E8-31452. Civil Monetary Penalty Inflation Adjustment Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule; correction.

SUMMARY:

This action contains a minor correction to the final Civil Monetary Penalty Inflation Adjustment Rule, which was published on December 11, 2008 (73 FR 75340) and will be effective on January 12, 2009. As mandated by the Debt Collection Improvement Act (DCIA), the rule adjusts for inflation the statutory civil penalties that may be assessed for violations of EPA-administered statutes and their implementing regulations. A corrected version of Table 1 of the regulation appears at the end of this action.

DATES:

This correction is effective 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, [phone].

SUPPLEMENTARY INFORMATION:

I. Background

On December 11, 2008, EPA issued the final Civil Monetary Penalty Inflation Adjustment Rule (“2008 penalty inflation rule” or “rule”), as mandated by 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, to adjust for inflation the statutory civil penalties that may be assessed for violations of EPA-administered statutes and their implementing regulations (73 FR 75340). Effective January 12, 2009, the rule at 40 CFR 19.4 adjusts, in accordance with the formula mandated by the DCIA, the maximum and the minimum amounts of each statutory civil penalty that can be imposed under EPA-administered statutes. Although the current version of 40 CFR 19.4 lists all of the penalty assessment authorities and the applicable statutory maximum amounts that can be imposed under the Safe Drinking Water Act (SDWA), 42 U.S.C. 300f-300j, EPA inadvertently deleted four SDWA statutory citations and their corresponding penalty amounts in Table 1 of the rule published on December 11, 2008.

II. Need for Correction

As published, the regulatory text in the final rule contains an error that, if not corrected, would result in an error in Table 1 of 40 CFR 19.4 in the next publication of the Code of Federal Regulations. Specifically, the rule as published deleted: four citations to penalty authorities under the SDWA; the statutory maximum penalties that can be assessed under the SDWA, as enacted; and the statutory maximum penalties that can be assessed pursuant to the penalty inflation adjustment rules published by EPA in 1996, 2004 and 2008 (see 61 FR 69360 (December 31, 1996); 69 FR 7121 (February 13, 2004); and 73 FR 75340 (December 11, 2008)).

The penalty inflation adjustment rules, including the 2008 rule, are mandated by the DCIA, which requires each federal agency to apply statutorily prescribed formula to calculate inflation-adjusted penalties. Section 553(b)(3)(B) of the Administrative Procedures Act (APA), 5 U.S.C. 553(b)(3)(B), provides that, when an Agency for good cause finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest, the Agency may issue a rule without providing notice and an opportunity for public comment. In the December 11, 2008 notice, EPA found good cause, pursuant to APA Section 553(b)(3)(B), that soliciting public comment prior to the publication of the final rule was not necessary because EPA is carrying out a ministerial, non-discretionary duty pursuant to a mandate from Congress under the DCIA. Because the Agency has no discretion under the DCIA to vary the amount of any penalty adjustment to reflect any views or suggestions provided by public commenters, EPA decided that there would be no purpose in providing an opportunity for public comment on the 2008 penalty inflation rule.

This action merely amends Table 1 of 40 CFR 19.4 to reinsert the four missing SDWA penalty authorities, together with their corresponding statutory maximum penalty amounts since the SDWA was originally enacted, and reflect that the penalties in effect after January 12, 2009 under these authorities have been adjusted in accordance with the DCIA's non-discretionary formula. Accordingly, like the 2008 penalty inflation rule, EPA has determined that there is good cause for making this action final without prior proposal and opportunity for comment because the change to the rule is a minor technical correction, is non-controversial, and merely applies the formula mandated under the DCIA. Similarly, because this change is technical in nature and is consistent with the statutorily mandated formula applied in the 2008 penalty inflation rule, EPA has also determined that this technical correction rule meets the “good cause” exception to the effective date requirements of section 553(d) of the APA. Consequently, this technical correction will be effective on January 12, 2009, the same date the 2008 penalty inflation rule will take effect.

III. Corrections to Publication

In FR Doc. E8-29380 appearing on page 75345 in the Federal Register of December 11, 2008, the following correction is made:

Table 1 of Section 19.4 [Corrected]

Beginning on page 75345, Table 1 of Section 19.4—Civil Monetary Penalty Inflation Adjustments, is corrected to read as follows:

§ 19.4

Penalty adjustment and table.

* * * * *

Table 1—of Section 19.4 Civil Monetary Penalty Inflation Adjustments

U.S. code citation	Environmental statute	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
7 U.S.C. 136l.(a)(1)	FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA)	$5,000	$5,500	$6,500	$7,500
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 CONTROL ACT (TSCA)	25,000	27,500	32,500	37,500
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 REMEDIES ACT (PFCRA)	5,000	5,500	6,500	7,500
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, RESEARCH, AND SANCTUARIES ACT (MPRSA)	50,000/125,000	55,000/137,500	65,000/157,500	70,000/177,500
33 U.S.C. 1414b(d)(1) 1	MPRSA	600	660	760	860
33 U.S.C. 1901 note (see 1409(a)(2)(A))	CERTAIN ALASKAN CRUISE SHIP OPERATIONS (CACSO)	10,000/25,000	2 10,000/25,000	10,000/25,000	11,000/27,500
33 U.S.C. 1901 note (see 1409(a)(2)(B))	CACSO	10,000/125,000	10,000/125,000	10,000/125,000	11,000/137,500
33 U.S.C. 1901 note (see 1409(b)(1))	CACSO	25,000	25,000	25,000	27,500
42 U.S.C. 300g-3(b)	SAFE DRINKING WATER ACT (SDWA)	25,000	27,500	32,500	37,500
42 U.S.C. 300g-3(g)(3)(A)	SDWA	25,000	27,500	32,500	37,500
42 U.S.C. 300g-3(g)(3)(B)	SDWA	5,000/25,000	5,000/25,000	6,000/27,500	7,000/32,500
42 U.S.C. 300g-3(g)(3)(C)	SDWA	25,000	25,000	27,500	32,500
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	3 22,000/55,000	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 PAINT HAZARD REDUCTION ACT OF 1992	10,000	11,000	11,000	16,000
42 U.S.C. 4910(a)(2)	NOISE CONTROL ACT OF 1972	10,000	11,000	11,000	16,000
42 U.S.C. 6928(a)(3)	RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)	25,000	27,500	32,500	37,500
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
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 ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA)	25,000	27,500	32,500	37,500
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 COMMUNITY RIGHT-TO-KNOW ACT (EPCRA)	25,000	27,500	32,500	37,500
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 RECHARGEABLE BATTERY MANAGEMENT ACT (BATTERY ACT)	10,000	10,000	11,000	16,000
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 No. 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.

Dated: December 30, 2008.

Catherine R. McCabe,

Principal Deputy Assistant Administrator, Office of Enforcement and Compliance Assurance.