[Federal Register Volume 62, Number 124 (Friday, June 27, 1997)]
[Rules and Regulations]
[Pages 35038-35041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-16894]
[[Page 35037]]
_______________________________________________________________________
Part VII
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 19 and 745
Civil Monetary Penalty Inflation Adjustment Rule; Final Rule
Federal Register / Vol. 62, No. 124 / Friday, June 27, 1997 / Rules
and Regulations
[[Page 35038]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 19 and 745
[FRL-5849-2]
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; amended.
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SUMMARY: The Environmental Protection Agency (``EPA'') is amending the
final Civil Monetary Penalty Inflation Adjustment Rule as mandated by
the Debt Collection Improvement Act of 1996 (``DCIA'') to adjust EPA's
civil monetary penalties (``CMPs'') for inflation on a periodic basis.
Previously, EPA adjusted almost all of its CMPs when the final Civil
Monetary Penalty Inflation Adjustment Rule was published on December
31, 1996, with technical corrections published on March 20, 1997. At
that time, EPA omitted addressing the penalty provisions of Section
1018 of the Residential Lead-Based Paint Hazard Reduction Act of 1992
(``Lead-Paint Act'' or ``LPA''), and the Noise Control Act of 1972
(``Noise Act'' or ``NCA''). Like the earlier Rule, these additional
adjustments will allow EPA's penalties to keep pace with inflation and
thereby maintain the deterrent effect Congress intended when it
originally specified penalty amounts.
With this additional mandatory adjustment, all of EPA's penalty
provisions will have been increased by ten percent (except for new
penalty provisions enacted into law in 1996, which were not subject to
being increased). The Agency is required to review its penalties again
at least once every four years and to adjust them as necessary for
inflation according to a specified formula. A complete version of Table
1, from 40 CFR 19.4, which now lists all of the EPA's civil monetary
penalty authorities, appears near the end of this document.
EFFECTIVE DATE: July 28, 1997.
FOR FURTHER INFORMATION CONTACT: Steven M. Spiegel, Office of
Regulatory Enforcement, Multimedia Enforcement Division, Mail Code
2248W, 401 M Street, SW, Washington, D.C. 20460, or at (703) 308-8507.
Further information may also be requested by electronic mail (e-mail)
to: spiegel.steven@epamail.epa.gov. The December 31, 1996 Final Rule,
the March 20, 1997 Correction, and this Amended Final Rule are also
available on the Office of Enforcement and Compliance Assurance's Web
page at: http//www.epa.gov/OECA
SUPPLEMENTARY INFORMATION:
Need for Rule Amendment
Pursuant to the Federal Civil Penalties Inflation Adjustment Act of
1990 (28 U.S.C. 2461 note; Pub. L. 101-410, enacted October 5, 1990;
104 Stat. 890), as amended by the Debt Collection Improvement Act of
1996 (31 U.S.C. Sec. 3701 note; Pub. L. 104-134, enacted April 26,
1996; 110 Stat. 1321), (``DCIA''), each Federal agency is required to
issue regulations adjusting for inflation the maximum civil monetary
penalties that can be imposed pursuant to such agency's statutes.
Section 5 of the DCIA sets forth the formula for adjusting the
penalties for inflation: ``The inflation adjustment described under
section 4 shall be determined by increasing the maximum CMP or the
range of minimum and maximum CMPs, as applicable, for each CMP by
the cost-of-living adjustment * * * The term ``cost-of-living''
adjustment is the percentage for each CMP by which the Consumer
Price Index (CPI) for the month of June of the calendar year
preceding the adjustment, exceeds the Consumer Price Index for the
month of June of the calendar year in which the amount of such CMP
was last set or adjusted pursuant to law. Any increase determined
under this amendment shall be rounded * * *''
However, the DCIA also set a ten percent cap on the first
adjustment for inflation. Since EPA's penalties had never previously
been adjusted for inflation, this initial statutorily required
adjustment is limited to ten percent.
EPA adjusted almost all of its CMPs when the final Civil Monetary
Penalty Inflation Adjustment Rule was published on December 31, 1996
(61 FR 69359), with the Rule taking effect on January 30, 1997. Later,
a ``Correction'' was published on March 20, 1997 (62 FR 13514), to
address some minor technical errors in the rule and to provide
``additions'' of information to enhance public understanding of the
rule. The effective date of the Rule was not altered by the correction.
With the exception of the new penalty provisions added by the 1996
Amendments to the Safe Drinking Water Act (which were not subject to
any adjustment), all of the statutory penalty provisions administered
and identified by EPA at that time, were increased by ten percent, the
maximum allowed pursuant to the DCIA.
However, the published final and corrected regulations did not
address the penalty provisions of Section 1018 of the Residential Lead-
Based Paint Hazard Reduction Act of 1992, 42 U.S.C. 4852d, (``Lead-
Paint Act'' or ``LPA''), its corresponding regulations in 40 CFR Part
745, and the Noise Control Act of 1972, 42 U.S.C. 4910(a)(2) (``Noise
Act'' or ``NCA''), since they had not been identified.1
These CMP's were later identified and therefore are being adjusted in
accordance with the DCIA by today's rulemaking.
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\1\ EPA enforces the Residential Lead-Based Paint Act of 1992,
and the 40 CFR Part 745 regulations, through Section 16 of the Toxic
Substances Control Act (``TSCA''), 15 U.S.C. 2615 . The Department
of Housing and Urban Development has joint responsibility for
enforcing the Lead-Paint Act.
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Effect of Amended Final Rule
Only the two previously unadjusted CMPs for the Lead-Paint Act and
the Noise Act are being adjusted by this rule through their inclusion
in Table 1 of Section 19.4. With the adoption of this amended rule
implementing the DCIA, all violations of Section 1018 of the Lead-Paint
Act and the Noise Act which take place after July 28, 1997 will be
subject to the new statutory maximum civil penalty amounts. The
original effective date of January 30, 1997, still applies to the CMP's
adjusted by the original December 31, 1996, final rule, as well as to
the corrected CMP's addressed in March 20, 1997, Correction. A revised
Table 1 of Section 19.4, which now provides a list of all of the
applicable statutory provisions and maximum civil penalties, appears
near the end of this rule.
Future adjustments to these two CMPs will be made in accordance
with the statutory formula. Since today's inflation adjustments are
being made in June 1997, the next scheduled adjustment will cover
inflation from June 1997 to June of the year preceding the year in
which the next adjustment is made. The DCIA requires that penalties be
adjusted for inflation at least once every four years.
Procedural Requirements
I. Administrative Procedure Act
In the December 31, 1996 notice, EPA found good cause, pursuant to
5 U.S.C. 553(b)(3)(B) of the Administrative Procedure Act (``APA''),
that soliciting public comment prior to publication of the rule was not
necessary because EPA is carrying out a ministerial, non-discretionary
duty per direction of an Act of Congress. EPA finds that good cause
continues to apply to this rule.
II. Small Business Regulatory Enforcement Fairness Act
Under 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act (``SBREFA''), EPA submitted a
report containing this
[[Page 35039]]
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 today's Federal Register. This rule
is not a ``major rule'' as defined by 5 U.S.C. 804(a).
III. Other Procedural Requirements
For the reasons stated in the December 31, 1996, final rule, the
regulation being issued today is not subject to certain requirements of
Executive Order 12866 (58 FR 51735, October 4, 1993), the Unfunded
Mandates Reform Act of 1995 (P.L. 104-4) (UMRA), and the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) (RFA). As stated in the December
31, 1996 rule, this action is not a ``significant regulatory action''
under Executive Order 12866 and, is therefore not subject to review by
the Office of Management and Budget. In addition, for the reasons
stated in the December 31, 1996 rule, this action is not subject to the
assessment requirements of UMRA Title II or the requirements of section
203 of UMRA. Because this action is not subject to notice-and-comment
requirements under the APA or any other statute, it is not subject to
the provisions of the RFA.
The Agency nonetheless has assessed the potential of this rule to
adversely impact small entities. This rule contains no regulatory
requirements that might significantly or uniquely affect small entities
because the prescribed inflation adjustments have similar effect on all
entities subject to civil monetary penalties and does not substantively
alter the existing regulatory framework.
IV. Paperwork Reduction Act
This action contains no reporting or record keeping requirements
for any non-federal persons or entities and consequently is not subject
to the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
List of Subjects
40 CFR Part 19
Environmental protection, Administrative practice and procedure,
Penalties.
40 CFR Part 745
Environmental protection, Administrative practice and procedure,
Lead, Penalties.
Dated: June 23, 1997.
Carol M. Browner,
Administrator, Environmental Protection Agency.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 19--[AMENDED]
1. The authority citation for part 19 continues to read as follows:
Authority: Pub. L. 101-410, 104 Stat. 890, 28 U.S.C. 2461 note;
Pub. L. 104-134, 110 Stat. 1321, 31 U.S.C. 3701 note.
2. Section 19.2 is revised to read as follows:
Sec. 19.2 Effective date.
The increased penalty amounts set forth in this part apply to all
violations under the applicable statutes and regulations which occur
after January 30, 1997; except for violations subject to penalty under
42 U.S.C. 4852d(b)(5) and 42 U.S.C. 4910(a)(2), which are subject to
the new penalty amounts for any violations after July 28, 1997.
3. Table 1 of 40 CFR 19.4 is amended by adding two new entries, in
the order of the U.S.C. Code Citations in the first column, to read as
follows:
Sec. 19.4 Penalty Adjustment and Table.
* * * * *
Table 1 of Section 19.4.--Civil Monetary Penalty Inflation Adjustments
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New maximum
U.S. Code citation Civil monetary penalty description penalty amount
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* * * * * *
42 U.S.C. 4852d(b)(5)......................... Residential Lead-Based Paint Hazard Reduction $11,000
Act of 1992, Sec 1018--Civil Penalty.
42 U.S.C. 4910(a)(2).......................... Noise Control Act of 1972--Civil Penalty........ $11,000
* * * * * *
*
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For the convenience of the reader, the complete Table 1 of 40 CFR
19.4--Civil Monetary Penalty Inflation Adjustments, including the two
new adjustments added by this rule is republished as it will appear in
the July 1, 1997 Code of Federal Regulations, as follows:
Table 1 of Section 19.4.--Civil Monetary Penalty Inflation Adjustments
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U.S. Code Citation Civil Monetary Penalty Description New Maximum Penalty Amount
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7 U.S.C. 1361.(a)(1)................ Federal Insecticide, Fungicide, & $5,500
Rodenticide Act Civil Penalty--
General--Commercial Applicators, Etc.
7 U.S.C. 1361.(a)(2)................ Federal Insecticide, Fungicide, & $550/$1,000
Rodenticide Act Civil Penalty--
Private Applicators--First and
Subsequent Offenses or Violations.
15 U.S.C. 2615(a)................... Toxic Substances Control Act Civil $27,500
Penalty.
15 U.S.C. 2647(a)................... Asbestos Hazard Emergency Response Act $5,500
Civil Penalty.
31 U.S.C. 3802(a)(1)................ Program Fraud Civil Remedies Act/ $5,500
Violation Involving False Claim.
31 U.S.C. 3802(a)(2)................ Program Fraud Civil Remedies Act/ $5,500
Violation Involving False Statement.
33 U.S.C. 1319(d)................... Clean Water Act Violation/Civil $27,500
Judicial Penalty.
33 U.S.C. 1319(g)(2)(A)............. Clean Water Act Violation/ $11,000/$27,500
Administrative Penalty Per Violation
and Maximum.
[[Page 35040]]
33 U.S.C. 1319(g)(2)(B)............. Clean Water Act Violation/ $11,000/$137,500
Administrative Penalty Per Violation
and Maximum.
33 U.S.C. 1321(b)(6)(B)(I).......... Clean Water Act Violation/Admin $11,000/$27,500
Penalty of Sec 311(b)(3)&(j) Per
Violation and Maximum.
33 U.S.C. 1321(b)(6)(B)(ii)......... Clean Water Act Violation/Admin $11,000/$137,500
Penalty of Sec 311(b)(3)&(j) Per
Violation and Maximum.
33 U.S.C. 1321(b)(7)(A)............. Clean Water Act Violation/Civil $27,500 or $1,100 per barrel or
Judicial Penalty of Sec 311(b)(3)-- unit
Per Violation Per Day or Per Barrel
or Unit.
33 U.S.C. 1321(b)(7)(B)............. Clean Water Act Violation/Civil $27,500
Judicial Penalty of Sec
311(c)&(e)(1)(B).
33 U.S.C. 1321(b)(7)(C)............. Clean Water Act Violation/Civil $27,500
Judicial Penalty of Sec 311(j).
33 U.S.C. 1321(b)(7)(D)............. Clean Water Act Violation/Minimum $110,000 or $3,300 per barrel or
Civil Judicial Penalty of Sec unit
311(b)(3)--Per Violation or Per
Barrel/Unit.
33 U.S.C. 1414b(d).................. Marine Protection, Research & $660
Sanctuaries Act Viol Sec 104b(d).
33 U.S.C. 1415(a)................... Marine Protection Research and $55,000/$137,500
Sanctuaries Act Violations--First &
Subsequent Violations.
42 U.S.C. 300g-3(b)................. Safe Drinking Water Act/Civil Judicial $27,500
Penalty of Sec 1414(b).
42 U.S.C. 300g-3(c)................. Safe Drinking Water Act/Civil Judicial $27,500
Penalty of Sec 1414(c).
42 U.S.C. 300g-3(g)(3)(A)........... Safe Drinking Water Act/Civil Judicial $27,500
Penalty of Sec 1414(g)(3)(a).
42 U.S.C. 300g-3(g)(3)(B)........... Safe Drinking Water Act/ Maximum $5,000/$25,000*
Administrative Penalties per Sec
1414(g)(3)(B).
42 U.S.C. 300g-3(g)(3)(C)........... Safe Drinking Water Act/Threshold $25,000*
requiring Civil Judicial Action per
Sec 1414(g)(3)(C).
42 U.S.C. 300h-2(b)(1).............. SDWA/Civil Judicial Penalty/Violations $27,500
of REQS--Underground Injection
Control (UIC).
42 U.S.C. 300h-2(c)(1).............. SDWA/Civil Admin Penalty/Violations of $11,000/$137,500
UIC REQS--per Violation and Maximum.
42 U.S.C. 300h-2(c)(2).............. SDWA/Civil Admin Penalty/Violations of $5,500/$137,500
UIC REQS--per Violation and Maximum.
42 U.S.C. 300h-3(c)(1).............. SDWA/Violation/Operation of New $5,500
Underground Injection Well.
42 U.S.C. 300h-3(c)(2).............. SDWA/Willful Violation/Operation of $11,000
New Underground Injection Well.
42 U.S.C. 300i(b)................... SDWA/Failure to Comply With Imminent $15,000
and Substantial Endangerment Order.
42 U.S.C. 300i-1(c)................. SDWA/Attempting to or Tampering With $22,000/$55,000
Public Water System/Civil Judicial
Penalty.
42 U.S.C. 300j(e)(2)................ SDWA/Failure To Comply W/Order Issued $2,750
Under Sec. 1441(c)(1).
42 U.S.C. 300j-4(c)................. SDWA/Refusal to Comply with Reqs. of $27,500
Sec. 1445(a) or (b).
42 U.S.C. 300j-6(b)(2).............. SDWA/Failure To Comply With Admin. $25,000*
Order Issued to Federal Facility.
42 U.S.C. 300j-23(d)................ SDWA/Violations/Section 1463(b)--First $5,500/$55,000
Offense/Repeat Offense.
42 U.S.C. 4852d(b)(5)............... Residential Lead-Based Paint Hazard $11,000
Reduction Act of 1992, Sec 1018--
Civil Penalty.
42 U.S.C. 4910(a)(2)................ Noise Control Act of 1972--Civil $11,000
Penalty.
42 U.S.C. 6928(a)(3)................ Resource Conservation & Recovery Act/ $27,500
Violation Subtitle C Assessed Per
Order.
42 U.S.C. 6928(c)................... Res. Cons. & Rec. Act/Continued $27,500
Noncompliance of Compliance Order.
42 U.S.C. 6928(g)................... Resource Conservation & Recovery Act/ $27,500
Violation Subtitle C.
42 U.S.C. 6928(h)(2)................ Res. Cons. & Rec. Act/Noncompliance of $27,500
Corrective Action Order.
42 U.S.C. 6934(e)................... Res. Cons. & Rec. Act/Noncompliance $5,500
witH Section 3013 Order.
42 U.S.C. 6973(b)................... Res. Cons. & Rec. Act/Violations of $5,500
Administrative Order.
42 U.S.C. 6991e(a)(3)............... Res. Cons. & Rec. Act/Noncompliance $27,500
with UST Administrative Order.
42 U.S.C. 6991e(d)(1)............... Res. Cons. & Rec. Act/Failure to $11,000
Notify or for Submitting False
Information.
42 U.S.C. 6991e(d)(2)............... RCRA/Violations of Specified UST $11,000
Regulatory Requirements.
42 U.S.C. 6992d(a)(2)............... RCRA/Noncompliance W/Medical Waste $27,500
Tracking Act Assessed Thru Admin
Order.
42 U.S.C. 6992d(a)(4)............... RCRA/Noncompliance W/Medical Waste $27,500
Tracking Act Administrative Order.
42 U.S.C. 6992d(d).................. RCRA/Violations of Medical Waste $27,500
Tracking Act--Judicial Penalties.
42 U.S.C. 7413(b)................... Clean Air Act/Violation/Owners & $27,500
Operators of Stationary Air Pollution
Sources-Judicial Penalties.
42 U.S.C. 7413 (d)(1)............... Clean Air Act/Violation/Owners & $27,500/$220,000
Operators of Stationary Air Pollution
Sources--Administrative Penalties Per
Violation & Max.
42 U.S.C. 7413(d)(3)................ Clean Air Act/Minor Violations/ $5,500
Stationary Air Pollution Sources--
Field Citations.
42 U.S.C. 7524(a)................... Tampering or Manufacture/Sale of $2,750
Defeat Devices in Violation of
7522(a)(3)(A) or (a)(3)(B)--by
Persons.
42 U.S.C. 7524(a)................... Violation of 7522(a)(3)(A) or $27,500
(a)(3)(B)--by Manufacturers or
Dealers; all Violations of
7522(a)(1), (2), (4), & (5) by anyone.
[[Page 35041]]
42 U.S.C. 7524(c)................... Administrative Penalties as Set in $220,000
7524(a) & 7545(d) With a Maximum
Administrative Penalty.
42 U.S.C. 7545(d)................... Violations of Fuels Regulations....... $27,500
42 U.S.C. 9604(e)(5)(B)............. Superfund Amend. & Reauthorization Act/ $27,500
Noncompliance W/Request for Info or
Access.
42 U.S.C. 9606(b)(1)................ Superfund/Work Not Performed W/ $27,500
Imminent, Substantial Endangerment.
42 U.S.C. 9609(a)&(b)............... Superfund/Admin. Penalty Violations $27,500
under 42 U.S.C. Sect. 9603, 9608, or
9622.
42 U.S.C. 9609(b)................... Superfund/Admin. Penalty Violations-- $82,500
Subsequent.
42 U.S.C. 9609(c)................... Superfund/Civil Judicial Penalty/ $27,500
Violations of Sect. 9603, 9608, 9622.
42 U.S.C. 9609(c)................... Superfund/Civil Judicial Penalty/ $82,500
Subsequent Violations of Sect. 9603,
9608, 9622.
42 U.S.C. 11045(a)&(b) (1), (2) & Emergency Planning and Community Right- $27,500
(3). to-Know Act Class I & II
Administrative and Civil Penalties.
42 U.S.C. 11045(b) (2)&(3).......... EPCRA Class I & II Administrative and $82,500
Civil Penalties--Subsequent
Violations.
42 U.S.C. 11045(c)(1)............... EPCRA Civil and Administrative $27,500
Reporting Penalties for Violations of
Sections 11022 or 11023.
42 U.S.C. 11045(c)(2)............... EPCRA Civil and Administrative $11,000
Reporting Penalties for Violations of
Sections 11021 or 11043(b).
42 U.S.C. 11045(d) (1).............. EPCRA--Frivolous Trade Secret Claims-- $27,500
Civil and Administrative Penalties.
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*These sections were added by the 1996 Amendments to the Safe Drinking Water Act, which were not subject to
inflation adjustment by the DCIA; the penalty amounts listed in Table 1 for such provisions are the original
statutory amounts, listed here for convenience by providing a complete listing of all of EPA's civil penalty
authorities in this table.
PART 745--[AMENDED]
4. The authority citation for part 745 revised to read as follows:
Authority: 15 U.S.C. 2605, 2607, 2615, 2681-2692 and 42 U.S.C.
4852d.
5. Section 745.118 is amended by revising paragraph (f) to read as
follows:
Sec. 745.118 Enforcement.
* * * * *
(f) Violators may be subject to civil and criminal sanctions
pursuant to TSCA section 16 (15 U.S.C. 2615) for each violation. For
purposes of enforcing this subpart, the penalty for each violation
applicable under 15 U.S.C. 2615 shall be not more than $11,000 for all
violations occuring after July 28, 1997; all violations occuring on or
prior to that date are subject to a penalty not more than $10,000.
[FR Doc. 97-16894 Filed 6-26-97; 8:45 am]
BILLING CODE 6560-50-P
