81 FR 43091 - Civil Monetary Penalty Inflation Adjustment Rule
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 81, Issue 127 (July 1, 2016)
Federal Register Volume 81, Issue 127 (July 1, 2016)
| Page Range | 43091-43096 | |
| FR Document | 2016-15411 |
[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)] [Rules and Regulations] [Pages 43091-43096] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-15411] ======================================================================= ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 19 [FRL-9948-48-OECA] RIN 2020-AA51 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: (202) 564-4021; [email protected]. 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 [[Page 43092]] 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. --------------------------------------------------------------------------- \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.'' --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- The formula \5\ for determining the cost-of-living or inflation adjustment to statutory civil penalties consists of the following five- step process: --------------------------------------------------------------------------- \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). --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \6\ See OMB Memorandum M-16-06 at p. 6 for a list of the applicable cost-of-living multipliers by year. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \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. --------------------------------------------------------------------------- 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). --------------------------------------------------------------------------- \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. [[Page 43093]] A B C D E F G H -------------------------------------------------------------------------------------------------------------------------------------------------------- CLEAN AIR ACT (CAA), 42 U.S.C. 7413(d)(1), 1990 $200,000 1.78156 $356,312 $320,000 $800,000 $356,312 $36,312 7524(c)(1)................................ -------------------------------------------------------------------------------------------------------------------------------------------------------- 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. --------------------------------------------------------------------------- \10\ Section 4(c)(1) of the 2015 Act. \11\ See OMB Memorandum M-16-06 at p.3. --------------------------------------------------------------------------- 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\ --------------------------------------------------------------------------- \12\ See OMB Memorandum M-16-06 at pp. 3-4. --------------------------------------------------------------------------- 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 [[Page 43094]] 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 0 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. 0 2. Revise Sec. 19.2 to read as follows: Sec. 19.2 Effective date. The penalty levels in the last column of Table 1 to Sec. 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 Sec. 19.4 apply to all violations which occur after November 2, 2015, where the penalties are assessed on or after August 1, 2016. 0 3. Amend Sec. 19.4 by: 0 a. Revising the section heading and the introductory text; 0 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 0 c. Adding a new Table 2. The revisions and addition read as follows: Sec. 19.4 Statutory civil penalties, as adjusted for inflation, and tables. Table 1 to Sec. 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. --------------------------------------------------------------------------- \1\ Note that 7 U.S.C. 136l.(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). --------------------------------------------------------------------------- * * * * * Table 2 of Section 19.4--Civil Monetary Penalty Inflation Adjustments ---------------------------------------------------------------------------------------------------------------- Statutory civil penalties for violations that U.S. Code citation Environmental statute Statutory civil occurred after penalties, as enacted November 2, 2015 and assessed on or after August 1, 2016 ---------------------------------------------------------------------------------------------------------------- 7 U.S.C. 136l.(a)(1).............. FEDERAL INSECTICIDE, $5,000 $18,750 FUNGICIDE, AND RODENTICIDE ACT (FIFRA). 7 U.S.C. 136l.(a)(2) \1\.......... FIFRA..................... 1,000/500/1,000 2,750/1,772/2,750 [[Page 43095]] 15 U.S.C. 2615(a)(1).............. TOXIC SUBSTANCES CONTROL 25,000 37,500 ACT (TSCA). 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 5,000 10,781 REMEDIES ACT (PFCRA). 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, 600 1,187 RESEARCH, AND SANCTUARIES ACT (MPRSA). 33 U.S.C. 1415(a)................. MPRSA..................... 50,000/125,000 187,500/247,336 33 U.S.C. 1901 note (see CERTAIN ALASKAN CRUISE 10,000/25,000 13,669/34,172 1409(a)(2)(A)). SHIP OPERATIONS (CACSO). 33 U.S.C. 1901 note (see CACSO..................... 10,000/125,000 13,669/170,861 1409(a)(2)(B)). 33 U.S.C. 1901 note (see CACSO..................... 25,000 34,172 1409(b)(1)). 33 U.S.C. 1908(b)(1).............. ACT TO PREVENT POLLUTION 25,000 70,117 FROM SHIPS (APPS). 33 U.S.C. 1908(b)(2).............. APPS...................... 5,000 14,023 42 U.S.C. 300g-3(b)............... SAFE DRINKING WATER ACT 25,000 53,907 (SDWA). 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 10,000 16,773 PAINT HAZARD REDUCTION ACT OF 1992. 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 25,000 93,750 RECOVERY ACT (RCRA). 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 25,000 53,907 ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT (CERCLA). 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 25,000 53,907 COMMUNITY RIGHT-TO-KNOW ACT (EPCRA). [[Page 43096]] 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 10,000 15,025 RECHARGEABLE BATTERY MANAGEMENT ACT (BATTERY ACT). 42 U.S.C. 14304(g)................ BATTERY ACT............... 10,000 15,025 ---------------------------------------------------------------------------------------------------------------- [FR Doc. 2016-15411 Filed 6-30-16; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations 43091
FURTHER INFORMATION CONTACT section PART 165—REGULATED NAVIGATION ENVIRONMENTAL PROTECTION
above. AREAS AND LIMITED ACCESS AREAS AGENCY
E. Unfunded Mandates Reform Act 40 CFR Part 19
■ 1. The authority citation for part 165
The Unfunded Mandates Reform Act continues to read as follows: [FRL–9948–48–OECA]
of 1995 (2 U.S.C. 1531–1538) requires
Authority: 33 U.S.C. 1231; 50 U.S.C. 191; RIN 2020–AA51
Federal agencies to assess the effects of
33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
their discretionary regulatory actions. In
Department of Homeland Security Delegation Civil Monetary Penalty Inflation
particular, the Act addresses actions No. 0170.1.
that may result in the expenditure by a Adjustment Rule
State, local, or tribal government, in the ■ 2. Add § 165.T08–0335 to read as AGENCY: Environmental Protection
aggregate, or by the private sector of follows: Agency (EPA).
$100,000,000 (adjusted for inflation) or
ACTION: Interim final rule.
more in any one year. Though this rule § 165.T08–0335 Safety Zone; Ohio River
will not result in such an expenditure, Mile 42.5 to Mile 43.0, Chester, WV. SUMMARY: The Environmental Protection
we do discuss the effects of this rule (a) Location. The following area is a Agency (EPA) is promulgating this
elsewhere in this preamble. safety zone: All waters extending 300 interim final rule to adjust the level of
F. Environment feet from the left descending bank into statutory civil monetary penalty
the Ohio River from mile 42.5 to mile amounts for the statutes that the agency
We have analyzed this rule under 43.0. administers. This action is mandated by
Department of Homeland Security the Federal Civil Penalties Inflation
Management Directive 023–01 and (b) Definitions. As used in this Adjustment Act of 1990, as amended
Commandant Instruction M16475.lD, section, designated representative through 2015 (‘‘the 2015 Act’’), which
which guide the Coast Guard in means a Coast Guard Patrol prescribes a formula for adjusting
complying with the National Commander, including a Coast Guard statutory civil penalties to reflect
Environmental Policy Act of 1969 (42 coxswain, petty officer, or other officer inflation, maintain the deterrent effect
U.S.C. 4321–4370f), and have operating a Coast Guard vessel and a of statutory civil penalties, and promote
determined that this action is one of a Federal, State, and local officer compliance with the law. The rule does
category of actions that do not designated by or assisting the Captain of not necessarily revise the penalty
individually or cumulatively have a the Port Pittsburgh (COTP) in the amounts that EPA chooses to seek
significant effect on the human enforcement of the safety zone. pursuant to its civil penalty policies in
environment. This rule involves a safety (c) Regulations. (1) Under the general a particular case. EPA’s civil penalty
zone lasting less than 2 hours that will safety zone regulations in § 165.23, you policies, which guide enforcement
prohibit entry 300 feet from the left may not enter the safety zone described personnel in how to exercise EPA’s
descending bank into the Ohio River in paragraph (a) of this section unless statutory penalty authorities, take into
from mile 42.5 to mile 43.0. It is account a number of fact-specific
authorized by the COTP or the COTP’s
categorically excluded from further considerations, e.g., the seriousness of
designated representative.
review under paragraph 34(g) of Figure the violation, the violator’s good faith
2–1 of the Commandant Instruction. An (2) To seek permission to enter, efforts to comply, any economic benefit
environmental analysis checklist contact the COTP or the COTP’s gained by the violator as a result of its
supporting this determination and a representative at 412–221–0807. Those noncompliance, and a violator’s ability
Categorical Exclusion Determination are in the safety zone must comply with all to pay.
available in the docket where indicated lawful orders or directions given to DATES: This interim final rule is
under ADDRESSES. We seek any them by the COTP or the COTP’s effective on August 1, 2016.
comments or information that may lead designated representative. FOR FURTHER INFORMATION CONTACT:
to the discovery of a significant (d) Enforcement period. This section Susan O’Keefe, Office of Civil
environmental impact from this rule. Enforcement, Office of Enforcement and
will be enforced from 9:30 p.m. to 11:00
G. Protest Activities p.m. on July 4, 2016. Compliance Assurance, Environmental
(e) Informational broadcasts. The Protection Agency, 1200 Pennsylvania
The Coast Guard respects the First Avenue NW., Washington, DC 20460,
Amendment rights of protesters. COTP or a designated representative
telephone number: (202) 564–4021;
Protesters are asked to contact the will inform the public through
okeefe.susan@epa.gov.
person listed in the FOR FURTHER broadcast notices to mariners of the
enforcement period for the safety zone SUPPLEMENTARY INFORMATION:
INFORMATION CONTACT section to
coordinate protest activities so that your as well as any changes in the dates and I. Background
message can be received without times of enforcement.
Since 1990, Federal agencies have
jeopardizing the safety or security of L. Mcclain, Jr., been required to issue regulations
people, places or vessels. adjusting for inflation the statutory civil
Commander, U.S. Coast Guard, Captain of
List of Subjects in 33 CFR Part 165 the Port Pittsburgh. penalties 1 that can be imposed under
asabaliauskas on DSK3SPTVN1PROD with RULES
[FR Doc. 2016–15689 Filed 6–30–16; 8:45 am]
Marine safety, Navigation (water), 1 The Federal Civil Penalties Inflation Adjustment
BILLING CODE 9110–04–P
Reporting and recordkeeping Act of 1990, Public Law 101–410, 28 U.S.C. 2461
requirements, Security measures, note, defines ‘‘civil monetary penalty’’ as ‘‘any
penalty, fine, or other sanction that—(A)(i) is for a
Waterways. specific monetary amount as provided by Federal
law; or (ii) has a maximum amount provided for by
For the reasons discussed in the Federal law; and (B) is assessed or enforced by an
preamble, the Coast Guard amends 33 agency pursuant to Federal law; and (C) is assessed
CFR part 165 as follows: Continued
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![43092 Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations
the laws administered by that agency. to 40 CFR 19.4 presents the results of Step 3: Multiply the statutory civil
The Federal Civil Penalties Inflation these calculations and adjustments, penalty level derived from Step 1 by the
Adjustment Act of 1990, as amended by identifying: (1) The maximum or cost-of-living multiplier calculated in
the Debt Collection Improvement Act of minimum 3 penalty level established Step 2 and round to the nearest dollar.
1996 (DCIA), required agencies to when each statutory section was
Step 4: To calculate the 150 percent
review their statutory civil penalties originally enacted or last adjusted by
increase limitation, identify the
every 4 years, and to adjust the statutory Congress; 4 and (2) the statutory
civil penalty amounts for inflation if the maximum or minimum civil penalty statutory civil penalty amount in effect
increase met the DCIA’s adjustment level, adjusted for inflation under the on November 2, 2015 7 and multiply by
methodology. In accordance with the 2015 Act, that applies to statutory civil 2.5.8
DCIA, EPA reviewed and, as penalties assessed on or after August 1, Step 5: Compare the statutory civil
appropriate, adjusted the civil penalty 2016 for violations that occurred after penalty amounts in Step 3 and Step 4,
levels under each of the statutes the November 2, 2015, the date the 2015 Act and take the lesser of the two amounts.
agency implements in 1996 (61 FR was enacted. The lesser amount is the statutory
69360), 2004 (69 FR 7121), 2008 (73 FR The formula 5 for determining the maximum (or minimum) civil penalty
75340), and 2013 (78 FR 66643). Over cost-of-living or inflation adjustment to that can be assessed on or after August
time, the DCIA formula caused statutory statutory civil penalties consists of the 1, 2016, for violations that occur after
civil penalties to lose value relative to following five-step process: November 2, 2015. Under this rule,
total inflation. Step 1: Identify the latest year that the
penalty level or range was established these amounts are listed in Table 2 of
The 2015 Act requires agencies to: (1)
(i.e., originally enacted) or last adjusted 40 CFR 19.4.
Adjust the level of statutory civil
penalties with an initial ‘‘catch-up’’ by statute or regulation (other than For example, with this rule, the new
adjustment through an interim final pursuant to the Federal Civil Penalties statutory maximum total penalty that
rulemaking; and (2) beginning January Inflation Adjustment Act). may be assessed in an administrative
15, 2017, make subsequent annual Step 2: Calculate the cost-of-living penalty enforcement action under Clean
adjustments for inflation. This rule adjustment, which is the percentage for Air Act (CAA) section 113(d)(1), 42
implements the statutorily mandated that statutory civil penalty by which the U.S.C. 7413(d)(1), and CAA section
initial catch-up adjustments. The CPI–U for the month of October 2015 205(c)(1), 42 U.S.C. 7524(c)(1), is
purpose of the 2015 Act 2 is to provide exceeds the CPI–U for the month of increasing from $320,000 to $356,312.9
a mechanism to address these issues by October of the year identified in Step 1 Both of these statutory maximum
translating originally enacted statutory (hereafter referred to the ‘‘cost-of-living
penalty amounts were established or
civil penalty amounts to today’s dollars multiplier.’’) 6
last adjusted by Congress in 1990,
and rounding statutory civil penalties to meaning that the applicable cost-of-
3 Under Section 3(2)(A) of the 2015 Act, ‘‘civil
the nearest dollar. Once Federal
monetary penalty’’ means ‘‘a specific monetary living multiplier is 1.78156. Multiplying
agencies issue the 2016 one-time catch- amount as provided by Federal law’’; or ‘‘has a the originally enacted statutory penalty
up rule, each statutory civil penalty maximum amount provided for by Federal law.’’
amount will be adjusted every year to EPA-administered statutes generally refer to
level of $200,000 by the cost-of-living
reflect the inflation that has thereafter statutory maximum civil penalties, with the multiplier of 1.78156 yields a statutory
accrued. following exceptions: Section 311(b)(7)(D) of the civil penalty level of $356,312 (see
Clean Water Act, 33 U.S.C. 1321(b)(7)(D), refers to Column D). To determine the 150
Pursuant to section 5(b)(2)(A) of the a minimum penalty of ‘‘not less than $100,000
2015 Act, this initial catch-up ‘‘cost-of- . . .’’; Section 104B(d)(1) of the Marine Protection, percent statutory cap, multiply the
living adjustment’’ is, for each statutory Research, and Sanctuaries Act, 33 U.S.C. inflation adjusted statutory civil
civil penalty, the percentage by which 1414b(d)(1), refers to an exact penalty of $600 ‘‘[f]or maximum penalty level of $320,000, in
each dry ton (or equivalent) of sewage sludge or
the Consumer Price Index for all Urban industrial waste dumped or transported by person effect as of November 2, 2015, by 2.5,
Consumers (CPI–U) for the month of in calendar year 1992 . . . ’’; and Section 325(d)(1) which equals $800,000 (see Column F).
October 2015 exceeds the CPI–U for the of the Emergency Planning and Community Right- The new statutory civil penalty level is
month of October of the year during to-Know Act, 42 U.S.C. 11045(d)(1), refers to an
exact civil penalty of $25,000 for each frivolous the lesser of the Columns D and F,
which the amount of that civil penalty trade secret claim. resulting in an upward adjustment for
was established (i.e., originally enacted) 4 Section 5(b)(2)(B) provides that the cost-of-
inflation of $36,312 (see Column H) and
or last adjusted by statute or regulation living-adjustment ‘‘shall be applied to the amount
the new statutory civil penalty level of
(other than pursuant to the Federal Civil of the civil monetary penalty as it was most recently
established or adjusted under a provision of law $356,312 (see Column G).
Penalties Inflation Adjustment Act). other than under this Act.’’ Because EPA has not
However, section 5(b)(2)(C) of the 2015 adjusted any of the statutory civil penalty levels
Act provides that the maximum amount identified at 40 CFR 19.4 for inflation outside of the 7 78 FR 66643 (November 6, 2013).
of any initial catch-up increase shall not inflation adjustments made pursuant to the DCIA, 8 To calculate the 150 percent increase limitation,
the initial cost-of-living adjustment is calculated multiply the inflation adjusted statutory civil
exceed 150 percent of the level that was based on the statutory civil penalty amount as penalty amounts in effect on November 2, 2015 by
in effect on November 2, 2015. Table 2 originally enacted or last adjusted by Congress.
5 Office of Management and Budget
2.5 or 250 percent.
9 Note that CAA section 113(d)(1) and section
or enforced pursuant to an administrative Memorandum, Implementation of the Federal Civil
proceeding or a civil action in the Federal courts.’’ Penalties Inflation Adjustment Act Improvement 205(c)(1) authorize the imposition of a higher
2 The Federal Civil Penalties Inflation Adjustment Act of 2015 (OMB Memorandum M–16–06) at p. 8, statutory maximum civil penalty in an
Act Improvements Act of 2015 (Section 701 of Pub. Appendix (February 24, 2016). administrative enforcement action if the EPA
asabaliauskas on DSK3SPTVN1PROD with RULES
L. 114–74) was signed into law on Nov. 2, 2015, and 6 See OMB Memorandum M–16–06 at p. 6 for a Administrator and the Attorney General jointly
further amended the Federal Civil Penalties list of the applicable cost-of-living multipliers by decide that a higher statutory maximum civil
Inflation Adjustment Act of 1990. year. penalty is appropriate in a particular matter.
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![43096 Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations
TABLE 2 OF SECTION 19.4—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
Statutory civil penalties
for violations that
Statutory civil penalties, occurred after
U.S. Code citation Environmental statute as enacted November 2, 2015 and
assessed on or after Au-
gust 1, 2016
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 RE- 10,000 15,025
CHARGEABLE BATTERY MANAGE-
MENT ACT (BATTERY ACT).
42 U.S.C. 14304(g) ....................................... BATTERY ACT ............................................. 10,000 15,025
[FR Doc. 2016–15411 Filed 6–30–16; 8:45 am] August 23, 2002 and a maintenance I. What action is EPA taking?
BILLING CODE 6560–50–P plan was also approved at that time. By EPA is approving New Jersey’s SIP
this action, EPA is approving a second revision updating their existing ten-year
limited maintenance plan for this area carbon monoxide (CO) maintenance
ENVIRONMENTAL PROTECTION because it provides for continued plan for the New Jersey portion of the
AGENCY attainment of the CO NAAQS for an New York-Northern New Jersey-Long
additional ten years. The intended effect Island (NYNNJLI) CO area, which
40 CFR Part 52 of this rulemaking is to approve a SIP includes the following areas: Hudson,
[Docket No. EPA–R02–OAR–2016–0059; revision that will insure continued Essex, Bergen, and Union Counties, and
FRL–9948–57–Region 2] maintenance of the CO NAAQS. the municipalities of Clifton, Passaic
DATES: This final rule is effective on and Paterson in Passaic County, with
Approval of Air Quality Implementation August 1, 2016. another ten-year plan. The reader is
Plans; New Jersey, Carbon Monoxide
ADDRESSES: The EPA has established a referred to the March 25, 2016 (81 FR
Maintenance Plan
docket for this action under Docket ID 16102) proposal for details on this
AGENCY: Environmental Protection No. EPA–R02–OAR–2016–0059. All rulemaking.
Agency (EPA). documents in the docket are listed on
II. What comments did EPA receive on
ACTION: Final rule. the http://www.regulations.gov Web
its proposal and what are EPA’s
site. Although listed in the index, some
SUMMARY: The Environmental Protection responses?
information is not publicly available,
Agency (EPA) is approving a State e.g., CBI or other information whose EPA did not receive any comments on
Implementation Plan (SIP) revision disclosure is restricted by statute. our proposed approval of the updated
submitted by the New Jersey Certain other material, such as CO limited maintenance plan. EPA is
Department of Environmental copyrighted material, is not placed on approving the New Jersey SIP revision
Protection. This revision establishes an the Internet and will be publicly request.
updated ten-year carbon monoxide (CO) available only in hard copy form.
limited maintenance plan for the New III. What is the adequacy status of the
Publicly available docket materials are CO limited maintenance plan for the
Jersey portion of the New York-Northern available electronically through http://
New Jersey-Long Island (NYNNJLI) CO New Jersey portion of the New York-
www.regulations.gov. Northern New Jersey-Long Island area?
area which includes the following areas:
FOR FURTHER INFORMATION CONTACT: Section 118(e) of the transportation
Hudson, Essex, Bergen, and Union
Counties, and the municipalities of Henry Feingersh, Air Programs Branch, conformity rule (40 CFR part 93) states
Clifton, Passaic and Paterson in Passaic Environmental Protection Agency, 290 that a conformity determination cannot
County. New Jersey qualifies for a Broadway, 25th Floor, New York, New be made using submitted motor vehicle
limited maintenance plan, rather than a York 10007–1866, telephone number emission budgets (‘‘budgets’’) until EPA
full maintenance plan, because (212) 637–3382, or by email at makes a positive determination that the
monitoring concentrations of CO are feingersh.henry@epa.gov. submitted budgets are adequate. In
less than 85% of the standard. In a SUPPLEMENTARY INFORMATION: The accordance with our rule, the limited
limited maintenance plan, future-year supplementary Information section is maintenance plan for the New Jersey
projection inventories and arranged as follows: portion of the New York-Northern New
transportation conformity budgets are Table of Contents Jersey-Long Island (NYNNJLI) CO area
not required. In addition, EPA is also was posted for adequacy review on July
asabaliauskas on DSK3SPTVN1PROD with RULES
approving the 2007 Attainment/Base I. What Action is EPA Taking? 27, 2015 on EPA’s conformity Web site:
Year CO emissions inventory and the II. What Comments did EPA Receive on its http://www.epa.gov/otaq/
Proposal and What are EPA’s Responses?
shutdown of 5 CO maintenance stateresources/transconf/adequacy.htm.
III. What is the Adequacy Status of the CO
monitors in New Jersey. Limited Maintenance Plan for the New
As a general rule, however, limited
The New Jersey portion of the Jersey Portion of the New York-Northern maintenance plans, such as the
NYNNJLI CO area was redesignated to New Jersey-Long Island Area? maintenance plan for the NYNNJLI CO
attainment of the CO National Ambient IV. What is EPA’s Final Action? area, do not include budgets. Instead,
Air Quality Standard (NAAQS) on V. Statutory and Executive Order Reviews for those areas that qualify under our
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Document Created: 2016-07-14 11:37:09
Document Modified: 2016-07-14 11:37:09
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule. | |
| Dates | This interim final rule is effective on August 1, 2016. | |
| 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: (202) 564-4021; [email protected] | |
| FR Citation | 81 FR 43091 | |
| RIN Number | 2020-AA51 | |
| CFR Associated | Environmental Protection; Administrative Practice and Procedure and Penalties |
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