-------
Chapter Seven Hearing Stage
Proposed Findings, Conclusions, and Orders
At the conclusion of the hearing, parties may submit proposed findings of
fact, conclusions of law, and orders to the Presiding Officer for
consideration in Issuing the Initial decision.
The purpose of the proposals and supporting briefs is to advocate positions
of the submitting party and to persuade the Presiding Officer to adopt that
party's .proposals.
Procedures
The proposed findings of fact, conclusions of law, and orders, together
with supporting briefs, may be submitted to the Presiding Officer for
consideration within 20 days of notice of the transcript's availability.
The proposals and briefs must be served on the other parties. Although the
Presiding Officer must permit reply briefs, the timing of such briefs can
be specified. The proposals and all briefs must be in writing and must
contain adequate references to the record and authorities relied on.
22.26
Preparation
In preparing the proposals, the focus should be on issues that the
Presiding Officer must address in the initial decision.
The importance of the proposals and briefs cannot be overemphasized.
Through these materials, the position of the submitting party can be
detailed, and the Presiding Officer can view in depth the merits of the
party's position.
Initial Decision
The Presiding Officer must issue an initial decision as soon as is
"practicable" after the period specified for filing reply briefs to the
proposed findings, conclusions of law, and orders.
The initial decision should contain the Presiding Officer's:
• Findings of fact and conclusions for all material Issues of law or
discretion;
• Seasons for those findings and conclusions;
• Recommended civil penalty; and
• Proposed final order.
uaap a T arTic**/ aazerr "sent /—oo
-------
Chapter Seven Hearing Stage
In determining the dollar amount of the recommended civil penalty assessed
in the initial decision, the Presiding Officer must consider, in addition
to the criteria listed in Section 14(a)(3) of FIFSA, the following:
• Respondent's history of compliance with the Act or its predecessor
statute; and
• Any evidence of good faith or lack thereof.
The Presiding Officer must also consider the guidelines for the assessment
of civil penalties under FIFRA [39 Fed. Reg. 27711 (1974)].
22.35(c)
Specific reasons must be set forth in the initial decision if the Presiding
Officer increases or decreases the amount of penalty from that originally
assessed In the complaint. The Presiding Officer, however, cannot increase
the amount of penalty from that which was recommended in the complaint if
the respondent has defaulted.
age to Initial Decision
The initial decision becomes a final order within 45 days after it is
served unless:
• A party files a motion to reopen the hearing, which stops the
45-day period until the motion is denied or the reopened hearing is
concluded; or
22.28
• A party makes an appeal to the Administrator, or the Administrator
determines sua sponte that .a rev-iew ,of the initial .decision is
~. ajipropriat e•
22.27
Motion To Reopen a Hearing _
,If • .a , jaaxty :belleves .that -.f*i*'**'-i'M*f * evidence ^should • ifee ^iBtxp>rt7j jwy>-vake>a raotlon to reopen o£be bearing. Such a notion
must be made no later than 20 days after service of the initial decision on
the parties. The motion to reopen the hearing oust state the specific
grounds upon which relief is sought, state the nature and purpose of the
evidence to be adduced, and show that the evidence Is not merely
cumulative. The party must also demonstrate why the evidence was not
Introduced at the hearing. The motion must be written and must comply with
>sad ^£he filing* •service, and
22.28(a)
n'tB •for '' 8 uluittlng documents
Compliance/Enforcement 7-89 ani^^n^a ttann»t 1983
-------
Chapter Seven Hffar*"g Stagy
Replies from other parties must be made within 10 days after the motion is
served. The Presiding Officer must render a decision on the motion as soon
as is practicable after the filing of replies.
22.28(b)
Filing a motion to reopen a hearing shall automatically stay the running of
all time periods (e.g., appeals) until such time as the motion is denied or
the reopened hearing is concluded.
22.28(b)
Appeals of Interlocutory Orders or Rulings
Immediately Appealable Orders
The only orders or rulings that may be appealed to the Administrator as a
matter of right are:
• Accelerated decisions that decide the entire case;
22.20, 22.29
• Dismissal Orders;
22.20, 22.29
• Default orders; and
22.17, 22.29
• Initial decisions rendered after an evidentiary hearing.
22.27, 22.29
All other orders or rulings issued by an Agency official during the
prehearlng and hearing proceedings are considered Interlocutory. As such,
they must await the issuance of an initial decision before they can be
appealed, unless the Agency official issuing such orders or rulings
certifies them to the Administrator on appeal.
22.29
Procedures and Standards for Interlocutory Orders
A motion for Interlocutory appeal of an order or ruling mast be filed In
writing within six days of notice of such ruling or order.
22.29
Besides stating the grounds for appeal, the moving party must demonstrate,
to the appropriate Agency official, that:
• The order or ruling involves Important legal or policy issues
concerning which there is substantial grounds for difference of
opinion; and
aompit ance/ Barorceaent 7-90 Qnidgn^ fttnnai 1983
-------
Chapter Seven __ Hearing Stage
• Immediate appeal will materially advance the proceeding or that
waiting for normal review will be ineffective or inadequate.
22.29(b)
The motion must also comply with requirements for filing, service, and
content requirements specified in the CROP.
If the Presiding Officer does not certify the interlocutory appeal, a party
may make a motion to the Administrator within six days of service to
reverse that decision on the grounds that It is contrary to the public
interest.. Ibis motion must also, comply with the requirements of Section
22.16 and 22.05 of the CROP, except that the appropriate Agency officials
receiving the motion are the Regional Hearing Clerk and the Administrator.
22.29(c)
Actions by the
If the Presiding Officer certifies the Interlocutory appeal, the
: Administrator may?
22.29lte '«tay. TS. the "Presiding Officer
grants a request for stay of over 30 days, it must be separately approved
by the Administrator.
22.29(d)
fYiapllimrr/Fnfnrrrmrnt 7-91
-------
Chapter Seven
Exhibit 7-4
Sample Default Order
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION III
6TH AND WALNUT STREETS
PHILADELPHIA, PENNSYLVANIA 19106
In re:
W.G. Neudecker and Sons
1215 Madison Avenue, N.E.
Washington, D.C. 20019
Respondent
Preliminary Statement
I.F.&R. Docket No. III-54C
DEFAULT ORDER
This civil proceeding for the assessment of a penalty was Initiated
pursuant to Section 14(a) of the Federal Insecticide, Fungicide, and
Rodentlclde Act, as amended, 7 U.S.C. 5136 et seq., (hereinafter referred
to as FIFRA) charging that the unregistered pesticide, "Adclde for
Algae Control," was shipped from Washington, D.C., to Rockvllle,
Maryland, on September 11, 1982, In violation of Section 12(a)(l)(A) of
FIFRA [7 U.S.C. Sl36j(a)(l)(A)]. It Is hereby determined that an appro-
priate default order shall be Issued based on the findings of fact and
conclusions of law as set forth below.
Findings of Fact
1. Two cases, each bearing four one-gallon bottles of the product,
"Adclde for Algae Control," were shipped by W.G. Neudecker and Sons
(respondent) from 1215 Madison Avenue, N.E., Washington, D.C., to Water
Way In., 5544 Sycamore Lane, Rockvllle, Maryland, on or about September
11, 1982 (Shipping Order No. 45643). A sample from said shipment was
obtained subsequently by representatives of the Environmental
Protection Agency (EPA), Region III.
2. At the time of said shipment, the product sample bore a label
that It was Intended for the prevention of algae and slime.
3. At the time of the said shipment, said product was not registered as
a pesticide with EPA.
4. On July 16, 1983, the Enforcement Division, EPA, Region III (the
complainant), issued a complaint and notice of opportunity for hearing to
respondent, pursuant to Section 14(a) of FIFRA [7 U.S.C. i!361(a)],
alleging that respondent had violated Section 12(a)(l)(A) of FIFRA by
shipping an unregistered pesticide in Interstate commerce [7 U.S.C.
f136j(a)(l)(A)J. (A copy of the complaint is annexed hereto as
Attachment A.)
7-92
Guidance Manual 1983
-------
Chapter Seven Exhibit 7-4
.'\
5. In the complaint, a civil penalty of $2,300 was proposed against
respondent. Said penalty was proposed on the basis of its appropriate-
ness to the size of respondent's business, the effect on respondent's
ability to stay In business, and the gravity of the violation as calcu-
lated by reference to the EPA "Guidelines for the Assessment Section
14(a); Citation Charges for Violations" [39 Fed. Beg. 27711 (1974)]. For
purposes of assessing said penalty, respondent's gross annual sales were
determined to be between $200,000 and $1 million during the previous
year. Based on prior information communicated to complainant by the
president of .respondent, respondent was considered to have had knowledge
t>f the registration requirement. Accordingly, the proposed penalty was
assessed at $2,300. Furthermore, based on a comparison of respondent's
gross annual sales with the amount of the proposed penalty, it was
determined that said penalty would have no substantial effect on
respondent's ability to continue in business.
6. The complaint in the Instant case set forth respondent's right to
request a hearing within twenty (20) days of receipt of the complaint,
the retpjlrcaent of a written answer to the complaint, and .the conse-
quences of failure to answer the complaint. Furthermore, a copy of the
Consolidated Rules of Practice (CROP), 40 C.F.R. §22.01 et seq., was
enclosed with the complaint.
7. Said complaint was mailed to respondent on July 16, 1983, via
certified mall. Receipt No. 202684 was returned to complainant, stamped
July 17, 1983, and bearing the signature "Betty Wilson" as signer for
the addressee. (Copy enclosed as Attachment B.)
8. As of this date, respondent has failed either to respond to the
complaint, request a formal hearing, or file an answer to the complaint
naranant to .the CROP.
Conclusions of Law
1. At the time of above shipment, said product was a pesticide within
the meaning of Section 2(u) of FIFRA by virtue of its label claim of use
ijT*^ *m fmm+ »<>Wn Thr •••n1nu. of "St Llluu 'J(lJ :of TZERA* [7
i -fS 13*(n),
2* By reason of the facts as set out In the findings of fact, respondent
violated Section 12(a)(l)(A) of FIFRA by shipping an unregistered pesti-
cide In interstate commerce. [7 U.S.C. f 136j(a)(l)(A)]
3. By falling to ,file ,a. tiaeljr •-, an ever -to ,<£he, ccauvlaint and to request a
-<*••••** :frn«Ti-ng, TMpoadant 3a« '•«%«**••* the £aets alleged In the com-
plaint and has waived its right to a hearing. Accordingly, respondent
is In default and the proposed civil penalty is therefore due and pay-
able. [CROP, 40 C.F.R. S22.17J
FIFRA Oaapliance/Bnforcement 7-93 Guidance Manual 1983
-------
Chapter Seven »»*»•*hit 7-4
4. It is further concluded that by reason of the facts as set out In
paragraph five (5) of the findings of fact, the amount of the proposed
penalty is appropriate pursuant to Section 14(a)(4) of FIFRA [7 U.S.C.
Sl361(a)(4)] for the following reasons:
a. The penalty is appropriate to the size of the business;
b. The size of the penalty would have no significant effect on
respondent's ability to continue in business; and
c. The violation involves the extremely grave charge of Interstate
shipment of an unregistered pesticide.
Order
Respondent shall within sixty (60) days of receipt of this default order
pay by cashier's or certified check a civil penalty in the amount of two
thousand three hundred dollars ($2,300) to the Treasurer, United States
of America. Such remittance may be sent by messenger or certified mail
to the Pesticides Hearing Clerk, U.S. Environmental Protection Agency,
Region III, Curtis Building, 6th & Walnut Streets, Philadelphia,
Pa. 19106. In the event of failure of respondent to make said payment
within sixty (60) days of receipt of this default order, the matter
shall be referred to the United States Attorney for the District of
Columbia pursuant to Section lA(a)(5) of FIFRA [7 U.S.C. Sl361(a)(5)] for
recovery by appropriate action in United States District Court.
AND NOW, THIS DAT OF October 4, 1983 the foregoing order is hereby issued
under the authority of the Federal Insecticide, Fungicide, and Bodenti-
cide Act, as amended, and the Consolidated Rules of Practice adopted
pursuant thereto. [7 U.S.C. Sl361(a)(l)-(4); 40 C.F.R. J22.01 et seq.]
Regional Administrator
FIFRA Coaplisnce/Baforceseat 7-94 Qn±4fn*** gasaal 1933
-------
Chapter Seven
Exhibit 7-5
Model Consent Agreement and Final Order
Environmental Protection Agency
In re:
W.6. Neudecker and Sons
1215 Madison Avenue, N.E.,
Washington, D.C. 20019
Respondent
I.F.&R. Docket No. III-54C
CONSENT AGREEMENT AND
FINAL ORDER
Preliminary Statement
1. This civil proceeding for the assessment of a penalty was initiated
pursuant to Section 14(a) of the Federal Insecticide, Fungicide, and
Rodffnficide Act,, as artPTidfrU [7 P.S-C. J136 et seq. (hereinafter
FIFRA). ] The action was Instituted by a complaint and notice of
opportunity for hearing, filed upon respondent pursuant to FIFRA,
charging violations of (cite specific sections of the Act)
2. Respondent filed an answer admitting the Jurlsdictional allegations
of the complaint, admits (facts admitted) ,
and explains (neither admits nor denies) (facts explained) .
3. Respondent hereby explicitly waives the right to request a hearing on
any issue consented to herein.
4, leapo
consents to the Issuance of the order hereinafter recited,
with the stipulations and admission of facts and conclusions of law for
the purposes of this proceeding only. Respondent consents to the payment
of a civil penalty of the amount set out in the order.
Findings of Fact
[The "Findings of Fact" section shall state with particularity
-respect t"<
Conclusions of Law
By reason of the facts set forth in the "Findings of Fact," it is
concluded that respondent Jus «l
-------
Chapter Seven
Exhibit 7-5
Order
Respondent shall within sixty (60) days of receipt of this consent
agreement and final order, pay by cashier's or certified check a civil
penalty In the amount of ($ )_ dollars, payable to the Treasurer
United States of America. Such payment shall be remitted to the Hearing
Clerk, EPA Region , (address) . Failure to remit such payment
will result In the referral of this matter to the United States Attorney
General for collection pursuant to Section 14(a)(5) of FIFRA, as amended.
[Alternative Order]
Based on a finding that the payment of any or all of the penalty herein-
before addressed would materially affect respondent's ability to continue
In business, respondent, having duly stipulated to the violations as
charged, is excused from payment in accordance with the terms of Section
14(a)(4) of FIFRA, as amended.
(Signature of respondent)
(Signature of complainant)
Date:
At:
It is so ordered. This order shall become effective Immediately.
(Signature of Regional Administrator)
Regional Administrator, EPA Region
(Title)
EPA Region
Date:
At:
FIFRA CoHpliance/Enfott
7-96
f+ Itmimal 1983
-------
Chapter Seven
6 Post-Hearing Stage
Appeal of Initial Decision
Jurisdiction of
The Administrator assumes full jurisdiction of the case immediately after
the Presiding Officer issues an initial decision. The Administrator
assumes jurisdiction regardless of whether or not a party appeals the
Initial decision. If, however, a party files a motion to reopen a hearing,
the Presiding Officer may rule on that motion.
22.27(c)
Once the initial decision is issued, the Regional Hearing Clerk's File,
which now Includes the original initial decision, is forwarded to the
Hearing Clerk. Consequently, the appellant must send any notice of appeal
and accompanying appellate brief to the, Bearing Clerk. A .motion to reopen
ag* however, is to
22.27(a), 22.30(a)
Notice of Appeal and Appellate Brief
The notice of appeal and appellate brief must comply with the general
filing, service, and form requirements of the CROP where appropriate. The
. fM*fr-f•£* ,cQ£ ^pp»-f1 .anA tit* -.appellate -ttTtff ^****" •-**»' -f41»ti:*ri1'*t -yh» goa-iHttg
22.30(a)(D
The notice of appeal must address the disputed findings of fact and
conclusions of law contained in the Initial decision. Specifically, it
•ust contain:
Jf fact;
• Alternative conclusions regarding issues of law or discretion;
• A proposed order that reflects the conclusions and findings desired
by the appellant; and
FOKA. GMpllance/&iforceme&t 7-97 ftHd^t*^ Manual 1983
-------
Chapter Seven Poat-H«»«"-1pg Stage
• Relevant references to the record and the Initial decision.
22.30(a)(l)
The appellate brief is intended to present the appellant's arguments as to
why the appeal should be granted. AB such, it must include:
• A statement of issues presented for review;
• A statement of the nature of the case;
• Identification of the facts that are relevant to the issues
presented for review;
• Specific arguments on the issues presented;
• A short conclusion that includes the precise relief being sought;
and
• Appropriate references to the record and the initial decision.
Party's Reply
Any other party or amicus curiae may file a reply brief with the Hearing
Clerk within 15 days of service of a notice of appeal and appellate brief.
The reply brief is specifically intended to address only the appellate
brief and should be so limited. Therefore* it should respond to the
argument raised by the appellant, together with references to the relevant
portions of the record, initial decision, or appellate brief. The reply
brief must also comply with service, filing, and content requirements
specified by the CROP.
22.30(a)(2)
AdnyftHstrator *s Actions
Even if the initial decision is not formally appealed, the Administrator
may determine sua sponte that a review of the initial decision is
necessary. The Administrator, however, has only 45 days after service of
the Initial decision to review the initial decision sua sponte. Otherwise,
the initial decision of the Presiding Officer becomes the final order of
the Administrator. 22.27(c), 22.30(b) If the Administrator determines to
review the initial decision sua sponte, the Hearing Clerk shall serve
notice of such Intention upon the parties. The notice will include a
statement of issues to be briefed by the parties and a time schedule for
the service and filing of briefs.
22.30(b)
uompJJLance/Enzorcement 7-70 Guidance fiaimai 1983
-------
Chapter Seven Post-Bearing Stage
Scope of Review
The appeal of the Initial decision must concern only those issues raised by
the parties in the previous proceeding.
22.30(c)
Oral Argument on Appeal
Oral argument on appeal is not automatic and may be granted only if a party
makes a request to the Administrator or the Administrator orders it sua
sponte. In assigning a time and place for oral argument, the Administrator
must consider, the convenience of the parties. There are no standards
specified in the CROP for deciding whether oral argument should be heard.
22.30(4)
.Final Order
Timing and Content
The Administrator is required to issue a final order as soon as is
practicable after the final action of the appeal process—either after
filing of appellate briefs, filing of subsequent briefs if ordered by the
Administrator, or oral argument, whichever occurs last.
22.31
The Administrator may, in the final order:
• Adopt, modify, or .-*et aside all or maae of the .findings mad
conclusions contained in the initial decision or order; and
• Increase or decrease the recommended penalty unless the initial
decision is a default order (in which case the Administrator may
not Increase the recommended penalty).
The CROP requires the final order to contain the reasons for any decision
Motion To Reconsider and Stay Request
A party may file a motion to reconsider a final order within 10 days after
service of the final order. A motion to reconsider must set forth the
matters claimed to have been erroneously decided and the nature of the
Ihe mot Ian may Jilso 1-nclndr.« raqiaiT £hat the final order
Tending a resolution of the motion to reconsider, unless such a
request for stay is granted, however, the effective date of the final order
is the date on which it was issued, unless otherwise ordered by the
Administrator.
22.32
rnmpiinnrr/rrnrnrrrmcnt 7-9y fSn4Am^t*f Msmrii 1983
-------
Chapter Seven Post-Bearing Stage
Appeal From Final Order
A party may appeal the findings of the final order to a United States court
of appeals pursuant to the provisions of Section 16(b) of FIFRA. The
obligation to pay the civil penalty does not become due until the party has
exhausted all appeals*
Notice of Judgment
Upon signature of the final order by the Regional Administrator, the case
will be closed and a notice of judgment prepared and sent to Headquarters
for publication in accordance with the requirements under Section 16(d) of
the Act. (See Appendix 2, Notices of Judgment.)
Payment of Penalty
The payment of the civil penalty specified in a final order of the
Administrator is due and payable in full within 60 days after the
respondent receives the final order, unless otherwise agreed by the
parties.
22.31(b)
FXFK& coap n mice/ anxorceaeat 7-iOO Goloamce Banna 8 1983
-------
Chapter Eight
Judicial Enforcement: Civil Actions
Chapter Contents Page
1 Introduction 8-1
2 Elements of a Violation; Civil 8-3
Evidence in Support of Civil Actions 8-3
Use of Expert Witnesses 8-4
3 Procedures for Filing Actions 8-5
JErhibit 8-T: Itodel Civil Litigatitm leport
Outline and Guide 8-8
4 Injunctive Actions 8-17
Statutory Authority 8-17
Justification for Seeking Injunctive Belief 8-17
Procedures for .Seeking .Injunctive ..Belief 8-18
Exhibit 8-2: Model Motion for Temporary
Restraining Order 8-22
Exhibit 8-3: Model Motion for Preliminary
Injunction 8-23
Exhibit 8-4: Model Affidavit in Support of
Motion for Preliminary Injunction 8-24
"Mnrif 1 -itotion jfor • *£t£Btucstt
Injunction 8-25
inmp11 •nrr/rnrnrrrm or o—i "«'<'ir^ir* namiii 1983
-------
Chapter Eight Contents
5 In Rem (Seizure) Actions 8-27
Statutory Authority 8-27
Enforcement Criteria 8-27
JLn Rem Procedures 8-28
Compliance With a Seizure 8-29
Disposition of a Seizure 8-29
Exhibit 8-6: Model Complaint In Rem 8-31
Exhibit 8-7: Model Report of Supervision
of Disposition 8-34
Exhibit 8-8: Model Expenditure Report Form 8-35
6 Settlement Agreements 8-37
Goflpliance/Enforceaent8-iiGuidance Manual 1983
-------
Chapter Eight
1 Introduction
Under FIFRA, regulatory remedies are Initially and primarily handled .
through the .use of administrative actions. However, in tho«e Instances
vbere EPA ,±« unable to obtain compliance with administrative actions, the
Act authorizes EPA to seek relief through civil court injunctive and in rem
(seizure) proceedings.
An injunction is a writ Issued by a court forbidding or commanding a person
to perform a particular act. Injunctions Involve the equity powers of
Federal courts and are generally viewed as an extraordinary form of
relief. Consequently, they are not readily granted and a party seeking
injunctive relief has a heavy burden in demonstrating the need for such
action.
In rem (seizure) proceedings signify «"•«•* gffa*""* *"hingj xather than
Iniilyldiails*. Therefore, a proceeding "in rcn" Is one taken against
property and has for its object the disposition of the property.
mapninrrjimrnrrraf nr o-i Guidance Iff1"**' 1983
-------
Chapter Eight Introduction
FIFSA Gcmpliance/Eaforce*ent 8-2 g^fd*"*^ Manual 1983
-------
Chapter Eight
2 Elements of a Violation: Civil
Evidence In Support of Civil Actions
Civil actions require supportive evidence that goes beyond the prima facie
evidence necessary to establish administrative violations of FIFRA. In
some Instances, this may require the use of expert witnesses to establish
certain elements of proof (e.g., immediate and irreparable injury). Below
follows a list of additional evidentiary showings that should be met before
undertaking an injunctive or in rem action.
Injunctive Actions*
h»»» *»qn*-r»d *K» -p^-n-in.™^ w plaintiff to make -the
following showings before a permanent injunction would be issued:
• There is an inadequate remedy at law;
• The applicable administrative remedies have been exhausted; and
• Irreparable injury, loss, or damage will result if the relief is
Issuance of a preliminary Injunction or temporary restraining order would
require the following additional showings:
• Immediate and Irreparable Injury, loss, or damage will result if
the relief is not granted; and
* These actions may consist of permanent injunctions, preliminary
injunctions, or temporary restraining orders. These types of injunctions
are discussed in more detail in Section 4 of this chapter.
8-3
-------
Chapter Eight Elements of a Violation; Civil
• There is a likelihood of success at trial, based on facts before
the court.
The above criteria are not, however, uniformly applied by the various
judicial districts. While some jurisdictions emphasize different aspects
of the criteria, other courts have developed alternative tests that use
some, but not all, of the elements listed above. For this reason, an
attorney considering this type of civil action should research recent
trends in the jurisdiction in which the Injunction is being sought.
In Rem (Seizure) Actions
For a pesticide or pestlcidal device, the Act specifies that the following
jurlsdictional conditions be met before initiating an In rem (seizure)
proceeding:
• The pesticide or device is found and seized within the jurisdiction
of the district court that will hear the action; and
• The pesticide or device is being transported or, having been
transported, remains unsold or in original unbroken packages; or
• The pesticide or device is sold or offered for sale in any State;
or
• The pesticide or device is imported from a foreign country.
Use of Expert Witnesses
As in the case of administrative actions, civil judicial enforcement
proceedings generally require the presentation of expert testimony by EPA
personnel appearing as witnesses. Such testimony is used to establish
certain elements of proof that justify the relief sought (e.g., the showing
of inmediate and irreparable Injury for obtaining an injunction).
Witnesses should be selected for their direct knowledge of the
circumstances surrounding the suspected violation, because the witnesses
will be required to relate any such knowledge to the court. (See Appendix .
5, "Expert Witnesses.")
FIFRA Compliance/Enxor
-------
Chapter Eight
3 Procedures for Filing Actions
Bequests for FIFBA civil court actions are referred to the Department of
Justice or *he appropriate Bolted States (Attorneys Off ice by .the Associate
Administrator f or OtEC (or the Associate Administrator's designee) .* In
oos t instances, the Regional Office will initiate the request for an
Injunction or an In rem action and will designate the lead Agency
attorney.** The lead attorney is responsible for preparing the "referral
package," which, upon completion, is sent from the Regional Office to
OLEC. A copy of the package should also be forwarded to PTSCMS.
A referral package contains :
• Referral Memorandum* A referral memorandum identifies the primary
elements of the proposed litigation. Specifically, the memorandum,
ft A- Jt
- Identification of the potential defendants;
- Brief factual summary of the case;
- Identification of the major issues (including potential problems
that may exist with the case);
The Regional Office has Independent authority to refer requests for
emergency temporary restraining orders under FIFRA to the Department of
Justice and the appropriate United States Attorneys Office. Vhen
exercising this authority, however, the Regional Administrator wist
notify the Associate Administrator for OLEC and the Assistant
Administrator for Pesticides and Toxic Substances (or their designees.).
Headquarters -program and "Enforcement Counsel staff may participate more
actively in the case development process if precedential or nationally
significant Issues are involved.
8-5
-------
Chapter Eight Procedures for Filing Actions
- Status of past Agency enforcement efforts; and
- Names of Agency and Department of Justice attorneys who are
involved in the case, including the lead attorney.
• Civil Litigation Report. In addition to the referral memorandum,
the referral package must contain a litigation report, prepared by
the designated lead EPA attorney. (For a complete outline and
guide to preparing the report, see Exhibit 8-1•) The report must
Include a synopsis of the facts and history of the violation,
including past violations by the potential defendant. The report
must cite the specific sections of FIFRA and its regulations that
have been violated.
The report must show that all elements of the violation have been
satisfied. For each element, the report should indicate the
available supporting evidence. A copy of the necessary documentary
evidence and summary of the expected expert testimony should be
attached to the litigation report.
The lead attorney should include a statement regarding the specific
relief to be sought (e.g., injunctive or in rent action). The
report should also include a list of any equities that may weigh
against granting the relief sought by EPA; any expected defenses by
the violator (and how they will be countered); and any past,
anticipated, or pending State or Federal actions (administrative or
judicial) against the violator. Where an injunction is requested,
the report should discuss the likelihood that the violator would
comply without the Imposition of an injunction.
Once the referral package is received by Headquarters, Enforcement Counsel
attorneys will conduct a limited final legal review to ensure completeness
and consistency in application of enforcement policy. The ease will then
be transmitted to the Department of Justice or the appropriate United
States Attorneys Office. OLEC will notify the Regional Administrator and
the Assistant Administrator for Pesticides and Toxic Substances (or their
deslgnees) upon the transmittal of the civil referral.
Following the referral of a case, the lead EPA attorney will be responsible
for coordinating responses to all requests for supplemental information by
the Department of Justice or the United States Attorneys Office. The lead
Agency attorney also will be responsible for keeping program officials and
other previously Involved Agency attorneys apprised of case developments
after referral.
Agency employees who are Involved in the Investigation and referral to the
Department of Justice of civil FIFRA actions should familiarize themselves
with the Agency documents listed below. These documents are contained In
EPA's General Enforcement Policy Compendium.
• Memorandum of Understanding Between the Department of Justice and
the Environmental Protection Agency (6/15/77);
PUKKA Uottpliance/Enforceaent 8-6 Onldmc* MMMMLL
-------
Chapter Eight Procedures for Filing Actions
• Quantico Guidelines for Enforcement Litigation (4/8/82);
• General Operating Procedures for EPA's Civil Enforcement Program
(7/6/82); and
• Case Referrals for Civil Litigation (9/7/82).
FIFEA GMpllance/Bnforceaent 8-7 Guidance Manual 1983
-------
Chapter Eight Exhibit 8-1
Model Civil Litigation Report Outline and Guide*
Title Page
A. Identify the facility by name and location and indicate the parent
company if different from the facility name.
B. Identify who prepared the report (both legal and technical
personnel) indicating addresses and telephone numbers.
C. Show the date of completion/submission of the report.
Table of Contents (Standardized Example)
I. Information Identifying the Defendant(s) Page
II. Synopsis of the Case Page
III. Statutory Authority Page
IV. Description of Defendant's Business and
Technical Description of the Pollution Source Page
A. Facility Description Page
B. Source of Pollution Page
C. Pollutants Involved; Environmental Harm
(Where Appropriate) Page
D. Available Control Technology and/or
Bemedial Action Page
The Model Civil Litigation Report Outline and Guide Is to be used
for all Agency civil referrals to the Department of Justice* Civil
litigation reports, however, are most frequently used In referring
civil court actions under statutes other than FIFBA. Therefore,
certain sections of the report would not need to be as detailed as
those prepared for referrals involving non-FIFRA violations. For
example, since FIFRA referrals Involve only requests for injunctive
or in rem relief, civil penalties would not need to be discussed In
Section VII of the report (Relief Requested).
FIFBA O>*»|t1 •! tmfp/'Btnftprfaffxftf &~S &** tfms^ff* ftetMial 1983
-------
Chapter Eight Exhibit 8-1
V. Administrative and Enforcement History Page
VI. Required Elements of Proof and Evidence Page
A. Elements of Proof Page
B. Evidence of Violation Page
C. Evidence of Environmental Barm
(Where : Appropriate ) Page
D. Discovery Page
E. Evidence Favorable to Violator Page
F. Government Witnesses Page
6. Defense Witnesses Page
H. Resource Needs Page
VII. Relief Requested Page
A. Preliminary Injunction Page
B. Standards To Be Met Page
C. Compliance Schedule Page
D. Stipulated Contempt Fines Page
^E. -"'""Civil Penalties Page
F. Necessary Bonds Page
VIII. Anticipated Issues Page
A. Possible Defenses Page
C. Pending Related Administrative or Court Action Page
D* Other Issues Page
E. Discussion of Any Potential Practical
... Problem With Che. Case ..--•. ;fbge
IX. Litigation Strategy Page
A. Need for Preliminary Injunction Page
FIFBA 1\mp1 1 imrr/TTnf orccacnt 8-9 ort«i^m»g MM^I 1983
-------
Chapter Eight Exhibit 8-1
B. Potential for Summary Judgment Page
C. Settlement Potential Page
D. Other Potential Defendants Page
X. Index of Attachments Page
XI. Attachments Page
• Copies of correspondence
• Copies of relevant regulated submissions
• Copies of relevant policy memo8, regulations, interpretations
Body of the Report
I. Information Identifying the Defendant(s)
A. Legal name of company
B. Address: Corporate headquarters
C. Name of facility (if different from "A")
D. Address of facility (if different from "B")
E. SIC code
F. State of incorporation
6. Registered agent for service
H. Legal counsel (name, address, telephone number)
I. Judicial district in which violator is located
II. Synopsis of the Case
This section should be a one-or two-page articulation of the heart
of the case. It should describe both the violation and the
proposed relief. It should not describe statutory authority or
intricate legal issues in detail.
This succinct statement of the case will provide the reader a
framework In which to fit the details developed and presented in
the body of the litigation report.
FIFRA GMTO!lance/Hnf/vivomoT^ a_in
-------
Chapter Eight Exhibit 8-1
The factual basis of the case should be touched upon. Purely
conclusory characterization of the case is not as useful as
showing the facts of a violation and requested relief. For
example, it Is better to say a violator discharged or emitted X
quantity of T pollutant for Z days, than to simply say that the
violator did not comply with the terms of a permit, State Imple-
mentation Plan (SIP), or statute.
The environmental seriousness of the violation, its ongoing
nature, and a viola tor'a -recalcitrance may be touched upon in
this section (but -sill also be developed later in paragraph
III. Statutory Authority
A. Present the substantive requirements of the lav and
applicable regulations. Beference all federal statutes by
U.S.C* citation as veil ^ as by the section of the pertinent
Act. Summarize the enforcement authority, jurisdiction, and
venue. Specific elements of proof are to be addressed in
paragraph VI.
B. Lengthy dissertation on the law is unnecessary. However, in
the instance of State Implementation Plans under the Clean
Air Act, or Water Quality Standards under the Clean Water Act,
or Involvement of any other state law or regulation, a more
extensive explanation of the law or regulation may be
necessary. Pertinent excerpts from any applicable state
laws or regulations should be identified and attached to the
litigation report.
C. Any prior Interpretation of pertinent state laws or
regulations which are germane to the case should be
referenced when identifying the law violated. If a state's
interpretation of the law has been different from ours, the
Issue should be discussed with the state and fully explained
In this section of the litigation report. (This section may
then be referenced when discussing potential defenses, etc.,
• • - 111 m m m I I • I Mil ' TH 11 ' -\
- ..-331 .jySil •|ftl ffa. WAt tm)
D. List any other possible theories of violation under federal,
state, or common law.
IV. Description of the Defendant's Business and Technical Description
of the Pollution
A. Describe the violating corporation and the particular
division or facility in question. Any interesting corporate
Interrelationships or subsidiaries should be noted.
FIF1A GbHpUance/Bfeforeemeat 8-11 ^•'IJOTCP Manual 1983
-------
Chapter Eight Exhibit 8-1
B. Discuss the business of the corporation and/or division,
providing details about the facility in question, what is
produced, and what causes the pollution. Emphasis should be
on the particular process that is causing the problem. Plant
and process should be thoroughly explained, including those
outfalls or emission points not subject to this enforcement
action. Diagrams should be referenced and attached to, or
included in, the litigation report. Photographs of the
source may be helpful.
C. Discuss the types of pollutants being discharged, and
potential health and environmental effects. Although the
seriousness of the violation is not technically a requirement
of proof in enforcement of certain statutes, it is sometimes
relevant to the assessment of penalties and equitable
relief. For this reason, it should be discussed in the report
although it will not be the sole determinant of whether a
case has prosecutorial merit. The Department of Justice has
suggested the following considerations in assessing the
seriousness of the violation:
• The discharge of toxics or mutagens or carcinogens is more
serious than the discharge of conventional pollutants;
• The discharge of large quantities of pollutants
is more important than the discharge of small quantities;
• Bioaccumulative wastes posing long-term threats are more
serious than biodegradable wastes;
• The discharge of pollutants in an area not attaining
primary ambient air quality standards is more important
than discharges in an area not meeting secondary
standards;
• The discharge of pollutants that directly and demonstrably
affect health or the environment is more than those that
have no direct or obvious effect;
• Ongoing present violations that the Government seeks to
stop are more important than episodic violations which
have ceased; and
• A defendant with a history of violations Is more worthy
of attention than a first offender.
If a case does not present obvious "serious" health effects
or environmental harm, but is compelling for some other
reason (e.g., deterrence of continued, blatant violations of
the law), this should be Indicated.
TTFRA ffrmnl < anr* /ttnfn-ri-^mfi nf Q-T7 _on* «l
-------
Chapter Eight Exhibit 8-1
D. Discuss available methods of controlling the problem.
Specify technology(s) that will achieve the imposed limits,
and indicate the time requirements for a schedule of
compliance which considers time necessary for design,
contracting, construction, and startup. (This is not
inconsistent with EPA policy of not prescribing specific
compliance technologies. This information may be necessary
in court to illustrate technical feasibility if requested by
the judge.)
Cost estimates should be included, to the extent known.
Indicate the reliability of the estimates. (Reference
paragraph VII(E) as appropriate.)
V. Chronological Administrative History and/or Earlier Enforcement
Actions (State and Federal)
A- Show all attempts - to exact compliance or . iapose sanctions
administratively or judicially that have been considered or
taken. A full historical chronology should be presented.
B. Indicate whether necessary notice pursuant to the statutory
requirements has been given to the violator prior to
initiation of court action.
VI. Required Elements of Proof and Evidence
A. List the necessary elements of proof to establish the
B. Present a detailed, objective, factual analysis of all real,
documentary, and testimonial evidence corresponding to each
necessary element of proof in paragraph VI(A) above.
Indicate the location of all real evidence.
Reference each item of documentary evidence as an attachment,
•- ••. -**GMKp£-.---*l>Bre';Jit Isvt&o >?volnBlaDas -Clsi which case indicate Its
present location) .
Identify all witnesses by name (indicating whether lay or
expert), when Indicating the Import and substance of their
testimony. Complete addresses and phone numbers of witnesses
will be listed in paragraph VII(E) below.
•vallable fcy
dis covery, indicate:
1. The type of evidence anticipated;
FIFRA Cbapllance/Knforceaent 8-13 Guidance Manual 1983
-------
Chapter Eight
Exhibit 8-1
2. The person or organization currently having the
evidence; and
3. The type of discovery to be used.
Assess the quality of the evidence. Be objective. Any facts
or circumstances that affect the strength of the Agency's
proof should be explicitly set forth. The newness or oldness
of evidence is relevant; the dependability of testing
techniques is Important. Any assumptions, and the reasons
for them, should be spelled out.
D. If establishing environmental harm is important to the case,
set forth the evidence of harm (as done In paragraph VI(B)
for elements of substantive violation).
E. List all evidence favorable to the violator, Including test
results that differ from EPA's. Any relevant fact that may
bear adversely on the Government's contentions should be
highlighted. Defense witnesses, to the extent they can be
anticipated, should be listed in paragraph VI(6).
F. List all government witnesses alphabetically with business
address, and telephone number and home phone number. Quali-
fications of experts should be given.
All witnesses listed should have been consulted and
thoroughly interviewed. Paragraph VI(B) should set out in
succinct fashion the actual facts and opinions to be included
in the testimony.
G. List all defense witnesses anticipated, identifying their
employment, expertise, etc. The likely content of their
testimony should be set out in paragraph VI(E).
H. Indicate projected resource needs (e.g., experts, money,
etc.).
VII. Relief Requested
This paragraph should Include a comprehensive "bottom-line"
settlement position on all items of relief necessary, including
those set forth below. If there are policy questions or conflicts
associated with any requested relief, discuss them. This section
should be carefully detailed. It will be relied upon in
determining the acceptability of any settlement offers/proposed
consent decrees.
A. Preliminary injunction.
B. Standards to be met (interim and final).
FIFRA Compliance/Enforcement
8-14
Guidance
1983
-------
Chapter Eight Exhibit 8-1
C. Compliance schedule for available technology with phasing,
duration, etc. (Reference paragraph IV(D), as appropriate.)
D. Stipulated contempt fines in conjunction with compliance
schedule .
E. Civil Penalties.
1. Economic savings realized by the violator should be
analyzed. .The EPA Civil Penalty Evaluation form should
be completed, discussed, and attached. Calculations
should be included as attachments. This section should
Include discussion of all elements developed under EPA's
civil penalty policy, Including ability of the company
to pay and recalcitrance.
2. Comment on types of credits possible (or proposed by the
violator) , as veil as credits considered and/or allowed
'for othrr w*m1 1 *T •-•y* **] ffn-m ^•t-n^ivm^-^ittr -municipal POTHs).
3. If economic savings is not a relevant measure of penalty
assessment, explain what basis should be used.
F. Necessary bonds.
Witnesses necessary to establish the relief requested should
be identified by name, address and telephone number, with a
brief summary of the subject of their testimony.
KX11
A. Possible defenses.
(Analyze only defenses that are likely to be presented;
fanciful theories can be ignored.)
1. Outline legal issues. Attach legal memoranda on threshold
legal Issues (e.g., Chapter 11 Reorganization) or col-
ntlgatlon.
2. Outline factual Issues.
B. Equitable arguments by the violator.
-t«
>tttd
facilities; emission standard to be revised; inability to
finance; economic constraints, etc.)
FIFKA Gnapliance/bforcement: 8-15 &»
-------
Chapter Eight Exhibit 8-1
Any past action, or inaction, (not necessarily judicial or
administrative) by a state or any EPA office that the
company may use as an excuse, or cite for reliance, (e.g.,
promises of less stringent limits; agreement not to sue,
etc.).
C. Pendency of any action involving the violator or EPA on
related Issues in any court or administrative forum.
(Reference paragraph V(A), as necessary.)
D. Other possible issues that might arise at trial.
E. Discuss any potential practical problems with the case.
IX. Litigation Strategy
A. Need for preliminary injunction.
B. Potential for summary Judgment.
C. Settlement potential.
1. Past contacts by EPA, the Department of Justice or the
United States Attorneys Office.
2. Present negotiating posture and assessment of potential
for settlement. Include comparison of posture with
"bottom-line" settlement position from paragraph VII.
D. Other potential defendants.
E. Other pending actions against violator.
X. Index of Attachments
XI. Attachments
FXPSA Gaapllsaee/Eoforeeaent 8-16 Guidance Manual 1983
-------
Chapter Eight
4 Injunctive Actions
Statutory Authority
EPA has the authority to initiate injunctive actions under Section 16(c) of
FIFRA, which states that the "district courts of the United States are
vested with jurisdiction specifically to enforce, and to prevent and
restrain violations of this Act."
Justification for Seeking Injunctive Relief
3he cour£« ^re %f^aexmlly .reluc^mt ^> iMue ^mandatory injunctions or 'to
issue injunctions that will alter the status quo except in the most
compelling instances. Consequently, the Agency's need for injunctive
relief should be clear and unmistakable. A permanent injunction should be
considered when:
• The Agency's administrative or other judicial enforcement remedies
would be inadequate either at restraining the violation or at
- . - |.T»MIH-*IIB TmrrmTTrrmtflT Ttf*" tr Jimrnr rrr "fhr
-------
Chapter Eight Injonctive Actions
A preliminary injunction or temporary restraining order should be
considered when the following additional elements are present:
• Immediate and irreparable injury, loss, or damage will result if
relief is not granted. "Immediate" is self-explanatory and is
interpreted strictly; and
• There is likelihood of success at trial based on facts before the
court (i.e., more than a 50 percent chance of winning at a trial
based on facts before the court at the time of application).
Modern court trends have been to relax the requirement of irreparable
injury. In particular, where a statute prohibits certain conduct, many
courts will presume the conduct to be injurious thus warranting an
injunction without requiring a showing of irreparable Injury. Ibis
doctrine has been applied to violations of the Federal Food, Drug, and
Cosmetics Act [U.S. v. Dlapulse Corp. of America, 457 F.2d 25 (2nd Cir.
1972)]. It Is reasonable to expect that the doctrine can be extended to
apply to violations of FIFBA. For instance, where there is a real
possibility of an "imminent hazard" to human health or the environment,
irreparable injury may not need to be shown.
Conditions That May Justify Injunctlve Relief
Injunctlve relief may be justified when:
• There is a violation of a Section 6 suspension order;
• There is a violation of an SSURO, where a civil penalty or criminal
prosecution would not provide a timely and effective enforcement
remedy to deter further violations;
• There is continued production, shipment, sale, or use of an
unregistered pesticide after the Agency has taken civil or criminal
action; or
• The Agency has exercised an enforcement remedy and a person
continues to make available for use a restricted use pesticide
other than In accordance with Section 3(d), or continues to use a
pesticide in a manner Inconsistent with its labeling or in a manner
contrary to an experimental use permit.
Procedures for Seeking Injunctive Relief
1. Determine the Necessity for Injunctlve Relief
• Regional Initiation. The Regions generally make the initial
determination that an injunction is necessary to restrain
Compliance/mxorGement 8-18 Guidance **?**"•' 19B3
-------
Chapter Eight Injunctive Actions
violations of FIFRA or to prevent harm to humans and the environ-
ment. The regional determination must be based on a careful weigh-
ing of the facts of the violation, of the evidence available to
document the severity of the violation, and of the justifications
discussed above.
• Headquarters Initiation. In some instances, Headquarters may be
the initiating party when noncompliance with the terms of the
statute exists on a national level or the Registration Division has
alerted PTSCMS to a situation that warrants an injunction.
Determine Type of Injunction To Be Sought
• Temporary Restraining Order (Exhibit 8-2). A temporary restraining
order (TRO), sometimes known as a provisional injunction, is
limited and will expire In 10 days (but can be extended an addi-
tional 10 days by the court). It Is used when it can be shown by
affidavit *vr'^T*'f*|»d*'re"p1 r*"* «•*«»*• -foj»»«i-t««-» and Irreparable
Injury, loss, or damage will occur before the time that the adverse
party can present its case. The purpose of the TRO is to preserve
the status quo until a motion for a preliminary injunction can be
heard. Its advantage is that it is the most expediently obtained
form of injunctive relief.
Rule 65(b) of the Federal Rules of Civil Procedure (Fed. R. Civ.
P.) controls the procedural steps for obtaining a TRO. Generally
the attorney for the adverse party, if known (or if not known, the
adverse party itself), must be given oral or written notice of the
request for a TRO. However, this requirement is suspended if (1)
. .It jiB shown hy SIM*pi fie facts that lawedl&te .•and 1 rrf iMirshlf harm
^•111 occsir «befor« the adverse party can :be iaeard and (2) If the
government attorney certifies in writing the efforts, if any,
taken to provide notice to the adverse party and the reasons
supporting the claim that notice should not be required. The facts
demonstrating immediate and/or irreparable injury, loss, or damage,
may appear either in a verified complaint or in a separate
affidavit signed by an EPA employee other than the attorney for the
case. Along with the motion for a TRO, a copy of the suggested TRO
should
-------
Chapter Eight Injunctive Actions
• Preliminary Injunction (Exhibit 8-3). A preliminary injunction by
its very nature is interlocutory, provisional, or temporary. It is
intended to preserve the status quo pending final determination of
the action after a full hearing on the merits. It is different
from a TRO in that a preliminary injunction requires advance notice
to the adverse party, and it can last longer than 10 days.
Notice presumes a hearing and an opportunity to contest the motion
for an injunction. The applicant has the burden of establishing
the right to injunctive relief. To do so, it is advisable to rely
on more than affidavits (Exhibit 8-4) whenever possible. Oral
testimony should be available when and if necessary to substantiate
the Agency's contentions.
At the hearing on the application for preliminary injunction, the
court may order an advancement and the consolidation of the trial
on the merits. Consequently, the government attorney should be
prepared to go forward with the prosecution of the case when
seeking a preliminary injunction.
• Permanent Injunction (Exhibit 8-5). A permanent Injunction, also
called a final or perpetual injunction, is generally unlimited in
duration. It is usually granted only after a full trial on the
merits. Consequently, the judgment granting a permanent injunction
constitutes final disposition of the suit, although the judgment
may be appealed to a circuit court.
Mere passage of time will not dissolve a permanent injunction,
unless the judgment itself so provides. However, the prospective
features of a final injunctive decree are subject to termination or
modification by the court when warranted by changed conditions.
3. Determine the Appropriate District Court Having Jurisdiction
The Regional Office must determine which is the appropriate district
court having Jurisdiction over the violator. An injunction operates
In personam (meaning "against the particular person"), so that the
dTstrict court in which the motion is filed must have in personam
jurisdiction over the party against whom the injunction is sought.
Usually this means that the person or corporation who Is the defendant
must live or have a place of business within that State. Service of
process, or the delivery of written notice, In a district court is
subject to the territorial limits of the State in which the court is
located. However, In some instances, an injunction may have an in rem
("against the world at large") effect on property or items that are
the subject of the suit or that are within the court's in rem
Jurisdiction, jn rem jurisdiction may have a broader reach for
serving process than does in personam—it is easier to get "the thing"
than it is "the person." These possibilities should be explored
informally with the appropriate U.S. Attorney before formal referral
of the case file.
compliance/ mtor cr me at o-zu Guidance
-------
Chapter Eight ____^_ Injunctive Actions
4. Prepare the Referral Package
See discussion In "Procedures for Filing Actions" (Section 3) in this
chapter.
Court Actions on Motions for Injunctlve Relief
If -an injunction is granted, the following actions should ensue:
• Preparation for the Next Stage of the Proceeding. If the court
grants a motion for a preliminary injunction or TRO, the regional
attorney in conjunction with the U.S. Attorney must begin prepara-
tion for the next stage in the proceeding, whether that be a full
trial on the merits or a more extensive and permanent type of
injunction.
« Monitoring the Injunction. . Although It is the court * s jresponsibil-
ity to monitor any equitable decree, including an injunction, the
courts have limited resources and often encounter practical diffi-
culties in monitoring compliance. If the court does not ask the
Agency to monitor the injunction, the Region should offer to assist
the court in monitoring the injunction and to report any violations
of the injunction. A violation of an injunction will subject the
party to a charge of contempt of court.
If an injunction is denied, the Agency may either:
• Appeal the denial; or
-•-:-•-<• Accept the denial ^and pursue other legal remedies.
In both Instances, the Headquarters Case Development Officer (HQCDO) should
be consulted by the Regional Office to determine which course of action to
take.
compliance/Baxorceaent 8-21 Guidance •****•**»* 1983
-------
Chapter Eight Exhibit 8-2
Model Motion for Temporary Restraining Order
United States District Court
District of
(Title of Action) Civil Action No.
Motion for Temporary Restraining
Order [With or Without Notice]
Plaintiff, the United States of America, herewith moves this court to
grant [*(!) forthwith and without notice to defendant for his attorney]
a temporary restraining order restraining defendant, his agents, and
employees from (set forth acts sought to be enjoined) pending a hearing
and disposition of plaintiff's motion for a preliminary injunction on
the grounds that immediate and irreparable loss, damage, or injury will
result to (*(2) plaintiff, the public, the environment] as set forth in
the attached verified complaint and affidavits of (name of affiant)
[*(3) before notice can be given] and before defendant or his attorney
can be heard in opposition [*(4) as appears more fully in the attached
certificate of the undersigned showing that all reasonable effort has
been made to notify the (defendant and/or his attorney) of this motion]<
(Signature of U.S. Attorney)
United States Attorney for the
District of
Date
* (D»(3),(4) - These statements are optional depending upon whether or
not the defendant or his attorney receives advance
notice of the request for a TEX).
* (2) - The victim of the alleged Injury can be best determined
from the actual facts of the case at hand.
FIPBA flH.jjp1 -Iamfei/'Ktfnff»sffitf 8—22
-------
Chapter Eight Exhibit 8-3
Model Motion for Preliminary Injunction
United States District Court
District of
(Title of Action) Civil Action No.
Motion for Preliminary Injunction
Plaintiff moves the court for a preliminary Injunction enjoining the
defendant (name of defendant), his agents, servants, employees, and
attorneys and all persons in active concert and participation with him,
pending the final hearing and determination of this action, from (set
forth act or acts sought to be enjoined) on the grounds that:
XI) Unless restrained by tfa±s *eonrt defendant will perform the acts
referred to;
(2) Such action by the defendant will result in immediate and
irreparable injury, loss, or damage to (the plaintiff, the
public interest, or the environment), as appears in the
verified complaint and the affidavit of (name of affiant),
attached hereto; and
(3) The Issuance of a preliminary injunction herein will not cause
undue inconvenience or loss to defendant, but will prevent
an* ^T-apflT-aKlo -trvj.ii-y fn. fjjg plaintiff.
(Signature of U.S. Attorney)
Doited States Attorney for the
j&strict of
Date
FUFKA Q»FPl •!»*»«• «*/RnfQT£^•^nt 8-23 Guidance n««m^i 1983
-------
Chapter Eight
Exhibit 8-4
Model Affidavit in Support of Motion for Preliminary Injunction
United States District Court
District of
(Title of Action)
Civil Action No.
Affidavit in Support of Motion for
Preliminary Injunction
(Hame of Affiant) , being duly sworn, deposes and says:
(1) It [the United States] is the plaintiff in the above-entitled
action; and that it makes this affidavit in support of plaintiff's
motion for a preliminary injunction herein.
(2) This is an action [to enjoin defendant from engaging in any
violation of the Federal Insecticide, Fungicide, and Bodenticide
Act, as amended, 7 U.S.C. 8136 et seq.].
(3) [Statement of facts to support the motion].
(Signature of Affiant)
(ot
gna
her
than EPA attorney)
Subscribed and sworn to and before me at (City and State)
this day of , 19 .
(Signature of Attesting Official)
Cot
&
than EPA attorney)
/ftnfnTi
8-24
1983
-------
Chapter Eight Exhibit 8-5
Model Motion for Permanent Injunction
United States District Court
District of
(Title of Action) Civil Action No.
Motion for Permanent Injunction
Plaintiff, the United States of America, herewith moves the court to
make permanent the preliminary Injunction issued herein on (date). In
support, plaintiff submits (the opinion of the court of )_
which is conclusive to the effect that the (behavior or activity"of the
defendant) is unlawful and no additional evidence could alter that
result.
I optional: (I) Counsel may also want to Include a paragraph-moving
the court to enter the mandate of a higher court,
if the grant of injunction has been unsuccessfully
appealed.]
[optional: (2) Counsel may also find it necessary to include a
motion either for the dismissal of defendant's
counterclaim or for the grant of summary judgment
as to the counterclaim.]
(Signature of .U^.. -Attorney
Jtaited States Attorney ,for the
District of
Date
FIFRA Covpllance/Bnforcevent 8-25 Cn<^««rfi Manual 1983
-------
Chapter Eight
^XFMA uoapHanee/Enforcement 8-26 Galdance Manna1 1983
-------
Chapter Eight
5 In Rem (Seizure] Actions
Statutory Authority
Section 13(b) of FIFRA authorizes the seizure, through an in rem
condemnation proceeding in district court, of:
• Any pesticide that is adulterated, misbranded, unregistered, not
colored or discolored as required, or bears claims or directions
for use that differ from those made in connection with its
registration;
• Any pesticidal device that is misbranded; and
-••--+ Any nestAclde or peytlcldal device *hat causes tmreastmable adverse
effects upon the environment, even when used in accordance with the
requirements imposed under the Act.
Section 9(b) authorizes duly designated Agency employees to obtain and
execute warrants for the purpose of seizing any pesticide or pesticidal
device that is in violation of the Act.
Enforcement Criteria
Seizure of a pesticide or device is effectuated through an in rem
condemnation proceeding conducted according to Rule 9(h) of the Federal
Rules of Civil Procedure (Fed. R. Civ. PO and.the Supplementary Rules for
Ilitle 2BU.S.C.]. 3he procedure to
initiate this judicial action requires more preparation and time than that
necessary to issue an SSURO.
FIFRA Compliance/Enforcement 8-27 Guidance Manual 1983
-------
Chapter Eight In Bern Actions
Therefore, the SSURO is the preferred remedy in terms of expediency. A
seizure, nonetheless, should be considered when:
• An SSURO has been issued and is not being complied with;
• There is reason to believe that an SSURO, if Issued, would not be
complied with;
• A pesticide is so hazardous that it should be removed from the
marketplace or its place of use;
• It is necessary to support a recall; or
• It is necessary to dispose of products that remain under an SSURO
without corrective action and for which there is an expressed
intent not to take corrective action by the person holding the
violative product.
In Rem Procedures
1. Prepare the Referral Package
Upon determining that a pesticide or device is in violation of the Act and
that a seizure is the appropriate level of enforcement action, the Regional
Office should prepare a civil litigation referral package (see Section 3 of
this chapter). The package may include a proposed complaint in rem
(Exhibit 8-6), which is prepared in accordance with Rule C of the
Supplemental Rules for Certain Admiralty and Maritime Claims that accompany
the Fed. R. Civ. P. The necessary elements of the complaint in rem are
that:
• It be verified by oath or affirmation;
• It describe with reasonable particularity the property that is the
subject of the action;
« It state that the property to be seized is (or will be during the
pendency of the action) within the jurisdiction of the district
court that will hear the action;
• It state the place of seizure; and
• It state the allegations of the violations, as required by the
statute, with sufficient particularity that the defendant/
respondent can frame responsive pleadings and investigate the facts
without moving for a more definite statement.
FIF1A GoBpliance/Enforceaent 8-28 Guidance Manual 1983
-------
Chapter Eight In Eat Actions
2. Execute the Warrant
Once the complaint in rem is filed with the court, an "arrest" warrant
(i.e., a warrant for the arrest of the property that is the subject of the
action) will be issued. According to Rule C(3) of the Supplemental Rules,
the warrant is delivered to a U.S. Marshal for execution. However, Section
9(b) of the Act provides that duly designated EPA employees are authorized
to obtain and execute warrants for the purpose of effecting a Section 13(b)
seizure. It is the Agency's view that a seizure warrant may be served by
either a U.S. Marshal or an EPA employee. These possibilities should be
brought to the U.S. Attorney's attention, and the .Region should make known
its preference. However, the Region should abide by the wishes of the
U.S. Attorney if it Is preferred that the U.S. Marshal serve the warrant.
3. Notify Other Regions
The Region should notify other Regions of its actions if there is reason to
believe that the violative product is also in those Regions.
Compliance With a Seizure
The violation of a court-ordered seizure or decree of condemnation consti-
tutes contempt of court. When any such violation is found, it should be
reported promptly to the U.S. Attorney who filed the seizure action.
Ittyppsltlon of a Seizure
While pesticides or pesticidal devices under seizure are in the control of
the court, the Regional Office will usually be called upon to recommend or
approve the method of disposition and may be directed to supervise the
court-ordered action In decrees of condemnation. When agreeable to the
U.S. Attorney, the Regional Office should prepare the proposed consent or
default decree to be filed by the U.S. Attorney.
Reconditioning
Where disposition is achieved by reconditioning, the person supervising the
reconditioning under a consent decree should report the method of
reconditioning, what examinations or tests were made, and whether the
pop*"jf r^f*** nr" :Jf ptffiA&1 dfVlCP is .HOW. .In *»
-------
Chapter Eight In Bern Actions
Agency Reimbursement
Because the Agency will be reimbursed by the claimant for expenses incurred
in the seizure, the Region should keep a record of all expenses incurred in
connection with the supervision and disposition of the seized products.
The schedule of expenses should be attached to the report of supervision
and presented to the U.S. Attorney for collection concurrent with the
payment of court costs (Exhibit 8-8).
FIFKA GbBpliance/Enforceaent 8-30 Gnldft^r* M^M">1 1983
-------
Chapter Eight Exhibit 8-6
Model Complaint In Bern
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF
United States of America
Complaint In Rem
TO THE HONORABLE JUDGE OF SAID COURT:
This is a complaint in rea filed in behalf of the United States of
America by the United States Attorney for this District, who represents
This is an action in rem instituted pursuant to Section 13(b) of the
Federal Insecticide, Fungicide, and Rodenticide Act, as amended, 7
U.S.C. Sl36k(b), for the seizure for confiscation by a process in rem
for condemnation of (name of the product in the caption), a product
or Inrorted aa ,.a -.(pestlf* ^° ,-or
jdrtlce ) within the •iiininc nf Section 2 of tfae Ifedexal Insecticide.
Fungicide, and Rodenticide Act, as amended, 7 U.S.C. §136. Authority
to bring this action is vested in the United States Attorney by 28
U.S.C. $547(2).
II
vWi^r* r:iwxfffT J~iff ••'4_ti9 action
7 ^J^S.C
FIFRA Govpllance/Enforceaent 8-31 Guidance ^*tmai 1933
-------
Chapter Eight &hibit 8-6
III
On or about ,19
the product was (transported, imported, sold, offered for sale) by "
from
to
and the product remains unsold or in the original unbroken packages and
is now in the possession of (person in possession and exact location)
or elsewhere within the jurisdiction of this Honorable Court.
IV
The product is labeled, marked, and branded (in part) as follows:
The product is in violation of the Act as follows:
(State allegation with specific reference to unlawful acts)
PIFBA Qmplisaee/Enforceaent 8-32 Goidance «a»««"ai 1983
-------
Chapter Eight Exhibit 8-6
WHEREFORE, in consideration of the premises, the complainant, United
States of America, prays:
(a) That the pesticide/device, be proceeded against and
seized for condemnation and confiscation, and that it be disposed of as
the Court may direct in accordance with the provisions of Section 13(b)
of the Act [7 U.S.C. Sl36k(b)] and in conformity with the practice of
this Court, and that the parties specified in paragraph II of this
complaint 'and any and all other persons having or pretending to have
any right, title, or interest in and to the product be notified to
appear herein in order that they may answer all and singular the
allegations herein set forth.
(b) That this Honorable Court may enter all such orders, decrees, and
judgments as may be necessary in the premises to grant further relief
to your complainant and for the costs of this proceeding should such
costs not be satisfied out of the proceeds of the sale of the product,
jj this v^onorable Court should decree; the same to be sold.
(c) That your complainant may have such other and further relief as
the nature of the case may require.
(Signature of U.S. Attorney
United States Attorney for the
District of
VERIFICATION
T "have read the foregoing pleading and know Its contents; vhich is true
and correct of my own knowledge, except as to matters therein stated
upon my information and belief, and as to such matters I believe it to
be true.
Executed on this day of (date)
(location)
Halted States Attorney
FIFRA Compliance/Enforcement 8-33 Guidance MMIM*! 1983
-------
Chapter Eight Exhibit 8-7
Model Report of Supervision of Disposition
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REPORT OF SUPERVISION OF DISPOSITION OF PESTICIDE OR DEVICE
Pesticide or Device Detained Under
(Stop Sale, Etc., Order, Seizure by Marshal;
(EPA Seizure (warrant); Voluntary Recall; Give Place and Date of
Detention)
(
Sample No., I.F.&R. No., Court No._
Name of Pesticide or Device
Nature of Violation
Type of Disposition Order or Agreement
(Consent Decree; Voluntary
Reconditioning; Court-Ordered Destruction; Etc.)
Method of Disposition
(Reformulate; Relabel; Destroy; Etc.)
Results of Disposition Action
(In Compliance - Relabeled; Etc.)
(Not in Compliance - Ineffective by Test; Etc., Give Test Results,.Etc.)
Further Action Required
(None or, Further Reformulation; Relabeling; Etc*)
Remarks
(Signature and Title of EPA Employee)
(Place and Date)
FIFRA Qa»pi -taTwo/nnf«i-f n»QTif 8-34 Guidance Manual 1983
-------
Chapter Eight
Exhibit 8-8
Model Expenditure Report Foi
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
CHARGES FOR SUPERVISION OF DISPOSITION OF PESTICIDE OR DEVICE
(Attached to Report of Supervision)
Sample No., I.F.&R. No., Court No.
Name of Pesticide or Device
Amount of Pesticide or Device_
Method of Disposition
Types of Charges
Unit
Charge Total
Hours
Days
Miles
Inspector Time
Analyst Time
Inspector Per Diem
Analyst Per Diem
Inspector Automobile Use
Analyst Automobile Use
Other Transportation or
Miscellaneous Expenses
(Itemize)
Sub-Totals
Grand-Total
Remarks:
(Signature of Inspector or Analyst)
FIFRA CompUance/Enforceaent
8-35
Gi
1983
-------
Chapter Eight
Exhibits
FIPRA Qompl 1 ance/Eoforceaent
8-36 Guidance Manual 1981
-------
Chapter Eight
6 Settlement Agreements
By their very nature, FIFRA civil actions do not involve settlement
agreements. Nonetheless, an injunction or :dn rem (seizure) action that
is granted 'to EPA *by a district court -is also usually monitored for
compliance by the Agency. The violation of either type of civil action
will subject the responsible party to a charge of contempt of court.
FIFRA Compliance/Enforcement 8-37
-------
Chapter Eight Settlement Agreements
FIFRA Compllance/Enforcement 8-38 Guidance Manual 1983
-------
Chapter Nine
Judicial Enforcement: Criminal Actions
Chapter Contents Page
Statutory Authority 9-1
Basic "Enforcement Policy 9-1
Criteria for Identification of a Potential Criminal Action 9-2
Procedures for the Investigation and Referral of a Criminal Case 9-6
Exhibit 9-1: Criminal Enforcement Divisions: Field Offices 9-10
Exhibit 9-2: Memorandum (9 May 1983): Referral Procedure for
Criminal Cases 9-11
Exhibit 9-3: Uniform Criminal Referral Package Format 9-16
F.LFKA cmpJaance/ianxorceaent y-i Guidance Manual 1983
-------
Chapter Nine
Contents
VlFRA CJownllance/Bafoi
ort
ant
9-1]
-------
Chapter Nine
Judicial Enforcement: Criminal Actions
Statutory Authority
Section 14(b) of FIFRA provides the following criminal penalties for the
*' - of ~-v*y provision of the Acts
(1) In General. — Any registrant, commercial applicator,
wholesaler, dealer, retailer, or other distributor who
knowingly violates any provision of this Act shall be
guilty of a misdemeanor and shall on conviction be
fined not more than $25,000, or imprisoned for not
more than one year, or both.
(2) Private applicator. — Any private applicator or other
person not included In paragraph (1) who knowingly
violates any provision of this Act shall be guilty of a
•isdeneznoT .and shall on conviction *e fined not more
•than "$ 1 ,000 , vr imprisoned ^f or- -not TBOT« than 30 ^lays ,
or both.
Section 12 of FIFRA enumerates those acts considered unlawful under the
Act (see Chapter Seven for a complete listing.)
Bttforceaent Policy
The objective of the pesticides enforcement program is to ensure compliance
with the terms and provisions of FIFRA. The Act provides the Agency with a
variety of administrative, civil, and criminal enforcement options to
accomplish this goal. A broad range of potential overlap exists among
* . Thf oirt j <*n] 1 j at - Apyf j — £he -Agency- j A -.free to
FIFRA GoBpllance/Biforcement : 9-1 Guidance Manual 1983
-------
Chapter Nine Criminal Enforcement
pursue criminal sanctions in every situation presenting evidence supporting
the requisite elements of proof.*
As a matter of enforcement policy and resource allocation, such an
unrestrained use of criminal sanctions is neither warranted nor practical.
The commitment of investigative and technical resources necessary for the
successful prosecution of a criminal case is high. More Importantly, a
criminal referral for investigation or prosecution can entail profound
consequences for the subject of the referral. Accordingly, criminal
referrals should be confined to situations that reflect the most serious
cases of environmental misconduct—when measured by the nature of the
conduct, the compliance history of the subject, or the gravity of the
environmental consequences.
Criteria for Identification of a Potential Criminal Action
This section discusses the considerations that should be examined in
determining whether to proceed with a criminal vis-a-vis administrative/
civil action.
The Scienter Requirement
An Individual who engages in conduct prohibited by statute or regulation
can be prosecuted civilly or administratively without regard to the mental
state that accompanied the conduct. Criminal sanctions, on the other hand,
will be limited orginarily to cases in which the prohibited conduct is
accompanied by evidence of a "guilty knowledge" or intent on the part of
the prospective defendant. Referred to as the scienter requirement, this
element of proof exists under virtually every environmental statute
enforced by the Agency.**
* Pesticide use of FIFEA violations are an exception to this general
statement. Sections 26 and 27 of FIFRA establish standards and
procedures for according to the States the primary enforcement
responsibility (primacy) for pesticide use violations. Where a State
has primacy, the Agency will not bring an enforcement action unless the
State is unwilling or unable to address the situation. If the State has
referred the matter to the Agency, the Agency will proceed as with any
other case under FIFRA.
** One exception to this general rule is the Refuse Act, 33 U.S.C. 1407,
which has generally been interpreted as a "strict liability" statute.
[See, e.g., United States v. White Fuel Corporation. 498 F.2d 619 (1st
Cir. 1974).] In addition, a prosecution for illegal discharges under
the Clean Water Act can be based on negligent or willful conduct, 33
U.S.C. Sl319(c)(l). "Negligence" is not, strictly speaking, a form of
scienter.
FIFRA Coapllance/Eoforeeaent 9-2 Guidance Manual 1983
-------
Chapter Nine Criminal Enforcement
Under FIFRA, criminal penalties are imposed only for "knowing" violations
of the Act. The term "knowing" has been used in a number of other criminal
provisions and has been interpreted to mean that the violative act must be
done intentionally and not as a result of accident or mistake.
To date, only one case has addressed the meaning of the word "knowing" as
it is used in FIFRA. In United States v. Corbin Farm Services, 444 F.
Supp. 510 (E.D. CA. 1978), the defendants were charged with the knowing use
of a registered pesticide in a manner Inconsistent with its labeling. The
label on the pesticide in question stated: "For water fowl protection do
not apply...on fields where water fowl are known to repeatedly feed." The
defendants had applied this pesticide to a field containing evidence of
bird activity, which resulted in the death of migratory birds. The court
found that in order to prove knowing activity, the government must show a
general intent on the part of the defendants to do the act in question
(i.e., the government was required to show that the defendant knew that he
was using a pesticide when he sprayed the field). Proof of intent to
violate FIFRA was not necessary.
The ^requirement to prove a culpable mental .atate, -as well as a prohibited
act, is certainly the clearest distinction between criminal and
administrative/civil enforcement actions.
The Nature and Seriousness of the Offense
As a matter of enforcement policy and resource allocation, EPA will
investigate and refer only the most serious forms of environmental
misconduct for criminal prosecution.
Of primary importance to this assessment is the extent of environmental
ITMIf TIT'*'***^ ^ *""" **** "^BBy* ^•»«T*fc fn^TT d tttft h&S ''rmm*?'\'*T$ "fTCTl^ Or 088
threatened by, the prohibited conduct. In general, this determination will
depend upon considerations such as the duration of the conduct; the
toxicity of the pollutants involved; the proximity of population centers;
the quality of the receiving land, air, or water; the amount of Federal,
State, or local cleanup expenditures; and public sentiment supporting
strong enforcement action in response to a specific situation.
is of particular importance in cases of the falsification or concealment of
records, reports, or other Information. For example, even if a technical
falsification case can be made, criminal sanctions may not be Appropriate
if the distortion of information could not reasonably have been expected to
have a significant impact on EPA's regulatory or decisionmaking process;
However, where the impact is material, as in the case where the
falsification activity aright can»e £PA to ^register m pesticide with
*4cnons Li aled cai clnogenic potential , ^^tg 'TiBBi8 ••fair •
be considered.
FIFBA Compliance/Enforceaent 9-3 Guidance Manual 1983
-------
Chapter Nine Criminal Enforcement
The Need for Deterrence
Deterrence of criminal conduct by a specific individual (individual
deterrence) or by the community at large (general deterrence) has always
been one of the primary goals of criminal law. Where the offense is
deliberate and results in serious environmental contamination or human
health hazard, the need to achieve deterrence through the application of
strong punitive sanctions will almost always exist.
The goal of deterrence may, on\>ccasion, justify a criminal referral for an
offense that appears relatively minor. This would be true, for example,
for offenses that—while of limited importance by themselves—would have a
substantial cumulative impact if commonly committed. This might also be
true when addressing violations by an individual with an extended history
of recalcitrance and noncompliance.
The Compliance History of the Subject(s)
The compliance history of the subject of a potential criminal referral also
should be considered in determining the appropriateness of criminal
sanctions. As a general rule, criminal sanctions become more appropriate
as the incidents of noncompliance increase. The occurrence of past
enforcement actions against a company or the failure of administrative/
civil enforcement, is certainly not a prerequisite to a criminal referral.
However, a history of environmental noncompliance will often indicate the
need for criminal sanctions to achieve effective individual deterrence.
The Need for Simultaneous Administrative/Civil or Enforcement Action
Simultaneous administrative/civil and criminal enforcement proceedings are
legally permissible, United States v. Kordel, 397 U.S. 1, 11 (1970), and on
occasion are clearly warranted. However, separate litigation staffs would
need to be appointed on initiation of a grand jury investigation, if not
before. Furthermore, the pursuit of simultaneous proceedings would provide
fertile grounds for legal challenges to one or both proceedings that, even
if unsuccessful, would consume additional time and resources. Thus,
parallel proceedings should be avoided except where clearly justified.
In this regard, it should be noted that some of the goals of a criminal
prosecution, including deterrence, can be achieved through an
administrative or civil action that secures substantial civil penalties in
addition to injunctive relief. Moreover, recent experience indicates that
while some eases may result in periods of Incarceration, criminal sentences
will often be limited to monetary fines and a probationary period. In
light of this reality, the use of the additional time and resources
necessary to pursue a criminal investigation is often not justified.
FIFRA Cn^pi < «Mii"*/Hnf orrrmcnt 9-4 Gnida"?* Manna 1 1983
-------
Chapter Nine Original Enforcement
Criminal Enforcement Priorities
The Criminal Enforcement Division, in conjunction with the Agency program
offices, has developed investigative priorities in each of the Agency's
program areas. The purpose of this effort is to focus the limited
investigative resources of the Agency on the most serious cases of
environmental misconduct. These priorities are fluid and will be modified
to reflect additional regulatory programs in the Agency as they develop.
In addition, the creation of these priorities does not preclude the
possibility of criminal. referral for conduct not falling within these
Investigative priorities .
The order of listing is random. It is not Intended to create a ranking
within the priorities for a statute. Nor is any statute given higher
priority than another. The priorities for FIFRA are listed below.
Failure To Report Information on the Unreasonable Adverse Effects of a
Registered Pesticide: Section 14(b) of FIFRA, 7 U.S.C. §1361(b),
£$ -for the knowing violation .of any
•provision of ±he Act. 'Section T2Ca)(2)(N). provides 'that it is unlawful to
fall to submit information required by Section 6(a)(2). This section
requires a registrant to report to EPA any information that the registrant
obtains after the pesticide is registered regarding unreasonable adverse
effects of the pesticide on the environment. A high investigative priority
will be placed on knowing violations of this reporting requirement.
Falsification of FIFRA Records. Sections 12(a)(2)(M) and 14(b) of FIFRA, 7
U.S.C. SSl36j(a)(2)(M) and 1361(b), establish misdemeanor penalties for the
knowing falsification of specified records maintained or filed under FIFRA,
Including registration data. A high investigative priority will be placed
.«*•«• <•»< fry frhaf tma— of TOFSA, 7
U.S.C. SSl36J(a)(2)(G) and 1361(b), establish misdemeanor penalties for the
knowing use of a pesticide in a manner Inconsistent with its labeling. If
FJJTKA uompJJLance/ Bozorcement 9-5 Guidance Manual 1983
-------
Chapter Nine Original
referred by a State with primary use enforcement responsibilities, a high
investigative priority will be assigned to misuse cases that result in, or
threaten, significant environmental contamination or human health hazard.
Illegal Distribution of Unregistered Pesticides. Sections 12(a)(l)(A) and
14(b) of FLFRA, 7 U.S.C. SSl36j(a)(l)(A) and 1361(b), establish misdemeanor
penalties for the knowing distribution, receipt, etc. of an unregistered
pesticide. The pesticide registration process outlined in Section 3 of
FIFRA, 7 U.S.C. Sl36a, is the cornerstone of EPA's program to monitor and
regulate the safety of pesticides. A high investigative priority will be
placed on illegal transactions involving unregistered pesticides that
result in, or threaten, significant environmental contamination or human
health hazard.
Procedures for the Investigation and Referral of a Criminal Case
Investigation
The Criminal Enforcement Division maintains the primary role in the
investigation and referral to the Justice Department of allegations of
criminal misconduct. The division is staffed by experienced criminal
Investigators located in each of five area offices and EPA Headquarters.
(Exhibit 9-1 contains a list of the division's area offices and their scope
of responsibility.)
An initial "lead" or allegation of potential criminal activity may come to
the Agency from any of several sources, including State agencies, routine
compliance inspections, disgruntled plant employees, or citizen groups.
Regardless of its source, it should be transmitted immediately to the
Special-Agent-In-Charge of the responsible field office, who will open a
case file* and assign a criminal investigator (known as a Special Agent) to
the lead for follow-up.
If the reliability of the lead is unclear, the Special Agent will conduct a
preliminary inquiry solely to determine the credibility of the allegation
and to make an Initial assessment of the need for more thorough
investigation. This initial inquiry will be brief and will not involve
extensive commitment of resources or time. Its sole purpose is to reach an
initial determination on the need for a complete investigation.
* The opening of a case file does not commit the Agency to proceed with a
criminal referral at the culmination of the investigation; nor does it
reflect an Agency decision that criminal conduct has occurred. All
enforcement options remain open and should be considered until referral
to the Justice Department.
feUFJLA tiaapliasice/Snforceaent1F6 QaLAanrr Manual 1983
-------
Chapter Nine Criminal Enforcement
Once a determination has been made by the Criminal Enforcement Division
that a thorough investigation is warranted, the Special Agent will
immediately contact the Regional Counsel in the Region where the
investigation is to be conducted. The Regional Counsel will ensure that no
civil enforcement action is pending or contemplated against the
Investigative target and will assign an attorney to work with the
Investigator during the case development process. The regional attorney
and Special Agent will also contact the appropriate regional program office
to ensure that no administrative enforcement action is pending or
contemplated. In addition, where the need for technical support during the
Investigation is contemplated, the regional program office will be asked to
assess the availability of technical resources and, when appropriate, to
designate a specific Individual to work with the Special Agent during the
course of the investigation.
While simultaneous administrative/civil and criminal enforcement actions
are legally permissible, they will be the exception, rather than the rule.
As a general rule, an administrative or civil proceeding will be held in
abeyance pending the resolution of the criminal investigation. One
exception to this general rule will be those situations in which emergency
remedial response is mandated. In these situations, however, the criminal
investigation will not be initiated without the prior approval of the
appropriate Regional Counsel and Enforcement Counsel.
Management of the Investigation will be the primary responsibility of the
Special Agent, acting under the supervision of the Field Office
Special-Agent-In-Charge. The Special Agent will be responsible for
determining the basic investigation approach and will take the lead in
conducting interviews; assembling and reviewing records; planning and
executing surveillances; coordinating with State, Federal, and local law
enforcement agencies; planning and executing searches; developing
Informants; ?and performing otter Investigative matters. A technical person
•wHT-workTrLtfc the Special Agent dnriiig those portions of an Investigation
requiring technical expertise.
Notice of Contemplated Proceedings
Section 9(c)(l) of FIFRA requires the Agency to give notice and an
opportunity to be heard to those persons* against whom enforcement
TTwr^Bil'l IIIBT t -'mAldi 4zlse'- '.&• a.Tevolt
-------
Chapter Nine Criminal Knfor
Referral
A referral recommendation will be developed when the independent field
investigation has been exhausted, or when it can or should proceed no
further without the initiation of a grand jury investigation by the Justice
Department. Where a referral is made for further investigation by a grand
jury, the task of creating a complete referral package is difficult since
the case has not yet been completely developed. Therefore, a streamlined
ferral process has been initiated for these cases to eliminate inefficiency
and to provide for the more natural development of criminal cases. See
Exhibit 9-2 for a copy of these procedures. At this point, the results of
the investigation will be assembled in a referral package. The preparation
of the overall referral package will be the responsibility of the regional
attorney assigned to the investigation, working in conjunction with the
Special Agent.
Once the package is prepared, it will be reviewed by the S pedal-Agent -
In-Charge and the Regional Counsel, who will act as joint signatories.
Technical portions of the package will also be reviewed by the regional or
Headquarters program office, or the NEIC—depending on the source of
technical support. During this technical review, the availability of
technical resources to support litigation should also be reviewed and
specifically confirmed by the appropriate technical office.
Following completion of the referral package and concurrence in the
referral recommendation by the Special-Agent-In-Charge and the Regional
Counsel, three copies of the referral package and all exhibits should be
directed to the Associate Enforcement Counsel for Criminal Enforcement,
Criminal Enforcement Division (LE-134E), U.S. Environmental Protection
Agency, 401 M Street, S.W., Washington D.C. 20460. No copies of the
referral package will be sent to the local United States Attorneys Office
or the Justice Department until Headquarters has reviewed and approved the
referral.
If either the Special-Agent-In-Charge or the Regional Counsel believe the
referral should not be made, that official will Include a statement of the
reasons underlying this position and make an alternative recommendation
(i.e., close out investigation, change to civil referral, change to
administrative action, etc.). The package will, nevertheless, be directed
to the Criminal Enforcement Division for review; a final referral decision
will be made by the Associate Administrator for OLEC (or the Associate
Administrators designee).
The Headquarters review will focus on the adequacy of case development;
adherence to the criminal enforcement priorities of the Agency; legal
issues of first impression; consistency with related program office policy;
and general prosecutorial merit. In cases Involving particularly complex
issues of law, the Criminal Enforcement Division will also consult with
General Counsel attorneys. If, following this review process, the referral
recommendation is accepted, referral packages will be directed simulta-
neously to the Justice Department and the appropriate United States
Attorneys Office. Appropriate cover letters will be drafted by the
Criminal Enforcement Division.
FXFRA £m«pllaiice/K"*oTre?m'p"«' 9-8 Guidance *«•""*1 1983
-------
Chapter Nine Cr*«rf«*i Enfor
Referral Package Format
Referral packages should be prepared in accordance with the Uniform
Criminal Referral Package Format effective on January 1, 1982. (See
Exhibit 9-3.). However, referral packages prepared for those cases
referred for further investigation by a grand Jury should be prepared in
accordance with the Hay 9, 1983 guidance concerning referral procedure for
criminal cases (see Exhibit 9-2).
References
Agency employees Who are involved in the investigation and referral to the
Department of Justice of allegations of criminal violations of FIFRA should
familiarize themselves with the Agency documents listed below. Although a
digested form of some of this material is contained in this section, most
of the items are not covered in detail. The documents are contained in the
General Enforcement Policy Compendium, or copies of the documents may be
f*^ "P v--tbe' £ridsal Enforcement Division* RP^ .fleadouarters •
• General Operating Procedures for the Criminal Enforcement Program
(October 31, 1982);
• Criminal Enforcement Priorities;
• Agency Guidelines for Participation in Grand Jury Investigations;
• Agency Guidelines for the Use of Administrative Discovery Devices
in the Development of Potential Criminal Cases;
• Policy and Procedures on Parallel Proceedings at the EPA.
-------
Chapter Nine
Exhibit 9-1
Criminal Enfor
t Divisions: Field Offices
Philadelphia Field Office
(Regions I, II and III)
Special-Agent-In-Charge
Criminal Enforcement Division
EPA - Region III
Curtis Building
6th & Walnut Streets
Philadelphia, PA 19106
PTS 597-1949
Atlanta Field Office
(Regions IV and VlT~
Special-Agent-In-Charge
Criminal Enforcement Division
EPA - Region IV
345 Courtland Street, N.E.
Atlanta, GA 30365
PTS 257-4885
Chicago Field Office
(Regions V and VII)"
Special-Agent-In-Charge
Criminal Enforcement Division
EPA - Region V
230 South Dearborn Street
Chicago, IL 60604
PTS 886-9874
Seattle Field Office
(Regions IX and xT
Special-Agent-In-Charge
Criminal Enforcement Division
EPA - Region X
1200 6th Avenue
Seattle, WA 98101
PTS 399-9874
Denver Field Office
(Region
Special-Agent-In-Charge
Criminal Enforcement Division
National Enforcement Investigations
Center
Box 25227
Denver Federal Center
Denver, CO 80225
PTS 234-2158
* The Denver Field Office is located at the National Enforcement
Investigations Center. In addition to Region VIII cases, its
responsibilities include cases that overlap the Jurisdiction of
field offices. Assignment of these cases will be the responsi-
bility of EPA Headquarters.
FIFRA Go*pliance/Enfor
9-10
Guidance Manual 1983
-------
Chapter Nine Exhibit 9-2
Referral Procedure for Criminal Cases
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON.
MAT 9BS3
i CM>»m.i«iiMT
MEMORANDUM
SUBJKCTs Referral Procedure for Criminal Cases
ntOMs Courtney M. price (\CuJ^ ^ .w
Acting Associate Administrator
'Counsel
TO* Regional Counsels, Regions I-X
All SAZCs, Criminal Enforcement Division
Onder the current General Operating procedures, a
criminal referral to the justice Department may be made for
one of two reasons) for prosecution (where the investigative
effort is complete and we believe the crime is capable of
being proved); and for further investigation in conjunction
with the Justice Department.
In the latter situation—"referrals for further
investigation*—the scope of the ultimate prosecution, and
even the identity of defendants, may well not be known. The
•of ^iie case xattwr ^ttosn -tto -.jJicurporsta «£iaal ••Agency oacisioni
on the viability or advisability of a prosecution. As such,
it can and often does occur at an early stage in the case
development process.
In these 'situations, the task of creating a complete
referral package is difficult—in light of the fact that the
ease has not yet been completely developed. Zt is also time
consuming, and thus can prejudice the investigation. The
time spent in attempting to prepare a complete referral
fcegJa«*i
i, "
-------
Chapter Nine
Exhibit 9-2
Referral Procedure for Criminal Cases
-2-
To eliminate this inefficiency, and provide for the more
natural development of criminal cases, a shortened referral
package will be used where the purpose of the referral is
for further investigation in. conjunction with the Justice
Department, rather than to incorporate a complete investigative
package. (The format appears as Attachment A.)
This package will provide a basis on which to make the
best possible assessment both at the Regional level and at EPA
Headquarters on the merits of the potential case. 'At the
same time, it will provide a vehicle for the more rapid
transmission of our investigative work product to prosecutors
with the Justice Department, who will then become part of the
criminal case development team.
The modified referral package will normally be prepared
by the Special Agent assigned to the investigation, who will
be most familiar with investigative activity to date. The
package must be prepared in close coordination with Regional
legal and technical personnel assigned to the investigation.
As under existing procedures, the referral will be approved by
both- the Special-Agent-in-Charge and the Regional Counsel
before transmission to EPA Headquarters for approval. Cover
letters to the appropriate United States Attorney and to the
Land and natural Resources Division will be drafted at EPA
Headquarters, for the signature of the Associate Administrator.
Questions on this procedure should be directed to
Peter Beeson (382-4543). It is our hope that these modified
procedures will ensure the most efficient possible development
of our c- "inal cases.
Attachments
FIFRA Compliance/Enforcement
9-12
Guidance Manual 1983
-------
Chapter Nine ggfaibit 9-2
Referral Procedure for Criminal Cases
ATTACHMENT A
r
KEMORANDOM
FXDM: Special-Agent- in-Charge
Field Office
Criminal Enforcement. Division
Regional Counsel
, Region
THRO:
Associate Enforcement Counsel
Criminal 'Enforcement Division
Enforcement Counsel
TOi - .
Associate Administrator and General Counsel
Attached for your consideration are aaterials assembled
by this Agency in a criminal investigation against
It i» tte fiplaian «f oar off!
that further development of this case should proceed in
close coordination with the- Justice Department. An overview
• »
of the nature of this investigation is provided below for
your information. We recommend immediate referral to the
(O.S. Attorney/Federal District) and to the Land and Natural
FIFRA Qmpllance/Eoforc^nt 9-13 Guidance Mana*X_1583.
-------
Chapter Nine Exhibit 9-2
Referral Procedure for Criminal Cases
REFERRAL PACKAGE
(Mane of Case)
(Hame of District)
Z. Identity of Subjeet(s) of Investigation*
Individual(a)i
1. -Not*
2. Title
3. Age
4. Borne/work address
5. Currant employment
6. Criminal record, if any
7. Prior EPA enforcement action
8.- Other partinant information
Corporation(s)i
1. Base and nature of business
2. Parent company
3. Susidiaries
4. Address of faeility(ies) associated
with offenses
S. State of incorporation
4. Size of company
7. Prior EPA enforcement action
t. Other pertinent information
, •
II. Nature of Activity under Investigation
1. Location and duration
2. Venue
3. Significance of Activity (A brief statement
of reasons underlying the need to address
the misconduct with criminal sanctions.)
FIFRA Compliance/Enforcement 9-14 Guidance Manual 1983
-------
Chapter Nine Exhibit 9-2
Beferral Procedure for CrlavLnal Cases
-2-
XZZ. Statutory Offenses
l/~ Applicable Statutes; (A summary of Federal
environmental «n3"~related laws potentially
violated by the activity, accompanied by
pertinent citations to th* United States
Code and the Code of Federal Regulations)
2. evidence Gathered to Bate: (A brief summary of
available evidence, accompanied-%y copies of
selected investigative reports prepared within the
. Criminal Enforcement Division that reflect this
evidence (for example, surveillance reports or
Jjterview summaries.)
XV. Personnel Assigned
1. Special Agent
2. Regional Attorney
3* Technical Staff
FXFRA Compliance/Enforcement 9—15 Guidance M«MMI 1983
-------
Chapter Nine Exhibit 9-3
Page
VI. Legal Issues
VII. Environmental Impact
VIII. Becommendation
Appendix A. List of Witnesses
Appendix B. List of Exhibits
Appendix C. Exhibits ...•
A discussion of each Individual section follows.
Body of the Report
Section I—Introduction. The introduction will provide a synopsis of
the investigation to orient the reader. It should be brief. A
detailed discussion of the evidence will be provided in a subsequent
section of the report.
Within the introduction, the following areas should be addressed:
• The identity of the corporate and Individual subject(s) of
the investigation;
• A brief description of the nature and duration of the
criminal activity under investigation;
• Venue (i.e., the Federal district(s) in which the offense
occured). If venue lies in more than one district, an
explanation should be Included for the Region's choice of
one Federal district over another for referral; and
• The regional recommendation underlying the referral.
Section II—Statutory Authority. This section should include the
statutory provisions that provide the basis for the referral.
Pertinent portions of each statute should be quoted in full, followed
by a listing of the elements of each offense that must be provided in
a subsequent prosecution.
Section III—Subjects of the Investigation. This section will be
used to provide pertinent background data on the subjects of the
referral. For each individual subject, the following
Information should be included:
• Name and title;
• Approximate age;
• Home and work addresses;
• Mature of current employment; and
• Criminal record, if known.
Qmpliance/Enforceaent 9-17 Guidance Mamaa! 1983
-------
Chapter Nine Exhibit 9-3
For each corporate subject, Include:
« Name of company and parent corporation, if appropriate;
• Complete address of company;
• Complete address of facility associated with offenses;
• State of incorporation of corporate subjects;
• Registered agent for service; and
• A brief statement of the business, profits, and size of the
company.
Section IV—Enforcement and Regulatory History. This section should
include a description of all known enforcement activity (State and
Federal) relating to environmental matters taken against the subject
in ate past. , In addition, any previous efforts by EPA to remedy .the
present problem through Informal, administrative, or civil means
should be discussed.*
Finally, if the Region is recommending that the criminal referral be
pursued simultaneously with a parallel civil/regulatory proceeding
against the subject(s), this fact should be highlighted. The steps
taken in the Region to ensure proper coordination and separation of
the parallel proceedings should also be described.
Section V—Description of the Evidence. This section will constitute
the major portion of the report. Its function is to present the
ilts /of .^the Megaton** investigative activity and to demonstrate how
the criminal -conduct •uncovered1 "in that Investigation •will be 'proved
at trial.
Background. There is no one proper way to present the evidence. Any
method that is clear and organized is acceptable. A chronological
approach is recommended, however, both because it is simple to follow
and because prosecutors often present their evidence before the grand
.Jury and at^trial within a chronological framework.
Regardless of the organization chosen, all substantial facts detailed
in this section should be supported by some item of evidence—a
witness Interview, a letter from EPA correspondence files, an NPDES
permit, results from a compliance Inspection, technical analysis of a
lakes :**M1^ ifrfT*"C Chi* xeport &o ovoid duplication.
If facts relating to past regulatory or enforcement activity are
discussed in subsequent sections (e.g., as evidence of a "willfull"
or "knowing" violation), only a brief summary should be included In
this section.
FXFRA Compliance/Enforcement 9-18 Guidance tirnmsT 1983
-------
Chapter Nine Exhibit 9-3
pollutant sample, a photograph, etc. Copies of these items of
evidence should be included, in turn, as exhibits to the litigation
report, for easy reference by the reviewing personnel at EPA
Headquarters, the Justice Department and the United States Attorneys
Office.* The existence of evidentiary support for the factual
allegations contained in the referral is crucial. The end goal of
the referral process is a successful prosecution. The question is
not, ultimately, what happened but whether it can be proved at trial.
Required Information. In completing Section V, the following items
should be included (although not necessarily in separate portions of
the section):
• A detailed review of all facts constituting the alleged
criminal behavior. Speculation should be avoided. If the
evidence currently available does not support one or more
elements of the offense(s) under investigation, this should
be highlighted, since this will assist in focusing future
investigation by grand Jury or otherwise;
• Any statements by the subject(s) of the investigation
pertaining to the subject matter of the investigation.
Written, as well as oral, statements should be included;
• Evidence indicating willful or knowing behavior by the
investigative targets;
* The following paragraph is an example of the chronological
presentation of evidence supported by exhibits:
On May 1, an NPDES permit was issued to Company X
that contained the following provisions...(see
Exhibit 1, NPDES permit). On May 5, the plant's
waste treatment system ceased operation. (See
Exhibit 2, Interview Report of Informant A.) At that
time, Company X faced several imminent production
deadlines. (See Exhibit 3, Sales Contract Between
Company X and Company Y.) Production continued,
resulting in the discharge of raw sewage between May
5 and July 5. (See Exhibit 4, Analytical Reports
Provided by Former Chemist of Company X.) Discharge
monitoring reports submitted by Company X for this
period nevertheless falsely reported compliance.
(See Exhibit 5, Company X DMRs.) Moreover, In
response to an EPA Inquiry, Company X reported the
successful operation of its waste treatment system on
July 1, almost two months after the breakdown. (See
Exhibit 6, Letter, Company X to EPA.)
FIFRA Qr*Bpi -t *nc*/Vnf*vrf«w«t- 9-19 Guidance Manual 1983
-------
Chapter Nine Exhibit 9-3
• Any facts that bear on the reliability of the available
evidence. This might include, for example, equipment
breakdowns during technical sampling, or prior inconsistent
statements of a government witness. Ultimate conclusions
should not be made on the reliability of a particular witness
or piece of evidence in the report; rather, simply include
all facts relevant in assessing the reliability; and
• A complete chronology of contacts between EPA and the
subject (s) concerning the environmental problem underlying
the: referral.
Section VI— Legal Issues. In preparing a case for trial, the Justice
Department's prosecutor will want to consider both the weaknesses in
the government's case and the affirmative defenses available to the
defendants. In completing this portion of the referral package,
consider :
J)ef ""PCS.* -. Thin .night .Include , -,for example* .Arguments
that .a. di scharge of pollution WAS not Into a navigable water
for the United States and therefore not regulated under the
Clean Water Act; or that dumping activity did not Involve a
"hazardous waste" identified or listed under the Resource
Conservation and Recovery Act.
• Evidentiary Challenges. This might Include, for example,
challenges to the methods used to obtain evidence, or to the
government's ability to authenticate evidence due to a break
in the chain of custody.
• Equitable Defenses . This might Include, for example, EPA's
'^SffcV 3 1 fT ^ **"^?r^regu3 ytyy ' it*"mfn*f
-------
Chapter Nine Exhibit 9-3
Section VIII—Recommendation. The report should conclude with a
specific recommendation for the appropriate future course of the
case. Normally, one of two recommendations will be made:
• Further Investigation. Where the use of an Investigative
grand jury is contemplated (for example when witnesses are
not talking and compulsory process is required), the referral
will recommend further investigation. In this situation, an
additional recommendation for prosecution may or may not be
appropriate. If the evidence In hand provides an adequate
basis on which to base such a judgment, a recommendation for
prosecution under specific statutory provisions should be
included. If the available evidence is not sufficient, a
prosecutorial recommendation should be withheld pending
completion of the grand jury work and consideration of the
results.
• Prosecution. If the field investigation Is complete, the
conduct has been documented, and grand jury work is
required—if at all—only to present the evidence and secure
an indictment, the referral should Include a recommendation
for prosecution under specific statutory provisions.
Following the specific recommendation, the report should include the
best available projection of resources necessary to bring the case to
resolution. This projection should discuss investigative, technical,
and legal resources and should indicate the Regional Office's
ability to provide these resources.
Appendix A—List of Witnesses. This section is particularly useful
to prosecutors supervising the case and will frequently be used in
issuing subpoenas, planning a grand jury presentation, and estimating
the scope of the prosecution. For each witness, the writer should
provide all available background data (e.g., name, residence, work
address, telephone numbers, etc.) and a brief summary (one paragraph)
of the matters on which testimony is anticipated. This section
should include not only the key substantive witnesses, but also those
who will establish the appropriate foundation for documentary or
physical evidence (e.g., photographers, chain of custody witnesses,
record custodians, etc.). Confidential Informants should not be
Identified In this list.
Appendices B and C—List of Exhibits and Exhibits. Copies of every
substantial piece of documentary evidence in the case should be
Included as an exhibit to the report* and should be Indexed to allow
* Exceptions will be made if the exhibit is too bulky or otherwise
inappropriate for inclusion in the report. Pollution samples, for
example, will remain with the regional offices; however, copies of
reports reflecting their analysis should be included where possible.
FTFEA CoBpllance/Enforceaent 9-21 Guidance Ifennal 1983
-------
Chapter Nine _Exhibit 9-3
for easy reference in the main body of the report. Original exhibits
or documents should not be included in the referral package"if this
can be avoided. They will normally be used as evidence in trial, and
should be retained in the Regional Office until other arrangements are
made with the Justice Department prosecutor supervising the case.
ice/Kiiforceaeat 9-22 i>i^Bncg iton^i 1933
-------
Chapter Ten
Post-Settlement Enforcement
Chapter Contents Page
Monitoring Settlement Agreements 10-1
Enforcement of Settlement Agreements 10-1
FIFKA Compliance/Enxoroent 10-1
-------
Chapter Ten Contents
FIFBA Govpllance/Enforcaent 10-ii Qildaiice Manual 1983
-------
Chapter Ten
Post-Settlement Enforcement
Monitoring Settlement Agreements
The Agency often settles an administrative civil penalty action with a
violator prior to the actual hearing* thus obviating the need for costly
litigation. Such settlements under FIFRA take the form of consent
agreements and consent orders.
Consent agreement negotiations focus primarily on the appropriate size of
the penalty to be imposed on the violator. Adjustments to the penalty are
made by considering such factors as the size of the business of the person
charged, the effect on the person's ability to continue in business, and
the gravity of the violation. However, remedial performance as a means of
remitting a civil penalty assessment is generally not used in FIFRA consent
agreements and consent orders.
In order to ensure continued compliance with FIFKA as well as with the
terms of the consent agreement and order, the Agency performs
post-settlement monitoring, which includes:
• Follow-up inspections by EPA or State personnel (depending upon
whether the State has primacy or a cooperative agreement, or both)
as a part of routine assignments under a neutral inspection scheme;
and
• Ensuring that the violator has paid the stipulated civil penalty.
Enforcement of Settlement Agreements
Collecting fines that have been imposed under the terms of a consent
agreement and consent order should be followed up on a timely basis by
government personnel. The procedures and policies for collection action
referrals to the United States Attorneys Office are set forth in Appendix
4.
FIFKA comp-Liance/BOXorcBeat 10-1 Guidance aanuax 1903
-------
Chapter Ten
Post-Settl
,t Bnf or
Follow-up inspections that reveal continuing violations of a settlement
agreement could subject the violator to additional civil penalty actions
or, in fact, subject the person(s) to possible criminal sanctions under
Section 14(b) of FIFRA. (Consult Chapter Five for the level of action
guidance appropriate in these situations.)
•*'•
FIFKA umpi i «nre/aaro.
Guidance
-------
Chapter Eleven
Special Considerations
Chapter Contents Page
FIFRA Section 7 Confidential Information 11-1
Disclosure of Confidential Information 11-3
compliance/mrorce»enc 11-1 Guidance IMMMIMI 1983
-------
Chapter Eleven Contents
FIFMA Compliance/Bitorceaent 11-11 Guidance •••••••••• 1983
-------
Chapter Eleven
Special Considerations
FIFRA Section 7 Confidential Information*
Under TIFSA Section 7 jand Its implementing ^regulations , .persons who produce
pesticides or active ingredients used in producing pesticides must register
their establishment with and submit annual data to EPA. Failure to do so
is a violation of Section 12(a)(2)(L). Because some of the data submitted
in connection with Section 7 is confidential and may be used as part of an
active enforcement case, the following section on confidentiality and
disclosure of information is included in this manual.
Authority
.Section 7£d) of -FiFfiA states: ."Any Information submitted to the
of the
pesticides or active ingredients used in producing pesticides produced,
sold, or distributed at an establishment shall be considered confidential
and shall be subject to the provisions of section 10."
Section 10(b) of FIFRA states: M...[T]he Administrator shall not make
public Information which in his judgment contains or relates to trade
secrets or commercial or financial information obtained from a person and
Section 12(a)(2)(D) of FIFRA makes it unlawful for any person "to use for
his own advantage or to reveal, other than to the Administrator, or
officials or employees of the Environmental Protection Agency or other
Confidential Information wobmitted pxirsTxant :4t» -Section 3 of 71FBA Is
rarely used in case development work. If the need to use Section 3 data
arises, EPA's FIFRA Confidential Business Information Security Manual
should be consulted.
FIFRA Compliance/Enforceaent 11—1 Guidance tfnrril 1983
-------
Chapter Eleven Confidential Tnforaatlon
Federal executive agencies, or to the courts, or to physicians, pharma-
cists, and other qualified persons, needing such information for the per-
formance of their duties, in accordance with such directions as the
Administrator may prescribe, any information acquired by authority of this
Act which is confidential under this Act."
Penalties
FIFRA Section 10(f) states that any officer or employee of the United
States or former officer or employee of the United States who willfully
discloses information subject to Section 10(b) is subject to a $10,000
penalty, or Imprisonment for not more than one year, or both. Contractors
who are furnished confidential information as authorized by Section 10(e)
are considered employees and are subject to these penalties.
Document Control
Chapter 12 of the EPA Securities Manual is applicable to FIFRA privileged
information and should be referenced in matters pertaining to document
control. The chapter describes the policies, procedures, and responsi-
bilities regarding physical control of priviledged Information received by
an officer or employee of EPA under a pledge of confidence from a person,
firm, partnership, corporation, or association.
Section 7 Information
Procedures for Determining Confidentiality. Under EPA's Freedom of
Information Act (FOIA) regulations in 40 C.F.R. Part 2 Subpart B, a
procedure has been set up for determining whether Information is
confidential or nonconfidential.
Under this procedure, if information submitted to EPA has been claimed as
confidential, the Information may not be disclosed to the public until a
determination has been made that the Information is not confidential, the
affected business has been given 30 days' notice of the determination, and
the affected business has been given an opportunity to challenge the
determination. Final FIFRA determinations are made by the Office of
General Counsel.. However, program offices may make initial determinations
(see 40 C.F.R. §2.204). If the program office makes the determination that
the Information may be entitled to confidential treatment, the office must:
• Deny any FOIA request for the Information;
• Write to the affected business asking It to substantiate Its claim;
and
» Refer the matter to the EPA legal office for a final
confidentiality determination.
PIFitA tiOBpllance/anforceaent Ttt OnrlHiaiM*«» Mssraal 1983
-------
Chapter Eleven Confidential Information
If the program office determines that the Information In question is
clearly not entitled to confidential treatment, the program office must
give notice of the decision to the affected business and, after the notice
period ends, disclose the information to the requestor.
Confidential Versus Nonconfldential Information* Agency determinations as
to the confidential nature of Section 7 data are as follows:
• Confidential Information. Information submitted to the Agency by a
producer operating an establishment and deemed confidential under
Section 7 Includes .the amounts of a pesticide, or if applicable,
active .ingredients used-in producing pesticides that:
- Are currently being produced,
- Were produced during the past year, and
- Were sold or distributed during the past year.
• Nonconfidential Information. Information submitted to the Agency
by a producer operating an establishment and deemed nonconfidential
Bunder "Section 7 Jnr3u*1d00 or-active
ingredients «sed In producing pesticides «old or distributed at an
establishment. In addition, the following Section 7 Information is
available on pesticide labels (which are available to the public)
and, at the discretion of PTSCMS, is not considered confidential:
- The establishment name, number, and address, and
- For each pesticide or active ingredient used in producing
pesticides, the product number
-------
Chapter Eleven Confidential Information
(Wliaace/Eaforceaeat IF* Goidanee Manual 1983
-------
Appendices
Chapter Contents Page
1 Neutral Administrative Inspection Scheme .A-l
Producer Establishments A-l
Marketplace Inspections A-3
Restricted Use Pesticides A-3
Experimental Use Permit A-4
Books and Records Inspections A-4
2 Notices of Judgment A-5
Authority A-5
Agency Policy - A-5
. A-6
Procedures A-6
Distribution A-7
Exhibit A-l: Notice of Judgment After Seizure A-8
Exhibit A-2: Notice of Judgment of Criminal
Proceeding A-9
Exhibit A-3: Notice of Judgment of Civil Penalty
Proceeding A- 10
3 Sample Record Status and Permanent
Abeyance Procedures A-ll
Sample Record Status A-ll
Permanent Abeyance (PA) Procedures A-12
Records Retirement and Retrieval A-12
F1FKA Pomp I 1 ance/BQ±orcp»Pnt A-l O»1|ilimpf Mm^i 1983
-------
Appendix Contents
4 Collection of Civil Penalty Assessments A-13
Authority A-13
Policy A-13
Collection Procedures A-13
Types and Methods of Payment A-15
Suspension or Termination of Collection Activity A-16
Referrals Procedures A-17
Exhibit A-4: Chapter 5-FCCS A-18
Exhibit A-5: Model Demand for Payment Letter A-30
Exhibit A-6: Model Final Demand for Payment Letter A-31
Exhibit A-7: Claims Collection Litigation Report A-32
5 Expert Witnesses A-69
Selection of Witnesses A-69
Procedures for Requesting Witnesses A-70
Appearing as a Witness A-70
6 Penalty Policies A-75
Guidelines for Assessing Civil Penalties Under
Section 14(a) and Citation Charges for Violations
of FIFRA A-77
Guidelines for Enforcing the Child-Resistant
Packaging Regulation A-89
Memorandum (22 Apr 1975)—Interim Deviation from
Civil Penalty Assessment Schedule A-107
Memorandum (11 Jun 1981)—FIFRA Enforcement Policy;
Interim Penalty Guidelines A-109
7 Additional Sources of Compliance/Enforcement Information A-121
-------
Appendix
1 Neutral Administrative Inspection
Scheme
The following appendix outlines example criteria that may be applied by EPA
Headquarters and Regional Offices (In cooperation with those States that
have EPA Enforcement Grants) In selecting an activity for a programmed
inspection. Other acceptable criteria may be used in lieu of those
examples listed below. "For cause" or unprogrammed inspections, however,
are :not subject ;to neutral Inspection scheme requirements. (See Glossary
for definitions of programmed and unprogrammed inspections.)
All programmed Inspections are conducted within the guidelines and
priorities set forth in the Pesticides and Toxic Substances Enforcement
Division's FIFRA Inspection Manual.
Producer Establishments
frffdw**r-^»*"^M•fa*****m-:<»'*<* Inspected at least /once every two years.
DuBever, nbere violations of the •°ftet-jhave been observed during a programmed
inspection, a follow-up Inspection is to take place within six months after
the programmed inspection. These follow-up inspections continue at
six-month intervals until the violations have ceased.
Each Regional Office should have the following lists for each State under
its jurisdiction:
;3jfc»t -of t3iose ^producer •stafaJdsfamegts :£ha£ Jiave jbeen
Inspected during the past two years;
• Category II—a list of those producer establishments that have not
been Inspected during the past two years; and
• Category III—a list of those producer establishments that have
.Hhere **?-0?-a:tliOlllg
FIFRA Compllance/Kiforcement A-l Goidanre Manual 1983
-------
Appendix Heutral Administrative Inspection
Each list contains both the name and EPA establishment number of the
producer. Producer establishments in Categories I and II are arranged
according to the numerical sequence of their establishment numbers.
Selection of an establishment for inspection is based upon the sequence
contained in the Category II list.
When a Category II establishment is inspected and found in compliance, it
is placed on the Category I list in numerical sequence according to its
establishment number. However, a Category II establishment may be
scheduled for a follow-up inspection and placed on the Category III list if
a programmed inspection uncovers a violation of the Act. Such a follow-up
inspection is to take place within six months after the programmed
inspection. Follow-up Inspections may continue at six-month intervals
until no further violations are found. Once found in compliance with the
Act, the Category III establishment is placed on the appropriate Category I
list. Placement of an establishment on the Category I list, however, does
not preclude the Agency from conducting a subsequent unprogrammed
inspection of that establishment under the provisions of the warrants
section, FIFRA $9(b), when a violation of the Act is later suspected.
Ordinarily, the scheduling of Inspections Is carried out in accordance with
the numerical scheme of the Category II list. Nonetheless, in recognition
of the need to efficiently utilize Regional Office resources, the following
adjustment factors may be employed to modify the selection:
• Location of the establishment. For example, two establishments
located in the same geographic area may be inspected at the same
time despite their numerical position in the Category II list so
long as one of the establishments has been scheduled according to
the numerical scheme;
• Seasonal nature of operations at the establishment;
• Size of the establishment, number of employees, and probable length
of time required for Inspection. For example, if only two days are
available to conduct a programmed inspection, then an inspection
requiring more than two days should not be scheduled at that time;
and
• Specific^special circumstances. For example, inspection of a plant
that Is not operating normally because of a strike, should not be
scheduled at that time.
Any Category II establishment that is not scheduled for inspection because
of the application of an adjustment factor retains the same priority on the
list that it would have had but for the adjustment.
The above adjustment factors are designed to promote the most efficient use
of compliance personnel and resources and may affect the scheduling of an
establishment inspection at any step in the selection process.
FIFBA Co«pliance/Baforce»ent 1^2\ grfdgrn*i» Mmmal
-------
Appendix Beutral Ad^*"-*Ptratlve Inspection
Marketplace Inspections '
It is the Agency's Intention to conduct a regular inspection at each
marketplace establishment at least once every four years. However, where
violations of the Act have been found during a programmed inspection, a
follow-up inspection is to take place within six months of the programmed
inspection. Follow-up Inspections continue at six-month intervals until
the violations have ceased.
Each Regional Office should have the following lists for each State under
its jurisdiction:
• Category I—a list of those marketplace establishments that have
been Inspected during the past four years; and
• Category II—a list of those marketplace establishments that have
boon Inspected .during ^ the past-four years and where violations of
the Act
-------
Appendix Heutral M*r* "*««•*•*«• *™» Inspection
Experimental Use Permit
The Regional Office is responsible, on a selected basis, for supervision of
the experimental uses conducted within its Region. Supervision is for the
purposes of observing and reporting whether the terms and conditions of the
permit are being met and to determine whether the terms and conditions are
adequate to avoid unreasonable adverse effects on the environment.
Each Regional Office should establish its own supervision schedule based on
the following list of priorities:
• Permits for pesticides that are completely new classes of
compounds (e.g., j uvenlle hormones);
• Permits for chemicals with special potential hazard to man or the
environment, such as:
- Highly toxic products,
- Products with a propensity to drift,
- Products with high terrestrial or aquatic mobility, and
- Products of a particularly persistent nature;
• Permits for chemicals with previously registered uses that were
subject to adverse action on the Agency's part;
• Permits for those companies that have a history of noncompliance,
inadequate supervision, or other indications of an uncooperative
attitude;
• Permits for those chemicals that may ultimately have a widespread
major use (e.g., chemicals that will replace a major pesticide
that has been cancelled by the Agency); and
• Any other permits for which the Registration Division requests
special information.
Books and Records Inspections
As a practical matter, the books and records inspection program should be
an integral part of the establishment Inspection program. Books and
records should be examined whenever a producer establishment Inspection is
made; but, such an examination should not be limited to only those
Inspections. For instance, books and records inspections may be made upon
a specific request for certain information, or as a follow-up to an Agency
stop sale, use, or removal order.
UDspxiasce/aoxorceaent A—4 1^114*1*1*1* tvnnrf* 1983
-------
Appendix
2 Notices of Judgment
Authority
Under .Section 16.C4) of F/IEHA, xtie Adainlstrator of EPA ±a jrequired to give
notice by -publication of all judgments entered to actions Instituted under
the Act. The purpose of this publication is to make available to the
public the results of court decisions and civil penalty proceedings
involving pesticide! products and devices. A notice of Judgment contains
the following information:
• Responsible party;
• Specific violations;
• Dates and nature of the legal action; and
f* "T* r
Agency Policy
The Agency publishes a notice of judgment for each seizure, criminal
» •*
sbe;>publlsbed ±n -,-vthe ^following Instances :
• Seizures . When no product is available for seizure;
• Criminal Cases. When cases are declined for prosecution by the
U.S. Attorney; and
-m. : CLvll Qj«T)1alTrr«. ««n dvll £9^tlalut« «re Kttbdranm i>y the
Agency teTore the respondent files an answer.
In civil penalty cases Involving a hearing before an Administrative Law
Judge, the entire initial decision will be published In the notice of
Judgment.
FIFBA ampliance/Biforcement A-5 Qn44m~f Manual 1983
-------
Appendix notices of Judgment
Responsibility
The Assistant Administrator for Pesticides and Toxic Substances has been
delegated, by the Administrator, the authority to give notice by
publication of all judgments entered in actions instituted. Within the
Office of Pesticides and Toxic Substances, PTSCMS is responsible for
preparing the notices of judgment.
Procedures
Regional Office
Each EPA Region will maintain a record of all seizure and criminal referral
actions and all civil penalty complaints Issued. Each case will be
reviewed after its conclusion to determine whether all necessary
information is present in the file. Once an action has been completed, the
Region will prepare a draft notice of judgment and forward it to the
Headquarters Case Development Officer (HQCDO). To ensure completeness and
uniformity of reporting, information for notices of judgment should be
submitted in the format shown in Exhibits A-l, A-2, and A-3, as
appropriate.
The draft notices must be complete, accurate, and legible to avoid any
misinterpretation of spelling, citations, etc. The proper and complete
name of the firm and product Involved must be used. Because of the wide
distribution of notices of Judgment, including some to the respondents and
defendants, it is Important that the information reported for Inclusion in
the publications be factual.
The statutory references and charges to be Included for publication in a
notice of judgment include all the charges made in the indictment or civil
complaint. If any of those charges are dismissed, withdrawn, or dropped,
the information should be included in the concluding paragraph of the
notice that summarizes the final results of the action. The Regions will
promptly inform the appropriate HQCDO of the termination of each seizure,
criminal action, and civil proceeding. It is important that information be
furnished on each case to which an I.F.&R. Docket Number has been
assigned. If the case is withdrawn before the answer is filed, a negative
report should be submitted to account for all I.F.&R. Docket Numbers.
PTSCMS
The HQCDO will review the draft notices of judgment submitted by the
Regions for completeness and accuracy. Notices of judgment will be printed
at reasonable Intervals, in groups of 50 or more.
FUfMA Uoapliance/Eoforceaent A-6 ° Goldi
-------
Appendix Botlces of Jud
Distribution
Distribution of notices of judgment will be made by PTSCMS, who regularly
compile a mailing list of recipients of the notices. Such recipients
include libraries, universities, civic groups, pesticide producers, and
private citizens. Other distribution may be made by special request.
uoapJOance/Enxorceaent A-/ Guidance
-------
Appendix Exhibit A-l
Notice of Judgment After Seizure
United States of America v. 40 one-gallon jugs
(Amount)
more or less, of a product labeled in part HELENA BEAM) PRO-LIN
WEED
U.S. District Court, District of New Mexico. November 29, 1972
(Judicial District) (Date of Final Decree )
(I.F.&R. No. VI-17 _ I.D. No(s). 90829 _ .)
This was a seizure action charging the product with being in violation
of the Federal Insecticide, Fungicide, and Bodenticide Act, 7 U.S.C.
i!36k(b) _ _ _ _
(Statutory References)
The action pertained to (complete a. or b.)
a. A shipment (s) made
on May 2, 1972 _ ,
by _ Helena Chemical Company _ ,
from Lubbock, Texas ,
to Dexter, New Mexico _ ,
b. A product (s) held for distribution or sale
on ,
(Date of Inspection)
at _ ; _ ,
-«- (Name of Producer Establishment)
(City and State)
Charges included nonregistration.
(Type of Final Decree and Disposition of Product)
The Judgment Decree of Condemnation ordered destruction of the
product.
FIFRA Coapliance/Biforceaent A-8 Guidance Manual 1983
-------
Appendix Exhibit A-2
Notice of Judgment of Criminal Proceeding
United States v. Sterling Drug, Inc. ,
(Name of Defendant)
U.S. District Court, Northern District of Ohio ,
(Judicial District)
Criminal No. CR 73-135 , July 26, 1974 .
(Date of Final Decision)
(I.F.&R. No. 1363 , I.D. No(s). 72760. 73184, 73706, & 78835.)
This was a criminal action prepared by EPA Region V charging the
defendant in a(n) five count information (indictment)
with violating the Federal Insecticide, Fungicide, and Bodenticide Act,
7 U.S.C. 8§136j(a)(l)(B); 136j(a)(l)(E); 136(q)(l)(A); and 136(q)(l)(G)
(Statutory References)
The action pertained to (complete a. or b.)
a. A shlpment(s) made
on October 2 and 25, 1968; December 16, 1968; and July 21, 1969,
from Toledo, Ohio _ • _ ,
to Buffalo, New York; Pocatello, Idaho; Omaha, Nebraska; and ,
b. A product (s) held for distribution or sale
on
(Date of Inspection)
at
___
(Name of Producer Establishment;
(City and State)
The pestlcide(s) involved was (were) ROCALL BRAND SANITIZING AGENT and
BARRAGE CONCENTRATED BOWL CLEANSER; charges Include: claims differed
from those made in connection with registration, and mlsbranding—
.MBS- JQO£ f ^ffrtlTf "fapn ncnd ac ^dJxecfiAdf^and • li«* k of aiifiiiur-r
The defendant entered plea of nolo contendere to counts 1 and 2.
(Give plea and list all counts.) The remaining counts were dismissed.
A fine of $ 500.00 was levied.
Ar*9 (^f ^"TICI* M>n"*l 1983
-------
Appendix
Exhibit A-3
Botlce of Judgment of dvll Penalty Proceeding
In Be:
Steelcote Manufacturing Company
EPA Region VII
(Name of Respondent)
September 3. 1974
(I.F.&R. No. VII-A6C
(Date of Final Order)
, I.D. No(s). 91563
This was a civil action charging the respondent with violating the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C.
; and
136(q)(2)(C)(iv)
(Statutory References)
The action pertained to (complete a. or b.)
a. A shipment(s) made
on
from
to
b. A product(s) held for distribution or sale
on September 7, 1973
(Date of Inspection)
at Steelcote Manufacturing Compan;
(Name or Producer Establishment)
St. Louis, Missouri »
(City and State)
The pesticlde(s) involved was(were) DAMP-TEX A & A SEALER;
charges include: lack of adequate warning or caution statement on
labels, lack of adequate directions for use on labels, lack of assigned
registration number on labels, and labels bore false or misleading
safety claims.
(Complete summary of final results Including hearing, default, acceler-
ated decision, consent agreement, final order, and amount of assessment.
If withdrawn after answer, explain.)
The respondent signed a consent agreement. The final order assessed a
civil penalty of $1,200.
FIFRA Oaapll ance/Enforeement
A-10
1983
-------
Appendix
3 Sample Record Status and Permanent
Abeyance Procedures
The purpose of this section is to set forth guidelines for placing sample
records in different categories of activity. It also gives guidance on
retiring inactive records.
Sample Record Status
For record management purposes, sample record cases are placed in the
following categories:
• Active . A sample record file is considered active throughout the
testing and review period until it is officially determined in
writing that no enforcement action is Indicated or until all
enforcement actions and correspondence have been concluded.
After It feaa teen 'ggtcTaiacd that «no enforcement -action
is indicated or after all enforcement actions and correspondence
have been concluded, but the file needs to be retained for
reference, the sample record is considered to be in abeyance
status.
Permanent Abeyance (PA). When correspondence is no longer being
carried on with the firm, no further action is expected or
,iHT>f'ffl>> ;fnfl -tlir "o** :i*ff 'Clof^id j ''^*i* "nitf "** TlTT^d "*"** TTBrrmanrnT
abeyance . "In the instance of notice of warning letters , if no
reply from the firm is received within 90 days, the sample record
should be removed from active status and permanent abeyance
procedures Initiated.
FIFKA Coapliance/Eoforceaent A-11 Guidance M^»mvf1 1983
-------
Appendix Sample Record Status and Permanent Abeyance Procedures
Permanent Abeyance (PA) Procedures
Types of PA
PA Without Action. Refers to placing a sample record in permanent abeyance
because the sample is chemically and biologically satisfactory and meets
all the labeling requirements of the Act.
PA With Action. Refers to placing a sample record in permanent abeyance
after the enforcement action has been concluded.
PA Procedure
PA Without Action. If examination of the sample record reveals that no
enforcement action is warranted:
• Mark "PA" and the date on the face of the sample record jacket; and
• On a monthly basis, the Regional Offices will notify the
appropriate laboratories of the sample(s) that vas(were) placed
into permanent abeyance. THIS IS IMPORTANT—It notifies the
respective laboratories that the file has been closed and that the
sample can be disposed of in accordance with the appropriate
disposal method.
PA With Action. When it is determined that no further action is necessary
after an enforcement action and subsequent follow-up, then follow the above
steps under "PA Without Action."
Records Retirement and Retrieval
The EPA records disposition program is designed to provide for the regular
removal from valuable office space of all records and nonrecord materials
no longer essential for current operations, and for the systematic release
of filing equipment for reuse. At regular Intervals PA sample records
should be transferred to the appropriate Federal records center.
u>mp.u.ance/Enforcement A-12 Guidance ***"**>• 1983
-------
Appendix
4 Collection of Civil Penalty
Assessments
Authority
Upon nonpayment of a civil penalty within the prescribed time periods,
Section 14(a) (5) of the Act «pecifies that the aatter be referred to the
Attorney General for collection: "In case of inability to collect such
civil penalty or failure of any person to pay all, or such portion of such
civil penalty as the Administrator may determine, the Administrator shall
refer the matter to the Attorney General, who shall recover such amount by
action in the appropriate United States district court."
However, before any referral to the Attorney General, the Agency must
satisfy the directives and standards for collection set forth in the
Federal Claims Collection Act (31 U.S.C. $5951-953) and the Federal Claims
Collection Standards (FCCS, 4 C.F.R. IS101-105 Exhibit A-4).
'general, the procedures jln the FCCS are Mndatory, but the failure of
Agency to -comply -with -any provision of 'the standards -will not be
available as a defense to any party in a subsequent action for collection.
Policy
1CCS, • +***'. .*||p»»-y --*«-»ai«il a -•*•«
collection action, on a timely basis, and with effective follow-up of all
civil penalty assessments.
Collection Procedures
Written Demands for Payment
The FCCS requires that the Agency make three written demands, at 30-day
intervals, on the respondent in terms that Inform the debtor of the
consequences of failing to cooperate.
compliance/Bnxorceaent A-13 Guidance •«•*««•' 1983
-------
Appendix Collection of Civil Penalty Assessments
The Agency's policy is to initiate the written demands concurrent with the
issuance of a final order so that the third and final demand will be made
on the same day the payment period elapses (i.e., 60 days after Issuance of
a final order).
Upon the Issuance of the Final Order. At the time that a final order is
issued and served on the respondent, he or she should receive a written
demand for any payment of such penalty and the length of time in which he
or she has to pay it. Such notice should also inform the respondent of the
consequences of falling to cooperate.
Thirty Days After Issuance of the Final Order. After 30 days have elapsed,
even though the payment period has not expired, the Agency will again serve
on the respondent a demand for the payment and again warn the respondent of
the consequences of failing to pay (Exhibit A-5). Given the possibility
that the payment may be in the mail when this second warning is sent, the
Agency should also make a brief apologetic statement informing respondent
to disregard the warning if the payment has been sent.
Sixty Days After the Issuance of the Final Order. The respondent must pay
the civil penalty 60 days after the service of a final order unless a
motion to reconsider has been made or judicial review of the final order
has been sought. Subject to those two exceptions, if payment of the
penalty has not been tendered at the end of the 60-day period, the Agency
will send a final demand to the respondent for payment of the delinquent
civil penalty assessment. This letter should be written to inform the
respondent that unless payment is tendered within 15 days, the penalty will
be referred to the United States Department of Justice or the United States
Attorneys Office for collection in a district court. The letter should
state that such action is routinely accomplished through a motion for
summary judgment in favor of the United States and that the respondent will
be barred from raising any issues as to fact or law that should have been
raised in the administrative proceeding (Exhibit A-6).
Follow-up to Final Demand for Payment
Section 102.6 of the FCCS dictates that the Agency undertake personal
interviews with the debtors when it is feasible, having regard for the
amounts Involved and the proximity of Agency representatives to such
debtors.
It is PTSGHS policy to arrange personal interviews if it is feasible and
convenient for the regional officials involved in the case. In the absence
of a personal interview, the Regional Office should at least establish
telephone contact with the respondent to urge prompt payment of the claim
and to personally warn the respondent of the consequences of falling to pay
the penalty.
Good faith inability to arrange a personal interview or to establish
telephone contact with the respondent should not deter the Regional Office
from referring claims to the United States Attorneys Office for collection.
UMp.uance/mxorcement A—14 Guidance nr****** 1983
-------
Appendix Collection of Civil Penalty Assessments
Documentation of Collection Efforts
The Agency should record and maintain a file of all collection efforts and
activities prior to referral.
Types and Methods of Payment
Full Payment
The most preferable method of collection is a check for the full amount
owed, payable to the United States of America. Such payment should be
delivered to the Regional Hearing Clerk for the Region In which the final
order was issued.
jTtat'al Itnonf-o
Section 102.10 of the FCCS provides for Installment payments. This type of
payment should be used when the respondent has demonstrated and documented
an inability to pay the penalty in a lump sum.
In that Section 14(a)(4) of FIPRA requires a consideration of ability to
continue in business in assessing the penalty* this installment provision
should rarely be needed as the issue will have been previously resolved.
In the event that installment payments are Justified and allowed, such
payments shall:
• Be an a Tegular basis;
• Bear a reasonable relation to the size of the debt and the debtor's
ability to pay;
• Be sufficient in size and frequency to liquidate the claim in not
more than three years; and
•• >-Bfi-jio ,jpnn -than S10 except under--tine••ost .jmusual f*1 TV*iMa^fTfi*??,
In allowing a respondent to pay by installment, the regional attorney
should attempt to obtain an executed confess-judgment note, comparable to
the Department of Justice Form USA-70a.
The Agency may accept installment payments notwithstanding the refusal of
the respondent to execute a confess-Judgment note.
Compromise of the Penalty
The FCCS provide for compromising claims when it can be assured that the
respondent's financial ability will not permit payment of the claim In full
FIFBA Coapllance/anrorcement A-15 Qn-idimce Manual 1983
-------
Appendix Collection of Civil Penalty Assessments
or when the litigatlve risks or the costs of litigation dictate such
action.
It is the express policy of PTSCMS that penalty assessments in final orders
shall not be subject to compromise except under the most unusual
circumstances. For the most part, FIFRA requires that ability to pay be
considered before a civil penalty is imposed; therefore, the inability to
pay the penalty should not be an issue in the post-final order stage of the
civil penalty proceeding. However, inability to pay should be considered
where:
• The civil penalty was assessed by default, so that the respondent's
ability to pay was never confirmed by the respondent in determining
the amount of the penalty; or
• The respondent's financial condition has deteriorated dramatically
since the time the penalty was assessed. The Agency should be
alert to the possibility that assets have been fraudulently
concealed or Improperly transferred. The burden falls upon the
respondent to affirmatively demonstrate and document any such
inability.
Section 103.5 of the FCCS provides that, where an enforcement policy is
concerned, a penalty should only be compromised if the sum to be agreed
upon will adequately serve the Agency's enforcement policy in terms of
deterrence and securing compliance.
For this reason, and for the reason that a respondent usually has already
had an opportunity for settlement, the compromise provision should be
rarely exercised.
In the event such a compromise is effected, it must be authorized by the
Regional Administrator for it has the effect of altering the final order.
Suspension or Termination of Collection Activity
Suspension _,^
The Agency may temporarily suspend collection action for payment of a
penalty when the respondent cannot be located after a diligent search
and/or when future collection prospects seem more promising than present
actions.
Section 104.2 of the FCCS provides a partial listing of sources that may be
helpful in locating missing respondents. Efforts should be made to avoid
any applicable statute of limitations.
FIFSA Compliance/Enforcement A-16 Gaidar*"* MMMI 1933
-------
Appendix Collection of Civil Penalty Assessments
Collection action may be terminated and the Agency's file on the penalty
closed under the following conditions:
• Inability to collect any substantial amount;
• Inability to locate debtor;
• Cost will exceed recovery;
• Claim legally is without merit; or
. • Claim cannot be substantiated by evidence.
Section 104.3 of the FCCS provides further information on termination of
claims.
Referrals Procedures ~
General
Claims on which aggressive collection action has been taken and that cannot
be compromised will be referred to the Department of Justice or the United
States Attorneys Office. Such referrals should be made as early as
possible consistent with the aggressive Agency collection action and the
standards for collection set forth in the FCCS.
"Parties and minimum Amounts
Department of Justice. All penalty assessments in the amount of $10,000 or
greater should be referred to the Department of Justice.
United States Attorneys Office. All penalty claims in amounts less than
$10,000 should be referred to the appropriate United States Attorneys
Office. ^
When referring a claim of less than $600 for collection , the Regional
Office must emphasize to the U.S. Attorney that the referral is Important
to a significant enforcement policy.
Procedures for a Proper Referral
wcUMtamy > should prepare the -dains t3oll«ction litigation
Report (CCLR) for the U.S. Attorney consistent with the form and
instructions in Exhibit A-7.
A-17 tinijtm^ff Manual 1983
-------
Appendix fcrMblt A-4
CHAPTER II—FEDERAL CLAIMS COLLECTION
STANDARDS (GENERAL ACCOUNTING
OFFICE—DEPARTMENT OF JUSTICE)
Part Foot
101 Scope of standards .——~...~. 90
102 Standards for the administrative collection of
Claims, ,........,,„..,.,...,.....,...„,,.„„,„,., ........................1^. 91
103 Standards for the compromise of claims,.... .... . 95
104 Standards for suspending or terminating collec-
tion action ...~......~...~...~......~..~....~~..~.................... 97
105 Referrals to GAO or for litigation Mk.MM.M.MM..MM 98
FXFRA On^pHaiM'O/Hnf"^*«*aent A-18 ^Unn**** Manual 1983
-------
Appendix
Exhibit A-4
9107.1
PART 101—SCOPE OP STANDARDS
Sec.
10L1 Prescription of standards
10U Omissions not * defense.
tax 'dabns ex-
101.4 Compromise, waiver, or disposition
under otner statutes not precluded.
10LA Conversion claims.
1014 Subdivision of claims not authorised.
101.7 Required administrative proceedings.
101J Referral for litigation.
Atmioamr: See. a. 80 Stat. 309; 31 U.S.C.
982.
Sorace 31 TO 13381. Oct. IS. 1966. unless
Otherwise noted,
f 10U Awcriptia« «f Ataariavda,
The regulations in this chapter.
issued jointly by the Comptroller Gen-
oral of the United States and the At-
torney General of the United States
under section 3 of the Federal Claims
Collection Act of 1986. 80 Stat 309.
prescribe standards for the adminis-
trative collection, compromise, termi-
nation of agency collection, and the
referral to the General Accounting
' Office, and to the Department of Jus-
tice for litigation, of civil claims by the
Federal Government for money or
property. Additional guidance is con-
tainmt hi Xttte «* «f the <3enerml Ae-
.. f.».|fffluy ywfi^» .affr.*^! yfrf-frUidtTtrr
of Federal Agencies. Regulations pre-
scribed by the head of an agency pur-
suant to section 3 of the Federal
Claims Collection Act of 1966 will be
reviewed by the General Accounting
Office as a part of its audit of the
agency's activities.
C44 PR 22701. Apr. 17.1979]
• 10L1
hA««v^ V
ter shall apply to the administrative
hunting of dvQ *Ja.<»«« of the Federal
Government for money or property
but the failure of an agency to comply
with any provision of this chapter
shall not be available as a defense to
any debtor.
1 191.3 Fraud. >p*«*»"f« ,and lax. .daiau
The standards set forth hi this chap-
ter do not apply to the handling of
any claim as to which there is an indi-
TM*
cation of fraud, the presentation of a
false claim, or misrepresentation on
the part of the debtor or any other
party having an interest in the claim.
or to any claim based in whole or in
.part on conduct in violation of the
antitrust laws. Only the Department
of Justice has authority to compro-
mise-or terminate collection action on
such claims. However, matters submit-
ted to the Department of Justice for
consideration without compliance with
the regulations in £*»
-------
Appendix
Exhibit A-4
Chapter
doinrs Coltoctfon Standards
• 101.5 Conversion daiiM.
The instructions contained in this
chapter are directed primarily to the
recovery of money on behalf of the
Government and the circumstances in
which Government *>»<»»« may be dis-
posed of for less than the full amount
claimed. Nothing contained in this
chapter is intended, however, to deter
an agency from ^•""•r* **fpg the return
of specific property or from demand-
tag. in the alternative, either the
return of property or the payment of
its value.
1101.6 Sabdhrbion of claims act author.
isad.
A debtor's liability arising from a
particular transaction or contract
shall be considered as a single claim in
determining whether the claim is one
of less than (20.000. exclusive of Inter-
est, for the purpose of compromise or
termination of collection action. Such
a claim may not be subdivided to avoid
the monetary ceiling established by
the Federal Claims Collection Act of
1966. 80 Stat. 308.
administrative proceed-
• 101.7 Required
tags- .
Nothing contained in this chapter is
intended to require an agency to omit
or foreclose administrative proceed-
ings required by contract or by law.
1101.8 Referral for litigation.
As used in this chapter referral for
litigation means referral to the De-
partment of Justice for appropriate
legal proceedings, unless the agency
concerned has statutory authority for
3 own litigation,
FAIT 102— STANDARDS FOR THE
ADMINISTRATIVE COLLECTION OF
CLAIMS
See.
102.1 Aorwiive agency collection action.
10X2 Demand for payment.
1014 Collection by offset
102.4 Reporting delinquent debts to com-
mercial credit bureaus.
102J Contracting for collection services.
102.6 Personal Interview with debtor.
102.7 Contact with debtor's employing
acency.
1023 Suspension or revocation of license
or eligibility.
1024 T|itpiffitn«m of collateral.
102.10 Collection in 1nTt*"Ti*"f"
102.11 Exploration of compromise.
102,12 Interest.
102.13 Analysis of coats.
102.14 Documentation of administrative
coIleeUon action.
102.1ft ft**t"nflTf'fn
102.16 Prevention of overpayments, deltav-
«]^pffyf ft*"* ittflllltt
10247 Additional admtniatraUv* coUecUon
TT: Sec. 3. 80 Stat. SO*: 31 VAC.
collection
The head of an agency or his desig-
nee shall take aggressive action, on a
timely basis with effective followup, to
collect all claims of the United States
for money or property arising out of
the activities of. or referred to. his
agency in accordance with the stand-
ards set forth in this chapter. Howev-
er, nothing contained hi this chapter
is intended to require the General Ac-
counting Office or the Department of
Justice to duplicate collection actions
previously undertaken by any other
agency.
[31 PR 13381. Oct. 18.1066]
• 1025 Demand for payment.
Appropriate written demands shall
be made upon a debtor of the United
States in terms which inform the
debtor of the consequences of his fail-
ure to cooperate. In the initial notifi-
cation, the debtor should be informed
of the bagia for the
-------
Appendix
Exhibit A-4
§10X3
i* necessary to protect the Govern-
ment's interests (e.g.. the statute of
limitations (28 UJS.C.-2415)). Agencies
should respond promptly to communi-
cations from the debtor. Agencies
should advise debtors who.diapute the
debt to furnish available evidence to
support thftlr con t^n M^TT"
144 FB 33702. Apr. IT. OTM
B102J Collection by ofbct
(a) Collections by offset will be un-
dertaken administratively in accord-
ance with these standards and imple-
menting regulations established by the
every instance in which this Is feasi-
ble Collections by offset from persons
receiving pay or compensation from
the Federal Government shall be ef-
fected over a period not greater than
the period during which such pay or
compensation h) to be received. See 5
U.S.C 5514.
(b) When the head of an agency, or
his designee. pursuant to 5 U.S.C.
5514. 5522. 5705. 5724(f). or other stat-
utory authority, seeks to collect a debt
by offset against accrued pay. compen-
sation, accrued benefits derived from
federal sendee or tmmtnt ot
"Government employee, a member of
the armed forces, a Reserve of the
armed forces, or a present or former
employee of the U-S. Postal Service.
the agency to which the debt allegedly
is owed will accord such debtor an op-
portunity for a pre-offset oral hearing
when:
(1) The debtor requests waiver of
the Indebtedness and the waiver deter-
^MmSttf^e-nt" when "the tedlvld-
ual requests reconsideration of the
debt and the head of the agency or his
designee determines that the question
of the indebtedness cannot be resolved
by review of the documentary evi-
dence, for example, when the validity
of the debt turns on an Issue of credi-
bility or veracity: Provided that, where
paragraph of this sec-
tion terminates, and the creditor
agency determines that:
(1). Amounts, accruing to the debtor
upon such termination are available
for offset in satisfaction of the alleged
indebtedness, (ii) such amounts would
not be available for offset subsequent
.to termination and (ill) the time prior
to termination does not permit a ore-
offset hearing, the agency may with-
hold from amounts nffcr"lT*g to the in-
dividual upon termination, a sum not
greater than that of the alleged in-
debtedness and, subsequent to termi-
nation, promptly provide an opportu-
nity for an oral hearing to resolve the
issue of indebtedness or waiver.
Amounts withheld but later deter-
• shall be^promptly refunded.
(c) Except for debt collection sys-
tems in which determinations of in-
debtedness or waiver rarely involve
Issues of credibility or veracity, or
when employment or military status is
about to terminate as described in the
proviso of paragraph (b) of this sec-
tion, prior to collecting any indebted-
ness by offset the head of the agency
to which the debt allegedly is owed or
his designee shall provide the debtor a
written demand containing the notices
prescribed hi 1102.2 of this part and
include therein:
•"T Appropriate use should be made
of the cooperative efforts of other
agencies la effecting collections by
offset. Including utilisation of the
Army Holdup Ust. and all agencies are
enjoined to cooperate in this endeavor.
[46VRW113.July31.1981]
Agencies shall develop and imple-
ment procedures for reporting delin-
quent debts to commercial credit bu-
92
FIFBA Oompl±i
>/Enfor
A-21
Guidance
1983
-------
Appendix
Exhibit A-4
Chapter II—Federal Gaiim Collation Standards
§102.8
reaus. In the absence of a different
rule prescribed by statute, contract, or
regulation, a debt is considered delin-
quent if not paid by the date due spec-
ified hi the provide the credit
bureaus with corrections and nota-
tions of disagreement by the debtor;
and (d) make reasonable efforts to
assure that the information to be re-
ported is accurate, complete, timely.
and relevant. Prior to exercising the
option of reporting delinquent debts
to commercial credit bureaus, agencies
should send a demand letter advising
the debtor that such reporting will
take place within a specified period of
time unless the debtor makes satisfac-
tory payment arrangements or demon-
strates some basis on which the debt is
legitimately disputed.
(44 FR 32702. Apr. 17.1979] "
• 10tS Contracting for collection atrvleca.
Agencies should consider contracting
for collection services. Contracts may
be entered into for this purpose when
they meet the following conditions:
(a) The service must supplement.
but not replace, the basic collection
program of the agency: (b) the author-
ity to resolve disputes, compromise
claims, terminate collection action.
and initiate legal action must be re-
tained by the agency and; (c) the con-
tractor shall be subject to the Privacy
Act of 1974. as amended. 5 U AC 552*.
and. when applicable, to Federal and
State laws and regulations pertaining
to debt collection practices such as the
Fair Debt Collection Practices Act. 15
UJ3.C. 1692.
(46 FR 22393. Apr. 20.10811
B 102.6 Personal interview with debtor.
Agencies will undertake personal in-
terviews with their debtors when this
is feasible, having regard for the
amounts involved and the proximity
of agency representatives to such debt-
ors.
ffti FR 13MI. Oct. IS. 19«6. Redeattmted at
44 FR 22702. Apr. IT. 1979 and 46 FR 22353.
Apr. 20.1M1J
• 192.7 CMrtact wttfc debtor's employing
When a debtor to employed by the
Federal Government or is a member of
the military establishment or the
Coast Guard, and collection by offset
cannot be accomplished hi accordance
with 5 UJS.C. 5614. the employing
agency will be contacted for the pur-
pose of arranging with the debtor for
payment of the indebtedness by allot-
ment or otherwise hi accordance with
section 206 of Executive Order 11222
of May 8. 1965. 3 CFR. 1965 Supp.. p.
130 (SO FR 6469).
t31 FR 13381. Oct. 18.1966. Redesignated at
44 FR 22702. Apr. 17.1979 and 46 FR 22393.
Apr. 20.19811
flt££ Suspension or revocation of
! or eUgibiUtT.
II.
Agencies seeking the collection of
statutory penalties, forfeitures, or
debts provided for as an enforcement
aid or for compelling compliance will
give serious consideration to the sus-
pension or revocation of licenses or
other privileges for any inexcusable.
prolonged or repeated failure of a
debtor to pay such a claim and the
debtor will be so advised. Any agency
making, guaranteeing, insuring, ac-
quiring, or participating hi loans will
give serious consideration to suspend-
ing or dtffqyflinfylpg my tendg*! con-
tractor, broker, borrower or other
debtor from doing further business
with it or *"g»g<"g In programs spon-
sored by It If such a debtor fails to pay
its debts to the Government within a
ible time and the debtor wfll be
so advised. The failure of any surety
to honor its obligations! in amf"**""***
with 6 U.&C. 11 is to be reported to
the Treasury Department at once. No-
tification that a surety's certificate of
authority to do business with the Fed-
eral Government has been revoked or
forfeited by the Treasury Department
will be forwarded by that Department
to all interested agencies.
93
11 artff
-------
Appendix
Exhibit A-A
5 102.9
131 PR 13381. Oct. 15.1966. Redtsignated at
44 PR 2270Z Apr. 17. 1979 and 46 PR 22353.
Apr. 20.19813
910t9 Liquidation of collateral
, i*a»ti»to« holding security or coUat-
' -era! which'may be liquidated and the
proceeds applied on debts due it
through the exercise of a power of
sale in the security instrument. or a
non-judicial foreclosure should do so
* by such procedures if the debtor fails
to pay his debt within a reasonable
time after demand, unless the cost of
disposing of the collateral will be dis-
proportionate to its value or special
.
eluding liquidation of security or col-
lateral, is not a prerequisite to requir-
ing payment by a surety or insurance
concern unless such action is expressly
required by statute or contract.
[31 PR 13381. Oct. IS. 1966. Redesignated at
44 PR 22702. Apr. 17. 1979 and 46 PR 22383.
Apr. 20. 1981]
• 102.10 Collection in installments.
Claims, with interest in accordance
with S 102.10 should be collected in
full in one lump sum whenever this is
possible. However, if the debtor is fi-
unable • to ;jff r_
Jn ;0ne 'Jump -?aumy jastynw
be accepted in regular Installments.
The size and frequency of such install-
ment payments should bear -a reason-
able relation to the size of the debt
and the debtor's ability to pay. If pos-
sible the installment payments should
be sufficient in size and frequency to
liquidate the Government's claim in
more than 3 years.
payments of less than $10 per month
holding an unsecured claim for admin-
istrative fffllfrtion should attempt to
obtain an executed confess-judgment
note, comparable to the Department
of Justice form TJSA-TOa. from a
debtor when the total amount of the
deferred installments will exceed $750.
Such notes may be sought when an
"
ferred payments, other than a confess-
judgment note, may be accepted in ap-
propriate cases. An agency may accept
installment payments notwithstanding-,
the refusal of a debtor to execute a.:
eonf ess-judgment note or to give other •
security, at the agency's option.
Bl PR 1338U Oct. 18. 1966. Redesifnated u
44 PR 22702. Apr. 17. 1979 and 46 PR 22353
Apr. 28. 19811 -.Xii
• 162J1 Exploration of compromise. /
Agencies wQl attempt to effect com-
promises (preferably during the course
of personal Interviews), of claims of
$20.000 or less exclusive of interest, in
accordance with the standards set
forth tn Part 103 of this chapter in all
-in .which. i£ can be ascertained
not permit payment of the claim in
full, or in which the lltigative risks or
the costs of litigation dictate such
action;
C31 PR 13381. Oct. 15. 1966. Redesignated at
44 PR 23702. Apr. 17. 1979 and 46 PR 22353.
Apr. 20. 19811
• 102J2 Interest
In the absence of a different rule
prescribed by statute, contract, or reg-
ulation. interest should be charged on
delinquent debts and debts being paid
in installments in conformity with the
Xreasnry v-Vtacal 'Requirements
VManuaL W«mtm-debtisT«id in mstan-
ments. the Installment payments will
first be applied to the payment of ac-
crued interest and then to principal, in
accordance with the so-called "U.S.
Rule." unless a different rule is pre-
scribed by statute, contract, or regula-
tion. Prejudgment interest should not
be demanded or collected on civfl pen-
alty and forfeiture claims unless the
*1* ••'toH ,fch» rtmlm 'f rjff«
h inter-
est. Bee Rodgers v. United States. 332
U.S.37L
ignated at
144 PR 29702. Apr. 17. 1979. R
46 PR 82353. Apr. 20. 1881]
• 102:13 Analysis of coats.
Agency collection procedures should
provide for periodic comparison of
covery rates for debts of different
types and in various dollar ranges
should be used to compare the cost ef-
94
FIFRA Co«pliance/Enforces*ent
A-23
Guidance Manual 1983
-------
Appendix
Exhibit A-4
Chapter It—Federal doiim Collection Standards
fectlveness of alternative collection
techniques, establish guidelines with
respect to the points at which costs of
further collection efforts are likely to
exceed recoveries, assist in evaluating
offers in compromise, and establish
pjirHrmim debt amounts below which
collection efforts need not be taken.
Cost and recovery data should also be
useful in Justifying adequate resources
for an effective collection program.
(44 PR 22702. Apr. IT. 1979. Redeslavated at
46 FR 32353. Apr. 20.1981]
B 112.14 Documentation of atfmfaUitrati*e
eoUectio* action.
All administrative collection action
should be documented and the bases
for compromise, or for termination or
suspension of collection action, should
be set out in detail Such documenta-
tion should be retained in the appro-
priate claims file.
(31 FR 13381. Oct. IS. 1966. Redesicnated at
44 FR 22702. Apr. 17.1979 and 46 FR 22353.
Apr. 20.19811
9102.15 Automation.
Agencies should automate their debt
collection operations to the extent it is
cost effective and feasible..
(44 FR 22702, Apr. 17.1979. Redesii
46 FR 22353. Apr. 20.1981]
»ted at
6102.16 Prevention of overpayments, de-
linquencies, and default*.
Agencies should establish procedures
to Identify the causes of overpay-
ments, delinquencies, and defaults and
the corrective actions needed. One
action that should be considered is the
reporting of debts or loans, when first
established, to commercial credit bu-
reaus.
C44 FR 22700. Apr. 17.1879. Redeslgnated at
46 FR 22353, Apr. 20.1981]
1102.17 Additional adminiatrative eoUee-
tton action.
Nothing contained in this chapter is
intended to preclude the utilization of
any other administrative remedy
which may be available.
(31 FR 13381. Oct. 15.1966. Redeslgnated at
44 FR 22702. Apr. 17.1979 and 46 FR 22353,
Apr. 20.1981]
PART 103—STANDARDS FOR THE
COMPROMISf OF CLAIMS
Sac.
103.1 Scope and application.
10X2 Inability to pay.
103J Utiaatlve probabilities.
103.4 Cost of collecUnc claim.
103 J Enforcement policy.
Itt.6 Joint and aeveral liability.
iaj.7 Settlement for a eomblnaUon of
103.8 Further review of compromiae offers.
10L9 Restrictions
3. 80 Mat. 309: 31 UAC.
952,
31 FR 13382. Oct. IS. 1966. unlen
otherwife noted.
flt3.1 Sceteaadappl
The standards set forth in this part
apply to the compromise of claims.
pursuant to section 3(b) of the Federal
Claims Collection Act of 1966. 80 Stat
309. which do not exceed $20.000 ex-
clusive of interest, The head of an
agency or his deslgnee may exercise
such compromise authority with re-
spect to claims for money or property
arising out of the activities of his
agency prior to the referral of such
claims to the General Accounting
Office or to the Department of Justice
for litigation. The Comptroller Gener-
al or his designee may exercise such
compromise authority with respect to
claims referred to the General Ac-
counting Office prior to their further
referral for litigation. Only the Comp-
troller General or his deslgnee may
effect the compromise of a claim that
arises out of an exception made by the
General Accounting Office in the ac-
count of an accountable officer, in-
cluding a claim against the payee.
prior to its referral by that Office for
litigation.
I1BL2 Inability to pay.
A claim may be compromised pursu-
ant to this part If the Government
cannot collect the fuD amount because
of (a) the debtor's inability to pay the
full amount within a reasonable time.
or (b) the refusal of the debtor to pay
the claim in full and the 'Govern-
ment's inability to enforce collection
in full within a reasonable time by en-
forced collection proceedings. In deter-
95
-f arx-p/Rn-fr>rr<*»*MH'
A-24
Guidance Manual 1983
-------
Appendix
Exhibit A-4
.,\
§10X3
mining the debtor's inability to pay
the following factors, among others,
may be considered:
Age and health of the .debtor; pres-
ent and potential income; inheritance
prospects; the possibility that assets
have been concealed or improperly
transferred by the debtor the avail-
ability of assets or income which may
be realised upon by enforced collection
piwanrflpgn The agency wfll give con-
sideration to the applicable exemp-
tions available to the debtor under
State and Federal law in determining
the Government's ability to enforce
Uncertainty:** to the price
vhteh ooDaCeral Brother property v
bring at forced sale may properly be
considered in determining the Govern-
ment's ability to enforce collection. A
compromise effected under this sec-
tion should be for an amount which
bears a reasonable relation to the
amount which can be recovered by en-
forced collection procedures, having
regard for the exemptions available to
the debtor and the time which collec-
tion will take. Compromises payable in
installments are to be discouraged.
However, if payment of a compromise
by installments is necessary, an agree-
thereon and acceleration* of the bal-
ance due upon default in the payment
of any installment should be obtained,
together with security in the manner
set forth in i 102.8 of this chapter, in
every case in which this is possible. If
the agency's files do not contain rea-
sonably up-to-date credit information
as a basis for assessing a compromise
proposal such Information may be ob-
penalty of perjury showing the debt-
or's assets and liabilities, income and
expense. Forms such as Department of
Justice form DJ-35 may be used for
this purpose, similar data may be ob-
tained from corporate debtors by
resort to balance sheets and such addi-
tional data as seems required.
A claim may be compromised pursu-
ant to this part if there is a real doubt
concerning the Government's ability
to prove Its case in court for the full
THto 4-Accoyntr
.*"••*
amount claimed either because of the
legal issues involved or a bona fide
-pute as to the facts. The amount ac-
. cepted in compromise in such- cases-
should fairly reflect the probability of
prevailing on the legal question in-
volved. the probabilities with respect
to full or partial recovery of a judg-
ment having due regard to the avail-
ability of witnesses and other eviden-
tiary support for the Government
claim, and related pragmatic consider-
ations. Proportionate weight should be
given to the probable amount of court
costs which may be assessed against
the Government If* is unsuccessful in
litigation, baring regard for the litlga-
tive risks involved. Cf. 28 U.S.C. 2412.
as amended by Pub. L. 89-507, 80 Stat
308.
»1«&4 Cost of collecting claim.
A claim may be compromised pursu-
ant to this part if the cost of collecting
the claim does not justify the enforced
collection of the full amount The
amount accepted in compromise in
such eases may reflect an appropriate
discount for the administrative and 11-
tigative costs of collection having
regard for the time which it will take
- to :etteet caUectlnn. Caat of eoileetmg
-way tee^^snnstantha factor to-ttoe set-
tlement of small claims. The cost of
collecting claims normally wfll not
carry great weight in the settlement of
large
• 10X5 Enforcement policy.
Statutory penalties, forfeitures, or
debts established as an aid to enforce-
ment and to compel compliance may
.in
terms of deterrence and securing com-
pliance. both present and future, wfll
be adequately served by acceptance of
the sum to be agreed upon. Mere acci-
dental or technical violations may be
dealt with less severely than willful
and substantial violations.
e lotat-
ly and severally liable collection action
wfll not be withheld against one such
debtor until the other or others pay
their proportionate share. The agency
96
FHFRA. Compliance /Enforcement-
-------
Appendix
Exhibit A-4
Choptw II—Federal Claims CoOactfafi Standard*
f 100
'should not attempt to allocate the
burden of paying such claims u be-
tween the debtors but should proceed
to liquidate the indebtedness as quick-
ly as possible. Can should be taken
that compromise with one such debtor
docs not release the agency's daim
against the remaining debtors. The
amount of a compromise with one
such debtor shall not be considered a
precedent or as morally binding in de-
termining the amount which win be
required from other debtors jointly
and severally liable on the claim.
9103.7 SctUeowfit for a
ibbutio* of
A claim may be compromised for one
or for more than one of the reasons
authorized in this part.
9103.8 Further review of cosBS-ranisc
often.
If an agency holds a debtor's firm
written offer of compromise which is
substantial in amount and the agency
is uncertain as to whether the offer
should be accepted, it may refer the
offer, the supporting data, and par-
ticulars concerning the- claim to the
General Accounting Office or to the
Department of Justice. The General
Accounting Office or the Department
of Justice may act upon such an offer
or return it to the agency with instruc-
tions or advice.
I10&9 Restrictions.
Neither a percentage of a debtor's
profits nor stock in a debtor corpora-
tion will be accepted in compromise of
a claim. In negotiating a compromise
with a business concern consideration
should be^given to requiring a waiver
of the tax-loss-carry-forward and tax-
loss-carry-back rights of the debtor.
PART 104—STANDARDS FOR SUS-
PENDING OR TERMINATING COL-
LECTION ACTION
See.
104.1 Scope and application.
104.2 Suspension of collection activity.
104 J Termination of collection activity.
104.4 Transfer of claims.
AuTHomrrr See. 3. 80 Stat. 309: 31 ttS.C.
992.
Sooacr 31 FR 13383. Oct. IS. 1988. unless
otherwise noted.
§184.1
appHeathm.
The standards set forth in this part
apply to the suspension or termination
of collection action pursuant to sec-
tion Kb) of the Federal Claims Collec-
tion Act of i960. 80 Stat. 309. on
claims which do not exceed $20.000 ex-
clusive of interest. The head of an
agency or his designee may suspend or
terminate foOt^far action under
part with respect to claims for money
rty arising out of activities of
his agency prior to the referral of such
fi^i^n* to th* General Accounting
Office or to the Department of Justice
for litigation. The Comptroller Gener-
al or his designee may exercise such
authority with respect to claims re-
ferred to the General Accounting
Office prior to their further referral
for litigation.
9184.2 *8wft niton of ceflcctk
etivtty.
Collection action may be suspended
temporarily on a claim when the
debtor cannot be located after diligent
effort and there is reason to believe
that future collection action may be
sufficiently productive to Justify peri-
odic review and action on the claim
having consideration' for its sbse and
the amount which may be realized
thereon. The following sources may be
of assistance in I'Mftlfig m fterfng debt-
ors: Telephone directories: city direc-
tories; postmasters; drivers' license rec-
ords; automobile title, and license rec-
ords; state and local governmental
agencies; district directors of TntmuU
Revenue; other Federal agencies; em-
ployers, relatives, friends; credit
agency skip locatf reports y** credit
bureaus. Suspension as to a particular
debtor should not defer the early liq-
uidation of security for the debt.
Every reasonable effort should be
made to locate missing debtors suffi-
ciently in advance of the bar of the ap-
plicable statute of limitations, such as
Pub, I*. 89-805. 80 Stat. 904. to permit
the timely filing of suit if such action
is warranted. If the mining debtor has
signed a confess-judgment note and is
in default, referral of the note for the
entry of judgment should not be de-
layed because of his missing status.
97
FIFRA Co»pliance/Enforcea*ent
A-26
ance
1983
-------
Appendix
Exhibit A-4
51043
Collection action may be suspended
temporarily on a claim when the
debtor owns no ffv^fftflntlnl equity in
realty and is unable to make payments
on the Government's claim or effect a
compromise i thereof > at the time but
his future prospects Justify retentions
of the claim for periodic review and
'.*ss
(a) The applicable statute of limita-
tions has been tolled or started run-
ning anew or (b) future collection can
be effected by offset notwithstanding
the statute of limitations.
(31 PR 13381. Oct. 15. 196«. aa amended at
The head of an agency or his desig-
nee may terminate collection activity
and consider the agency's file on the
claim closed under the following
standards:
(a) Inability to collect any tudttan-
tial amount Collection action may be
terminated on a claim when it be-
comes clear that the Government
cannot collect or enforce collection of
any significant sum from the debtor
having due regard for the Judicial rem-
edies available to the Government, the
debtor's future financial- prospects.
i the . •
When an agency has doubt as to
-.whether collection .action should be
• ..^MJia«»«iaH jpr. t»t itttrtm+m* qp a. CJSiPj it
may refer the claim to the General Ac-
counting Office for advice. When a sig-
nificant enforcement policy Is involved
in reducing a statutory penalty or for-
feiture to Judgment, or recovery of a
Judgment is a prerequisite to the im-
position of administrative sanctions.
such as the suspension or revocation
of a license or the privilege of partici-
pating in a Government sponsored
program, an agency may refer such a
claim for litigation even though termi-
nation of collection activity might oth-
erwise be given consideration under
.1.104.3 UO JOT icX^CTitmvan wnich an
ment -or otherwise wHl be referred to
the Department of Justice for further
action if renewal of the Judgment lien
or enforced collection proceedings are
Justified under the criteria discussed
in this part, unless the agency con-
cerned has statutory authority for
>i^nrfnny its own litigation.
PART 105—REFBUAIS TO GAO OR
109.1 Prompt referral.
108.2 Current address of debtor.
10S.3 Credit data.
105.4 Report of prior collection action*.
105.8 Preservation of evidence.
109.6 Minimum amount of referrals to the
Department of Justice.
aao.
li«» Btat *«* <*! TTB.C.
952.
BOOTTCE 31 PR 13384. Oct. IS. 1966. unless
otherwise noted.
98
FIFRA
/Bnf orcr m1 ut
A-27
Guidance
1983
-------
Appendix
Exhibit A-4
Chapter II—Federtri Claim* Coltetfaa Standards
$105.6
9 1*8.1 Prompt referral
on which collection Action
been taken in accordance with
Part 102 of this chapter and which
cannot be compromised, or on which
collection action cannot be suspended
or terminated, in accordance with
Parts 103 and 104 of this chapter, wfll
be referred to the General Accounting
Office in •accordance with R& 236. as
amended. 31 U-S.C, 71. or to the De-
partment of Justice, if the agency con-
cerned has been granted aa exception
from referrals to the General Account-
ing Office. Such referrals should be
made as early as possible consistent
with aggressive agency collection
action and the observance of the regu-
lations contained in **<<« chapter and
in any event well within the time lim-
ited for bringing a timely suit against
the debtor.
§10&2 Current address of debtor.
Referrals to the General Accounting
Office, and to the Department of Jus-
tice for litigation, will be accompanied
by the current address of the debtor
or the name and address of the agent
for a corporation upon whom service
may be made. Reasonable and appro-
priate steps wfll be taken to locate
missing parties in all cases. Referrals
to the General Accounting Office, and
referrals to the Department of Justice
for the institution of foreclosure or
other proceedings, in which the cur-
rent address of any party is unknown
will be accompanied by a listing of the
prior known addresses of such a party
and a statement of the steps taken to
locate him.
HtftJ Credit data.
•JCn.
(a) Claims referred to the General
Accounting Office, and to the Depart-
ment of Justice for litigation, will be
n^T*ompf p1*i* by reasonably current
credit data indicating that there is a
reasonable prospect of effecting en-
forced collections from the debtor.
having due regard for the exemptions
available to the debtor under State
and Federal law and the Judicial reme-
dies available to the Government.
(b) Such credit data may take the
form of: (1) A commercial credit
report. (2) an agency investigative
report showing the debtor's assets and
liabilities and his income and ex-
penses. (3) the individual debtor's own
ftfif fi**1fil tt***i"fflt executed under
penalty of perjury reflecting his assets
and liabilities and his income and ex-
penses, or (4) an audited balance sheet
of a corporate debtor.
Such credit data may be omitted
ifc (1) A surety bond to available in an
amount sufficient to satisfy the dalm
in fun. (2) the forced sale value of the
security available for application to
flitvmn \vn»nj'f rtmtm Jg fUffJCJPnt
to satisfy its dalm in fun. (3) the re-
ferring agency wishes to liquidate lorn
collateral through Judicial foreclosure
but does not desire a deficiency Judg-
ment. (4) the debtor to in bankruptcy
or receivership, or (8) the debtor's lia-
bility to the Government to fully cov-
ered by insurance, in which case the
agency wfll furnish such information
a* it can develop concerning the Iden-
tity and address of the insurer and the
type and amount of insurance cover-
age.
§ 108.4 Resort of prior collection actions.
A checklist or brief summary of the
actions previously taken to collect or
compromise a claim wfll be forwarded
with the claim upon its referral to the
General Accounting Office or to the
Department of Justice. If any of the
administrative collection actions enu-
merated in Part 102 of this chapter
have been omitted, the reason for
then- omission wfll be given with the
referral. The General Accounting
Office and the Department of Justice
may return or retain claims at their
option when there to insufficient Justi-
fication for **** omission of vnf or
more of the ^<*TT**T1<*trattvf collection
actions enumerated in Fart 102 of this
chapter.
llt&S
Care wfll be taken to preserve aU
files, records and exhibits on claims re-
ferred or to be referred to the General
Accounting Office, or to the Depart-
ment of Justice for litigation.
fl 105.* Minimum amount of referrals to
the Department of Justice.
Agencies will not refer claims of less
than $600. exclusive of interest for liti-
99
FIFBA Govpllance/Enforcenent
A-28
Guidance Manual 1983
-------
Appendix Exhibit A-4
5105.7 1W»
Cation unless: (a) Referral is impor- 1106.7 Referral* to GAO.
tant to a significant enforcement • p,r..- _i, „» .1-1—. »-,
policy or the debtor harnot only
the clear ability to pay thedaim but
the •Government -can elfecnv«iy ea-
under State or Federal Law and the
judicial remedies available to the Gov.
eminent
£43 FR 38891. Aus. 1.19773
100
FIFKA Gbapliance/EnforceiKnt A-29 Guidance Manual 1983
-------
Appendix Exhibit A-5
Model Demand for Payment Letter
Name: Date:
Address:
I.F.&R. No.:
Demand for Payment of Civil Penalty - Warning For Failure to Pay
Dear Sir/Madam:
In connection with the enforcement of the Federal Insecticide,
Fungicide, and Bodenticide Act, as amended (7 U.S.C. J136 et seq.),
you are hereby given notice that your penalty payment of
$ ______^^_ is due within thirty (30) days and that we expect
payment in full before the expiration of the sixty (60) day payment
period that started on and ends on
If payment is not received by the expiration of the payment
period, this matter shall be referred to the (United States
Attorneys Office/Department of Justice) which shall recover such
amount by civil action in the nature of a debt owed to the United
States government.
In the event that you have already submitted your payment
or that it is currently in transit, please disregard this
notice and accept our apologies for any inconvenience it may
cause you.
Title
EPA Region
Date At
FIFRA Compliance/Enforcement A-30 f^ridi'w* Manual 1983
-------
Appendix
adhibit A-6
Model Final Demand for Payment Letter
Name:
Address:
I.F.&R. No.:
Date:
Final Demand ^or -Payment of Civil Penalty - Notice of Referral
to the U.S. Attorney
Dear Sir/Madam:
This letter is to Inform you that your penalty payment of
$ _______ is past due and to demand immediate payment of the
above-mentioned sum. The penalty was Imposed by a (Final Order,
Consent Decree, or Default Order) signed by ±ne Regional
Administrator of "Region on (date) . You were
notified of your obligation to pay upon receipt of the Regional
Administrator's order on
and you were again informed
of your obligation to pay on (date second demand was sent) «
Tou are hereby notified that unless the payment of the penalty
is received in the Regional Office within fifteen (15) days of the
date of this notice, this matter will be referred to a U.S.
Attorney who shall recover such amount in a civil action in the
appropriate United States district court. Such action is routinely
accomplished through a motion for summary judgment in favor of
£be United £ta£es. In, this proceeding, yon^vill be barred from
y -Ln&tm of fact or i«f Ixa sthst «b»uld fc*ve 4>een raised
in the administrative proceeding.
Title
IPA Jtegion
. •** **
Date
At
FIFBA OoapH ance/Knforcement
A-31
Guidance
1983
-------
Appendix
Exhibit A-7
CLalns Collection Litigation Report
An Overview
The Federal Claims Collection Standards (4 C.F.R. $$101-105)
prescribe regulations for the administrative collection, compro-
mise and termination of agency claims, and for the referral of
administratively uncollectible claims to the General Accounting
Office or to the Department of Justice for litigation. The
Standards -require that certain information" be provided to
the Department of Justice when an agency refers a claim for
litigation and enforced collection (4 C.F.R. $105.1 et seq.).
In cooperation with the General Accounting Office, tKe" attached
Claims Collection Litigation Report (CCLR) has been developed by
the Debt Collection Section of the Executive Office for Onited
States Attorneys, Department of Justice, as the standard report
to provide this information when claims are referred to Justice
for litigation and enforced collection. All claims referred to
Justice should be accompanied by a completed report.
The CCLR is provided in three different formats: letter
(Exhibit 1), memorandum (Exhibit 2), and standard form (Exhibit
3). Each agency may choose the format it prefers to use. Dupli-
cate copies of each format which include bracketed explanatory
text are also provided (Exhibits 4, 5 and 6).* In addition, an
Item Explanation (Exhibit 7) is provided to assist and direct
agencies on the specific information required in each item on
the report.
Uniform use of -the CCLR by all agencies will serve a
number of purposes. First, it will provide Justice with all
the information it must have to effectively litigate the claim
and enforce collection. The CCLR will provide this essential
information "on top -and up front" so that no time will be lost
searching the client agency's file for the necessary informa-
tion. This will increase the speed at which claims received
from agencies are taken to judgment, or otherwise converted to
paying status, and, as a result, should increase the amount of
money collected by Justice and returned to the agencies.
Second, the CCLR should improve the quality of claim
referrals to Justice by prompting agencies to take more aggres-
sive administrative- action to collect claims. Such aggressive
collection action is required by the Federal Standards (4 C.F.R.
iioart^et seg.) but has often been overlooked or ignored. Zn
this respect, the CCLR will also serve as a checklist and as
a reminder to all persons who deal with these matters of the
importance of the Federal requirements. Furthermore, both
aggressive action by the agency to collect and prompt referral
to Justice of claims which are accompanied by current, accurate
•and complete information, directly affect Justice's success in
the enforced collection of claims. Therefore, we hope that
each agency will establish the goal that all of its referrable
claims be referred to Justice not later than six months after
* The Pesticides and Toxic Substances Offices have adopted the
memorandum format. Therefore, Exhibit 5 (&e memorandum format
that includes bracketed explanatory text) is included in this
appendix. Exhibits 1, 2, and 3 (blank forms) and Exhibits 4
and six, which pertain to other formats, are not included.
FIFRA CoBpllance/Enfor
A-32
Guidance .Uteniui 1 10ft?
-------
Appendix Exhibit A-7
the agency's final determination of the amount of the claim.
It, am stated in the Item Explanation, preparation of the CCLR
is1 «ade an integral and contemporaneous function of aggressive
collection efforts by all agencies, the CCLR will be completed as
and when the agency completes administrative collection action,
thus, allowing agencies to promptly, refer claims to Justice.
Finally, the CCLR will provide the information needed by
Justice from all agencies in the same order and sequence. This
will enable Justice personnel to design procedures around the
report which will permit better utilisation of the modern word
and data processing equipment which many law offices now have.
Once .the information is received in the same sequence, then
prerecorded programs will enable such equipment to "read" each
•debtor file" to "automatically* produce the documents essential
to litigation, for example, the demand letter, complaint, summons
and judgment, which relate to a claim. Such automated collec-
tion* ^yatmms «ill improve.the mtficleney and speed with which
ciaimsmre handled aad«',
-------
Appendix Exhibit A-7
itemization of the dates and amounts of any payments
made by the debtor to the agency or any credits made
by the agency to the debtor, and an itemization of
the amount due and owing) and which may be offered by
the United States Attorney into evidence to prove the
claim;
2) A Department of Justice Demand Letter (Exhibit 8)
which will be used by the Onited States Attorney to
notify the debtor that the Department of Justice has
received the claim for litigation and suit will be
brought unless full payment is made within 10 days
(please note that this letter need only be prepared
and included in the CCUt package for those Onited
States Attorneys' offices listed on the Attachment
to Exhibit 8);
3) A Department of Justice Acknowledgment ('Comeback
Letter") (Exhibit 9) which will be used by the
Onited States Attorney to officially notify the
agency that the claim which was referred has been
received and will give the referring agency the
Onited States Attorney's claim number) and
4) A Department of Justice Deficiency-or Declination
Letter ("Sendback Letter*) (Exhibit 10) which will
be used by the Onited States Attorney to send
deficient claims, or claims which the Onited States
Attorney declines to litigate, back to the agency.
The letters should be prepared in the same format reflected in
the exhibits.
The Department, of Justice solicited comments on the use, con-
tent and format of the report from divers Federal agencies. These
comments expressed 'almost universal support for the concept of the
report. To the extent possible, all agency suggestions for changes
to the report, or that additional items be included in the report,
were incorporated. Several agencies were concerned that some of
the items of information requested on the report may be superfluous
to their particular claims or impossible to obtain. Inability to
obtain all information required by the report should not be viewed
as a bar to referral of claims to Justice. However, information
requested in the litigation report should be provided to the extent
feasible. Questions of feasibility should be answered on the basis
of and with a clear understanding of the fact that claims referred
to Jtfrtice are for litigation following aggressive administrative
collection action oy the referring agency, and that on the basis
of the information contained in the CCLR, Including ThYTgency's
determination ot the deDtor¥s~"abTTT'ty to pay* and the accompanying
supporting documentation or agency debtor file. Justice should
be able to successfully prosecute the claims referred to it
to judgment and enforce collection of £ substantial sum. Any
omissions should be explained in the appropriate item on the
face of the report.
-3-
FIF1A Compliance/Enforcement A-34
-------
Appendix _____ Exhibit A-7
We realize that M agencies gain experience using the CCLR,
problems may arise which could not be foreseen while the report
was being developed. Although completion of the report is
required, its content and format may be modified in the future
baaed upon any commits or suggestions from agencies using
the report. Comments should be brought to the attention of
Mr. Edward B. Puna ton, .Assistant-. Director, Debt Collection
Section,; Executive Office, for 0. S. Attorneys, Suite 803,
5205 Leesburg Pike, rails Church, Virginia 22041. In the near
future, the General Accounting Office will incorporate the CCLR
and accompanying materials in Title 4 of the General Accounting
Office Policy and Procedures Manual for the Guidance of Federal
Agencies.
-4-
FIFRA Goapliance/Eoforceaent A-35 Guidance *a«"^l 1983
-------
Appendix
Exhibit A-7
>*<
CLAIMS COLLECTION LITIOATION
(OB MBDTMM of rvfwrlng «go»cy)
XDrMI
Tot XWItW» STvtSS
XJudicial District) of ISt*t.
u tlw lotil limrwt *•.
!• tto torvl Mlalrfrotlva
I Is tfta total poMlty
Xtatcl
!• ttw tvtvl mem
li *» •MM*) lirt«r«t
l« t*« JOt «•*».
TkU elala I* r«fvr« 1e yo« fer suit «M Mdi otMr •etloi a yai ««• ^pro»rl«t» to
wfarei CDllaetlan. HM prior action IMM by ml* agowy Md tta lnforwtlo* «ro»l«od yon o
pil« fully «ritt> r«MT»l Cl«l« ColloetloH StanMr4« (4 Cflt tarts 101-109). n» tttmmftmttm
til 4 CM ftrts l«-4fB !• sttMsari *M th» Inforwrioii you ••«• isausatx fol low.
I. Os*» of UPHII
2. Social Saearlty
3. Als*
ILIst
o> iat«/«p»lleatlait
of oseter. If
t*aa» actual slaes of raaldsaea. not
varlflad
7. »H
wrlflad ky/Mioai
Tl
t. Ostrtar lusoM UMstrwls«])
I8>o» l»f
-------
Appendix
Exhibit A-7
>t<
/
%
11. Stifuta of llaltatleaa (SOI) rum on:
(Data?]
(12. ccat'd.)
13. tlrtt oaaaa* tar aaMant aaa» ant
lOatatl
15. Mrrtio* of f lr«t danaf*:
IC.Q.. toftar. ••! lor «TI
17. U»t Maaad aada byt
J*iO|Jjakagant. official, off teat)
• J», ™0a*«or;.» raaacaaaj . •
.- .. • Sjjgg^jg^jgLilMJSlSlLSBSSlLm— • -
(20. eant'dt> to tt» clala. If know. 1
21. Haapanaa, If aay, to dabtor's dlspvta*
1 /tenner rdabonaa to daMer*! dl>out«.l
j22Leent'«.) »««l(*bU to «Mter. HOB «•
• Itti r«a«rd tlMrcto. If «iv.l
23. CoBproBlw of f«r«* w «l leltM:
HOaotattl
<24. conr'a.) Tt» tfabtor or effarad tt» «
macro* !«• offer 9l««n: If w. vtat MS
23. RaaaonsB by loancy or 4atof)ofs
aaauirr r«eo»»r«dT 61 «• orfwr r»(«v«nt of (Orr» of datmiliwtloii.l
30. Tbtil (MMMr/aMMit of pafBMts
• • -- -..mj&m KI CM
32. AaDunf appllod to elMroai anasMd*
pMBltlo* «M latarwti
S
•MMltlot «d aceruM Intararri
S
n* rrnt'd.l iiatttir ara IB ta MODI ltd. 1
' '
36. OaotorU last payaant;
SlAaount and dataTI
C
>T< tt<
12, BMU for SOL datat
(£,2lj oafault drfa. lait pa»aanf datal
14. plr»t «aaaad aada byi
(Mho, t,«v aaiairr. official^ offleaT)
f«W &4W^ ^••xid for pfltyMWf »ba) OHI
lOataTI
It. Mttiod of laat aaaandt
|E.a.. lattar. otana. ooraonal eantarTTI
,20. >aaa»- aittur 4J a»ta «l«<«i
22. Bdwwtlon of ad*lal«lratl«* roaadla*:
{Daaerlba adalnlstratlva raaadloi
6tw Ma advlaad of UMB. and oabtor** aerlon
24. taala for eoavoBlMi
{•at • eeaoraalia offor alleltad fro*
•totor by tHa claimant aoonevT Wat • basis for
Tfia beslstl
2ft. Othvs logally rasaoislbla for dabt:
I£^Q, . banaf Iclarl-n CdHlir'i itors. 1
I'M 'Ttwmty Whir «r -MMrarT (kcMon,
• fm | ffltfty not 7 1 f vaM *mt scT Ion And wtut
tillm.l i
fOHOION
29. Original principal oMd by dabtor:
SIAaaunfTI
31. AaaaiT apfllad to arlncipali
• *
33. Balanca dua oa principal:
t
33. faplaln application of aaMantu
(b^laln ho* aivawits roealMd froa tt»
37. lotvast accrual tfatai
fTl»a data from •ftlctt Intaroit Is dua.i
-2-
Haao) .
4
A-37
Guin
«I 1983
-------
Appendix
Exhibit A-7
tl
ry«
City. St»t« am ZIP Coa«M
UlY
[faiilriyar't OOP* m«O«rtl
n«Ttl
41. Mary *vifi«>
T|
llaoloor'i anoo«
«Mirrr 10 mr
lEnlaln. I __^
49. Tto teMocl
a»«crlb» «nd
loi »IH M*I*T y«« In looting
lootleo of
In Mlett Tta U»ltM St*«M
In •ftloi
v«lu> a» ar
47. It
or Mid In uammut, tta fair avMrr
Enelaln M«l« «ar f»lr •»•»»» or ««MT
V«IM o» nil* el*la wault Mi
loa alvxi. If any.; _
Mtk *• raojr*
rM»an«ll«
lltmtil
•• aBlllty « pay. M •tfliw* by
!• coMroilM offer by TM >»tj MU!« k»i
6«Dl«ln In raHflomBlo
IMnntlm offlcirt
•M»». tlTU. «o»«ey. ••Ulna
£3.
m>tliia/«l«BW»l«s off lor
/••Mr:
91.
'S^afM flaproprlof loii
-J-
FIFRA Gcmpliance/Eoforceaent
A-38
uiane
1983
-------
Appendix
Exhibit A-7
It I con bo of o»y fyrThor oulftoneo in ml* •error, »100*0 do not hooltrro to coll oo
•t to* ivokor glvo* okcv*.
> tor «*M*lt*g .too.CUtat
>rritui
>irn
Th» ij»nli. Tt» brockets, tn* •*•«. or ft* tvrt >ltkla *ltMr of tt» l«nw .III not
miMT a* «• flMl tf»M or prlm*d report, but tmn kMn l»clu*M koro to •xpldn or
clarify «• ojMtloac/lf«&. Tho mryln «M tM •ttlnes cro HMIcato* ea fho flrct
MM. »e» wr. tt»y MM not k» eMngM «• a*l«t» t*» wrlr* roporr. Dili mart
•It* «rrt»ni l*«»r*) t»«t om irut.
Tko QMroji en too flror p»go U txo •Inilo* ottrou* Mr toj
o oMroM.*! Ibo JuOlelw tlitrlcr aoy bo «-irro«
or -Olttrlcr of Konooo,* oo opprorl«r». HM Sroto OM bo too
lartor oBbrovloripn. ^^^_
Olopo or •ouTtld*
Olttrler of ta
•ceooroo: 1*0 c*»lt«i
FIFRA Oovpllance/Baforceaent
A-39
1983
-------
Appendix Exhibit A-7
OCTAILB.
If mn tfuet it
fclxl ma» 5.
FXFRA Goapllance/Eoforceaent A-40 Guidance Manual 1983.
-------
Appendix
Exhibit A-7
GADS
Itaa ani
ion
CUiaa ttOKetion TJf Igatlm
(OCLB)
provtda t&a
CUiw CeAlactilbn stana«na«JT"C.y.iU iSlOl-TQg)
ia^™1^1K-x^™ W
claia .
iadiatiag ttue
Ability to Ifcy*
OB a oultipl*
oC £Msibillty
en tat boil of «d witt a elMT iBteBStaoding of tot fact
tnat cLii«« xaftoad to
ion contain*! in tna
tlon of a aueitaBtial
ataouldb> abla to
-------
Appendix Exhibit A-7
lieu of inserting tfce answer* onto the actual report form, however, great car*
should be taken by tht agency to assure that tht Item numbers and answers pro-
vidad in the running list imtesujuJ to the Item numbers on the report. This
method of providing information should both sinplify and expedite the agency's
preparation of the OCLR. In addition, it should allow for better utilization
of available word and data processing equipment to prepare the report.
M both the OCLR and the following explanations state, all documentation
which supports the claim or, where appropriate, the agency's debtor file should
be attached to the report. In addition, the following materials should be
red and included in the OCLR
1) A Certificate of Indebtedness which will provide the United States
Attorney with a complete statement of how the claim aroee (including
the statutory, regulatory, or other authority from which the claim
arose, a summary statement or resume of the factual basis for the
claim, an itemization of the dates and amounts of any payments nude
by the debtor to the agency or any credits made by the agency to the
debtor, and an itemization of the amount due and owing) and which
may be offered by the United States Attorney into evidence to prove
the claimj
2) A Oepattaenl of Justice Demand better (Exhibit 8) which will be
used by the United States Attorney to notify the debtor that the
Department of Justice has received the claim for litigation and
suit will be brought unless full payment is aade within 10 days
(please note that this letter need only be prepared and included
in the OCLR package for those United States Attorneys' offices
listed on the Attachment to Exhibit 8);
3) A Depenaenl of Justice Acknowledgment (•Comeback Letter") (Exhibit
9) which win be used by the United States Attorney to officially
notify the agency that the claim which was referred has been
received and give the referring agency the United states Attorney's
claim number} and
4) A Dnau.lme»L of Justice Deficiency or Declination Letter (Exhibit
10) which will be used by the United States Attorney to send defi-
cient claims, or claims which the United states Attorney declines
to litigate, back to the agency.
letters should be prepared in the same format reflected in the exhibits.
TOP FOHTXCN
,*H Date: Show the date that the OCLR is signed.
Inside Address Slnply show "United States Attorney," the
or To" Block: Federal judicial district, and the city,
state and zip code. The judicial district
may be written, "Southern District of Iowa,"
or "District of Kansas," a* appropriate.
The state can be the accepted two
-2-
FXFBA flnggpi < anff*/Hnf<>T^^aent A-42 t±rtjpnff Manual 1983
-------
Appendix
Exhibit A-7
letter abbreviation. A complete nailing
address far the united States Attorney
should be provided on the nailing envelope.
(Exhibit 11 provides cm-rent nailing
oar united States Attorneys.)
"near Block:
Debtor's Pull Nan:
Debtor's Nailing
Address:
Debtor's File or
Reference Nunber:
Total Principal Due:
(When using the "NenorandutT or "Poem* for-
,nat] Show .the nane, title, complete nailing
address and PIS telephone nunber of the
agency official who will sign the report.
Show the last, first and full niddle name
or niddle initial of the debtor. Itoere
appropriate, indicate whether ttelitu is
a "ST.," -Jr.," "II," etc.
Show the complete nailing address for the
debtor which has been verified by the agency
«ithin-the past six nonths.
Show the agency's debtor file or reference
ntBfeer.
Show the anount of principal due on the
fflatp*! itfisre fees and COBUI advanced are
to be recovered fr^tn tne debtor, include
then in the principal. The Certification of
Indebtedness which you attach should include
an explanation and itenizaticn when the
total principal due is a cumulative total
and combines separate items (e.g., recover-
able sees and o >stB advanced, promissory
notes of different dates or amounts).
Ttotal Interest Due:
total Administrative
rOharges
Show the total ancmnt of .interest due
of: Indebtedness. '• Bte OKI Lif icat ion of
Indebtedness which you attach should include
an itenization and explanation of interest
charges and when, for example, the total
interest due includes separate items such as
interest due en more than one promissory note
or a aeries of discrete claims, each interest
charge should be itemized and explained.
Show the total anount, through the date of
tne Certification of Indebtedness, of any
by the agency to cow the costs of
processing and handling the claim pursuant to
the Debt Collection Act of 1982, P.L. 97-365,
$11(e)(2). Ihe Certification of Indebtedness
which you attach should include an itaniza-
tion and explanation of such charges.
-3-
FIFRA Ckmpliance/Bof or
A-43
Gui
1983
-------
Appendix
Exhibit A-7
Tbtal Penalty
Charges Due:
Total Mount Duet
Annual XntctMt
Ratet
SOL (Statute of
Uaitations) Dstet
ITEM it
Show th* total amount, through the date of
the Certification of Indebtedness, of any
penalty charges which nay nave been assessed
by the agency Ear debtor's failure to pay
any portion of a debt more than ninety (90)
days peat due pursuant to the Debt Collection
M* of 1962, P.L. 97-365 $11(e)(2). The
Certification of Indebtedness which you
attach should include an itamization and
explanation of such penalty charges.
it due
the
Snow the total (Grand total)
en the data through the date of
Certification of Indebtedness.
ITEM 2:
ITEM 3t
Show the rate of annual interest charged
by the agency on the debt.
Show the saee statute of limitations date
which is to be entered at Item 11 of the
COR.
THE LEtfJUK
Show the debtor's date of birth. In the
case of a non-beneficiary debtor (e.g., a
representative payee) and the date~otoirth
of the debtor is unknown, show "unknown."
In the event that the debtor is a corpora-
tion or partnership, show "Not applicable
[corporate/partnership] debtor."
Show the debtor's social security nunber.
In the case of a non-beneficiary and the
debtor's social security nusber is unknown,
show •unknown.'
In the event that the debtor is a corpora-
tion or a partnership, show the tax identi-
fication nunber of the corporation. If the
tax identification nmber of the corporate
or partnership debtor is unknown, show
•unknown.*
Show any other neae(s) (alias(es)) used
by the debtor. If the debtor is a sole
proprietor, show the new under which the
sole proprietor conducts business (e.g.,
d/b/a (doing business as) Smith's Sundries).
If no aliases, corporate, partnership, or
sole [itVHIL ietfckt jtiip nones are used by the
debtor, or known, show "Not applicable"
or •Unknown."
*_/./.
-------
Appendix Exhibit A-7
ZXBl 4: Show the nsne(s) the debtor used on the
initial instrument (e.g., application for
benefits or loan application) which gave
rise to the indebtedness.
RBI 5: Show the debtor's complete present residence
~ ; -." 'address* i.e.,.:address of dwelling in which
the dabtoFTTves so that he or she may be
found for personal service of legal process
(mrplaip* *** «M"na»«). Do not provide a
lost Office Box aJJiujs asThe residence
address. fine U.S. Postal Service will con-
vert a Post Office BOB addran to a residence
street address upon written request.] It is
necessary for the united States Attorney to
have current residence infonation in order
to aaJoe proapt and effective service of proc-
• -. • ^ttBi-Bjsae.'of the ,oBuntylo^llBB^'*^MBa^Vl''^fBaP ^^4*A "'
that verified the debtor's present telephone
nuober (e.9., the document which verifies
or the acLhod used 60 aeJce the verification)
and the aost recent date within the last six
Berths that the debtor's present telephone
muter was verified.
RBI 9t Show any information which will assist the
united States Attorney in relocating the
he •cc-she.JBBM «fnji.
*».-•.
and telephone nunbers of relatives who say
wading address which the debtor left with
neighbors or an eaployer, or the debtor's
drivers license nusfaar. If the
the debt to
or. IE the agency
a ma««i'Bial credit
VTRRA firnm-nll »nt>o flirtfn-rr*f
-------
Appendix
Exhibit A-7
bureau, include the date the debt was
reported and the name, address and telephone
number of the oonrnercial credit bureau to
which
[Stamping "Address Correction Requested'
under the return address block on envelopes
mailed to the debtor will alert the U.S.
Metal Service to infonn the creditor
agency of changes in the debtor's address.
Registered Bail with forwarding and
return-receipt requested is also an
effective way to locate debtors. In
addition, the O.S. Postal Service retains
change of address notices for one year
after they have been filed by a patron.]
to the case of a corporate debtor, include
the current residence address of the prin-
cipal officers of the corporation. Where
there is a legal successor in interest to
the corporate debtor, the sane information
requested in Item 5, above, and this item,
should be provided for the successor party
or corporation.
•am CIAJM
ITEM lOt
Briefly describe or characterize the claim
or cause of action (e.g. , •Social Security
Administration benefitoverpaynent under
U.S.C. S ").
t
Describe in particu-
ira
ran 12:
_
larity the nature and type of benefit ever-
payment, loan default, or other action by
the debtor which gave rise to the claim. As
•now in the parenthetical example above, be
sure to identify the statutory, regulatory,
or other authority from which the claim
arose. In the event the debtor has filed
a bankruptcy petition, include bankruptcy
related information in the description of
the claim or cause of action. Attach a copy
of the initial notice to the debtor of the
benefit uam.y*yueHt loan default, etc.
Show the last date (month, day, year) on
which suit can be brought to recover the
claim or debt, i.e., toe statute of limi-
tations (SOL) data.
Show the basis for SOL (statute of limita-
tions) date, e.g., the default date, date
ent. As
of last payment
a general rule, unl
FXFSA Gbapllance/Eoforceaent
A-46
If mil a 1
-------
Appendix
Exhibit A-7
13s
ZZB4 14:
1994 15:
IHM 16:
17s
the debtor made a partial payment on the
debt, the statute of limitations date would
be based upon the date the agency first
bacaea aware of the debt. In the event
a partial payment was mate by the debtor,
the statute of limitations date would be
based upon the date of the debtor's last
peyment. (See 28 OA.C. $2415 which pro-
vides, in part, that ". . . every action
for money damages brought by the united
State* . . . shan be barred unless the
complaint is filed within six years after
the n£ht of action accrues • * <
in the event of later partial payment
or written acknowledgment of debt, the
V^flt^h f^f ^af*^4fVl anHjiH r^a> fbaaaaaWl ^n
'again at the time of each such payment or
. . .')
;vBxv ^BM^aBc*<(month, dey> '^aar) vn which
the first agency demand for payment was
made on tsie debtor.
Show the name of the agency official,
agent, or office that made the first
demand for payment on the debtor.
Show bow the first agency demand for
payment was conaunicated to the debtor
(e.g., by letter, mailgram).
Show tha date (month, day, year) on which
the last agency demand foe payment was
made on the debtor.
or office that made the last demand
am 18:
nat 19:
Show how the last agency demand for payment
was communicated to the debtor (e.g., by
letter, telephone, personal contact with
the debtor)•
Briefly explain the debtor's response, if
any, to the agency's rtaanmli for payment,
faer)-«< any
• in 4Mhich isuch
unicated to the agency
(e»g., by letter, telephone, personal
contact). If the debtor did not respond
to the agency's demands for payment, stew
-7-
FIFKA
A-47
1983
-------
Appendix
Exhibit A-7
TOM 30:
If the debtor denied the claim, in «*»le or
in pert, give the date (month, day, year)
of such denial and explain how the debtor's
denial of the claim was mad* known to the
agency (e.g., letter, telephone call, person-
al interview). Briefly explain the debtor's
position with respect to the claim, if kno*n.
Explain any defenses that the debtor raised
or can be expected to raise with tespGLt bo
the claim and the Merits of such defenses.
ITEM 21:
ITEM 22:
Attach copies of any agency records docu-
menting the debtor's denial. If the debtor
did not dispute the claim, in W»le or in
part, show "Claim not disputed by debtor."
Briefly explain any agency response to the
debtor's denial of the claim. Attach copies
of any agency response to the debtor's
denial, in whole or in part, of the claim.
Otherwise, show 'Ha agency response." If
the claim we* not disputed by the debtor,
show "Mat applicable."
Briefly describe any administrative remedies
and/or rights available to the debtor (e.g.,
application for waiver, request for recon-
sideration, appeal, etc.). Explain how the
debtor was apprised of the availability of
those remedies and/or rights, and what action
was taken by the debtor with regard thereto.
9ew the date (month, day, year) of any such
application for waiver, request for recon-
sideration, or appeal. Attach copies of any
docunents evidencing such debtor's application
for waiver, request Cor reconsideration, or
appeal. Explain what agency action was taken
in response to the debtor's exercise of or
attempts to exercise rights to administrative
remedies. Sou the date (month, day, year) of
any such "agency action" and attach copies of
docunents evidencing the same. Explain any
•technical defenses" (procedural deficiencies)
that the debtor has raised or can be expected
to raise with respect to the claim and the
merits of such defenses. (Defenses to the
merits of the claim, as distinguished from
•technical defenses,' are to be discussed
under Items 20 and 21.)
Describe and discuss the merits of any
counterclaim by the debtor against the
united States, as well as any claim for
offset whish the debtor may assert.
-8-
FIFEA Gmpliance/Enforcesjent
A-48
Guidance _ffaniu» 1
-------
Appendix Exhibit A-7
XXEM 23: Show the amount and date (month, day, year)
of any oomprcmise offer made by the agency
or elicited from the debtor.
HEM 24< , Briefly explain whether the compromise offer
; .was elicited from the debtor or offered to
the debtor by the agency. Explain the basis
of or reason for the amount of the compro-
mise offer, if known.
25s Show the agency or debtor's response (speci-
fy which} to the aaiptuniiee offer and the
reason for the acceptance or rejection of
the offer in compromise (e.g., "the debtor
asserted that he had no funds with which to
pay the compromise offered by the agency*
' discretionary expenditures are 10 times the
RBI 26* Show the named) and present residence
address(es) of any other peraon(s) liable
for repayment of the debt (e.g., benefici-
corporate officers)• Jhe present residence
aJJieat provided should be that of the
dwelling in which the person lives so that
he or she may be personally served with
legal process (camplaint"anS swoons). If
.no other person is legally responsible for
the debt, show "tone.*
27s
other pertiee. •ftcDl«ini
-------
Appendix
Exhibit A-7
how the claia arose (including the statutory,
regulatory, or other authority from which the
claia arose, a sunaary statement or resume
of tbe factual basis for the claim, an itsni-
sation of the dates and amounts of any pay-
ments aade by the debtor to tbe agency or any
credits aade by tbe agency to the debtor, and
an itemization of the anoint due and owing)
and should be fix the fr" amount of the debt
show) on the first page of the report. Attach
tbe Certificate of Indebtedness to the report.
Zn the event that the debtor bee filed a
bankruptcy petition and if tbe nature of the
security agreement and the property In which
tbe Ohited States has a security interest is
each that tbe debtor can reaffirm the debt,
then list the number, dates and amounts of
t to which the debtor is in
29s
Iw. fel.
ay cn
Although there nay be aany exceptions, this
anoint will usually be the principal anoint
of tbe indebtedness before the accrual of
interest and be Cure the debtor has aade any
payments.
net 30:
9>ow the *•**•! Hir*TT and anoint of any
payeents made by the debtor to the agency
or tbe agency's assignor, or any credits
made by the agency to the debtor, foe
example, if 5 payments of $25.00 each, enow
•5 psy*ants/$125*; if 2 credits of $30.00
each, show -2 credits/560.' indicate the
nature of such paynenta or credits, i.e.,
whether they were, for exanple, by dHset,
lunp sun or installaent. If no pavaents or
credits ware aade, show "None.'
31t
32:
33:
Zf peyacnts or credits were Bade, sikjw the
anoint which was applied to the principal of
the debt. Otherwise, show "Mot applicable."
Show the total anoint which MS applied to
any administrative charges asamsed by the
agency, any penalty chargee • ' by the
agency, and the interest due on the principal
anoint of tbe debt, if applicable. Zf not,
show "Not applicable."
Show tbe remaining balance due on the prin-
cipal anouiL of the debt. Zn the event that
the debtor has filed a bankruptcy petition,
show the balance due on tbe principal as of
tbe date tbe petition tea filed.
-10-
FIFRA Ompliance/Enforceaent
A-50
Guidance Manual 1983.
-------
Appendix Exhibit A-7
TTEK 34: Show the balance due on any administrative
charges assessed by the agency, any penalty
charges aanesiwil by the agency, and the
accrued interest en the principal anoint of
the debt, if applicable. If not, snow "Mat
applicable.* m the event that the debtor has
:\ filed a bankruptcy petition, show the interest
doe Co the date the petition was filed and
daily »"•'•"»* of interest Uif'••^*M'-
ZXEN 35s Bcplain how piysants received from the
are to be applied. Rnally, tfcen a debt
is paid in partial or instaUnent peywnts,
aaouits received by the agency should be
applied first to any outstanding administra-
tive onsBges which have been assessed by the
agency pursuant to the Debt Collection Act of
- 1962,-P.U 97-365, lll(eH2Jr second, to any
by the agency tor debtor's failure to
pay any portion of a debt sere than ninety (90)
days past **» pursuant to the Debt Collection
Act of 1982, P.L. 97-365, 511(e)(2)> third, to
principal. •
RBI 36: Show the laanrit and date (spnth, day, year)
of the last psjsMnt which the debtor svde
to the agency or the agency's assignor.
RBI 37* Show the interest computation or interest
accrual date (i.e., the date from which
interest is dueT7~if applicable. If not,
stow "Not applicable."
RBI 38: Snow the naee, cpopieta address and telephone
nuBtaer of the debtor's present eaployer. If
the debtor's actual place of work is different
fraa the espiLoyer's address and is know,
provide the eddieee and telephone nueber of
the debtor's vork place. This infatuation
«U1 assist tfae Dnited States Attorney in
asking i»in%< service of p * i •»• .upon the
or'her
XXBl 39: Show the date (Berth, day, year) the debtor's
enployBant was verified by the agency within
the past sin sonths, and the *WIPP* of that
verification (e^., the debtor, debtor's
-11-
FIFRA Govpllance/OiforcesKnt A-51 Guidance Manual 1983
-------
Appendix Exhibit A-7
ZIBt 40: Show the debtor's weekly or monthly salary
and indicate whether the amount shown is
gross or net salary. For example, ahow
•$350/weekly/gross.•
REN 41 j Show tne date (month, day, year) the salary
was verified by the agency within the past
six months, and the source of that verifi-
cation (e.0^, the debtor, debtor's employer,
current documentation).
HEN 42: If applicable and known, show the name,
address and telephone rof1"'1^' of the
spouse's employer. If none of the
information is available, ahow "Nat
available.'
REN 43: If applicable, ahow the date (month, day,
year) the spouse's employment was verified
by the agency within the past six months,
and the source of that verification (e.g.,
spouse's employer, current documentation).
If none of the information is available,
show "Mot available."
DEBIOt'S ABttRY 10 VKt
44: Explain the evidence that discloses and the
basis for the agency's deteonination that,
given the debtor's present or likely future
avaiiaEITity at assets or income, a sub-
stantial sum may be obtained by enforced
collection proceedings against the debtor.
in* agency's determination should take into
account any exemptions to which the debtor
is entitled under state and Federal law,
the debtor's age and health, the debtor's
education, present and potential income,
number of dependents, inheritance prospects,
and the possibility that assets have been
concealed or improperly transferred. Also,
provide information concerning any legal
proceedings, such as proceedings in bank-
ruptcy, that may affect the government's
ability to collect the debt. Attach to
the report all supporting documentation
including, for example, a current credit
tepuit or financial statement. In the
event of a eaporatje debtor, an audited
balance sheet of the corporate
be attached.
-12-
FIFRA Grapllance/EoforceBent A-52 Guidance Manual 1983
-------
Appendix
Exhibit A-7
(tote: A realistic determination of a
debtor's financial ability to pay is essen-
tial to enforced collection, particularly
with regard to small, unsecured claims.
ine financial evidence which is provided to
the united States Attorney oust be current
tfJQ iflssVsVJBufftaB *tPQi sVUVt QiSdO8B tftsSt tn1^
debtor has sufficient incomt to pay the
debt, or unencuBbered non^exenpt assets,
real or personal, which can be used to
liquidate the debt. Generally, if there
is insufficient incase or unencumbered
to meet the debtor s
•necessaries" (i.e., indispensable things,
or things proper and useful, oar day-to-day
living, sucb as food, clothing, medical
attention, and a suitable place of resi-
»), the^date should not be Deferred to
or litigation
and enforced collection. A good rule of
tbuab tor determining whether there is a
rsesnnshle |s.>jspeut for c.forced collection
of a substantial SUB on a •••ail, unsecurea"
cZJum is tnet sucna claim should not be
referred unless the evidence provided
diwcloees that tfae^debter has sufficient
to pay for 'necessaries* and at
$1800 over a 3-year period7"or that
HEM 45:
or property which is at least 10
times greater in value than the amount of
the obligation.
Provide any Information which will assist
^m»l [|[j £SSl
in *ieh the 'Ghited
States has or may have a security 'nterest.
Describe and give the last Jmown location
of such property. Describe *nd attach
security agreements or real estate or
chattel sortganes which give the United
States a security interest (e.q., papers in
the agency's file which describe or show
what ptm«ety was pledged). Show the asset
cr fair market value of any such real or
JJSITsuual jjBaisu. ty 4or •
-------
Appendix
Exhibit A-7
ITEM 46:
XTBt 47:
Provide any information tnich will assist
the Qhited States Attorney in locating
other assets of the debtor (i.e., assets
other than pledged pixipetLy snowh in Item
45). Particular care should be given to
identifying Hjn-eaemjt assets of the debtor
(e.g., real estate which is not the hone-
of the debtor, a second vehicle,
•tional vessels, etc.). In the
of a corporate debtor, provide any
information which will assist the united
States Attorney in locating other assets
of the corporation. If this information
is unknown, show "Unknown."
VAIJ3E Of CLAIM
Show and explain the fair csrket or asset
value of the claim, i.e., the amount of
cash which may be realized as a result
of litigation of the claiau Bcplain the
• basis tor the value given. The agency's
determination of the value of the claim
should be based in part upon the ratio
which the amount of the claim or debt bears
to the aeount of the debtor's assets and
income which can be realized by enforced
collection and upon the unencusbered value
(after prior liens have been satisfied)
of any property of the debtor in tciicb
the United States has a seemed interest.
The information provided should reflect
the true value of the claim and, thus,
enable~a»e United States Attorney to sore
accurately determine the amount which the
government is likely to recover by enforced
collection. See the rule of thunb in the
Note at Item 44, above, for determining
whether there is a reasonable prospect for
48t
enforced collection of a. substantial sum.
With due regard to the debtor's ability to
pay as definedby Item 44, above, show the
which the claim can reasonably be settled
the aeount shown. This aeount should bear
a direct relationship to the debtor's
by garnishment, levy, or attachment. The
agency's iei.i'mmii»1srln» will provide the
United states Attorney with the
-14-
FIFKA Gnaplii
i/Eofor
A-54
Guidance Manual 1983
-------
Appendix Exhibit A-7
intonation and guidance for an informed
consideration of any compromise offer or
settlement the debtor may mate. Further-
more, having such information beforehand
will eliminate the delay and expense which
wuld otherwise be necessary for the united
States.Attorney to obtain the agency's
assessment of a debtor's "ry'^** offer
made after the claim has been referred to
the united States Attorney.
TRANSFER OR lliHHrr CEFQSIT Of FCND6
IBM 49t Show the name, title, complete mailing
address and PIS telephone HIST^T of the
agency official at the accounting code
location, as set forth in Item SO below,
s ^responsible ,£oc cmeolving any
to the individual claim.
ZTBB 50 In the near future, monies collected by
and 51: united States Attorneys will be deposited
directly to the Treasury or to banns
designated by the Treasury to receive such
deposits. Onder the system being developed,
monies will be deposited to a Department of
justice Suspense Account and then, on a
regular basis, funds will be transferred
to the referring agencies, united States
Attorneys' offices will provide en a regular
basis accountings of the amounts of payments
received from each debtor to the individuals
within the agencies responsible foe handling
To accommodate these inter-agency fund
transfers (in accordance with the Treasury
Fiscal Requirements Mutual) the information
requested in Items SO and 51 is needed.
Therefore, at Item 50 show the agency
accounting location code/disbursing officer
oode/symbol/huaber to which the accounting
documents on recovery from the debtor on
referred claias should be initially fcr-
If -^or •gency ooes not have an accounting
location code, show the disbursing office
oade/sjnbal/number.) At Item 51 show the
Treasury appropriation/suspense account/fund
n?mfH number (**iiclitvei is appropriate) to
which any recovery from the debtor should be
-15-
FIFRA Gompliance/Eaforceaent A-55 Guidance M*"IM»I 1983
-------
Appendix
Exhibit A-7
credited. (
ate agency prefix.)
to include the appropri-
fttote: Pl«
that the anoint of recovery representing
court costs should always be deposited
into Treasury Miscellaneous Receipts Account
No. 003099, substituting your agency prefix
for the two zeros in this symbol.]
•Complimentary
dosing- Block:
•Agency Employee
Responsible for
Handling the
Claim" Block:
•Attachments as
Listed1 Block:
(MMn using the "Letter* format ] Show the
nase, title, complete smiling address, and
PtS telephone ninber of the agency official
MOO will sign the report.
the nan, title, complete mailing
and PTS telephone nunber of the
agency employee Mho is most knowledgeable
of the history, facts and details of the
individual claim and Mho is responsible for
answering any questions or resolving any
problems which may arise with respect to
the individual claim.
List all supporting dceunentaticn which
is included in the OCLR package. All
documents provided should be legible.
-16-
-------
Appendix Exhibit A-7
Department of Justice Demand Letter
.U.S. DEPARTMENT OP JUSTICE
:BHITEO STATES ATTORNEY
>[Debtor's full name]
>[Debtor's mailing address]
>Re: [Name of Agency] Indebtedness
XAaount of claim].
Dear>[Mr./Mrs./Ms.]>[Debtor's surname]:
The [Name of Agency] claims that you are indebted to the Onited
States for the amount shown above. The basis for the claim is
set forth on the enclosed Certificate of Indebtedness. It is the
responsibility of this office to file suit to collect debts owed
to the United States after all efforts by the [Name of Agency] to
collect have failed.
Unless payment in full is received within the next ten (10) days,
we will be compelled to file suit against you in Onited States
District Court to recover the full amount of the claim. In the
latter event, court costs, Onited States Marshal's fees and
interest will be added to the amount you now owe. Enforced
collection can -than ^be^made ^by .the Onitad States Jtarahal .-who
T»ey :fce ordered to. attach and sail .any aon i sTampt 'property you
•have now or may acquire in the future.
Your check or money order for the amount shown above should be
made payable to "Treasurer of the Onited States' and mailed to
us in the enclosed self-addressed envelope within ten (10) days.
Only your full cooperation and prompt payment of the amount of
the claim will make suit and enforced collection unnecessary.
Very truly yours,
>[Name]
Onited States Attorney
Enclosure
JIT •]
-------
Appendix
Exhibit A-7
United States Attorneys' Offices For Which a
Department of Justice Demand Letter Should
be Prepared and Included in the CCLR Package
Judicial District
Alabama, Middle
Alabama, Southern
Alaska
Arkansas, Eastern
Arkansas, Western
California, Northern
Connecticut
Delaware
Florida, Northern
Georgia, Middle
Hawaii
Zowa, Northern
Kansas
Louisiana, Middle
Mississippi, Southern
Missouri, Eastern
Missouri, Western
Nebraska
Nevada
New Hampshire
New York, Eastern
New York, Southern
New York, Western
North Carolina, Middle
North Carolina, Western
Oregon
Pennsylvania, Middle
Puerto Rico
Rhode island
South Carolina
Tennessee, Middle
Texas, Western
Vermont
Virginia, Western
West Virginia, Northern
City of Headquarters Office
Montgomery
Mobile
Anchorage
Little Rock
Fort Smith
San Francisco
Wew Haven
Wilmington
Pensacola
Macon
Honolulu
Cedar Rapids
Topeka
Baton Rouge
Jackson
St. Louis
Kansas City
Omaha
Las Vegas
Concord
. Brooklyn
New York
Buffalo
Greensboro
Asheville
Portland
Scranton
Bato Rey
Providence
Columbia
Nashville
San Antonio
Burlington
Roanoke
Wheeling
[Attachment to Exhibit 8]
FIFRA Compliance/Enforcement
fTVrr' If. .-
-------
Appendix Exhibit A-7
Department of Justice Acknowledgment "Comeback Letter'
U.S. DEPARTMENT OF JUSTICE
UNITED STATES ATTORNEY
XName]
>(Title)
>[Agency]
>[Mailing address]
>
Jto* Beevipt :of [Naae Of - Agency] Claim
>tDebtor'« full name; LAST NAME, first name, middle name]
>[Agency's file or claim identification number]
United States Attorney's claim number:
Oear> t
This is to acknowledge receipt of the above-referenced claim
which was sent to this office for enforced collection. You will
be advised of the success of our efforts in this regard in due
course. If your future correspondence or other communication with
this office relative to this matter references the debtor's full
• name and our civil claim number above, we will be able to respond
more quickly. Please annotate your file accordingly.
Very truly yours.
>[Name]
United States Attorney
»J
FIFRA.J3pma>11 mice/Enfpresent A-5Q nniASn~!*^#.~-***ot ...loo*
-------
Appendix
Exhibit A-7
Department of Justice Deficiency or Declination Letter
U.S. DEPARTMENT OF JUSTICE
UNITED STATES ATTORNEY
>[Naoe]
> [Title]
>( Agency)
> [Mail ing address]
Ret [Naae of Agency] Claim
> [Debtor's full name; LAST NAME, first nane, middle name]
> [Agency's file or claim identification number]
Dear> t
Our initial review of the above-captioned claia which you recently
referred to this office for enforced collection revealed that
the claia, as forwarded, does not aeet the minimum standards
for referral of such claias to the United States Attorney for
litigation. As you know, the Federal Claias Collection Standards
(4 C.P.R. SS101-105) require that certain information be forwarded
to United States Attorneys with each claim.
4
The reason(s) why we consider this elaia to be deficient and we
presently decline to enforce collection of the claim through
litigation is (are) indicated below.
_____ Claia was not referred well within the time
~ ""•— limited for bringing a timely suit against
the debtor.
_ Claia was less than $600.
_ Claia did not include the debtor's current
" residence address for service of complaint
'•*•**- and suaaons.
_____ Claia was not accompanied by credit data obtained
•~~~' within the last six months indicating the present
or likely future availability of assets or income
froa which a substantial sum aay be obtained by
enforced collection proceedings.
[EXHIBIT 10]
-------
Appendix Exhibit A-7
_^^___ Claim was not accompanied by a summary and
supporting documentation of the actions pre-
viously taken to collect (including agency
demands for payment, personal interview with
debtor) or compromise the claim.
^ Claim* Collection Litigation Heport not
adequately completed. See Xtem(s) .
Please provide requested information or an
explanation of why you cannot.
__^ Other.
Zf you are able to provide us with the above-indicated information
as required by the Federal Claims Collection Standards, then you
should resubmit the claim to us for appropriate action.
jVery truly
>[Name]
United States Attorney
-2-
* « » _ .
-------
Exhibit A-7
0. S. ATTORNEYS' MAILING ADDRESS LIST
JUDICIAL DISTRICT
HEADQUARTERS OPTICS
Alabama - Northern
Alabama - Middle
Alabama - Southern
Alaska
Arizona
Arkansas - Eastern
Arkansas - Western
California - Northern
California - Eastern
California - Central
California - Southern
Colorado
Connecticut
200 federal Building
1800 Fifth Avenue North
Birmingham, AL 35203
Vest Office Box 197
Montgomery, AX, 36101
Dost Office Drawer B
Mobile, AL 36001
Federal Building ft 0.8. Courthouse
701 C Street, Boo* C-232
Mail Box 9
Anchorage, AX 99513
4000 0.8. Courthouse
230 North First Avenue
Phoenix, AZ 15025
Post Office Box 1229
Little Rock, AR 72203
Post Office Box 1524
Fort Smith, AR 72901
450 Golden Gate Avenue
San Francisco, CA 94102
3305 Federal Building
650 Capitol Mall
Sacramento, CA 95814
312 North Spring Street
Los Angeles, CA 90012
940 Front Street
Room S-N-19, O.S. Courthouse
San Diego, CA 92189
1961 Stout Street
Suite 1200
Federal Office Building
Drawer 3615
Denver, CO 80294
Post Office Box 1824
Hew Baven, CT 06508
[EXHIBIT 11)
FIFRA
-------
Appendix
Exhibit A-7
JUDICIAL DISTRICT
Delaware
District of Columbia
Florida - Northern
.Florida - Jliddl*
Florida - Southern
Georgia - Northern
Georgia - Middle
Georgia - Southern
Hawaii
Idaho
-.•a-.
Illinois - Northern
HEADQOARTERS OFFICE
J. Caleb Boggs Federal Building
844 Ring Street, Room 5001
Wilmington, BE 19801
2800
0. 8. Courthouse
3rd & Constitution Avenue, H.W.
•ashington, DC 20001
100 North Palafox Street
•boa 307
Fensacola, Ft 32581
rt XiaberlaJce Building
500 Sack «tr««t, .Boo» 410
Taapa, FL 33602
155 South Miami Avenue
•iaai, FL 33130
Hchard Russell Building
BOOB 1800
75 Spring Street, S.w.
Atlanta, GA 30335
Post Office Box 0
Macon, GA 31202
Post Office Box 8999
Savannah, GA 31412
•aleeSOa-ftvW Building
238 O'Bara Street
Agana, GO 96910
C-242
Federal Building
Box 50183
300 Ala Moana Boulevard
Honolulu, BZ 96850
693, ..Federal - Bui 1 A i ng
->::55)0'--Ww'"ihJ)Brt, '-•trswt*' An .037
Bvwrett McKlnley Dirksen
•uildiag. Boo* 1500 S
219 S. Dearborn Street
Chicago, XL 60604
-------
Appendix
Exhibit A-7
JUDICIAL DISTRICT
Illinois - Southern
Illinois - Central
Indiana - Northern
Indiana - Southern
Iowa - Northern
Iowa - Southern
Kansas
Kentucky - Eastern
Kentucky - Western
Louisiana - Eastern
Louisiana - Middle
Louisiana - Western
Maine
Maryland
HEADQUARTERS OFFICE
Room 330
750 Missouri Avenue
East St. Louis, IL 62202
Post Office Box 375
Springfield, IL 62705
Federal Building, Room 312
507 State Street
Hammond, IN 46320
274 0. S. Courthouse
46 East Ohio Street
Indianapolis, IN 46204
Post Office Box 4710
Cedar Rapids, IA 52407
122 0. S. Courthouse
E 1st and Walnut Street
Des Moines, IA 50309
444 Quiney Street
Topeka, KS 66683
Post Office Box 1490
Lexington, KY 40501
OSPO t Courthouse, Room 211
601 Nest Broadway
Louisville, KY 40202
Bale Boggs Federal Building
500 Camp Street
New Orleans, LA 70130
352 Florida Street
Baton Rouge, LA 70801
Room 3B12
Federal Building
Shreveport, LA 71161
P. O. Box 1588
Portland, ME 04104
8th Floor, O. S. Courthouse
101 W. Lombard Street
Baltimore, MD 21201
-3-
FIFRA Qmpllance/Eoforceaent
A-A A
-------
Appendix
Exhibit A-7
JUDICIAL DISTRICT
Massachusetts
Michigan - Eastern
Michigan - Western
Minnesota
Mississippi - •orths-rn
Mississippi - Southern
Missouri - Eastern
Missouri - Western
Montana
Nevada
New Hampshire
New Jersey
«*,
New Mexico
HEADQUARTERS OFFICE
1107 John W. McCormack Fed. Bldg,
DSPO t Courthouse
Boston, MA 02109
817 Federal Building
231 W. Lafayette
Detroit, MX 48226
399 Federal Building
Grand Rapids, MI 49503
234 0. S. Courthouse
110 South 4th Street
Minneapolis, MN 55401
;»ost >0«ie» »ra«»r 886
Oxford, MS 38655
Post Office Box 2091
Jackson, MS 39205
O.S. Court t Custom Bouse
1114 Market Street, Room 414
St. Louis, MO 63101
549 0. S. Courthouse
811 Grand Avenue
Kansas City, MO 64106
Post Office Box 1478
Billings, MT 59103
1228, T3TS
Omaha, HE 68101
Box 16030
Las Vegas, NV
89101
Federal Building
Concord, NH 03301
Federal Building
Jtoosi 502
- f 7« Aroed Strewt
BewmrX, NJ 07102
Post Office Box 607
Albuquerque, NM 87103
-4-
-------
Appendix
Exhibit A-7
JODICIAL DISTRICT
New York - Northern
New York - Southern
New York - Eastern
New York - Western
North Carolina - Eastern
North Carolina - Middle
North Carolina - Western
North Dakota
Ohio - Northern
Ohio - Southern
Oklahoma - Northern
Oklahoma - Eastern
Oklahoma - western
Oregon
HEADQUARTERS OFFICE
Post Office Box 1258
Federal Building
Syracuse, NY 13201
One St. Andrews Plasa
New York, NY 10007
0. S. Courthouse
225 Cadman Plaza East
Brooklyn, NY 11201
502 0. S. Courthouse
Court t Franklin Streets
Buffalo, NY 14202
Post Office Box 26897
Raleigh, NC 27611
Post Office Box 1858
Greensboro, NC 27402
Post Office Box 132
Asheville, NC 28802
Post Office Box 2505
Fargo, ND 58108
Suite 500
1404 East Ninth Street
Cleveland, OH 44114
220 OSPO t Courthouse
5th « Walnut Streets
Cincinnati, OH 45202
ROOB 460
0. S. Courthouse
333 West Fourth Street
Tulsa, OK 74103
Post Office Box 1009
Nuskogee, OK 74401
Room 4434
0. S. Courthouse « Federal
Office Building
Oklahoaa City, OK 73102
312 0. S. Courthouse
620 S.W. Main Street
Portland, OR 97205
-5-
rvM.ni 4 «•_,.*. /«..«,»__,
-------
Appendix
Exhibit A-7
JUDICIAL DISTRICT
Pennsylvania - Eastern
Pennsylvania - Middle
Pennsylvania - Western
Puerto Rice
•bode Island
South Carolina
South Dakota
Tennessee - eastern
Tennessee - Western
Texas - Northern
Texas - Eastern
HEADQUARTERS OFFICE
3310 0.3. Courthouse
601 Market Street
Independence Mall Nest
Philadelphia, PA 19106
Post Office Box 309
Scranton, PA ItSOl
633 DSPO ft Courthouse
7th Avenue t Grant Street
Pittsburgh, PA 15219
Federal Office Building
Boo* 101
Carlos ••*. Cbaxdoa .street
Bato Bey, Pit .00918
Post Office Box 1401
Providence, BZ 02901
Post Office Box 2266
Columbia, SC 29202
Post Office Box 1073
Federal Building ft Courthouse
400 South Phillips Avenue
Sioux Falls, SO 57102
Post Office Box 872
Knoxville, TO 37901
401 «road«ay, too* »79
Nashville, TM 37203
1026 Federal Office Building
167 North Main Street
Memphis, TN 38103
310 0. S. Courthouse
10th ft taaar Streets
Fort Worth, TX 76102
' --
S1129
T73OT
Post Office Box 1510
Beaunont, TX 77704
-6-
-------
Appendix
Exhibit A-7
JUDICIAL DISTRICT
Texas - Western
Dtah
Vermont
Virgin Islands
Virginia - Eastern
Virginia - Western
Washington - Bastern
Washington - Western
west Virginia - Northern
west Virginia - Southern
Wisconsin - Eastern
Wisconsin - Western
Wyoming
N. Mariana Islands
HEADQUARTERS OFFICE
John H. Wood, Jr. Federal Bldg.
655 East Durango Boulevard
San Antonio, TX 78206
200 Post Office s Cthse. Bldg.
350 South Main Street
Salt Lake City, OT 84101
Post Office Box 570
Federal Building
Burlington, VT 05402
.Post Office Box 1440
St. Thomas, VI 00801-1440
2nd Floor
701 Prince Street
Alexandria, VA 22314
Post Office Box 1709
Roanoke, VA 24008
Post Office Box 1494
Spokane, WA 99210
3600 Seafirst 5th Avenue Plaza
800 Fifth Avenue
Seattle, WA 98104
Post Office Box 591
Wheeling, wv 26003
Post Office Box 3234
Charleston, WV 25332
330 Federal Building
517 East Wisconsin Avenue
Milwaukee, WI 53202
Post Office Box 112
Madison, WI 53701
Post Office Box 668
Cheyenne, WY 82003
c/o U.S. Attorney's Office
Post Office Box I
Agana, GO 96910
-7-
-------
Appendix
5 Expert Witnesses
Selection of Witnesses
Administrative, civil, and criminal enforcement actions sometimes require
the ^presentation -.of ^expert testimony on behalf :of the Agency. Witnesses
should be chosen for their direct knowledge of the circumstances
surrounding the suspected violation. Below follows some guidelines to aid
the EPA attorney in choosing witnesses for Judicial proceedings.
Headquarters Witnesses
Many of the records pertaining to, and technical experts with knowledge of,
regulations concerning pesticide products are located within the
Registration Division at Headquarters. Witnesses from the Registration
Division are available to testify on:
* She , xegl8£r*tion ~ «ta£as of ^ pesticide ;
• Whether a product is a pesticide or a device subject to FIFRA;
• Agency Interpretations of labeling statements, directions for use,
etc.; and
• The significance of a discrepancy as it relates to the sample's
Regional Witnesses
Technical experts in the Regions will generally testify as to:
• Inspection procedures and the facts and findings .surrounding an
Programmatic procedures such as inspection schemes, penalty
calculations, FIFRA violations, etc.
vrrmiriinnrr/mrnrrcarnr A— o» Guidance »«""«i 1983
-------
Appendix Expert Witnesses
Other Government Witnesses
EPA personnel often work with other Federal government personnel In
developing casework, either through interagency agreements (lAGs) or
memorandums of understanding (MOUs). Other government employees of
agencies such as the Food and Drug Administration, the U.S. Department of
Agriculture, or the Fish and Wildlife Service may be called upon to testify
concerning:
• Test procedures, findings, and conclusions related to pesticide or
device studies; and
• Information collected during an investigation but referred to EPA
for enforcement.
Contractor Witnesses
Expert witnesses will occasionally have to be utilized under contract to
testify as to:
• Test procedures, findings, and conclusions related to pesticide or
device studies they have conducted; and
• Technical matters for which there are no Agency experts available
for testimony.
Procedures for Requesting Witnesses
All requests for witnesses who are not regional personnel should be made in
writing to the appropriate HQCDO. The HQCDO will, in turn, arrange for the
proper witness to represent the Agency in court and will provide a status
of the witness's availability to the requesting Region.
Appearing as M^Witness
Vigorous enforcement programs will increase the probability that an
inspector will be called upon to testify in court. By the time a case has
entered the judicial system, Inspectors and case proceedings personnel will
have invested many hours in developing a sound program for prosecution*
When a witness is called to testify, it is imperative that quality
testimony is provided and a professional image is projected in the
courtroom.
A—70
-------
Appendix Expert Witnesses
A witness, to be effective, must make statements that are understandable
and must have them accepted as truth by the judge or Jury. In addition to
being truthful and honest, a witness* principal aim should be to make a
favorable Impression on the court. The guidelines presented in this
section will help prepare the witness to be effective and credible.
Personal Appearance and Conduct
Dress Is Important. A well-groomed, .neatly attired witness makes a more
favorable impression in the courtroom. Conduct should reflect the solemn
nature of the Judicial proceedings. In order that a witness presents the
appropriate image, the following considerations should be kept in mind at
all times.
Come to the courtroom prepared. Be thoroughly familiar with your facts.
Pertinent time and dates should be checked. Order all documents and
exhibits so *h** tpgt"tnwvny wi Jl 1 bf prcgf nt-ed wi fh^vf fumbling » fie on *••<»«>
when court opens and be available Immediately when called to testify.
Try to avoid:
• Doing anything that may attract attention to you. Make yourself as
inconspicuous as possible;
• Sitting in groups with more than two or three colleagues. Spread
out in the courtroom;
• Whispering or talking to another person or causing any disturbance
in the courtroom;
• Showing Incredulity or surprise at any testimony given from the
witness stand or at statements made by the defense attorney. Avoid
expressing approval or disapproval of any testimony by nod, glance,
or other gesture;
• Having anything in your mouth (such as gum, toothpick, tobacco,
candy, or food);
'•m^^^T• ""inift Ttff tvd • .99 -.do* *o •
• Discussing the case with the defendant or the defending attorney;
• Talking to the jurors or discussing the case vlthln their hearing;
• Consulting with case personnel while court is in session, unless
do ;«o:; :
• Holding conversations with principals or witnesses for the opposing
side. If conversations are unavoidable, confine remarks to matters
other than the trial.
Compllance/HaforcemcntA-71 Qri^»»5»» "musl 1983
-------
Appendix Expert Witnesses
Witness Stand Technique
When called to the witness stand, unless previously sworn, go directly to
the desk of the Clerk of the Court to be sworn. Take the oath in a solemn
manner. Then proceed to the witness chair. If you have a long or unusual
name, give a card or paper with the correct spelling to the court
stenographer. Assume and maintain proper posture, bearing, and demeanor.
Sit erect, but do not appear stiff or tense. Attempt to project an image
of poise and self-control.
Speaking. Speak in a clear, distinct, and well-nodulated voice. When
addressing a Jury, look at and speak distinctly to them. Speak loud enough
so that the farthest juror can hear you*
Use simple language. If the subject is technical or scientific, reduce the
terminology to an understandable level or give definitions of terms used.
Avoid idioms or language particular to your profession or to the Agency.
Notes. Tou may bring notes with you to the witness stand. However, do not
bring your field notebook or any other documents you do not want the
opposing side to examine. They have a right to see any notes you bring to
the witness stand.
Do not hesitate to ask permission to refer to your notes when testifying,
provided your notes were made at the time of, or immediately after, the
event about which you are testifying. You should not be embarrassed if you
cannot recall exact details without referring to your notes. Try not read
long passages verbatim from your notes.
Answering Questions. Walt until a question is asked in its entirety before
beginning to answer. Never attempt to answer a question you do not fully
understand. Ask that the question be repeated or rephrased if its meaning
is not clear. If you do not know the answer to a question, say so. Do not
try to cover up a lack of knowledge of a particular subject.
Questions should be answered verbally—do not nod assent or shake your
head. Answer only what is asked fully and to the point without
volunteering information. Do not "spar" or attempt to match wits with the
questioning attorney.
.«»*.
Be truthful, and answer all questions frankly, factually, and confidently.
Try to Unit your testimony to those facts about which you have first-hand
knowledge. Anything else may be considered hearsay. Do not exaggerate;
state the facts accurately.
Do not express opinions or conclusions unless you are testifying as an
expert witness. You cannot assume expert knowledge in a field unless you
are an expert by reason of your training and experience. If questioned on
a subject beyond your scope, admit that the subject is outside your field
or knowledge.
JFJJTKA uoapxiance/antorcf.maut A-/i t**iA»m*<* Manual 1983
-------
Appendix Expert witnesses
Try not to become listless or "dead pan" In your effort to appear Impartial
and unbiased. Be natural, candid, frank, and "alive." Conversely, you
should not appear impatient or overly anxious to testify. Attempt to
minimize nervous tendencies, such as arranging clothes, notes, etc.
Do not speak to the judge unless he or she asks you a question.
Testifying Under Direct Examination
In a proceeding arising out of an Agency Judicial enforcement action,
direct or1 re-direct examinations will generally be conducted by an EPA
attorney or a U.S. Attorney. The initial questions he or she will ask will
seek to establish:
• Your identity, occupation, and qualifications; and
• The relevancy of your testimony to the proceedings.
.Subsequent questions twill allow you to; relate your testimony to the court.
In 'order to facilitate this questioning, you should:
• Try to give testimony in chronological order. Reveal your first
connection with the case. Then give facts in the order they
occurred. Your testimony should be memorized, if possible.
• If the opposing attorney objects to a question, do not try to get
in an answer before the judge has ruled whether the question is
proper.
• Do not try unnecessarily to help the questioning attorney. He will
jpir f^4^ipTifll 'W!BM(EH3C3' ^iflBBB^'-^XlDPEBI^EZliiC^p-w^i'^rR *i^BBiH3ilm^EvjflDlm)^MflMIDlB»^^^BB9]XilX^F''~<^ElRX4fiXlil^lm50iS '''vfi^^'-'^VIDI^ir
qualifications or length of service, or by emphasizing errors you have
made. Remain calm and answer any question asked unless an objection is
raised and sustained. If the opposing counsel attempts to confuse you with
rapid questions, answer the questions deliberately and at a comfortable
FIFKA. Compliance/Birorcement A-73 Goldi
-------
Appendix Expert W.
pace. Ask the attorney to repeat or rephrase any question that is unclear
or confusing. If asked a double or "two-pronged" question, ask the
attorney to restate it, or carefully answer each part separately.
Walt several seconds before you answer a question put to you in cross
examination in order to give the U.S. Attorney an opportunity to object.
Avoid, however, undue delays in answering. If an objection has been
raised, do not answer any questions until a ruling on the objection has
been made.
Do not lose your patience or temper while testifying. A cross-examining
attorney often deliberately baits an irascible witness to anger the
witness. Try to remain calm and unruffled. Do not become argumentative
with the cross-examiner if your testimony is interrupted or for any other
reason. Beware of questions to which the cross-examiner demands a "Yes" or
"No" answer if such an answer will not reveal the entire truth. These are
often leading questions. If a simple yes or no does not properly answer
the question, inform the cross-examiner that the question cannot be so
answered. If the cross examiner should misquote any of your earlier
testimony, you may correct the misquote before answering the question.
If you make an error while testifying, correct it at the first
opportunity. If you discover the error after you have completed your
testimony and have been dismissed, discuss the matter with the U.S.
Attorney.
You may be asked whether you regard certain persons in the field about
which you are testifying as recognized authorities. This is often
preparatory to asking you whether you agree with certain statements that
those authorities have made. If your answer is no, that you do not
recognize them as authorities, that line of cross-examination cannot be
pursued. Unless you definitely have heard of the named persons and are
familiar with their works and do recognize them as authorities, do not
expose yourself by saying that you so recognize them.
Proper Conduct During Recess and After the Trial
During recess, continue to maintain the same demeanor as in the courtroom.
Do not engage^ln loud conversation or joking, especially about the
proceedings. Be as discreet as possible when making any comments that
might be overheard.
After the trial, continue to conduct yourself in a manner that will bring
credit to you and to the Agency* Make no public display of elation or
disappointment over the outcome of the trial* If there is occasion to
speak to the defendants, be courteous regardless of their demeanor.
CDBp.u.ance/mrorcement A-/4 Guidance Manual 1983
-------
Appendix
6 Penalty Policies
The following items are used by the Agency in establishing its penalty
policy guidelines:
• Guidelines for the Assessment of Section I4(a); Citation Charges
for Violations
• Guidelines for Enforcing the Child-Resistant Packaging Regulation
• Memorandum (22 Apr 1975)—Interim Deviation From Civil Penalty
Assessment Schedule
• Memorandum (11 Jun 1981)—FIFRA Enforcement Policy; Interim Penalty
Guidelines
umpxiance/cnzorceaent A—/3 uoioance «»««*i 1983
-------
Appendix Penalty Policies
FIFKA Co*pliance/Enforceaeiit " A-76 Guidance Manual 1983
-------
Appendix Gqld«*H"«'«» for Civil Penalty Assessment
ENVIRONMENTAL PROTECTION personnel in tte prapanUfcm of tte com-
AGENCY plaint. Tfcto Worksheet to to toe prepared
and retained as an on-goine; office record
.
Gtm. RNALTICS UNDER THE FEDEXAL of the cnmplitnent* deliberation. con-
INSECnaDE. FUNQOOE. AND *> osmlng the vlnhttnnt rttfrt
DCNTIC1OC ACT. AS AMENDED Section XV ccadsto of an ltaB-by-tt«m
) vtflteed by tbe
to tnmtate tlolnttoas of the Act
•cejost tte
and
•rt
today ia tte
AM«« ** CMBk. MI^^^^
278M. Tte Jum
tnctract i»fTTt*y penoonal l& tte
to be loOovad to. tte
•of cMt oDatttaa acaloBt vtolatoza off
an II)
of CMl
Ui of
fS^RA appean In tear eectioBa. Section,
Z. Arrllf*fiTn of tte CMl Penalty A*»
tton of tte dollar penalty which to con- g»i
sidered a base Havre to te proposed for **SL.
It
eney penonnel ^•Mbi* «•—»«»'»
f. within tit" Iflf i ' ' * ^— —— *™"™^w * ™"
'ctoe dtocretfc
n. tte CMl Penalty
ment Schedule, ttsts TtoUUou of tte Act.
tfaotfied toy tte rtok th
g1^1?-?"?.••*L*? tB!*?nm??t«.U2 *«to«to«wWeato«ll.t«a«ohMe1
.tte travlty of each !a*?•.»«!•«¥>.£• •*** y^««B «" «*•
MX conittotlnt of gravlty-of-violation/
toteaaMeeedaimtatttapenonofaitvn aMtooaefUMMii^MtciaTnme*!"'?•--«-
who violates tte Act in tte ead Bodrattctdi Act. «• •numetd (7 UAC.
»^»fr SM «t Mq.)". (TlUa cttattoa cten* eoo* to
MM «-t«n-»_n._n_ - '- FU""""*1 •"••••iwr.BB Apptaou ii.| T»«
^TJrr ^^ l«naity Assess* complainant murt thm prepar* a complaint
ment Worksheet, to to toe ttoed by Afency attune lonb socb caargM with spaoactty
•naui notnu. voc »». NO. i4«—WEONBOAT. ART 31, 1*74
coBDJjLsnce/BnxorcesKmt A-//
-------
Appendix Gaid»H"gq for Civil Penalty Asaessaent
and propotlac to UMM a aim penalty wnica poatd • for aaen
la tba aua or tba ladapaadaatly ••••Ml* oharga may ba ea
ofaaBxaaeootaiaad IB tba cmmplilnt. factor* emutfm* m datcmaua* tJU
(2) What eoMttt«U« m Md*a**4m*ly at- fmpoma etirtl pmatty. (a) Oroatty of *M*>
•bte choree. A aaparata ctva panatty abatl tton. Oa» d*M*aUnaaS a( tb» —— ~* at »
t tor «Mb noUttaa or tb* Act nronoMd ctvti paa^ty to tte grotty «f «&•
iiu tram «a lnrti|iiriiHni act (or trteUttoa. Tte fnvtty of any MalaUoa to a
UUtm «o act) ot ttanapoadaat aaa wtttefa taaeOaa of (1) tba potaatlal that
to •BMtutially tfMtBfutokabla fton any
ctrtt panatty ja to >• aaaMaat. to datannlaia»
vbatbar a gtf*D oUai(* to todapaatdant of
and tutaffanttally ttatta««tohaMa ttoa any
--
of proof not rtqjuaad by
•fwty ebarca WBJBB OMT
ptamt attaU ot aipataMly
> in taa oamplatst for v
aaant. Tba •~*-rt*'-* win
an appiuprian et*U paaatty tar
(S) Vat •/
a«««lf* a^iitHif ettattam. (a) JTottea o/
aat to iaeuon » of tba Aet
aotbof tbai
) tta atoa
aattetpataa vanova aombtnationa of
two factor*, taeb tnuraaeuon of notation
gravity and bualnaai atoa eonatttutaa a otll
of tba matru. Within aaeb oaU to a dollar
anooat raprtaantlag tba penalty baaa figura.
Tbto baataffura conautataa tta dollar
•Brant trout wbicb tba cMl panalty pro* j*^*
•Tbto panalty arttadnla daaa not apply to
<«
raftatranta. coaunareial apptteaton. wbola>
•alara. ratailan. or otbor dtotHbutora.)
ttetpatad; (4) tta Uanttty of
to a rtok of tD4«r. (•) tt«
UM appUeaMa ptovtotOM of
at tta AaK MM fT»
fattft to
gtat o/
of tta pataoat •Baaat to
uoirrti. vet. », NO. 14*—WEONESOAY, JULY 31. i«y4
-------
Appendix
Guidelines for Civil Penalty Asses
poaaltr
by (1) tooBttBf tat *o- teeto tadtcoto tbot tao ort0a»l cbaifa an
ea ta* etart* cod* of ta* DO* »ppjoprtoto. now aavcM «b*U fee m*&»
lota. *a« tb«a (3) fioUewtnf M »quif>a by lb» ntrnaainnnn A a*w
of btMiM* «•• pMaity •b*O fe» Ml0otota« ky MMM to
flna*. la •mviac at A emt
(•M oMttaot XfO) (Si bo* **~ ™y *?** y^S^?88* ^ ^**
•**" obovld bo
.T5? &ODM
•4UI
• BOW poolty boot avn*
noma. voc a*. NO. i4«—«MONUOAT, JUT «. im
FIFRA
A-/9
Galdance
1983
-------
Appendix
for Civil Penalty Assessment
HCTIO* ti: CIVIL
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uav HSUOS
as
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II
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1. OrftctaM ftmwttaMfr SUtaans: Uet* SlfHl MM
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-------
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Putniwn
J. Atfvori* (rr
-------
Appendix
Guidelines for Civil Penalty Assessment
lie i Section ••
m
a*
Mlur, uUr nwirW™1
tUtuMt *f Mt MttfM m
contain
110
MB
JJL
r«|lttn«t «p urm f«r
ftctur*
120
11
ni
in
Miurnw. nsr tou.ni natjurui vnurna
n
IU
BT
no
at
cu
«dlr
-^
HS^i
S* tffCEU
1t
lCMtflUfl
1. Taul
dfci
-------
Appendix
for Civil Penalty Assessment
0HCACT
»
2*
Section Ont: OillnfocUfits
IMffoctfvo DUlnfocuiits
Soettan
I«f
A. HOMtUl UM
1. Ulls Mltftor J.
2. Ellis only on* of
tto ttovo listod
1. Kills Minor of
tM AMVO KStM
i. mis oaiy on* of
oro«n1«st
C. F«tU to mil Tricftooftfton
TUB; tedontleldoi
V^-1 IM/lC:Br '.if 744LT^B^^^
P^«-rTi?Flir^^irT^*r7^^^^tartl^^B
I 11 III
5000
4000
SOO
250
ao
I
*gg
'Mfl
SOOO
4000
12SO
••25
700
11
IZSU
7DQ
•stfMumoB
i
SOOO
1
4000
i
2750
J
1M01
n v
SOOO
4000
4250
«25
an
1
JIT nr
z/S^ "
IMO
4Z50
2SJI6
SOOO
4000
SOOO
2500
2MO
sow
ZBOO
1. MO or Olspoul of 4 rmicldo 1« • (teaaor Ucontttant Mitt Its UooHM.
I 11 III n »
2.
A. MVOTM Erroets
IHoMy Probtblt
I. AdvorM trrtew
C. A4VOTSO EffOCU
Hot rrotablo
SOO
in
120
1250
700
300
2780
1S40
•SO
VM or OlSMMl Ceetnry tt tho rrarlsieas of M ExporiocRUl OM Nrolt
I • 11 III
L. Moniodg* (of tM
ponrlt)
i. w Knoviodgo (of in*
•inrlatnul UM
ptr.1t)
tto ouplntlon of
•porlMml UM
SOO
100
SOOO
12SO
250
SOOO
2780
550
SOOO
4250
2380
1020
nr
4250
•50
SOOO
SOOO
2800
1200
V
SOOO
1000
SOOO
{Action My (iMt/s M UMO «9«toit tM toMor of IM wporttonui UM
-------
Appendix
for Civil Penalty Asses
Stop S*Je. UM t*
II
111
at
01
02
CM
CM
as
m
06
A. violation of a sup saie»
Use of Ressval Order
g. Fa i Jure U provide nines
and addresses of recipients
of products believed to be
In vitiation of the Act for
ptrpases of Issuing a Stop
Sale. Use or Removal Order
9000
900
5000
1250
4. Violation of a Suspension Order
I 11
9.
•.
1.
2.
1.
4.
S. Knovfiecfle or the order
WOO
son
IS
9000
2790
9000
4250
5003
9000
HI IV V
uoo
¥44B
5000
Violation of a Cancellation Order
i ii m • rv v
A. KnoMiodqo or the Order
n. M uioviedae or the oraer
100
1ZW
Z9C
Toots M HMM Mings
1 11
ill* or pesticide in tests
on kuMn beings In violation
of the Act
ion
Z7SO
US!
woe
II 00
III TV V
9000
•MM
9000
5000
OLATIOB
tanks and Uncords
1 II
A. Failure to Mintain
books and- records as
renulred under section 8'*)
•. Failure to allow
Inspection of books
and records required
to bo Maintained
420
420
m • n v
1090
1090
Protection and Distribution Data
I II
Failure to suontt requfFed^^™1
reports of production or
distribution data required
ender section 7(cl
900
2310
2310
3970
• 3970
4200
4200
HI rv v
1290
4aopoct1oa of CsUbllshnents; Sanple Collection
1 II
Failure to allow inspection
of an establishment or refusal
te VllOW IMTOllftQ Of A D£St1Cfdf£
$00
2790
4290
5000
III TV V
1290
railure to Keglsttr Producer Establishment
I " II
A. .Knowiodce or Registration
— ««qu(rrr.cnt
V. Ho KIW.:! c jqe or tne Rcgli-
tratlsn P.soulrtniffit
420
180
2790
4290
^^
HI Tf V
1050
450
2310
990
3970
1930
4200
1800
-5-
FIFRA Covpliance/Enforceaent
A-84
Goldi
MomvO. 1983
-------
Appendix
for Cly->l Penalty Asses
U
V
o
no
tit
5. Falsified All or Part of a* Application
t TI m nr
1. taecrlMnUl UM f«r«n
Asaiieation
§r tcn'identi*! itv status
. ^VbBltSM talM Production
Oau
500
SOO
)Z5G
iiso
IZSO
1150
Z750
»so
Z7SO
950
•ZM
4HO
V
tcco
MM
MCO
5000
II
_UL
to Marram tho assessnont of any civil penalty, la the following instances, provided
tto public Interest wild to served thereby. tk> Agency say dotarartM net to assess a civil
penalty:
1. b^rodloit ttiMwit «M net
• tto
§w»1 of tto
t. Tfto tor* -lorn Infrodfonf mt loss prwtaottljr 41spUy«d thM tto ton
•*ct1*«
3. Utol fallotf to taor roflstratloo .
4. Utol failed to totr tte roquiro* tUMMMt of Mt
%, Utel foiled to totr MM. .brand, or trtdoMrk wdor *1ca tto product
MS SOU.
tl
lit
nr
5000
Htoro cnar^o IUJBMI* i(E3) appeari
1o cOMblnatlon with any tvo of tko
otnor a&ov* Chiracs.
120
•
300
MO
1
in*n I IF?\
. FXFEA
-------
Appendix
Gold* "Maes for Civil Penalty Assessment
KM MKU4 Realty UM PI fan
(7) IMIflcaCioe «f tto fraclty UM rifura tuMcr tCM (t)>
(or
Ct«tl
(It) B^etUtlM •(
Data at reafataaaa,.
Data Offaraa ky U
l«pMi«t l_
O.to
-------
•^
8
R
s
•••» •!
nqiai iii» CIWL rowTf amwen venomi
_____ I. Co^UInt l.». Ho. •. »«to
_ 1. Dato Coopldnt l»«u«d 7. >ot»
Orttr «••!_
I. tato AniMr locM
4. Dato OofonU Ottfor tMtt_
i Co«»«»t
•. lUtory of
•. frlor Action
feltkl
T
00
*
II)
Char ft
II)
.
L»...r l»tl Jj>Ch.fM(.l
froooMd r,M|ly
(4) .
f*Mtty toM
(| ooount In
Mtrli oil)
IS)
Nrc«nt«t* (t)
IncrcaM or
10 ••c««d lot
If OBPIU4)
U)
(Milled
l| KfUctlHf
t lncc**<« or
4«cr*«to If
•polled)
CK5*
(10)
••|Otl*fcl*
F*n
(ID
Aaounl
II r.ll.ct
fog t de.
cr«ti* If
•opllrd)
'Inol hncll
Civil
r*n«lly
AWMMt
(ft
ky,
Concurrtnco by .
Total
II?) ToUl tlMl Civil t*Mlt>
VlVl IbMl rtMl Civil f.Mlty
-------
Appendix Guidelinea for Civil Penalty Aasesaaent
FIFBA
-------
Appendix CRP Regulation
Guidance for Enforcement
of the
Child-Resistant Packaging Regulation
The Child-Resistant Packaging (CRP) regulation1
(44 Federal Register 13019) was promulgated March 9, 1979
pursuant to Section 25(c)(3) of the Federal Insecticide,
Fungicide and Rodenticide Act (FIFRAjTSince the Enforcement
Criteria of the FIFRA Case Proceedings Manual, the Citation
Charges for Violations of the FIFRA. As Amended (39 Federal
Register 27721) and the Guidelines for the Assessment of
Civil Penalties Under Section 14(a) of the FIFRA (39 Federal
Register 27711) wer> written prior to the CRP regulation,
they do not Incorporate guidance for the enforcement of the
CRP regulation.
The Pesticides and Toxic Substances Enforcement Division
(PTSED) 1s Issuing this guidance outlining additions and
modifications to the above documents to facilitate enforcement
of the CRP regulation by the Regions.
Part I of this guidance deals with new enforcement criteria
to be added to the Case Proceedings Manual.
Part II of this guidance deals with other changes to be
made to the Citation Charges in the Case Proceedings Manual,
and to the Guidelines for the Assessment of Civil Penalties
Under Section 14(a) of the FIFRA, also found In the Case
Proceedings Manual. One charge is added and another expanded,
and several penalty matrices are added.
l. A summary of the requirements of the CRP regulation may
be found In the document, "Strategy for the Enforcement
of the Child-Resistant Packaging Regulation Pursuant
to FIFRA."
FIFBA Coapliance/Enforceaent A-90 Pmidg«r«* Mamai 1983
-------
Appendix CRT Regulation
-2-
Part I: Use of flew Enforcement Criteria
Explanation of M1t1oat1nq Circumstances 1n Enforcement Criteria
•.£n,for,c»m«nt -crlterl a In .the Cas* Proceedings Manual
Indicate the appropriate level of enforcenent action for
particular violations of FIFRA. Until December 31, 1981,
PTSEO's policy regarding the appropriate level of enforcement
action for violations of the CRP regulation will take Into
account the following two mitigating circumstances:
0 Registrant's lack of knowledge of the CRP requirements.
9 Registrant's good faith efforts prior to March 9. 1981
to comply with the CRP requirements.
31 , V981 , -r*gtstr»nts can ~r«a*OTva'bly -be expected
to have knowledge of the CRP requirements, and can reasonably
be expected to have products In CRP despite delays or problems.
The PTSEO recognizes the following circumstances as
evidence of knowledge of the CRP requirements:
0 Some, but not all. products are In CRP.
0 Registrant commented on CRP proposed regulations.
0 Registrant contacted EPA regarding CRP requirements.
• Registrant filed for an exemption.
anuf aeturer
*fo r CKf clotufits or . packages .
• Registrant contracted or began actual testing of
toxldty or package effectiveness.
The PTSED recognizes that the following circumstances
could be evidence of good faith efforts on the part of a
registrant to comply:
1 Registrant contracted w1th,,p.ack.aglJ> a manufacturer
for CUP .closures -or 9«ck*9*s 9rier to March .9, '1981,
Registrant contracted or began actual testing of
toxlclty or package. effectiveness prior to March 9,
1981.
tf ••>
-------
Appendix XJRP Regulation
-3-
Use of Enforcenent Criteria
If a registrant subject to the CRP regulation Is found
to be 1n violation, Regional enforcement personnel1 should
determine 1f either of the above mitigating circumstances
exists. After determining the applicability of mitigating
circumstances. Regional enforcement personnel should refer
to the Enforcement Criteria (See p.5) for the appropriate
level of enforcement action.
When cither of the mitigating circumstances apply,
Regional enforcement personnel shall exercise prosecutoMal
discretion that 1s conditional upon submission and approval
of a Compliance Schedule. Regional enforcement personnel
shall Issue a Notice of Warning (See Appendix 1), requiring
the registrant to submit a Compliance Schedule within twenty
(20) days of the Notice of Warning.
When neither mitigating circumstance applies, Regional
enforcement personnel shall assess a civil penalty, but
shall also exercise prosecutorlal discretion by not Issuing
a Stop Sale, Use. or Removal Order. This exercise of pro-
secutorlal discretion 1s conditional upon submission and
approval of • Compliance Schedule. Regional enforcement
personnel shall explain 1n the letter accompanying the
Notice of Civil Complaint and Notice of Opportunity for
Hearing that the registrant must submit a Compliance Schedule
within twenty (20) days of the letter.
Explanation of Compliance Schedule
Regional enforcement personnel shall negotiate a
Compliance Schedule with the registrant, and shall approve
or disapprove the Schedule within 45 days of the date of
the Notice of Warning. Enforcenent personnel shall notify
the registrant that the Compliance Schedule has been received,
and shall request further Information 1f needed. Registrants
should respond to requests for Information as soon as possible
to meet the 45 day deadline. Additionally. Regional enforcement
personnel may wish to contact the Registration Division's
packaging expert, Rosalind Gross at 8-557-7780, for assistance
In determining a time frame for compliance In the case of '
uncertainty or dispute with the company. After enforcement
personnel approve a Compliance Schedule, they shall forward
a~*spy of the Schedule to the Compliance Monitoring Branch
of PTSED.
Regional enforcement personnel are expected to handle case
development and legal matters. States, who are conducting
compliance monitoring activities. In most cases do not
currently regulate child-resistant packaging of pesticides,
Coanllance/Eoforceaent A-92 \ Guidmr* ttennal 1983,
-------
Appendix CBP Regulation
-4-
The Compliance Schedule should show a timetable for
achieving compliance within, at nost, 6 months of the date
of the Notice of Warning. However, compliance should be
achieved no later than December 31, 1981, even 1f this
requires a timetable of less than 6 months. Additionally,
the Compliance Schedule should list nines of companies or
organizations that will be assisting the registrant In
testing toxldty or package effectiveness.
When registrants fall to negotiate a Compliance Schedule, or
fall to meet their Compliance Schedule, Regional enforcement
personnel' wl11 no longer exercise prosecutorlal discretion. Such
registrants are still In violation of the CRP regulation If they
continue to release for shipment products which require CRP but
are not In CRP. Without the exercise of prosecutorlal discretion,
such violations are subject to a civil penalty assessment and
Stop Sale, Use, or Removal Order (See Part II: Violation 1:
Mlsbrandlng, p.7, for an explanation of the mlsbrandlng violation).
Regional enforcement personnel nay grant extensions to
Compliance Schedules If the registrant can present a reasonable
explanation of problems or delays arising in efforts to comply.
No extension shall be granted to a Compliance Schedule
allowing noncompllance to continue past December 31, 1981,
unless approved by PTSEO. Requests for extensions past
December 31, 1981, with a detailed explanation of the need
for. the extension, must be made to the Director of PTSEO.
Exception to Enforcement Criteria
Prior to Inspection, a registrant may volunteer the
Information that-Its product, which 1s subject to CRP, Is
not 1n compliance. If the registrant made a good faith
effort to comply prior to March 9, 1981, the Region should
require the registrant to submit a Compliance Schedule.1
If the registrant did not make a good faith effort to comply
prior to March 9. 1981, the Region should assess a civil penalty
and require the registrant to submit a Compliance Schedule.*
If however, the registrant fails to negotiate or falls to
meet a Compliance Schedule, the appropriate civil penalty and Stop
Sale, Use, or Removal Order shall be Issued 1f they are releasing
for" shipment products that require CRP but which are not In CRP.
l. The circumstances are similar to those described In enforce-^
.. ment Criterion 8, so a similar level of enforcement action
Is taken. However, the Notice of Warning 1s not Issued.
2. The circumstances are similar to those described In enforce-
ment Criterion C, so a similar level of enforcement action Is
taken.
-------
Appendix CRP Regulation
List of Enforcement Criteria
The following Enforcement Criteria are In force prior
to December 31. 1981.
A. Registrant did not know of the CRP regulation.
Level of Action: Notice of Warning and Establishment
• of a Compl1ance Schedule.
B. Registrant knew of the CRP regulation, did not comply
with the CRP regulation prior to the March 9, 1981
compliance date, but made a good faith effort as of
J4arch 9, 1981 to comply.
Level of Action; Notice of Warning and Establishment
or a compliance Schedule.
C. Registrant knew of the CRP regulation, did not comply
with the CRP regulation as of the March 9, 1981
compliance date, and did not make a good faith effort
as of March 9. 1981 to comply.
Level of Action; Notice of C1v11 Complaint and Notice
of Opportunity for Hearing (Refer to the Civil Penalty
Assessment Schedule In Part II of this document) and
Establishment of a Compliance Schedule.
0. Registrant failed to meet Compliance Schedule
established pursuant to Enforcement Criteria A, 8, or C
Level of Action: Notice of Civil Complaint and Notice
of Opportunity for Hearing (Refer to the C1v1l Penalty
Assessment Schedule In Part II of this document) with
a Stop Sale-, Use, or Removal Order.'
T.A Stop Sale, Use. or Removal Order shall apply to products
In violation and to all products released for shipment
until compliance Is achieved.
FIFRA Co*pliance/Enf orceaent £^94" Guidance Manual 1983.
-------
Appendix CRT Regulation
-6-
After December 31, 1981, all registrants whose pesticide
products are subject to the CRP regulation must be in com-
pliance. Only one level of enforcement action Mill be appro-
priate.
The following Enforcement Criterion 1s In force after
December 31, 1981:
Registrant did not comply with the CRP regulation.
Level of Action. Notice of C1v1l Complaint and Notice
• of Opportunity for Hearing (Refer to Civil Penalty
Assessment Schedule In Part II of this document) with
a Stop Sale, Use, or Removal Order.
Multiple Assessment
Regional enforcement personnel shall Issue.a civil
complaint containing civil penalty assessments for each
registered pesticide product found to be In violation. For
Instance, one registrant may manufacture seven products,
five of which are subject to the CRP requirements. If all
five subject products are not 1n CRP, then a civil complaint
with five counts of nlsbrandlng shall be Issued, each being
assessed a penalty.
Additionally, there are several requirements under the
CRP regulation. Each requirement that a registrant falls
to comply with will be assessed a penalty. (See Hypothetical
Case Z, p.16).
f^ftffftl 1 anoo/^nrnFIIf»Tnr A~:»J r^-^,i^.r»Ti,p»(» Mamm
-------
Appendix CEP Regulation
-7-
Part FT: rttartpiv Cfrarge*. and
the Civil Penalty Assessment Schedule
The violations of the Child-Resistant Packaging (CRP)
regulation fall Into the following five categories:
1. M1sbrand1ng (Not 1n CRP).
2. Failure to file amended registration and certification,
3. Failure to maintain records of toxldty and package
testing data.
4. Failure to submit records upon request to EPA.
5. Falsification of amended registration, certification,
toxlclty testing data, and/or package testing data.
This part of the guidance takes each violation category
and explains the changes or additions that must be made to
the charges cited In a complaint and to the Civil Penalty
Assessment Schedule.
Violation 1; Mlsbrandlng.
A. Modifications of Charges
The FIFRA §2(q)(l)(B) states that a pesticide product
1s mlsbranded iff
"...It 1s contained 1n a package or other container or
wrapping which does not conform to the standards
established by the Administrator pursuant to FIFRA
§25(c)(3)."
The distribution of products subject to the CRP requirement
In packaging that 1s not child-resistant after March 9, 1981
constitutes mlsbrandlng under FIFRA §12(a)(1)(E). The current
11st of charges does not cite this specific mlsbrandlng
violation.
FIFRA Covpliance/Enforceaent A-96 ts**iAmnff ttpmtai 1983
-------
Appendix
CRP Regulation
-3-
A new charge is therefore added to the docunent
Charges for Violations of FIFRA, as follows:
Cttat.ion
PERSON FAILED TO COMPLY WITH THE PROVISIONS OF THE
FEDERAL INSECTICIDE, FUNGICIDE AND ROOENTICIDE ACT
IN THAT THE PESTICIDE WAS:
£41. Mlsbranded in that it was contained in a
package or other container or wrapping which
did not conform to the standards established
by the Administrator pursuant to Section 25(c)(3),
I.e-. was not in child-resistant packaging.
|12(«)O)(E), 7 U.S.C. §136J(a)(l)(E);
2(q)(1)(8), 7 U.S.C. §136(q)(1)(B)|.
8. Modifications of the Civil Penalty Assessment Schedule
A matrix to facilitate calculation
a misbranding violation is added to the
Assessment Schedule as follows:
of a penalty for
Civil Penalty
SPECIAL PACKAGING VIOLATIONS
Section One: Misbranding
1. Pesticide product contained in a package or
other container or wrapping which did not
conform to the standards established by the
Administrator pursuant to Section 25(c)(3),
i.e., was not In child-resistant packaging.1
E41
II
III
IV
A. Toxlcity Level Danger
B. roxlclty Level Warning
C. Toxiclty Level Caution
500
ZSO
120
1^50
700
300
2750
1 5«0
660
4250
2380
1020
5000 I
2800 |
1200 |
It is anticipated that almost all products subject to CRP
are In Toxiclty Categories I (Danger) and II (Warning).
FIFBA CoaplIance/Knfor
A-97
-------
Appendix
CRT Begulation
-9-
Violation 2: Failure to File Amended Registration and Certification
A. Modifications of Charges
The failure to file amended registration and certification
should be charged under Charge E40, «hich states as follows:
E40. Failed to file reports required by the Act.
|12(a)(2)(N). 7 U.S.C. 136J(a)(2)(N)|
B. Modifications of the Civil Penalty Assessment Schedule
A matrix for Charge E40 was not originally Included In
the Civil Penalty Assessment Schedule. MISCELLANEOUS VIOLATIONS.
p. 27717-18, Is revised to Include a Section 7, entitled:
Failure to File Reports, as follows:
7. Failure to File Reports1
II
III
IV
A. Knowledge of Report
Filing Requirement
B. NQ Knowledge of Report
Filing Requirement
420
180
1050
4SO
2310
990
3570
1530
4200
1800
1. Prior to December 31, 1981, the Enforcement Criteria provide
that registrants with no knowledge of the CRP requirements
(Including the report filing requirement) will not Immediately
be assessed a penalty (See Enforcement Criterion A, p. 4).
jjjjowever, 1f the registrant falls to negotiate or meet a
'"Compliance Schedule, the knowledge/no knowledge criteria
In the above matrix shall apply. Additionally, after
December 31, 1981, the above criteria shall apply.
-------
Appendix
CRP Regulation
-10-
Violation 3:
Failure to Maintain Records of Toxidty and
Package Testing Data'
The violation, failure to maintain records of toxicity
and package testing data. Is covered under existing materials,
Charge E39 of the Citation Charges and Section 1: A and 6,
In MISCELLANEOUS VIOLATIONS, p. 27717 of the Schedule. The
charge and pertinent sections of the Civil Penalty Assessment
Schedul-e are reproduced here for ease of use.
A. Charge
E39.
Refused to keep any records required pursuant
to Section 8 of the Act |7 U.S.C. 136f| and any
regulations promulgated thereto (40 CFR 169.2;
12(a)(2)(B), 7 U.S.C. 1 36J (a } (2) (8 ) |
B. Civil Penalty Assessment Schedule
1. Books and Records
I II
III
IV
A. Failure to maintain
books and records as
required under §8(a)
420
1050
2310
3570
|
4200
1
Violation 4: Failure to Submit Records Upon Request to EPA2
A. Modifications to Charges
The failure to submit records upon request to EPA Is a
The registrant nay not have actual data on file If the
company did not perform the testing but, Instead, relied
verification from others such as the company which
produces the packaging. The registrant should have a
letter or literature verifying that the packaging has
been tested and met the CRP standards.
The CRP regulation at 44 FR 13023 states. "These records
shall be available, upon request, for Inspection and
copying purposes or for submission to EPA.*
-------
Appendix CRT Regulation
-11-
vlolation under FIFRA §12(a)(2}(N) , which states
"It shall Se unlawful for any person -- ...
(N) who is a registrant, wholesaler, dealer,
retailer, or other distributor to fail to
file reports required by this Act."
The failure to submit records when requested should be
charged under Charge £40, which states as follows:
E40. Failed to file reports required by the Act
|12(a)(2)(,N), 7 U.S.C. 1 36J (a) (2) ( N) |
B. Modifications to the Civil Penalty Assessment Schedule
The matrix to be used with Citation Charge £40 is
set up in this guidance under Violation 2; Failure to File
Amended Registration and Certification. (See p. 9)
Violation 5: Falsification of Amended Registration. Certification
Toxlcity Testing Oata. and/or Package Testing Data
A. Modifications of Citation Charges
The falsification of amended registration, certification,
toxicity testing data, and/or package testing data 1s a
violation under FIFRA §12(a)(2)(M). I
As currently worded, Citation Charge £34, which is the
charge currently used to cite violations of FIFRA §12(a)(2)(M),
cannot be used to cite violators who knowingly falsify CRP
material. Therefore the charge 1s re-worded to Incorporate
the complete language of Section 12(a)(2)(M), as follows:
£34. Knowingly falsified all or part of the
application for registration, an application
for experimental use permit, any Information
submitted to the Administrator pursuant to
Section 7, any records required to bt raain-
tained pursuant to Section 8, any report
filed under this act, or any Information
marked as confidential and submitted to the
Administrator under any provision of this Act.
Criminal sanctions may be sought under FIFRA §14(b)
for knowing violations of this requirement.
FIFRA Coopliance/Enforceaent A-100 f^^^^^ v-mmnl 198*
-------
Appendix
CRP Regulation
-12-
3. Modifications of the Civil Penalty Assessment Schedule
Section 5: falsified All or Part of an Application,
under MISCELLANEOUS VIOLATIONS, p. 27718 In the Schedule,
is revised to Include a fifth gravity factor entitled E:
Any Report Filed Under This Act. The fines along the
horizontal axis are identical to the fines for the other
violations of Section 5. The matrix 1s revised as follows:
5. Falsified All or Part of an Application
II
III
IV
A. Registration
Appl 1cati on
B. Experimental Use
Permit Application
C. Confidentiality status
0. . Submitted False
Production Data
E. Any Report Filed
Under This Act
500
500
500
500
500
/
1250
1250
1250
1250
1250
2750
2750
2750
2750
2750
4250
4250
4250
4250
4250
5000
5000
5000
5000
5000
FXFKA Co»Dllance/En±orcej»eni:
-------
Appendix CRP Regulation
APPENDIX I
NOTICE OF WARMING - CHILD-RESISTANT PACKAGING VIOLATION
COMPANY
STREET
CITY, STATE, ZIP
Dear
' This letter Is a Notice of Warning Issued pursuant to
§9{c}(3) of the Federal Insecticide. Fungicide, and Rodentlclde
Act, as amended, (FIFRA) informing you that an inspection at
your fad 1 f ty:
,-(N«me)
(Address)
(Establishment Registration t)
has shown vlolatlon(s) of the child-resistant packaging
regulation Issued pursuant to §25(c)(3) of the FIFRA.
The EPA promulgated a final rule (44 Federal Register 13019
March 9, 1979; 40 CFR 162.16) requiring all pesticide products
meeting certain criteria to be contained In child-resistant
packaging. The regulation requires child-resistant packaging
for any pesticide product released for shipment after March 9,
1981, 1f (1) Its labeling allows for residential use, (2) It
has not been classified for restricted use, and (3) It meets
certain toxlclty criteria.
An EPA Inspection showed that your product(s):
(Product Name)
(Registration I)
did not comply with the above requirements of the FIFRA,
1n that:
(Cite alleged Violations)
Our enforcement personnel have determined that the
following mitigating circumstances exist:
.. We find that these circumstances justify a conditional
exercise of prosecutor!al discretion. To avoid civil
enforcement action by the Agency, you must send this office
a Compliance Schedule within 20 days of the date of this
Notice of Warning, listing the name(s) and address(es)
of any companies with which you will deal for packaging
and/or testing of the vlolatlve products.
VTVBA
-------
Appendix CRT Regulation
-2-
The Compliance Schedule nust also show a tisietaole setting
dates for achieving toxiclty testing, packaging testing, and
full compliance with the child-resistant packaging regulation.
You must achieve full compliance within six (6) months of the
date of this letter, or no later than December 31. 1981. which-
ever comes first.
This office will notify you as soon as your Compliance
Schedule is received. Regional enforcement personnel shall
approve or disapprove the Compliance Schedule within 45 days
of this- letter. This office will notify you of any further
Information required. Failure to furnish such requested
Information will result in failure to negotiate a Compliance
Schedule within 45 days.
If you do not submit a Compliance Schedule within
20 days of the date of the Notice of Warning, or If a
Compliance Schedule acceptable to this office is not negotiated
within 45 days of the Notice of Warning, this office shall
assess a civil penalty, and Issue a Stop Sale, Use or Removal
Order affecting all current and future products cited in this
notice which are released for shipment. Should you have any
questions In regard to this Compliance Schedule, please contact
___^______________ at .
Sincerely.
Name
Title
Regional Office
FTFRA Cftmnll -«..
-------
Appendix CRT Regulation
-15-
APPENDIX 2: HYPOTHETICAL CASES
Hypothetical Case 1 :
XYZ Pesticide Company manufactures and distributes a
pesticide containing 65s Calcium hypochlorite for use as
a swimming pool disinfectant. In the course of a routine
Inspection, .the State pesticides Inspector notes that the
product Is not In child-resistant packaging. The Inspector
believes that this particular product should be In CRP
because the product Is listed In EPA's Phase I list of
generic products for which an unqualified assumption can
be made that they require CRP If used for residential use.
^*
In discussions with the plant manager, the Inspector 1s
Informed that XYZ had contracted with a company to design
and test a package for their product but that the company
had gone out of business. XYZ Immediately contracted with
another company prior to March 9, 1981 but the delay caused
them to be In noncompllance as of the March 9, 1981 effective
date.
The state pesticides office refers the case to Region Z
personnel, because the state law does not Include a require-
ment for child-resistant packaging. Region Z enforcement
personnel determine that XYZ made a good faith effort.
Therefore Region Z Issues a Notice of Warning, requiring
XYZ to submit a Compliance Schedule.
XYZ submits a Compliance Schedule showing full compliance
is to be achieved by December 1, 1981. Region Z enforcement
personnel approve the Compliance Schedule, forwarding a copy
of the approved Schedule to Headquarters. A second inspection
In December 1981 shows XYZ to be In compliance. No further
enforcement action Is required.
-------
Appendix CRP Regulation
-16-
Hypothetical Case 2.
. The John Doe Pesticiae Company (JOP Co.) manufactures and
distributes two pesticide products subject to the CR? regulation.
However, during a Jar.uary 1932 inspection, a State pesticides
inspector finds that neither product is in CR?,
The plant manager says that the JOP Co. negotiated and
signed a contract to obtain child-resistant packaging on
December 31, 1981 .
The State pesticides office refers the Inspection results
to the Regional office. Regional enforcement personnel,
following the enforcement criterion in effect after December 31,
198 Vis sue a civil complaint (containing charges for each
pesticide) and two stop sale, use or removal .orders (for
each type of pesticide) affecting all current and future
products released for shipment. PTSED concurs with these
enforcement actions. The charges and penalties are assessed
as follows: (Note: The size of the JOP Co. was determined
to be Category I.)
Product 1 Product 2
Misbrandlng 500 280
(Toxlclty Level: Danger) (Toxlclty Level: Warning)
Failure to File
Amended Registration 420 420
and Certification
Failure to Maintain
Records of Toxlcily 420 420
and Package Testing •
rjzo
TOTAL: $ 2.460
Summary of Action Taken: Civil Complaint citing charges
£41 (p.8). £40 (p.9), and £39 (p.10)
Stop Sale, Use or Removal Order
Civil Penalty of $2,460 (p.8, p.9,
and p.10)
-------
Appendix
CEP Regulation
-1 7-
Hypothetical Case 3.
Several cases or" children being poisored by a pesticide
product in alleged child-resistant packaging co.^ie to the
EPVs attention, .'lone of the incidents are fatal.
EPA Headquarters alerts the Regions where the pesticide is
nanufactured. Regional enforcement personnel request the
State pesticides office In the state of nanufacture to conduct
an Inspection.
State pesticides Inspectors examine the files kept by the
pesticide company. The Inspectors contact the company cited
In the pesticides company file as having performed package
effectiveness testing for the pesticide company. The Inspectors
find that the package testing company denl.es having done the
testing. The pesticide company claims that an employee, who
was fired for other transgressions, was responsible for the
falsification.
After these results are referred to the Regional Office,
Regional Enforcement personnel determine that the charge,
falsification of an amended registration, certification (£34),
toxldty testing data, and/or package testing data shall be
cited. The company discontinues production and recalls all
products released for shipment.
A civil penalty of $2,750 Is assessed (the company 1s
size III) and a Compliance Schedule Is negotiated. A criminal
sanction Is not-taken because: 1) there were no fatalities;
2) the company claims the data was falsified by a terminated
employee; and 3) the company cooperated to the fullest extent.
The company meets Its Compliance Schedule, so no further
enforcement action Is taken.
Summary of Action Taken:
Civil Complaint citing charge £34
(See p. 11)
C1v1l Penalty of $2,750 (See p. 12)
FIFKA CoBDliance/Enfor
-------
Appendix - Interln Guidelines (22 Apr 1975)
• UNITED STATES ENVIf '.ENTAL PROTECTION AGENCY
• • WASHINGTON. D.C. 20460
2 2 APR 197S
To: Enforcement Division Directors
Hazardous Materials Control Branch Chiefs
From: A. E. Conroy n
Director. Pesticides Enforcement Division
Subject: Interim Deviation from Civil Penalty Assessment Schedule
A review of the Civil Penalty Assessment Schedule as published
July 31, 1974 (39 F.R. 27656) has resulted in a determination that the
proposed penalty amounts assigned for a violation involving failure to
submit required reports of production or distribution data required
under Section 7(c) of amended FIFRA (Miscellaneous Violations.
Part 2, 39 F.R. at 27717) are excessive when considered within the
context of the gravity of harm and misconduct reasonably to be
associated with the violation. Thus for immediate use until the
Assessment Schedule is revised and republlshed. the penalty for a
violation of the Section 7 reporting requirement for the five size-
of-business categories is revised as follows:
I n m IV V
320 BOO 1760 2720 3200
This revised penalty may be adopted to apply to any cases currently
in progress in so far as deemed practicable and fair.
In accordance with the procedures as set out in Section 3 of the
Case Proceedings Manual, "Establishment Registration Enforcement
Policy", at 4. tallowing the expiration of twenty (20) days after the
failure to file an initial report or for failure to file by February 1 a
first annual report, or following failure to file by February 1 any
FTFRA
-------
Appendix
Interla Gqldellnes (22 Apr 1975)
-2-
annual reports subsequent to the first annual report, a civil complaint
may be issued. This policy is modified by the Memorandum of the
Director of April 10. 1975, entitled "Late Submission of Pesticides
Reports", which provides that an application for an extension of time
in the event of unforeseen circumstances filed on or before the due
date will relax the deadline for filing the report the 30 additional
calendar days. In the event the region determines to respond with a
civil complaint (as opposed to some other enforcement option) to the
failure to file after the tolling of any of the above-enumerated dead-
lines, the complaint should propose to assess the full amount of the
appropriate penalty by size-of-business in accordance with the revised
schedule specified herein. Should the report be filed within the pendency
of a civil proceeding, the proposed penalty may be mitigated as much as
forty per cent if the region feels such action is warranted based on the
facts of the case.
This policy represents an effort to establish a penalty which recog-
nizes at once the lesser value of a Section 7 related offense when compared
to other violations which have inherently more direct environmental harm,
and the need for reasonable assurance of future compliance with Section 7
requirements. Since a warning and time-extension provision is a con-
dition precedent to the application of sanctions for Section 7 violations
and since an additional 30-day extension is available to a producer for
good cause, it should never be argued that penalties for Section 7 viola-
tions are excessive because of lack of notice or experience by producers
in the requirements of this section. Further, the more experience a
producer has demonstrated with Section 7 requirements, the less avail-
able any mitigation should be in cases of violation.
Attachment
FIFRA Compl±i
:e/Enforceaent
A-in*
• **•»*».»> ]
TSffT
-------
Appendix • Inter!* Guidelines (11 Jun 1981)
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
- WASHINGTON. OiC. 20480
MEMORANDUM .
SUBJECT: FIFRA Enforcement Policy . Interla Penalty Guidelines
TO: Regional Enforcement Division Directors
Pesticide Branch Chiefs
The Pesticides and Toxic Substances Enforcement Division
Is In the process of updating the current penalty guidelines
under the Federal Insecticide. Fungicide, and Rodentldde Act
(FIFRA). Before final revisions can be completed, however,
there Is a need to develop Interim guidelines governing the
use of remedies and the response to violations which were not
In existence at the time the current guidelines were published.
The Interim Guidelines, attached to this memorandum,
address three areas which are not covered In the present
guidance and under which cases are currently arising:
."_!£•. "..?*. of EPA',s authority to /evoke or suspend federally
' '
2) The penalties which should be assessed against persons
who fall to maintain records concerning their use of restricted
use pesticides (RUPs); and
'3} The penalties which should bV assessed against persons
who use, or make, available for use, any RUPs other than 1n
accordance with section 3(d) of FIFRA.
The Interim.'' Guidelines do not represent a major departure
from the current system of determining appropriate penalties.
The Guidelines build upon existing standards for determining
dollar amounts of civil penalties to be assessed against
FLFRA Cawm 11 anco
-------
Appendix
Interim Guidelines (11 Jun 1981)
-2-
vlolators of RUP-related requirements. In addition, the
criteria for deciding whether to revoke or suspend a certificate
affect only those cases arising 1n States with federally
operated certification programs.
•A. E. Conroy /tj/DI rector
Pesticides and foxfc Substances
Enforcement XtnHslon
Attachment
-------
Appendix Interim Guidelines (11 Jon 1981)
MFRA ENFORCEMENT POLICY
INTERIM PENALTY GUIDELINES
Sections Affected:
FIFRA §§4 and 14
40 CFR Part 171.11
Issues:
1) When, and for how long, should Federal applicator
certifications be suspended or revoked?
2} What Is the a-pproprlate penalty to assess against
certified commercial applicators who fall to maintain
records concerning their use of restricted use
pesticides (RUPs)?
3) What Is the appropriate penalty to assess against
persons who use. or make available for use, any RUP
other than 1n accordance with Section 3(d) of FIFRA?
Policy and Discussion
.1) Suspending or Revoking Certifications
(a) Generally.
FIFRA certification regulations (40 CFR Part 171.11) authorize
EPA to suspend, revoke, or modify-federally Issued applicator
_^etti location s—QC the- e*r-***4-c*te--hol-der vfo**tes-fWlA or-re-gnTa-
tlons promulgated thereunder.
The Office of Enforcement views an enforcement action
affecting certification as a strong measure, to be taken when the
•public health, Interest or welfare warrants Immediate action*
(40 CFR Part 171.11(f)(S)(1}). Therefore, this policy statement
directs that actions to revoke or suspend certifications only be
tajtjn 1n response to serious violations or against persons with
a history of noncompllance.
(b) Revocation.
The revocation of a certification not only deprives an
-------
Appendix Interla Guidelines (11 Jnn 1981)
-2- _ ._
applicator of the authority to, apply restricted use pesticides
for an Indefinite period, but alao, as opposed to suspension
actions, forces the applicator to take additional steps to reacqulre
the certificate. Thus Regional personnel should only revoke a
certification where the violation has resulted In a fatality or
created an Imminent danger of a fatality, where the violator's
certification has previously been suspended, or where a person has
nade fraudulent records or reports, (40 CFR Part 171.11(f)(l)(1v)).
The term of a revocation should be not less than six Months.
(c) Suspension.
A Region considering Invoking the less severe suspension
alternative must .determine whether 1t Is appropriate to pursue
a suspension action and for how long such suspension should
be In effect. The answers to these questions will depend upon
the gravity of the violation.
The appendix to this po-Hcy statement contains criteria for
-assjs>» mr-TTre OTavltv^r A usjeLgE5ITEI5/r:3'' TJi*_gxav_lty_o* a--u««
violation Is a function of (1) the risk of harm posed to human
health and the environment by the violation, (2) and the degree
of misconduct exhibited by the violator. (See Section 7C 1.b.(2)(«)
of the FIFRA Case Proceedings Manual for background Information on
analyzing gravity.) The Region should assign weightings, based on
thj^gravlty criteria In the appendix, for each use violation
relative to the pesticide Involved, the harm to human health
and/or the harm to the environment, the history of noncompllance,
1. For purposes of this policy, a use violation means any of the
acts described In 40 CFR Part 171.11(f}(1)(1), (11). and (v).
-------
Appendix Interim Guidelines (11 Jun 1981)
-3-
and the culpability of the violator. The total gravity value vihus
obtained will be used to decide whether and for how long to
to-suspend a certification, 1n. accordance with the following
table:2
Total Gravity Value Enforcement Remedy
4 or below No action or Warning Citation
5-8 Suspension of up to 2 months
9-12 Suspension of between 2 and 4 months
1.3 or above - . • Suspension of between -4 and 6 «ontns
To determine whether the tern of a suspension should be at
the higher end or at the lower end of the given ranges, the Regions
should consider any gravity-related factors not accounted for 1n
the appended gravity criteria. In addition, the Regions should
consider the degree to which the suspension will have an adverse
economic Impact on the applicator. Applicators who will be minimally
affectedly e^yq^en^Tnr^rSTffA'*!..CffcSe—wtto iror'aa-U-y -apply very
little restricted-«ej»st1.«1des.s1iou1d receive longer sus-
pensions then app'Hcators whose day-to-day business activities
would be severely disrupted by the loss of their certifications.
Suspension actions should generally be pursued against Indi-
vidual applicators' In lieu of Section 14(a) administrative money
penalties. This policy, however, does not preclude • Region from
2. The Office of Enforcement has decided not to distinguish between
.commercial and private applicators for purposes of this policy.
'Consideration of applicator status Is Inherent In the policy 1n
that suspensions have a more substantial Impact on commercial
applicators, affecting their primary business activity. •
-------
Appendix Interim Guidelines (11 Jun 1981)
-4-
foregoing a suspension action against the applicator 1n favor
of issuing a warning letter or assessing a monetary or criminal
penalty, or from assessing a monetary penalty .against the firm
employing the applicator In addition to suspending the certifica-
tion of the applicator himself.
It Is possible for commercial applicators to violate RUP
recordkeeplng requirements In addition to use restrictions. (See
40 CFR Part 171.11(c){7); 40 CFR Part 171.11(f)(1)(111).)
These violations do not lend themselves to analysis utilizing
gravity of harm criteria. Consequently, OE's interim policy
Is to base decisions to suspend the certifications of persons
who fall to maintain RUP records solely on gravity of conduct
considerations. Up to two month certification suspensions
may be assessed for the second Independent violation resulting
from the failure to maintain RUP records. For each additional
violation, two months may be added to the term of the suspension
up to a limit of six months. As noted In Part l(bj above, In
cases where the violation resulted from the keeping of fraudulent
records, I.e., where the violator Intentionally concealed or
misrepresented the true circumstances and extent of RUP use,
the violator's certification may be revoked In response to the
Initial Infraction.
If EPA decides to suspend a certification, the applicator
mu*t*be notified of the time period during which the suspension
will be effective. In order for the suspension to function as
a deterrent, the suspension should take effect during the time
(xnpJJLance/Earorceaeiit A-11A Guidance Manual 1983
-------
Appendix Interim Gnldellnes (11 Jon 1981)
-5-
when the applicator is most H*. y to be applying restricted
use pesticides.3
2) Failing to Maintain RUP Records
The Office of Enforcement has not yet developed a final civil
penalty policy governing the failure to keep RUP records as
required In 40 CFR Part 171.11(c){7). (a violation of Part
171 .11 (f) (1 )(11.1)). As Interim guidance. Regional personnel
shou 14. Jit 11 -1z« *n«- aatrl x ^for.Secti«n. 8( a )• r«cord*««p 1 nq v 1 o 1 at 1 ons
found In the current penalty guidelines (Charge Code £39). This
matrix Is as follows:4
Size of Business Category
I II III IV V
Penalty Amount 450 1050 2310 3570 4200
Restricted use pesticide recordkeeplng violations may
result from tne failure to maintain some or all of the Infor-
mation required by Bart 171.11(c)(7). . Marning Cititions
.,shouId-*« issued i*-'T«sptm*« tfl f 1-rst-ttroe "partial" record-
keeping offenses. Failure to maintain any of the required RUP
records, and "partial" recordkeeplng violations following a
warning, should result In assessment of a civil penalty. Continued
violations may be addressed by a suspension action in accordance
wl th ie .pol 1 .cjf. 4*t forth
3. EPA nay take actions affecting certification other than revo-
cations and total suspensions. Enforcement policy on the use
of such actions (i.e.. modifications, partial suspensions, and
denials of certificates), will be contained in later guidance.
4. Only one matrix is needed since this violation, by definition,
implicates only commercial applicators.
FIFKA QmpUance/Enforcement . A-11 5
-------
Appendix Interim Guidelines (11 Jun 1981)
-6-
The Agency views the making of fraudulent records, as defined
above, to be a more serious violation than the failure to maintain
RUP Information. Therefore, when assessing a monetary penalty for
a violation of Part 171 .11 (f ) (1 )(1v ). the Regions should utilize
the following matrix:
Size of Business Category
I II III IV V
Penalty Amount 1250 1850 3110 4370 5000
3) Using RUPs. Or Mating RUPs Available For Use. Other Than
In Accordance With Section 3(d) of FIFRA
Section 12(a)(2)(F) of FIFRA provides that *1t shall be
unlawful for any person to make available for use, or to use,
any registered pesticide classified for restricted use for some
or all purposes other than 1n accordance with Section 3(d)."
Section 3(d) prohibits the use of RUPs by non-certified applicators.
In addition, with certain exceptions,5 persons who make RUPs
jjy a .«JB .s TO/- ns.t.o.n-certi.T'i ea jip.p [jcaurs are suDj.ect t_o-
penaltles under Section 12.
As Interim policy, we will make use of the existing matrix
governing another type of use violation, I.e., use Inconsistent
with labelling (Section 12(a) (2)(S)). The Section 12(a)(2)(G)
matrix (charge code £28) In the current penalty guidelines 1s
divided Into three levels, depending on the adverse effects
-*&.
likely to result from the violation. Since Section 12(a)(2)(F)
5. See the Proviso In Section 12(a)(2)(F) and the preamble to
to the RUrmislflcatlon regulations, Part IX, 43 FR 5783,
February 9, 1978. To date, no States have Issued regulations
which would enable persons to sell RUPs under this Proviso.
FIFRA Compliance/EnforcementA-116Guidance Manual
-------
Appendix Interim Guidelines (11 Jun 1981)
-7- .
RUP violations necessarily Involve pesticides which nay cause
"unreasonable adverse effects on the environment" (Section
3(
-------
Appendix
Interim Guidelines (11 Jun 1981)
APPENDIX
Criteria For Determining The GrayIty Of A Use
Violation For Purposes of A Certification Action
I. GRAVITY OF HARM
A. Pesticide
Weighting
B. Harm to Human
Health
C. Environmental
Harm
Activity
Toxldty category I pesticides.
restricted use pesticides, or
pesticides that have been demon-
strated to be associated with
chronic health effects (muta- *
genlclty, oncogenlclty, terato-
genlclty. etc.)
Toxldty categories II-IV, no
known chronic effects
Serious or widespread actual harm
to human health
Serious or widespread potential
harm to human health
Minor potential or actual harm to
human health, neither serious nor
widespread
Substantial or widespread actual
harm to the "errvtronmerrt ~ 1.e. ,
"crops," water". ~Tiv e'stock , w11 dl 1 fe.
wilderness, or other sensitive
natural areas
Substantial or widespread
potential harm to the environment
II. GRAVITY OF CONDUCT
•JIH
A. Noncompllance
History
Minor harm to the environment,
neither widespread nor substantial
More than one prior violation
of FIFRA by the applicator
One prior violation
No prior violations
JPTVRA
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Appendix
Inter!* Guidelines (11 Jun 1981)
B. Culpability
A.2
4 Knowlne or willful violation
Z Violation resulted fron negll
gence
0 Violation was not knowing or
willful and did not result
fro* negligence; good faith
efforts made to comply with
the law
lance/cat*
umoamce
-------
Appendix _ Interim Guidelines (11 Jon 1981)
^ ""***/ •m'""T*'*'"llT A—J.2U Cbrlttmwtfif HmrmOn Hili'H
-------
Appendix
7 Additional Sources of Compliance/
Enforcement Information
The following is a listing of all FIFRA compliance/enforcement related
policies and guidances (other than those contained in this manual) that are
currently in effect. Copies of these documents may be obtained from
Headquarters PTSCMS or the Office of Legal and Enforcement Policy.
TITLE OF DOCUMENT
DATE OF DOCUMENT
Enforcement Actions
" Routine Use of SEC '10-K' Statements in
TSCA and FIFRA Civil Penalty Actions"
FIFRA Case Digest (Draft)
10/17/80
1983 (Draft)
ifaiitoring
Pesticides Inspection Manual
"Enforcement Policy Applicable to Bulk
Shipments of Pesticides"
"Request Procedures for Pesticide Samples
g/>1 1 ftmin iff" ^>aat"i CJ^f ^^ n
"Appropriate Documents to be Presented by
State Inspectors Conducting Pesticide Use
Inspections in States Having Primacy"
1975 Edition
7/11/77
7/30/80
12/18/80
Technical Guidance
Statements (PEPS) [40 FR 19526]
"Water Purifiers"
Policy
3/5/75
8/30/75
FIFRA
A-121
Ooidi
1983
-------
Appendix
Additional Sources of Compliance/Enforcement Information
"Guidance for Enforcement Actions Involving
Water Purifier Products"
PEPS #3: Certain Enforcement Policies to be
Followed During the Phased Implementation of
FIFRA Section 3 [41 FR 13984]
PEPS 14: Preventive Pest Control Treatments
In the Absence of Target Pests [41 FR 28005]
Pest Control Devices and Device Producers
[41 FR 51065]
"Enforcement Priorities in Structural Pest Control
a) Establishment Inspections of Pest
Control Firms
b) Pesticides Use Inspections
c) Prosecutorial Discretion in Pesticide Use
Enforcement"
"Federal Pesticide Act of 1978"
"Primary Use Enforcement Responsibility"
"Review of State Certification Plans
Pursuant to FIFRA Section 26"
Notice of Rescission of Pesticide
Enforcement Policy Statements (PEPS)
Nos. 1,2,5,6,7 [44 FR 33151]
Enforcement Policy Regarding Failures
to Report Information Under
S6(a)(2) of FIFRA [44 FR 40716]
Agency Interpretation of Requirement
Imposed on Registrants by $6(a)(2) of
FIFRA [43 FR 37611]
Suspended and Cancelled Pesticides (Booklet)
Pesticide Use-and Production by Veterinarians;
Statement of Policy on the Applicability of
the Federal Insecticide, Fungicide, and
Rodenticide Act to Veterinarians [44 FR 62940]
"Enforcement Actions Concerning Nonhazardous
Pesticides Devices"
"Federal Facilities Compliance"
3/15/76
4/1/76
7/8/76
11/19/76
1/24/77
8/22/78
1/4/79
3/14/79
6/8/79
7/12/79
8/23/78
10/79 (2nd
Revision)
11/1/79
12/19/79
1/16/80
WLfEA. Compliance/mf or i
A-122
Gold
1983
-------
Appendix
Sources of
t Information
"Clarification of Primary Use Enforcement
Besponsibility Guidance"
Statement of Policy on the Labeling Requirements for
Exported Pesticides, Devices, and Pesticide Active
Ingredients and the Procedures for Exporting Unregistered
Pesticides [45 FR. 50274]
"Enforcement Facts and Strategy; Compliance
Monitoring Procedures; Water Purification Devices"
"Regulation of Public Health Related Disinfectant
Products"
Pesticide Registration, Reregistratlon, and
Classification Procedure; Clarification of
Policy Issues on Special Packaging [46 FR 15104]
tegy for the Enforcement of tbe Chlld-Resiatant
Packaging Regulation under FIFRA"
Federal Insecticide, Fungicide, and Rodenticide Act,
State Primary Enforcement Responsibilities [48 FR. 404]
"General Compliance Strategy for Products Subject
to the FIFRA Label Improvement Program"
3/4/80
7/28/80
10/80
12/17/80
3/3/81
6/8/81
1/5/83
4/21/83
Operating Guidance
'Final FY84 Cooperative AgreementProgram-Guidance*
4/21/83
Cancellation-Suspension Enforcement Strategies
Aldrin Dleldrin
"Continuing State Registration of Products
Containing Aldrin and Dieldrin for Which
Uses Have Been Suspended"
' tailordane^Heptachlor
"Enforcement of Administrator's Decision and Order
Suspending Moat Uses of Heptachlor and Chlordane"
"Clarification of Heptachlor/Chlordane Suspension Order"
s
r/Oxlanl*iM
"Heptachlor/Chlordane Suspension Order Enforcement
Strategy"
1/10/75
1/15/76
1/22/76
2/19/76
3/23/76
Uompllance/Enfo
A-123
Gold
1983
-------
Appendix
Additional Sources of Coapllance/Kafor
"Heptachlor/Chlordane Suspension Order
Enforcement Strategy—CORN USE"
"Continued Enforcement of Suspension of
Registration for Certain Products Containing
Heptachlor and Chlordane"
Mercury
"Conclusion of Mercury Cancellation Proceeding"
"Enforcement of Mercury Settlement"
2,4,5-T and Silvex
"Enforcement of Administrator's Emergency
Orders Suspending 2,4,5-T and Silvex
Registrations"
"Further Guidance Concerning Enforcement of the
Administrator's Emergency Orders Suspending 2,4,5-T
and Silvex Registrations"
"Further Guidance on the Cancellation and Suspension
of 2,4,5-T and Silvex"
Other
"DBCP Suspension Order Enforcement Strategy"
"General Compliance Strategy for Products
Suspended Under J3(c)(2)(B) of FIFRA"
"Toxaphene Cancellation Compliance"
8/27/76
11/23/76
10/28/76
1/6/77
3/7/79
4/5/79
8/20/79
11/7/79
7/2/82
1/1/83
Compendiums
FIFRA Compliance Program Policy Compendium
Compendium Index:
Title ?
Use Recommendations
Labeling of Outer Containers
Shipment Prior to Registration
Distributor Registrations
Fumigation of Truck Vans on Flatbed Rail Cars
Custom Blenders
Production of Pesticides for Personal Use
Contract Manufacturing
5/10/82
Qompi i mice/ saor*
A-124
1983
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Appendix
Additional Sources of
Information
Release of Pesticide Production Data
Using Registered or Experimental Use Permit
Pesticides in a Manner Not Included on the Label or Permit
Closed Application Systems
Authority for Use Inspections
Pesticide Processing in Foreign-Trade Zones
Waiver of Notice of Arrival Requirements
Special Local Needs Labeling
Transfer of Use Enforcement Primacy to the States
Referral of State Misuse Cases to EPA
General Enforcement Policy Compendium
Compendium Index:
Title
3/3/83
Vls.it or *-,8 Releases. :4nd, Hold Harmless .Agreements
* Condition to Entry- to EPA Employees on
Industrial Facilities"
"Professional Obligations of Government Attorneys"
"Memorandum of Understanding Between the Department
of Justice and the Environmental Protection Agency"
" *Ex Parte * Rules Covering Communications Which are
the Subject of Formal Adjudlcatory Hearings"
" Quant ico Guidelines for Enforcement Litigation"
"Agency -fluidelines for Participation In Grand
Jury Investigations"
"Reorganization of the Office of Regional Counsel
(includes Administrator's Memorandum of
September 15, 1981)"
"Coordination of Policy Development and Review"
f or EPA*« Ctvtl
Enforcement Program"
"Case Referrals for Civil Litigation"
"Criminal Enforcement Priorities for the
Environmental Protection Agency"
11/8/72
4/19/76
6/16/77
12/10/81
4/8/82
4/30/82
5/7/82
6/23/82
7/6/82
9/7/82
10/12/82
10/27A82
Enforcement Program"
uDapJoance/Enxorceaent
. .A-1Z3
Guidance Manual 1933
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Appendix Additional Sources of Coapliance/Kaforceaent lKi'et»ation
"Regional Counsel Reporting Relationship" 8/3/83
Additional Sources of FIFRA Compliance Enforcement Information
EPA Delegations of Authority
EPA Manual of Pesticide Misuse Review Committee Policy,
Procedures, Cases, and Advisory Opinions
EPA Security Manual
Notices of Judgment
Office of Pesticide Programs Policy and Criteria! Notice Manual
SFIREG Charter
FIFRA Coapllance/EnforceBent
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