FIFRA ENFORCEMENT RESPONSE POLICY
FEDERAL INSECTICIDE, FUNGICIDE, AND RODENTICIDE ACT
Waste and Chemical Enforcement Division
Office of Civil Enforcement
Office of Enforcement and Compliance Assurance
United States Environmental Protection Agency
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FIFRA ENFORCEMENT RESPONSE POLICY
TABLE OF CONTENTS
I. INTRODUCTION 4
II. OVERVIEW 01 THE POLICY 4
III. DETERMINING THE LEVEL 01 ACTION 5
A. Notices of Warning 5
B. Notices of Detention (Section 17) 6
C. Stop Sale, Use, or Removal Orders (SSURO) 6
1. Issuance of a S SURO 7
D. Seizures 8
E. Injunctive Relief. 9
F. Civil Administrative Penalties 9
G. Denials, Suspensions, Modifications, or Revocations of
Applicator Certifications 11
1. Suspension 11
2. Denial/Revocation 12
H. Recalls 12
1. Cancelled and Suspended Products 12
a. Mandatory Recalls 12
b. Voluntary Recalls 13
2. Other Recalls 13
I. Criminal Proceedings 13
1. Parallel Criminal and Civil Proceedings 14
J. State and Federal Roles in Enforcement of FIFRA 15
K. Press Releases and Advisories 15
IV. ASSESSING ADMINISTRATIVE PENALTIES 15
A. Computation of the Penalty 15
1. Independently Assessable Violations 16
2. Size of Business 17
3. Gravity of the Vi ol ati on 18
4. Base Penalty Amount 18
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5. Adjustments for Case-Specific Factors 19
6. Economic Benefit of Noncompliance 20
a. Economic Benefit from Delayed Costs
and Avoided Costs 21
b. Calculation of Economic Benefit from
Delayed and Avoided Costs 21
c. Additional Information on Economic Benefit 23
7. Ability to Continue in Business/Ability to Pay 23
B. Modifications of the Penalty 25
1. Graduated Penalty Calculations 25
2. Voluntary Disclosure 26
3. Adjusting the Proposed Civil Penalty in Settlement 27
a. Factual Changes 27
b. Negotiations Involving Only the Amount of Penalty 27
i. Good Faith Adjustments 27
ii. Special Circumstances/Extraordinary Adjustments 27
iii. Supplemental Environmental Projects (SEPs) 28
APPENDICES
APPENDIX A - FIFRA VIOLATIONS AND GRAVITY LEVELS 29
APPENDIX B - GRAVITY ADJUSTMENT CRITERIA 34
APPENDIX C - SUMMARY 01 TABLES 36
APPENDIX D - FIFRA CIVIL PENALTY CALCULATION WORKSHEET 38
APPENDIX E - ENFORCEMENT RESPONSE POLICY FOR FIFRA
SECTION 7(c) - PESTICIDE PRODUCING
ESTABLISHMENT REPORTING REQUIREMENTS
(June 2007)
APPENDIX F - FIFRA: WORKER PROTECTION STANDARD (WPS)
PENALTY POLICY - INTERIM FINAL
(September 1997)
APPENDIX G - ENFORCEMENT RESPONSE POLICY FOR THE FIFRA
GOOD LABORATORY PRACTICES (GLP) REGULATIONS
(September 1991)
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I. INTRODUCTION
This document sets forth guidance for the U.S. Environmental Protection Agency (EPA
or the Agency) to use in determining the appropriate enforcement response and penalty amount
for violations of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA or the Act).1
The goal of this Enforcement Response Policy (ERP) is to provide fair and equitable treatment of
the regulated community, predictable enforcement responses, and comparable penalty
assessments for comparable violations. The policy is designed to allow swift resolution of
environmental problems and to deter future violations of FIFRA by respondents, as well as other
members of the regulated community.
This policy supersedes the "Enforcement Response Policy for the Federal Insecticide,
Fungicide, and Rodenticide Act (FIFRA)" issued on July 2, 1990 and other FIFRA penalty
policies, except for the following policies, which remain in effect: the June 2007 "Enforcement
Response Policy for FIFRA Section 7(c), Pesticide Producing Establishment Reporting
Requirement"; the September 1997 "FIFRA: Worker Protection Standard (WPS) Penalty Policy
- Interim Final"; and the September 1991 "Enforcement Response Policy for the FIFRA Good
Laboratory Practices (GLP) Regulations." These policies are to be used as supplements to this
policy to determine the appropriate enforcement response for the referenced programs. We have
attached these policies as appendices to this document for ease of use.
This guidance applies only to violations of EPA's civil regulatory programs. It does not
apply to enforcement pursuant to criminal provisions of laws or regulations that are enforced by
EPA. The procedures set forth in this document are intended solely for the guidance of
government professionals. They are not intended and cannot be relied on to create rights,
substantive or procedural, enforceable by any party in litigation with the United States. The
Agency reserves the right to act at variance with this policy and to change it at any time without
public notice.
II. OVERVIEW OF THE POLICY
This Enforcement Response Policy is divided into three main sections. The first section,
"Determining the Level of Action," describes the Agency's options for responding to violations of
FIFRA. The second section, "Assessing Civil Administrative Penalties," elaborates on EPA's
policy and procedures for calculating civil penalties to be assessed in administrative cases against
persons who violate FIFRA. The third section, the appendices, contains tables to be used in
calculating civil penalties for this ERP and the other FIFRA penalty policies that remain in effect.
The appendices to this ERP are: (1) Appendix A - FIFRA Violations and Gravity Levels; (2)
Appendix B - Gravity Adjustment Criteria; (3) Appendix C - The Summary of Tables; (4)
Appendix D - The FIFRA Civil Penalty Calculation Worksheet; (5) Appendix E - "Enforcement
Response Policy for FIFRA Section 7(c), Pesticide Producing Establishment Reporting
Requirement" (June 2007); (6) Appendix F - "FIFRA: Worker Protection Standard (WPS) Penalty
Policy - Interim Final" (September 1997); and Appendix G - Enforcement Response Policy for the
FIFRA Good Laboratory Practices (GLP) Regulations.
1 For purposes of this Policy and its Appendices, the terms "pesticide" and "pesticide product" include, as
applicable, "pesticide," "antimicrobial pesticide," "device," "pesticide product," "pesticidal substance," and/or
"plant incorporated protectant" as these terms are defined and used in FIFRA § 2(u), (mm), and (h), and 40 C.F.R.
Parts 152 - 174.
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III. DETERMINING THE LEVEL OF ACTION
Once the Agency finds that a FIFRA violation has occurred, EPA will need to determine
the appropriate level of enforcement response for the violation. FIFRA provides EPA with a
range of enforcement options. These options include:
— Notices of Warning under sections 9(c)(3), 14(a)(2), and 14(a)(4);
— Notices of Detention under section 17(c);
— Stop Sale, Use, or Removal Orders under section 13(a);
— Seizures under section 13(b);
— Injunctions under section 16(c);
— Civil administrative penalties under section 14(a);
— Denials, suspensions, modifications, or revocations of applicator certifications under
40 C.F.R. Part 171;
— Referral for criminal proceedings under section 14(b); and
— Recalls.
To ensure national consistency in FIFRA enforcement actions, EPA enforcement
professionals should use this ERP as a guide in considering the facts and circumstances of each
case and the company's compliance history to ensure an enforcement response appropriate for
the particular violations. Each of the potential enforcement responses is discussed below.
A. Notices of Warning
FIFRA §§ 14(a)(2), 14(a)(4), and 9(c)(3) provide EPA with the authority to respond to
certain violations of FIFRA with a Notice of Warning (NOW) to the violator. Under FIFRA §
14(a)(2), EPA may not assess a penalty for violations by a private applicator or other person not
covered by section 14(a)(1) without having issued a written warning or citation for a prior
violation of FIFRA by that person, "except that any applicator not included [in paragraph
14(a)(1)] who holds or applies registered pesticides, or uses dilutions of registered pesticides,
only to provide a service of controlling pests without delivering any unapplied pesticide to any
person so served . . . may be assessed a civil penalty ... of not more than $500 for the first
offense nor more than $1,000 for each subsequent offense." For all persons not covered by the
exception in section 14(a)(2), EPA should issue a Notice of Warning for a first-time violation.
A state citation for a violation that would also be considered a violation under FIFRA,
can be used to meet the requirement of a citation for a prior violation under FIFRA § 14(a)(2).
For this purpose, the prior citation may be a notice of warning and does not have to include a
penalty. The prior citation does not have to be related to the current violation; it may be for any
FIFRA violation.
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Regions may issue a NOW or assess a penalty of up to $5002 for the first offense by any
applicator within the scope of the exception set forth in section 14(a)(2). Section 9(c)(3) permits
EPA to issue a written Notice of Warning for minor violations of FIFRA in lieu of instituting a
penalty action if the Administrator believes that the public interest will be adequately served by
this course of action. Generally, a violation will be considered minor under this section if the
total "gravity adjustment value," as determined from Appendix B of this ERP, is three or less. A
Notice of Warning may also be appropriate for certain first-time recordkeeping violations as
listed in Appendix A (for example, late Section 7 reports that meet the guidelines of the FIFRA
Section 7 ERP). FIFRA § 14(a)(4) provides that EPA may choose to issue a Notice of Warning
in lieu of a penalty action if EPA determines that the violation occurred despite the exercise of
due care or the violation did not cause significant harm to health or the environment.
B. Notices of Detention
A shipment of a pesticide or device may not be imported into the United States until EPA
makes a determination of the admissibility of that shipment. FIFRA § 17 authorizes EPA to
refuse admission of a pesticide or device into the United States if EPA determines that the
pesticide or device violates any provisions of the Act. EPA may deny entry of a pesticide or
device by refusing to accept the Notice of Arrival or by issuing a Notice of Detention and
Hearing. Upon receiving a copy of the Notice of Detention, the Department of Homeland
Security, through the U.S. Customs and Border Protection (Customs), will refuse delivery to the
consignee. If the consignee has neither requested a hearing nor exported the pesticide or device
within 90 days from the date of the notice, Customs will oversee destruction of the pesticide or
device.
Customs regulations for enforcement of FIFRA § 17(c) (19 C.F.R. Part 12.110 - 12.117)
allow Customs to release a shipment to the importer or the importer's agent before EPA inspects
the shipment only if (1) the Customs District Director receives a completed Notice of Arrival
signed by EPA indicating the shipment may be released and (2) the importer executes a bond in
the amount of the value of the pesticide or device, plus duty. When a shipment of pesticides is
released under bond, the shipment may not be used or otherwise disposed of until the
Administrator has determined the admissibility of that shipment. Should the shipment
subsequently be refused entry and the importer or agent fails to return the pesticide or device, the
bond is forfeited.
C. Stop Sale, Use, or Removal Orders (SSURO)
FIFRA § 13 provides EPA the authority to issue a Stop Sale, Use, or Removal Order
(SSURO) to any person who owns, controls, or has custody of a pesticide or device, whenever
EPA has reason to believe on the basis of inspection or tests that:
(1) a pesticide or device is in violation of any provision of the Act;
(2) a pesticide or device has been, or is intended to be, distributed in violation of the Act;
or
(3) the registration of a pesticide has been cancelled by a final order or has been suspended.
2 Each of the FIFRA penalty amounts referenced in this document has been increased pursuant to the Debt
Collection Improvement Act of 1996, which requires federal agencies to periodically adjust the statutory
maximum penalties to account for inflation. The inflation adjustment is based on the date of the
violation. See 40 C.F.R. Part 19.
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EPA should generally seek a civil penalty in addition to the SSURO when EPA confirms
that a violation of FIFRA has occurred. EPA has established criteria to ensure judicious use of
the authority to stop the sale or use of a pesticide and to order its removal. SSUROs can be a
useful enforcement response, particularly for more serious violations and situations that pose a
significant risk, as described further below.
1. Issuance of a SSURO
A SSURO is among the most expedient and effective remedies available to EPA in its
efforts to prevent illegal sale, distribution, and use of pesticides. Unlike a seizure, EPA does not
need to bring action in federal court and does not need to take custody of the materials. The
advantages of a SSURO over other responses are that: (1) it may be issued whenever EPA has
reason to believe that the product is in violation of the Act; (2) it is easier to prepare and issue
than a seizure; (3) it governs all of the product under the ownership, custody, or control of the
individual receiving the SSURO regardless of where the product is located; (4) it can be written
to include future amounts of the product that may come into custody of the respondent; and (5) it
can easily be adapted to particular circumstances.
EPA should issue a SSURO against persons who own, control, or have custody of
pesticides in the following categories:
— Pesticides for which there is reason to believe that there is a potential hazard to human
health or the environment because they are either not registered or are over-formulated,
under-formulated, or adulterated as to present a potentially serious health hazard.3
— Pesticides or devices with labeling that is materially misleading or fraudulent and, if
followed by a user, is likely to cause a significant health hazard or serious adverse
environmental effect. For example, a pesticide lacking a required restricted use label is
an especially serious labeling violation. A SSURO should be issued for labeling on
products that: (1) are ineffective for the purposes claimed; (2) are so chemically deficient
as to affect the product's efficacy; or (3) bear false or misleading safety claims.
— Pesticides or devices that are the subject of a recall in instances where the responsible
party refuses to remove, is recalcitrant in removing, or is unable to remove the product
from the channels of trade.
— Pesticides or devices that are in violation of FIFRA and for which a civil penalty has
been issued but the registrant has not brought the product into compliance.
— Pesticides that have been suspended under FIFRA § 6.
EPA may also issue a SSURO if a product has been cancelled under any section of
FIFRA or suspended under FIFRA §§ 4 or 3(c)(2)(B) and the existing stock deadlines have
expired at that level of sale, distribution, or use. In addition, EPA may issue a SSURO to address
serious violations that present a threat of harm where there has also been a large volume of sales.
3 This may include pesticides packaged in improper or damaged containers, or pesticides that are so
inadequately labeled as to make their safe or effective use unlikely or impossible.
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When a SSURO is issued to a basic registrant for a registered pesticide product, the
issuing office should ensure that the terms of the SSURO are equally applicable to the
supplemental registrations of the product, as appropriate. In those cases, the SSURO should
separately cite the supplemental registrations and copies should be sent to all known
supplemental registrants.
D. Seizures
FIFRA § 13(b) gives EPA the authority to initiate in rem condemnation proceedings in
U.S. District Court. Once a court grants EPA's request for authority to conduct a seizure, FIFRA
§ 9(b)(3) authorizes officers or employees designated by the Administrator to obtain and execute
warrants for the purpose of seizing any pesticide or device that is in violation of the Act.
Seizures may be executed with the assistance of the U.S. Marshals Service.
Under FIFRA § 13(b), EPA may initiate seizure actions in District Court against any
pesticide or device that is being transported or, having been transported, remains unsold or in
original unbroken packages, or that is sold or offered for sale in any state, or that is imported
from a foreign country, if:
(1) a pesticide is adulterated or misbranded;
(2) a pesticide is unregistered;
(3) a pesticide has labeling that does not bear the information required by the Act;
(4) a pesticide is not colored or discolored as required;
(5) a pesticide bears claims or directions for use that differ from those made in
connection with its registration;
(6) a device is misbranded; or
(7) a pesticide or device causes unreasonable adverse effects on the environment even
when used in accordance with FIFRA requirements.
These circumstances are similar to the circumstances under which EPA would issue a
SSURO. Because a SSURO is an administrative action, it can be issued more quickly than a
seizure, which requires judicial action. The SSURO is therefore the more expedient enforcement
response. Nevertheless, the Agency should consider initiating a seizure in the following
circumstances:
• EPA has issued a SSURO but the recipient of the order has not complied with it;
• EPA has reason to believe that a person, if issued a SSURO, would not comply with it;
• The pesticide at issue is so hazardous that it should be removed from the marketplace,
place of storage, or place of use to prevent any chance of harm to human health or the
environment;
• The seizure will be used to support a recall; or
• It is necessary to dispose of products being held under a SSURO for which the
responsible party has indicated it will not take corrective action.
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E. Injunctive Relief
FIFRA § 16(c) gives EPA the authority to initiate actions in U.S. District Court seeking
permanent injunction, preliminary injunction, or temporary restraining order. Because an
injunction is an extraordinary form of relief, the Agency's arguments supporting injunction must
be clear and compelling. As a party seeking permanent injunction, EPA would need to
demonstrate one of the following: (1) other remedies would be inadequate or not available
administratively either in restraining the violation or in preventing unreasonable risk to human
health or the environment; (2) the Agency has already diligently exercised all appropriate
administrative remedies (such as SSUROs and civil penalties) yet the violation or threat of
violation continues unabated; or (3) irreparable injury, loss, or damage will result if the relief
sought is not granted.
When seeking a preliminary injunction or temporary restraining order, the U.S. must
demonstrate that: (1) immediate and irreparable injury, loss, or damage will result if the
requested relief is not granted; and (2) EPA is likely to prevail at trial, based on the facts before
the court.
Under FIFRA, a number of specific circumstances may justify injunctive relief. These
include:
• Violation of a Section 6 suspension or cancellation order;
• Violation of a SSURO where a civil penalty or criminal prosecution would not provide a
timely or effective remedy to deter further violations;
• Continued production, shipment, sale, distribution, or use of an unregistered pesticide
after the Agency has taken civil or criminal action;
• A person continues to sell, distribute, or make available for use a restricted use pesticide
(RUP) other than in accordance with FIFRA § 3(d), after the Agency has taken an
enforcement response;
• A person continues to violate the FIFRA § 17 import or export requirements after the
Agency has taken an enforcement response;
• A person continues to use a pesticide in a manner inconsistent with its labeling, in a
manner contrary to an experimental use permit, or repeats any violation of FIFRA, after
EPA has taken an enforcement response.
F. Civil Administrative Penalties
A civil penalty is the preferred enforcement response for most violations. A civil penalty
is appropriate where the violation:
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(1) presents an actual or potential risk of harm to humans or the environment,4 or would
impede EPA's ability to fulfill the goals of the statute; and
(2) was apparently committed as a result of ordinary negligence (as opposed to criminal
negligence), inadvertence, or mistake; and the violation either:
(a) involves a violation by any registrant, commercial applicator, wholesaler,
dealer, retailer, or other distributor, or any applicator within the scope of the
exception set forth in FIFRA § 14(a)(2) (no prior warning is required by FIFRA
for violators in this category); or
(b) involves a private applicator or other person not listed above who has received
a prior Notice of Warning or citation for a FIFRA violation (as described in
section III. A).
FIFRA § 14(a)(1) provides that a registrant, commercial applicator, wholesaler, dealer, or
other distributor may be assessed a civil penalty of up to $5,000 for each violation. FIFRA §
14(a)(2) authorizes the Administrator to assess a private applicator or other person a penalty of
up to $1,000 for each violation occurring after the issuance of a Notice of Warning or a citation
for a prior FIFRA violation. Additionally, any applicator within the scope of the exception set
forth in FIFRA § 14(a)(2) may be assessed a civil penalty of up to $500 for the first offense, and
up to $1,000 for each subsequent offense.
Each of these penalty amounts has been increased pursuant to the Debt Collection
Improvement Act of 1996, which requires federal agencies to periodically adjust the statutory
maximum penalties to account for inflation. EPA has thus increased the maximum penalty
amounts for FIFRA violations. For violations of FIFRA § 14(a)(1) that occur on or after January
12, 2009, the maximum civil penalty has increased to $7,500 for each violation. Violations prior
to that date may be assessed up to $6,500 for each violation. For violations of FIFRA § 14(a)(2)
that occur on or after January 12, 2009, the maximum civil penalty has increased to $1,100 for
each violation following the first offense by both private applicators and any applicator within
the scope of the exception set forth in FIFRA § 14(a)(2). Additional penalty inflation increases
are expected to occur periodically and such increases are incorporated by reference into this
ERP.
As the statutory definitions of "distribute or sell" and "commercial applicator" indicate,
and as the conference report for the Federal Pesticide Act of 19785 confirms, any applicator,
including a "for hire" applicator, who holds or applies an unregistered pesticide to provide a
service of controlling pests without delivering any unapplied pesticide, will be considered a
distributor of pesticides and will be subject to the higher penalties set forth in FIFRA § 14(a)(1)
and 14(b)(1). Any applicator, other than a private applicator, who uses or supervises the use of a
restricted use pesticide (RUP), whether or not that applicator is certified, is a commercial
applicator and is subject to the higher penalties set forth in section 14(a)(1) and 14(b)(1). Any
applicator, including a certified applicator, who holds or applies a general use pesticide (GUP) or
an unclassified pesticide in violation of FIFRA will be subject to the lower penalties set forth in
section 14(a)(2) and 14(b)(2).
4 In such cases, the Agency should consider issuing a SSURO or other injunctive relief in addition to a
civil penalty.
5 Senate Report No. 95-1188, September 12, 1978, pp. 44 and 45.
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G. Denials, Suspensions, Modifications, or Revocations of
Applicator Certifications
Regulations governing certification of pesticide applicators (40 C.F.R. Part 171)
authorize EPA to deny, suspend, or revoke a federally issued applicator certification if the holder
of the certification violates FIFRA or its regulations. The Agency views enforcement actions
affecting certification status as a very strong measure, to be taken only when the "public health,
interest, or welfare warrants immediate action," 40 C.F.R. § 171.1 l(f)(5)(i). Therefore, EPA will
deny, suspend, modify, or revoke a federal certification only in response to serious violations or
against persons with a history of noncompliance.
1. Suspension
In response to violations by applicators that have previously received a civil complaint
for FIFRA violations and where none of the factors for revocation (discussed in paragraph G.2.
below) are present, EPA will seek suspension of the individual applicator's federal certification,
as well as assess a civil penalty against the employer. EPA may also suspend certifications of
commercial applicators who violate restricted use pesticides recordkeeping requirements, 40
C.F.R. § 171.11(c)(7); 40 C.F.R. § 171.11 (f)(l )(iii). For purposes of this section of the policy,
EPA will not distinguish between commercial and private applicators. A suspension has a more
substantial impact on commercial applicators because it affects their primary business activity.
Recommended suspension periods are set forth on the chart below.
Recommended Suspension Periods
First enforcement
action
Second enforcement
action6
Third enforcement
action
Enforcement remedy
Penalty action
Penalty action
Penalty action
Base suspension
period
N/A
4 months
6 months
Additional
suspension time for
multiple violations
N/A
2 months for each
additional violation
(up to a limit of 8
months total)
2 months for each
additional violation
(up to a limit of 12
months total)
If EPA decides to suspend certification, it must notify the applicator of the grounds upon
which the suspension is based and the time period during which the suspension will be in effect.
In order for the suspension to function as a deterrent, the suspension should take effect during the
time when the applicator is most likely to be applying restricted use pesticides. In cases where
the violation involved keeping fraudulent records {i.e., where the violator intentionally concealed
or misrepresented the true circumstances and the extent of the use of restricted use pesticides),
EPA may revoke the violator's certification in response to the initial infraction.
6 For purposes of this section, the second and third enforcement actions must occur within five years of
the original civil administrative complaint.
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2. Denial/Revocation
The denial or revocation of a certification deprives an applicator of the authority to apply
restricted use pesticides and forces the applicator to acquire or re-acquire certification. EPA will
not consider an application to acquire or re-acquire certification for at least six months following
a denial or revocation. Therefore, EPA will deny or revoke a certification only where:
(1) a violation resulted in a human fatality or created an imminent danger of a fatality;
(2) a violation resulted in severe damage to the environment or created an imminent
danger of severe damage to the environment;
(3) a misuse violation has resulted in significant contamination of food and water;
(4) the violator's certification has been suspended as a result of a previous serious
violation;
(5) the violator's certification has been suspended three times within the past five years;
or
(6) a person has maintained or submitted fraudulent records or reports.
If EPA pursues an action to deny, revoke, or modify an applicator's certification, EPA
will notify the applicant or federal certificate holder of:
(1) the ground(s) upon which the denial, revocation, or modification is based;
(2) the time period during which the denial, revocation, or modification is effective,
whether permanent or otherwise;
(3) the conditions, if any, under which the individual may become certified or recertified;
and
(4) any additional conditions EPA may impose.
EPA must also provide the federally certified applicator an opportunity to request a hearing prior
to final Agency action to deny, revoke, or modify the certificate.
H. Recalls
1. Suspended or Cancelled Products
FIFRA § 19(b) gives EPA the authority to recall pesticide products if the registration of a
pesticide has been suspended and cancelled and EPA finds that a recall is necessary to protect
public health or the environment. Where the product registration has been suspended or
cancelled, EPA will request either a voluntary or mandatory recall. When EPA believes that a
recall is necessary to protect public health or the environment and the product registration has
not been suspended or cancelled, EPA may request an informal recall, which is also voluntary.
EPA should only request a recall where the evidence clearly supports the need for such
action. EPA will base the decision that a product should be withdrawn from the market on
information in the sample file, including laboratory analyses, staff evaluations and opinions, and
other available information. All information supporting a recall decision should be included in
the official file.
a. Mandatory Recalls
If a product is suspended and cancelled, a voluntary recall by the registrant and others in
the chain of distribution may be sufficient. However, if the Agency believes that a voluntary
recall will not ensure protection of human health or the environment, mandatory recall
procedures under FIFRA §§ 19(b)(3) and (4) can be used to require registrants, distributors, or
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sellers of a cancelled pesticide to:
(1) recall the pesticide;
(2) make available storage facilities to accept and store existing stocks of the suspended
and cancelled pesticide;
(3) inform the EPA of the location of the storage facility;
(4) inform the EPA of the progress of the recall;
(5) provide transportation of the pesticide on request; and
(6) take reasonable steps to inform holders of the recall and transportation provisions.
Persons conducting the recall must comply with transportation, storage, and disposal
requirements set forth in the recall plan developed and approved under FIFRA § 19(b).
b. Voluntary Recalls
Recalls other than those described in section l.a., above, are voluntary. A voluntary
recall is appropriate if EPA finds that it can be "as safe and effective as a mandatory recall."
Voluntary recalls can be used where the cancelled product is either potentially hazardous when
used as directed, ineffective for the purposes claimed, or significantly violative in nature. For a
voluntary recall, EPA will ask the registrant to develop a recall plan. The effectiveness of these
recalls depends on the cooperation of the company involved. The company may seek EPA's
assistance in developing or implementing a recall plan, but it is not required to do so.
2. Other Recalls
A product does not have to be suspended or cancelled for EPA to request a recall. The
Agency should consider asking the company to do an informal recall of a product when its use as
directed by the label is likely to result in:
(1) injury to the user or handler of the product;
(2) injury to domestic animals, fish, wildlife, or plant life;
(3) physical or economic injury because of ineffectiveness or due to the presence of
actionable residues; or
(4) identifiable adverse effects on the environment.
For example, EPA may issue an informal recall for an antimicrobial product that fails efficacy
testing for a public health organism when the product is distributed to hospitals or other health
care facilities.
In cases posing more serious threats, the Agency may monitor the progress of an informal
recall and may ask the company to submit progress reports and to notify state officials to ensure
that the recall occurs. These informal recalls are generally accompanied by a civil penalty action
or a SSURO. In cases where a recall is necessary but the level of potential hazard is not great or
when it is unlikely that significant amounts of the defective product remain in the marketplace,
the recall may be conducted entirely by the company with no monitoring by EPA or state
officials.
I. Criminal Proceedings
FIFRA § 12 specifically lists the unlawful acts that are subject not only to civil and
administrative enforcement but also to criminal enforcement. (For further information on
criminal enforcement investigations see Chapter 18 of the Pesticides Inspection Manual, "FIFRA
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Criminal Enforcement.") Section 14(b) provides the authority to proceed with criminal sanctions
against violators, as follows.
• A registrant, applicant for a registration, or producer who knowingly violates the Act is
subject, upon conviction, to a fine of not more than $50,000 or imprisonment for up to
one year, or both.
• A commercial applicator of a restricted use pesticide, or any other person not described
above who distributes or sells pesticides or devices, who knowingly violates the Act is
subject, upon conviction, to a fine of not more than $25,000 or imprisonment for up to
one year, or both.
• A private applicator or other person not included above who knowingly violates the Act
is subject, upon conviction, to a fine of not more than $1,000, or imprisonment for not
more than 30 days, or both.
FIFRA § 14(b)(1) and (2) include the requirement that the violation be committed
"knowingly." An act is committed "knowingly" by a person who has the general intent to do the
action(s) constituting the violation. A specific intent to violate FIFRA or knowledge of its
regulations is not a necessary element of the crime. Thus, the government must generally prove
that the defendant knew of the conduct that constituted the violation and that the person's
action(s) was voluntary and intentional and not the result of an accident or mistake of fact.
In addition, pursuant to the Alternative Fines Act (18 U.S.C. § 3571), the FIFRA criminal
fine amounts for an individual or an organization7 may be substantially increased if the violation
results in death. All acts of the regulated community exhibiting actual or suspected criminal
conduct should be discussed with EPA's regional or Headquarters Criminal Enforcement
Counsel or brought to the attention of the Criminal Investigation Division (CID) for possible
investigation.
1. Parallel Criminal and Civil Proceedings
Although the majority of EPA's enforcement actions are brought as either a civil action
or a criminal action, there are instances when it is appropriate to bring both a civil and a criminal
enforcement response. These include situations where the violations merit the deterrent and
retributive effects of criminal enforcement, yet a civil action is also necessary to obtain an
appropriate remedial result, and where the magnitude or range of the environmental violations
and the available sanctions make both criminal and civil enforcement appropriate.
Active consultation and cooperation between EPA's civil and criminal programs, in
conformance with all legal requirements including OECA's Parallel Proceedings Policy
(September 24, 2007), is critical to the success of EPA's overall enforcement program. The
success of any parallel proceedings depends upon coordinated decisions by the civil and criminal
programs as to the timing and scope of their activities. For example, it will often be important
for the criminal program to notify civil enforcement managers that an investigation is about to
become overt or known to the subject. Similarly, the civil program should notify the criminal
7 As used in Title 18 of the United Sates Code, the term "organization" means a person other than an
individual.
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program when there are significant developments that might change the scope of the relief. In
every parallel proceeding, communication and coordination should be initiated at both the staff
and manager levels and should continue until resolution of all parallel matters.
J. State and Federal Roles in Enforcement of FIFRA
State governments have primary enforcement authority for both civil and criminal
pesticide use violations under FIFRA §§ 26 and 27. States are allowed 30 days to commence
appropriate enforcement actions for such violations. While Congress delegated to the states
primary enforcement authority for pesticide use violations, FIFRA does not create exclusive
enforcement jurisdiction in the states. A state may waive its primary enforcement responsibility
or make a referral to the United States for federal action.
EPA has primary enforcement authority over violations concerning the sale or
distribution of pesticides. Examples of such violations include failure to report a pesticide's
unreasonable adverse effects on the environment, distribution of an unregistered pesticide,
violations of a cancellation order or an EPA SSURO, and fraudulent labeling, advertising, or
registration of a pesticide. FIFRA violations that are not use violations may be investigated and
prosecuted on the federal level without waiting for state authorities to exercise their enforcement
responsibility. Under most circumstances EPA will inform the state of an EPA investigation
being conducted within its borders.
K. Press Releases and Advisories
EPA may, at its discretion, issue a press release or advisory to notify the public of the
filing of an enforcement action, settlement, or adjudication concerning a person's violation of
FIFRA. A press release can be a useful tool to notify the public of Agency actions for FIFRA
noncompliance and to educate the public on the requirements of FIFRA. Some regions routinely
issue press releases to inform the public of FIFRA settlements. Issuance of a press release or
advisory must not be an item of negotiation during settlement.
IV. ASSESSING CIVIL ADMINISTRATIVE PENALTIES
A. Computation of the Penalty
In determining the amount of a civil penalty, FIFRA § 14(a)(4) requires EPA to consider
the appropriateness of the penalty to the size of respondent's business, the effect of the penalty
on respondent's ability to continue in business, and the gravity of the violation.
For each type of violation associated with a particular product, the penalty amount is
determined in a seven-step process considering the Section 14(a)(4) criteria listed above. These
steps are:
(1) determine the number of independently assessable violations [Section IV.A.l.
Independently Assessable Violations];
(2) determine the size of business category for the violator, using Table 1 [Section
IV.A.2. Size of Business];
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(3) determine the gravity of the violation for each independently assessable violation
using Appendix A [Section IV. A.3. Gravity of Violation];
(4) determine the "base" penalty amount associated with the size of business (Step 2)
and the gravity of violation (Step 3) for each independently assessable violation, using
the matrices in Table 2 [Section IV.A.4. Base Penalty Amount];
(5) determine the "adjusted" penalty amount based on case-specific factors using the
Gravity Adjustment Criteria in Appendix B and Table 3 [Section IV.A.5. Adjustment for
Case-Specific Factors];
(6) calculate the economic benefit of noncompliance [Sections IV. A.6. Economic Benefit
of Noncompliance]; and
(7) consider the effect that payment of the total penalty amount plus economic benefit of
noncompliance derived from the above calculation will have on the violator's ability to
continue in business [Section IV.A.7 Ability to Continue in Business/Ability to Pay],
A civil penalty may be further modified in accordance with Section IV.B.l. Graduated
Penalty Calculations, Section IV.B.2. Voluntary Disclosure, and Section IV.B.3. Adjusting the
Proposed Civil Penalty in Settlement.
1. Independently Assessable Violations
A separate civil penalty, up to the statutory maximum, will be assessed for each
independent violation of the Act. A violation is considered independent if it results from an act
(or failure to act) which is not the result of any other violation for which a civil penalty is to be
assessed or if at least one of the elements of proof is different from any other violation.
Consistent with the above criteria, the Agency considers violations that occur from each
sale or shipment of a product (by product registration number, not individual containers) or each
sale of a product to be independent violations.8 There may also be situations where two
unlawful acts arise out of one sale or shipment, such as the sale of a product that is both a
misbranded pesticide and an unregistered pesticide. Similarly, under the pesticide use
regulations, one application of a pesticide may lead to multiple misuse violations. For example,
if an applicator mixes pesticides over the rate prescribed by the label and during the same
application allows pesticide to drift onto non-target areas, each of those acts would be a
separately assessable violation ofFIFRA § 12(a)(2)(G).
Each of these independent violations ofFIFRA is subject to civil penalties up to the
statutory maximum. For example, when EPA can document that a registrant has distributed a
misbranded product (one single EPA product registration number) in four separate shipments,
EPA will allege four counts of selling or distributing a misbranded product. Similarly, when
EPA can document that a registrant has shipped four separate misbranded products (four separate
EPA product registration numbers) in a single shipment, EPA will plead four counts of selling or
8 Independent violations which can be documented as both per sale and per shipment are to be calculated
only as either per sale or per shipment, whichever is more appropriate based on the supporting
documentation.
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distributing a misbranded product. In use cases that EPA handles, the Agency will allege three
misuse violations when a commercial applicator who misuses a restricted use product on three
occasions (either three distinct applications or three separate sites). If a dealer sells a restricted
use pesticide (RUP) to six uncertified persons, other than in accordance with FIFRA § 3(d), EPA
will plead six violations of FIFRA.
On the other hand, the Agency will assess a penalty for one violation arising from a
single event or action (or lack of action) that is an unlawful act under FIFRA for multiple reasons
unless the event or action results in two unlawful acts for which at least one element of proof
differs. For instance, a person can be assessed a civil penalty of up to the statutory maximum for
the sale and/or distribution of an unregistered, cancelled or suspended pesticide under FIFRA §
12(a)(1)(A). If the unregistered pesticide is actually a product whose registration had been
cancelled, EPA cannot allege two separate violations of FIFRA § 12(a)(1)(A) since the sale or
distribution related to a single event or transaction. However, the Agency could separately allege
a violation of a cancellation order under FIFRA § 12(a)(2)(K). In this example, the violation of
the cancellation order is independent of the sale and distribution of the unregistered product.
Another example of a dependent violation is multiple misbrandings on a single product
label. EPA may assess a count of misbranding each time that a misbranded product is sold or
distributed. For example, a registrant who sells or distributes four distinct shipments of a
misbranded pesticide product generally may be assessed four counts of misbranding.
If a single product label is misbranded in one way or ten ways, as defined by FIFRA § 2(q), it is
still misbranding on a single product label and is considered a single violation of FIFRA §
12(a)(1)(E). Note, however, for pesticide use regulations, where the applicator fails to follow
two label requirements, for example, does not follow the prescribed application rate and does not
provide the prescribed personal protective equipment, there are two separate violations.
When a product label is grossly misbranded such that two or more misbrandings assigned
Level 2 in Appendix A are present, the gravity level is adjusted upward to a Level 1 to address
the seriousness of the misbranding.
2. Size of Business
In order to provide equitable penalties, civil penalties that will be assessed for violations
of FIFRA will generally decrease as the size of the business decreases. Size of business is
determined based on an individual's or a company's gross revenues from all revenue sources
during the prior calendar year. If revenue data for the previous year appears to be
unrepresentative of the general performance of the business or the income of the individual, an
average of the gross revenues for the three previous years may be used. Further, the size of
business and gross revenue figures are based on the corporate family rather than a specific
subsidiary or division of the company which is involved with the violation (including all sites
owned or controlled by the foreign or domestic parent company) unless the subsidiary or division
is independently owned.
As shown in the FIFRA Civil Penalty Matrices in Table 2, the appropriateness of
the penalty to the size of the respondent's business is based on three distinct size of business
categories. Further, because gross revenues of persons listed in FIFRA § 14(a)(1) [registrants,
commercial applicators, wholesalers, dealers, retailers, or other distributors] will generally be
higher than gross incomes of persons listed in FIFRA § 14(a)(2) [private applicators and other
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persons not listed in 14(a)(1)], the policy has separate size of business categories for Section
14(a)(1) persons and Section 14(a)(2) persons. The size of business categories for FIFRA §
14(a)(1) and Section 14(a)(2) violators are listed in Table 1. Revenue includes all revenue from
an entity and all of the entity's affiliates. When no information of any kind is available
concerning a respondent's size of business, the penalty should be calculated using the Category I
size of business.
TABLE 1
14(a)(1) violators, the size of business categories are:
I - over $10,000,000 a year
II - $1,000,000 - $10,000,000 a year
III - under $1,000,000 a year
14(a)(2) violators, the size of business categories are:
I - over $1,000,000 a year
II - $300,000 - $1,000,000 a year
III - under $300,000 a year
3. Gravity of the Violation
The "gravity level" established for each violation of FIFRA is listed in Appendix A of
this ERP. The level assigned to each violation of FIFRA represents an assessment of the relative
severity of each violation. The relative severity of each violation considers the actual or
potential harm to human health and the environment which could result from the violation and
the importance of the requirement to achieving the goals of the statute. The gravity level, which
is determined from the chart in Appendix A, is then used to determine a base penalty figure from
the FIFRA Civil Penalty Matrices in Step 4 below. In Step 5, the dollar amount derived from the
matrix can be adjusted upward or downward depending on the actual circumstances of each
violation.
4. Base Penalty Amount
The size of business categories and gravity levels are broken out in the FIFRA Civil
Penalty Matrices shown in Table 2. Each cell of the matrix represents the Agency's assessment
of the appropriate civil penalty, within the statutory maximum, for each gravity level of a
violation and for each size of business category. Because FIFRA imposes different statutory
ceilings on the maximum civil penalty that may be assessed against persons listed in FIFRA
Section 14(a)(1) and persons listed in Section 14(a)(2), this policy has separate penalty matrices
for Section 14(a)(1) violators and Section 14(a)(2) violators.
With the exception of any applicator within the scope of the exception set forth in FIFRA
§ 14(a)(2), EPA will only use the Section 14(a)(2) penalty matrix for persons falling under
FIFRA § 14(a)(2) who have previously been issued a Notice of Warning or prior citation.9
9 FIFRA § 14(a)(2) states that private applicators are only subject to civil penalties after receiving a
notice of warning or following a citation for a prior violation. A notice of warning or citation for a prior
For section
For section
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When a civil penalty is the appropriate response for a first-time violation by any
applicator within the scope of the exception set forth in FIFRA § 14(a)(2), EPA will seek the
statutory maximum civil penalty. Subsequent violations will be assessed using the FIFRA §
14(a)(2) civil penalty matrix below.
TABLE 2
Civil Penalty Matrix for FIFRA § 14(a)(1)
SIZE OF BUSINESS
LEVEL OF
VIOLATION
I - over $10,000,000
II --$1,000,000-
$10,000,000
III - under $1,000,000
Level 1
$7,500
7,150
7,150
Level 2
7,150
5,670
4,250
Level 3
5,670
4,250
2,830
Level 4
4,250
2,830
1,420
Civil Penalty Matrix for FIFRA § 14(a)(2) 10
SIZE OF BUSINESS
LEVEL OF
VIOLATION
I - over $1,000,000
II -- $300,000 -
$1,000,000
III - under $300,000
Level 1
$1,100
1,100
1,100
Level 2
1,100
1,030
770
Levels 3 & 4
1,030
770
650
5. Adjustments for Case-Specific Factors
The Agency has assigned adjustments, based on the gravity adjustment criteria listed in
Appendix B, for each violation relative to the specific characteristics of the pesticide involved,
the harm to human health and/or harm to the environment, compliance history of the violator,
violation may include an action by either EPA or a delegated state if the prior violation would be a
violation of federal law.
10 This 14(a)(2) matrix is only for use in determining civil penalties issued subsequent to a notice of
warning or following a citation for a prior violation, or in the case of a "for hire" applicator using a
registered general use pesticide, subsequent to the issuance of a prior civil penalty.
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and the culpability of the violator. Then the gravity adjustment values from each gravity
category listed in Appendix B are to be totaled. The dollar amount found in the matrix will be
raised or lowered, not to exceed the statutory maximum, based on the total gravity values in
Table 3. Once this base penalty amount is calculated, it should be rounded to the nearest $100,
in accordance with Amendments to Penalty Policies to Implement Penalty Inflation Rule 2008 -
(Nakayama, 2008).11
TABLE 3
Total Gravity Value
Enforcement Remedy
from Appendix B
3 or below
No action or Notice of Warning (60% reduction of matrix value
recommended where multiple count violations exist)
4
Reduce matrix value 50%
5
Reduce matrix value 40%
6
Reduce matrix value 30%
7
Reduce matrix value 20%
8
Reduce matrix value 10%
9 to 11
Assess matrix value
12
Increase matrix value 10% **
13
Increase matrix value 20% **
14
Increase matrix value 30% **
15
Increase matrix value 40% **
16
Increase matrix value 50% **
17 or above
Increase matrix value 60% **
** Matrix value can only be increased to the statutory maximum.
6. Economic Benefit of Noncompliance
The Agency's Policy on Civil Penalties (EPA General Enforcement Policy #GM-21),
dated February 16, 1984, mandates the recapture of any significant economic benefit of
noncompliance (EBN) that accrues to a violator from noncompliance with the law. Economic
benefit can result from a violator delaying or avoiding compliance costs or when the violator
realizes illegal profits through its noncompliance. A fundamental premise of the 1984 Policy is
that economic incentives for noncompliance are to be eliminated. If, after the penalty is paid,
violators still profit by violating the law, there is little incentive to comply. Therefore,
enforcement professionals should always evaluate the economic benefit of noncompliance in
calculating penalties. Note that economic benefit can only be added to the proposed penalty up
to the statutory maximum penalty.
An economic benefit component should be calculated and added to the gravity-based
penalty component when a violation results in "significant" economic benefit to the violator.
"Significant" is defined as an economic benefit that totals more than $10,000 for all violations
alleged in the complaint. In the interest of simplifying and expediting an enforcement action,
enforcement professionals may use the "rules of thumb" (discussed in section 6.b below) to
11 http://www.epa.gov/compliance/resources/policies/civil/penalty/amendmentstopenaltypolicies-
implementpenaltyinflationrule08.pdf
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determine if the economic benefit will be significant. Distribution and sale of unregistered and
misbranded pesticides are examples of violations that are likely to result in significant economic
benefits. For certain FIFRA requirements, the economic benefit of noncompliance may be
relatively insignificant (e.g., failure to submit a report on time).
EPA generally will not settle cases for an amount less than the economic benefit of
noncompliance. However, the Agency's 1984 Policy on Civil Penalties explicitly sets out three
general areas where settling for less than the economic benefit may be appropriate. Since the
issuance of the 1984 Policy, the Agency has added a fourth exception for cases where ability to
pay is a factor. The four exceptions are:
The economic benefit component is an insignificant amount (defined for purposes of
this policy as less than $10,000);
There are compelling public concerns that would not be served by taking a case to
trial;
It is unlikely, based on the facts of the particular case as a whole, that EPA will be
able to recover the economic benefit in litigation; and
The company has documented an inability to pay the total proposed penalty.
a. Economic Benefit from Delayed Costs and Avoided Costs
Delayed costs are expenditures that have been deferred by the violator's failure to comply
with the requirements. The violator eventually will spend the money to achieve compliance.
Delayed costs are either capital costs (i.e. equipment), if any, or one-time non-depreciable costs
(e.g., registration fees for pesticides that are eventually registered).
Avoided costs are expenditures that will never be incurred, as in the case of an unlawfully
distributed unregistered pesticide that is subsequently removed from commerce and never
registered by the Agency. In this example, avoided costs include all the costs associated with
product registration because the product was never registered. Those costs were never and will
never be incurred. Those avoided costs might include the registration fees, annual maintenance
fees, and costs associated with the testing that would have been required to support a pesticide
registration or to support specific claims about the product.
b. Calculation of Economic Benefit from Delayed and Avoided Costs
Since 1984, it has been Agency policy to use either the BEN computer model or "rules of
thumb" to calculate the economic benefit of noncompliance. The "rules of thumb" are straight-
forward methods to calculate economic savings from delayed and avoided compliance
expenditures. They are discussed more fully in the Agency's General Enforcement Policy #GM-
22, entitled "A Framework for Statute-Specific Approaches to Penalty Assessments," issued on
February 16, 1984, at pages 7-9. The "rule of thumb" methodology is available in a Lotus
spreadsheet available to EPA enforcement professionals from the Special Litigation and Projects
Division of the Office of Civil Enforcement. Enforcement professionals may use the "rules of
thumb" whenever the economic benefit penalty is not substantial (generally under $10,000) and
use of an expert financial witness may not be warranted. If the "rules of thumb" yield an amount
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over $10,000, the case developer should use the BEN model and/or an expert financial witness to
calculate the higher economic benefit penalty. Using the "rules of thumb," the economic benefit
of delayed compliance may be estimated at: 5% per year of the delayed one-time capital costs, if
any, and/or one-time non-depreciable costs for the period from the date the violation began until
compliance was or is expected to be achieved. For avoided annual costs, the "rule of thumb" is
the annual expenses avoided until the date compliance is achieved less any tax savings. These
rules of thumb do not apply to avoided one-time or avoided capital costs. Enforcement
professionals should calculate the economic benefit of avoided one-time and avoided capital
costs, if any, by using the BEN model.
The primary purpose of the BEN model is to calculate economic savings for settlement
purposes. The model can perform a calculation of economic benefit from delayed or avoided
costs based on data inputs, including optional data items and standard values already contained
in the program. Enforcement professionals wishing to use the BEN model should take the Basic
BEN training course offered by the Special Litigation and Projects Division in cooperation with
NET! Enforcement professionals who have questions while running the model can access the
model's help system which contains information on how to: use BEN, understand the data
needed, and understand the model's outputs.
The economic benefit component should be calculated for the entire period for which
there is evidence of noncompliance, i.e., all time periods for which there is evidence to support
the conclusions that the respondent was violating FIFRA and thereby gained an economic
benefit. Such evidence should be considered in the assessment of the penalty assessed for the
violations alleged or proven, up to the statutory maximum for those violations. In certain cases,
credible evidence may demonstrate that a respondent received an economic benefit for
noncompliance for a period longer than the period of the violations for which a penalty is sought.
In such cases, it may be appropriate to consider all of the economic benefit evidence in
determining the appropriate penalty for the violations for which the respondent is liable. For
example, in a case where credible evidence demonstrates that a respondent sold an unregistered
pesticide during the past four years but the specific violations for which EPA has chosen to seek
a penalty all occurred within the past two years, the economic benefit should be calculated for
the four-year period. In such a case, the economic benefit component of the penalty for the
specific sales transactions during the past two years should be based on a consideration of the
economic benefit gained for the four-year period, but the total penalty is limited to the statutory
maximum for the specific violations alleged and proven.12
In most cases, the violator will have the funds gained through non-compliance available
for its continued use and/or competitive advantage until it pays the penalty. Therefore, for cases
in which economic benefit is calculated by using BEN or by a financial expert, the economic
benefit should be calculated through the anticipated date a consent agreement would be entered.
If the matter goes to hearing, this calculation should be based on a penalty payment date
corresponding with the relevant hearing date. It should be noted that the respondent will
continue to accrue additional economic benefits after the hearing date, until the assessed penalty
is paid. However, there are exceptions for determining the period of economic benefit when
12When considering the economic benefit of noncompliance that accrued to the respondent more than five years
prior to the filing of a complaint or a pre-filing Consent Agreement, the litigation team should consult with the
Waste and Chemical Enforcement Division.
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using a "rule of thumb." In those instances, the economic benefit is calculated in the manner
described in the first paragraph of this subsection.
c. Economic Benefit Gained from Illegal Sales of Unregistered Pesticides
In addition to delayed and avoided costs, an economic benefit may accrue to a violator of
FIFRA from the sale of unregistered or misbranded pesticides. The economic benefit derived
from sales of unregistered or misbranded pesticides is sometimes referred to as "illegal profits"
or "illegal competitive advantage." Illegal profits economic benefit is fundamentally different
from the economic benefit calculated by using the BEN model. Unlike the delayed/avoided
benefits addressed through BEN, this type of economic benefit is based on the profits generated
by violating the law. Care should be taken to insure that any calculation of a benefit derived
from illegal profits does not include profits attributable to lawful operations of the facility or
delayed or avoided costs already accounted for in the BEN calculation. In most cases, a violator
will realize either benefits from delayed/avoided costs or from illegal profits; however, whenever
the facts and circumstances of the case provide a sufficient basis to calculate illegal profits and
the Region is able to obtain sufficient information, the Region should calculate the benefits due
to illegal profits and add it to any other type of economic benefit that has been calculated.
7. Ability to Continue in Business/Ability to Pay
FIFRA § 14(a)(4) requires the Agency to consider the effect of the penalty on the
respondent's ability to continue in business when determining the amount of the civil penalty.
There are several sources available to assist enforcement professionals in determining a
respondent's ability to pay. Enforcement professionals considering a respondent's ability to
continue in business should consult "A Framework for Statute-Specific Approaches to Penalty
Assessments," (cited above) and EPA General Enforcement Policy PT.2-1 (previously codified
as GM-#56), entitled "Guidance on Determining a Violator's Ability to Pay a Civil Penalty"
(December 16, 1986). In addition, the Agency has three computer models available to help
assess whether violators can afford compliance costs and/or civil penalties: ABEL, INDIPAY
and MUNIPAY. INDIPAY analyzes individual taxpayers' claims about inability to pay.
MUNIPAY analyzes cities, towns, and villages' ability to pay. These models are designed for
settlement purposes only.
ABEL is an EPA computer model that is designed to assess inability to pay claims from
corporations and partnerships. The evaluation is based on the firm's excess cash flow. ABEL
looks at the money coming into the entity, and the money going out. It then looks at whether the
excess cash flow is sufficient to cover the firm's environmental responsibilities (i.e., compliance
costs) and the proposed civil penalty. Because the program only focuses on a violator's cash
flow, there are other sources of revenue that should also be considered to determine if a firm is
unable to pay the full penalty. These include:
• Certificates of deposit, money market funds, or other liquid assets;
• Reduction in business expenses such as advertising, entertainment, or compensation of
corporate officers;
• Sale or mortgage of non-liquid assets such as company cars, aircraft, or land;
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• Related entities (e.g., the violator is a wholly owned subsidiary of Fortune 500 company).
The complaint will notify the respondent of its right under the statute to have EPA
consider its ability to continue in business in determining the amount of the penalty. Any
respondent may raise the issue of ability to pay/ability to continue in business in its answer to the
complaint or during the course of settlement negotiations. If a respondent raises the inability to
pay as a defense in its answer or in the course of settlement negotiations, the Agency should ask
the respondent to present appropriate documentation, such as tax returns and financial
statements. The respondent must provide records that conform to generally accepted accounting
principles and procedures at its expense. If the proposed penalty exceeds the respondent's ability
to pay, the penalty may be reduced to a level consistent with FIFRA § 14(a)(4). If a respondent
does not provide sufficient information to substantiate its claim of inability to pay the calculated
penalty, then EPA may draw an inference from available information that the respondent has the
ability to pay the calculated penalty.13
A respondent may argue that it cannot afford to pay the proposed penalty even though the
penalty as adjusted does not exceed EPA's assessment of its ability to pay. In such cases, EPA
may consider a delayed payment schedule calculated in accordance with Agency installment
payment guidance and regulations.14 In exceptional circumstances, EPA may also consider
further adjustment below the calculated ability to pay.
Finally, EPA will generally not collect a civil penalty that exceeds a violator's ability to
pay as evidenced by a detailed tax, accounting, and financial analysis. However, it is important
that the regulated community not choose noncompliance as a way of aiding financially troubled
businesses. Therefore, EPA reserves the option, in appropriate circumstances, of seeking a
penalty that might exceed the respondent's ability to pay, cause bankruptcy, or result in a
respondent's inability to continue in business. Such circumstances may exist where the
violations are egregious or the violator refuses to pay the penalty. However, if the case is
generated out of an EPA regional office, the case file must contain a written explanation, signed
by the regional authority duly delegated to issue and settle administrative penalty orders under
FIFRA, which explains the reasons for exceeding the "ability to pay" guidelines. To ensure full
and consistent consideration of penalties that may cause bankruptcy or closure of a business, the
regions should consult with the Waste and Chemical Enforcement Division (WCED).15
13 Note that under the Environmental Appeals Board ruling in In re: New Waterbury, LTD, 5 E.A.D. 529 (EAB
1994), in administrative enforcement actions for violations under statutes that specify ability to pay (which is
analogous to ability to continue in business) as a factor to be considered in determining the penalty amount, EPA
must prove it adequately considered the appropriateness of the penalty in light of all of the statutory factors.
Accordingly, enforcement professionals should be prepared to demonstrate that they considered the respondent's
ability to continue in business as well as the other statutory penalty factors and that their recommended penalty is
supported by their analysis of those factors. EPA may obtain information regarding a respondent's ability to
continue in business from the respondent, independent commercial financial reports, or other credible sources.
14 See, 40 C.F.R. § 13.18.
15 In accordance with the November 1, 1994 memorandum entitled, "Final List of Nationally Significant Issues and
Process for Raising Issues to TPED." This final implementation guidance was developed in follow-up to Steve
Herman's July 11, 1994 memorandum on "Redelegation of Authority and Guidance on Headquarters' Involvement
in Regulatory Enforcement Cases."
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B. Modifications of the Penalty
1. Graduated Penalty Calculations
In instances where inspectors or case developers obtain records which evidence multiple
sales or distributions for the same violations, the Region may apply a "graduated" penalty
calculation. The graduated method should only be applied after a consideration of the actual or
potential serious or widespread harm caused by the violations, the toxicity of the pesticides
involved, and the culpability of the violator. The graduated penalty method should not be used
in cases involving highly culpable violators or violations that caused an actual serious or
widespread harm to human health or the environment. In cases involving violations that present
potential serious or widespread harm to human health or the environment, the Region should
decide whether application of the graduated penalty method is appropriate based on the
circumstances of the individual case.
In no case is the graduated penalty method mandated and the Agency maintains its
statutory right to assess penalties of up to the statutory maximum for each violation, when
appropriate. For highly culpable parties the penalty should be calculated at the full value for all
violations. After considering the factors described above and determining that a graduated
penalty method is appropriate, the Region may calculate the penalty in accordance with Table 4
below. Table 4 provides for three separate graduated systems based on the three "size of
business" categories.
TABLE 4
Graduated Penalty Tables
Number of
CATEGORY I "SIZE OF BUSINESS"
Distributions
RESPONDENTS
1 - 100
100% of calculated per violation penalty
101-400
25% of per violation penalty
>400
10%) of per violation penalty
Number of
CATEGORY II "SIZE OF BUSINESS"
Distributions
RESPONDENTS
1-20
100%o of calculated per violation penalty
21-40
25% of per violation penalty
>40
10%o of per violation penalty
Number of
Distributions
CATEGORY III "SIZE OF BUSINESS"
RESPONDENTS
1-5
100%o of calculated per violation penalty
6-20
10 % of per violation penalty
>20
5%o of per violation penalty
Graduated penalties should generally be calculated separately for each type of violation
and for each product (in other words, on a "per product violation" basis). In cases involving
similar product violations (for example, violations involving products that contain the same
-------
active ingredient and the same violative conduct on the part of the respondent), the Agency has
the discretion to group together similar product violations for the graduated penalty calculation.
To calculate penalties using the graduated penalty method, the "adjusted" penalty amount
must first be determined in accordance with Steps 1-5 of section IV. A Computation of the
Penalty, above. The next step is to apply the graduated penalty calculation separately for each
product violation, beginning with the first sale/distribution at 100% and proceeding to calculate
the reduced penalty depending on the size of business. After the graduated penalty amount is
calculated for each separate product violation, the Agency should add together the graduated
penalty amounts for all of the product violations.
For example, a Category II business distributes two products with a total of three
violations. For Product 1, the Agency is alleging misbranding (a Level 3 violation) and
distribution of an unregistered pesticide (a Level 1 violation), each for 61 shipments. For
Product 2, the Agency is alleging distribution of an unregistered pesticide (a Level 1 violation)
for 90 shipments. After applying the case-specific factors, no adjustments to the base penalties
were made. The graduated penalty calculation would proceed as follows:
Product 1, Misbranding (Level 3):
Violations 1-20 @ 100% = 20 violations @ $ 4,250 = $ 85,000
Violations 21-40 @ 25% = 20 violations @ $ 1,063 = $21,260
Violations 41-61 @ 10% = 21 violations @ $ 425 = $ 8,925
Product 1, Unregistered (Level 2):
Violations 1-20 @ 100% = 20 violations @ $ 5,670 = $113,400
Violations 21-40 @ 25% = 20 violations @ $ 1,418 = $28,360
Violations 41- 61 @ 10% = 21 violations @ $ 567 = $ 11,907
Product 2, Unregistered (Level 2):
Violations 1-20 @ 100% = 20 violations @ $ 5,670 = $113,400
Violations 21-40 @ 25% = 20 violations @ $ 1,418 = $28,360
Violations 41-90 @ 10% = 50 violations @ $ 567= $28,350
When the graduated penalty method is applied to the example case, the penalty is
$438,962, which is significantly lower than the $1,115,420 [(61 x 4,250) + (61 x 5,670) + (90 x
5, 670)] penalty that would be calculated without applying the graduated penalty.
2. Voluntary Disclosure
Facilities that conduct an environmental audit or implement a compliance management
system and promptly self-disclose any violations may be eligible for a significant reduction in
the gravity-based penalty if they meet the nine criteria established in EPA's Audit Policy
(Incentives for Self-Policing: Disclosure, Correction and Prevention of Violations: Final Policy
Statement, April 11, 2000). A facility may also be eligible for penalty reductions if they meet
the specific criteria outlined in the "Small Business Compliance Policy" (May 11, 2000). If a
facility self-discloses violations that do not qualify under the Audit Policy or Small Business
Compliance Policy, the Agency may consider a company's willingness to disclose as good faith
(see Section IV.B.3.b.i. Good Faith Adjustments).
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3. Adjusting the Proposed Civil Penalty in Settlement
Certain circumstances may justify adjustment of the proposed penalty. These
circumstances may come to EPA's attention when a respondent files an answer to a civil
complaint or during pre-filing settlement discussions under the Consolidated Rules of Practice
Governing Administrative Assessment of Civil Penalties, 40 C.F.R. Part 22.
a. Factual Changes
EPA will recalculate the proposed penalty if the respondent can demonstrate that the size
of business category, the gravity level, or the gravity adjustment criteria (Appendix B) used to
derive the penalty is inaccurate. Adjustments to the proposed civil penalty may also be
appropriate if the respondent can demonstrate an inability to pay the civil penalty (see Section
IV.A.7. Ability to Continue in Business/Ability to Pay). Where additional facts indicate that the
original penalty is not appropriate, EPA will calculate a new penalty consistent with the new
facts. The burden is on the respondent to raise those factors which may justify the recalculation.
b. Negotiations Involving Only the Amount of the Penalty
In some cases the respondent may admit to all jurisdictional and factual allegations
alleged in the complaint and may desire a settlement conference limited to the amount of the
proposed penalty. The following sections describe adjustments that EPA may consider during
settlement negotiations if the specific case meets the criteria set forth below.
i. Good Faith Adjustments
During the course of settlement negotiations, EPA may consider evidence of significant
good faith efforts by the respondent to comply with FIFRA prior to the discovery of the
violation(s) by EPA or a state as well as the respondent's good faith efforts to comply with
FIFRA expeditiously after the discovery of the violation(s) by EPA or a state. In such instances,
EPA may reduce the penalty by as much as 20 percent below the proposed penalty, if such a
reduction would serve the public interest. A reduction for good faith efforts to comply is not
mandated in any case. Such a reduction in penalty should only occur where there is an
appropriate showing by respondent and finding by the Agency. Additionally, no reduction based
on good faith efforts of the respondent should extend beyond a total of 20 percent of the
proposed penalty without a showing of "special circumstances," as discussed below. No
downward adjustment should be made if the Respondent fails to correct the violation(s) promptly
after EPA or a state discovers the violation(s). Moreover, no downward adjustment should be
made because respondent lacks knowledge concerning either applicable requirements or
violations committed by respondent.
ii. Special Circumstances/Extraordinary Adjustments
Should EPA determine in a particular case that equity would not be served by adjusting
the proposed penalty by only the allowable 20 percent adjustment for good faith, the FIFRA
program manager may approve an adjustment to the proposed penalty for up to an additional 20
percent. In such cases, the case file must include substantive reasons why the extraordinary
reduction of the civil penalty was appropriate, including: (1) setting forth the facts of the case;
(2) why the penalty derived from the FIFRA civil penalty matrices and gravity adjustment was
-------
inequitable; (3) how all other methods for adjusting or revising the proposed penalty would not
adequately resolve the inequity; and (4) the manner in which the adjustment of the penalty
effectuated the purposes of the Act. The FIFRA program manager's concurrence in the
extraordinary reduction must be included in the case file.
iii. Supplemental Environmental Projects (SEPs)
To further EPA's goals to protect and enhance public health and the environment, certain
environmentally beneficial projects, or Supplemental Environmental Projects (SEPs), may be
included in the settlement. SEPs are environmentally beneficial projects which a respondent
agrees to undertake in settlement of an environmental enforcement action, but which the
respondent is not otherwise legally required to perform. In return, some percentage of the cost of
the SEP is considered as a factor in establishing the final penalty to be paid by the respondent.
EPA has broad discretion to settle cases with appropriate penalties. Evidence of a violator's
commitment and ability to perform a SEP is a relevant factor for EPA to consider in establishing
an appropriate settlement penalty. While SEPs may not be appropriate in settlement of all cases,
they are an important part of EPA's enforcement program. Whether to include a SEP as part of a
settlement of an enforcement action is within the sole discretion of EPA. EPA will ensure that
the inclusion of a SEP in settlement is consistent with "EPA Supplemental Environmental
Projects Policy," effective May 1, 1998, or as revised.
APPENDICES
Appendix A - FIFRA Violations and Gravity Levels
Appendix B - Gravity Adjustment Criteria
Appendix C - Summary of Tables
Appendix D - FIFRA Civil Penalty Calculation Worksheet
Appendix E - Enforcement Response Policy for FIFRA Section 7(c) - Pesticide Producing
Establishment Reporting Requirements
Appendix F - FIFRA: Worker Protection Standard (WPS) Penalty Policy - Interim Final
Appendix G - Enforcement Response Policy for the FIFRA Good Laboratory Practices (GLP)
Regulations
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APPENDIX A
FIFRA VIOLATIONS AND GRAVITY LEVELS
i-ii-UA
( odi:
VIOLATION
i.i:m:i.
SIX 1 ION
12(a)(1)(A)
1AA
Sold or distributed a pesticide NOT REGISTERED under section 3
or one whose registration was CANCELLED or SUSPENDED,
except to the extent authorized by the administrator.
i
12(a)( 1 )(A)
1 AU
Registrant, wholesaler, dealer, retailer, or any other distributor
ADVLRTISLI). or otherwise "offered for sale" in any medium a
pesticide that was NOT RL(ilSTLRLI) under section 3 or that was
C.WCLLI.LI) or SI SIMADL1). other than in accordance with
Agencv policv
->
12(a)(1)(B)
1BA
CLAIMS made for a pesticide as part of its sale or distribution
differed substantially from those accepted in connection with
registration
2
12(a)( 1)(li)
1 liB
Registrant, wholesaler, dealer, retailer, or the other distributor
ADVLRTISLI). or otherwise "offered for sale" in any medium a
registered pesticide product for an I ARLCilSTLRLD I SL. other
than in accordance with Agency policy
->
12(a)( 1)((')
1 (A
Sold or distributed a pesticide whose COMPOSITION DMTLRill)
from the composition represented in the registration
12(a)( 1 )(D)
IDA
Sold or distributed a pesticide that has not been COI.ORLI) or
DISCOI.ORLI) pursuant to section 25(c)(5)
12(a)(1)(E)
1EA
Sold or distributed a pesticide or device which is MISBRANDED in
21
12(a)(1)(F)
2(g)(1)(A)
that the labeling has a statement, design, or graphic representation
that is false or misleading.
12(a)( 1 )(!¦:»
III!
Sold or distributed a pesticide or de\ ice which is MISIiRANDLI) in
21
12(a)( 1 )(!¦')
that the package or other container or wrapping does not conform to
2(q)( 1 >(15)
the standards established pursuant to section 25(c)(3) (eg . not
contained in child-resistant packaging or safetv containers).
12(a)(1)(E)
1EC
Sold or distributed a pesticide or device that is MISBRANDED in
21
12(a)(1)(F)
that it is an imitation of, or is offered for sale under the name of,
2
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i-ii-UA
SIX 1 ION
( odi:
VIOLATION
i. i:\t.l
12(a)(1)(F)
2(q)(l)(G)
that the label did not contain a warning or caution statement
adequate to protect health and the environment (precautionary
statements)
12
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i-ii-UA
( odi:
VIOLATION
i. i:\ti.
SIX 1 ION
12(b) which was I'AI.SI- in anv pailiciilar
12(a)(2)(D)
2DA
Person used their personal ad\ antage or rev ealed to persons other
than those authorized by the Act any INFORMATION acquired
under the Act that was CONFIDENTIAL.
J
12(ii)(2)( I-)
21 :\
Registrant, wholesaler, dealer, retailer, or other distributor
\i5\ i:r i isi i) a ki:stkicti:d i si: pi:sticii)i: without
indicating that the product was restricted.
12(a)(2)(F)
2FA
Person DISTRIBUTED, SOLD, MADE AVALIABLE FOR USE,
or USED a RESTRICTED USE PESTICIDE for a purpose other
than in accordance with section 3(d) or regulations issued.
3-
2
12(ii)(2)( 1 )
2115
Person distributed, sold, or made a\ailable lor use. or used, a
RI-STRICTN) I Si: PIiSTICIDI; without maintaining the
RECORDS required by regulations ( A Notice of Warning should be
issued for first-time partial \iolations. Violations continuing
subsequent to the issuance of a ci\ il complaint are to result in a
suspension- see "Denials. Suspensions. Modifications, or
Re\ ocations of Applicator Certifications" section of this l\RP)
12(a)(2)(G)
2GA
Person USED a registered pesticide in a manner inconsistent with its
labeling.
2
12(a)(2)(H)
211A
Person I SIM) a pesticide under an LXPCRIMCNTAI. LSI!
PERMIT contrary to the pro\isions of the permit
->
12(a)(2)( 1)
21A
Person \iolated anv order issued under section 13 {i.e.. STOP
SAIL. 1 Si:. OR RI AIOV M. ORDI R. or SI IXl Rl S
1
12(a)(2)(.l)
2.1 A
Person \iolated anv SI SPONSION ORDLR issued under section (•>
1
' 2(a)(2)(J)
2JB
Person violated any SUSPENSION ORDER issued under section
3(c)(2)(B) or 4.
2
12( a)(2)(K)
2k.\
Person \iolated anv CANCELLATION ORDLR issued under the
Act on mounds olT NRLASONAIil.i: ADVLRSL 1 1 1 1 :C 1 S
1
12(a)(2)(K)
2KB
Person violated any CANCELLATION ORDER issued under the
Act on grounds OTHER THAN UNREASONABLE ADVERSE
EFFECTS.
2
12( a)(2)(k)
2kC
Person failed to submit a SLCTION (Mg) NOTICL when required
12( a)(2)(k)
2k 1)
Person submitted a NOT.Mil A' 1 .A'I'I: SECTION (Mu) NOTICL
12( a)(2)(k)
2 k i :
Person submitted an INCOMPI.1 H I: or INCORRECT SECTION
0(u) NOTICE
12(a)(2)(L)
7(a)2
2LA
PRODUCED a pesticide or active ingredient subject to the Act in an
UNREGISTERED ESTABLISHMENT.
2
12( a)(2)(1.)
21.li
Producer I AII .10 TO SI liMIT. or submitted NOT.Mil A LATE. a
->
7
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i-ii-UA
SIX 1 ION
( odi:
VIOLATION
i .i:\t.i.
the past year (civil complaint issued only if the producer does not
respond to a Notice of Warning or there is a subsequent violation
within three year timeframe from the first violation).
12( a)(2)(1.)
7(c)( 1);
21 .D
Producer submitted an INCOMPI.1 Tl¦: SI (HON 7 RITORT with
MINOR OMISSIONS of the required inlbrmation (ci\ il complaint
issued only if the producer does not respond to a Notice of Warning
or there is a subsequent \ iolation within three year timeframe from
the first \ iolation)
12(aj(2j(Lj
7(c)(1)
2LL
Producer submitted an INCOMPLli l li or a 1ALSL SLCTION 7
REPORT with MAJOR OMISSIONS or ERRORS of the required
information.
I2(a)(2)(l.)
7(c)2
21.1
1 pon request of the administrator lor the purposes of the issuance of
a section 13 Stop Sale Orders, a PRODI CLR 1 All.l-I) 1 ()
PROVIDL the names and addresses of any recipients of any
pesticides produced in anv of his registered establishments.
i
12(a)(2)(M)
2MA
Person KNOWINGLY FALSIFIED all or any part of an application
for registration, application for an experiment use permit, any
information submitted under section 7, any records required to be
maintained by the Act, any reports filed under the Act, or any
information marked as confidential and submitted to the
administrator under any provision of the Act.
l
12(a)(2)(N)
2\.\
A registrant, wholesaler, dealer, retailer, or other distributor
1 All.I'D TO 1 IIT RLPORTS (other than reports addressed in the
section 7(c) LRP) required bv the Act
->
12(a)(2)(0)
20A
Person A1) 1) 111) A SI liSIANCL TO or TOOK any substance from
a pesticide in a manner that mav defeat the purpose of the Act
12(a)(2)( P)
2P.\
Person I SIT) a pesticide in TLSTS ON 111 M AN IJLINGS in
\ iolations of the conditions specified bv the Act
i
12cax2AQr
2QA
Person 1 AI.SII ILL) INFORMATION, RELATING to the TESTING
of any pesticide (or any of its ingredients, metabolites, or
degradation products)that the person knows will be furnished to the
administrator, or will become a part of any records required to be
maintained by the Act
i
I2(a)(2)(0)'
20li
Person falsely represented compliance with the 1 II RA Good
Laboratory Practice ((jl .P) regulations as a result of a IIIGII
I.LVLL GI.P \ iolation.
12(a)(2)(Q)3
2QC
Person falsely represented compliance with the FIFRA Good
Laboratory Practice (GLP) regulations as a result of a MID LEVEL
GLP violation.
3
12( a)(2)(C))'
201)
I4(a)( 1) person falsely represented compliance with the I'll'RA
(iood 1 .aboratorv Practice (GI.P) regulations as a result of a LOW
I.LVLL GI.P \ iolation
4
12(a)(2)(Q)3
2QE
14(a)(2) person falsely represented compliance with the FIFRA
Good Laboratory Practice (GLP) regulations as a result of a LOW
LEVEL GLP violation.
3
12( a)(2)(R)'
2 RA
Person submitted DATA KNOWN TO BL 1 AI.SL in support of
reuistration
1
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i-ii-UA
SIX 1 ION
( odi:
VIOLATION
i. i:\t.l
12(a)(2)(S)4
2SA
Person sold, distributed, or used an UNREGISTERED pesticide in
violation of a REGULATION ISSUED UNDER SECTION 3(a).
IZUUCHS)1
2SI5
Person \iolutcd any RlXil I.ATION ISSl'LIM ADIiR SIX TION
I1)
1 If a label has two or more Level 2 misbranding violations, the appropriate gravity level is increased to
Level 1.
2 Section 7(c)(1) violations are covered in the Enforcement Response Policy for FIFRA Section 7(c),
Pesticide producing Establishment Reporting requirement dated June 2007.
3 Violations regarding laboratory practice are covered in the FIFRA Good Laboratory Practice (GLP)
Regulations dated September 30, 1991.
4 Gravity levels for these violations will be assigned in subsequent ERPs.
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APPENDIX B
GRAVITY ADJUSTMENT CRITERIA1
VIOLATION
GRAVITY
OF HARM
VALUE
CIRCUMSTANCES
Pesticide
3
Toxicity - Category I pesticides, signal word "Danger," restricted use
pesticides (RUPs), pesticides with flammable or explosive characteristics (i.e.,
signal words "Extremely Flammable" or "Flammable"), or pesticides that are
associated with chronic health effects (mutagenicity, oncogenicity,
teratogenicity, etc.) or pesticide is unregistered and the ingredients or labeling
indicate Category I toxicity.
2
Toxicity - Category II, signal word "Warning" or pesticide unregistered and
unknown, but not expected to meet Category I toxicity criteria.
1
Toxicity - Category III or IV, signal word "Caution" or pesticide unregistered
and ingredients lower or minimum risk category.
Harm to
Human Health
5
Actual serious or widespread1 harm to human health.
3
Unknown or potential serious or widespread harm to human health
1
a
Minor potential or actual harm to human health.
0
Negligible3 harm to human health anticipated.
Environmental
Harm
5
Actual serious or widespread harm to the environment (e.g., crops, water,
livestock, wildlife, wilderness, or other sensitive natural areas).
3
Unknown or potential serious or widespread harm to the environment health
1
Minor potential or actual harm to the environment.
0
Negligible3 harm to the environment anticipated.
Compliance
History4
4
Violator with more than one prior violation of FIFRA.
2
Violator with one prior violation of FIFRA.
0
No prior FIFRA violations.
Culpability5
4
Knowing or willful violation of the statute.6 Knowledge of the general
hazardousness of the activity.
2
Culpability unknown or violation resulting from negligence.
1
Violation resulted from negligence. Violator instituted steps to correct the
violation immediately after discovery of the violation.
0
Violation was neither knowing nor willful and did not result from negligence.
Violator instituted steps to correct the violation immediately after discovery of
the violation.
APPENDIX B NOTES
1 For the purposes of this ERP, serious or widespread harm refers to actual or potential harm which does
not meet the parameters of minor harm or negligible harm, as described below.
-------
2 For the purposes of this ERP, minor harm refers to actual or potential harm which is, or would be of
short duration, no lasting effects or permanent damage, effects are easily reversible, and harm does not, or
would not result in significant monetary loss.
3 For the purposes of this ERP, negligible harm refers to no actual or potential harm or actual or potential
harm which is insignificant or unnoticeable and has no lasting effects or permanent damage or monetary
loss.
4 The following considerations apply when evaluating compliance history for the purposes of Appendix
B:
(a) In order to constitute a prior violation, the prior violation must have resulted in: (1) a final
order, either as a result of an uncontested complaint, or as a result of a contested complaint which
is finally resolved against the violator; (2) a consent order, resolving a contested or uncontested
complaint by the execution of a consent agreement; (3) the payment of a civil penalty by the
alleged violator in response to the complaint, whether or not the violator admits to the allegations
of the complaint; or (4) conviction under the FIFRA's criminal provisions.
A notice of warning (NOW) will not be considered a prior violation for the purposes of the
gravity adjustment criteria, since no opportunity has been given to contest the notice.
Additionally, a stop sale, use, or removal order (SSURO) issued under FIFRA section 13 will not
be considered as compliance history.
(b) To be considered a compliance history for the purposes of Appendix B, the violation must
have occurred within five years of the present violation. This five-year period begins on the date
of a final order, consent order, or payment of a civil penalty.
(c) Generally, companies with multiple establishments are considered as one when determining
compliance history. If one establishment of a company commits a FIFRA violation, it counts as
history when another establishment of the same company, anywhere in the country, commits
another FIFRA violation
(d) An enforcement action or citation issued by a state lead agency will count as a prior violation
if all the above considerations are met.
5 EPA enforcement officials are not required to determine culpability at the time the complaint is issued
(especially if this information is not readily available). EPA enforcement officials may instead assign a
weighting factor of 2 (culpability unknown), at the time of the issuance of the complaint. Culpability
adjustments may be reconsidered during settlement negotiations.
6 The Agency may also consider criminal proceedings for "knowing and willful" violations. See the
"Criminal Proceedings" section of this ERP.
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APPENDIX C
SUMMARY OF TABLES
TABLE 1
SIZE OF BUSINESS CATEGORIES
Section 14(a)(1) violators:
I - over $ 10,000,000 a year
II - $ 1,000,000 - $ 10,000,000
III - under $ 1,000,000
Section 14(a)(2) violators:
I - over $1,000,000 a year
II - $300,000 - $1,000,000
III - under $300,000
TABLE 2
FIFRA CIVIL PENALTY MATRICES
Civil Penalty Matrix for FIFRA § 14(a)(1)
SIZE OF BUSINESS
LEVEL OF
VIOLATION
I
II
III
Level 1
$7,500
7,150
7,150
Level 2
7,150
5,670
4,250
Level 3
5,670
4,250
2,830
Level 4
4,250
2,830
1,420
Civil Penalty Matrix for FIFRA § 14(a)(2) *
SIZE OF BUSINESS
LEVEL OF
VIOLATION
I
II
III
Level 1
$1,200
1,200
1,130
Level 2
1,200
1,130
850
Level 3 & 4
1,130
850
710
* This 14(a)(2) matrix is only for use in determining civil penalties issued subsequent to a notice of
warning or following a citation for a prior violation, or in the case of a "for hire" applicator using a
registered general use pesticide, subsequent to the issuance of a civil penalty of $750.
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TABLE 3
GRAVITY ADJUSTMENT CRITERIA
Total Gravity Value from Appendix B
Enforcement Remedy
3 or below
No action or Notice of Warning (60%
reduction of matrix value recommended where
multiple count violations exist)
4
Reduce matrix value 50%
5
Reduce matrix value 40%
6
Reduce matrix value 30%
7
Reduce matrix value 20%
8
Reduce matrix value 10%
9 to 11
Assess matrix value
12
Increase matrix value 10% **
13
Increase matrix value 20% **
14
Increase matrix value 30% **
15
Increase matrix value 40% **
16
Increase matrix value 50% **
17 or above
Increase matrix value 60% **
** Matrix value can only be increased to the statutory maximum.
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APPENDIX D
FIFRA CIVIL PENALTY CALCULATION WORKSHEET
Respondent:
Docket No.:
| Brief Description of Violation i
APPENDIX A
1. Violation
2. FTTS Code & Violation Level
TABLE 1
3. Violator Category & Size of
Business Category
APPENDIX A
4. Gravity of the Violation
TABLE 2
5. Base Penalty
APPENDIX B
6. Gravity Adjustments
a. Pesticide Toxicity
b. Harm to Human Health
c. Environmental Harm
d. Compliance History
e. Culpability
f. Total Gravity Adjustment
(Add 6a - 6e)
TABLE 3
7. Percent & Dollar Adjustment
8. Economic Benefit
TABLE 4
9. Graduated Penalty
10. Final Penalty
Case Development Officer Date
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Example
FIFRA CIVIL PENALTY CALCULATION WORKSHEET
Respondent:
Docket No.:
Brief Description of Violation i
APPENDIX A
1. Violation
§ 12(a)(1)(C)
2. FTTS Code & Violation Level
1CA/2
TABLE 1
3. Violator Category & Size of
Business Category
§ 14(a)(1) / Category I
APPENDIX A
4. Gravity of the Violation
2
TABLE 2
5. Base Penalty
$7,150
APPENDIX B
6. Gravity Adjustments
a. Pesticide Toxicity
1
b. Harm to Human Health
3
c. Environmental Harm
3
d. Compliance History
o
e. Culpability
2
f. Total Gravity Adjustment
(Add 6a - 6e)
9
TABLE 3
7. Percent & Dollar Adjustment
Assess Matrix Value
8. Economic Benefit
TABLE 4
9. Graduated Penalty
10. Final Penalty
Not applied
$7,150 x 10 Violations = $71,500
Case Development Officer Date
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