[Federal Register Volume 84, Number 86 (Friday, May 3, 2019)]
[Rules and Regulations]
[Pages 18979-18982]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09120]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 326

RIN 0710-AA82


Civil Monetary Penalty Inflation Adjustment Rule

AGENCY: U.S. Army Corps of Engineers, Department of Defense.

ACTION: Final rule.

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SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing this final 
rule to adjust its civil monetary penalties (CMP) under the Clean Water 
Act (CWA) and the National Fishing Enhancement Act to account for 
inflation.

DATES: This final rule is effective on May 3, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Brad Guarisco at 202-761-5856 or 
by email at [email protected] or access the U.S. Army 
Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

SUPPLEMENTARY INFORMATION: 

Background 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,

[[Page 18980]]

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, November 2, 2015, 
required agencies to annually adjust the level of CMP for inflation to 
improve their effectiveness and maintain their deterrent effect. The 
Inflation Adjustment Act required that not later than July 1, 2016, and 
not later than January 15 of every year thereafter, the Corps must 
adjust its CMP by the inflation adjustment described in the Inflation 
Adjustment Act. The inflation adjustment is determined by increasing 
the maximum CMP or the range of minimum and maximum CMPs, as 
applicable, for each CMP by the cost-of-living adjustment, rounded to 
the nearest multiple of $1. The cost-of-living adjustment is the 
percentage (if any) for each CMP by which the Consumer Price Index 
(CPI) for the month of October preceding the date of the adjustment, 
exceeds the CPI for the month of October in the previous calendar year.
    The initial catch up adjustments for inflation to the Department of 
Defense's CMPs were published as an interim final rule in the Federal 
Register on May 26, 2016 (81 FR 33389-33391) and became effective on 
that date. The interim final rule was published as a final rule without 
change on September 12, 2016 (81 FR 62629-62631), effective that date.
    Using the adjustment criteria provided in the December 14, 2018, 
Office of Management and Budget Memorandum regarding the 
``Implementation of Penalty Inflation Adjustments for 2019, Pursuant to 
the Federal Civil Penalties Inflation Adjustment Act Improvements Act 
of 2015'', the 2019 annual adjustment for inflation will increase the 
Class I civil penalty under Section 309 of the Clean Water Act to 
$21,934 per violation, and the maximum civil penalty increases to 
$54,833. The judicial civil penalty under Section 404(s) of the Clean 
Water Act increases to $54,833 per day for each violation. Under the 
National Fishing Enhancement Act, the Class I civil penalty increases 
to $24,017 per violation. This rule will apply prospectively to penalty 
assessments beginning on its effective date, May 3, 2019.
    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 2018 OMB guidance issued to Federal 
agencies on the implementation of the 2019 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.
    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 July 26, 
2018, the Secretary of the Army delegated that authority and 
responsibility to the Assistant Secretary of the Army for Civil Works 
who further delegated the authority on October 31, 2018, to the 
Commanding General of the U.S. Army Corps of Engineers. On January 23, 
2019, the Commanding General of the U.S. Army Corps of Engineers 
delegated that authority and responsibility to the Deputy Commanding 
General for Civil and Emergency Operations of the U.S. Army Corps of 
Engineers.
    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 2019 annual inflation adjustment based on the guidance provided by 
OMB (see December 14, 2018, Memorandum for the Heads of Executive 
Departments and Agencies, from Mick Mulvaney, Director, OMB, Subject: 
Implementation of Penalty Inflation Adjustments for 2019, 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 2019, based on the Consumer Price Index for All Urban 
Consumers (CPI-U) for the month of October 2018, not seasonally 
adjusted, which is 1.02522. 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 2019, agencies multiply each applicable 
penalty by the multiplier, 1.02522, and round to the nearest dollar. 
The multiplier should be applied to the most recent penalty amount, 
i.e., the one that includes the 2018 annual inflation adjustment.

                                                     Table 1
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                                      Current civil
                                     monetary penalty    Current CMP amount  2019 Inflation    CMP amount as of
             Citation                  (CMP) amount      in effect prior to    adjustment        May 3, 2019
                                    established by law    this rulemaking      multiplier
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CWA, 33 U.S.C. 1319(g)(2)(A).....  $10,000 per          $21,394 per                 1.02522  $21,934 per
                                    violation, with a    violation, with a                    violation, with a
                                    maximum of $25,000.  maximum of $53,484.                  maximum of
                                                                                              $54,833.
CWA, 33 U.S.C. 1344(s)(4)........  Maximum of $25,000   Maximum of $53,484          1.02522  Maximum of $54,833
                                    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 $23,426          1.02522  Maximum of $24,017
 33 U.S.C. 2104(e).                 per violation.       per violation.                       per violation.
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    This rule will not result in any additional costs to implement the 
Corps Regulatory Program because the Class I civil penalties and 
judicial civil penalties have been in effect since 1990 when the Corps 
first promulgated regulations regarding such penalties (Class I civil 
penalties were first established by statute in 1987). This rule merely 
adjusts the value of current statutory civil penalties to reflect and 
keep pace with the levels originally set by Congress when the statutes 
were enacted, as required by the Inflation Adjustment Act. This rule 
will result in

[[Page 18981]]

additional costs to members of the regulated public who do not comply 
with the terms and conditions of issued Department of the Army permits 
and either receive a final Class I civil administrative penalty order 
from a District Engineer or are subject to a judicial civil penalty. 
The rule increases the minimum and maximum penalty amounts to $21,934 
and $54,833 for Class I civil administrative penalties under the Clean 
Water Act, to a maximum of $54,833 for judicially-imposed civil 
penalties under the Clean Water Act, and to a maximum of $24,017 for 
Class I civil administrative penalties under the National Fishing 
Enhancement Act. The benefit of this rule will be to improve the 
effectiveness of Corps civil monetary penalties by maintaining their 
deterrent effect and promoting compliance with the law.

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

    This rule is not designated a ``significant regulatory action'' 
under Executive Order 12866. Accordingly, OMB has not reviewed this 
rule. Moreover, this final rule makes nondiscretionary adjustments to 
existing civil monetary penalties in accordance with the Inflation 
Adjustment Act and OMB guidance. The Corps, therefore, did not consider 
alternatives and does not have the flexibility to alter the adjustments 
of the civil monetary penalty amounts as provided in this rule.

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 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This rule has been deemed not significant under Executive Order 
12866, ``Regulatory Planning and Review,'' and is, therefore, not 
subject to the requirements of Executive Order 13771, ``Reducing 
Regulation and Controlling Regulatory Costs.''

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.

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

[[Page 18982]]

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 in 33 CFR Part 326

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

    Dated: April 24, 2019.

    Approved by:
Scott A. Spellmon,
Major General, U.S. Army, Deputy Commanding General for Civil and 
Emergency Operations.

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

PART 326--ENFORCEMENT

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

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


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


Sec.  326.6  Class I administrative penalties.

    (a) * * *
    (1) This section sets forth procedures for initiation and 
administration of Class I administrative penalty orders under Section 
309(g) of the Clean Water Act, judicially-imposed civil penalties under 
Section 404(s) of the Clean Water Act, and Section 205 of the National 
Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water 
Act, Class I civil penalties may not exceed $21,934 per violation, 
except that the maximum amount of any Class I civil penalty shall not 
exceed $54,833. Under Section 404(s)(4) of the Clean Water Act, 
judicially-imposed civil penalties may not exceed $54,833 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 $24,017 for each violation.

                       Table 1 to Paragraph (a)(1)
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                                             Statutory civil monetary
                                          penalty amount for violations
  Environmental statute and U.S. code    that occurred after November 2,
                citation                   2015, and are assessed on or
                                                after May 3, 2019
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Clean Water Act (CWA), Section           $21,934 per violation, with a
 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A).   maximum of $54,833.
CWA, Section 404(s)(4), 33 U.S.C.        Maximum of $54,833 per day for
 1344(s)(4).                              each violation.
National Fishing Enhancement Act,        Maximum of $24,017 per
 Section 205(e), 33 U.S.C. 2104(e).       violation.
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[FR Doc. 2019-09120 Filed 5-2-19; 8:45 am]
 BILLING CODE 3720-58-P