[Federal Register Volume 68, Number 161 (Wednesday, August 20, 2003)]
[Proposed Rules]
[Pages 50108-50111]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-21331]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 326

RIN 0710-AA54


Civil Monetary Penalty Inflation Adjustment Rule

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Proposed rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is proposing to amend 
its regulations to adjust its Class I civil penalties under the Clean 
Water Act and the National Fishing Enhancement Act. The adjustment of 
civil penalties to account for inflation is required by the Federal 
Civil Penalties Inflation Adjustment Act of 1990, as amended. Since we 
have not made any adjustments to our Class I civil penalties to account 
for inflation since 1989, we are proposing to make the initial 10 
percent increase under this Act. The proposed adjusted Class I civil 
penalty under the Clean Water Act will not exceed $11,000 per 
violation, with a maximum civil penalty amount of $27,500. Under the 
National Fishing Enhancement Act, the proposed adjusted Class I civil 
penalty will not exceed $11,000 per violation. Increasing the maximum 
amounts of the Class I civil penalties to account for inflation will 
maintain the deterrent effects of those penalties.

DATES: Submit comments on or before October 6, 2003.

ADDRESSES: You may submit comments electronically, by mail, or through 
hand delivery or courier. Send electronic comments via e-mail to 
[email protected]. Electronic comments should be submitted in ASCII 
format, to ensure that those comments can be read. Please avoid the use 
of special characters or encryption when providing electronic comments. 
Mail comments to HQUSACE, ATTN: CECW-OR, 441 ``G'' Street, NW., 
Washington, DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4598 or 
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

    On December 8, 1989, (54 FR 50709) the Corps issued final 
regulations at 33 CFR 326.6 for procedures for the initiation and 
administration of Class I administrative penalty orders under section 
309(g) of the Clean Water Act and section 205(e) of the National 
Fishing Enhancement Act. Under section 309(g) of the Clean Water Act, 
Class I civil penalties can be assessed for violations of the 
conditions and limitations of permits issued under section 404 of the 
Clean Water Act. Under section 205(e) of the National Fishing 
Enhancement Act, Class I civil penalties can be assessed for violations 
of permits issued section 10 of the Rivers and Harbors Act of 1899 and/
or section 404 of the Clean Water Act for the construction and 
management of artificial reefs. Our current regulations at 33 CFR 
326.6(a)(1) reflect the Class I civil penalty amounts stated in those 
statutes.
    As stated in 33 CFR 326.6(a)(1), Class I civil penalties under 
section 309(g)(2)(A) of the Clean Water Act cannot exceed $10,000 per 
violation, with a maximum Class I civil penalty of $25,000. In that 
subsection, the Class I civil penalty for a violation of a permit 
issued in accordance with section 205 of the National Fishing 
Enhancement Act cannot exceed $10,000 for each violation.

[[Page 50109]]

    According to section 4 of the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended, each Federal agency is required to 
adjust for inflation the maximum civil monetary penalties that can be 
imposed pursuant to that agency's statutory authorities.
    Under section 6 of the Federal Civil Penalties Inflation Adjustment 
Act of 1990, as amended, the initial adjustment is limited to 10 
percent of the civil penalty amount. Since we have not made any 
inflation adjustments for the Class I civil penalties since 33 CFR 
326.6 was promulgated in 1989, we are limited to a 10 percent increase 
for these civil penalties. Therefore, we are proposing to increase the 
Class I civil penalty for violations of the conditions and limitations 
of Clean Water Act section 404 permits to $11,000 per violation, with a 
$27,500 maximum penalty. We are also proposing to increase the Class I 
civil penalty for violations of permits for the construction and 
management of artificial reefs under section 205 of the National 
Fishing Enhancement Act of 1984 to $11,000 per violation.

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 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 action does not impose any new information collection burden 
under the provisions of the Paperwork Production Act, 44 U.S.C. 3501 et 
seq. The proposed rule adjusts our civil penalty amounts to comply with 
the requirements of the Federal Civil Penalties Inflation Adjustment 
Act of 1990, as amended. Therefore, this action is not subject to the 
Paperwork Reduction Act.
    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, which expires December 31, 2004).

Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Corps must determine whether the regulatory action is ``significant'' 
and therefore subject to review by the Office of Management and Budget 
(OMB) and the requirements of the Executive Order. The Executive Order 
defines ``significant regulatory action'' as one that is likely to 
result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of Executive Order 12866, we have determined 
that the proposed rule is not a ``significant regulatory action'' 
because it does not meet any of these four criteria. The proposed rule 
adjusts the Class I civil penalty amounts for violations of permit 
conditions and limitations for activities that involve discharges of 
dredged or fill material into waters of the United States and/or the 
construction and management of artificial reefs in navigable waters.

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.''
    The proposed rule does not have Federalism implications. We do not 
believe that adjusting the Class I civil penalties to account for 
inflation will have 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. The proposed rule does not impose new substantive 
requirements. In addition, the proposed change will not impose any 
additional substantive obligations on State or local governments since 
it is applicable only to permittees who violate the conditions and 
limitations of certain Corps permits. Therefore, Executive Order 13132 
does not apply to this proposed 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.
    For purposes of assessing the impacts of this proposed rule on 
small entities, a small entity is defined as : (1) A small business 
based on Small Business Administration size standards; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district, or special district with a population of less than 
50,000; or (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.

[[Page 50110]]

    After considering the economic impacts of the proposed rule on 
small entities, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. Currently, 
the Corps regulations at 33 CFR 326.6 set the Class I civil penalties 
under section 309(g)(2)(A) at no more than $10,000 per violation, with 
a maximum of $25,000. The current Class I civil penalties under section 
205 of the National Fishing Enhancement Act can be up to $10,000 per 
violation. The proposed rule increases those Class I civil penalties by 
10 percent, in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended. The proposed rule is consistent 
with current agency practice, does not impose new substantive 
requirements, and therefore would not have a significant economic 
impact on a substantial number of small entities.

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 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 the proposed rule 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. Currently, in 33 CFR 326.6, the Class I 
civil penalties under section 309(g)(2)(A) of the Clean Water Act may 
not exceed $10,000 per violation, with a $25,000 maximum. A Class I 
civil penalty under section 205(e) of the National Fishing Enhancement 
Act may not exceed $10,000 for each violation. The proposed rule 
adjusts those civil penalties, through 10 percent increases, to account 
for inflation, as required by the Federal Civil Penalties Adjustment 
Act of 1990, as amended. The proposed rule is consistent with current 
agency practice, 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, the proposed rule is not subject to the requirements of 
sections 202 and 205 of the UMRA. For the same reasons, we have 
determined that the proposed rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. 
Therefore, the proposed rule is not subject to the requirements of 
section 203 of UMRA.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (the NTTAA), Pub. L. 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.
    The proposed 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 proposed rule on children, and explain why the 
regulation is preferable to other potentially effective and reasonably 
feasible alternatives.
    The proposed 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.''
    The proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, 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. Currently, in 33 CFR 326.6, the Class I 
civil penalties under section 309(g)(2)(A) of the Clean Water Act may 
not exceed $10,000 per violation, with a $25,000 maximum for any Class 
I civil penalty. In that subsection of the Corps regulations, a civil 
penalty under section 205(e) of the National Fishing Enhancement Act 
may not exceed $10,000 for each violation. The proposed rule adjusts 
those civil

[[Page 50111]]

penalties through a 10 percent increase to account for inflation, as 
required by the Federal Civil Penalties Adjustment Act of 1990, as 
amended. It is generally consistent with current agency practice and 
does not impose new substantive requirements. Therefore, Executive 
Order 13175 does not apply to this proposed 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 proposed rule. The 
proposed rule only revises our Class I civil penalties to account for 
inflation, as required by the Federal Civil Penalties Adjustment Act of 
1990, as amended. Appropriate environmental documentation has been, or 
will be, prepared for each permit action that is subjected to the Class 
I administrative penalty process.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added 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. The proposed 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.
    The proposed 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. The proposed rule relates solely to the adjustments to 
Class I civil penalties under section 309(g)(2)(A) of the Clean Water 
Act and section 205(e) of the National Fishing Enhancement Act to 
account for inflation.

Executive Order 13211

    The proposed rule is not a ``significant energy action'' as defined 
in Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, 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. The 
proposed rule relates solely to the adjustments to Class I civil 
penalties under section 309(g)(2)(A) of the Clean Water Act and section 
205(e) of the National Fishing Enhancement Act to account for 
inflation. The proposed 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: August 11, 2003.
Robert H. Griffin,
Major General, U.S. Army, Deputy Commander.
    For the reasons set forth in the preamble, the Corps is proposing 
to amend 33 CFR 326.6(a)(1) as follows:

PART 326--Enforcement

    1. The authority citation for 33 CFR part 326 is revised 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 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, 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 $11,000 per 
violation, except that the maximum amount of any Class I civil penalty 
shall not exceed $27,500. Under section 205(e) of the National Fishing 
Enhancement Act, penalties for violations of permits issued in 
accordance with that Act shall not exceed $11,000 for each violation.
* * * * *
[FR Doc. 03-21331 Filed 8-19-03; 8:45 am]
BILLING CODE 3710-92-U