which—
(1) the Consumer Price Index for the month of June
of the calendar year preceding the adjustment,
exceeds (2) the Consumer Price Index for the month
of June of the calendar year in which the amount
of such civil monetary penalty was last set or
adjusted pursuant to law.’’
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was multiplied by 9.83 percent (the
inflation adjustment) and the resulting
increase amount was rounded up or
down according to the rounding
requirements of the statute. In the case
of statutory civil penalty amounts that
are being adjusted for the first time,
such inflation adjustments are capped at
a 10 percent increase in accordance
with section 31001(s)(2) of the DCIA.
For example, because this rule adjusts
for the first time the administrative and
civil judicial penalty amounts provided
pursuant to ‘‘Title XIV—Certain Alaskan
Cruise Ship Operations’’ of the
Consolidated Appropriations Act of
2001, 33 U.S.C. 1901 note, these civil
penalties, once adjusted for inflation,
are capped at 110 percent of the original
penalty amounts, as enacted. Further,
certain civil penalties that had not been
adjusted since the initial 1996
adjustment were adjusted by an
inflation adjustment of 32.96 percent
calculated by comparing the CPI–U for
June 1996 (156.7) with the CPI–U for
June 2007 (208.352). The last column of
Table 1 below reflects the inflationadjusted civil penalties as of the
effective date of this rule. Assuming
there are no changes to the mandate
imposed by the DCIA, EPA intends to
readjust these amounts in the year 2012
and every four years thereafter.
Section 6 of the DCIA provides that
‘‘any increase under [the DCIA] in a
civil monetary penalty shall apply only
to violations which occur after the date
the increase takes effect.’’ (See section 6
of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461
note, as amended by the DCIA, 31
U.S.C. 3701 note.) Thus, the new
inflation-adjusted civil penalty amounts
may be applied only to violations that
occur after the effective date of this rule.
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II. Technical Revisions to 40 CFR Part
19—Adjustment to Civil Monetary
Penalties for Inflation
After publication of the 2004 Rule,
EPA identified errors in certain sections
of the regulatory language. Many of
these errors also occurred in EPA’s
initial adjustment on December 31, 1996
(61 FR 69360). Because these errors may
prove misleading and are in need of
clarification, with this rulemaking EPA
is correcting the errors described below.
The changes made through these
corrections are all technical in nature
and do not affect the substance of the
rule.
A. Technical Revisions to Sections 19.1
and 19.4
EPA is revising Table 1 of section 19.4
to shorten the penalty description to
refer only to the title of the statute. In
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addition, the Agency has added for
clarity a column that delineates the
statutory penalties, as enacted, before
any inflation adjustments were made.
Further, EPA is revising Table 1 to
clarify that the penalties are effective
‘‘after January 30, 1997 through March
15, 2004’’ rather than using the term
‘‘between January 31, 1997 and March
15, 2004.’’
In addition, because a few of the
statutory civil penalty amounts
pursuant to statutes implemented by
EPA are framed as the minimum penalty
as opposed to the statutory maximum
penalty that can be assessed for a
particular violation, this rule revises
sections 19.1 and 19.4 to remove
references to a ‘‘maximum’’ civil
monetary penalty.4 Specifically, with
this rule, EPA is revising section 19.1 to
make clear that 40 CFR Part 19 applies
to ‘‘each statutory provision under the
laws administered by [EPA] concerning
the civil monetary penalties which may
be assessed in either civil judicial or
administrative proceedings.’’ 5
Similarly, the rule revises the
introductory text to Table 1 of section
19.4 to remove references to
‘‘maximum’’ penalty amounts to read as
follows: ‘‘[t]he adjusted statutory
penalty provisions and their applicable
amounts are set out in Table 1. The last
column in the table provides the newly
effective statutory civil penalty
amounts.’’ Finally, this rule revises the
headings under Table 1 of section 19.4
to refer to ‘‘penalties effective’’ rather
than ‘‘new maximum penalty amount.’’
B. Technical Correction of Statutory
Maximum Penalty Amount Under the
Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA)
The row of Table 1 of 19.4, which lists
the statutory maximum penalty figures
for section 14 of FIFRA, 7 U.S.C.
136l.(a)(2), incorrectly reflected a
statutory maximum penalty of $1,000
for violations after January 30, 1997
through March 15, 2004, and $1,200 for
violations after March 15, 2004 for
subsequent offenses or violations.
Although EPA should have adjusted the
maximum civil penalty in the 1996 rule
from $1,000 to $1,100 for violations
4 For
example, section 311(b)(7)(D) of the Clean
Water Act, 33 U.S.C. 1321(b)(7)(D), provides for
both a minimum and maximum civil penalty that
can be assessed for the discharge of oil or hazardous
substances where the violation was the result of
gross negligence or willful misconduct.
5 The term ‘‘civil monetary penalty’’ is defined
under the DCIA to include both ‘‘a specific
monetary amount’’ as well as a ‘‘maximum amount’’
provided by federal law. See section 3 of the
Federal Civil Penalties Inflation Adjustment Act of
1990, 28 U.S.C. 2461 note, as amended by the DCIA,
31 U.S.C. 3701 note.
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after January 30, 1997 through March
15, 2004, this rule does not adjust the
penalty amount from $1,000 to $1,100
for violations that occurred during that
time period because to do so would be
to increase penalties retroactively
without fair notice to the public. With
this rule, EPA is correcting the row of
Table 1 related to the maximum
statutory penalty amount under FIFRA
section 14 from the amount of $1,200 to
$1,100 for violations after March 15,
2004 through January 12, 2009 to
prevent the assessment of penalties
above the correct statutory maximum
amount that should have been listed in
Table 1 for that time period. The correct
penalty amount of $1,100 for violations
occurring after the effective date of this
rule has also been listed. The Agency is
not aware of any case in which EPA
assessed a civil penalty in excess of the
correct statutory maximum amount of
$1,100 pursuant to section 14 of FIFRA.
C. Technical Correction of Statutory
Maximum Penalty Amount Under the
Toxic Substances Control Act (TSCA)
The row of Table 1 of 19.4, which lists
the statutory maximum penalty figures
for section 207 of TSCA, 15 U.S.C.
2647(g), incorrectly reflected a statutory
maximum penalty of $5,000 for
violations after January 30, 1997
through March 15, 2004, and $5,500 for
violations after March 15, 2004 for
subsequent offenses or violations. EPA
should have adjusted TSCA section
207’s the maximum civil penalty from
$5,000 to $5,500 for violations after
January 30, 1997 through March 15,
2004, and from $5,500 to $6,500 for
violations after March 15, 2004 through
January 12, 2009. In this rule, EPA has
not revised Table 1 to increase the
section 207 penalties for violations that
may have occurred in the past to
prevent retroactive application of the
higher penalty without the public
having received fair notice of the
penalty increases. With this rule, EPA is
adjusting the civil penalty to reflect the
correct penalty amount of $7,500 for
violations occurring after the effective
date of this rule.
D. Technical Correction Related to Civil
Penalty Authorities Under the Clean
Water Act (CWA)
EPA discovered an error in Table 1 of
40 CFR 19.4 (hereinafter 19.4), in which
section 311(b)(6)(B)(i) of the CWA, 33
U.S.C. 1321(b)(6)(B)(i), was cited
incorrectly as 33 U.S.C. 1321(b)(6)(B)(I).
To correct this error, the Agency is
revising Table 1 of 19.4 to reflect the
correct citation.
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E. Technical Revision Related to Civil
Penalty Authorities Under the Marine
Protection, Research, and Sanctuaries
Act (MPRSA)
The row of Table 1 of 19.4 related to
section 104B(d) of the MPRSA, 33
U.S.C. 1414b(d), is being revised to add
a footnote that reads ‘‘[n]ote that 33
U.S.C. 1414b(d)(1)(B) contains
additional penalty escalation provisions
that must be applied to the penalty
amounts set forth in this Table 1. The
amount set forth in this Table reflects an
inflation adjustment to the calendar year
1992 penalty amount expressed in
section 104B(d)(1)(A), which is used to
calculate the applicable penalty amount
under MPRSA section 104B(d)(1)(B) for
violations that occur in any subsequent
calendar year.’’
takes effect.’’ (See section 6 of the
Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461
note, as amended by the DCIA, 31
U.S.C. 3701 note.) Accordingly,
inflation-adjusted civil penalties may be
applied only to violations that occur
after the effective date of a rule
implementing penalty adjustments
pursuant to the DCIA. Today’s rule
clarifies the top of the fifth column of
Table 1 of 19.4 to reflect that the
maximum penalty amounts apply for
violations occurring after March 15,
2004 (i.e., after the March 15, 2004
effective date of the 2004 Rule), through
January 12, 2009.
F. Technical Correction Related to Civil
Penalty Authorities Under the Safe
Drinking Water Act (SDWA)
The row of Table 1 of 19.4 related to
section 1414(c) of the SDWA, 42 U.S.C.
300g–3(c), is being deleted because the
enforcement of the public notice
requirements under this subsection is
accomplished under section 1414(b) of
the SDWA, 42 U.S.C. 300g–3(b), or
SDWA section 1414(g)(3)(A), 42 U.S.C.
300g–3(g)(3)(A).
A. Technical Revisions to 40 CFR
27.3(a)(1)(iv)
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G. Technical Correction of Statutory
Maximum Penalty Amounts Under the
Clean Air Act (CAA)
In the 2004 Rule, the row of Table 1
of 19.4, which listed the statutory
maximum civil penalty figures for 42
U.S.C. 7524(a), incorrectly reflected a
statutory maximum civil penalty of
$32,500 for ‘‘manufacturers or dealers’’
for the manufacture or sale of defeat
devices in violation of CAA section
203(a)(3)(B), 42 U.S.C. 7522(a)(3)(B).
The correct penalty amount of $2,750
for that violation should have been
listed as the same for any person,
regardless of whether the violator is a
manufacturer or dealer. With this rule,
EPA is correcting Table 1 to reflect that
the statutory maximum penalty for the
manufacture or sale of defeat devices, in
violation of CAA section 203(a)(3)(B), 42
U.S.C. 7522(a)(3)(B), is $2,750 for
violations occurring after January 30,
1997 through March 15, 2004 and after
March 15, 2004 through January 12,
2009. The Agency is not aware of any
case in which EPA assessed a civil
penalty in excess of the correct statutory
amount of $2,750.
H. Clarification of the Effective Date
The DCIA provides that ‘‘any increase
under [the DCIA] in a civil monetary
penalty shall apply only to violations
which occur after the date the increase
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III. Technical Revisions to 40 CFR 27.3,
Regulations Implementing the Program
Fraud Civil Remedies Act
EPA is amending 40 CFR 27.3(a)(1)(iv)
to refer to the operative maximum civil
penalty amount, as provided in 40 CFR
19.4, that may be imposed by EPA
pursuant to section 3802(a)(1) of the
Program Fraud Civil Remedies Act
(Program Fraud Act), 31 U.S.C.
3802(a)(1). Through this technical
amendment, 40 CFR 27.3(a)(1)(iv) will
hereafter be revised to conform to the
maximum civil penalty amount that can
be assessed pursuant to the Program
Fraud Act, as adjusted for inflation in
accordance with the DCIA under 40 CFR
19.4. Because this technical revision
affects only a change to conform 40 CFR
27.3(a)(1)(iv) to be consistent with 40
CFR 19.4, this change does not require
notice and comment.
B. Technical Revisions to 40 CFR
27.3(b)(1)(ii)
EPA is amending 40 CFR 27.3(b)(1)(ii)
to refer to the operative maximum civil
penalty amount, as provided in 40 CFR
19.4, that may be imposed by EPA
pursuant to section 3802(a)(2) of the
Program Fraud Act, 31 U.S.C.
3802(a)(1). Through this technical
amendment, 40 CFR 27.3(b)(1)(ii) will
hereafter be revised to conform to the
maximum civil penalty amount that can
be assessed pursuant to the Program
Fraud Act, as adjusted for inflation in
accordance with the DCIA under 40 CFR
19.4. Because this technical revision
affects only a change to conform 40 CFR
27.3(b)(1)(ii) to be consistent with 40
CFR 19.4, this change does not require
notice and comment.
IV. Good Cause
Under 5 U.S.C. 553(b)(B), EPA finds
that there is good cause to promulgate
this rule without providing for further
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public comment. In its proposed rule
published in the Federal Register on
July 3, 2003 (68 FR 39882), EPA
provided an opportunity for public
comment on the inflation adjustment
calculations and rounding rules that
EPA has used in this final rule. The
primary purpose of this final rule is
merely to implement the statutory
directive in the DCIA, as amended, to
make periodic increases in civil penalty
amounts by applying the adjustment
formula established by the statute. Thus,
because calculation of the increases is
formula-driven, EPA has no discretion
in updating the rule to reflect the
allowable civil monetary penalties
derived from applying the formula.
Since there is no discretion under the
DCIA in determining the correct figure,
and EPA cannot vary the amount of the
adjustment to reflect any views or
suggestions provided by commenters, it
would serve no purpose to provide an
opportunity for public comment on this
adjustment. Thus, further notice and
public comment is unnecessary.
Further, EPA is making the technical
revisions discussed above without
notice and public comment. With regard
to Table 1 of section 19.4, EPA is
making technical revisions that do not
change the substance of the rule but
make Table 1 easier to read and amend
in the future. For example, EPA is
revising Table 1 to shorten the penalty
description to refer only to the name of
the statute. We have also added for
clarity a column that delineates the
statutory penalties, as enacted, before
any inflation adjustments were made. In
addition, this rule clarifies that that the
penalties are effective ‘‘after January 30,
1997 through March 15, 2004’’ rather
than using the term ‘‘between January
31, 1997 and March 15, 2004.’’ Finally,
in sections 19.1 and 19.4, this rule
removes references to ‘‘maximum’’
penalties because, in a few instances,
EPA-administered statutes provide for
both minimum as well as maximum
civil penalty amounts. These are
technical revisions that more accurately
reflect the statutory provisions and do
not constitute substantive revisions to
the rule.
Similarly, the technical correction
adjusting the penalty amount of section
14 of FIFRA, 7 U.S.C. 136l.(a)(2), to
$1,100, does not require notice and
public comment because this is the
adjusted penalty amount that is required
by the DCIA. The statute prescribes a
formula that must be followed to
determine the allowable statutory civil
penalty amounts. The $1,000 and $1,200
figures included in the 2004 Rule did
not comply with the statute. The
incorrect penalty amount of $1,000 for
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violations after January 30, 1997
through March 15, 2004 was not
changed to prevent the assessment of
penalties above the statutory maximum
amount that was in effect during that
time period. The incorrect penalty of
$1,200 for violations after March 15,
2004 through January 12, 2009 was
changed in Table 1 to prevent the
assessment of penalties above the
correct statutory maximum amount that
should have been listed in Table 1 for
that time period. The Agency is not
aware of any case in which EPA
assessed a civil penalty in excess of the
correct statutory maximum civil penalty
of $1,100 pursuant to section 14 of
FIFRA.
With regard to the technical
correction adjusting the penalty amount
for section 207 of TSCA, 15 U.S.C.
2647(g), to $7,500, that adjustment can
be made without notice and public
comment because $7,500 is the adjusted
penalty amount that is required by the
DCIA. The statute prescribes a formula
that must be followed to determine the
statutory civil penalty amounts. The
$5,000 and $5,500 figures included in
the 2004 Rule did not comply with the
DCIA. The incorrect penalty amounts
have not been changed in the revised
Table 1 to prevent the assessment of
penalties above the statutory maximums
that were in effect during those time
periods. The correct statutory maximum
penalties of $5,500 for violations after
January 30, 1997 through March 15,
2004, and $6,500 for violations after
March 15, 2004 through January 12,
2009 have not been listed in the revised
Table 1 to prevent retroactive
application of a higher penalty without
the regulated community receiving fair
notice of the increases. EPA’s correction
to the maximum penalties that can be
imposed under the CAA section 205, 42
U.S.C. 7524(a), is also technical and not
substantive in nature. By revising the
penalty amount from $32,500 to $2,750,
EPA is correcting the maximum penalty
to be consistent with the adjusted
penalty amount that is required by the
DCIA. Notice and public comment on
this technical correction is not
necessary given that the DCIA
prescribes a formula that must be
followed to determine the civil penalty
amounts and the $32,500 figure
included in the 2004 Rule did not
comply with the statute. Furthermore,
EPA is not aware of any case in which
the Agency assessed a civil penalty in
excess of the correct statutory maximum
penalty of $2,750 per violation of for
violations of CAA section 203(a)(3)(B).
In this rule, the correct penalty amount
of $2,750 has been listed in Table 1 for
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violations occurring during both time
periods after January 30, 1997 through
March 15, 2004 and after March 15,
2004 through January 12, 2009 to
prevent the assessment of penalties
above the correct statutory maximum
amount that should have been listed in
Table 1 for those time periods.
EPA’s revisions and corrections to
Table 1 of section 19.4 related to the
CWA, the MPRSA and the SDWA are
also technical rather than substantive in
nature and, hence, do not require notice
and public comment. In the case of the
CWA, this rule corrects an erroneous
statutory citation. With regard to the
MPRSA, this rule adds a footnote
directing the public to the fact that
section 104B(d) contains a penalty
escalation provision that must be
applied to the penalty amounts set forth
in Table 1. In addition, this rule corrects
Table 1 to delete a reference to section
1414(c) of the SDWA, 42 U.S.C. 300g–
3(c), because this subsection governs
public notice requirements for public
water systems rather than civil penalty
authorities under the SDWA. These
changes either correct errors in prior
rules or, in the case of the MPRSA, refer
back to the provisions of that statute.
Accordingly, these changes do not
require notice and comment.
EPA is amending the regulations
implementing the Program Fraud Act,
40 CFR 27.3(a)(1)(iv) and 40 CFR
27.3(b)(1)(ii), to refer to 40 CFR 19.4 so
that hereafter 40 CFR 27.3(a)(1)(iv) and
40 CFR 27.3(b)(1)(ii) will conform to the
civil penalty inflation adjustments made
in accordance with the DCIA to the
maximum civil penalty amounts that
can be assessed by EPA pursuant to the
Program Fraud Act, 31 U.S.C. 3802(a).
Because these technical revisions affect
only changes to conform 40 CFR
27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii) to
be consistent with 40 CFR 19.4, these
changes do not require notice and
comment.
As required by the DCIA, this rule
addresses only inflation adjustments to
statutory civil penalty amounts under
the statutes identified in Table 1 of 40
CFR 19.4. The technical corrections
ensure consistency with the language of
the statutes administered by EPA and
correct errors in certain formula-driven
civil penalty amounts, in accordance
with the DCIA. This rule does not
address the discretion to impose or not
to impose a penalty, nor the procedures
that must be followed in initiating an
administrative or civil judicial
enforcement action involving the
assessment of civil penalties. Thus, EPA
finds that this constitutes good cause
under 5 U.S.C. 553(b)(B).
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75343
V. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and, therefore, is not
subject to review under the Executive
Order.
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. ‘‘Burden’’ is
defined at 5 CFR 1320.3(b). Because this
rule does not contain a collection of
information, no control number is
necessary.
C. Regulatory Flexibility Act
Today’s final rule is not subject to the
Regulatory Flexibility Act (RFA), 5
U.S.C. 601 et seq., which generally
requires an agency to prepare a
regulatory flexibility analysis for any
rule that will have a significant
economic impact on a substantial
number of small entities. The RFA
applies only to rules subject to notice
and comment rulemaking requirements
under the Administrative Procedure Act
(APA) or any other statute. Although
this rule is subject to the APA, the
Agency has made a ‘‘good cause’’
finding that this rule is not subject to
the APA’s notice and comment
requirements (see Section IV of this
notice). Because this rule is not subject
to notice and comment rulemaking
requirements under the APA or any
other statute, this rule is not subject to
the regulatory flexibility provisions of
the RFA.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), 2 U.S.C.
1531–1538, establishes the requirements
for federal agencies to assess the effects
of their regulatory actions on state,
local, and tribal governments and the
private sector. This action contains no
federal mandates under the provisions
of Title II of UMRA for state, local, or
tribal governments or the private sector.
By applying the adjustment formula and
rounding rules prescribed by the DCIA,
this rule adjusts for inflation the
statutory maximum and, in some cases,
the minimum, amount of civil penalties
that can be assessed by EPA, in an
administrative enforcement action, or by
the U.S Attorney General, in a civil
judicial case, for violations of EPAadministered statutes and their
implementing regulations. Because the
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calculation of any increase is formuladriven, EPA has no policy discretion to
vary the amount of the adjustment.
Given that the Agency has made a ‘‘good
cause’’ finding that this rule is not
subject to notice and comment
requirements under the APA or any
other statute (see Section IV of this
notice), it is not subject to sections 202
and 205 of UMRA. EPA has also
determined that this action is not
subject to the requirements of section
203 of UMRA because it contains no
regulatory requirements that might
significantly or uniquely affect small
governments. This rule merely increases
the amount of civil penalties that could
conceivably be imposed in the context
of a federal civil administrative
enforcement action or civil judicial case
for violations of EPA-administered
statutes and their implementing
regulations.
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E. Executive Order 13132: Federalism
Executive Order 13132, entitled
Federalism, 64 FR 43255 (August 10,
1999), requires EPA to develop an
accountable process to ensure
meaningful and timely input by State
and local officials in the development of
regulatory policies that have federalism
implications.’’ The term ‘‘policies that
have federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ This final rule
does not have federalism implications.
It will not have substantial direct effects
on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government, as
specified in Executive Order 13132.
Thus, Executive Order 13132 does not
apply to this rule.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
Consultation and Coordination with
Indian Tribal Governments, 65 FR
67249 (November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ As this final rule will not
have substantial direct effects on tribal
governments, on the relationship
between the federal government and
Indian tribes, or on the distribution of
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16:21 Dec 10, 2008
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power and responsibilities between the
federal government and Indian tribes,
Executive Order 13175 does not apply
to this rule.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This action is not subject to
Executive Order 13045 because it does
not establish an environmental standard
intended to mitigate health or safety
risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This final rule is not subject to
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use, 66 FR 28355 (May
22, 2001), because it is not a significant
regulatory action under Executive Order
12866.
I. National Technology Transfer
Advancement Act
Section 12(d) of the National
Technology Transfer Advancement Act
of 1995 (‘‘NTTAA’’), Public Law 104–
113, 12(d), 15 U.S.C. 272 note, directs
EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards. This
rulemaking does not involve technical
standards. Therefore, EPA is not
considering the use of any voluntary
consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order 12898, 59 FR 7629
(February 16, 1994), establishes federal
executive policy on environmental
justice. Its main provision directs
federal agencies, to the greatest extent
practicable and permitted by law, to
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make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States. EPA
lacks the discretionary authority to
address environmental justice in this
final rulemaking. The primary purpose
of this final rule is merely to apply the
DCIA’s inflation adjustment formula to
make periodic increases in the civil
penalties that may be imposed for
violations of EPA-administered statutes
and their implementing regulations.
Thus, because calculation of the
increases is formula-driven, EPA has no
discretion in updating the rule to reflect
the allowable statutory civil penalties
derived from applying the formula.
Since there is no discretion under the
DCIA in determining the statutory civil
penalty amount, EPA cannot vary the
amount of the civil penalty adjustment
to address other issues, including
environmental justice issues.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of the rule in
the Federal Register. A major rule
cannot take effect until 60 days after it
is published in the Federal Register.
This action is not a ‘‘major rule’’ as
defined by 5 U.S.C. 804(2).
List of Subjects
40 CFR Part 19
Environmental protection,
Administrative practice and procedure,
Penalties.
40 CFR Part 27
Administrative practice and
procedure, Assessments, False Claims,
False Statements, Penalties.
Dated: December 4, 2008.
Stephen L. Johnson,
Administrator, Environmental Protection
Agency.
For the reasons set out in the
preamble, title 40, chapter I of the Code
■
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of Federal Regulations is amended as
follows:
■ 1. Revise part 19 to read as follows:
by the Environmental Protection Agency
concerning the civil monetary penalties
which may be assessed in either civil
judicial or administrative proceedings.
PART 19—ADJUSTMENT OF CIVIL
MONETARY PENALTIES FOR
INFLATION
§ 19.2
Sec.
19.1
19.2
19.3
19.4
Applicability.
Effective date.
[Reserved].
Penalty adjustment and table.
Authority: Public Law 101–410, 28 U.S.C.
2461 note; Public Law 104–134, 31 U.S.C.
3701 note.
§ 19.1
Applicability.
This part applies to each statutory
provision under the laws administered
Effective date.
The increased penalty amounts set
forth in the last column of Table 1 to
§ 19.4 apply to all violations under the
applicable statutes and regulations
which occur after January 12, 2009. The
penalty amounts that were adjusted in
EPA’s initial adjustment to each
statutory civil penalty amount that was
published in the Federal Register on
December 31, 1996 (61 FR 69360), and
became effective on January 30, 1997,
apply to all violations under the
applicable statutes and regulations
which occurred after January 30, 1997,
75345
through March 15, 2004. The penalty
amounts that were adjusted in EPA’s
second adjustment to each statutory
civil penalty amount that was published
in the Federal Register on February 13,
2004 (69 FR 7121), and became effective
on March 15, 2004, apply to all
violations under the applicable statutes
and regulations which occurred after
March 15, 2004, through January 12,
2009.
§ 19.3
[Reserved]
§ 19.4
Penalty adjustment and table.
The adjusted statutory penalty
provisions and their applicable amounts
are set out in Table 1. The last column
in the table provides the newly effective
statutory civil penalty amounts.
TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
Statutory penalties, as enacted
Penalties effective after January
30, 1997 through
March 15, 2004
Penalties effective after March
15, 2004 through
January 12, 2009
Penalties effective after January
12, 2009
$5,000 ....................
$5,500 ....................
$6,500 ....................
$7,500
$500/1,000 .............
$25,000 ..................
$550/1,000 .............
$27,500 ..................
$650/1,100 .............
$32,500 ..................
$750/1,100
$37,500
$5,000 ....................
$5,000 ....................
$5,000 ....................
$5,500 ....................
$5,000 ....................
$5,500 ....................
$6,500 ....................
$5,500 ....................
$6,500 ....................
$7,500
$7,500
$7,500
$5,000 ....................
$25,000 ..................
$10,000/25,000 ......
$10,000/125,000 ....
$10,000/25,000 ......
$10,000/125,000 ....
$25,000/1,000 ........
$25,000 ..................
$25,000 ..................
$100,000/3,000 ......
$50,000/125,000 ....
$5,500 ....................
$27,500 ..................
$11,000/27,500 ......
$11,000/137,500 ....
$11,000/27,500 ......
$11,000/137,500 ....
$27,500/1,100 ........
$27,500 ..................
$27,500 ..................
$110,000/3,300 ......
$55,000/137,500 ....
$6,500 ....................
$32,500 ..................
$11,000/32,500 ......
$11,000/157,500 ....
$11,000/32,500 ......
$11,000/157,500 ....
$32,500/1,100 ........
$32,500 ..................
$32,500 ..................
$130,000/4,300 ......
$65,000/157,500 ....
$7,500
$37,500
$16,000/37,500
$16,000/177,500
$16,000/37,500
$16,000/177,500
$37,500/1,100
$37,500
$37,500
$140,000/4,300
$70,000/177,500
$600 .......................
$10,000/25,000 ......
$660 .......................
$10,000/25,000 2 ....
$760 .......................
$10,000/25,000 ......
$860
$11,000/27,500
$10,000/125,000 ....
$10,000/125,000 ....
$10,000/125,000 ....
$11,000/137,500
CACSO ...........................................
$25,000 ..................
$25,000 ..................
$25,000 ..................
$27,500
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
SDWA .............................................
RESIDENTIAL
LEAD–BASED
PAINT HAZARD REDUCTION
ACT OF 1992.
NOISE CONTROL ACT OF 1972 ..
RESOURCE
CONSERVATION
AND RECOVERY ACT (RCRA).
RCRA ..............................................
RCRA ..............................................
RCRA ..............................................
RCRA ..............................................
RCRA ..............................................
RCRA ..............................................
RCRA ..............................................
$25,000 ..................
$10,000/125,000 ....
$5,000/125,000 ......
$5,000/10,000 ........
$15,000 ..................
$20,000/50,000 ......
$2,500 ....................
$25,000 ..................
$25,000 ..................
$5,000/50,000 ........
$10,000 ..................
$27,500 ..................
$11,000/137,500 ....
$5,500/137,500 ......
$5,500/11,000 ........
$15,000 ..................
$22,000/55,000 3 ....
$2,750 ....................
$27,500 ..................
$25,000 ..................
$5,500/55,000 ........
$11,000 ..................
$32,500 ..................
$11,000/157,500 ....
$6,500/157,500 ......
$6,500/11,000 ........
$16,500 ..................
$100,000/1,000,000
$2,750 ....................
$32,500 ..................
$27,500 ..................
$6,500/65,000 ........
$11,000 ..................
$37,500
$16,000/177,500
$7,500/177,500
$7,500/16,000
$16,500
$110,000/1,100,000
$3,750
$37,500
$32,500
$7,500/70,000
$16,000
$10,000 ..................
$25,000 ..................
$11,000 ..................
$27,500 ..................
$11,000 ..................
$32,500 ..................
$16,000
$37,500
$25,000 ..................
$25,000 ..................
$25,000 ..................
$5,000 ....................
$5,000 ....................
$25,000 ..................
$10,000 ..................
$27,500 ..................
$27,500 ..................
$27,500 ..................
$5,500 ....................
$5,500 ....................
$27,500 ..................
$11,000 ..................
$32,500 ..................
$32,500 ..................
$32,500 ..................
$6,500 ....................
$6,500 ....................
$32,500 ..................
$11,000 ..................
$37,500
$37,500
$37,500
$7,500
$7,500
$37,500
$16,000
U.S. code citation
Environmental statute
7 U.S.C. 136l.(a)(1) ..........................
FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE
ACT CIVIL (FIFRA).
FIFRA ..............................................
TOXIC SUBSTANCES CONTROL
ACT (TSCA).
TSCA ...............................................
TSCA ...............................................
PROGRAM FRAUD CIVIL REMEDIES ACT (PFCRA).
PFCRA ............................................
CLEAN WATER ACT (CWA) ..........
CWA ................................................
CWA ................................................
CWA ................................................
CWA ................................................
CWA ................................................
CWA ................................................
CWA ................................................
CWA ................................................
MARINE
PROTECTION,
RESEARCH, AND SANCTUARIES
ACT (MPRSA).
MPRSA ...........................................
CERTAIN
ALASKAN
CRUISE
SHIP OPERATIONS (CACSO).
CACSO ...........................................
7 U.S.C. 136l.(a)(2) ..........................
15 U.S.C. 2615(a)(1) .......................
15 U.S.C. 2647(a) ............................
15 U.S.C. 2647(g) ............................
31 U.S.C. 3802(a)(1) .......................
31
33
33
33
33
33
33
33
33
33
33
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
3802(a)(2) .......................
1319(d) ............................
1319(g)(2)(A) ...................
1319(g)(2)(B) ...................
1321(b)(6)(B)(i) ...............
1321(b)(6)(B)(ii) ...............
1321(b)(7)(A) ...................
1321(b)(7)(B) ...................
1321(b)(7)(C) ..................
1321(b)(7)(D) ..................
1415(a) ............................
33 U.S.C. 1414b(d)(1) 1 ...................
33
U.S.C.
1901
note
(see
1409(a)(2)(A)).
33
U.S.C.
1901
note
(see
1409(a)(2)(B)).
33
U.S.C.
1901
note
(see
1409(b)(1)).
42 U.S.C. 300h–2(b)(1) ...................
42 U.S.C. 300h–2(c)(1) ....................
42 U.S.C. 300h–2(c)(2) ....................
42 U.S.C. 300h–3(c) ........................
42 U.S.C. 300i(b) .............................
42 U.S.C. 300i–1(c) .........................
42 U.S.C. 300j(e)(2) .........................
42 U.S.C. 300j–4(c) .........................
42 U.S.C. 300j–6(b)(2) .....................
42 U.S.C. 300j–23(d) .......................
42 U.S.C. 4852d(b)(5) .....................
jlentini on PROD1PC65 with RULES
42 U.S.C. 4910(a)(2) .......................
42 U.S.C. 6928(a)(3) .......................
42
42
42
42
42
42
42
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
6928(c) ............................
6928(g) ............................
6928(h)(2) .......................
6934(e) ............................
6973(b) ............................
6991e(a)(3) .....................
6991e(d)(1) .....................
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TABLE 1 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS—Continued
U.S. code citation
42
42
42
42
42
42
42
42
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
6991e(d)(2) .....................
7413(b) ............................
7413(d)(1) .......................
7413(d)(3) .......................
7524(a) ............................
7524(c)(1) ........................
7545(d)(1) .......................
9604(e)(5)(B) ...................
42
42
42
42
42
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
9606(b)(1) .......................
9609(a)(1) .......................
9609(b) ............................
9609(c) ............................
11045(a) ..........................
42
42
42
42
42
U.S.C.
U.S.C.
U.S.C.
U.S.C.
U.S.C.
11045(b) ..........................
11045(c)(1) ......................
11045(c)(2) ......................
11045(d)(1) .....................
14304(a)(1) .....................
42 U.S.C. 14304(g) ..........................
Statutory penalties, as enacted
Environmental statute
RCRA ..............................................
CLEAN AIR ACT (CAA) ..................
CAA .................................................
CAA .................................................
CAA .................................................
CAA .................................................
CAA .................................................
COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY
ACT (CERCLA).
CERCLA ..........................................
CERCLA ..........................................
CERCLA ..........................................
CERCLA ..........................................
EMERGENCY PLANNING AND
COMMUNITY
RIGHT–TO–
KNOW ACT (EPCRA).
EPCRA ............................................
EPCRA ............................................
EPCRA ............................................
EPCRA ............................................
MERCURY–CONTAINING
AND
RECHARGEABLE
BATTERY
MANAGEMENT ACT (BATTERY
ACT).
BATTERY ACT ...............................
Penalties effective after January
30, 1997 through
March 15, 2004
Penalties effective after March
15, 2004 through
January 12, 2009
Penalties effective after January
12, 2009
$10,000 ..................
$25,000 ..................
$25,000/200,000 ....
$5,000 ....................
$2,500/25,000 ........
$200,000 ................
$25,000 ..................
$25,000 ..................
$11,000 ..................
$27,500 ..................
$27,500/220,000 ....
$5,500 ....................
$2,750/27,500 ........
$220,000 ................
$27,500 ..................
$27,500 ..................
$11,000 ..................
$32,500 ..................
$32,500/270,000 ....
$6,500 ....................
$2,750/32,500 ........
$270,000 ................
$32,500 ..................
$32,500 ..................
$16,000
$37,500
$37,500/295,000
$7,500
$3,750/37,500
$295,000
$37,500
$37,500
$25,000 ..................
$25,000 ..................
$25,000/75,000 ......
$25,000/75,000 ......
$25,000 ..................
$27,500 ..................
$27,500 ..................
$27,500/82,500 ......
$27,500/82,500 ......
$27,500 ..................
$32,500 ..................
$32,500 ..................
$32,500/97,500 ......
$32,500/97,500 ......
$32,500 ..................
$37,500
$37,500
$37,500/107,500
$37,500/107,500
$37,500
$25,000/75,000 ......
$25,000 ..................
$10,000 ..................
$25,000 ..................
$10,000 ..................
$27,500/82,500 ......
$27,500 ..................
$11,000 ..................
$27,500 ..................
$10,000 ..................
$32,500/97,500 ......
$32,500 ..................
$11,000 ..................
$32,500 ..................
$11,000 ..................
$37,500/107,500
$37,500
$16,000
$37,500
$16,000
$10,000 ..................
$10,000 ..................
$11,000 ..................
$16,000
1 Note
that 33 U.S.C. 1414b(d)(1)(B) contains additional penalty escalation provisions that must be applied to the penalty amounts set forth in
this Table 1. The amounts set forth in this Table reflect an inflation adjustment to the calendar year 1992 penalty amount expressed in section
104B(d)(1)(A), which is used to calculate the applicable penalty amount under MPRSA section 104B(d)(1)(B) for violations that occur in any subsequent calendar year.
2 CACSO was passed on December 21, 2000 as part of Title XIV of the Consolidated Appropriations Act of 2001, Public Law 106–554, 33
U.S.C. 1901 note.
3 The original statutory penalty amounts of 20,000 and 50,000 under section 1432(c) of the Safe Drinking Water Act, 42 U.S.C. 300i–1(c), were
subsequently increased by Congress pursuant to section 403 of the Public Health Security and Bioterrorism Preparedness and Response Act of
2002, Public Law 107–188 (June 12, 2002), to 100,000 and 1,000,000, respectively. EPA did not adjust these new penalty amounts in its 2004
Civil Monetary Penalty Inflation Adjustment Rule (‘‘2004 Rule’’), 69 FR 7121 (February 13, 2004), because they had gone into effect less than two
years prior to the 2004 Rule.
PART 27—[AMENDED]
2. The authority citation for Part 27
continues to read as follows:
■
Authority: 31 U.S.C. 3801–3812; Public
Law 101–410, 104 Stat. 890, 28 U.S.C. 2461
note; Public Law 104–134, 110 Stat. 1321, 31
U.S.C. 3701 note.
3. Section 27.3 is amended by revising
paragraphs (a)(1)(iv) and (b)(1)(ii) to
read as follows:
■
jlentini on PROD1PC65 with RULES
§ 27.3 Basis for civil penalties and
assessments.
(a) * * *
(1) * * *
(iv) Is for payment for the provision
of property or services which the person
has not provided as claimed, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than the operative
effective statutory maximum amount, as
provided in 40 CFR 19.4,1 for each such
claim.
*
*
*
*
*
1 As adjusted in accordance with the Federal Civil
Penalties Inflation Adjustment Act of 1990 (Pub. L.
101–410, 104 Stat. 890), as amended by the Debt
VerDate Aug<31>2005
16:21 Dec 10, 2008
Jkt 217001
(b) * * *
(1) * * *
(ii) Contains, or is accompanied by, an
express certification or affirmation of
the truthfulness and accuracy of the
contents of the statement, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than the operative
effective statutory maximum amount, as
provided in 40 CFR 19.4,2 for each such
statement.
*
*
*
*
*
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 112
[EPA–HQ–OPA–2008–0569 FRL–8750–5]
RIN 2050–AG48
Oil Pollution Prevention; Spill
Prevention, Control and
Countermeasures Rule; Revisions to
the Regulatory Definition of ‘‘Navigable
Waters’’
BILLING CODE 6560–50–P
AGENCY: Environmental Protection
Agency.
ACTION: Correction.
Collection Improvement Act of 1996 (Pub. L. 104–
134, 110 Stat. 1321).
2 As adjusted in accordance with the Federal Civil
Penalties Inflation Adjustment Act of 1990 (Pub. L.
101–410, 104 Stat. 890), as amended by the Debt
Collection Improvement Act of 1996 (Pub. L. 104–
134, 110 Stat. 1321).
SUMMARY: This document makes a
correction to the Preamble of the final
rule amending the Oil Pollution
Prevention regulation published on
November 26, 2008 (73 FR 71941). The
final rule announced the vacatur of the
July 17, 2002 revisions to the Clean
Water Act section 311 regulatory
definition of ‘‘navigable waters’’ in
accordance with an order, issued by the
United States District Court for the
District of Columbia (D.D.C.) in
[FR Doc. E8–29380 Filed 12–10–08; 8:45 am]
PO 00000
Frm 00042
Fmt 4700
Sfmt 4700
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]]>Agencies
[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Rules and Regulations]
[Pages 75340-75346]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-29380]
=======================================================================
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 19 and 27
[FRL-8750-4]
RIN 2020-AA46
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA) is issuing this
final Civil Monetary Penalty Inflation Adjustment Rule, as mandated by
the Debt Collection Improvement Act of 1996 (DCIA), to adjust for
inflation the statutory civil monetary penalties that may be assessed
for violations of EPA-administered statutes and their implementing
regulations. The Agency is required to review the civil monetary
penalties under the statutes it administers at least once every four
years and to adjust such penalties as necessary for inflation according
to a formula specified in the DCIA. Table 1 of the regulations, which
appears near the end of this rule, contains a list of all civil
monetary penalty authorities under EPA-administered statutes and the
applicable statutory amounts, as adjusted for inflation.
DATES: Effective Date: January 12, 2009.
FOR FURTHER INFORMATION CONTACT: David Abdalla, Special Litigation and
Projects Division (2248A), Office of Civil Enforcement, Office of
Enforcement and Compliance Assurance, U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, (202) 564-
2413.
SUPPLEMENTARY INFORMATION:
I. Background
Pursuant to section 4 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA, 31
U.S.C. 3701 note, each federal agency is required to issue regulations
adjusting for inflation the statutory civil monetary penalties \1\
(``civil penalties'' or ``penalties'') that can be imposed under the
laws administered by that agency. The purpose of these adjustments is
to maintain the deterrent effect of civil penalties and to further the
policy goals of the underlying statutes. The DCIA requires adjustments
to be made at least once every four years following the initial
adjustment. EPA's initial adjustment to each statutory civil penalty
amount was published in the Federal Register on December 31, 1996 (61
FR 69360), and became effective on January 30, 1997. EPA's second and
most recent adjustment to each civil penalty amount was published in
the Federal Register on February 13, 2004 (69 FR 7121) and became
effective on March 15, 2004 (``the 2004 Rule'').
---------------------------------------------------------------------------
\1\ Section 3 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by the DCIA,
31 U.S.C. 3701 note, defines ``civil monetary penalty'' to mean
``any penalty, fine or other sanction that--(A)(i) is for a specific
monetary amount as provided by federal law; or (ii) has a maximum
amount provided for by federal law * * *.''
---------------------------------------------------------------------------
This rule, specifically Table 1 in 40 CFR 19.4, adjusts in
accordance with the DCIA the maximum and, in some cases, the minimum
amount of each statutory civil penalty that may be imposed for
violations of EPA-administered statutes and their implementing
regulations. Table 1 identifies the applicable EPA-administered
statutes and sets out the inflation-adjusted civil penalty amounts that
may be imposed pursuant to each statutory provision. This rule also
clarifies that the adjusted penalty amounts in 40 CFR 19.4 are
applicable to violations that occur after the effective date of this
rule.
The formula provided by the DCIA for determining the cost-of-living
adjustment to statutory civil penalties consists of a four-step
process. The first step entails determining the inflation adjustment
factor. This is done by calculating the percentage increase by which
the Consumer Price Index \2\ for all urban consumers (CPI-U) for the
month of June of the calendar year preceding the adjustment exceeds the
CPI-U for the month of June of the calendar year in which the amount of
such civil monetary penalty was last set or adjusted.\3\ Accordingly,
the inflation adjustment factor for the present adjustment equals the
CPI-U for June 2007 (i.e., June of the year preceding this year),
divided by the CPI-U for June 2004. Given that the last adjustment was
made and published on February 13, 2004, the inflation adjustment for
most civil penalties set forth in this rule was calculated by comparing
the CPI-U for June 2004 (189.7) with the CPI-U for June 2007 (208.352),
resulting in an inflation adjustment factor of 9.83 percent. Certain
civil penalties that had not been adjusted since the initial 1996
adjustment were adjusted by an inflation adjustment of 32.96 percent
calculated comparing the CPI-U for June 1996 (156.7) with the CPI-U for
June 2007 (208.352).
---------------------------------------------------------------------------
\2\ Section 3 of the DCIA defines ``Consumer Price Index'' to
mean ``the Consumer Price Index for all-urban consumers published by
the Department of Labor.'' Interested parties may find the relevant
Consumer Price Index, published by the Department of Labor's Bureau
of Labor Statistics, on the Internet. To access this information, go
to the CPI Home Page at: ftp://ftp.bls.gov/pub/special.requests/cpi/
cpiai.txt.
\3\ Section 5(b) of the DCIA requires that statutory civil
penalties be adjusted to reflect ``the percentage (if any) for each
civil monetary penalty by which--(1) the Consumer Price Index for
the month of June of the calendar year preceding the adjustment,
exceeds (2) the Consumer Price Index for the month of June of the
calendar year in which the amount of such civil monetary penalty was
last set or adjusted pursuant to law.''
---------------------------------------------------------------------------
Once the inflation adjustment factor is determined, the second step
is to multiply the inflation adjustment factor by the current civil
penalty amount to calculate the raw inflation increase. The third step
is to round this raw inflation increase according to the section 5(a)
of the DCIA. The DCIA's rounding rules require that any increase be
rounded to the nearest multiple of: $10 in the case of penalties less
than or equal to $100; $100 in the case of penalties greater than $100
but less than or equal to $1,000; $1,000 in the case of penalties
greater than $1,000 but less than or equal to $10,000; $5,000 in the
case of penalties greater than $10,000 but less than or equal to
$100,000; $10,000 in the case of penalties greater than $100,000 but
less than or equal to $200,000; and $25,000 in the case of penalties
greater than $200,000. (See section 5(a) of the Federal Civil Penalties
Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended by
the DCIA, 31 U.S.C. 3701 note.) Once the inflation increase has been
rounded pursuant to the DCIA, the fourth step is to add the rounded
inflation increase to the current civil penalty amount to obtain the
new, inflation-adjusted civil penalty amount.
For most civil penalties, the amount of the last adjusted civil
penalty reflected in Table 1 of the 2004 Rule
[[Page 75341]]
was multiplied by 9.83 percent (the inflation adjustment) and the
resulting increase amount was rounded up or down according to the
rounding requirements of the statute. In the case of statutory civil
penalty amounts that are being adjusted for the first time, such
inflation adjustments are capped at a 10 percent increase in accordance
with section 31001(s)(2) of the DCIA. For example, because this rule
adjusts for the first time the administrative and civil judicial
penalty amounts provided pursuant to ``Title XIV--Certain Alaskan
Cruise Ship Operations'' of the Consolidated Appropriations Act of
2001, 33 U.S.C. 1901 note, these civil penalties, once adjusted for
inflation, are capped at 110 percent of the original penalty amounts,
as enacted. Further, certain civil penalties that had not been adjusted
since the initial 1996 adjustment were adjusted by an inflation
adjustment of 32.96 percent calculated by comparing the CPI-U for June
1996 (156.7) with the CPI-U for June 2007 (208.352). The last column of
Table 1 below reflects the inflation-adjusted civil penalties as of the
effective date of this rule. Assuming there are no changes to the
mandate imposed by the DCIA, EPA intends to readjust these amounts in
the year 2012 and every four years thereafter.
Section 6 of the DCIA provides that ``any increase under [the DCIA]
in a civil monetary penalty shall apply only to violations which occur
after the date the increase takes effect.'' (See section 6 of the
Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C.
2461 note, as amended by the DCIA, 31 U.S.C. 3701 note.) Thus, the new
inflation-adjusted civil penalty amounts may be applied only to
violations that occur after the effective date of this rule.
II. Technical Revisions to 40 CFR Part 19--Adjustment to Civil Monetary
Penalties for Inflation
After publication of the 2004 Rule, EPA identified errors in
certain sections of the regulatory language. Many of these errors also
occurred in EPA's initial adjustment on December 31, 1996 (61 FR
69360). Because these errors may prove misleading and are in need of
clarification, with this rulemaking EPA is correcting the errors
described below. The changes made through these corrections are all
technical in nature and do not affect the substance of the rule.
A. Technical Revisions to Sections 19.1 and 19.4
EPA is revising Table 1 of section 19.4 to shorten the penalty
description to refer only to the title of the statute. In addition, the
Agency has added for clarity a column that delineates the statutory
penalties, as enacted, before any inflation adjustments were made.
Further, EPA is revising Table 1 to clarify that the penalties are
effective ``after January 30, 1997 through March 15, 2004'' rather than
using the term ``between January 31, 1997 and March 15, 2004.''
In addition, because a few of the statutory civil penalty amounts
pursuant to statutes implemented by EPA are framed as the minimum
penalty as opposed to the statutory maximum penalty that can be
assessed for a particular violation, this rule revises sections 19.1
and 19.4 to remove references to a ``maximum'' civil monetary
penalty.\4\ Specifically, with this rule, EPA is revising section 19.1
to make clear that 40 CFR Part 19 applies to ``each statutory provision
under the laws administered by [EPA] concerning the civil monetary
penalties which may be assessed in either civil judicial or
administrative proceedings.'' \5\ Similarly, the rule revises the
introductory text to Table 1 of section 19.4 to remove references to
``maximum'' penalty amounts to read as follows: ``[t]he adjusted
statutory penalty provisions and their applicable amounts are set out
in Table 1. The last column in the table provides the newly effective
statutory civil penalty amounts.'' Finally, this rule revises the
headings under Table 1 of section 19.4 to refer to ``penalties
effective'' rather than ``new maximum penalty amount.''
---------------------------------------------------------------------------
\4\ For example, section 311(b)(7)(D) of the Clean Water Act, 33
U.S.C. 1321(b)(7)(D), provides for both a minimum and maximum civil
penalty that can be assessed for the discharge of oil or hazardous
substances where the violation was the result of gross negligence or
willful misconduct.
\5\ The term ``civil monetary penalty'' is defined under the
DCIA to include both ``a specific monetary amount'' as well as a
``maximum amount'' provided by federal law. See section 3 of the
Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C.
2461 note, as amended by the DCIA, 31 U.S.C. 3701 note.
---------------------------------------------------------------------------
B. Technical Correction of Statutory Maximum Penalty Amount Under the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)
The row of Table 1 of 19.4, which lists the statutory maximum
penalty figures for section 14 of FIFRA, 7 U.S.C. 136l.(a)(2),
incorrectly reflected a statutory maximum penalty of $1,000 for
violations after January 30, 1997 through March 15, 2004, and $1,200
for violations after March 15, 2004 for subsequent offenses or
violations. Although EPA should have adjusted the maximum civil penalty
in the 1996 rule from $1,000 to $1,100 for violations after January 30,
1997 through March 15, 2004, this rule does not adjust the penalty
amount from $1,000 to $1,100 for violations that occurred during that
time period because to do so would be to increase penalties
retroactively without fair notice to the public. With this rule, EPA is
correcting the row of Table 1 related to the maximum statutory penalty
amount under FIFRA section 14 from the amount of $1,200 to $1,100 for
violations after March 15, 2004 through January 12, 2009 to prevent the
assessment of penalties above the correct statutory maximum amount that
should have been listed in Table 1 for that time period. The correct
penalty amount of $1,100 for violations occurring after the effective
date of this rule has also been listed. The Agency is not aware of any
case in which EPA assessed a civil penalty in excess of the correct
statutory maximum amount of $1,100 pursuant to section 14 of FIFRA.
C. Technical Correction of Statutory Maximum Penalty Amount Under the
Toxic Substances Control Act (TSCA)
The row of Table 1 of 19.4, which lists the statutory maximum
penalty figures for section 207 of TSCA, 15 U.S.C. 2647(g), incorrectly
reflected a statutory maximum penalty of $5,000 for violations after
January 30, 1997 through March 15, 2004, and $5,500 for violations
after March 15, 2004 for subsequent offenses or violations. EPA should
have adjusted TSCA section 207's the maximum civil penalty from $5,000
to $5,500 for violations after January 30, 1997 through March 15, 2004,
and from $5,500 to $6,500 for violations after March 15, 2004 through
January 12, 2009. In this rule, EPA has not revised Table 1 to increase
the section 207 penalties for violations that may have occurred in the
past to prevent retroactive application of the higher penalty without
the public having received fair notice of the penalty increases. With
this rule, EPA is adjusting the civil penalty to reflect the correct
penalty amount of $7,500 for violations occurring after the effective
date of this rule.
D. Technical Correction Related to Civil Penalty Authorities Under the
Clean Water Act (CWA)
EPA discovered an error in Table 1 of 40 CFR 19.4 (hereinafter
19.4), in which section 311(b)(6)(B)(i) of the CWA, 33 U.S.C.
1321(b)(6)(B)(i), was cited incorrectly as 33 U.S.C. 1321(b)(6)(B)(I).
To correct this error, the Agency is revising Table 1 of 19.4 to
reflect the correct citation.
[[Page 75342]]
E. Technical Revision Related to Civil Penalty Authorities Under the
Marine Protection, Research, and Sanctuaries Act (MPRSA)
The row of Table 1 of 19.4 related to section 104B(d) of the MPRSA,
33 U.S.C. 1414b(d), is being revised to add a footnote that reads
``[n]ote that 33 U.S.C. 1414b(d)(1)(B) contains additional penalty
escalation provisions that must be applied to the penalty amounts set
forth in this Table 1. The amount set forth in this Table reflects an
inflation adjustment to the calendar year 1992 penalty amount expressed
in section 104B(d)(1)(A), which is used to calculate the applicable
penalty amount under MPRSA section 104B(d)(1)(B) for violations that
occur in any subsequent calendar year.''
F. Technical Correction Related to Civil Penalty Authorities Under the
Safe Drinking Water Act (SDWA)
The row of Table 1 of 19.4 related to section 1414(c) of the SDWA,
42 U.S.C. 300g-3(c), is being deleted because the enforcement of the
public notice requirements under this subsection is accomplished under
section 1414(b) of the SDWA, 42 U.S.C. 300g-3(b), or SDWA section
1414(g)(3)(A), 42 U.S.C. 300g-3(g)(3)(A).
G. Technical Correction of Statutory Maximum Penalty Amounts Under the
Clean Air Act (CAA)
In the 2004 Rule, the row of Table 1 of 19.4, which listed the
statutory maximum civil penalty figures for 42 U.S.C. 7524(a),
incorrectly reflected a statutory maximum civil penalty of $32,500 for
``manufacturers or dealers'' for the manufacture or sale of defeat
devices in violation of CAA section 203(a)(3)(B), 42 U.S.C.
7522(a)(3)(B). The correct penalty amount of $2,750 for that violation
should have been listed as the same for any person, regardless of
whether the violator is a manufacturer or dealer. With this rule, EPA
is correcting Table 1 to reflect that the statutory maximum penalty for
the manufacture or sale of defeat devices, in violation of CAA section
203(a)(3)(B), 42 U.S.C. 7522(a)(3)(B), is $2,750 for violations
occurring after January 30, 1997 through March 15, 2004 and after March
15, 2004 through January 12, 2009. The Agency is not aware of any case
in which EPA assessed a civil penalty in excess of the correct
statutory amount of $2,750.
H. Clarification of the Effective Date
The DCIA provides that ``any increase under [the DCIA] in a civil
monetary penalty shall apply only to violations which occur after the
date the increase takes effect.'' (See section 6 of the Federal Civil
Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note, as
amended by the DCIA, 31 U.S.C. 3701 note.) Accordingly, inflation-
adjusted civil penalties may be applied only to violations that occur
after the effective date of a rule implementing penalty adjustments
pursuant to the DCIA. Today's rule clarifies the top of the fifth
column of Table 1 of 19.4 to reflect that the maximum penalty amounts
apply for violations occurring after March 15, 2004 (i.e., after the
March 15, 2004 effective date of the 2004 Rule), through January 12,
2009.
III. Technical Revisions to 40 CFR 27.3, Regulations Implementing the
Program Fraud Civil Remedies Act
A. Technical Revisions to 40 CFR 27.3(a)(1)(iv)
EPA is amending 40 CFR 27.3(a)(1)(iv) to refer to the operative
maximum civil penalty amount, as provided in 40 CFR 19.4, that may be
imposed by EPA pursuant to section 3802(a)(1) of the Program Fraud
Civil Remedies Act (Program Fraud Act), 31 U.S.C. 3802(a)(1). Through
this technical amendment, 40 CFR 27.3(a)(1)(iv) will hereafter be
revised to conform to the maximum civil penalty amount that can be
assessed pursuant to the Program Fraud Act, as adjusted for inflation
in accordance with the DCIA under 40 CFR 19.4. Because this technical
revision affects only a change to conform 40 CFR 27.3(a)(1)(iv) to be
consistent with 40 CFR 19.4, this change does not require notice and
comment.
B. Technical Revisions to 40 CFR 27.3(b)(1)(ii)
EPA is amending 40 CFR 27.3(b)(1)(ii) to refer to the operative
maximum civil penalty amount, as provided in 40 CFR 19.4, that may be
imposed by EPA pursuant to section 3802(a)(2) of the Program Fraud Act,
31 U.S.C. 3802(a)(1). Through this technical amendment, 40 CFR
27.3(b)(1)(ii) will hereafter be revised to conform to the maximum
civil penalty amount that can be assessed pursuant to the Program Fraud
Act, as adjusted for inflation in accordance with the DCIA under 40 CFR
19.4. Because this technical revision affects only a change to conform
40 CFR 27.3(b)(1)(ii) to be consistent with 40 CFR 19.4, this change
does not require notice and comment.
IV. Good Cause
Under 5 U.S.C. 553(b)(B), EPA finds that there is good cause to
promulgate this rule without providing for further public comment. In
its proposed rule published in the Federal Register on July 3, 2003 (68
FR 39882), EPA provided an opportunity for public comment on the
inflation adjustment calculations and rounding rules that EPA has used
in this final rule. The primary purpose of this final rule is merely to
implement the statutory directive in the DCIA, as amended, to make
periodic increases in civil penalty amounts by applying the adjustment
formula established by the statute. Thus, because calculation of the
increases is formula-driven, EPA has no discretion in updating the rule
to reflect the allowable civil monetary penalties derived from applying
the formula. Since there is no discretion under the DCIA in determining
the correct figure, and EPA cannot vary the amount of the adjustment to
reflect any views or suggestions provided by commenters, it would serve
no purpose to provide an opportunity for public comment on this
adjustment. Thus, further notice and public comment is unnecessary.
Further, EPA is making the technical revisions discussed above
without notice and public comment. With regard to Table 1 of section
19.4, EPA is making technical revisions that do not change the
substance of the rule but make Table 1 easier to read and amend in the
future. For example, EPA is revising Table 1 to shorten the penalty
description to refer only to the name of the statute. We have also
added for clarity a column that delineates the statutory penalties, as
enacted, before any inflation adjustments were made. In addition, this
rule clarifies that that the penalties are effective ``after January
30, 1997 through March 15, 2004'' rather than using the term ``between
January 31, 1997 and March 15, 2004.'' Finally, in sections 19.1 and
19.4, this rule removes references to ``maximum'' penalties because, in
a few instances, EPA-administered statutes provide for both minimum as
well as maximum civil penalty amounts. These are technical revisions
that more accurately reflect the statutory provisions and do not
constitute substantive revisions to the rule.
Similarly, the technical correction adjusting the penalty amount of
section 14 of FIFRA, 7 U.S.C. 136l.(a)(2), to $1,100, does not require
notice and public comment because this is the adjusted penalty amount
that is required by the DCIA. The statute prescribes a formula that
must be followed to determine the allowable statutory civil penalty
amounts. The $1,000 and $1,200 figures included in the 2004 Rule did
not comply with the statute. The incorrect penalty amount of $1,000 for
[[Page 75343]]
violations after January 30, 1997 through March 15, 2004 was not
changed to prevent the assessment of penalties above the statutory
maximum amount that was in effect during that time period. The
incorrect penalty of $1,200 for violations after March 15, 2004 through
January 12, 2009 was changed in Table 1 to prevent the assessment of
penalties above the correct statutory maximum amount that should have
been listed in Table 1 for that time period. The Agency is not aware of
any case in which EPA assessed a civil penalty in excess of the correct
statutory maximum civil penalty of $1,100 pursuant to section 14 of
FIFRA.
With regard to the technical correction adjusting the penalty
amount for section 207 of TSCA, 15 U.S.C. 2647(g), to $7,500, that
adjustment can be made without notice and public comment because $7,500
is the adjusted penalty amount that is required by the DCIA. The
statute prescribes a formula that must be followed to determine the
statutory civil penalty amounts. The $5,000 and $5,500 figures included
in the 2004 Rule did not comply with the DCIA. The incorrect penalty
amounts have not been changed in the revised Table 1 to prevent the
assessment of penalties above the statutory maximums that were in
effect during those time periods. The correct statutory maximum
penalties of $5,500 for violations after January 30, 1997 through March
15, 2004, and $6,500 for violations after March 15, 2004 through
January 12, 2009 have not been listed in the revised Table 1 to prevent
retroactive application of a higher penalty without the regulated
community receiving fair notice of the increases. EPA's correction to
the maximum penalties that can be imposed under the CAA section 205, 42
U.S.C. 7524(a), is also technical and not substantive in nature. By
revising the penalty amount from $32,500 to $2,750, EPA is correcting
the maximum penalty to be consistent with the adjusted penalty amount
that is required by the DCIA. Notice and public comment on this
technical correction is not necessary given that the DCIA prescribes a
formula that must be followed to determine the civil penalty amounts
and the $32,500 figure included in the 2004 Rule did not comply with
the statute. Furthermore, EPA is not aware of any case in which the
Agency assessed a civil penalty in excess of the correct statutory
maximum penalty of $2,750 per violation of for violations of CAA
section 203(a)(3)(B). In this rule, the correct penalty amount of
$2,750 has been listed in Table 1 for violations occurring during both
time periods after January 30, 1997 through March 15, 2004 and after
March 15, 2004 through January 12, 2009 to prevent the assessment of
penalties above the correct statutory maximum amount that should have
been listed in Table 1 for those time periods.
EPA's revisions and corrections to Table 1 of section 19.4 related
to the CWA, the MPRSA and the SDWA are also technical rather than
substantive in nature and, hence, do not require notice and public
comment. In the case of the CWA, this rule corrects an erroneous
statutory citation. With regard to the MPRSA, this rule adds a footnote
directing the public to the fact that section 104B(d) contains a
penalty escalation provision that must be applied to the penalty
amounts set forth in Table 1. In addition, this rule corrects Table 1
to delete a reference to section 1414(c) of the SDWA, 42 U.S.C. 300g-
3(c), because this subsection governs public notice requirements for
public water systems rather than civil penalty authorities under the
SDWA. These changes either correct errors in prior rules or, in the
case of the MPRSA, refer back to the provisions of that statute.
Accordingly, these changes do not require notice and comment.
EPA is amending the regulations implementing the Program Fraud Act,
40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii), to refer to 40 CFR
19.4 so that hereafter 40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii)
will conform to the civil penalty inflation adjustments made in
accordance with the DCIA to the maximum civil penalty amounts that can
be assessed by EPA pursuant to the Program Fraud Act, 31 U.S.C.
3802(a). Because these technical revisions affect only changes to
conform 40 CFR 27.3(a)(1)(iv) and 40 CFR 27.3(b)(1)(ii) to be
consistent with 40 CFR 19.4, these changes do not require notice and
comment.
As required by the DCIA, this rule addresses only inflation
adjustments to statutory civil penalty amounts under the statutes
identified in Table 1 of 40 CFR 19.4. The technical corrections ensure
consistency with the language of the statutes administered by EPA and
correct errors in certain formula-driven civil penalty amounts, in
accordance with the DCIA. This rule does not address the discretion to
impose or not to impose a penalty, nor the procedures that must be
followed in initiating an administrative or civil judicial enforcement
action involving the assessment of civil penalties. Thus, EPA finds
that this constitutes good cause under 5 U.S.C. 553(b)(B).
V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
This action is not a ``significant regulatory action'' under the
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and,
therefore, is not subject to review under the Executive Order.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
``Burden'' is defined at 5 CFR 1320.3(b). Because this rule does not
contain a collection of information, no control number is necessary.
C. Regulatory Flexibility Act
Today's final rule is not subject to the Regulatory Flexibility Act
(RFA), 5 U.S.C. 601 et seq., which generally requires an agency to
prepare a regulatory flexibility analysis for any rule that will have a
significant economic impact on a substantial number of small entities.
The RFA applies only to rules subject to notice and comment rulemaking
requirements under the Administrative Procedure Act (APA) or any other
statute. Although this rule is subject to the APA, the Agency has made
a ``good cause'' finding that this rule is not subject to the APA's
notice and comment requirements (see Section IV of this notice).
Because this rule is not subject to notice and comment rulemaking
requirements under the APA or any other statute, this rule is not
subject to the regulatory flexibility provisions of the RFA.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, establishes the requirements for federal agencies to
assess the effects of their regulatory actions on state, local, and
tribal governments and the private sector. This action contains no
federal mandates under the provisions of Title II of UMRA for state,
local, or tribal governments or the private sector. By applying the
adjustment formula and rounding rules prescribed by the DCIA, this rule
adjusts for inflation the statutory maximum and, in some cases, the
minimum, amount of civil penalties that can be assessed by EPA, in an
administrative enforcement action, or by the U.S Attorney General, in a
civil judicial case, for violations of EPA-administered statutes and
their implementing regulations. Because the
[[Page 75344]]
calculation of any increase is formula-driven, EPA has no policy
discretion to vary the amount of the adjustment. Given that the Agency
has made a ``good cause'' finding that this rule is not subject to
notice and comment requirements under the APA or any other statute (see
Section IV of this notice), it is not subject to sections 202 and 205
of UMRA. EPA has also determined that this action is not subject to the
requirements of section 203 of UMRA because it contains no regulatory
requirements that might significantly or uniquely affect small
governments. This rule merely increases the amount of civil penalties
that could conceivably be imposed in the context of a federal civil
administrative enforcement action or civil judicial case for violations
of EPA-administered statutes and their implementing regulations.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled Federalism, 64 FR 43255 (August 10,
1999), requires EPA to develop an accountable process to ensure
meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
The term ``policies that have federalism implications'' is defined in
the Executive Order to include regulations that have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' This final
rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. Thus, Executive Order 13132 does
not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled Consultation and Coordination with
Indian Tribal Governments, 65 FR 67249 (November 9, 2000), requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' As this final rule will not have
substantial direct effects on tribal governments, on the relationship
between the federal government and Indian tribes, or on the
distribution of power and responsibilities between the federal
government and Indian tribes, Executive Order 13175 does not apply to
this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997)
as applying only to those regulatory actions that concern health or
safety risks, such that the analysis required under section 5-501 of
the Executive Order has the potential to influence the regulation. This
action is not subject to Executive Order 13045 because it does not
establish an environmental standard intended to mitigate health or
safety risks.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This final rule is not subject to Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, 66 FR 28355 (May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
of 1995 (``NTTAA''), Public Law 104-113, 12(d), 15 U.S.C. 272 note,
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. This rulemaking
does not involve technical standards. Therefore, EPA is not considering
the use of any voluntary consensus standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, 59 FR 7629 (February 16, 1994), establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. EPA lacks the discretionary authority
to address environmental justice in this final rulemaking. The primary
purpose of this final rule is merely to apply the DCIA's inflation
adjustment formula to make periodic increases in the civil penalties
that may be imposed for violations of EPA-administered statutes and
their implementing regulations. Thus, because calculation of the
increases is formula-driven, EPA has no discretion in updating the rule
to reflect the allowable statutory civil penalties derived from
applying the formula. Since there is no discretion under the DCIA in
determining the statutory civil penalty amount, EPA cannot vary the
amount of the civil penalty adjustment to address other issues,
including environmental justice issues.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
List of Subjects
40 CFR Part 19
Environmental protection, Administrative practice and procedure,
Penalties.
40 CFR Part 27
Administrative practice and procedure, Assessments, False Claims,
False Statements, Penalties.
Dated: December 4, 2008.
Stephen L. Johnson,
Administrator, Environmental Protection Agency.
0
For the reasons set out in the preamble, title 40, chapter I of the
Code
[[Page 75345]]
of Federal Regulations is amended as follows:
0
1. Revise part 19 to read as follows:
PART 19--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION
Sec.
19.1 Applicability.
19.2 Effective date.
19.3 [Reserved].
19.4 Penalty adjustment and table.
Authority: Public Law 101-410, 28 U.S.C. 2461 note; Public Law
104-134, 31 U.S.C. 3701 note.
Sec. 19.1 Applicability.
This part applies to each statutory provision under the laws
administered by the Environmental Protection Agency concerning the
civil monetary penalties which may be assessed in either civil judicial
or administrative proceedings.
Sec. 19.2 Effective date.
The increased penalty amounts set forth in the last column of Table
1 to Sec. 19.4 apply to all violations under the applicable statutes
and regulations which occur after January 12, 2009. The penalty amounts
that were adjusted in EPA's initial adjustment to each statutory civil
penalty amount that was published in the Federal Register on December
31, 1996 (61 FR 69360), and became effective on January 30, 1997, apply
to all violations under the applicable statutes and regulations which
occurred after January 30, 1997, through March 15, 2004. The penalty
amounts that were adjusted in EPA's second adjustment to each statutory
civil penalty amount that was published in the Federal Register on
February 13, 2004 (69 FR 7121), and became effective on March 15, 2004,
apply to all violations under the applicable statutes and regulations
which occurred after March 15, 2004, through January 12, 2009.
Sec. 19.3 [Reserved]
Sec. 19.4 Penalty adjustment and table.
The adjusted statutory penalty provisions and their applicable
amounts are set out in Table 1. The last column in the table provides
the newly effective statutory civil penalty amounts.
Table 1 of Section 19.4--Civil Monetary Penalty Inflation Adjustments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Penalties effective
Statutory penalties, as Penalties effective after March 15, 2004 Penalties effective
U.S. code citation Environmental statute enacted after January 30, 1997 through January 12, after January 12, 2009
through March 15, 2004 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
7 U.S.C. 136l.(a)(1).......... FEDERAL INSECTICIDE, $5,000................. $5,500................. $6,500................ $7,500
FUNGICIDE, AND
RODENTICIDE ACT CIVIL
(FIFRA).
7 U.S.C. 136l.(a)(2).......... FIFRA................. $500/1,000............. $550/1,000............. $650/1,100............ $750/1,100
15 U.S.C. 2615(a)(1).......... TOXIC SUBSTANCES $25,000................ $27,500................ $32,500............... $37,500
CONTROL ACT (TSCA).
15 U.S.C. 2647(a)............. TSCA.................. $5,000................. $5,500................. $6,500................ $7,500
15 U.S.C. 2647(g)............. TSCA.................. $5,000................. $5,000................. $5,500................ $7,500
31 U.S.C. 3802(a)(1).......... PROGRAM FRAUD CIVIL $5,000................. $5,500................. $6,500................ $7,500
REMEDIES ACT (PFCRA).
31 U.S.C. 3802(a)(2).......... PFCRA................. $5,000................. $5,500................. $6,500................ $7,500
33 U.S.C. 1319(d)............. CLEAN WATER ACT (CWA). $25,000................ $27,500................ $32,500............... $37,500
33 U.S.C. 1319(g)(2)(A)....... CWA................... $10,000/25,000......... $11,000/27,500......... $11,000/32,500........ $16,000/37,500
33 U.S.C. 1319(g)(2)(B)....... CWA................... $10,000/125,000........ $11,000/137,500........ $11,000/157,500....... $16,000/177,500
33 U.S.C. 1321(b)(6)(B)(i).... CWA................... $10,000/25,000......... $11,000/27,500......... $11,000/32,500........ $16,000/37,500
33 U.S.C. 1321(b)(6)(B)(ii)... CWA................... $10,000/125,000........ $11,000/137,500........ $11,000/157,500....... $16,000/177,500
33 U.S.C. 1321(b)(7)(A)....... CWA................... $25,000/1,000.......... $27,500/1,100.......... $32,500/1,100......... $37,500/1,100
33 U.S.C. 1321(b)(7)(B)....... CWA................... $25,000................ $27,500................ $32,500............... $37,500
33 U.S.C. 1321(b)(7)(C)....... CWA................... $25,000................ $27,500................ $32,500............... $37,500
33 U.S.C. 1321(b)(7)(D)....... CWA................... $100,000/3,000......... $110,000/3,300......... $130,000/4,300........ $140,000/4,300
33 U.S.C. 1415(a)............. MARINE PROTECTION, $50,000/125,000........ $55,000/137,500........ $65,000/157,500....... $70,000/177,500
RESEARCH, AND
SANCTUARIES ACT
(MPRSA).
33 U.S.C. 1414b(d)(1) \1\..... MPRSA................. $600................... $660................... $760.................. $860
33 U.S.C. 1901 note (see CERTAIN ALASKAN CRUISE $10,000/25,000......... $10,000/25,000 \2\..... $10,000/25,000........ $11,000/27,500
1409(a)(2)(A)). SHIP OPERATIONS
(CACSO).
33 U.S.C. 1901 note (see CACSO................. $10,000/125,000........ $10,000/125,000........ $10,000/125,000....... $11,000/137,500
1409(a)(2)(B)).
33 U.S.C. 1901 note (see CACSO................. $25,000................ $25,000................ $25,000............... $27,500
1409(b)(1)).
42 U.S.C. 300h-2(b)(1)........ SDWA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 300h-2(c)(1)........ SDWA.................. $10,000/125,000........ $11,000/137,500........ $11,000/157,500....... $16,000/177,500
42 U.S.C. 300h-2(c)(2)........ SDWA.................. $5,000/125,000......... $5,500/137,500......... $6,500/157,500........ $7,500/177,500
42 U.S.C. 300h-3(c)........... SDWA.................. $5,000/10,000.......... $5,500/11,000.......... $6,500/11,000......... $7,500/16,000
42 U.S.C. 300i(b)............. SDWA.................. $15,000................ $15,000................ $16,500............... $16,500
42 U.S.C. 300i-1(c)........... SDWA.................. $20,000/50,000......... $22,000/55,000 \3\..... $100,000/1,000,000.... $110,000/1,100,000
42 U.S.C. 300j(e)(2).......... SDWA.................. $2,500................. $2,750................. $2,750................ $3,750
42 U.S.C. 300j-4(c)........... SDWA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 300j-6(b)(2)........ SDWA.................. $25,000................ $25,000................ $27,500............... $32,500
42 U.S.C. 300j-23(d).......... SDWA.................. $5,000/50,000.......... $5,500/55,000.......... $6,500/65,000......... $7,500/70,000
42 U.S.C. 4852d(b)(5)......... RESIDENTIAL LEAD-BASED $10,000................ $11,000................ $11,000............... $16,000
PAINT HAZARD
REDUCTION ACT OF 1992.
42 U.S.C. 4910(a)(2).......... NOISE CONTROL ACT OF $10,000................ $11,000................ $11,000............... $16,000
1972.
42 U.S.C. 6928(a)(3).......... RESOURCE CONSERVATION $25,000................ $27,500................ $32,500............... $37,500
AND RECOVERY ACT
(RCRA).
42 U.S.C. 6928(c)............. RCRA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 6928(g)............. RCRA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 6928(h)(2).......... RCRA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 6934(e)............. RCRA.................. $5,000................. $5,500................. $6,500................ $7,500
42 U.S.C. 6973(b)............. RCRA.................. $5,000................. $5,500................. $6,500................ $7,500
42 U.S.C. 6991e(a)(3)......... RCRA.................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 6991e(d)(1)......... RCRA.................. $10,000................ $11,000................ $11,000............... $16,000
[[Page 75346]]
42 U.S.C. 6991e(d)(2)......... RCRA.................. $10,000................ $11,000................ $11,000............... $16,000
42 U.S.C. 7413(b)............. CLEAN AIR ACT (CAA)... $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 7413(d)(1).......... CAA................... $25,000/200,000........ $27,500/220,000........ $32,500/270,000....... $37,500/295,000
42 U.S.C. 7413(d)(3).......... CAA................... $5,000................. $5,500................. $6,500................ $7,500
42 U.S.C. 7524(a)............. CAA................... $2,500/25,000.......... $2,750/27,500.......... $2,750/32,500......... $3,750/37,500
42 U.S.C. 7524(c)(1).......... CAA................... $200,000............... $220,000............... $270,000.............. $295,000
42 U.S.C. 7545(d)(1).......... CAA................... $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 9604(e)(5)(B)....... COMPREHENSIVE $25,000................ $27,500................ $32,500............... $37,500
ENVIRONMENTAL
RESPONSE,
COMPENSATION, AND
LIABILITY ACT
(CERCLA).
42 U.S.C. 9606(b)(1).......... CERCLA................ $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 9609(a)(1).......... CERCLA................ $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 9609(b)............. CERCLA................ $25,000/75,000......... $27,500/82,500......... $32,500/97,500........ $37,500/107,500
42 U.S.C. 9609(c)............. CERCLA................ $25,000/75,000......... $27,500/82,500......... $32,500/97,500........ $37,500/107,500
42 U.S.C. 11045(a)............ EMERGENCY PLANNING AND $25,000................ $27,500................ $32,500............... $37,500
COMMUNITY RIGHT-TO-
KNOW ACT (EPCRA).
42 U.S.C. 11045(b)............ EPCRA................. $25,000/75,000......... $27,500/82,500......... $32,500/97,500........ $37,500/107,500
42 U.S.C. 11045(c)(1)......... EPCRA................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 11045(c)(2)......... EPCRA................. $10,000................ $11,000................ $11,000............... $16,000
42 U.S.C. 11045(d)(1)......... EPCRA................. $25,000................ $27,500................ $32,500............... $37,500
42 U.S.C. 14304(a)(1)......... MERCURY-CONTAINING AND $10,000................ $10,000................ $11,000............... $16,000
RECHARGEABLE BATTERY
MANAGEMENT ACT
(BATTERY ACT).
42 U.S.C. 14304(g)............ BATTERY ACT........... $10,000................ $10,000................ $11,000............... $16,000
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Note that 33 U.S.C. 1414b(d)(1)(B) contains additional penalty escalation provisions that must be applied to the penalty amounts set forth in this
Table 1. The amounts set forth in this Table reflect an inflation adjustment to the calendar year 1992 penalty amount expressed in section
104B(d)(1)(A), which is used to calculate the applicable penalty amount under MPRSA section 104B(d)(1)(B) for violations that occur in any subsequent
calendar year.
\2\ CACSO was passed on December 21, 2000 as part of Title XIV of the Consolidated Appropriations Act of 2001, Public Law 106-554, 33 U.S.C. 1901 note.
\3\ The original statutory penalty amounts of 20,000 and 50,000 under section 1432(c) of the Safe Drinking Water Act, 42 U.S.C. 300i-1(c), were
subsequently increased by Congress pursuant to section 403 of the Public Health Security and Bioterrorism Preparedness and Response Act of 2002,
Public Law 107-188 (June 12, 2002), to 100,000 and 1,000,000, respectively. EPA did not adjust these new penalty amounts in its 2004 Civil Monetary
Penalty Inflation Adjustment Rule (``2004 Rule''), 69 FR 7121 (February 13, 2004), because they had gone into effect less than two years prior to the
2004 Rule.
PART 27--[AMENDED]
0
2. The authority citation for Part 27 continues to read as follows:
Authority: 31 U.S.C. 3801-3812; Public Law 101-410, 104 Stat.
890, 28 U.S.C. 2461 note; Public Law 104-134, 110 Stat. 1321, 31
U.S.C. 3701 note.
0
3. Section 27.3 is amended by revising paragraphs (a)(1)(iv) and
(b)(1)(ii) to read as follows:
Sec. 27.3 Basis for civil penalties and assessments.
(a) * * *
(1) * * *
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition
to any other remedy that may be prescribed by law, to a civil penalty
of not more than the operative effective statutory maximum amount, as
provided in 40 CFR 19.4,\1\ for each such claim.
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\1\ As adjusted in accordance with the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890),
as amended by the Debt Collection Improvement Act of 1996 (Pub. L.
104-134, 110 Stat. 1321).
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* * * * *
(b) * * *
(1) * * *
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may
be prescribed by law, to a civil penalty of not more than the operative
effective statutory maximum amount, as provided in 40 CFR 19.4,\2\ for
each such statement.
---------------------------------------------------------------------------
\2\ As adjusted in accordance with the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410, 104 Stat. 890),
as amended by the Debt Collection Improvement Act of 1996 (Pub. L.
104-134, 110 Stat. 1321).
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* * * * *
[FR Doc. E8-29380 Filed 12-10-08; 8:45 am]
BILLING CODE 6560-50-P
