[Federal Register Volume 59, Number 84 (Tuesday, May 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10435]
[[Page Unknown]]
[Federal Register: May 3, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 65
[FRL-4877-5]
RIN 2060-AD81
Regulations Governing Awards Under Section 113(f) of the Clean
Air Act
AGENCY: U.S. Environmental Protection Agency.
ACTION: Notice of proposed rule.
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SUMMARY: This proposed rule sets forth criteria and procedures for the
granting of awards as authorized by an amendment to the Clean Air Act
(the Act). The amendments added section 113(f) to the Act, which
authorizes the Administrator of the Environmental Protection Agency
discretion to pay an award, not to exceed $10,000, to any person who
furnishes information or services which lead to a criminal conviction
or a judicial or administrative civil penalty enforced under section
113 of the Act for a violation of titles I, III, IV, V, or VI of the
Act, as amended. Section 113(f) also authorizes the Administrator to
prescribe, by regulation, additional criteria for eligibility for such
an award. This proposed rule sets forth such additional criteria for
eligibility. In addition, this proposal establishes procedures to
petition the Agency for consideration for an award, including what
information must be submitted in such petitions, and describes award
criteria. This proposed rule also provides an assurance of
confidentiality as to the identity of persons who provide information
or services on a confidential basis. Furthermore, to implement the goal
of the program, this rule provides direction for providing information
or services regarding potential violations.
DATES: Comments. Written comments on the proposed rule must be received
on or before July 5, 1994.
Public Hearing. A public hearing will be held, if requested, to
provide interested persons an opportunity for oral presentation of
data, views, or arguments concerning the proposed rule. If anyone
contacts EPA requesting to speak at a public hearing by June 6, 1994, a
public hearing will be held June 8, 1994.
ADDRESSES: Comments. Comments should be submitted (in duplicate if
possible) to: Air Docket (LE-131), Attention: Docket Number A-94-05,
U.S. Environmental Protection Agency, room M-1511, 1st Floor, Waterside
Mall, 401 M Street, SW., Washington, DC 20460.
Public Hearing. The public hearing will be held at the EPA
Auditorium, 401 M Street, SW., Washington, DC.
Docket. Materials relevant to this rulemaking are contained in
Docket Number A-94-05. The docket is available for public inspection
and copying between 8 a.m. and 3:30 p.m., Monday through Friday, at
EPA's Air Docket, room M-1500, 1st floor, Waterside Mall, 401 M Street,
SW., Washington, DC 20460. A reasonable fee may be charged for copying.
FOR FURTHER INFORMATION CONTACT: Clara Poffenberger, Office of Air and
Radiation, Stationary Source Compliance Division (EN-341W), United
States Environmental Protection Agency, 401 M Street, SW., Washington,
DC 20460; telephone (703) 308-8709.
SUPPLEMENTARY INFORMATION:
I. Statutory Requirements
Section 113(f) of the Clean Air Act, as amended, (the Act), 42
U.S.C. 7413(f), authorizes the Administrator discretion to pay awards
to persons who provide information or services regarding potential
violations of the Act. Pursuant to section 113(f), the information or
services must result in a criminal conviction or a judicial or
administrative civil penalty for a violation of titles I, III, IV, V,
or VI of the Act, enforced under section 113 of the Act, before an
award may be issued.
The statute specifically authorizes awards only for enforcement
actions brought under section 113 of the Act. Thus, information or
services which assist actions brought under State law (e.g, enforcement
of SIPs under State law or citizen suits brought under State law),
under other sections of the Act (i.e., citizen suits under section
304), or under other statutes, do not qualify for an award under this
provision. However, in cases where the Agency intervenes, overfiles, or
otherwise takes over the enforcement action under the authority of
section 113, the awards authority may become applicable.
Under section 113(f) of the Act, any officer or employee of the
United States or any State or local government who furnishes
information or renders services to the Agency in the performance of an
official duty is ineligible for an award. Also, section 113(f)
authorizes the Administrator to prescribe, by regulation, additional
criteria for eligibility for an award. In response, the regulation
proposed today prescribes additional criteria for eligibility. The
regulation proposed today also prescribes general criteria for the
Agency to consider in determining whether and how much of an award is
appropriate and procedures to be followed by persons who want to be
considered for an award. Additional authority for these provisions is
provided by section 301(a) of the Act.
II. The Proposal
Today's proposed rule prescribes regulations for EPA's awards
authority under section 113(f) of the Clean Air Act, as amended, 42
U.S.C. 7413(f). The proposed rule sets forth general eligibility
criteria, criteria to be used in considering petitions for awards, the
procedures for petitioning consideration for an award, and other
matters designed to assist the Administrator in exercising her
discretion in this area. The goal of this proposal is to assist in the
implementation of an awards program that would encourage citizens to
cooperate with and voluntarily assist the EPA's Clean Air Act
enforcement efforts and thereby deter violations. Inherent in a program
for awards are concerns regarding the confidentiality of the identity
of those who provide information or services and the need to evaluate
the quality of such information or services. This proposal is intended
to address those concerns.
A. Application of Proposal
The EPA intends that this proposed regulation will apply only after
promulgation. Petitions for an award based on information or services
provided to the EPA after the passage of the Clean Air Act Amendments
of 1990 (the Amendments) but before the regulation is promulgated may
be processed using the proposed criteria as nonbinding guidance. The
EPA will not consider a petition for an award based on information or
services provided entirely prior to enactment of the Amendments.
B. Eligibility Criteria
As discussed above, section 113(f) renders certain persons
ineligible for an award, and also authorizes the Administrator to
prescribe additional eligibility criteria. In response, this proposed
rule categorically excludes EPA employees from eligibility to receive
an award. The proposed regulation further delineates eligibility limits
for employees of, and others who have a contractual relationship with,
federal, State, or local governments. Thus under the proposal,
officers, employees, contractors, and grantees will be ineligible to
receive an award if at the time they come into possession of the
information or render services which constitute, in whole or in part,
the basis of the award, they were performing an official duty.
Furthermore, any members of the immediate family of those ``performing
their official duty'' are likewise ineligible.
The EPA believes these provisions will help ensure that employees
and others contractually obligated to the EPA or other governmental
entities will fulfill their obligation and will not withhold
information that they would otherwise provide to the government. The
proposed provisions also address the concern that such persons could
indirectly benefit by passing information obtained while performing
their official duty to family members, who could then use that
information to petition for an award. The concern addressed here is
protection of the integrity of compliance and enforcement activities.
By declaring such persons ineligible for an award, the proposed
regulation seeks to ensure that the awards program will not create an
incentive for employees to abuse access to information and authority
otherwise unavailable to the public. The term ``immediate family
member'' is purposely not defined in the proposed regulation, as the
EPA prefers to maintain its discretion in referencing other sources of
law and otherwise evaluating the circumstances of the particular case
in making its award determination.
So that persons who may receive awards are aware that certain
persons are ineligible to be paid an award, the proposal requires that
a certificate of eligibility be signed by the person before the
Administrator may pay the award. This requirement assists the EPA in
assuring that an award is not paid to ineligible persons.
C. Addresses for Tips
Tips from citizens to the US EPA and State and local air pollution
control agencies provide useful information on the possible existence
or extent of a violation. Since the goal of the awards program is to
encourage citizens to cooperate with and voluntarily assist EPA
enforcement efforts, the proposal provides the addresses to which
information may be sent. The information or services provided may or
may not lead to eligibility for an award. Providing such information
does not create an obligation on the Agency to issue an award, or vest
in any person a right to such award. Nevertheless, the Administrator
encourages all persons to provide any information they have regarding
violations of the Act to the appropriate persons listed in Appendix A.
Such information improves the Agency's ability to enforce the Act. The
EPA encourages persons to provide the information or services to State
and local agencies as well. Although completion of an enforcement
action by a State or local agency under authority other than section
113 of the Clean Air Act cannot lead to an award paid by the U.S. EPA
under section 113(f), it is important that information be provided to
State and local agencies. In most situations, the U.S. EPA will defer
to State enforcement authorities to address violations in a timely and
appropriate manner. However, persons who provide information or
services to a State or local agency may become eligible for an award if
the EPA overfiles or otherwise takes over the enforcement action.
D. Confidentiality
Because today's proposal contemplates the EPA receiving and using
information and services from private sources for enforcement
activities, the EPA is also proposing to maintain as confidential, upon
request, the identity of persons providing information or services. The
EPA believes this assurance of confidentiality will encourage persons
to assist the EPA in its efforts to enforce compliance with the Act. In
this regard, the proposed rule provides, upon request, confidential
treatment by the EPA consistent with this proposal, existing law and
other EPA regulations. Pursuant to the Freedom of Information Act
(FOIA), 5 U.S.C. 552 (b)(6) & (7), the confidentiality of the identity
of those providing information and services will be protected from FOIA
requests consistent with existing law. The assurance of confidentiality
extends to petitions for awards submitted to the EPA. To ensure
confidential treatment of such petitions, it is important that persons
submitting petitions to the EPA specifically request confidentiality at
or prior to the time of providing information or services, and to renew
such request at the time of submitting a petition.
E. Petitions for Awards
Because the information or services provided would be instrumental
to the successful prosecution of the EPA's enforcement action, in many
cases EPA personnel will be aware of persons potentially eligible for
an award, even without a petition being submitted. The EPA expects that
in many such situations, award determinations may be made without
submission of a petition.
Today's proposal recognizes, however, that a person may wish to
petition the Agency for consideration for an award and authorizes such
petitions. To ensure that such petitions contain sufficient information
for the purpose of evaluation, and to ensure that petitions are
directed to the appropriate EPA office, the proposal sets forth award
petition procedures and requirements.
Timing of Petitions
The proposed rule requires petitions for consideration to be
submitted in writing no later than one year after the judgment of
conviction or assessment of a civil penalty. Petitions may be submitted
at any time prior to the judgment or assessment, but no award
determination will be made before the judgment of conviction is entered
or a judicial or administrative civil penalty is finally assessed,
agreed, or ordered. Again, payment and the amount of any award granted
is within the Administrator's unfettered discretion. The granting of an
award is a gratuity, and not an entitlement.
Certification of Eligibility
The proposed regulation also requires that the petition contain a
certification of compliance with the eligibility criteria set forth in
the regulation. A statement signed by the person to be considered for
an award attesting to having read the eligibility requirements and
attesting that the person to be considered for an award is not
ineligible to receive an award would meet this requirement. This
certification is important to the award determination process because
the EPA recognizes that it may be difficult for the Administrator to
determine with certainty whether a person meets all eligibility
criteria. However, the Act prohibits payment of an award to certain
persons. Therefore, the proposal requires a certification of
eligibility be signed before the Administrator may pay an award.
F. Criteria for Awards
Under the Act, the Administrator has discretionary authority
whether to pay an award and to determine the amount of an award. The
proposed regulation does not constrain this discretion. Although the
proposed rule permits petitions for consideration for an award, whether
an award is ultimately granted will turn on the exercise of the
Administrators unfettered discretion, including the application of
factors described in this proposed regulation. These factors include
whether the information or services constituted the initial,
unsolicited notice of the violation to the government, whether the
government would have obtained knowledge of the violation in a timely
manner absent the information or services, the importance of the case,
the severity of the violation, the potential for or existence of actual
or threatened harm to persons or the environment, the willingness to
assist in the governments enforcement action(s) regarding the
violation(s), the value of the assistance in comparison to that given
by any other persons or sources of information or services and, in
part, the amount of money available to the EPA through appropriations.
Furthermore, the rule is not intended to discourage self-auditing
within facilities nor is it intended to encourage concealment of
information about violations or problems within a facility by an
employee from an employer. Thus, the regulation sets forth the
additional criterion of whether payment of the award would improperly
create incentives against the timely and appropriate identification of
such a violation to either the employer or the government.
G. Timing of Award Consideration
As mandated by section 113(f), persons may not be considered for an
award unless and until such time as the information or services
provided leads to a judicial or administrative civil penalty or a
criminal conviction under section 113 of the Act.
H. Prepayment Offers
The proposed regulation makes clear the distinction between the
Awards program and paid informant programs or contractual relationships
that may be created by the Agency. The EPA's employees do not have the
authority under this proposal or this statutory provision to promise
that an award will be paid nor to promise consideration or
recommendation for an award.
I. Request for Public Comment
The EPA is interested in public comment on all aspects of this
proposed rule. The EPA is particularly interested in comments on: (1)
The provision for confidentiality of identity for persons who provide
information or services; (2) the eligibility exclusions and eligibility
criteria for an award; (3) petitions for consideration; and (4) the
criteria for awards determinations.
III. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is a ``significant regulatory action''. As
such, this action was submitted to OMB for review. Changes made in
response to OMB suggestions or recommendations will be documented in
public record.
B. Regulatory Flexibility Act Compliance
Pursuant to the provisions of 5 U.S.C. 605(b), I hereby certify
that this attached rule, if promulgated, will not have an economic
impact on small entities because no additional costs will be incurred.
C. Paperwork Reduction Act
Since this proposed rule does not create any new information
requirements or contain any new information collection activities, no
clearance is necessary from OMB under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 65
Environmental protection, Air pollution control, Awards,
Confidentiality, Enforcement, Natural resources.
Dated: April 15, 1994.
Carol M. Browner,
Administrator.
40 CFR part 65 is proposed to be amended as follows:
PART 65--[AMENDED]
1. The authority citation for part 65 is revised to read as
follows:
Authority: 42 U.S.C. 7413, 7601(a).
2. Part 65 is proposed to be amended by adding subpart BBB to read
as follows:
Subpart BBB--Awards
Sec.
65.571 Purpose and scope.
65.572 Definitions.
65.573 Eligibility.
65.574 Information or tips regarding possible violations.
65.575 Confidentiality.
65.576 Petitions for consideration.
65.577 Criteria for awards.
65.578 Prepayment offers.
Appendix A to Subpart BBB--Addresses for Petitions for Consideration
and for Tips or Information
Subpart BBB--Awards
Sec. 65.571 Purpose and scope.
(a) This regulation implements section 113(f), 42 U.S.C. 7413(f),
the ``citizen award'' provision of the Clean Air Act, as amended (the
Act). As authorized in section 113(f), of the Act the Administrator of
the U.S. Environmental Protection Agency (the Agency) is authorized to
pay up to $10,000, as may be available from appropriations, to any
person who provides information or services leading to a criminal
conviction or a judicial or administrative civil penalty, enforced
under section 113, for any violation of Titles I, III, IV, V, or VI of
the Act. The goal of the program is to encourage citizens to cooperate
with and voluntarily assist the Agency's enforcement efforts and
thereby deter noncompliance.
(b) Providing information or services to the Agency by any person
does not create any obligation on the Administrator to issue an award
or to pay compensation for such assistance. Neither the Act nor these
regulations create an entitlement to the payment of an award. The
determinations whether to pay an award, and in what amount, are matters
which remain by statute in the exclusive and unfettered discretion of
the Administrator.
Sec. 65.572 Definitions.
The terms used in this part are defined in the Act or in this
section as follows:
(a) Administrative penalty. Any amount finally assessed, agreed or
ordered to be paid into the U.S. Treasury pursuant to an administrative
enforcement action under section 113 of the Act.
(b) Certification of Eligibility. A statement signed by the person
to be considered for an award attesting to having read the eligibility
requirements and attesting that the person is not ineligible to receive
an award.
(c) Criminal conviction. A judgment of conviction entered in U.S.
District Court on a verdict or finding of guilty, or by a plea of
guilty, including a plea of nolo contendere, in an action brought under
section 113 of the Act (as defined at 28 U.S.C. 2901(f)).
(d) Judicial penalty. Any amount finally assessed, agreed or
ordered to be paid into the U.S. Treasury by a court of the United
States pursuant to a judicial enforcement action under section 113 of
the Act.
Sec. 65.573 Eligibility.
(a) Any person who provides information or services which leads to
a criminal conviction or a judicial or administrative civil penalty,
enforced under section 113, for any violation of titles I, III, IV, V,
or VI of the Act, except those persons identified in paragraph (b) of
this section, shall be eligible to receive an award under this part.
(b) The following persons are not eligible to receive an award:
(1) Persons convicted of or found liable for the violation(s) that
are the subject of the award,
(2) Officers or employees of the United States Environmental
Protection Agency,
(3) Any of the following persons who, at the time he or she came
into possession of the information or rendered the service which
constitutes in whole or in part the basis for an award, was performing
his or her official duty:
(i) Officers or employees of the United States Government;
(ii) Contractors or grantees of the United States Government;
(iii) Officers or employees of a State or local government;
(iv) Contractors or grantees of a State or local government;
(4) Any members of the immediate family of persons who would be
ineligible under paragraph (b)(3) of this section; and
(5) Such other persons as the Administrator may determine to be
ineligible who are not otherwise ineligible under the law.
(c) Before the Administrator may pay an award, a certification of
eligibility must be signed by the person receiving the award.
Sec. 65.574 Information or tips regarding possible violations.
(a) Persons having knowledge of violations of the Act may provide
such information to the Regional Administrators listed in appendix A of
this subpart.
(b) Information regarding violations of the Act should also be
provided to State and local agencies, although not required by this
regulation. The USEPA, in many cases, defers to State enforcement
authorities to address violations in a timely and appropriate manner.
Sec. 65.575 Confidentiality.
(a) Any person providing information or services under this subpart
may request confidentiality as to his or her identity.
(b) To the extent permitted by law, the EPA will not disclose the
identity of, or information which could reasonably be expected to
disclose the identity of, a person who has requested confidentiality
prior to or at the time of providing information or services under this
66 subpart, except in exceptional circumstances under appropriate
restrictions with the approval of the Office of General Counsel or a
Regional Counsel.
Sec. 65.576 Petitions for consideration.
(a) Any person may petition the Agency to consider paying an award.
(b) Addresses. (1) Petitions for consideration must be submitted in
writing to the Regional Administrator in the Region(s) bearing a
substantial relationship to the violation(s) that are the subject of
the petition.
(2) The appropriate addresses for the Regional Administrators are
provided in appendix A of this subpart.
(c) Timing. (1) Petitions may be submitted at any time prior to the
judgment of conviction or assessment of a civil penalty but must be
submitted no later than one year after the judgment of conviction or
assessment of a civil penalty.
(2) No award determination will be made before a judgment of
conviction is entered or judicial or administrative civil penalty is
assessed, agreed, or ordered to be paid.
(d) Content. A petition for consideration shall contain the
following information:
(1) Whether a request for confidentiality was made prior to or at
the time of providing the information or services, and whether such
request is still in effect; the petition envelope should also specify
whether the information or services were provided under a request for
confidentiality;
(2) Name, address, and telephone number of the petitioner;
(3) A brief description of the federal enforcement action (whether
the action was a criminal conviction or judicial or administrative
civil penalty) which resulted (if known) from the information or
services;
(4) Name, title, agency and office affiliation, city, and telephone
number of person(s) to whom the information and services was provided
(to the extent known);
(5) Name(s) and address(es) of the violator(s) and (to the extent
relevant) the names and/or locations of any sites or facilities
involved;
(6) Description of the information or services that led to the
federal enforcement action;
(7) Date(s) the information or services were provided;
(8) Description of any other involvement by the petitioner in the
enforcement action;
(9) Certification of eligibility stating that the petitioner meets
the requirements for eligibility for an award set forth in Sec. 65.575
(if the petitioner is the person who provided the information or
services); and
(10) Any other relevant information in support of the petition.
Sec. 65.577 Criteria for awards.
In deciding whether to make an award, and in what amount, the
Administrator shall consider relevant criteria, giving such weight and
importance to each separate criterion as appears warranted in his or
her judgment alone. Relevant criteria shall include, but not be limited
to, one or more of the following:
(a) Whether the information or services constituted the initial,
unsolicited and full disclosure to a governmental entity with
jurisdiction over the violation;
(b) Whether the governmental entity would readily have obtained
knowledge of the violation in a timely manner absent the information or
services;
(c) The importance of the case, severity of the violation, and
potential for or existence of actual or threatened harm to persons or
the environment;
(d) The willingness to assist as necessary in the Government's
resulting or related enforcement action(s) regarding the violation(s),
including providing further information or services, participating in
hearing or trial preparation and appearing as a witness at or in
connection with any hearings or trial(s) of the matter, to the extent
consistent with a reasonable claim of need for confidentiality, if any;
(e) Value of the assistance in comparison to that given to the
government in the resulting enforcement action by any other persons or
sources of information or services;
(f) Value of the assistance in comparison to that given by other
petitioners or others in similar circumstances in other enforcement
actions brought by the government; and
(g) Whether such payment would result in a conflict of interest,
present an appearance of impropriety, or improperly create incentives
against the timely and appropriate identification of such a violation
to either the employer or the government.
Sec. 65.578 Prepayment offers.
Prior to the actual payment of an award under section 113(f) of the
Act, no employee of the United States Government, including any person
purporting to act on behalf of the United States Government, is
authorized by these regulation to make any promise, offer, or
representation with respect to the Agency's grant of such an award.
Appendix A to Subpart BBB--Addresses for Petitions for Consideration
and for Tips or Information
For Connecticut, Maine, Massachusetts, New Hampshire, Rhode
Island, and Vermont: Regional Administrator, Region I, U.S.
Environmental Protection Agency, John F. Kennedy Building, Room
2203, Boston, MA 02203.
For New Jersey, New York, Puerto Rico, and Virgin Islands:
Regional Administrator, Region II, U.S. Environmental Protection
Agency, 26 Federal Plaza, Room 930, New York, NY 10278.
For Delaware, District of Columbia, Maryland, Pennsylvania,
Virginia, and West Virginia: Regional Administrator, Region III,
U.S. Environmental Protection Agency, 841 Chestnut Street,
Philadelphia, PA 19107.
For Alabama, Florida, Georgia, Kentucky, Mississippi, North
Carolina, South Carolina, and Tennessee: Regional Administrator,
Region IV, U.S. Environmental Protection Agency, 345 Courtland
Street, NE., Atlanta, GA 30365.
For Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin:
Regional Administrator, Region V, U.S. Environmental Protection
Agency, 230 South Dearborn Street, Chicago, IL 60604.
For Arkansas, Louisiana, New Mexico, Oklahoma, and Texas:
Regional Administrator, Region VI, U.S. Environmental Protection
Agency, 1445 Ross Avenue, 12th Floor, Suite 1200, Dallas, TX 75202-
2733.
For Iowa, Kansas, Missouri, and Nebraska: Regional
Administrator, Region VII, U.S. Environmental Protection Agency, 726
Minnesota Avenue, Kansas City, KS 66101.
For Colorado, Montana, North Dakota, South Dakota, Utah, and
Wyoming: Regional Administrator, Region VIII, U.S. Environmental
Protection Agency, 999 18th Street, Suite 500, Denver, CO 80202-
2405.
For Arizona, California, Hawaii, Nevada, American Samoa, and
Guam: Regional Administrator, Region IX, U.S. Environmental
Protection Agency, 75 Hawthorne Street, San Francisco, CA 94105.
For Alaska, Idaho, Oregon, and Washington: Regional
Administrator, Region X, U.S. Environmental Protection Agency, 1200
Sixth Avenue, Seattle, WA 98101.
[FR Doc. 94-10435 Filed 5-2-94; 8:45 am]
BILLING CODE 6560-50-P