Federal Civil and Criminal Penalties Possibly
Applicable to Parties Responsible for the
Gulf of Mexico Oil Spill
Robert Meltz
Legislative Attorney
August 16, 2010
Congressional Research Service
7-5700
www.crs.gov
R41370
CRS Report for Congress
P
repared for Members and Committees of Congress
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Summary
Since the Deepwater Horizon oil spill began on April 20, 2010, Congress has given much
attention to the compensatory liability provisions of the Oil Pollution Act and, to a lesser extent,
those of the Jones Act and the Death on the High Seas Act. However, federal laws possibly
relevant to the oil spill also impose civil and criminal money penalties, which may reach dollar
amounts in connection with the Gulf spill greater than those for compensatory liability. This
report summarizes selected federal civil and criminal penalty provisions that may be found
violated in connection with the Gulf spill and related worker fatalities. It does not purport to be
exhaustive. CRS stresses that it has no knowledge of the facts surrounding the Gulf spill other
than what has been publicly reported; hence the provisions listed here are only an informed guess
as to those that ultimately may be found violated.
At the outset, the penalty ceilings in the program statutes listed in this report may not be the
applicable ones. As for civil penalty ceilings, the Federal Civil Penalties Inflation Adjustment Act
requires federal agencies to adjust at least once every four years the maximum (and minimum, if
any) dollar amount on civil penalties within their jurisdiction to reflect movement in the
Consumer Price Index. As for criminal penalty ceilings, the Criminal Fine Improvements Act
often applies. Under this statute, the maximum criminal fine a court may impose may be up to the
greater of the amount specified in the law setting forth the offense or various alternative ceilings
in the Criminal Fine Improvements Act.
For each statute listed, the report describes any civil administrative penalties, civil judicial
penalties, and criminal penalties authorized by the statute that conceivably might be relevant to
the Gulf spill. The program statutes covered are the Clean Water Act, Endangered Species Act,
Marine Mammal Protection Act, Migratory Bird Treaty Act, Oil Pollution Act, Outer Continental
Shelf Lands Act, and Occupational Safety and Health Act. In addition, the report lists several
provisions in the federal penal code that are often used in the prosecution of environmental
crimes—involving aiding and abetting, conspiracy, false statements to the federal government,
mail fraud, wire fraud, and obstruction of justice.
Congressional Research Service
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Contents
Introduction ................................................................................................................................ 1
Program Statutes ......................................................................................................................... 3
Clean Water Act (CWA) ........................................................................................................ 3
Endangered Species Act (ESA) ............................................................................................. 5
Marine Mammal Protection Act (MMPA).............................................................................. 6
Migratory Bird Treaty Act (MBTA)....................................................................................... 6
Oil Pollution Act (OPA) ........................................................................................................ 7
Outer Continental Shelf Lands Act (OCSLA) ........................................................................ 7
Occupational Safety and Health Act (OSHA) ........................................................................ 8
Miscellaneous Provisions in Title 18 ........................................................................................... 9
Contacts
Author Contact Information ...................................................................................................... 10
Congressional Research Service
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Introduction
Since the Deepwater Horizon oil spill began on April 20, 2010, Congress has given much
attention to the compensatory liability provisions in the Oil Pollution Act.1 These set out the
liability of an oil spill’s “responsible parties” for the costs inflicted on others by the oil spill—in
particular, cleanup costs and economic damages (such as injury to natural resources, destruction
of private property, and loss of profits or impairment of earning capacity). Congress has also
addressed the compensatory liability provisions of the Jones Act2 and the Death on the High Seas
Act3 in connection with the deaths of 11 workers when the Deepwater Horizon platform exploded
on April 20. To reiterate, the function of these liability provisions is to compensate those injured;
that function determines the dollar amount of the liability.
Also discussed in relation to the Deepwater Horizon oil spill are federal statutory provisions of a
very different nature. These provisions, the topic of this report, impose civil and criminal
penalties. Their function is not to compensate, but rather, like all civil and criminal penalties, to
punish and/or deter. On June 1, 2010, Attorney General Eric Holder announced that the
Department of Justice had launched a civil and criminal investigation into the Gulf spill,
including the deaths of the 11 workers on the Deepwater Horizon mobile offshore drilling unit.
Observers have noted that civil and criminal penalties under federal law—leaving aside those
under state law4—could be substantially greater than responsible party liability for cleanup costs
and economic damages.5
This report summarizes selected federal civil and criminal penalty provisions that may be found
violated in connection with the Gulf spill and related worker fatalities. It does not purport to be
exhaustive. CRS stresses that it has no knowledge of the facts surrounding the Gulf spill other
than what has been publicly reported; hence the provisions listed here are only an informed guess
as to those that ultimately may be found violated.
That the federal laws listed herein extend to the Gulf spill seems clear, notwithstanding that the
spill site is 50 miles off the coast of Louisiana, well beyond the territorial limits of the United
States on the Outer Continental Shelf. Except for the Migratory Bird Treaty Act and Occupational
Safety and Health Act, all the included laws expressly apply beyond the U.S. territorial sea, either
out to the limit of the United States’ Exclusive Economic Zone at 200 nautical miles offshore, or,
as applied to persons subject to U.S. jurisdiction, anywhere on the high seas.6 As for the
1 See esp., Oil Pollution Act § 1002, 33 U.S.C. § 2702.
2 46 U.S.C. § 30104.
3 46 U.S.C. §§ 30301-30308.
4 Under the Outer Continental Shelf Lands Act, the civil and criminal laws of each “adjacent state,” to the extent not
inconsistent with federal law, are declared federal law for the portion of the Outer Continental Shelf between the
seaward extensions of the state’s boundaries, as far as the outer margin of the Outer Continental Shelf. OCSLA
§ 4(a)(2)(A); 43 U.S.C. § 1333(a)(2)(A). The Oil Pollution Act disclaims any preemption of state authority “to impose,
or to determine the amount of, and fine or penalty (whether criminal or civil in nature) for any violation of law …
relating to the discharge … of oil.” OPA § 1018(c)(2); 33 U.S.C. § 2718(c)(2).
5 See John Schwartz, With Criminal Charges, Costs to BP Could Soar, NY Times, June 16, 2010 (online). For example,
the maximum civil fine under the Clean Water Act for oil discharges resulting from gross negligence is $4,300 per
barrel (see text below). Multiplying this figure by the current estimate of the number of barrels being discharged daily
in the Gulf, Mr. Schwartz asserts that responsible parties could be fined as much as $280 million per day.
6 See Clean Water Act § 311(b)(3), 33 U.S.C. § 1321(b)(3); Endangered Species Act § 9(a)(1)(C), 16 U.S.C.
§ 1538(a)(1)(C); Marine Mammal Protection Act § 102(a)(1), 16 U.S.C. § 1372(a)(1); Oil Pollution Act § 1002(a), 33
(continued...)
Congressional Research Service
1
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Migratory Bird Treaty Act and Occupational Safety and Health Act, the Outer Continental Shelf
Lands Act broadly declares that the laws of the United States are extended to the subsoil and
seabed of the Outer Continental Shelf, “and to all artificial islands, and all installations and other
devices permanently or temporarily attached to the seabed” to explore for or produce resources.7
Thus, by one route or the other, the extraterritorial location of the Deepwater Horizon spill is not
an obstacle to the imposition of civil and criminal penalties under the covered statutes.
At the outset, the reader should note that the penalty ceilings stated in the program statutes listed
here may not be the applicable ones. As for civil penalty ceilings, Congress has enacted the
Federal Civil Penalties Inflation Adjustment Act of 19908 to ensure that inflation over a long
period does not erode the deterrent force of a penalty ceiling. This act requires federal agencies to
adjust at least once every four years the maximum (and minimum, if any) dollar amount on civil
penalties within their jurisdiction to reflect movement in the Consumer Price Index. It applies
whether the civil penalty is administratively or judicially imposed. (The Occupational Safety and
Health Act, listed below, is expressly exempted.) Under one statute covered here, the Outer
Continental Shelf Lands Act, this inflation-adjustment requirement also is imposed by the
individual program statute.9 By whatever authority imposed, these inflation adjustments to the
program-statute maximums are indicated in the following list by the phrase “(adjusted to [dollar
amount]).”
As for ceilings on criminal penalties, the Criminal Fine Improvements Act10 (CFIA) often applies.
This statute, enacted in 1984 and amended in 1987, reflected Congress’s sense that some fines in
the U.S. Code were too low. The CFIA was intended to substantially increase them. Under this
statute, the maximum criminal fine a court may impose may be up to the greater of the amount
specified in the law setting forth the offense or various alternative ceilings in the CFIA. For
organizations, the CFIA alternative ceilings are (1) the greater of twice any person’s gross gain
from the offense or twice any non-defendant person’s gross loss; (2) for a felony or a
misdemeanor resulting in death, $500,000; (3) for a Class A misdemeanor not resulting in death,
$200,000; (4) for a Class B or C misdemeanor not resulting in death or for an “infraction,”
$10,000. For individuals, the penalty caps are half those for organizations. The indicated
categories of offenses—Class A, B, and C misdemeanors, and infractions—are defined elsewhere
in the U.S. Code based on the maximum term of imprisonment for the offense.11
There are two circumstances when the CFIA does not, or may not, apply. First, the CFIA says that
if a law setting forth an offense explicitly exempts the offense from the CFIA, then the defendant
may not be fined more than the caps in that law.12 None of the statutes discussed in this report
(...continued)
U.S.C. § 2702(a); and Outer Continental Shelf Lands Act §§ 2(a), 3(1), 43 U.S.C. §§ 1331(a), 1332(1) respectively.
7 OCSLA § 4(a)(1); 43 U.S.C. § 1333(a)(1).
8 28 U.S.C. § 2461 note.
9 OCSLA § 24(b)(1); 43 U.S.C. § 1350(b)(1).
10 18 U.S.C. § 3571. This provision took its current form through amendments made by the Criminal Fine
Improvements Act of 1987, P.L. 100-185, 101 Stat. 1280.
11 Under 18 U.S.C. § 3559, a Class A misdemeanor is an offense for which the maximum term of imprisonment is one
year or less but more than six months; a Class B misdemeanor, six months or less but more than 30 days; a Class C
misdemeanor, 30 days or less but more than five days; and an “infraction,” five days or less (including when no
imprisonment is authorized).
12 18 U.S.C. § 3571(e).
Congressional Research Service
2
Penalties Possibly Applicable to Gulf Spill Responsible Parties
contains such a CFIA exemption. Second, a district court has held that CFIA penalty caps do not
trump the lower penalty caps in the Endangered Species Act, enacted as they were subsequent to
the 1984 and 1987 enactment of the CFIA.13 Though the Endangered Species Act does not
explicitly exempt itself from the CFIA, the court argued convincingly that applying the CFIA cap
to override the post-CFIA-amended lower cap would reduce the latter to a nullity, contrary to the
rule of statutory construction that a statute should be read to give every word operative effect. At
the same time, the court acknowledged that “other courts have summarily stated that [the CFIA]
controls over other statutes that do not specifically exempt themselves.”14 It remains to be seen
whether this one court’s view will win acceptance by other courts, as to the Endangered Species
Act specifically or as to smaller-than-CFIA penalty caps enacted post-CFIA generally.
Program Statutes
Clean Water Act (CWA)
Civil administrative penalties
CWA section 311(b)(6)15 states that the owner, operator, or person16 in charge of a vessel, onshore
facility, or offshore facility who (1) violates the section 311(b)(3) ban on discharging oil in
harmful quantities17 or (2) fails to comply with the National Contingency Plan,18 may be assessed
a Class I or Class II civil penalty by the Department of Homeland Security (DHS) or the
Environmental Protection Agency (EPA). A Class I penalty may be up to $10,000 (adjusted to
$16,00019) per violation, with a maximum penalty of $25,000 (adjusted to $37,50020). A Class II
penalty also may be up to $10,000 (adjusted to $16,00021) per day of violation, but with a
maximum penalty of $125,000 (adjusted to $177,50022).
In determining the amount of the administrative penalty, CWA section 311(b)(8)23 states that DHS
or EPA shall consider the seriousness of the violation, the economic benefit to the violator, the
degree of culpability, past violations, etc.
13 United States v. Eisenberg, 496 F. Supp. 2d 578 (E.D. Pa. 2007).
14 Id. at 583 n.7.
15 33 U.S.C. § 1321(b)(6).
16 The CWA defines “person” to include “an individual, corporation, partnership, [or] association….” 33 U.S.C.
§ 1362(5).
17 33 U.S.C. § 1321(b)(3).
18 40 C.F.R. part 300.
19 40 C.F.R. § 19.4.
20 Id.
21 Id.
22 Id.
23 33 U.S.C. § 1321(b)(8).
Congressional Research Service
3
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Civil judicial penalties
CWA section 311(b)(7)24 states the following civil penalties for the owner, operator, or person in
charge of a vessel, onshore facility, or offshore facility:
• (A) for violating section 311(b)(3)’s ban on discharging oil into covered waters,
up to $25,000 (adjusted to $37,50025) per day of violation, or up to $1,000
(adjusted to $1,10026) per barrel discharged;
• (B) for failing without sufficient cause to carry out a removal order by the
President, up to $25,000 (adjusted to $37,50027) per day of violation or up to
three times the costs incurred by the Oil Spill Liability Trust Fund established
under the Oil Pollution Act;28
• (C) for failing to comply with the National Contingency Plan, up to $25,000
(adjusted to $37,50029) per day of violation; and
• (D) for violating the aforementioned discharge ban as the result of gross
negligence or willful misconduct, not less than $100,000 (adjusted to $140,00030)
for the violation, nor more than $3,000 (adjusted to $4,30031) per barrel
discharged.32
In determining the amount of the judicial penalty, CWA section 311(b)(8)33 states that the court
shall consider the same factors as mentioned above under “Civil administrative penalties.”
Criminal penalties
CWA section 309(c)(1)34 states that any person who violates the section 311(b)(3) discharge ban:
• (A) negligently, may be fined $2,500 to $25,000 per day of violation, or
imprisoned up to one year, or both. For second and later convictions, such person
may be fined up to $50,000 per day of violation, or imprisoned up to two years,
or both.
• (B) knowingly, may be fined $5,000 to $50,000 per day of violation, or
imprisoned up to three years, or both. For second and later convictions, such
person may be fined up to $100,000 per day of violation, or imprisoned up to six
years, or both.
24 33 U.S.C. § 1321(b)(7).
25 40 C.F.R. § 19.4.
26 Id.
27 Id.
28 26 U.S.C. § 9509 (establishing the Oil Spill Liability Trust Fund).
29 Id.
30 Id.
31 Id.
32 See supra note 5.
33 33 U.S.C. § 1321(b)(8).
34 33 U.S.C. § 1319(c)(1).
Congressional Research Service
4
Penalties Possibly Applicable to Gulf Spill Responsible Parties
• (C) knowingly, and who knows at that time that he thereby places another person
in imminent danger of death or serious bodily injury, may be fined up to
$250,000 or imprisoned up to 15 years, or both. For organizations, the fine may
be up to $1 million. For second and later convictions, the maximum fines and
maximum terms of imprisonment double.
CWA section 309(c)(4)35 states that any person who knowingly makes any false material
statement, representation, or certification in a document filed or required to be maintained under
the CWA shall be fined of up to $10,000,36 or imprisoned up to two years, or both. For second and
later convictions, such person may be fined up to $20,000 per day of violation, or imprisoned up
to four years, or both.
CWA section 309(c)(6)37 defines “person” for purposes of section 309(c) to include, among other
entities, “any responsible corporate officer.”
Endangered Species Act (ESA)
Civil administrative penalties
ESA section 11(a)38 provides that any person39 who knowingly violates certain provisions of the
act or any permit or regulation thereunder may be assessed a civil penalty by the Secretary [of the
Interior or Commerce as program responsibilities are vested pursuant to reorganization plan] of
not more than $25,000 (adjusted by the Secretary of Commerce to $32,50040) for each violation.
The “certain provisions” just mentioned include a prohibition on the “take” by any person subject
to U.S. jurisdiction of any species listed as endangered or threatened under the act—either within
the territorial seas of the United States or on the high seas. The key term “take” is defined to
mean, among other things, to “harm” or “kill.”41
Any person who otherwise violates the act or any permit or regulation thereunder may be
assessed a civil penalty by the Secretary of not more than $500 (adjusted by the Secretary of
Commerce to $65042) for each violation. Each violation shall be a separate offense. Any such civil
penalty may be remitted or mitigated by the Secretary.
35 33 U.S.C. § 1319(c)(4).
36 CWA section 309(c)(4) is silent as to whether this fine is per day of violation. The “per day of violation” phrase
appears only in the following provision governing second and later convictions (see text).
37 33 U.S.C. § 1319(c)(6).
38 16 U.S.C. § 1540(a).
39 Defined to include “an individual, corporation, partnership, trust, association, or any other private entity.” ESA
§ 3(13); 16 U.S.C. § 1532(13).
40 15 C.F.R. § 6.4(e)(13)(i). To date, the Secretary of the Interior has not made any inflation adjustment.
41 ESA § 3(19); 16 U.S.C. § 1532(19).
42 15 C.F.R. § 6.4(e)(13)(iii). To date, the Secretary of the Interior has not made any inflation adjustment.
Congressional Research Service
5
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Criminal penalties43
ESA section 11(b)44 states that any person who knowingly violates the same “certain provisions”
noted above, or permits or regulations thereunder, may be fined up to $50,000 or imprisoned up
to one year, or both.
Marine Mammal Protection Act (MMPA)
Civil administrative penalties
MMPA section 105(a)(1)45 declares that any person46 who violates the act or its regulations may
be assessed a civil penalty by the Secretary [of Commerce or the Interior, depending on the
affected species] of up to $10,000 (adjusted by the Secretary of Commerce to $11,00047) for each
such violation. Each unlawful taking shall be a separate offense. Any such civil penalty may be
remitted or mitigated by the Secretary for good cause shown.
Criminal penalties48
MMPA section 105(b)49 states that any person who knowingly violates any provision of this act or
its regulations shall be fined up to $20,000 for each violation, or imprisoned up to one year, or
both.
Migratory Bird Treaty Act (MBTA)
MBTA section 6(a)50 provides that any person,51 association, partnership, or corporation who
violates the Migratory Bird Treaty or the MBTA, or regulations under the latter shall be guilty of
a misdemeanor and be fined up to $15,000 or imprisoned up to six months, or both.52
The MBTA provision most likely to be found violated by the Gulf oil spill is MBTA section 2,53
making it unlawful, by any means or in any manner, to, among other things, “take” or “kill” any
migratory bird. A 2007 Department of Justice memorandum cites seven unpublished cases in
which oil companies were convicted under the MBTA for the deaths of birds in oil sump pits or as
43 The criminal provisions in the three wildlife protection statutes in this report—the Endangered Species Act, Marine
Mammal Protection Act, and Migratory Bird Treaty Act—are covered in greater depth in CRS Report R41308, The
2010 Oil Spill: Criminal Liability Under Wildlife Laws, by Kristina Alexander.
44 16 U.S.C. § 1540(b).
45 16 U.S.C. § 1375(a)(1).
46 Defined to include “any private person or entity.” MMPA § 3(10); 16 U.S.C. § 1362(10).
47 15 C.F.R. § 6.4(e)(10). To date, the Secretary of the Interior has not made any inflation adjustment.
48 See supra note 42.
49 16 U.S.C. § 1375(b).
50 16 U.S.C. § 707(a).
51 The MBTA does not define “person,” in contrast with most of the other statutes discussed herein. However, as
indicated above, business entities are separately listed as covered by the act.
52 See supra note 42.
53 16 U.S.C. § 703.
Congressional Research Service
6
Penalties Possibly Applicable to Gulf Spill Responsible Parties
the result of contaminated mine tailings or collection ponds, making clear that the statute can be
violated without the hunting or other specific targeting of a migratory bird.54
Oil Pollution Act (OPA)
OPA section 4303(a)55 makes any person56 who fails to comply with the act’s financial
responsibility requirements subject to an administratively assessed57 civil penalty up to $25,000
(adjusted to $27,50058) per day of violation. In determining the amount of the penalty, the agency
shall consider the nature, circumstances, extent, and gravity of the violation, the degree of
culpability, any history of prior violation, etc. The agency may compromise, modify, or remit any
civil penalty imposed under section 4303(a).
Outer Continental Shelf Lands Act (OCSLA)
Civil judicial penalties
OCSLA section 24(b)(1)59 states that any person60 who fails to comply with the OCSLA, or
leases, permits, regulations, or orders issued thereunder, after notice of the failure and a
reasonable period to correct the noncompliance shall be liable for a civil penalty of not more than
$20,000 (adjusted to $35,00061) for each day of the continuance of such failure.
If a failure to comply constitutes or constituted a “threat of serious, irreparable, or immediate
harm or damage to life …, property, any mineral deposit, or the … environment,” a civil penalty
may be imposed without allowing a corrective action period.
Criminal penalties
OCSLA section 24(b)(2)62 provides that any person who knowingly and willfully:
• (1) fails to comply with the OCSLA, or leases, permits, regulations, or orders
issued thereunder;
54 See CRS Report R41308, The 2010 Oil Spill: Criminal Liability Under Wildlife Laws, by Kristina Alexander, at 5-6.
55 33 U.S.C. § 2716a.
56 Defined to include “an individual, corporation, partnership, [or] association ….” 33 U.S.C. § 2701(27).
57 Under Exec. Order No. 12777 (1991), 56 Fed. Reg. 54,757, 33 U.S.C. § 1321 note, the penalty-assessing authority
granted by OPA section 4303(a) to the President has been delegated, for offshore facilities other than deepwater ports,
to the Secretary of the Interior.
58 30 C.F.R. § 253.51.
59 43 U.S.C. § 1350(b)(1).
60 Defined in OCSLA section 2(d), 43 U.S.C. § 1331(d), to include private and public corporations.
61 30 C.F.R. § 250.1403. The Department of the Interior gives preeminence to the inflation-adjustment mandate in the
OCSLA itself, rather than the more general one in the Federal Civil Penalties Inflation Adjustment Act. OCSLA §
24(b) instructs the Secretary of the Interior to make inflation adjustments in the above-described civil penalties at least
every three years. The most recent adjustment is at 72 Fed. Reg. 8897 (2007).
62 43 U.S.C. § 1350(b)(2).
Congressional Research Service
7
Penalties Possibly Applicable to Gulf Spill Responsible Parties
• (2) makes any false statement, representation, or certification in any application,
record, report, or other document filed or required to be maintained under
OCSLA;
• (3) falsifies or tampers with any monitoring device required by OCSLA to be
maintained; or
• (4) reveals any data or information required to be kept confidential by OCSLA
shall be fined up to $100,000, or imprisoned not more than 10 years, or both. Each day that a
violation under clause (1) continues, or each day that a monitoring device remains inoperative or
inaccurate because of activity under clause (3), shall constitute a separate violation.
Whenever a corporation or other entity is subject to prosecution under the above, any officer or
agent of such corporation or entity who knowingly and willfully organized, or carried out the
proscribed activity shall be subject to the same fines or imprisonment as indicated above.
Occupational Safety and Health Act (OSHA)
Civil administrative penalties63
OSHA section 17(a)64 states that any employer who willfully and repeatedly violates his duty to
provide a place of employment free of recognized hazards, or occupational, safety, and health
standards under this act, may be assessed a civil penalty up to $70,000 for each violation, but not
less than $5,000 for each willful violation.
OSHA section 17(b)65 says that any employer who has received a citation for a “serious violation”
of the above requirements, shall be assessed a civil penalty up to $7,000 for each violation. Under
OSHA section 17(c),66 a civil penalty with the same cap may be assessed if the violation is not
serious. Section 17(k)67 defines a “serious violation” to exist if there is a substantial probability
that death or serious physical harm could result from a condition in a place of employment, unless
the employer did not, or could not through reasonable diligence, know of the presence of the
violation.
OSHA section 17(d)68 provides that any employer who fails to correct a violation for which a
citation has been issued within the period permitted may be assessed a civil penalty up to $7,000
for each day such failure or violation continues.
63 With regard to the civil penalty caps in the OSHA, recall that the Federal Civil Penalties Inflation Adjustment Act
explicitly exempts this statute. In the current Congress, companion bills entitled the Protect America’s Workers Act (S.
1580, H.R. 2067) would significantly increase the OSHA civil penalty caps and direct the Occupational Safety and
Health Administration to make inflation adjustments at least once every four years (just as the Federal Civil Penalties
Inflation Adjustment Act does for other statutes).
64 29 U.S.C. § 666(a).
65 29 U.S.C. § 666(b).
66 29 U.S.C. § 666(c).
67 29 U.S.C. § 666(k).
68 29 U.S.C. § 666(d).
Congressional Research Service
8
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Criminal penalties
OSHA section 17(e)69 says that an employer who willfully violates any standard, rule, order, or
regulation, causing death to any employee shall be fined up to $10,000 or imprisoned up to six
months, or both. For second and later convictions, fines may be up to $20,000 and imprisonment
up to one year.
OSHA section 17(g)70 provides that whoever knowingly makes any false statement in any
application, record, report, plan, or other document filed or required to be maintained under this
act shall be punished by a fine up to $10,000, or imprisoned up to six months, or both.
Miscellaneous Provisions in Title 18
Several provisions in the federal penal code—Title 18 of the U.S. Code—that are not specifically
environmental are often used in the prosecution of federal environmental crimes. It has been
noted that proof of crimes under the environmental statutes may involve complex technical issues
that, in most instances, are not present in Title 18 prosecutions, and that federal prosecutors are
often more familiar with Title 18 offenses and hence more comfortable prosecuting them.71 Such
federal provisions include (in paraphrased form):
Aiding and abetting, 18 U.S.C. § 2: Whoever aids or abets the commission of a federal crime is
punishable as a principal. Similarly, whoever willfully causes an act to be done which if directly
performed would be a federal crime, is punishable as a principal.
Conspiracy, 18 U.S.C. § 371: If two or more persons conspire to commit any offense against or
to defraud the United States, and one or more persons acts to effect the object of the conspiracy,
each person shall be fined under title 1872 or imprisoned not more than five years, or both.
False statements, 18 U.S.C. § 1001: Whoever, in any matter within the jurisdiction of the
executive, legislative, or judicial branch of the federal government, knowingly and willfully
falsifies, conceals, or covers up a material fact, or makes any materially false statement or
representation, or makes any false writing knowing it to contain any materially false statement,
shall be fined under title 1873 or imprisoned not more than five years, or both.
Mail fraud, 18 U.S.C. § 1341: Whoever, having devised a scheme to defraud, mails any matter or
thing in furtherance thereof, or receives any such matter or thing, shall be fined under title 1874 or
imprisoned not more than 20 years, or both.
69 29 U.S.C. § 666(e).
70 29 U.S.C. § 666(g).
71 Joseph J. Lisa, Honest Services Fraud: The Future of Prosecutions for Environmental Crimes?, 56 Federal Lawyer
55, 56 (June, 2009).
72 The text reference to being fined “under title 18” (as worded in the codified statute, “under this title”) is generally
understood to be a reference to the Criminal Fine Improvements Act, 18 U.S.C. § 3571, discussed on page 2 of this
report.
73 Id.
74 Id.
Congressional Research Service
9
Penalties Possibly Applicable to Gulf Spill Responsible Parties
Wire fraud, 18 U.S.C. § 1343: Whoever, having devised a scheme to defraud, transmits by wire,
radio or television communication in interstate commerce any writing, signs, signals, pictures, or
sounds for the purpose of executing such scheme, shall be fined under title 1875 or imprisoned not
more than 20 years, or both.
Obstruction of justice, 18 U.S.C. § 1512: Whoever knowingly uses intimidation, threatens, or
corruptly persuades another person, or misleads another person, intending to influence the
testimony of a person in an official proceeding or hinder the communication to a law enforcement
official or judge of information relating to the commission of a federal offense, shall be fined
under title 1876 or imprisoned not more than 20 years, or both.
Author Contact Information
Robert Meltz
Legislative Attorney
rmeltz@crs.loc.gov, 7-7891
75 Id.
76 Id.
Congressional Research Service
10