Civil Monetary Penalty Inflation Adjustment Rule, 37246-37249 [2021-14716]
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37246
Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Rules and Regulations
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of the Coast Guard, call
1–888–REG–FAIR (1–888–734–3247).
The Coast Guard will not retaliate
against small entities that question or
complain about this rule or any policy
or action of the Coast Guard.
C. Collection of Information
This rule will not call for a new
collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520).
D. Federalism and Indian Tribal
Governments
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect 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. We have
analyzed this rule under that Order and
have determined that it is consistent
with the fundamental federalism
principles and preemption requirements
described in Executive Order 13132.
Also, this rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
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E. Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
F. Environment
We have analyzed this rule under
Department of Homeland Security
Directive 023–01, Rev. 1, associated
implementing instructions, and
Environmental Planning COMDTINST
5090.1 (series), which guide the Coast
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Guard in complying with the National
Environmental Policy Act of 1969 (42
U.S.C. 4321–4370f), and have
determined that this action is one of a
category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a
temporary safety zone lasting seven
days or until the salvage of a cruise
ship, and disembarkation of the
passengers on board is complete. It is
categorically excluded from further
review under paragraph L60(c) of
Appendix A, Table 1 of DHS Instruction
Manual 023–01–001–01, Rev. 1.
Sector Ohio Valley (COTP) or
designated representative. A designated
representative is a commissioned,
warrant, or petty officer of the U.S.
Coast Guard assigned to units under the
operational control of USCG Sector
Ohio Valley.
(2) If permission is granted, all
persons and vessels must comply with
the instructions of the COTP or
designated representative.
Dated: July 9, 2021.
A.M. Beach,
Captain, U.S. Coast Guard, Captain of the
Port Sector Ohio Valley.
[FR Doc. 2021–14996 Filed 7–14–21; 8:45 am]
G. Protest Activities
The Coast Guard respects the First
Amendment rights of protesters.
Protesters are asked to call or email the
person listed in the FOR FURTHER
INFORMATION CONTACT section to
coordinate protest activities so that your
message can be received without
jeopardizing the safety or security of
people, places or vessels.
BILLING CODE 9110–04–P
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
Civil Monetary Penalty Inflation
Adjustment Rule
PART 165—REGULATED NAVIGATION
AREAS AND LMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 46 U.S.C. 70034, 70051; 33 CFR
1.05–1, 6.04–1, 6.04–6, and 160.5;
Department of Homeland Security Delegation
No. 0170.1.
2. Add § 165.T08–0542 to read as
follows:
■
§ 165.T08–0542 Safety Zone; Cumberland
River, Canton, KY.
(a) Location. The safety zone will
cover all navigable waters of the
Cumberland River from mile marker
(MM) 61 to MM 64.
(b) Enforcement period. This section
will be enforced from July 9, 2021 and
will continue through July 16, 2021 or
until the hazards associated with the
salvage of a cruise ship and the
disembarkation of the passengers on
board have been mitigated, whichever
occurs first.
(c) Regulations. (1) In accordance with
the general regulations in § 165.23 of
this part, entry of vessels or persons into
the zone during demolition operations
is prohibited unless specifically
authorized by the Captain of the Port
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Parts 207 and 326
RIN 0710–AB19
AGENCY:
U.S. Army Corps of Engineers,
DoD.
ACTION:
Final rule.
The U.S. Army Corps of
Engineers (Corps) is issuing this final
rule to adjust its civil monetary
penalties (CMP) under the Rivers and
Harbors Act of 1922 (RHA), the Clean
Water Act (CWA), and the National
Fishing Enhancement Act (NFEA) to
account for inflation.
DATES: This final rule is effective on July
15, 2021.
FOR FURTHER INFORMATION CONTACT: For
the RHA portion, please contact Mr.
Paul Clouse at 202–761–4709 or by
email at Paul.D.Clouse@usace.army.mil,
or for the CWA and NFEA portion,
please contact Ms. Karen Mulligan at
202–761–4664 or by email at
karen.mulligan@usace.army.mil or
access the U.S. Army Corps of Engineers
Regulatory Home Page at https://
www.usace.army.mil/Missions/
CivilWorks/
RegulatoryProgramandPermits.aspx.
SUPPLEMENTARY INFORMATION: The
Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410, 104 Stat. 890 (28 U.S.C. 2461,
note), as amended by the Debt
Collection Improvement Act of 1996,
Public Law 104–134, April 26, 1996,
and further amended by the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Inflation
Adjustment Act), Public Law 114–74,
SUMMARY:
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Rules and Regulations
November 2, 2015, required agencies to
annually adjust the level of CMP for
inflation to improve their effectiveness
and maintain their deterrent effect.
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 2021 annual
inflation adjustment based on the
guidance provided by the Office of
Management and Budget (OMB) (see
December 23, 2020, Memorandum for
the Heads of Executive Departments and
Agencies, Subject: Implementation of
Penalty Inflation Adjustments for 2021,
Pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act 2015). The OMB provided to
agencies the cost-of-living adjustment
multiplier for 2021, based on the
Consumer Price Index for All Urban
Consumers (CPI–U) for the month of
October 2020, not seasonally adjusted,
which is 1.01182. Agencies are to adjust
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‘‘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 2021,
agencies multiply each applicable
penalty by the multiplier, 1.01182, and
round to the nearest dollar. The
multiplier should be applied to the most
recent penalty amount, i.e., the one that
includes the 2020 annual inflation
adjustment.
TABLE 1
Civil monetary penalty (CMP)
amount established by law
2020 CMP amount in effect
prior to this rulemaking
Rivers and Harbors Act of
1922 (33 U.S.C. 555).
CWA, 33 U.S.C.
1319(g)(2)(A).
CWA, 33 U.S.C. 1344(s)(4) ...
$2,500 per violation ...............
$5,834 per violation ...............
1.01182
$5,903 per violation.
$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.
$22,321 per violation, with a
maximum of $55,801.
Maximum of $55,801 per day
for each violation.
Maximum of $24,441 per violation.
1.01182
$22,585 per violation, with a
maximum of $56,461.
Maximum of $56,461 per day
for each violation.
Maximum of $24,730 per violation.
National Fishing Enhancement Act, 33 U.S.C.
2104(e).
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2021 Inflation
adjustment
multiplier
Citation
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 2020
OMB guidance issued to Federal
agencies on the implementation of the
2021 annual adjustment, the phrase
‘‘notwithstanding section 553’’ means
that ‘‘the public procedure the APA
generally requires (i.e., 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. This rule 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
apply prospectively to penalty
assessments beginning on the effective
date of this final rule.
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Regulatory Procedures
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.
Executive Order 12866, ‘‘Regulatory
Planning and Review,’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
This rule is not designated a
‘‘significant regulatory action’’ under
Executive Order 12866 and OMB
determined this rule to not be
significant. 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.
Public Law 96–511, ‘‘Paperwork
Reduction Act’’ (44 U.S.C. Chapter 35)
The Department of Defense
determined that provisions of the
Paperwork Reduction Act of 1995,
Public Law 104–13, 44 U.S.C. Chapter
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1.01182
1.01182
CMP amount as of 7/15/2021
35, and its implementing regulations, 5
CFR part 1320, do not apply to this rule
because there are no new or revised
recordkeeping or reporting
requirements. 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.
Executive Order 13132, ‘‘Federalism’’
Executive Order 13132 establishes
certain requirements that an agency
must meet when it promulgates a rule
that imposes substantial direct
requirement costs on State and local
governments, preempts State law, or
otherwise has Federalism implications.
This final rule will not have a
substantial effect on State and local
governments.
Public Law 96–354, ‘‘Regulatory
Flexibility Act’’ (5 U.S.C. Chapter 6)
Because notice of proposed
rulemaking and opportunity for
comment are not required pursuant to 5
U.S.C. 553, or any other law, the
analytical requirements of the
Regulatory Flexibility Act (5 U.S.C. 601,
et seq.) are inapplicable. Therefore, a
regulatory flexibility analysis is not
required and has not been prepared.
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37248
Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Rules and Regulations
Unfunded Mandates Reform Act (2
U.S.C. Chapter 25)
Section 202 of the Unfunded
Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532) requires agencies to
assess anticipated costs and benefits
before issuing any rule the mandates of
which require spending in any year of
$100 million in 1995 dollars, updated
annually for inflation. In 2016, that
threshold is approximately $146
million. This rule will not mandate any
requirements for State, local, or tribal
governments, nor will it affect private
sector costs.
Public Law 104–113, ‘‘National
Technology Transfer and Advancement
Act’’ (15 U.S.C. Chapter 7)
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104–
113, (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.
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Executive Order 13045, ‘‘Protection of
Children From Environmental Health
Risks and Safety Risks’’
Executive Order 13045 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.
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Executive Order 13175, ‘‘Consultation
and Coordination With Indian Tribal
Governments’’
Executive Order 13175 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. Therefore, Executive
Order 13175 does not apply to this rule.
Public Law 104–121, ‘‘Congressional
Review Act’’, (5 U.S.C Chapter 8)
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, ‘‘Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations’’
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
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because of their race, color, or national
origin. This rule merely adjusts civil
penalties to account for inflation, and
therefore, 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.
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use’’
This rule is not a ‘‘significant energy
action’’ as defined in Executive Order
13211 because it is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy.
List of Subjects
33 CFR Part 207
Navigation (water), Penalties,
Reporting and recordkeeping
requirements, and Waterways.
33 CFR Part 326
Administrative practice and
procedure, Intergovernmental relations,
Investigations, Law enforcement,
Navigation (Water), Water pollution
control, Waterways.
Dated: July 6, 2021.
Approved by:
Jaime A. Pinkham,
Acting Assistant Secretary of the Army (Civil
Works).
Title 33—Navigation and Navigable
Waters
For the reasons set out in the
preamble, title 33, chapter II of the Code
of Federal Regulations is amended as
follows:
PART 207—NAVIGATION
REGULATIONS
1. The authority citation for part 207
is revised to read as follows:
■
Authority: 33 U.S.C. 1; 33 U.S.C. 555; 28
U.S.C. 2461 note.
2. Amend § 207.800 by revising
paragraph (c)(2) to read as follows:
■
§ 207.800 Collection of navigation
statistics.
*
*
*
*
*
(c) * * *
(2) In addition, any person or entity
that fails to provide timely, accurate,
and complete statements or reports
required to be submitted by the
regulation in this section may also be
assessed a civil penalty of up to $5,903
per violation under 33 U.S.C. 555, as
amended.
*
*
*
*
*
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Federal Register / Vol. 86, No. 133 / Thursday, July 15, 2021 / Rules and Regulations
PART 326—ENFORCEMENT
3. 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.
4. Amend § 326.6 by revising
paragraph (a)(1) to read as follows:
■
§ 326.6
Class I administrative penalties.
(a) * * *
(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 $22,585 per violation, except
37249
that the maximum amount of any Class
I civil penalty shall not exceed $56,461.
Under Section 404(s)(4) of the Clean
Water Act, judicially-imposed civil
penalties may not exceed $56,461 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 $24,730 for each violation.
TABLE 1 TO PARAGRAPH (a)(1)
Statutory civil monetary penalty amount for violations
that occurred after November 2, 2015, and are
assessed on or after 7/15/2021
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. 2021–14716 Filed 7–14–21; 8:45 am]
BILLING CODE 3720–58–P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Part 274
RIN 0710–AB37
Pest Control Program for Civil Works
Projects
U.S. Army Corps of Engineers,
Department of Defense.
ACTION: Final rule.
AGENCY:
This final rule removes the
U.S. Army Corps of Engineers (USACE)
part titled, ‘‘Pest Control Program for
Civil Works Projects.’’ This part is
redundant and otherwise covers internal
agency operations that have no public
compliance component or adverse
public impact. Therefore, this part can
be removed from the Code of Federal
Regulations (CFR).
DATES: This rule is effective on July 15,
2021.
ADDRESSES: Department of the Army,
U.S. Army Corps of Engineers, ATTN:
CECW–P (Mr. Jeremy Crossland), 441 G
Street NW, Washington, DC 20314–
1000.
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SUMMARY:
Mr.
Jeremy Crossland at (202) 761–4259 or
by email at Jeremy.M.Crossland@
usace.army.mil.
FOR FURTHER INFORMATION CONTACT:
This final
rule removes from the Code of Federal
Regulations 33 CFR part 274 titled,
‘‘Pest Control Program for Civil Works
SUPPLEMENTARY INFORMATION:
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$22,585 per violation, with a maximum of $56,461.
Maximum of $56,461 per day for each violation.
Maximum of $24,730 per violation.
Projects,’’ which assigns responsibilities
and prescribes procedures concerning
the use of chemicals in the USACE pest
control program at Civil Works projects
under the authority of Public Law 92–
516, as amended, Federal Insecticide,
Fungicide and Rodenticide ACT
(FIFRA), 7 U.S.C. 136 et seq.,which
among other things, transferred
responsibility of pesticide regulation
from the Department of Agriculture to
the Environmental Protection Agency.
This rule was initially published on
August 15, 1977 (42 FR 41118). While
the rule applies only to the Corps’ Pest
Control Program, it was published, at
that time, in the Federal Register to aid
public accessibility.
The solicitation of public comment
for this removal is unnecessary because
the rule is out-of-date, duplicative of
existing internal agency guidance, and
otherwise covers internal agency
operations that have no public
compliance component or adverse
public impact. For current public
accessibility purposes, updated internal
agency policy on this topic may be
found in Engineer Regulation 1130–2–
540, ‘‘Environmental Stewardship
Operations and Maintenance Guidance
and Procedures’’ (available at https://
www.publications.usace.army.mil/
Portals/76/Publications/Engineer
Regulations/ER_1130-2-540.pdf) The
agency policy is only applicable to field
operating activities having
responsibility for the Pest Control
Program and provides guidance specific
to the Corps’ use of chemicals at Civil
Works projects.
This rule removal is being conducted
to reduce confusion for the public as
well as for the Corps regarding the
current policy which governs the Corps’
Pest Control Program. Because the
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Fmt 4700
Sfmt 4700
regulation does not place a burden on
the public, its removal does not provide
a reduction in public burden or costs.
This rule is not significant under
Executive Order 12866, ‘‘Regulatory
Planning and Review.’’
List of Subjects in 33 CFR Part 274
Pesticides and pests, Water resources.
PART 274 [REMOVED]
Accordingly, under the authority of 5
U.S.C. 301, the Army Corps of Engineers
removes 33 CFR part 274.
■
Dated: July 1, 2021.
Jaime A. Pinkham,
Acting Assistant Secretary of the Army (Civil
Works).
[FR Doc. 2021–14721 Filed 7–14–21; 8:45 am]
BILLING CODE 3720–58–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 660
[Docket No. 210505–0101] RTID 0648–XB196
Fisheries Off West Coast States;
Modification of the West Coast
Commercial Salmon Fisheries;
Inseason Action #18
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Inseason modification of 2021
management measures.
AGENCY:
NMFS announces an inseason
action in the 2021 ocean salmon
fisheries. This inseason action modifies
SUMMARY:
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]]>Agencies
[Federal Register Volume 86, Number 133 (Thursday, July 15, 2021)]
[Rules and Regulations]
[Pages 37246-37249]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14716]
=======================================================================
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DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Parts 207 and 326
RIN 0710-AB19
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing this final
rule to adjust its civil monetary penalties (CMP) under the Rivers and
Harbors Act of 1922 (RHA), the Clean Water Act (CWA), and the National
Fishing Enhancement Act (NFEA) to account for inflation.
DATES: This final rule is effective on July 15, 2021.
FOR FURTHER INFORMATION CONTACT: For the RHA portion, please contact
Mr. Paul Clouse at 202-761-4709 or by email at
[email protected], or for the CWA and NFEA portion, please
contact Ms. Karen Mulligan at 202-761-4664 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: The Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890 (28 U.S.C.
2461, note), as amended by the Debt Collection Improvement Act of 1996,
Public Law 104-134, April 26, 1996, and further amended by the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015
(Inflation Adjustment Act), Public Law 114-74,
[[Page 37247]]
November 2, 2015, required agencies to annually adjust the level of CMP
for inflation to improve their effectiveness and maintain their
deterrent effect.
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 2021 annual inflation adjustment based on the guidance provided by
the Office of Management and Budget (OMB) (see December 23, 2020,
Memorandum for the Heads of Executive Departments and Agencies,
Subject: Implementation of Penalty Inflation Adjustments for 2021,
Pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act 2015). The OMB provided to agencies the cost-of-living
adjustment multiplier for 2021, based on the Consumer Price Index for
All Urban Consumers (CPI-U) for the month of October 2020, not
seasonally adjusted, which is 1.01182. 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 2021, agencies multiply
each applicable penalty by the multiplier, 1.01182, and round to the
nearest dollar. The multiplier should be applied to the most recent
penalty amount, i.e., the one that includes the 2020 annual inflation
adjustment.
Table 1
----------------------------------------------------------------------------------------------------------------
Civil monetary
penalty (CMP) 2020 CMP amount in 2021 Inflation CMP amount as of 7/
Citation amount established effect prior to adjustment 15/2021
by law this rulemaking multiplier
----------------------------------------------------------------------------------------------------------------
Rivers and Harbors Act of 1922 $2,500 per $5,834 per 1.01182 $5,903 per
(33 U.S.C. 555). violation. violation. violation.
CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $22,321 per 1.01182 $22,585 per
violation, with a violation, with a violation, with a
maximum of $25,000. maximum of $55,801. maximum of
$56,461.
CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $55,801 1.01182 Maximum of $56,461
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 $24,441 1.01182 Maximum of $24,730
33 U.S.C. 2104(e). per violation. per violation. per violation.
----------------------------------------------------------------------------------------------------------------
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 2020 OMB guidance issued to Federal
agencies on the implementation of the 2021 annual adjustment, the
phrase ``notwithstanding section 553'' means that ``the public
procedure the APA generally requires (i.e., 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. This rule 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 apply prospectively to penalty
assessments beginning on the effective date of this final rule.
Regulatory Procedures
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.
Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
This rule is not designated a ``significant regulatory action''
under Executive Order 12866 and OMB determined this rule to not be
significant. 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.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
The Department of Defense determined that provisions of the
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter
35, and its implementing regulations, 5 CFR part 1320, do not apply to
this rule because there are no new or revised recordkeeping or
reporting requirements. 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.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has Federalism implications. This final rule will not
have a substantial effect on State and local governments.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
Because notice of proposed rulemaking and opportunity for comment
are not required pursuant to 5 U.S.C. 553, or any other law, the
analytical requirements of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.) are inapplicable. Therefore, a regulatory flexibility
analysis is not required and has not been prepared.
[[Page 37248]]
Unfunded Mandates Reform Act (2 U.S.C. Chapter 25)
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule the mandates of which require spending in any
year of $100 million in 1995 dollars, updated annually for inflation.
In 2016, that threshold is approximately $146 million. This rule will
not mandate any requirements for State, local, or tribal governments,
nor will it affect private sector costs.
Public Law 104-113, ``National Technology Transfer and Advancement
Act'' (15 U.S.C. Chapter 7)
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, (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, ``Protection of Children From Environmental
Health Risks and Safety Risks''
Executive Order 13045 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, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 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. Therefore,
Executive Order 13175 does not apply to this rule.
Public Law 104-121, ``Congressional Review Act'', (5 U.S.C Chapter 8)
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, ``Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations''
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
merely adjusts civil penalties to account for inflation, and therefore,
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.
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use''
This rule is not a ``significant energy action'' as defined in
Executive Order 13211 because it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy.
List of Subjects
33 CFR Part 207
Navigation (water), Penalties, Reporting and recordkeeping
requirements, and Waterways.
33 CFR Part 326
Administrative practice and procedure, Intergovernmental relations,
Investigations, Law enforcement, Navigation (Water), Water pollution
control, Waterways.
Dated: July 6, 2021.
Approved by:
Jaime A. Pinkham,
Acting Assistant Secretary of the Army (Civil Works).
Title 33--Navigation and Navigable Waters
For the reasons set out in the preamble, title 33, chapter II of
the Code of Federal Regulations is amended as follows:
PART 207--NAVIGATION REGULATIONS
0
1. The authority citation for part 207 is revised to read as follows:
Authority: 33 U.S.C. 1; 33 U.S.C. 555; 28 U.S.C. 2461 note.
0
2. Amend Sec. 207.800 by revising paragraph (c)(2) to read as follows:
Sec. 207.800 Collection of navigation statistics.
* * * * *
(c) * * *
(2) In addition, any person or entity that fails to provide timely,
accurate, and complete statements or reports required to be submitted
by the regulation in this section may also be assessed a civil penalty
of up to $5,903 per violation under 33 U.S.C. 555, as amended.
* * * * *
[[Page 37249]]
PART 326--ENFORCEMENT
0
3. 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
4. Amend Sec. 326.6 by revising paragraph (a)(1) to read as follows:
Sec. 326.6 Class I administrative penalties.
(a) * * *
(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 $22,585 per violation,
except that the maximum amount of any Class I civil penalty shall not
exceed $56,461. Under Section 404(s)(4) of the Clean Water Act,
judicially-imposed civil penalties may not exceed $56,461 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 $24,730 for each violation.
Table 1 to Paragraph (a)(1)
----------------------------------------------------------------------------------------------------------------
Environmental statute and U.S. code Statutory civil monetary penalty amount for violations that occurred after
citation November 2, 2015, and are assessed on or after 7/15/2021
----------------------------------------------------------------------------------------------------------------
Clean Water Act (CWA), Section $22,585 per violation, with a maximum of $56,461.
309(g)(2)(A), 33 U.S.C.
1319(g)(2)(A).
CWA, Section 404(s)(4), 33 U.S.C. Maximum of $56,461 per day for each violation.
1344(s)(4).
National Fishing Enhancement Act, Maximum of $24,730 per violation.
Section 205(e), 33 U.S.C. 2104(e).
----------------------------------------------------------------------------------------------------------------
* * * * *
[FR Doc. 2021-14716 Filed 7-14-21; 8:45 am]
BILLING CODE 3720-58-P
