Criminal and Civil Penalties: Under The Robert T. Stafford Disaster Relief And Emergency Assistance Act

Federal Register: November 16, 2009 (Volume 74, Number 219)

Rules and Regulations

Page 58849-58851

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr16no09-5

DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency 44 CFR Part 206

Docket ID FEMA-2009-0007

RIN 1660-AA01

Criminal and Civil Penalties Under the Robert T. Stafford

Disaster Relief and Emergency Assistance Act

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Final rule.

SUMMARY: The Federal Emergency Management Agency (FEMA) is adopting as final, without substantive change, a proposed rule that increases the maximum civil monetary penalty under the Robert T. Stafford Disaster

Relief and Emergency Assistance Act from $5,000 to $5,500. The Federal

Civil Penalties Inflation Adjustment Act of 1990 mandates this increase.

DATES: This final rule is effective December 16, 2009.

FOR FURTHER INFORMATION CONTACT: Erin McMunigal, Assistant Chief

Counsel for Regulation & Policy, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (phone) 202-646-4097, or (e- mail) Erin.McMunigal@dhs.gov.

SUPPLEMENTARY INFORMATION:

1. Background

   The Federal Emergency Management Agency (FEMA) is adopting as final, without substantive change, a proposed rule that increases the maximum civil penalty under the Robert T. Stafford Disaster Relief and

   Emergency Assistance Act, 42 U.S.C. 5157(d), (``Stafford Act''), from

   $5,000 to $5,500. This increase is mandated by the Federal Civil

   Penalties Inflation Adjustment Act of 1990. Public Law 101-410, 104

   Stat. 890 (Oct. 5, 1990), 28 U.S.C. 2461, note, (``Adjustment Act'') as amended by the Debt Collection Improvement Act of 1996, Public Law 104- 134, sec. 31001, 110 Stat. 1321-373 (1996), as amended, Public Law 105- 362, tit. XIII, sec. 1301(a), 112 Stat. 3293 (Nov. 10, 1998).

   The Adjustment Act, as amended, requires each Federal agency to adjust by regulation the civil monetary penalties within its jurisdiction. FEMA's civil penalties are mandated by section 314(d) of the Stafford Act, which provides, ``any individual who knowingly violates any order or regulation under this Act shall be subject to a civil penalty of not more than $5000 for each violation.'' 42 U.S.C. 5157(d). This provision is implemented in FEMA's regulations at 44 CFR 206.14(d), promulgated in 1990. 55 FR 2288 (Jan. 23, 1990).

   The Adjustment Act directs agencies to make the first such adjustment by October 23, 1996, and then at least once every four years thereafter. The Adjustment Act provides a cost-of-living adjustment formula and requires agencies to use this formula in recalculating the penalties. The formula reflects changes in the Department of Labor's

   Consumer Price Index of all-urban consumers (CPI) in the years between adjustments. The Adjustment Act also establishes a staged method for rounding the calculated increase, and states that the first such increase of a civil monetary penalty may not exceed 10 percent of the penalty. A civil penalty is to be initially adjusted by the lesser of the Adjustment Act's calculation or 10 percent of the current penalty.

   Since the promulgation of 44 CFR 206.14(d), the CPI has increased by nearly 80 percent. However, this final rule is FEMA's first adjustment of its civil penalty regulations since the passage of the

   Adjustment Act. As described above, the first increase may not exceed 10 percent of the original penalty amount. The original penalty amount was $5,000, as set out in the Stafford Act and FEMA regulations, making the maximum allowable increase $500. Thus, properly adjusted, the maximum civil penalty under section 314(d) of the Stafford Act and 44

   CFR 206.14(d) will be $5,500.

2. Discussion of Public Comments

   FEMA published a Notice of Proposed Rulemaking on February 10, 1997. 62 FR 5957. FEMA received no substantive public comments.

3. Regulatory Requirements

   A. Executive Order 12866, Regulatory Planning and Review

   Under Executive Order 12866, ``Regulatory Planning and Review,'' 58

   FR 51735 (Oct 4. 1993), a ``significant regulatory action'' is subject to Office of Management and Budget (OMB) review and the requirements of

   Executive Order 12866. This rule, increasing the Stafford Act's civil monetary penalty by $500, is not a significant regulatory action, and has not been reviewed by OMB.

   B. Regulatory Flexibility Act

   Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, FEMA has considered whether this rule would have a

   Page 58850

   significant economic impact on a substantial number of small entities.

   The term ``small entities'' comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. FEMA certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities, because it will only affect those persons who knowingly violate regulations issued under the Stafford

   Act.

   C. Unfunded Mandates

   The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Unfunded Mandates Reform Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector, of

   $100,000,000 or more in any one year. This rule will not have the requisite economic impact and is not a discretionary regulatory action, so further analysis under the Unfunded Mandates Reform Act is not necessary.

   D. Executive Order 13132, Federalism

   This rule 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. It will not preempt any State laws. In accordance with Section 6 of Executive Order 13132, FEMA determines that this rule will not have federalism implications sufficient to warrant the preparation of a federalism impact statement.

   E. National Environmental Policy Act

   FEMA's regulations implementing the National Environmental Policy

   Act of 1969, 42 U.S.C. 4321 et seq., at 44 CFR 10.8(d)(2), list the categories of actions that have no significant effect on the human environment and are therefore categorically excluded from the preparation of environmental impact statements and environmental assessments. Specifically, FEMA is not required to prepare such statements and assessments under 44 CFR 10.8(d)(2)(ii) for the preparation, revision, and adoption of regulations, directives, manuals, and other guidance documents related to actions that qualify for categorical exclusions, or, under 44 CFR 10.8(d)(2)(iv) for actions to enforce Federal, State, or local codes, standards, or regulations.

   Since this rulemaking action will not have a significant effect on the human environment, it is categorically excluded from further NEPA review, and no environmental impact assessment has been prepared.

   F. Executive Order 12898, Environmental Justice

   Executive Order 12898, Federal Actions to Address Environmental

   Justice in Minority Populations and Low-Income Populations, requires

   Federal agencies to consider the ``disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations'' to ensure that the programs do not

   ``exclude persons (including populations) from participating in or getting the benefits of, or subject them to discrimination under such programs, policies, and activities.'' This rule does not impact human health or the environment or discriminate according to race, color, or national origin because it uniformly increases the civil penalty of the

   Stafford Act in accordance with a statutory mandate. Therefore, the requirements of Executive Order 12898 do not apply to this rule.

   G. Congressional Review of Agency Rulemaking

   FEMA has complied with the Congressional Review of Agency

   Rulemaking Act, Public Law 104-121 sec. 801, 110 Stat. 847, 868 (1996),

   (``Congressional Review Act''), by sending this final rule to the

   Congress and to the Government Accountability Office. Since this rule is not a ``major rule'' within the meaning of the Congressional Review

   Act, the rule becomes effective without a Comptroller General's report or an extended time for Congressional review.

   H. Paperwork Reduction Act

   The Paperwork Reduction Act, 44 U.S.C. 3501-20, is designed to minimize the burden of collecting and distributing information on any organization or individual affected by legislation. Implementing this final rule does not entail the collecting or distributing of information for the purposes of the Paperwork Reduction Act.

1. Executive Order 12630, Taking of Private Property

   This rule will not affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental

   Actions and Interference with Constitutionally Protected Property

   Rights.

   J. Executive Order 12988, Civil Justice Reform

   This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

   K. Executive Order 13175, Consultation and Coordination With Indian

   Tribal Governments

   This rule does not have Tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments.

   This rule would not have a substantial direct effect on one or more

   Indian Tribes, 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.

   List of Subjects in 44 CFR Part 206

   Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs-- housing and community development, Housing, Insurance,

   Intergovernmental relations, Loan programs--housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements. 0

   For the reasons stated in the preamble, the Federal Emergency

   Management Agency amends 44 CFR part 206 as follows:

   PART 206--FEDERAL DISASTER ASSISTANCE 0 1. The authority citation for part 206 continues to read as follows:

   Authority: Robert T. Stafford Disaster Relief and Emergency

   Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security

   Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979

   Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412;

   E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166. 0 2. Revise Sec. 206.14, paragraph (d) to read as follows:

   Sec. 206.14 Criminal and civil penalties.

   * * * * *

   (d) Civil penalty. Any individual who knowingly violates any order or regulation shall be subject to a civil penalty of not more than

   $5,500 for each violation.

   Page 58851

   Dated: November 5, 2009.

   W. Craig Fugate,

   Administrator, Federal Emergency Management Agency.

   FR Doc. E9-27358 Filed 11-13-09; 8:45 am

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