Civil Monetary Penalty Inflation Adjustment Rule, 62987-62990 [2022-22480]
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
advise the Office of Self-Regulation
within 10 business days of any changes
in circumstances that are material to the
approval criteria in § 518.5 and may
reasonably cause the Commission to
review and revoke the tribe’s certificate
of self-regulation. Failure to do so is
grounds for revocation of a certificate of
self-regulation. Such circumstances may
include, but are not limited to, a change
of primary regulatory official; financial
instability; or any other factors that are
material to the decision to grant a
certificate of self-regulation.
■ 4. Revise §§ 518.13 and 518.14 to read
as follows:
§ 518.13 When may the Commission
revoke a certificate of self-regulation?
If the Office of Self-Regulation
determines that the tribe no longer
meets or did not comply with the
eligibility criteria of § 518.3, the
approval criteria of § 518.5, the
requirements of § 518.10, or the
requirements of § 518.11, the Office of
Self-Regulation shall prepare a written
recommendation to the Commission and
deliver a copy of the recommendation to
the tribe. The Office of Self-Regulation’s
recommendation shall state the reasons
for the recommendation and shall
advice the tribe of its right to a hearing
under part 584 of this chapter or right
to appeal under part 585 of this chapter.
The Commission may, after an
opportunity for a hearing, revoke a
certificate of self-regulation by a
majority vote of its members if it
determines that the tribe no longer
meets the eligibility criteria of § 518.3,
the approval criteria of § 518.5, the
requirements of § 518.10 or the
requirements of § 518.11.
§ 518.14 May a tribe request a hearing on
the Commission’s proposal to revoke its
certificate of self-regulation?
Yes. A tribe may request a hearing
regarding the Office of Self-Regulation’s
recommendation that the Commission
revoke a certificate of self-regulation.
Such a request shall be filed with the
Commission pursuant to part 584 of this
chapter. Failure to request a hearing
within the time provided by part 584 of
this chapter shall constitute a waiver of
the right to a hearing. At any hearing
where the Commission considers
revoking a certificate, the Office of SelfRegulation bears the burden of proof to
support its recommendation by a
preponderance of the evidence. The
decision to revoke a certificate is a final
agency action and is appealable to
Federal District Court pursuant to 25
U.S.C. 2714.
Dated: September 27, 2022.
E. Sequoyah Simermeyer,
Chairman.
Jeannie Hovland,
Vice Chair.
[FR Doc. 2022–21948 Filed 10–17–22; 8:45 am]
BILLING CODE 7565–01–P
DEPARTMENT OF DEFENSE
Department of the Army, Corps of
Engineers
33 CFR Parts 207 and 326
RIN 0710–AB13
Civil Monetary Penalty Inflation
Adjustment Rule
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 Appropriation 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
October 18, 2022.
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 Mr. Matt Wilson 202–
761–5856 or by email at
SUMMARY:
62987
Matthew.S.Wilson@usace.army.mil or
access the U.S. Army Corps of Engineers
Regulatory Home Page at https://
www.usace.army.mil/Missions/CivilWorks/Regulatory-Program-andPermits/.
The
Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law
101–410, codified at 28 U.S.C. 2461,
note, as amended, requires agencies to
annually adjust the level of CMP for
inflation to improve their effectiveness
and maintain their deterrent effect, as
required by the Federal Civil Penalties
Adjustment Act Improvements Act of
2015, Public Law 114–74, sec. 701,
November 2, 2015 (‘‘Inflation
Adjustment Act’’).
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 2022 annual
inflation adjustment based on the
guidance provided by the Office of
Management and Budget (OMB) (see
December 15, 2021, Memorandum for
the Heads of Executive Departments and
Agencies, Subject: Implementation of
Penalty Inflation Adjustments for 2022,
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 2022, based on the
Consumer Price Index for All Urban
Consumers (CPI–U) for the month of
October 2021, not seasonally adjusted,
which is 1.06222. 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 2022,
agencies multiply each applicable
penalty by the multiplier, 1.06222, and
round to the nearest dollar. The
multiplier should be applied to the most
recent penalty amount, i.e., the one that
includes the 2021 annual inflation
adjustment.
SUPPLEMENTARY INFORMATION:
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TABLE 1
2022
Inflation
adjustment
multiplier
Citation
Civil Monetary Penalty (CMP)
amount established by law
2021 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 ...............
$5,903 per violation ...............
1.06222
$6,270 per violation.
$10,000 per violation, with a
maximum of $25,000.
Maximum of $25,000 per day
for each violation.
$22,585 per violation, with a
maximum of $56,461.
Maximum of $56,461 per day
for each violation.
1.06222
$23,990 per violation, with a
maximum of $59,974.
Maximum of $59,974 per day
for each violation.
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1.06222
18OCR1
CMP Amount as of October
18, 2022
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
TABLE 1—Continued
Citation
National Fishing Enhancement Act, 33 U.S.C.
2104(e).
Civil Monetary Penalty (CMP)
amount established by law
2021 CMP amount in effect
prior to this rulemaking
Maximum of $10,000 per violation.
Maximum of $24,730 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),
many 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 2021
OMB guidance issued to Federal
agencies on the implementation of the
2022 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 or a delay in effective
date. 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
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Plain Language
In compliance with the principles in
the President’s Memorandum of June 1,
1998, regarding plain language, this
preamble is written using plain
language. The use of ‘‘we’’ in this notice
refers to the Corps and the use of ‘‘you’’
refers to the reader. We have also used
the active voice, short sentences, and
common everyday terms except for
necessary technical terms.
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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 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)
The Assistant Secretary of the Army
(Civil Works) certified that this rule is
not subject to the Regulatory Flexibility
Act (5 U.S.C. 601, et seq.) because it
would not, if promulgated, have a
significant economic impact on a
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2022
Inflation
adjustment
multiplier
1.06222
CMP Amount as of October
18, 2022
Maximum of $26,269 per violation.
substantial number of small entities.
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 are inapplicable.
Therefore, the Regulatory Flexibility
Act, as amended, does not require the
Corps of Engineers to prepare a
regulatory flexibility analysis.
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. 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)
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
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.
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Public Law 104–121, ‘‘Congressional
Review Act,’’ (5 U.S.C. Chapter 8)
16:09 Oct 17, 2022
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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
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).
VerDate Sep<11>2014
Executive Order 12898, ‘‘Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations’’
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, and Waterways.
Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
For the reasons set out in the
preamble, title 33, chapter II, part 207 of
the Code of Federal Regulations is
amended as follows:
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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 $6,270
per violation under 33 U.S.C. 555, as
amended.
*
*
*
*
*
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 $23,990 per violation, except
that the maximum amount of any Class
I civil penalty shall not exceed $59,974.
Under Section 404(s)(4) of the Clean
Water Act, judicially-imposed civil
penalties may not exceed $59,974 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 $26,269 for each violation.
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Federal Register / Vol. 87, No. 200 / Tuesday, October 18, 2022 / Rules and Regulations
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 October 18,
2022
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. 2022–22480 Filed 10–17–22; 8:45 am]
BILLING CODE 3720–58–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R04–OAR–2020–0187; FRL–10244–
01–R4]
Air Plan Approval; North Carolina;
Revisions to Exclusionary Rules and
Permit Exemptions
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is approving portions of
revisions to the State Implementation
Plan (SIP) submitted by the State of
North Carolina, through the North
Carolina Department of Environmental
Quality, Division of Air Quality (DAQ),
on September 18, 2009, and July 10,
2019. These revisions modify two
different sections of the North Carolina
SIP which (1) exclude certain categories
of facilities from title V permitting
requirements by imposing limitations
on their potential emissions (Section 2Q
.0800, ‘‘Exclusionary Rules’’), and (2)
exclude certain categories of facilities
from the SIP’s permitting requirements
by imposing limitations on their
potential emissions (Section 2Q .0900,
‘‘Permit Exemptions’’). EPA is
approving these revisions pursuant to
the Clean Air Act (CAA or Act).
DATES: This rule is effective November
17, 2022.
ADDRESSES: EPA has established a
docket for this action under Docket
Identification No. EPA–R04–OAR–
2020–0187. All documents in the docket
are listed on the www.regulations.gov
website. Although listed in the index,
some information may not be publicly
available, i.e., Confidential Business
Information or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the internet and will be publicly
available only in hard copy form.
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SUMMARY:
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$23,990 per violation, with a maximum of $59,974.
Maximum of $59,974 per day for each violation.
Maximum of $26,269 per violation.
Publicly available docket materials can
either be retrieved electronically via
www.regulations.gov or in hard copy at
the Air Regulatory Management Section,
Air Planning and Implementation
Branch, Air and Radiation Division,
U.S. Environmental Protection Agency,
Region 4, 61 Forsyth Street SW, Atlanta,
Georgia 30303–8960. EPA requests that
if at all possible, you contact the person
listed in the FOR FURTHER INFORMATION
CONTACT section to schedule your
inspection. The Regional Office’s
official hours of business are Monday
through Friday 8:30 a.m. to 4:30 p.m.,
excluding Federal holidays.
FOR FURTHER INFORMATION CONTACT:
Pearlene Williams, Air Regulatory
Management Section, Air Planning and
Implementation Branch, Air and
Radiation Division, U.S. Environmental
Protection Agency, Region 4, 61 Forsyth
Street SW, Atlanta, Georgia 30303–8960.
Ms. Williams can be reached via
telephone at (404) 562–9144 or via
electronic mail at williams.pearlene@
epa.gov.
SUPPLEMENTARY INFORMATION:
Elevators; 2Q .0806, Cotton Gins; and
2Q .0807, Emergency Generators. In
addition, EPA proposed to remove from
the SIP Rule 2Q .0809, Concrete Batch
Plants.
EPA also proposed revisions to the
following rules under Section 2Q .0900
(‘‘Permit Exemptions’’), which defines
the categories of facilities that are
exempt from the State’s SIP permitting
requirements for non-title V facilities by
limiting their potential emissions: 2Q
.0901, Purpose and Scope, and 2Q
.0902, Temporary Crushers.3 4 The
January 19, 2021, NPRM provides
additional detail regarding the
background and rationale for EPA’s
action. Comments were due on or before
February 18, 2021.
I. Background
In a notice of proposed rulemaking
(NPRM) published on January 19, 2021
(86 FR 5091), EPA proposed to approve
changes to several provisions under 15A
North Carolina Administrative Code
(NCAC) Subchapter 2Q, Air Quality
Permit Procedures,1 of the North
Carolina SIP. EPA proposed revisions to
the following rules under Section 2Q
.0800 (‘‘Exclusionary Rules’’), which
defines the categories of facilities that
are not subject to title V permitting
requirements due to limitations on their
potential emissions: 2Q .0801, Purpose
and Scope; 2Q .0802, Gasoline Service
Stations and Dispensing Facilities; 2 2Q
.0803, Coating, Solvent Cleaning,
Graphic Arts Operations; 2Q .0804, Dry
Cleaning Facilities; 2Q .0805, Grain
II. Response to Comments
EPA received comments on the
January 19, 2021, NPRM, which are
included in the docket for this
rulemaking. The comments arrived in a
letter dated February 18, 2021, and
originate from one commentor, Air Law
for All. The Commenter also provided
supplemental documentation to support
its comments. The comments are
generally opposed to the revisions to the
permit exemption provisions of Rule 2Q
.0902, Temporary Crushers, which
exempts temporary rock crushers that
meet certain criteria from the
requirement to obtain stationary source
construction and operating permits
under Section 2Q .0300 of the SIP. EPA
received no comments on the changes to
rules under Section 2Q .0800 or other
rule revisions proposed for approval in
the NPRM. Below, EPA summarizes and
responds to the comments received and
briefly describes the temporary crushers
covered by Rule 2Q .0902.
A crusher is a machine designed to
crush rocks into sand, gravel, or smaller
crushed rocks. The term ‘‘temporary
crusher’’ means a crusher that will be
operated at any one site or facility for
1 In the table of North Carolina regulations
federally approved into the SIP at 40 CFR
52.1770(c), 15A NCAC 2Q is referred to as
‘‘Subchapter 2Q Air Quality Permits.’’
2 This amendment changes the title of Rule 2Q
.0802 in 40 CFR 52.1770(c) from ‘‘Gasoline
Servicing Stations and Dispensing Facilities’’ to
‘‘Gasoline Service Stations and Dispensing
Facilities.’’
3 In the September 18, 2009, submittal, North
Carolina changes the title of Rule 2Q .0902 from
‘‘Portable Crushers’’ to ‘‘Temporary Crushers.’’
4 DAQ supplemented the September 18, 2009,
submittal in a letter dated June 7, 2019, which
includes the correct redline/strikeout of the
regulatory changes and final regulations that
became state effective on January 1, 2009. This
letter is available in the docket for this rulemaking.
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]]>Agencies
[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62987-62990]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-22480]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, Corps of Engineers
33 CFR Parts 207 and 326
RIN 0710-AB13
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 Appropriation 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 October 18, 2022.
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 Mr. Matt Wilson 202-761-5856 or by email at
[email protected] or access the U.S. Army Corps of
Engineers Regulatory Home Page at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law 101-410, codified at 28 U.S.C. 2461,
note, as amended, requires agencies to annually adjust the level of CMP
for inflation to improve their effectiveness and maintain their
deterrent effect, as required by the Federal Civil Penalties Adjustment
Act Improvements Act of 2015, Public Law 114-74, sec. 701, November 2,
2015 (``Inflation Adjustment Act'').
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 2022 annual inflation adjustment based on the guidance provided by
the Office of Management and Budget (OMB) (see December 15, 2021,
Memorandum for the Heads of Executive Departments and Agencies,
Subject: Implementation of Penalty Inflation Adjustments for 2022,
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 2022, based on the Consumer Price
Index for All Urban Consumers (CPI-U) for the month of October 2021,
not seasonally adjusted, which is 1.06222. 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 2022, agencies multiply
each applicable penalty by the multiplier, 1.06222, and round to the
nearest dollar. The multiplier should be applied to the most recent
penalty amount, i.e., the one that includes the 2021 annual inflation
adjustment.
Table 1
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Civil Monetary
Penalty (CMP) 2021 CMP amount in 2022 Inflation CMP Amount as of
Citation amount established effect prior to adjustment October 18, 2022
by law this rulemaking multiplier
----------------------------------------------------------------------------------------------------------------
Rivers and Harbors Act of 1922 $2,500 per $5,903 per 1.06222 $6,270 per
(33 U.S.C. 555). violation. violation. violation.
CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $22,585 per 1.06222 $23,990 per
violation, with a violation, with a violation, with a
maximum of $25,000. maximum of $56,461. maximum of
$59,974.
CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $56,461 1.06222 Maximum of $59,974
per day for each per day for each per day for each
violation. violation. violation.
[[Page 62988]]
National Fishing Enhancement Act, Maximum of $10,000 Maximum of $24,730 1.06222 Maximum of $26,269
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), many 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 2021 OMB guidance issued to Federal
agencies on the implementation of the 2022 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 or a delay in effective date. 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 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)
The Assistant Secretary of the Army (Civil Works) certified that
this rule is not subject to the Regulatory Flexibility Act (5 U.S.C.
601, et seq.) because it would not, if promulgated, have a significant
economic impact on a substantial number of small entities. 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 are inapplicable.
Therefore, the Regulatory Flexibility Act, as amended, does not require
the Corps of Engineers to prepare a regulatory flexibility analysis.
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.
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)
[[Page 62989]]
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, and Waterways.
Approved by:
Michael L. Connor,
Assistant Secretary of the Army (Civil Works).
For the reasons set out in the preamble, title 33, chapter II, part
207 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 $6,270 per violation under 33 U.S.C. 555, as amended.
* * * * *
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 $23,990 per violation,
except that the maximum amount of any Class I civil penalty shall not
exceed $59,974. Under Section 404(s)(4) of the Clean Water Act,
judicially-imposed civil penalties may not exceed $59,974 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 $26,269 for each violation.
[[Page 62990]]
Table 1 to Paragraph(a)(1)
------------------------------------------------------------------------
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 October 18, 2022
------------------------------------------------------------------------
Clean Water Act (CWA), Section $23,990 per violation, with a
309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A). maximum of $59,974.
CWA, Section 404(s)(4), 33 U.S.C. Maximum of $59,974 per day for
1344(s)(4). each violation.
National Fishing Enhancement Act, Maximum of $26,269 per
Section 205(e), 33 U.S.C. 2104(e). violation.
------------------------------------------------------------------------
* * * * *
[FR Doc. 2022-22480 Filed 10-17-22; 8:45 am]
BILLING CODE 3720-58-P
