Civil Monetary Penalty Inflation Adjustment Rule, 19180-19184 [2018-09316]
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Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Rules and Regulations
notice of enforcement because August
11, 2018 is the second Saturday in
August.
Coast Guard regulations for recurring
marine events and regattas within
Captain of the Port Delaware Bay Zone,
appear in § 100.501, Coast Guard Sector
Delaware Bay, COTP Zone which
specifies the location of the regulated
area for this regulated area as all waters
of the New Jersey ICW bounded by a
line connecting the following points:
Latitude 39°21′20″ N, longitude
074°27′18″ W, thence northeast to
latitude 39°21′27.47″ N, longitude
074°27′10.31″ W, thence northeast to
latitude 39°21′33″ N, longitude
074°26′57″ W, thence northwest to
latitude 39°21′37″ N, longitude
074°27′03″ W, thence southwest to
latitude 39°21′29.88″ N, longitude
074°27′14.31″ W, thence south to
latitude 39°21′19″ N, longitude
074°27′22″ W, thence east to latitude
39°21′18.14″ N, longitude 074°27′19.25″
W, thence north to point of origin, near
Atlantic City, NJ.
The Captain of the Port, Delaware Bay
will be enforcing the Special Local
Regulation as specified in § 100.501(c).
This notice of enforcement is issued
under authority of 33 CFR 100.501 and
33 U.S.C. 1233. The Coast Guard will
provide the maritime community with
advanced notice of enforcement of
regulation by Broadcast Notice to
Mariners (BNM), Local Notice to
Mariners and on-scene notice by
designated representative.
Dated: April 26, 2018.
Scott E. Anderson,
Captain, U.S. Coast Guard, Captain of the
Port Delaware Bay.
[FR Doc. 2018–09327 Filed 5–1–18; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 326
RIN 0710–AA77
Civil Monetary Penalty Inflation
Adjustment Rule
U.S. Army Corps of Engineers,
Department of Defense.
ACTION: Final rule.
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AGENCY:
The U.S. Army Corps of
Engineers (Corps) is issuing this final
rule to adjust its civil monetary
penalties under the Clean Water Act
(CWA) and the National Fishing
Enhancement Act to account for
inflation. This action is mandated by the
SUMMARY:
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Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Inflation Adjustment Act), which
requires agencies to adjust the levels of
civil monetary penalties with an initial
‘‘catch-up’’ adjustment followed by
annual adjustments for inflation. The
Inflation Adjustment Act prescribes a
formula for adjusting statutory civil
penalties to reflect inflation, maintain
the deterrent effect of statutory civil
penalties, and promote compliance with
the law. Using the adjustment criteria
provided in the December 15, 2017,
Office of Management and Budget
Memorandum regarding the
‘‘Implementation of Penalty Inflation
Adjustments for 2018, Pursuant to the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015’’, the 2018 annual adjustment for
inflation will increase the Class I civil
penalty under Section 309 of the Clean
Water Act to $21,394 per violation, and
the maximum civil penalty increases to
$53,484. The judicial civil penalty
under Section 404(s) of the Clean Water
Act increases to $53,484 per day for
each violation. Under the National
Fishing Enhancement Act, the Class I
civil penalty increases to $23,426 per
violation.
DATES: This final rule is effective on
May 2, 2018.
FOR FURTHER INFORMATION CONTACT: Ms.
Stacey M. Jensen at 202–761–5856 or by
email at stacey.m.jensen@
usace.army.mil or access the U.S. Army
Corps of Engineers Regulatory Home
Page at https://www.usace.army.mil/
Missions/CivilWorks/RegulatoryProgram
andPermits.aspx.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Corps is publishing this final rule
to adjust its civil monetary penalties for
inflation pursuant to the Inflation
Adjustment Act. This law requires the
Corps to publish annual adjustments for
inflation. The purpose of the Inflation
Adjustment Act is to maintain the
deterrent effect of civil penalties by
translating originally enacted statutory
civil penalty amounts to today’s dollars
and rounding statutory civil penalties to
the nearest dollar. The Inflation
Adjustment Act required agencies to
publish annual adjustments beginning
no later than January 15 of each
calendar year. Accordingly, the Corps is
providing the second annual adjustment
effective May 2, 2018, in this final rule.
The rule will apply prospectively, to
penalty assessments beginning on its
effective date. Subsequently, the Corps
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intends to continue to publish annual
adjustments as required by the Inflation
Adjustment Act, no later than January
15 of each calendar year.
The Inflation Adjustment Act does
not require agencies to implement the
required adjustments through a notice
and comment process unless proposing
an adjustment of less than the amount
otherwise required, and the Corps is not
exercising any discretion it may have to
make a lesser adjustment. For the
annual adjustments, the Inflation
Adjustment Act provides a clear
formula for adjustment of the civil
penalties, and the Corps has no
discretion to vary the amount of the
adjustment to reflect any views or
suggestions provided by commenters.
The Inflation Adjustment Act further
provides that the increased penalty
levels apply to penalties assessed after
the effective date of the increase. For
these reasons, the Corps finds that
notice and comment would be
impracticable and unnecessary in this
situation and contrary to the language of
the Inflation Adjustment Act.
Section 4 of the Inflation Adjustment
Act directs federal agencies to publish
annual penalty inflation adjustments. In
accordance with Section 553 of the
Administrative Procedures Act (APA),
most rules are subject to notice and
comment and are effective no earlier
than 30 days after publication in the
Federal Register. Section 4(b)(2) of the
Inflation Adjustment Act further
provides that each agency shall make
the annual inflation adjustments
‘‘notwithstanding section 553’’ of the
APA. According to the December 2017
OMB guidance issued to Federal
agencies on the implementation of the
2018 annual adjustment, the phrase
‘‘notwithstanding section 553’’ means
that ‘‘the public procedure the APA
generally requires—notice, an
opportunity for comment, and a delay in
effective date—is not required for
agencies to issue regulations
implementing the annual adjustment.’’
Consistent with the language of the
Inflation Adjustment Act and OMB’s
implementation guidance, this rule is
not subject to notice and opportunity for
public comment.
Background
On August 3, 2011, the Deputy
Secretary of Defense delegated to the
Secretary of the Army the authority and
responsibility to adjust penalties
administered by the U.S. Army Corps of
Engineers. On August 29, 2011, the
Secretary of the Army delegated that
authority and responsibility to the
Assistant Secretary of the Army for Civil
Works.
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Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Rules and Regulations
On November 2, 2015, the President
signed into law the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015, Public Law
114–74, 701 (Inflation Adjustment Act),
which further amended the Federal
Civil Penalties Inflation Adjustment Act
of 1990 as previously amended by the
1996 Debt Collection Improvement Act
(DCIA; collectively, ‘‘prior inflation
adjustment Acts’’), to improve the
effectiveness of civil monetary penalties
and to maintain their deterrent effect.
The Inflation Adjustment Act requires
agencies to do the following: (1) Adjust
the level of civil monetary penalties
with an initial ‘‘catch-up’’ adjustment,
through a final rule to be published by
July 1, 2016; and (2) beginning no later
than January 15, 2017, make subsequent
annual adjustments for inflation. The
Inflation Adjustment Act does not alter
an agency’s statutory authority, to the
extent it exists, to assess penalties below
the maximum level. The final rule
implementing the initial ‘‘catch-up’’
adjustment mandated by the Inflation
Adjustment Act as well as the 2017
annual inflation adjustment mandated
by the Act was effective on December
12, 2017. This final rule fulfills the
requirement for the 2018 annual
inflation adjustment and is effective on
May 2, 2018.
The Inflation Adjustment Act amends
prior inflation adjustment Acts by
substantially revising the method of
calculating inflation adjustments. Prior
inflation adjustment Acts required
adjustments to civil penalties to be
rounded significantly. For example, a
penalty increase that was greater than
$1,000, but less than or equal to
$10,000, would be rounded to the
nearest multiple of $1,000. While this
allowed penalties to be kept at round
numbers, it meant that agencies often
would not increase penalties at all if the
inflation factor was not large enough.
Furthermore, increases to penalties were
capped at 10 percent, which meant that
longer periods without an inflation
adjustment could cause a penalty to
rapidly lose value in real terms. Over
time, this formula caused agency civil
penalties to lose value relative to total
inflation, thereby undermining
Congress’ original purpose in enacting
statutory civil monetary penalties to be
a deterrent and to promote compliance
with the law. The Inflation Adjustment
Act has removed these rounding rules.
Penalties now are simply rounded to the
nearest dollar. This rounding ensures
that penalties will be increased each
year to more effectively keep up with
inflation.
The Inflation Adjustment Act
required a ‘‘catch-up’’ adjustment that
reset the inflation calculations by
excluding prior inflationary adjustments
under prior inflation adjustment Acts,
and subsequent, annual adjustments to
all civil penalties under the laws
implemented by that agency. With this
rule, the new statutory maximum
penalty levels listed in Table 1 will
apply to all statutory civil penalties
assessed on or after the effective date of
this rule.
Table 1 shows the calculation of the
2018 annual inflation adjustment based
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on the guidance provided by OMB (see
December 15, 2017, Memorandum for
the Heads of Executive Departments and
Agencies, from Mick Mulvaney,
Director, OMB, Subject: Implementation
of Penalty Inflation Adjustments for
2018, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015). The OMB
provided to agencies the cost-of-living
adjustment multiplier for 2018, based
on the CPI–U for the month of October
2017, not seasonally adjusted, which is
1.02041. Agencies are to adjust ‘‘the
maximum civil monetary penalty or the
range of minimum and maximum civil
monetary penalties, as applicable, for
each civil monetary penalty by the costof-living adjustment.’’ For 2018,
agencies multiply each applicable
penalty by the multiplier, 1.02041, and
round to the nearest dollar. The
multiplier should be applied to the most
recent penalty amount, i.e., the one that
includes the initial catch-up adjustment
mandated by the Inflation Adjustment
Act as well as the 2017 annual inflation
adjustment. Column (1) contains the
United States Code citations for the
penalty statute. Column (2) contains the
dollar amount most recently established
by law (other than prior inflation
adjustment Acts) for each civil monetary
penalty. Column (3) in Table 1 sets out
the penalty levels which were in effect
prior to this rulemaking. Column (4) in
Table 1 sets out the 2018 Inflation
Adjustment Multiplier while Column
(5) sets out the new penalty levels
which take effect upon publication of
this final rule in the Federal Register.
TABLE 1
Citation
CWA, 33 U.S.C. 1319(g)(2)(A) ..
CWA, 33 U.S.C. 1344(s)(4) .......
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National Fishing Enhancement
Act, 33 U.S.C. 2104(e).
Current civil monetary
penalty (CMP) amount
established by law
Current CMP amount in
effect prior to this
rulemaking
$10,000 per violation, with a
maximum of $25,000.
Maximum of $25,000 per day
for each violation.
Maximum of $10,000 per violation.
$20,966 per violation, with a
maximum of $52,414.
Maximum of $52,414 per day
for each violation.
Maximum of $22,957 per violation.
In summary, under this final rule the
minimum Class I civil penalty for
violations under CWA Section
309(g)(2)(A), 33 U.S.C. 1319(g)(2)A),
will increase from $20,966 per violation
to $21,394, and the maximum penalty
will increase from $52,414 per violation
to $53,484. Judicially-imposed civil
penalties under CWA Section 404(s)(4),
33 U.S.C. 1344(s)(4), will increase from
a maximum of $52,414 per day for each
violation to $53,484. Finally, the Class
I civil penalty for violations of Section
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205(e) of the National Fishing
Enhancement Act, 33 U.S.C. 2104(e),
will increase from a maximum of
$22,957 per violation to $23,426.
This rule will not result in any
additional costs to implement the Corps
Regulatory Program because the Class I
civil penalties and judicial civil
penalties have been in effect since 1990
when the Corps first promulgated
regulations regarding such penalties
(Class I civil penalties were first
established by statute in 1987). This rule
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2018 inflation
adjustment
multiplier
1.02041
1.02041
1.02041
CMP amount as of
May 2, 2018
$21,394 per violation, with a
maximum of $53,484.
Maximum of $53,484 per day
for each violation.
Maximum of $23,426 per violation.
merely adjusts the value of current
statutory civil penalties to reflect and
keep pace with the levels originally set
by Congress when the statutes were
enacted, as required by the Inflation
Adjustment Act. This rule will result in
additional costs to members of the
regulated public who do not comply
with the terms and conditions of issued
Department of the Army permits and
either receive a final Class I civil
administrative penalty order from a
District Engineer or are subject to a
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Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Rules and Regulations
judicial civil penalty. The rule increases
the minimum and maximum penalty
amounts to $21,394 and $53,484 for
Class I civil administrative penalties
under the Clean Water Act, to a
maximum of $53,484 for judiciallyimposed civil penalties under the Clean
Water Act, and to a maximum of
$23,426 for Class I civil administrative
penalties under the National Fishing
Enhancement Act. The benefit of this
rule will be to improve the effectiveness
of Corps civil monetary penalties by
maintaining their deterrent effect and
promoting compliance with the law.
Administrative Requirements
Plain Language
In compliance with the principles in
the President’s Memorandum of June 1,
1998, regarding plain language, this
preamble is written using plain
language. The use of ‘‘we’’ in this notice
refers to the Corps and the use of ‘‘you’’
refers to the reader. We have also used
the active voice, short sentences, and
common everyday terms except for
necessary technical terms.
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Paperwork Reduction Act
This final rule will not impose any
new information collection burden
under the provisions of the Paperwork
Production Act (44 U.S.C. 3501 et seq.).
This action merely increases the level of
statutory civil penalties that could be
imposed in the context of a federal civil
administrative enforcement action or
civil judicial case for violations of
Corps-administered statutes and their
implementing regulations.
Burden means the total time, effort, or
financial resources expended by persons
to generate, maintain, retain, or disclose
or provide information to or for a
Federal agency. This includes the time
needed to review instructions; develop,
acquire, install, and utilize technology
and systems for the purposes of
collecting, validating, and verifying
information, processing and
maintaining information, and disclosing
and providing information; adjust the
existing ways to comply with any
previously applicable instructions and
requirements; train personnel to be able
to respond to a collection of
information; search data sources;
complete and review the collection of
information; and transmit or otherwise
disclose the information.
An agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information
unless it displays a currently valid OMB
control number. For the Corps
regulatory program under Section 10 of
the Rivers and Harbors Act of 1899,
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Section 404 of the Clean Water Act, and
Section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972,
the current OMB approval number for
information requirements is maintained
by the Corps of Engineers (OMB
approval number 0710–0003). However,
there are no new approval or
application processes required as a
result of this rulemaking that necessitate
a new Information Collection Request
(ICR). The regulation would not impose
reporting or recordkeeping
requirements. Therefore, this action is
not subject to the Paperwork Reduction
Act.
Executive Order 12866 and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
The OMB has not designated this final
rule a ‘‘significant regulatory action’’
under Executive Order 12866.
Accordingly, OMB has not reviewed
this rule. Moreover, this final rule
makes nondiscretionary adjustments to
existing civil monetary penalties in
accordance with the Inflation
Adjustment Act and OMB guidance.
The Corps, therefore, did not consider
alternatives and does not have the
flexibility to alter the adjustments of the
civil monetary penalty amounts as
provided in this rule. To the extent this
rule increases civil monetary penalties,
it would result in an increase in
transfers from persons or entities
assessed a civil monetary penalty to the
government.
Executive Order 13132
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires the Corps to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and local officials in the development of
regulatory policies that have Federalism
implications.’’ The phrase ‘‘policies that
have Federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
This rule does not have Federalism
implications. This nondiscretionary
action is required by the Inflation
Adjustment Act and will have no
substantial direct effects on the States,
on the relationship between the Federal
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. Therefore,
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Executive Order 13132 does not apply
to this rule.
Regulatory Flexibility Act (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency
to prepare a regulatory flexibility
analysis of any rule subject to noticeand-comment rulemaking requirements
under the Administrative Procedure Act
or any other statute unless the agency
certifies that the rule will not have a
significant economic impact on a
substantial number of small entities.
Small entities include small businesses,
small organizations and small
governmental jurisdictions.
The Regulatory Flexibility Act applies
only to rules subject to notice-andcomment rulemaking requirements
under the Administrative Procedure
Act, 5 U.S.C. 553, or any other statute.
See 5 U.S.C. 601–612. The Regulatory
Flexibility Act does not apply to this
final rule because a notice-and-comment
rulemaking process is not required for
the reasons stated above.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, local,
and Tribal governments and the private
sector. Under Section 202 of the UMRA,
the agencies generally must prepare a
written statement, including a costbenefit analysis, for proposed and final
rules with ‘‘Federal mandates’’ that may
result in expenditures to State, local,
and Tribal governments, in the
aggregate, or to the private sector, of
$100 million or more in any one year.
Before promulgating a rule for which a
written statement is needed, section 205
of the UMRA generally requires the
agencies to identify and consider a
reasonable number of regulatory
alternatives and adopt the least costly,
most cost-effective, or least burdensome
alternative that achieves the objectives
of the rule. The provisions of section
205 do not apply when they are
inconsistent with applicable law.
Moreover, section 205 allows the Corps
to adopt an alternative other than the
least costly, most cost-effective, or least
burdensome alternative if the agency
publishes with the final rule an
explanation why that alternative was
not adopted. Before the Corps
establishes any regulatory requirements
that may significantly or uniquely affect
small governments, including Tribal
governments, they must have developed
under Section 203 of the UMRA a small
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government agency plan. The plan must
provide for notifying potentially
affected small governments, enabling
officials of affected small governments
to have meaningful and timely input in
the development of regulatory proposals
with significant Federal
intergovernmental mandates, and
informing, educating, and advising
small governments on compliance with
the regulatory requirements.
We have determined that this final
rule does not impose new substantive
requirements and therefore does not
contain a Federal mandate that may
result in expenditures of $100 million or
more for State, local, and Tribal
governments, in the aggregate, or the
private sector in any one year.
Therefore, this rule is not subject to the
requirements of Sections 202 and 205 of
the UMRA. For the same reasons, we
have determined that this final rule
contains no regulatory requirements that
might significantly or uniquely affect
small governments. Therefore, this final
rule is not subject to the requirements
of Section 203 of UMRA. Therefore, no
actions are deemed necessary under the
provisions of the Unfunded Mandates
Reform Act of 1995.
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National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104–
113, section 12(d) (15 U.S.C. 272 note)
directs us to use voluntary consensus
standards in our regulatory activities,
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTAA directs us to
provide Congress, through OMB,
explanations when we decide not to use
available and applicable voluntary
consensus standards.
This rule does not involve technical
standards. Therefore, we did not
consider the use of any voluntary
consensus standards.
Executive Order 13045
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (62 FR 19885,
April 23, 1997), applies to any rule that:
(1) Is determined to be ‘‘economically
significant’’ as defined under Executive
Order 12866, and (2) concerns an
environmental health or safety risk that
we have reason to believe may have a
disproportionate effect on children. If
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the regulatory action meets both criteria,
we must evaluate the environmental
health or safety effects of the rule on
children, and explain why the
regulation is preferable to other
potentially effective and reasonably
feasible alternatives.
This rule is not subject to this
Executive Order because it is not
economically significant as defined in
Executive Order 12866. In addition, it
does not concern an environmental or
safety risk that we have reason to
believe may have a disproportionate
effect on children.
Executive Order 13175
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 6, 2000), requires
agencies to develop an accountable
process to ensure ‘‘meaningful and
timely input by tribal officials in the
development of regulatory policies that
have tribal implications.’’ The phrase
‘‘policies that have tribal implications’’
is defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on one or
more Indian tribes, on the relationship
between the Federal government and
the Indian tribes, or on the distribution
of power and responsibilities between
the Federal government and Indian
tribes.’’
This rule does not have tribal
implications. The rule imposes no new
substantive obligations on tribal
governments but instead merely adjusts
the value of current statutory civil
monetary penalties to reflect and keep
pace with the levels originally set by
Congress when the statutes were
enacted. The calculation of the increases
is formula-driven and prescribed by
statute and OMB guidance, and the
Corps has no discretion to vary the
amount of the adjustment to reflect any
views or suggestions provided by
commenters. Therefore, Executive Order
13175 does not apply to this rule.
Environmental Documentation
The Corps prepares appropriate
environmental documentation,
including Environmental Impact
Statements when required, for all permit
decisions. Therefore, environmental
documentation under the National
Environmental Policy Act is not
required for this rule. This final rule
does not constitute a major Federal
action significantly affecting the quality
of the human environment because it
merely increases the value of statutory
civil monetary penalties to reflect and
keep pace with the levels originally set
by Congress when the statutes were
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19183
enacted. The calculation of the increases
is formula-driven and prescribed by
statute and OMB guidance, and the
Corps has no discretion to vary the
amount of the adjustment.
Appropriate environmental
documentation has been, or will be,
prepared for each permit action that is
subject to the civil penalty process.
Therefore, environmental
documentation under the National
Environmental Policy Act (NEPA) is not
required for this final rule.
Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as amended by the
Small Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. We will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States. A major rule cannot take effect
until 60 days after it is published in the
Federal Register. This rule is not a
‘‘major rule’’ as defined by 5 U.S.C.
804(2).
Executive Order 12898
Executive Order 12898 requires that,
to the greatest extent practicable and
permitted by law, each Federal agency
must make achieving environmental
justice part of its mission. Executive
Order 12898 provides that each Federal
agency conduct its programs, policies,
and activities that substantially affect
human health or the environment in a
manner that ensures that such programs,
policies, and activities do not have the
effect of excluding persons (including
populations) from participation in,
denying persons (including
populations) the benefits of, or
subjecting persons (including
populations) to discrimination under
such programs, policies, and activities
because of their race, color, or national
origin. This rule is not expected to
negatively impact any community, and
therefore is not expected to cause any
disproportionately high and adverse
impacts to minority or low-income
communities. This rule relates solely to
the adjustments to civil penalties to
account for inflation.
Executive Order 13211
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211, ‘‘Actions Concerning Regulations
That Significantly Affect Energy Supply,
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Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Rules and Regulations
Distribution, or Use’’ (66 FR 28355, May
22, 2001) because it is not likely to have
a significant adverse effect on the
supply, distribution, or use of energy.
This rule relates only to the adjustments
to civil penalties to account for
inflation. This rule is consistent with
current agency practice, does not
impose new substantive requirements,
and therefore will not have a significant
adverse effect on the supply,
distribution, or use of energy.
List of Subjects in 33 CFR Part 326
Administrative practice and
procedure, Intergovernmental relations,
Investigations, Law enforcement,
Navigation (water), Water pollution
control, Waterways.
Dated: April 19, 2018.
R.D. James,
Assistant Secretary of the Army (Civil Works).
For the reasons set forth in the
preamble, the Corps amends 33 CFR
part 326 as follows:
PART 326—ENFORCEMENT
1. The authority citation for part 326
continues to read as follows:
■
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C.
1344; 33 U.S.C. 1413; 33 U.S.C. 2104; 33
U.S.C. 1319; 28 U.S.C. 2461 note.
2. Amend § 326.6 by revising
paragraph (a)(1) to read as follows:
■
§ 326.6
Class I administrative penalties.
(a) Introduction. (1) This section sets
forth procedures for initiation and
Statutory civil monetary penalty amount for violations that occurred
after November 2, 2015, and are assessed on or after May 2, 2018
Environmental statute and U.S. Code citation
Clean Water Act (CWA), Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A)
CWA, Section 404(s)(4), 33 U.S.C. 1344(s)(4) ........................................
National Fishing Enhancement Act, Section 205(e), 33 U.S.C. 2104(e)
*
*
*
*
*
[FR Doc. 2018–09316 Filed 5–1–18; 8:45 am]
BILLING CODE 3720–58–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 62
[EPA–R04–OAR–2018–0119; FRL–9977–
22—Region 4]
Delegation of Authority to North
Carolina and the Western North
Carolina Regional Air Quality Agency
of Federal Plan for Existing Sewage
Sludge Incineration Units
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The EPA is providing notice
of and is codifying its prior approval of
requests submitted by the North
Carolina Department of Environmental
Quality (NCDEQ), through its Division
of Air Quality, and the Western North
Carolina Regional Air Quality Agency
(WNCRAQA) for delegation of authority
to implement and enforce the Federal
plan for existing affected Sewage Sludge
Incineration (SSI) units. The Federal
plan establishes emission limits and
monitoring, operating, and
recordkeeping requirements for SSI
units constructed on or before October
14, 2010. NCDEQ and WNCRAQA
representatives have signed separate but
similar Memoranda of Agreement
daltland on DSKBBV9HB2PROD with RULES
SUMMARY:
VerDate Sep<11>2014
16:16 May 01, 2018
Jkt 244001
$21,394 per violation, with a maximum of $53,484.
Maximum of $53,484 per day for each violation.
Maximum of $23,426 per violation.
(MOAs), each of which constitutes the
mechanism for the transfer of authority
from the EPA to each respective air
pollution control agency. The MOAs
and the corresponding delegations of
authority were effective upon signature
by the Regional Administrator on April
2, 2018. The MOAs delineate policies,
responsibilities, and procedures by
which the Federal plan will be
administered and enforced by the
NCDEQ and WNCRAQA, respectively,
as well as the authorities retained by the
EPA.
DATES:
This rule is effective on June 1,
2018.
The EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2018–0119. The index to the docket for
this action is available electronically at
www.regulations.gov and in hard copy
at EPA Region 4, 61 Forsyth St. SW,
Atlanta, Georgia. While all documents
in the docket are listed in the index,
some information may be publicly
available only at the hard copy location
(e.g., copyrighted material), and some
may not be publicly available at either
location (e.g., confidential business
information).
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Mark Bloeth, Air, Pesticides and Toxics
Management Division, U.S.
Environmental Protection Agency
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia, 30303–8960. Mr. Bloeth can be
reached via telephone at (404) 562–9013
PO 00000
Frm 00026
administration of Class I administrative
penalty orders under Section 309(g) of
the Clean Water Act, judicially-imposed
civil penalties under Section 404(s) of
the Clean Water Act, and Section 205 of
the National Fishing Enhancement Act.
Under Section 309(g)(2)(A) of the Clean
Water Act, Class I civil penalties may
not exceed $21,394 per violation, except
that the maximum amount of any Class
I civil penalty shall not exceed $53,484.
Under Section 404(s)(4) of the Clean
Water Act, judicially-imposed civil
penalties may not exceed $53,484 per
day for each violation. Under Section
205(e) of the National Fishing
Enhancement Act, penalties for
violations of permits issued in
accordance with that Act shall not
exceed $23,426 for each violation.
Fmt 4700
Sfmt 4700
and via electronic mail at bloeth.mark@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
Section 129 of the Clean Air Act (the
‘‘CAA’’ or ‘‘Act’’), titled ‘‘Solid Waste
Combustion,’’ requires the EPA to
develop and adopt standards for solid
waste incineration units pursuant to
sections 111(d) and 129 of the Act. On
March 21, 2011, the EPA promulgated
new source performance standards
(NSPS) and emissions guidelines (EG)
for SSI units located at wastewater
treatment facilities designed to treat
domestic sewage sludge. See 76 FR
15372. Codified at 40 CFR part 60,
subparts LLLL and MMMM, these final
rules set limits for nine pollutants under
section 129 of the CAA: Cadmium (Cd),
carbon monoxide (CO), hydrogen
chloride (HCl), lead (Pb), mercury (Hg),
nitrogen oxides (NOX), particulate
matter (PM), polychlorinated dibenzo-pdioxins and polychlorinated
dibenzofurans (PCDDs/PCFDs), and
sulfur dioxide (SO2). The EG apply to
existing SSI units, which are those units
that commenced construction on or
before October 14, 2010. See 40 CFR
60.5060.
CAA section 129 also requires each
state in which SSI units are operating to
submit a plan to implement and enforce
the EG with respect to such units. State
plan requirements must be ‘‘at least as
protective’’ as the EG and become
federally enforceable upon approval by
E:\FR\FM\02MYR1.SGM
02MYR1
Agencies
[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Rules and Regulations]
[Pages 19180-19184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09316]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Part 326
RIN 0710-AA77
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: U.S. Army Corps of Engineers, Department of Defense.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing this final
rule to adjust its civil monetary penalties under the Clean Water Act
(CWA) and the National Fishing Enhancement Act to account for
inflation. This action is mandated by the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation
Adjustment Act), which requires agencies to adjust the levels of civil
monetary penalties with an initial ``catch-up'' adjustment followed by
annual adjustments for inflation. The Inflation Adjustment Act
prescribes a formula for adjusting statutory civil penalties to reflect
inflation, maintain the deterrent effect of statutory civil penalties,
and promote compliance with the law. Using the adjustment criteria
provided in the December 15, 2017, Office of Management and Budget
Memorandum regarding the ``Implementation of Penalty Inflation
Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015'', the 2018 annual adjustment
for inflation will increase the Class I civil penalty under Section 309
of the Clean Water Act to $21,394 per violation, and the maximum civil
penalty increases to $53,484. The judicial civil penalty under Section
404(s) of the Clean Water Act increases to $53,484 per day for each
violation. Under the National Fishing Enhancement Act, the Class I
civil penalty increases to $23,426 per violation.
DATES: This final rule is effective on May 2, 2018.
FOR FURTHER INFORMATION CONTACT: Ms. Stacey M. Jensen at 202-761-5856
or by email at [email protected] or access the U.S. Army
Corps of Engineers Regulatory Home Page at https://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Corps is publishing this final rule to adjust its civil
monetary penalties for inflation pursuant to the Inflation Adjustment
Act. This law requires the Corps to publish annual adjustments for
inflation. The purpose of the Inflation Adjustment Act is to maintain
the deterrent effect of civil penalties by translating originally
enacted statutory civil penalty amounts to today's dollars and rounding
statutory civil penalties to the nearest dollar. The Inflation
Adjustment Act required agencies to publish annual adjustments
beginning no later than January 15 of each calendar year. Accordingly,
the Corps is providing the second annual adjustment effective May 2,
2018, in this final rule. The rule will apply prospectively, to penalty
assessments beginning on its effective date. Subsequently, the Corps
intends to continue to publish annual adjustments as required by the
Inflation Adjustment Act, no later than January 15 of each calendar
year.
The Inflation Adjustment Act does not require agencies to implement
the required adjustments through a notice and comment process unless
proposing an adjustment of less than the amount otherwise required, and
the Corps is not exercising any discretion it may have to make a lesser
adjustment. For the annual adjustments, the Inflation Adjustment Act
provides a clear formula for adjustment of the civil penalties, and the
Corps has no discretion to vary the amount of the adjustment to reflect
any views or suggestions provided by commenters. The Inflation
Adjustment Act further provides that the increased penalty levels apply
to penalties assessed after the effective date of the increase. For
these reasons, the Corps finds that notice and comment would be
impracticable and unnecessary in this situation and contrary to the
language of the Inflation Adjustment Act.
Section 4 of the Inflation Adjustment Act directs federal agencies
to publish annual penalty inflation adjustments. In accordance with
Section 553 of the Administrative Procedures Act (APA), most rules are
subject to notice and comment and are effective no earlier than 30 days
after publication in the Federal Register. Section 4(b)(2) of the
Inflation Adjustment Act further provides that each agency shall make
the annual inflation adjustments ``notwithstanding section 553'' of the
APA. According to the December 2017 OMB guidance issued to Federal
agencies on the implementation of the 2018 annual adjustment, the
phrase ``notwithstanding section 553'' means that ``the public
procedure the APA generally requires--notice, an opportunity for
comment, and a delay in effective date--is not required for agencies to
issue regulations implementing the annual adjustment.'' Consistent with
the language of the Inflation Adjustment Act and OMB's implementation
guidance, this rule is not subject to notice and opportunity for public
comment.
Background
On August 3, 2011, the Deputy Secretary of Defense delegated to the
Secretary of the Army the authority and responsibility to adjust
penalties administered by the U.S. Army Corps of Engineers. On August
29, 2011, the Secretary of the Army delegated that authority and
responsibility to the Assistant Secretary of the Army for Civil Works.
[[Page 19181]]
On November 2, 2015, the President signed into law the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015,
Public Law 114-74, 701 (Inflation Adjustment Act), which further
amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as
previously amended by the 1996 Debt Collection Improvement Act (DCIA;
collectively, ``prior inflation adjustment Acts''), to improve the
effectiveness of civil monetary penalties and to maintain their
deterrent effect. The Inflation Adjustment Act requires agencies to do
the following: (1) Adjust the level of civil monetary penalties with an
initial ``catch-up'' adjustment, through a final rule to be published
by July 1, 2016; and (2) beginning no later than January 15, 2017, make
subsequent annual adjustments for inflation. The Inflation Adjustment
Act does not alter an agency's statutory authority, to the extent it
exists, to assess penalties below the maximum level. The final rule
implementing the initial ``catch-up'' adjustment mandated by the
Inflation Adjustment Act as well as the 2017 annual inflation
adjustment mandated by the Act was effective on December 12, 2017. This
final rule fulfills the requirement for the 2018 annual inflation
adjustment and is effective on May 2, 2018.
The Inflation Adjustment Act amends prior inflation adjustment Acts
by substantially revising the method of calculating inflation
adjustments. Prior inflation adjustment Acts required adjustments to
civil penalties to be rounded significantly. For example, a penalty
increase that was greater than $1,000, but less than or equal to
$10,000, would be rounded to the nearest multiple of $1,000. While this
allowed penalties to be kept at round numbers, it meant that agencies
often would not increase penalties at all if the inflation factor was
not large enough. Furthermore, increases to penalties were capped at 10
percent, which meant that longer periods without an inflation
adjustment could cause a penalty to rapidly lose value in real terms.
Over time, this formula caused agency civil penalties to lose value
relative to total inflation, thereby undermining Congress' original
purpose in enacting statutory civil monetary penalties to be a
deterrent and to promote compliance with the law. The Inflation
Adjustment Act has removed these rounding rules. Penalties now are
simply rounded to the nearest dollar. This rounding ensures that
penalties will be increased each year to more effectively keep up with
inflation.
The Inflation Adjustment Act required a ``catch-up'' adjustment
that reset the inflation calculations by excluding prior inflationary
adjustments under prior inflation adjustment Acts, and subsequent,
annual adjustments to all civil penalties under the laws implemented by
that agency. With this rule, the new statutory maximum penalty levels
listed in Table 1 will apply to all statutory civil penalties assessed
on or after the effective date of this rule.
Table 1 shows the calculation of the 2018 annual inflation
adjustment based on the guidance provided by OMB (see December 15,
2017, Memorandum for the Heads of Executive Departments and Agencies,
from Mick Mulvaney, Director, OMB, Subject: Implementation of Penalty
Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015). The OMB provided to
agencies the cost-of-living adjustment multiplier for 2018, based on
the CPI-U for the month of October 2017, not seasonally adjusted, which
is 1.02041. Agencies are to adjust ``the maximum civil monetary penalty
or the range of minimum and maximum civil monetary penalties, as
applicable, for each civil monetary penalty by the cost-of-living
adjustment.'' For 2018, agencies multiply each applicable penalty by
the multiplier, 1.02041, and round to the nearest dollar. The
multiplier should be applied to the most recent penalty amount, i.e.,
the one that includes the initial catch-up adjustment mandated by the
Inflation Adjustment Act as well as the 2017 annual inflation
adjustment. Column (1) contains the United States Code citations for
the penalty statute. Column (2) contains the dollar amount most
recently established by law (other than prior inflation adjustment
Acts) for each civil monetary penalty. Column (3) in Table 1 sets out
the penalty levels which were in effect prior to this rulemaking.
Column (4) in Table 1 sets out the 2018 Inflation Adjustment Multiplier
while Column (5) sets out the new penalty levels which take effect upon
publication of this final rule in the Federal Register.
Table 1
----------------------------------------------------------------------------------------------------------------
Current civil
monetary penalty Current CMP amount 2018 inflation CMP amount as of
Citation (CMP) amount in effect prior to adjustment May 2, 2018
established by law this rulemaking multiplier
----------------------------------------------------------------------------------------------------------------
CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $20,966 per 1.02041 $21,394 per
violation, with a violation, with a violation, with a
maximum of $25,000. maximum of $52,414. maximum of
$53,484.
CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $52,414 1.02041 Maximum of $53,484
per day for each per day for each per day for each
violation. violation. violation.
National Fishing Enhancement Act, Maximum of $10,000 Maximum of $22,957 1.02041 Maximum of $23,426
33 U.S.C. 2104(e). per violation. per violation. per violation.
----------------------------------------------------------------------------------------------------------------
In summary, under this final rule the minimum Class I civil penalty
for violations under CWA Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)A),
will increase from $20,966 per violation to $21,394, and the maximum
penalty will increase from $52,414 per violation to $53,484.
Judicially-imposed civil penalties under CWA Section 404(s)(4), 33
U.S.C. 1344(s)(4), will increase from a maximum of $52,414 per day for
each violation to $53,484. Finally, the Class I civil penalty for
violations of Section 205(e) of the National Fishing Enhancement Act,
33 U.S.C. 2104(e), will increase from a maximum of $22,957 per
violation to $23,426.
This rule will not result in any additional costs to implement the
Corps Regulatory Program because the Class I civil penalties and
judicial civil penalties have been in effect since 1990 when the Corps
first promulgated regulations regarding such penalties (Class I civil
penalties were first established by statute in 1987). This rule merely
adjusts the value of current statutory civil penalties to reflect and
keep pace with the levels originally set by Congress when the statutes
were enacted, as required by the Inflation Adjustment Act. This rule
will result in additional costs to members of the regulated public who
do not comply with the terms and conditions of issued Department of the
Army permits and either receive a final Class I civil administrative
penalty order from a District Engineer or are subject to a
[[Page 19182]]
judicial civil penalty. The rule increases the minimum and maximum
penalty amounts to $21,394 and $53,484 for Class I civil administrative
penalties under the Clean Water Act, to a maximum of $53,484 for
judicially-imposed civil penalties under the Clean Water Act, and to a
maximum of $23,426 for Class I civil administrative penalties under the
National Fishing Enhancement Act. The benefit of this rule will be to
improve the effectiveness of Corps civil monetary penalties by
maintaining their deterrent effect and promoting compliance with the
law.
Administrative Requirements
Plain Language
In compliance with the principles in the President's Memorandum of
June 1, 1998, regarding plain language, this preamble is written using
plain language. The use of ``we'' in this notice refers to the Corps
and the use of ``you'' refers to the reader. We have also used the
active voice, short sentences, and common everyday terms except for
necessary technical terms.
Paperwork Reduction Act
This final rule will not impose any new information collection
burden under the provisions of the Paperwork Production Act (44 U.S.C.
3501 et seq.). This action merely increases the level of statutory
civil penalties that could be imposed in the context of a federal civil
administrative enforcement action or civil judicial case for violations
of Corps-administered statutes and their implementing regulations.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. For the Corps regulatory program
under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of
the Clean Water Act, and Section 103 of the Marine Protection, Research
and Sanctuaries Act of 1972, the current OMB approval number for
information requirements is maintained by the Corps of Engineers (OMB
approval number 0710-0003). However, there are no new approval or
application processes required as a result of this rulemaking that
necessitate a new Information Collection Request (ICR). The regulation
would not impose reporting or recordkeeping requirements. Therefore,
this action is not subject to the Paperwork Reduction Act.
Executive Order 12866 and Executive Order 13563, ``Improving Regulation
and Regulatory Review''
The OMB has not designated this final rule a ``significant
regulatory action'' under Executive Order 12866. Accordingly, OMB has
not reviewed this rule. Moreover, this final rule makes
nondiscretionary adjustments to existing civil monetary penalties in
accordance with the Inflation Adjustment Act and OMB guidance. The
Corps, therefore, did not consider alternatives and does not have the
flexibility to alter the adjustments of the civil monetary penalty
amounts as provided in this rule. To the extent this rule increases
civil monetary penalties, it would result in an increase in transfers
from persons or entities assessed a civil monetary penalty to the
government.
Executive Order 13132
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the Corps to develop an accountable process to
ensure ``meaningful and timely input by State and local officials in
the development of regulatory policies that have Federalism
implications.'' The phrase ``policies that have Federalism
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
This rule does not have Federalism implications. This
nondiscretionary action is required by the Inflation Adjustment Act and
will have no substantial direct effects on the States, on the
relationship between the Federal government and the States, or on the
distribution of power and responsibilities among the various levels of
government. Therefore, Executive Order 13132 does not apply to this
rule.
Regulatory Flexibility Act (RFA), as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice-and-comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations and small
governmental jurisdictions.
The Regulatory Flexibility Act applies only to rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-
612. The Regulatory Flexibility Act does not apply to this final rule
because a notice-and-comment rulemaking process is not required for the
reasons stated above.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under Section 202 of the UMRA, the
agencies generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and Tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a rule for which a
written statement is needed, section 205 of the UMRA generally requires
the agencies to identify and consider a reasonable number of regulatory
alternatives and adopt the least costly, most cost-effective, or least
burdensome alternative that achieves the objectives of the rule. The
provisions of section 205 do not apply when they are inconsistent with
applicable law. Moreover, section 205 allows the Corps to adopt an
alternative other than the least costly, most cost-effective, or least
burdensome alternative if the agency publishes with the final rule an
explanation why that alternative was not adopted. Before the Corps
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including Tribal governments, they
must have developed under Section 203 of the UMRA a small
[[Page 19183]]
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
We have determined that this final rule does not impose new
substantive requirements and therefore does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. Therefore, this rule is not subject to the
requirements of Sections 202 and 205 of the UMRA. For the same reasons,
we have determined that this final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, this final rule is not subject to the
requirements of Section 203 of UMRA. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272
note) directs us to use voluntary consensus standards in our regulatory
activities, unless to do so would be inconsistent with applicable law
or otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. The NTTAA directs us to provide
Congress, through OMB, explanations when we decide not to use available
and applicable voluntary consensus standards.
This rule does not involve technical standards. Therefore, we did
not consider the use of any voluntary consensus standards.
Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that we have reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, we must evaluate the environmental health or
safety effects of the rule on children, and explain why the regulation
is preferable to other potentially effective and reasonably feasible
alternatives.
This rule is not subject to this Executive Order because it is not
economically significant as defined in Executive Order 12866. In
addition, it does not concern an environmental or safety risk that we
have reason to believe may have a disproportionate effect on children.
Executive Order 13175
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires agencies to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' The phrase
``policies that have tribal implications'' is defined in the Executive
Order to include regulations that have ``substantial direct effects on
one or more Indian tribes, on the relationship between the Federal
government and the Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes.''
This rule does not have tribal implications. The rule imposes no
new substantive obligations on tribal governments but instead merely
adjusts the value of current statutory civil monetary penalties to
reflect and keep pace with the levels originally set by Congress when
the statutes were enacted. The calculation of the increases is formula-
driven and prescribed by statute and OMB guidance, and the Corps has no
discretion to vary the amount of the adjustment to reflect any views or
suggestions provided by commenters. Therefore, Executive Order 13175
does not apply to this rule.
Environmental Documentation
The Corps prepares appropriate environmental documentation,
including Environmental Impact Statements when required, for all permit
decisions. Therefore, environmental documentation under the National
Environmental Policy Act is not required for this rule. This final rule
does not constitute a major Federal action significantly affecting the
quality of the human environment because it merely increases the value
of statutory civil monetary penalties to reflect and keep pace with the
levels originally set by Congress when the statutes were enacted. The
calculation of the increases is formula-driven and prescribed by
statute and OMB guidance, and the Corps has no discretion to vary the
amount of the adjustment.
Appropriate environmental documentation has been, or will be,
prepared for each permit action that is subject to the civil penalty
process. Therefore, environmental documentation under the National
Environmental Policy Act (NEPA) is not required for this final rule.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996,
generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. We will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Executive Order 12898
Executive Order 12898 requires that, to the greatest extent
practicable and permitted by law, each Federal agency must make
achieving environmental justice part of its mission. Executive Order
12898 provides that each Federal agency conduct its programs, policies,
and activities that substantially affect human health or the
environment in a manner that ensures that such programs, policies, and
activities do not have the effect of excluding persons (including
populations) from participation in, denying persons (including
populations) the benefits of, or subjecting persons (including
populations) to discrimination under such programs, policies, and
activities because of their race, color, or national origin. This rule
is not expected to negatively impact any community, and therefore is
not expected to cause any disproportionately high and adverse impacts
to minority or low-income communities. This rule relates solely to the
adjustments to civil penalties to account for inflation.
Executive Order 13211
This rule is not a ``significant energy action'' as defined in
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply,
[[Page 19184]]
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy. This rule relates only to the
adjustments to civil penalties to account for inflation. This rule is
consistent with current agency practice, does not impose new
substantive requirements, and therefore will not have a significant
adverse effect on the supply, distribution, or use of energy.
List of Subjects in 33 CFR Part 326
Administrative practice and procedure, Intergovernmental relations,
Investigations, Law enforcement, Navigation (water), Water pollution
control, Waterways.
Dated: April 19, 2018.
R.D. James,
Assistant Secretary of the Army (Civil Works).
For the reasons set forth in the preamble, the Corps amends 33 CFR
part 326 as follows:
PART 326--ENFORCEMENT
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1. The authority citation for part 326 continues to read as follows:
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C.
1413; 33 U.S.C. 2104; 33 U.S.C. 1319; 28 U.S.C. 2461 note.
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2. Amend Sec. 326.6 by revising paragraph (a)(1) to read as follows:
Sec. 326.6 Class I administrative penalties.
(a) Introduction. (1) This section sets forth procedures for
initiation and administration of Class I administrative penalty orders
under Section 309(g) of the Clean Water Act, judicially-imposed civil
penalties under Section 404(s) of the Clean Water Act, and Section 205
of the National Fishing Enhancement Act. Under Section 309(g)(2)(A) of
the Clean Water Act, Class I civil penalties may not exceed $21,394 per
violation, except that the maximum amount of any Class I civil penalty
shall not exceed $53,484. Under Section 404(s)(4) of the Clean Water
Act, judicially-imposed civil penalties may not exceed $53,484 per day
for each violation. Under Section 205(e) of the National Fishing
Enhancement Act, penalties for violations of permits issued in
accordance with that Act shall not exceed $23,426 for each violation.
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Statutory civil monetary
penalty amount for violations
Environmental statute and U.S. Code that occurred after November 2,
citation 2015, and are assessed on or
after May 2, 2018
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Clean Water Act (CWA), Section $21,394 per violation, with a
309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A). maximum of $53,484.
CWA, Section 404(s)(4), 33 U.S.C. Maximum of $53,484 per day for
1344(s)(4). each violation.
National Fishing Enhancement Act, Maximum of $23,426 per
Section 205(e), 33 U.S.C. 2104(e). violation.
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[FR Doc. 2018-09316 Filed 5-1-18; 8:45 am]
BILLING CODE 3720-58-P