Civil Monetary Penalty Inflation Adjustment Rule, 19180-19184 [2018-09316]

Download as PDF 19180 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. daltland on DSKBBV9HB2PROD with RULES 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: VerDate Sep<11>2014 16:16 May 01, 2018 Jkt 244001 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 http://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 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 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. E:\FR\FM\02MYR1.SGM 02MYR1 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 19181 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) ....... daltland on DSKBBV9HB2PROD with RULES 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 VerDate Sep<11>2014 16:16 May 01, 2018 Jkt 244001 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 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 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 E:\FR\FM\02MYR1.SGM 02MYR1 19182 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. daltland on DSKBBV9HB2PROD with RULES 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, VerDate Sep<11>2014 16:16 May 01, 2018 Jkt 244001 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, PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 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 E:\FR\FM\02MYR1.SGM 02MYR1 Federal Register / Vol. 83, No. 85 / Wednesday, May 2, 2018 / Rules and Regulations 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. daltland on DSKBBV9HB2PROD with RULES 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 VerDate Sep<11>2014 16:16 May 01, 2018 Jkt 244001 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 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 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, E:\FR\FM\02MYR1.SGM 02MYR1 19184 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]


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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.

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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 http://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

0
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.


0
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.

------------------------------------------------------------------------
                                             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
------------------------------------------------------------------------
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.
------------------------------------------------------------------------

* * * * *

[FR Doc. 2018-09316 Filed 5-1-18; 8:45 am]
BILLING CODE 3720-58-P