[Federal Register Volume 79, Number 215 (Thursday, November 6, 2014)]
[Rules and Regulations]
[Pages 65897-65901]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-26321]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 22

[EPA-HQ-OECA-2014-0551; FRL-9914-32-OECA]
RIN 2020-AA50


Consolidated Rules of Practice Governing the Administrative 
Assessment of Civil Penalties, Issuance of Compliance or Corrective 
Action Orders, and the Revocation, Termination or Suspension of Permits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: This direct final rule revises the scope of the Environmental

[[Page 65898]]

Protection Agency's (EPA) Consolidated Rules of Practice governing the 
administrative assessment of civil penalties to encompass the 
assessment of civil penalties under the air pollution control 
provisions of the Act to Prevent Pollution from Ships. The EPA has not 
previously established adjudicatory procedures for the assessment of 
civil penalties under that statute. Establishment of such procedures 
will provide for the efficient and effective adjudication, including 
administrative appeals, of such proceedings consistent with statutory 
requirements. This rule also revises the address for the Environmental 
Appeals Board to reflect its relocation to the William Jefferson 
Clinton East Building.

DATES: This rule is effective on January 5, 2015 without further 
notice, unless the EPA receives adverse comment by December 8, 2014. If 
the EPA receives adverse comment, we will publish a timely withdrawal 
in the Federal Register informing the public that the rule will not 
take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
OECA-2014-0551, by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [[email protected].]
    3. Fax: (202) 566-9744.
    4. Mail: Environmental Protection Agency, OECA Docket, Mail-Code 
28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
    5. Hand Delivery: EPA Docket Center (EPA/DC), EPA West, Room 3334, 
1301 Constitution Ave. NW., Washington, DC 20004. Attention Docket No. 
EPA-HQ-OECA-2014-0551. Such deliveries are only accepted during the 
Docket's normal hours of operation, and special arrangements should be 
made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OECA-
2014-0551. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means the EPA will not know your identity or contact information unless 
you provide it in the body of your comment. If you send an email 
comment directly to the EPA without going through www.regulations.gov 
your email address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, the EPA 
recommends that you include your name and other contact information in 
the body of your comment and with any disk or CD-ROM you submit. If the 
EPA cannot read your comment due to technical difficulties and cannot 
contact you for clarification, the EPA may not be able to consider your 
comment. Electronic files should avoid the use of special characters, 
any form of encryption, and be free of any defects or viruses. For 
additional information about the EPA's public docket visit the EPA 
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. For 
additional instructions on submitting comments, go to the SUPPLEMENTARY 
INFORMATION section of this document.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or at the EPA Docket Center (EPA/DC), EPA West, 
Room 3334, 1301 Constitution Ave. NW., Washington, DC 20004. The Public 
Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the OECA 
Docket is (202) 566-1752.

FOR FURTHER INFORMATION CONTACT: Meetu Kaul, Office of Enforcement and 
Compliance Assurance, U.S. Environmental Protection Agency, William 
Jefferson Clinton Building South, Room 1117B, 1200 Pennsylvania Ave. 
NW., Mail Code 2242A, Washington, DC 20460, phone number (202) 564-5472 
or by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Why is the EPA using a direct final rule?

    The EPA is publishing this rule in advance of receipt of public 
comment on the companion proposed rule because the EPA anticipates that 
this rule is noncontroversial and does not anticipate adverse comment. 
In the ``Proposed Rules'' section of this Federal Register, the EPA is 
publishing an otherwise identical companion proposed rule to invite 
public comment on the provisions of this direct final rule. Any parties 
interested in commenting on the provisions of the proposed rule must do 
so at this time. For further information about commenting on this rule, 
see the ADDRESSES section of this document. If the EPA receives adverse 
comment, the EPA will publish a timely withdrawal in the Federal 
Register informing the public that this direct final rule will not take 
effect. The EPA would address adverse comments received either in that 
notice or in a subsequent final rule based on the proposed rule.

II. Does this action apply to me?

    This action may affect parties involved in EPA administrative 
adjudicatory proceedings for the assessment of civil penalties under 
section 1908(b) of the Act to Prevent Pollution from Ships (33 U.S.C. 
1908(b)). You may direct questions regarding the applicability of this 
action as noted in FOR FURTHER INFORMATION CONTACT.

III. What should I consider as I prepare my comments for EPA?

A. Submitting CBI

    Do not submit this information to the EPA through 
www.regulations.gov or email. Clearly mark the part or all of the 
information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.

B. Tips for Preparing Your Comments

    When submitting comments, remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.

[[Page 65899]]

     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

IV. Summary of Rule

A. EPA's Consolidated Rules of Practice Governing Adjudication of 
Administrative Penalty Assessments

    The EPA is authorized to institute administrative enforcement 
proceedings against alleged violators under a variety of environmental 
statutes, including the Clean Air Act, the Clean Water Act, and the 
Federal Insecticide, Fungicide, and Rodenticide Act, among others. Such 
cases are generally heard by the Administrative Law Judges (ALJs) 
within EPA's Office of Administrative Law Judges and by presiding 
officers in administrative proceedings not governed by section 554 of 
the Administrative Procedure Act. The federal regulations that govern 
the proceedings before the ALJs and presiding officers are codified at 
40 CFR Part 22, entitled ``Consolidated Rules of Practice Governing the 
Administrative Assessment of Civil Penalties, Issuance of Compliance or 
Corrective Action Orders, and the Revocation, Termination or Suspension 
of Permits'' (Rules of Practice). The EPA promulgated the Rules of 
Practice to establish uniform procedural rules for administrative 
enforcement proceedings required to be held on the record after 
opportunity for a hearing in accordance with section 554 of the 
Administrative Procedure Act, 5 U.S.C. 551 et seq. The Rules of 
Practice also establish uniform procedural rules for proceedings not 
governed by section 554 of the Administrative Procedure Act. 
Additionally, the Rules of Practice establish procedures for appeals 
from decisions of the ALJs and presiding officers to the Environmental 
Appeals Board. The purpose of this action is to apply the Rules of 
Practice to include adjudicatory proceedings for the assessment of 
civil penalties by the EPA under its Act to Prevent Pollution from 
Ships authority. This rule also revises the mailing and hand delivery 
address for the Environmental Appeals Board (EAB or Board) to reflect 
the Board's relocation.

B. The Act To Prevent Pollution From Ships (APPS)

    The International Convention for the Prevention of Pollution from 
Ships (MARPOL) is the primary international treaty applicable to 
prevention of pollution of the marine environment by ships from 
operational or accidental causes. Annex VI to MARPOL addresses the 
prevention of air pollution from ships through the use of both engine-
based and fuel-based standards. MARPOL is implemented in the United 
States through the Act to Prevent Pollution from Ships (APPS), 33 
U.S.C. 1901-1915. The provisions of APPS implementing certain 
provisions of MARPOL Annex VI are jointly administered and enforced by 
the U.S. Coast Guard and the EPA. Under the authority of APPS, the EPA, 
in consultation with the U.S. Coast Guard, promulgated regulations 
codifying the requirements specified in Regulations 13, 14 and 18 of 
Annex VI and addressing issues, for example, relating to nonparty 
vessel compliance. See 40 CFR Part 1043. Section 1907(f) of APPS 
authorizes the EPA to enforce regulations 17 and 18 of Annex VI for 
cases involving shoreside violations, and for any other matters that 
have been referred to the EPA by the U.S. Coast Guard. In addition, 
section 1908(b) of APPS authorizes the U.S. Coast Guard or the EPA to 
assess civil penalties against persons who have been found, after 
notice and an opportunity for a hearing, to have violated MARPOL, APPS, 
or the implementing regulations. In order to provide consistency and 
uniformity in all of EPA's administrative penalty proceedings, this 
action would expand the scope of the EPA's Rules of Practice to also 
apply to any administrative proceedings brought by the EPA under its 
APPS authority for the assessment of civil penalties.

V. Statutory and Executive Order Reviews

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

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is 
therefore not subject to review under Executive Orders 12866 and 13563 
(76 FR 3821, January 21, 2011).

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). This action will apply the Rules 
of Practice to adjudicatory proceedings for the assessment of civil 
penalties by the EPA under its Act to Prevent Pollution from Ships 
authority, and will revise the mailing and hand delivery address for 
the EAB to reflect the Board's relocation.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions. For purposes 
of assessing the impacts of this rule on small entities, small entity 
is defined as: (1) A small business as defined by the Small Business 
Administration's (SBA) regulations at 13 CFR 121.201; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this rule on small 
entities, I certify that this rule will not have a significant economic 
impact on a substantial number of small entities. This rule will not 
impose any additional requirements on small entities. This rule will 
apply the Rules of Practice to adjudicatory proceedings for the 
assessment of civil penalties by the EPA under its Act to Prevent 
Pollution from Ships authority, and will revise the mailing and hand 
delivery address for the EAB to reflect the Board's relocation.

D. Unfunded Mandates Reform Act

    This action contains no Federal mandates under the provisions of 
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 
1531-1538 for State, local, or tribal governments or the private 
sector. The action imposes no enforceable duty on any State, local or 
tribal governments or the private sector. Therefore, this action

[[Page 65900]]

is not subject to the requirements of sections 202 or 205 of the UMRA.
    This action is also not subject to the requirements of section 203 
of UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments. The purpose of this 
action is to apply the Rules of Practice to adjudicatory proceedings 
for the assessment of civil penalties by the EPA under its Act to 
Prevent Pollution from Ships authority, and to revise the mailing and 
hand delivery address for the EAB to reflect the Board's relocation.

E. Executive Order 13132: Federalism

    This action 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. This action will apply the Rules of 
Practice to adjudicatory proceedings for the assessment of civil 
penalties by the EPA under its Act to Prevent Pollution from Ships 
authority, and will revise the mailing and hand delivery address for 
the EAB to reflect the Board's relocation. Thus, Executive Order 13132 
does not apply to this action.

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

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This action will 
apply the Rules of Practice to adjudicatory proceedings for the 
assessment of civil penalties by the EPA under its Act to Prevent 
Pollution from Ships authority, and will revise the mailing and hand 
delivery address for the EAB to reflect the Board's relocation. Thus, 
Executive Order 13175 does not apply to this action.

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

    The EPA interprets EO 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 EO 
has the potential to influence the regulation. This action is not 
subject to EO 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 action is not subject to Executive Order 13211 (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 and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs the 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. NTTAA directs the EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This action does not involve technical standards. Therefore, the 
EPA did not consider 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 (EO) 12898 (59 FR 7629 (Feb. 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 EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This action will apply the Rules of Practice to 
adjudicatory proceedings for the assessment of civil penalties by the 
EPA under its Act to Prevent Pollution from Ships authority, and will 
revise the mailing and hand delivery address for the EAB to reflect the 
Board's relocation.

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. The 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). This rule will be effective 60 days after publication.

VI. Statutory Authority

    Statutory authority for this action comes from 1903 and 1908 of the 
Act to Prevent Pollution from Ships (APPS) (33 U.S.C. 1901 et seq.).

List of Subjects in 40 CFR Part 22

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous substances, Hazardous waste, 
Penalties, Pesticides and pests, Poison prevention, Water pollution 
control.

    Dated: October 20, 2014.
Gina McCarthy,
Administrator.
    For the reasons set out in the preamble, 40 CFR part 22 is amended 
as follows:

PART 22--CONSOLIDATED RULES OF PRACTICE GOVERNING THE 
ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/
TERMINATION OR SUSPENSION OF PERMITS

0
1. The authority citation for part 22 continues to read as follows:

    Authority: 7 U.S.C. 136(l); 15 U.S.C. 2615; 33 U.S.C. 1319, 
1342, 1361, 1415 and 1418; 42 U.S.C. 300g-3(g), 6912, 6925, 6928, 
6991e and 6992d; 42 U.S.C. 7413(d), 7524(c), 7545(d), 7547, 7601 and 
7607(a), 9609, and 11045.

Subpart A--General

0
2. Section 22.1 is amended by adding paragraph (a)(11) to read as 
follows:


Sec.  22.1  Scope of this part.

    (a) * * *
    (11) The assessment of any administrative civil penalty under

[[Page 65901]]

section 1908(b) of the Act To Prevent Pollution From Ships (``APPS''), 
as amended (33 U.S.C. 1908(b)).
* * * * *

0
3. Section 22.3, paragraph (a), is amended by revising the definition 
for ``Clerk of the Board'' to read as follows:


Sec.  22.3  Definitions.

    (a) * * *
    Clerk of the Board means an individual duly authorized to serve as 
Clerk of the Environmental Appeals Board.
* * * * *

0
4. Section 22.5, paragraph (a)(1), is amended by revising the third 
sentence to read as follows:


Sec.  22.5  Filing, service, and form of all filed documents; business 
confidentiality claims.

    (a) Filing of documents. (1) * * * Documents filed in proceedings 
before the Environmental Appeals Board shall be sent to the Clerk of 
the Board either by U.S. Mail (except by U.S. Express Mail) to U.S. 
Environmental Protection Agency, Environmental Appeals Board, 1200 
Pennsylvania Avenue NW., Mail Code 1103M, Washington, DC 20460-0001; or 
delivered by hand or courier (including deliveries by U.S. Express Mail 
or by a commercial delivery service) to U.S. Environmental Protection 
Agency, Environmental Appeals Board, 1201 Constitution Avenue NW., WJC 
East, Room 3332, Washington, DC 20004.* * *
* * * * *

Subpart F--Appeals and Administrative Review

0
5. Section 22.30, paragraph (a)(1), is amended by revising the first 
sentence to read as follows:


Sec.  22.30  Appeal from or review of initial decision.

    (a) Notice of appeal. (1) Within 30 days after the initial decision 
is served, any party may appeal any adverse order or ruling of the 
Presiding Officer by filing an original and one copy of a notice of 
appeal and an accompanying appellate brief with the Environmental 
Appeals Board as set forth in Sec.  22.5(a).* * *
* * * * *
[FR Doc. 2014-26321 Filed 11-5-14; 8:45 am]
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