38114 Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 

1 Increased CMPS are applicable only to 

violations occurring after the increase takes effect. 

2The CPI defined in the FCPIAA is the U.S. 

Department of Labor’s Consumer Price Index for allurban consumers (‘‘CPI–U’’). 28 U.S.C. 2461 note 

(3)(3). 

TABLE 1—WASTE EXCLUDED FROM NON-SPECIFIC SOURCES—Continued 

Facility Address Waste description 

(A) If, anytime after disposal of the delisted waste WRB Refining LLC possesses or is otherwise made aware of any environmental data (including but not limited to leachate data or 

ground water monitoring data) or any other data relevant to the delisted waste indicating that 

any constituent identified for the delisting verification testing is at level higher than the 

delisting level allowed by the Division Director in granting the petition, then the facility must 

report the data, in writing, to the Division Director within 10 days of first possessing or being 

made aware of that data. 

(B) If either the quarterly or annual testing of the waste does not meet the delisting requirements in paragraph 1, WRB Refining LLC must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. 

(C) If WRB Refining LLC fails to submit the information described in paragraphs (5), (6)(A) or 

(6)(B) or if any other information is received from any source, the Division Director will make 

a preliminary determination as to whether the reported information requires EPA action to 

protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and 

the environment. 

(D) If the Division Director determines that the reported information requires action by EPA, the 

Division Director will notify the facility in writing of the actions the Division Director believes 

are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to 

present information as to why the proposed EPA action is not necessary. The facility shall 

have 10 days from the date of the Division Director’s notice to present such information. 

(E) Following the receipt of information from the facility described in paragraph (6)(D) or (if no 

information is presented under paragraph (6)(D)) the initial receipt of information described in 

paragraphs (5), (6)(A) or (6)(B), the Division Director will issue a final written determination 

describing EPA actions that are necessary to protect human health and/or the environment. 

Any required action described in the Division Director’s determination shall become effective 

immediately, unless the Division Director provides otherwise. 

(7) Notification Requirements 

WRB Refining LLC must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation 

of the decision. 

(A) Provide a one-time written notification to any state Regulatory Agency to which or through 

which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. 

(B) Update the one-time written notification if it ships the delisted waste into a different disposal 

facility. 

(C) Failure to provide this notification will result in a violation of the delisting variance and a 

possible revocation of the decision. 

* * * * * * * 

[FR Doc. E9–18389 Filed 7–30–09; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL MARITIME COMMISSION 

46 CFR Part 506 

[Docket No. 09–04] 

RIN 3072–AC36 

Inflation Adjustment of Civil Monetary 

Penalties 

July 28, 2009. 

AGENCY: Federal Maritime Commission. 

ACTION: Final rule. 

SUMMARY: This rule implements the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Debt Collection Improvement Act of 

1996. The rule adjusts for inflation the 

maximum amount of each statutory civil 

penalty subject to Federal Maritime 

Commission (‘‘Commission’’) 

jurisdiction in accordance with the 

requirements of that Act. 

DATES: Effective Date: July 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Vern W. Hill, Director, Bureau of 

Enforcement, Federal Maritime 

Commission, 800 North Capitol Street, 

NW., Room 900, Washington, DC 20573, 

(202) 523–5783. 

SUPPLEMENTARY INFORMATION: This rule 

implements the Debt Collection 

Improvement Act of 1996 (‘‘DCIA’’), 

Public Law 104–134, Title III, section 

31001(s)(1), April 26, 1996, 110 Stat. 

1321–373. The DCIA amended the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (‘‘FCPIAA’’), 

Public Law 101–410, Oct. 5, 1990, 104 

Stat. 890, 28 U.S.C. 2461 note, to require 

the head of each executive agency to 

adopt regulations that adjust the 

maximum civil monetary penalties 

(‘‘CMPs’’) assessable under its agency’s 

jurisdiction at least every four years to 

ensure that they continue to maintain 

their deterrent value.1 The Commission 

last adjusted each CMP subject to its 

jurisdiction effective August 15, 2000. 

(65 FR 49741). 

The inflation adjustment under the 

FCPIAA is to be determined by 

increasing the maximum CMP by the 

cost-of-living, rounded off as set forth in 

section 5(a) of that Act. The cost-ofliving adjustment is the percentage (if 

any) for each CMP by which the 

Consumer Price Index (‘‘CPI’’) 2 for the 

month of June of the calendar year 

preceding the adjustment, exceeds the 

CPI for the month of June of the 

calendar year in which the amount of 

such CMP was last set or adjusted 

pursuant to law. 


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Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 38115 

One example of an inflation 

adjustment is as follows. Section 13 of 

the Shipping Act of 1984 (‘‘1984 Act’’), 

46 U.S.C. 41107, imposes a maximum 

$25,000 penalty for a knowing and 

willful violation of the 1984 Act which 

was inflation adjusted in 2000 to 

$30,000. First, to calculate the new CMP 

amounts under the amendment, we 

determine the appropriate CPI–U for 

June of the calendar year preceding the 

adjustment. Given that we are adjusting 

the CMPs in 2009, we use the CPI–U for 

June of 2008, which was 218.815. The 

CPI–U for June of the year the CMP was 

last adjusted for inflation must also be 

determined. The Commission last 

adjusted this CMP in 2000, therefore we 

use the CPI–U for June of 2000, which 

was 172.4. Using those figures, we 

calculate the cost-of-living adjustment 

by dividing the CPI–U for June of 2008 

(218.815) by the CPI–U for June of 2000 

(172.4). Our result is 1.2692. 

Second, we calculate the raw inflation 

adjustment (the inflation adjustment 

prior to rounding) by multiplying the 

maximum penalty amount by the costof-living adjustment. In our example, 

$30,000 multiplied by the cost-of-living 

adjustment of 1.2692 equals $38,076.85 

Third, we use the rounding rules set 

forth in Section 5(a) of the FCIPAA. In 

order to round only the increase 

amount, we subtract the current 

maximum penalty amount ($30,000) 

from the raw maximum inflation 

adjustment ($38,319), equaling 

$8,076.85. Under Section 5(a), if the 

penalty is greater than $10,000 but less 

than or equal to $100,000, we round the 

increase to the nearest multiple of 

$5,000. Therefore, the maximum 

penalty increase in our example is 

$10,000. 

Finally, the rounded increase is added 

to the maximum penalty amount last set 

or adjusted. Here, $30,000 plus $10,000 

equals a maximum inflation adjustment 

penalty amount of $40,000. 

A similar calculation was done with 

respect to each CMP subject to the 

jurisdiction of the Commission. In 

compliance with the FCPIAA, as 

amended, the Commission is hereby 

amending 46 CFR 506.4(d) of its 

regulations which sets forth the newly 

adjusted maximum penalty amounts. 

This final rule has been issued 

without prior public notice or 

opportunity for public comment. Under 

the Administrative Procedures Act 

(‘‘APA’’), 5 U.S.C. 553(b)(B), a final rule 

may be issued without that process 

‘‘when the agency for good cause finds 

(and incorporates the finding and a brief 

statement of reasons therefor in the 

rules issued) that notice and public 

procedure thereon are impracticable, 

unnecessary, or contrary to the public 

interest.’’ In this instance, the 

Commission finds, for good cause, that 

solicitation of public comment on this 

final rule is unnecessary and 

impractical. 

Specifically, the Congress has 

mandated that the agency periodically 

make the inflation adjustments and does 

not allow for the exercise of 

Commission discretion regarding the 

substance of the adjustments. The 

Commission, under the DCIA, is 

required to make the adjustment to the 

civil monetary penalties according to a 

formula specified in the statute. The 

regulation requires ministerial, 

technical computations that are 

noncontroversial. Moreover, the 

conduct underlying the penalties is 

already illegal under existing law, and 

there is no need to provide thirty days 

prior to the effectiveness of the 

regulation and amendments to allow for 

affected parties to correct their conduct. 

Accordingly, the Commission believes 

that there is good cause to make this 

regulation effective immediately upon 

publication. 

In accordance with the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, the 

Chairman of the Commission has 

certified to the Chief Counsel for 

Advocacy, Small Business 

Administration, that the rule will not 

have a significant economic impact on 

a substantial number of small entities, 

including small businesses, small 

organizational units, and small 

governmental jurisdictions because it 

merely increases the maximum statutory 

civil monetary penalty for those entities 

that commit violations after the effective 

date of this rule. The Commission 

recognizes that the rule can impact 

certain regulated parties that qualify as 

small entities under the guidelines of 

the Small Business Administration. 

However, the assessment of civil 

penalties affects only those regulated 

parties that have been found to be in 

violation of the shipping statues and/or 

regulations, which is not likely to be 

substantial in number. The Commission 

rarely has imposed the statutory 

maximum civil monetary penalty and, 

moreover, considers the ability of a 

respondent to pay a civil monetary 

penalty in determining its amount. The 

size of a company necessarily enters 

into a determination of its ability to pay. 

Further, the adjustment of civil 

penalties deters regulated parties from 

engaging in harmful activities that 

violate the shipping statutes and 

regulations, which serves to protect the 

public and the system of ocean liner 

transportation. 

The rule does not contain any 

collection of information requirements 

as defined by the Paperwork Reduction 

Act of 1995, as amended. Therefore, 

Office of Management and Budget 

review is not required. 

This regulatory action is not a major 

rule as defined under 5 U.S.C. 804(2). 

List of Subjects in 46 CFR Part 506 

Administrative practice and 

procedure, Penalties. 

■ Part 506 of title 46 of the Code of 

Federal Regulations is amended as 

follows: 

PART 506—CIVIL MONETARY 

PENALTY INFLATION ADJUSTMENT 

■ 1. The authority citation for part 506 

continues to read as follows: 

Authority: 28 U.S.C. 2461. 

■ 2. In § 506.4, revise paragraph (d) to 

read as follows: 

§ 506.4 Cost of living adjustments of civil 

monetary penalties. 

* * * * * 

(d) Inflation adjustment. Maximum 

Civil Monetary Penalties within the 

jurisdiction of the Federal Maritime 

Commission are adjusted for inflation as 

follows: 

United States Code 

citation Civil Monetary Penalty description 

Current 

maximum 

penalty 

amount 

New 

adjusted 

maximum 

penalty 

amount 

46 U.S.C. 42304 ............... Adverse impact on U.S. carriers by foreign shipping practices .............................. $1,175,000 $1,500,000 

46 U.S.C. 41107(a) ........... Knowing and Willful violation/Shipping Act of 1984, or Commission regulation or 

order.

30,000 40,000 

46 U.S.C. 41107(b) ........... Violation of Shipping Act of 1984, Commission regulation or order, not knowing 

or willful.

6,000 8,000 

46 U.S.C. 41108(b) ........... Operating in foreign commerce after tariff suspension ........................................... 60,000 75,000 


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38116 Federal Register / Vol. 74, No. 146 / Friday, July 31, 2009 / Rules and Regulations 

United States Code 

citation Civil Monetary Penalty description 

Current 

maximum 

penalty 

amount 

New 

adjusted 

maximum 

penalty 

amount 

46 U.S.C. 42104 ............... Failure to provide required reports, etc./Merchant Marine Act of 1920 .................. 6,000 8,000 

46 U.S.C. 42106 ............... Adverse shipping conditions/Merchant Marine Act of 1920 .................................... 1,175,000 1,500,000 

46 U.S.C. 42108 ............... Operating after tariff or service contract suspension/Merchant Marine Act of 1920 60,000 75,000 

46 U.S.C. 44102 ............... Failure to establish financial responsibility for non-performance of transportation 6,000 

220 

8,000 

300 

46 U.S.C. 44103 ............... Failure to establish financial responsibility for death or injury ................................. 6,000 

220 

8,000 

300 

31 U.S.C. 3802(a)(1) ........ Program Fraud Civil Remedies Act/makes false claim ........................................... 6,000 8,000 

31 U.S.C. 3802(a)(2) ........ Program Fraud Civil Remedies Act/giving false statement ..................................... 6,000 8,000 

By the Commission. 

Karen V. Gregory, 

Secretary. 

[FR Doc. E9–18351 Filed 7–30–09; 8:45 am] 

BILLING CODE 6730–01–P 


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