
[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]                         

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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.

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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: 

I. 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.

II. Discussion of Public Comments

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

III. 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.

I. 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]

BILLING CODE 9111-21-P
