[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Rules and Regulations]
[Pages 5722-5726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01659]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 326

RIN 0710-AA66


Civil Monetary Penalty Inflation Adjustment

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

ACTION: Direct final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is amending its 
regulations to adjust its Class I civil penalties under the Clean Water 
Act and the National Fishing Enhancement Act to account for inflation. 
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 
penalties to account for inflation since 2004, we are making a second 
round of penalty adjustments to account for inflation. Using the 
adjustment criteria provided in the statute, the Class I civil penalty 
under the Clean Water Act remains at $11,000 per violation, but the 
maximum civil penalty increases to $32,500. Under the National Fishing 
Enhancement Act, the Class I civil penalty remains at $11,000 per 
violation. Increasing the maximum amount of the Class I civil penalty 
under the Clean Water Act to account for inflation will maintain the 
deterrent effects of the penalty.

DATES: This rule is effective March 29, 2013 without further notice, 
unless the Corps receives adverse comment by February 27, 2013. If we 
receive such adverse comment, we will publish a timely withdrawal in 
the Federal Register informing the public that this rule will not take 
effect.

ADDRESSES: You may submit comments, identified by docket number COE-
2011-0024, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: [email protected]. Include the docket number, 
COE-2011-0024, in the subject line of the message.

[[Page 5723]]

    Mail: U.S. Army Corps of Engineers, ATTN: CECW-CO (David Olson), 
441 G Street NW., Washington, DC 20314-1000.
    Hand Delivery/Courier: Due to security requirements, we cannot 
receive comments by hand delivery or courier.
    Instructions: Direct your comments to docket number COE-2011-0024. 
All comments received will be included in the public docket without 
change and may be made available on-line at http://www.regulations.gov, 
including any personal information provided, unless the commenter 
indicates that the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI, or otherwise protected, through regulations.gov or 
email. The regulations.gov Web site is an anonymous access system, 
which means we will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
directly to the Corps without going through regulations.gov, your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, we recommend that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If we cannot read your 
comment because of technical difficulties and cannot contact you for 
clarification, we may not be able to consider your comment. Electronic 
comments should avoid the use of any special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: For access to the docket to read background documents or 
comments received, go to www.regulations.gov. All documents in the 
docket are listed. Although listed in the index, some information is 
not publicly available, such as CBI 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.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or by 
email at [email protected] or access the access the U.S. 
Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx 
.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This rule is an inflation adjustment for civil penalties 
administered by the U.S. Army Corps of Engineers. It is necessary to 
comply with the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended (28 U.S.C. 2461 note) (FCPIAA). The FCPIAA requires 
Federal agencies to periodically increase their civil penalties to 
account for inflation to maintain the deterrent effects of those 
penalties. On August 3, 2011, the Deputy Secretary of Defense delegated 
to the Secretary of the Army the authority and responsibility to adjust 
penalties administered by the U.S. Army Corps of Engineers. On August 
29, 2011, the Secretary of the Army delegated that authority and 
responsibility to the Assistant Secretary of the Army for Civil Works.
    The maximum Class I civil penalty for violations under Section 
309(g) of the Clean Water Act would increase from $27,500 to $32,500. 
Because of the rounding rules of the FCPIAA, the minimum penalty would 
remain unchanged at $11,000 per violation. The Class I civil penalty 
for violations of Section 205(e) of the National Fishing Enhancement 
Act would also remain at $11,000 per violation.
    This rule would not result in any additional costs to implement the 
Corps Regulatory Program, because the Class I civil penalties have been 
in effect since 1990. This rule merely adjusts those Class I civil 
penalties to account for inflation, as required by the FCPIAA. This 
rule will result in additional costs to members of the regulated public 
who do not comply with their Clean Water Act section 404 permits and a 
receive a final Class I civil administrative penalty order from a 
District Engineer, because it would increase the maximum penalty amount 
from $27,500 to $32,500. The benefit of this rule would be to increase 
the maximum Class I civil penalty amount to account for inflation and 
maintain the deterrent provided by that Class I civil penalty.

Background

    Pursuant to Section 4 of the Federal Civil Penalties Inflation 
Adjustment Act of 1990, 28 U.S.C. 2461 note, as amended, each Federal 
agency is required to issue regulations adjusting for inflation the 
civil monetary penalties that can be imposed pursuant to such agency's 
statutory authorities. The Corps initial adjustment to each civil 
monetary penalty under Section 309(g) of the Clean Water Act and 
Section 205(e) of the National Fishing Enhancement Act was published in 
the June 25, 2004, issue of the Federal Register (69 FR 35515) and 
became effective on July 26, 2004. The initial adjustment was based on 
the 10 percent increase provided by Section 6 of the Federal Civil 
Penalties Inflation Adjustment Act.
    The FCPIAA requires subsequent adjustments to be made at least once 
every four years following the previous adjustment. The FCPIAA requires 
that the adjustment reflect the percentage increase in the Consumer 
Price Index (CPI) between June of the calendar year preceding the 
adjustment and June of the calendar year in which the amount was last 
set or adjusted. As the initial adjustment was made and published on 
June 25, 2004, the inflation adjustment was calculated by comparing the 
CPI for June 2004 (189.700) with the CPI for June 2012 (229.478), 
resulting in an inflation adjustment of 21.0 percent.
    The amount of each civil monetary penalty was multiplied by 21.0 
percent (the inflation adjustment) and the resulting increase amounts 
were rounded in accordance with the rounding requirements of the 
FCPIAA. As a result of the rounding rules in the FCPIAA, the Class I 
civil penalty for violations under Section 309(g) of the Clean Water 
Act would remain at $11,000 per violation. The maximum penalty would 
increase to $32,500. The Class I civil penalty for violations under 
Section 205(e) of the National Fishing Enhancement Act would remain at 
$11,000 per violation, because of the rounding rules in the statute.

Administrative Requirements

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, regarding plain language, this preamble is written using 
plain language. The use of ``we'' in this notice refers to the Corps 
and the use of ``you'' refers to the reader. We have also used the 
active voice, short sentences, and common everyday terms except for 
necessary technical terms.

Paperwork Reduction Act

    This action does not impose any new information collection burden 
under the provisions of the Paperwork Production Act, 44 U.S.C. 3501 et 
seq. This 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.

[[Page 5724]]

    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).

Executive Order 12866 and Executive Order 13563, ``Improving Regulation 
and Regulatory Review''

    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 
these Executive Orders.
    Pursuant to the terms of Executive Order 12866, we have determined 
that this rule is not a ``significant regulatory action'' because it 
does not meet any of these four criteria. This rule adjusts the maximum 
Class I civil penalty amount for violations of permit conditions and 
limitations for activities that involve discharges of dredged or fill 
material into waters of the United States.

Executive Order 13132

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the Corps to develop an accountable process to 
ensure ``meaningful and timely input by State and local officials in 
the development of regulatory policies that have Federalism 
implications.'' The phrase ``policies that have Federalism 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    This rule does not have Federalism implications. We do not believe 
that adjusting our 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. 
This rule does not impose new substantive requirements. In addition, 
this rule 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 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 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.
    After considering the economic impacts of this rule on small 
entities, we believe that this action will not have a significant 
economic impact on a substantial number of small entities. The 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.

[[Page 5725]]

    We have determined that this 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. This rule adjusts civil penalties in accordance 
with the requirements of the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended. This 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, this rule is not subject to the requirements of Sections 202 
and 205 of the UMRA. For the same reasons, we have determined that this 
rule contains no regulatory requirements that might significantly or 
uniquely affect small governments. Therefore, this 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 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 
note) directs us to use voluntary consensus standards in our regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs us to provide 
Congress, through OMB, explanations when we decide not to use available 
and applicable voluntary consensus standards.
    This rule does not involve technical standards. Therefore, we did 
not consider the use of any voluntary consensus standards.

Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997), applies 
to any rule that: (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that we have reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, we must evaluate the environmental health or 
safety effects of the rule on children, and explain why the regulation 
is preferable to other potentially effective and reasonably feasible 
alternatives.
    This rule is not subject to this Executive Order because it is not 
economically significant as defined in Executive Order 12866. In 
addition, it does not concern an environmental or safety risk that we 
have reason to believe may have a disproportionate effect on children.

Executive Order 13175

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires agencies to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' The phrase 
``policies that have tribal implications'' is defined in the Executive 
Order to include regulations that have ``substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and the Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''
    This rule does not have tribal implications. 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. This rule adjusts the civil penalties in 
33 CFR 326.6 to account for inflation, as required by the Federal Civil 
Penalties Inflation 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 rule.

Environmental Documentation

    The Corps prepares appropriate environmental documentation, 
including Environmental Impact Statements when required, for all permit 
decisions. Therefore, environmental documentation under the National 
Environmental Policy Act is not required for this rule. This rule only 
revises our Class I civil penalties to account for inflation, as 
required by the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended. Appropriate environmental documentation has been, or 
will be, prepared for each permit action that is subject to the Class I 
administrative penalty process.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996, 
generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. We will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities because of their race, color, or national origin.
    This rule is not expected to negatively impact any community, and 
therefore is not expected to cause any disproportionately high and 
adverse impacts to minority or low-income communities. This rule 
relates solely to the adjustments to 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

    This 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. This rule 
relates only 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

[[Page 5726]]

inflation. This rule is consistent with current agency practice, does 
not impose new substantive requirements, and therefore will not have a 
significant adverse effect on the supply, distribution, or use of 
energy.

List of Subjects in 33 CFR Part 326

    Administrative practice and procedure, Intergovernmental relations, 
Investigations, Law enforcement, Navigation (water), Water pollution 
control, Waterways.

    Dated: January 22, 2013.

    Approved by: Jo-Ellen Darcy,
Assistant Secretary of the Army (Civil Works).

    For the reasons set forth in the preamble, the Corps amends 33 CFR 
part 326 as follows:

PART 326--ENFORCEMENT

0
1. The authority citation for 33 CFR part 326 continues to read as 
follows:

    Authority:  33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 
1413; 33 U.S.C. 2104; 33 U.S.C. 1319; 28 U.S.C. 2461 note.


0
2. Amend Sec.  326.6 by revising paragraph (a)(1) to read as follows:


Sec.  326.6  Class I administrative penalties.

    (a) Introduction. (1) This section sets forth procedures for 
initiation and administration of Class I administrative penalty orders 
under Section 309(g) of the Clean Water Act, 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 $32,500. 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. 2013-01659 Filed 1-25-13; 8:45 am]
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