[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Rules and Regulations]
[Pages 75340-75346]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29380]


=======================================================================
-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

* * * * *
    (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).
---------------------------------------------------------------------------

* * * * *
 [FR Doc. E8-29380 Filed 12-10-08; 8:45 am]
BILLING CODE 6560-50-P