2016-15411. Civil Monetary Penalty Inflation Adjustment Rule

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Interim final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is promulgating this interim final rule to adjust the level of statutory civil monetary penalty amounts for the statutes that the agency administers. This action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended through 2015 (“the 2015 Act”), which prescribes a formula for adjusting statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law. The rule does not necessarily revise the penalty amounts that EPA chooses to seek pursuant to its civil penalty policies in a particular case. EPA's civil penalty policies, which guide enforcement personnel in how to exercise EPA's statutory penalty authorities, take into account a number of fact-specific considerations, e.g., the seriousness of the violation, the violator's good faith efforts to comply, any economic benefit gained by the violator as a result of its noncompliance, and a violator's ability to pay.

DATES:

This interim final rule is effective on August 1, 2016.

FOR FURTHER INFORMATION CONTACT:

Susan O'Keefe, Office of Civil Enforcement, Office of Enforcement and Compliance Assurance, Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460, telephone number: [phone]; [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

Since 1990, Federal agencies have been required to issue regulations adjusting for inflation the statutory civil penalties ^[1] that can be imposed under the laws administered by that agency. The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 (DCIA), required agencies to review their statutory civil penalties every 4 years, and to adjust the statutory civil penalty amounts for inflation if the increase met the DCIA's adjustment methodology. In accordance with the DCIA, EPA reviewed and, as appropriate, adjusted the civil penalty levels under each of the statutes the agency implements in 1996 (61 FR 69360), 2004 (69 FR 7121), 2008 (73 FR 75340), and 2013 (78 FR 66643). Over time, the DCIA formula caused statutory civil penalties to lose value relative to total inflation.

The 2015 Act requires agencies to: (1) Adjust the level of statutory civil penalties with an initial “catch-up” adjustment through an interim final rulemaking; and (2) beginning January 15, 2017, make subsequent annual adjustments for inflation. This rule implements the statutorily mandated initial catch-up adjustments. The purpose of the 2015 Act ^[2] is to provide a mechanism to address these issues by translating originally enacted statutory civil penalty amounts to today's dollars and rounding statutory civil penalties to the nearest dollar. Once Federal agencies issue the 2016 one-time catch-up rule, each statutory civil penalty amount will be adjusted every year to reflect the inflation that has thereafter accrued.

Pursuant to section 5(b)(2)(A) of the 2015 Act, this initial catch-up “cost-of-living adjustment” is, for each statutory civil penalty, the percentage by which the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October 2015 exceeds the CPI-U for the month of October of the year during which the amount of that civil penalty was established (i.e., originally enacted) or last adjusted by statute or regulation (other than pursuant to the Federal Civil Penalties Inflation Adjustment Act). However, section 5(b)(2)(C) of the 2015 Act provides that the maximum amount of any initial catch-up increase shall not exceed 150 percent of the level that was in effect on November 2, 2015. Table 2 to 40 CFR 19.4 presents the results of these calculations and adjustments, identifying: (1) The maximum or minimum ^[3] penalty level established when each statutory section was originally enacted or last adjusted by Congress; ^[4] and (2) the statutory maximum or minimum civil penalty level, adjusted for inflation under the 2015 Act, that applies to statutory civil penalties assessed on or after August 1, 2016 for violations that occurred after November 2, 2015, the date the 2015 Act was enacted.

The formula ^[5] for determining the cost-of-living or inflation adjustment to statutory civil penalties consists of the following five-step process:

Step 1: Identify the latest year that the penalty level or range was established (i.e., originally enacted) or last adjusted by statute or regulation (other than pursuant to the Federal Civil Penalties Inflation Adjustment Act).

Step 2: Calculate the cost-of-living adjustment, which is the percentage for that statutory civil penalty by which the CPI-U for the month of October 2015 exceeds the CPI-U for the month of October of the year identified in Step 1 (hereafter referred to the “cost-of-living multiplier.”) ^[6]

Step 3: Multiply the statutory civil penalty level derived from Step 1 by the cost-of-living multiplier calculated in Step 2 and round to the nearest dollar.

Step 4: To calculate the 150 percent increase limitation, identify the statutory civil penalty amount in effect on November 2, 2015 ^[7] and multiply by 2.5.^[8]

Step 5: Compare the statutory civil penalty amounts in Step 3 and Step 4, and take the lesser of the two amounts. The lesser amount is the statutory maximum (or minimum) civil penalty that can be assessed on or after August 1, 2016, for violations that occur after November 2, 2015. Under this rule, these amounts are listed in Table 2 of 40 CFR 19.4.

For example, with this rule, the new statutory maximum total penalty that may be assessed in an administrative penalty enforcement action under Clean Air Act (CAA) section 113(d)(1), 42 U.S.C. 7413(d)(1), and CAA section 205(c)(1), 42 U.S.C. 7524(c)(1), is increasing from $320,000 to $356,312.^[9] Both of these statutory maximum penalty amounts were established or last adjusted by Congress in 1990, meaning that the applicable cost-of-living multiplier is 1.78156. Multiplying the originally enacted statutory penalty level of $200,000 by the cost-of-living multiplier of 1.78156 yields a statutory civil penalty level of $356,312 (see Column D). To determine the 150 percent statutory cap, multiply the inflation adjusted statutory civil maximum penalty level of $320,000, in effect as of November 2, 2015, by 2.5, which equals $800,000 (see Column F). The new statutory civil penalty level is the lesser of the Columns D and F, resulting in an upward adjustment for inflation of $36,312 (see Column H) and the new statutory civil penalty level of $356,312 (see Column G).

Citation	Year enacted	Original statutory civil penalty level	Multiplier	Original statutory civil penalty level × multipier	Statutory civil penalty level as of November 2, 2015	Statutory civil penalty level (as of November 2, 2015) × 2.5	New statutory civil penalty level: The lesser of (D) and (F)	Difference in penalty levels between (G) and (E)
	A	B	C	D	E	F	G	H
CLEAN AIR ACT (CAA), 42 U.S.C. 7413(d)(1), 7524(c)(1)	1990	$200,000	1.78156	$356,312	$320,000	$800,000	$356,312	$36,312

The 2015 Act allows agencies to limit the catch-up adjustment to less than the otherwise required amount only under narrowly defined circumstances. To do so, EPA must determine, and the Director of the Office of Management and Budget (OMB) must concur, that “increasing the civil monetary penalty by the otherwise required amount will have a negative economic impact; or the social costs of increasing the civil monetary penalty by the otherwise required amount outweigh the benefits.”^[10] In its February 24, 2016 guidance to Federal agencies on the implementation of the 2015 Act, OMB made clear that it expects reductions from the statutorily prescribed catch-up adjustment levels “to be rare.”^[11] This rare exception does not apply to the civil penalty provisions covered by this rule.

With this rule, the new statutory maximum (or minimum) penalty levels listed in Table 2 to 40 CFR 19.4 will apply to all statutory civil penalties assessed on or after August 1, 2016, for violations that occurred after November 2, 2015, when the 2015 Act was enacted. The statutory civil penalty levels, as codified at Table 1 to 40 CFR 19.4, will continue to apply to (1) violations that occurred on or before November 2, 2015, and (2) violations that occurred after November 2, 2015, where the penalty assessment was made prior to August 1, 2016.

II. The 2015 Act Requires Federal Agencies To Issue These Adjustments by Interim Final Rule

Section 4 of the 2015 Act directs Federal agencies to publish the initial catch-up adjustment through an interim final rule no later than July 1, 2016, which must be effective no later than August 1, 2016. Because the 2015 Act prescribes the formula that Federal agencies must follow to calculate the mandated inflation adjustments, the law does not provide Federal agencies any discretion to vary the amount of the statutory civil penalty changes to reflect any views or suggestions provided by commenters. Accordingly, pursuant to the 2015 Act and 5 U.S.C. 553(b)(3)(B), EPA finds that there is good cause to promulgate this rule without providing for public comment. It would be impracticable and unnecessary to delay publication of this rule pending opportunity for notice and comment because the 2015 Act does not allow agencies to alter the rule based on public comment.

III. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

Under Executive Order 12866, OMB determined this interim final rule to be a “non-significant” regulatory action and, therefore, it did not undergo interagency review.^[12]

B. Paperwork Reduction Act (PRA)

This action does not impose an information collection burden under the PRA. This rule merely increases the level of statutory civil penalties that could 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.

C. Regulatory Flexibility Act (RFA)

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements because the 2015 Act does not allow agencies to alter the rule based on public comment.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is required by the 2015 Act, without the exercise of any policy discretion by EPA. This action also imposes no enforceable duty on any state, local or tribal governments or the private sector. Because the calculation of any increase is formula-driven pursuant to the 2015 Act, EPA has no policy discretion to vary the amount of the adjustment.

E. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have a substantial direct effect on the states, or on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action does not have tribal implications as specified in Executive Order 13175. This rule merely reconciles the real value of current statutory civil penalty levels to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute, and EPA has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, this rule will not have a substantial direct effect 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.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

The rule does not involve technical 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.

The primary purpose of this rule is to reconcile the real value of current statutory civil penalty levels to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. 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 2015 Act in determining the statutory civil penalty level, EPA cannot vary the amount of the statutory civil penalty adjustment to address other issues, including environmental justice issues.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency finds that notice and comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). This rule is not subject to notice and comment requirements because the 2015 Act does not allow agencies to alter the rule based on public comment.

List of Subjects in 40 CFR Part 19

• Environmental protection
• Administrative practice and procedure
• Penalties

Dated: June 23, 2016.

Gina McCarthy,

Administrator.

For the reasons set out in the preamble, title 40, chapter I, part 19 of the Code of Federal Regulations is amended as follows:

PART 19—ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION

1. The authority citation for part 19 is revised to read as follows:

Authority: Pub. L. 101-410, Oct. 5, 1990, 104 Stat. 890, as amended by Pub. L. 104-134, title III, sec. 31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373; Pub. L. 105-362, title XIII, sec. 1301(a), Nov. 10, 1998, 112 Stat. 3293; Pub. L. 114-74, title VII, sec. 701(b), Nov. 2, 2015, 129 Stat. 599.

2. Revise § 19.2 to read as follows:

§ 19.2

Effective date.

The penalty levels in the last column of Table 1 to § 19.4 apply to all violations which occurred after December 6, 2013 through November 2, 2015, and to violations occurring after November 2, 2015, where penalties are assessed before August 1, 2016. The statutory civil penalty levels set forth in the last column of Table 2 to § 19.4 apply to all violations which occur after November 2, 2015, where the penalties are assessed on or after August 1, 2016.

3. Amend § 19.4 by:

a. Revising the section heading and the introductory text;

b. In Table 1, amending the last column heading by removing the text “Penalties effective after December 6, 2013”; and adding “Statutory civil penalties for violations that occurred after December 6, 2013 through November 2, 2015, or are assessed before August 1, 2016” in its place; and

c. Adding a new Table 2.

The revisions and addition read as follows:

§ 19.4

Statutory civil penalties, as adjusted for inflation, and tables.

Table 1 to § 19.4 sets out the statutory civil penalty provisions of statutes administered by EPA, with the original statutory civil penalty levels, as enacted, and the operative statutory civil penalty levels, as adjusted for inflation, for violations occurring on or before November 2, 2015, and for violations occurring after November 2, 2015, where penalties are assessed before August 1, 2016. Table 2 sets out the statutory civil penalty provisions of statutes administered by EPA, with the original statutory civil penalty levels, as enacted, with the last column displaying the operative statutory civil penalty levels where penalties are assessed on or after August 1, 2016, for violations that occurred after November 2, 2015.

* * * * *

Table 2 of Section 19.4—Civil Monetary Penalty Inflation Adjustments 

U.S. Code citation	Environmental statute	Statutory civil penalties, as enacted	Statutory civil penalties for violations that occurred after November 2, 2015 and assessed on or after August 1, 2016
7 U.S.C. 136 l. (a)(1)	FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT (FIFRA)	$5,000	$18,750
7 U.S.C. 136 l. (a)(2) 1	FIFRA	1,000/500/1,000	2,750/1,772/2,750
15 U.S.C. 2615(a)(1)	TOXIC SUBSTANCES CONTROL ACT (TSCA)	25,000	37,500
15 U.S.C. 2647(a)	TSCA	5,000	10,781
15 U.S.C. 2647(g)	TSCA	5,000	8,908
31 U.S.C. 3802(a)(1)	PROGRAM FRAUD CIVIL REMEDIES ACT (PFCRA)	5,000	10,781
31 U.S.C. 3802(a)(2)	PFCRA	5,000	10,781
33 U.S.C. 1319(d)	CLEAN WATER ACT (CWA)	25,000	51,570
33 U.S.C. 1319(g)(2)(A)	CWA	10,000/25,000	20,628/51,570
33 U.S.C. 1319(g)(2)(B)	CWA	10,000/125,000	20,628/257,848
33 U.S.C. 1321(b)(6)(B)(i)	CWA	10,000/25,000	17,816/44,539
33 U.S.C. 1321(b)(6)(B)(ii)	CWA	10,000/125,000	17,816/222,695
33 U.S.C. 1321(b)(7)(A)	CWA	25,000/1,000	44,539/1,782
33 U.S.C. 1321(b)(7)(B)	CWA	25,000	44,539
33 U.S.C. 1321(b)(7)(C)	CWA	25,000	44,539
33 U.S.C. 1321(b)(7)(D)	CWA	100,000/3,000	178,156/5,345
33 U.S.C. 1414b(d)(1)	MARINE PROTECTION, RESEARCH, AND SANCTUARIES ACT (MPRSA)	600	1,187
33 U.S.C. 1415(a)	MPRSA	50,000/125,000	187,500/247,336
33 U.S.C. 1901 note (see 1409(a)(2)(A))	CERTAIN ALASKAN CRUISE SHIP OPERATIONS (CACSO)	10,000/25,000	13,669/34,172
33 U.S.C. 1901 note (see 1409(a)(2)(B))	CACSO	10,000/125,000	13,669/170,861
33 U.S.C. 1901 note (see 1409(b)(1))	CACSO	25,000	34,172
33 U.S.C. 1908(b)(1)	ACT TO PREVENT POLLUTION FROM SHIPS (APPS)	25,000	70,117
33 U.S.C. 1908(b)(2)	APPS	5,000	14,023
42 U.S.C. 300g-3(b)	SAFE DRINKING WATER ACT (SDWA)	25,000	53,907
42 U.S.C. 300g-3(g)(3)(A)	SDWA	25,000	53,907
42 U.S.C. 300g-3(g)(3)(B)	SDWA	5,000/25,000	10,781/37,561
42 U.S.C. 300g-3(g)(3)(C)	SDWA	25,000	37,561
42 U.S.C. 300h-2(b)(1)	SDWA	25,000	53,907
42 U.S.C. 300h-2(c)(1)	SDWA	10,000/125,000	21,563/269,535
42 U.S.C. 300h-2(c)(2)	SDWA	5,000/125,000	10,781/269,535
42 U.S.C. 300h-3(c)	SDWA	5,000/10,000	18,750/40,000
42 U.S.C. 300i(b)	SDWA	15,000	22,537
42 U.S.C. 300i-1(c)	SDWA	100,000/1,000,000	131,185/1,311,850
42 U.S.C. 300j(e)(2)	SDWA	2,500	9,375
42 U.S.C. 300j-4(c)	SDWA	25,000	53,907
42 U.S.C. 300j-6(b)(2)	SDWA	25,000	37,561
42 U.S.C. 300j-23(d)	SDWA	5,000/50,000	9,893/98,935
42 U.S.C. 4852d(b)(5)	RESIDENTIAL LEAD—BASED PAINT HAZARD REDUCTION ACT OF 1992	10,000	16,773
42 U.S.C. 4910(a)(2)	NOISE CONTROL ACT OF 1972	10,000	35,445
42 U.S.C. 6928(a)(3)	RESOURCE CONSERVATION AND RECOVERY ACT (RCRA)	25,000	93,750
42 U.S.C. 6928(c)	RCRA	25,000	56,467
42 U.S.C. 6928(g)	RCRA	25,000	70,117
42 U.S.C. 6928(h)(2)	RCRA	25,000	56,467
42 U.S.C. 6934(e)	RCRA	5,000	14,023
42 U.S.C. 6973(b)	RCRA	5,000	14,023
42 U.S.C. 6991e(a)(3)	RCRA	25,000	56,467
42 U.S.C. 6991e(d)(1)	RCRA	10,000	22,587
42 U.S.C. 6991e(d)(2)	RCRA	10,000	22,587
42 U.S.C. 7413(b)	CLEAN AIR ACT (CAA)	25,000	93,750
42 U.S.C. 7413(d)(1)	CAA	25,000/200,000	44,539/356,312
42 U.S.C. 7413(d)(3)	CAA	5,000	8,908
42 U.S.C. 7524(a)	CAA	25,000/2,500	44,539/4,454
42 U.S.C. 7524(c)(1)	CAA	200,000	356,312
42 U.S.C. 7545(d)(1)	CAA	25,000	44,539
42 U.S.C. 9604(e)(5)(B)	COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA)	25,000	53,907
42 U.S.C. 9606(b)(1)	CERCLA	25,000	53,907
42 U.S.C. 9609(a)(1)	CERCLA	25,000	53,907
42 U.S.C. 9609(b)	CERCLA	25,000/75,000	53,907/161,721
42 U.S.C. 9609(c)	CERCLA	25,000/75,000	53,907/161,721
42 U.S.C. 11045(a)	EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT (EPCRA)	25,000	53,907
42 U.S.C. 11045(b)(1)(A)	EPCRA	25,000	53,907
42 U.S.C. 11045(b)(2)	EPCRA	25,000/75,000	53,907/161,721
42 U.S.C. 11045(b)(3)	EPCRA	25,000/75,000	53,907/161,721
42 U.S.C. 11045(c)(1)	EPCRA	25,000	53,907
42 U.S.C. 11045(c)(2)	EPCRA	10,000	21,563
42 U.S.C. 11045(d)(1)	EPCRA	25,000	53,907
42 U.S.C. 14304(a)(1)	MERCURY—CONTAINING AND RECHARGEABLE BATTERY MANAGEMENT ACT (BATTERY ACT)	10,000	15,025
42 U.S.C. 14304(g)	BATTERY ACT	10,000	15,025

Footnotes

1.  The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 28 U.S.C. 2461 note, defines “civil monetary penalty” as “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; and (B) is assessed or enforced by an agency pursuant to Federal law; and (C) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.”

2.  The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114-74) was signed into law on Nov. 2, 2015, and further amended the Federal Civil Penalties Inflation Adjustment Act of 1990.

3.  Under Section 3(2)(A) of the 2015 Act, “civil monetary penalty” means “a specific monetary amount as provided by Federal law”; or “has a maximum amount provided for by Federal law.” EPA-administered statutes generally refer to statutory maximum civil penalties, with the following exceptions: Section 311(b)(7)(D) of the Clean Water Act, 33 U.S.C. 1321(b)(7)(D), refers to a minimum penalty of “not less than $100,000 . . .”; Section 104B(d)(1) of the Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. 1414b(d)(1), refers to an exact penalty of $600 “[f]or each dry ton (or equivalent) of sewage sludge or industrial waste dumped or transported by person in calendar year 1992 . . . ”; and Section 325(d)(1) of the Emergency Planning and Community Right-to-Know Act, 42 U.S.C. 11045(d)(1), refers to an exact civil penalty of $25,000 for each frivolous trade secret claim.

4.  Section 5(b)(2)(B) provides that the cost-of-living-adjustment “shall be applied to the amount of the civil monetary penalty as it was most recently established or adjusted under a provision of law other than under this Act.” Because EPA has not adjusted any of the statutory civil penalty levels identified at 40 CFR 19.4 for inflation outside of the inflation adjustments made pursuant to the DCIA, the initial cost-of-living adjustment is calculated based on the statutory civil penalty amount as originally enacted or last adjusted by Congress.

5.  Office of Management and Budget Memorandum, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (OMB Memorandum M-16-06) at p. 8, Appendix (February 24, 2016).

6.  See OMB Memorandum M-16-06 at p. 6 for a list of the applicable cost-of-living multipliers by year.

7.  78 FR 66643 (November 6, 2013).

8.  To calculate the 150 percent increase limitation, multiply the inflation adjusted statutory civil penalty amounts in effect on November 2, 2015 by 2.5 or 250 percent.

9.  Note that CAA section 113(d)(1) and section 205(c)(1) authorize the imposition of a higher statutory maximum civil penalty in an administrative enforcement action if the EPA Administrator and the Attorney General jointly decide that a higher statutory maximum civil penalty is appropriate in a particular matter.

10.  Section 4(c)(1) of the 2015 Act.

11.  See OMB Memorandum M-16-06 at p.3.

12.  See OMB Memorandum M-16-06 at pp. 3-4.

1.  Note that 7 U.S.C. 136 l. (a)(2) contains three separate statutory maximum civil penalty provisions. The first mention of $1,000 and the $500 statutory maximum civil penalty amount were originally enacted in 1978 (Pub. L 95-396), and the second mention of $1,000 was enacted in 1972 (Pub. L. 92-516).