[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Rules and Regulations]
[Pages 31493-31497]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13467]
[[Page 31493]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
Department of the Army, U.S. Army Corps of Engineers
33 CFR Part 207
[COE-2019-0002]
RIN 0710-AB10
Civil Monetary Penalty Inflation Adjustment Rule
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Direct final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Army Corps of Engineers (Corps) is issuing this final
rule to adjust a civil monetary penalty under the Rivers and Harbors
Appropriation Act of 1922 to account for inflation. This action is
mandated by the Federal Civil Penalties Inflation Adjustment Act of
1990, as amended by the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015 (Inflation Adjustment Act), which requires
agencies to adjust the levels of civil monetary penalties with an
initial ``catch-up'' adjustment followed by annual adjustments for
inflation.
DATES: This rule is effective September 3, 2019 without further action,
unless adverse comment is received by August 1, 2019. If adverse
comment is received, the Corps will publish a timely withdrawal of the
rule in the Federal Register.
ADDRESSES: You may submit comments, identified by docket number COE-
2019-0002, 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-2019-0002, in the subject line of the message.
Mail: U.S. Army Corps of Engineers, ATTN: CECW-NDC (Forrest B.
Vanderbilt), Casey Building, 7701 Telegraph Road, Alexandria, VA 22315.
Hand Delivery/Courier: Due to security requirements, we cannot
receive comments by hand delivery or courier.
Instructions: Direct your comments to docket number COE-2019-0002.
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 website 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: Dr. Forrest B. Vanderbilt at 703-428-
6288 or by email at [email protected] or access the
U.S. Army Corps of Engineers Navigation and Civil Works Decision
Support Home Page at http://www.iwr.usace.army.mil/About/Technical-Centers/NDC-Navigation-and-Civil-Works-Decision-Support/.
SUPPLEMENTARY INFORMATION:
Executive Summary
The Corps is publishing this final rule to adjust a civil monetary
penalty for inflation pursuant to the Inflation Adjustment Act. This
law requires the Corps to publish an initial ``catch-up'' adjustment
with subsequent annual adjustments for inflation. The purpose of the
Inflation Adjustment Act is to maintain the deterrent effect of civil
penalties by translating originally enacted statutory civil penalty
amounts to today's dollars and rounding statutory civil penalties to
the nearest dollar. Although the Inflation Adjustment Act required
agencies to make an initial ``catch-up'' adjustment through an interim
final rule to be published by July 1, 2016, and to publish annual
adjustments beginning no later than January 15, 2017, the Corps has not
yet made either adjustment for civil penalties under 33 U.S.C. 555.
Accordingly, the Corps is combining both the ``catch-up'' adjustment
that would have become effective by August 1, 2016, and the three
annual adjustments for 2017, 2018, and 2019 in this final rule. The
rule will apply prospectively, to penalty assessments beginning on its
effective date, August 1, 2019. Subsequently, the Corps intends to
publish annual adjustments as required by the Inflation Adjustment Act,
no later than January 15 of each calendar year.
The Inflation Adjustment Act prescribes a formula for adjusting
statutory civil penalties to reflect inflation, maintain the deterrent
effect of statutory civil penalties, and promote compliance with the
law. The adjustment criteria is provided by the Inflation Adjustment
Act for the initial ``catch-up'' adjustment, the December 16, 2016,
Office of Management and Budget (OMB) Memorandum regarding the
``Implementation of the 2017 annual adjustment pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015'',
the December 15, 2017, OMB Memorandum regarding the ``Implementation of
Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015,'' and the
December 14, 2018, OMB Memorandum regarding the ``implementation of
Penalty Inflation Adjustments for 2019, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvement Act of 2015.'' The 2016
catch-up adjustment and the 2017, 2018, and 2019 annual adjustments for
inflation will increase the maximum civil penalty under 33 U.S.C. 555
to $5,732 per violation.
Pursuant to the Inflation Adjustment Act, the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(B), and guidance issued by the Office
of Management and Budget (OMB),\1\ the Corps finds that good cause
exists for issuing this final rule without prior notice and comment.
The Inflation Adjustment Act does not require agencies to implement the
required adjustments through a notice and comment process unless
proposing an adjustment of less than the amount otherwise required, and
the Corps is not
[[Page 31494]]
exercising any discretion it may have to make a lesser adjustment. For
the annual adjustments beginning in 2017, the Inflation Adjustment Act
provides a clear formula for adjustment of the civil penalties, and
accordingly, the Corps has no discretion to vary the amount of the
adjustment to reflect any views or suggestions provided by commenters.
The Inflation Adjustment Act further provides that the increased
penalty levels apply to penalties assessed after the effective date of
the increase. For these reasons, the Corps finds that notice and
comment would be impracticable and unnecessary in this situation and
contrary to the language of the Inflation Adjustment Act. Although the
Corps finds good cause for issuing this final rule without prior notice
and comment, and the Corps has no discretion on this action, the 30-day
delayed effective date period does provide the opportunity for the
public to voice its concerns if the Corps has overlooked anything.
Comments received on this civil penalty rulemaking will generally not
be viewed as ``adverse.''
---------------------------------------------------------------------------
\1\ See OMB Memoranda M-16-06 (Feb. 24, 2016), M-17-11 (Dec. 16,
2016), M-18-03 (Dec. 15, 2017), and M-19-04 (December 14, 2018).
---------------------------------------------------------------------------
Section 4 of the Inflation Adjustment Act directs Federal agencies
to publish annual penalty inflation adjustments. In accordance with
Section 553 of the Administrative Procedure Act (APA), most rules are
subject to notice and comment and are effective no earlier than 30 days
after publication in the Federal Register. However, because the
Inflation Adjustment Act directed agencies to make the initial ``catch-
up'' adjustment through an interim final rule, agencies were not
required to complete a notice and comment process prior to promulgating
that adjustment.\2\ 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 2016, December 2017, and December 2018 OMB guidance issued
to Federal agencies on the implementation of the 2017, 2018, and 2019
annual adjustments, the phrase ``notwithstanding section 553'' means
that ``the public procedure the APA generally provides--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. As the Corps did not previously publish
an interim final rule, the Corps is delaying the effective date of this
final rule for 30 days following publication.
---------------------------------------------------------------------------
\2\ Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410, 4(b)(1)(A), 104 Stat. 890 (amended 2015)
(codified as amended at 28 U.S.C. 2461 note); OMB Memorandum No. M-
16-06 at 3.
---------------------------------------------------------------------------
Background
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.
On November 2, 2015, the President signed into law the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015,
Public Law 114-74, 701 (Inflation Adjustment Act), which further
amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as
previously amended by the 1996 Debt Collection Improvement Act (DCIA;
collectively, ``prior inflation adjustment Acts''), to improve the
effectiveness of civil monetary penalties and to maintain their
deterrent effect. The Inflation Adjustment Act requires agencies to do
the following: (1) Adjust the level of civil monetary penalties with an
initial ``catch-up'' adjustment, through an interim final rule to be
published by July 1, 2016; and (2) beginning no later than January 15,
2017, make subsequent annual adjustments for inflation. The Inflation
Adjustment Act does not alter an agency's statutory authority, to the
extent it exists, to assess penalties below the maximum level. This
final rule implements the initial ``catch-up'' adjustment mandated by
the Inflation Adjustment Act as well as the 2017, 2018, and 2019 annual
inflation adjustments mandated by the Act.
The Inflation Adjustment Act amends prior inflation adjustment Acts
by substantially revising the method of calculating inflation
adjustments. Prior inflation adjustment Acts required adjustments to
civil penalties to be rounded significantly. For example, a penalty
increase that was greater than $1,000, but less than or equal to
$10,000, would be rounded to the nearest multiple of $1,000. While this
allowed penalties to be kept at round numbers, it meant that agencies
often would not increase penalties at all if the inflation factor was
not large enough. Furthermore, increases to penalties were capped at 10
percent, which meant that longer periods without an inflation
adjustment could cause a penalty to rapidly lose value in real terms.
Over time, this formula caused agency civil penalties to lose value
relative to total inflation, thereby undermining Congress' original
purpose in enacting statutory civil monetary penalties to be a
deterrent and to promote compliance with the law. The Inflation
Adjustment Act has removed these rounding rules. Penalties now are
simply rounded to the nearest dollar. This rounding ensures that
penalties will be increased each year to more effectively keep up with
inflation.
The Inflation Adjustment Act required a ``catch-up'' adjustment
that reset the inflation calculations by excluding prior inflationary
adjustments under prior inflation adjustment Acts, and subsequent,
annual adjustments to all civil penalties under the laws implemented by
that agency. With this rule, the new statutory maximum penalty level
listed in Table 1 will apply to all statutory civil penalties assessed
on or after the effective date of this rule.
Calculation of ``Catch-Up'' Adjustment
OMB issued guidance on calculating the initial ``catch-up''
adjustment in February 2016. That guidance included a table of
multipliers to adjust the penalty level based on the year that the
penalty was established or last adjusted by statute or regulation
(other than the Inflation Adjustment Act).
Table 1 shows the calculation of the initial catch-up adjustment
based on the guidance provided by OMB. Column (1) contains the United
States Code citations for the penalty statute. Column (2) contains the
dollar amount most recently established by law (other than prior
inflation adjustment Acts) for the civil monetary penalty under 33
U.S.C. 555. Column (3) sets out the year the Corps' civil monetary
penalty was enacted or last adjusted by law (other than adjustments
under the Inflation Adjustment Act). Column (4) sets out the factor
determined by OMB to adjust for inflation from October of the
corresponding year in column (3) to October 2015. Column (5) sets out
the adjusted civil monetary penalty resulting from multiplying the
dollar amount of the civil monetary penalty set out in Column (2) by
the inflation factor in column (4). Column (6) sets out the civil
monetary penalty that was in effect on November 2, 2015. Column (7)
sets out the maximum catch-up penalty--an amount that is 250 percent of
the 2015 penalty--which is calculated by multiplying the penalty amount
in Column (6) by 2.5 (to achieve a 150 percent increase for a total of
250 percent of the 2015 penalty). Column (8) sets out the initial
catch-up penalty
[[Page 31495]]
amount, which is the lesser of the adjusted civil monetary penalty in
Column (5) or the maximum civil monetary penalty in Column (7).
Calculation of 2017, 2018, and 2019 Annual Inflation Adjustments
The Office of Management and Budget (OMB) issued guidance on
calculating the 2017 and 2018 annual inflation adjustments. 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; December 15, 2017, Memorandum for the Heads of Executive
Departments and Agencies, from Mick Mulvaney, Director, OMB, Subject:
Implementation of Penalty Inflation Adjustments for 2018, Pursuant to
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015; December 16, 2016, Memorandum for the Heads of Executive
Departments and Agencies, from Shaun Donovan, Director, OMB, Subject:
Implementation of the 2017 annual adjustment 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
2017, based on the Consumer Price Index (CPI-U) for the month of
October 2016, not seasonally adjusted, which is 1.01636. Likewise, the
OMB provided to agencies the cost-of-living adjustment multiplier for
2018, based on the CPI-U for the month of October 2017, not seasonally
adjusted, which is 1.02041. More recently, the OMB provided to agencies
the cost-of-living adjustment multiplier for 2019, based on the 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
2017, agencies multiply each applicable penalty by the multiplier,
1.01636, and round to the nearest dollar. For 2018, agencies are
similarly required to multiply each applicable penalty by the
multiplier, 1.02041, and round to the nearest dollar. Lastly, for 2019,
agencies are required to 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 initial catch-up adjustment mandated by the Inflation
Adjustment Act. Row (9) in Table 1 sets out the 2017 Inflation
Adjustment Multiplier while row (10) sets out the 2018 Inflation
Adjustment Multiplier. Row (11) sets out the new penalty level which
takes effect 30 days after the date of publication in the Federal
Register.
Table 1
------------------------------------------------------------------------
------------------------------------------------------------------------
1. Citation.................................. Rivers and Harbors
Appropriation Act of
1922, 33 U.S.C. 555.
2. Current civil monetary penalty (CMP) Maximum of $2,500 per
amount established by law. violation.
3. Year CMP enacted or last adjusted by law.. 1986.
4. Inflation factor for year in row (3)...... 2.15628.
5. Adjusted CMP--& amount in row (2) x factor Maximum of $5,391 per
in row (4). violation.
6. CMP amount as of Nov. 2, 2015............. Maximum of $2,500 per
violation.
7. CMP Cap--2.5 x amount in row (6).......... Maximum of $6,250 per
violation.
8. Catch-up CMP--lesser of row (5) or (7).... Maximum of $5,391 per
violation.
2017 Inflation adjustment multiplier..... 1.01636.
2018 Inflation adjustment multiplier..... 1.02041.
2019 Inflation adjustment multiplier..... 1.02522.
CMP Amount as of the Effective Date of this Maximum of $5,732 per
Rule. violation.
------------------------------------------------------------------------
In sum, under this final rule, the maximum penalty for violations
under 33 U.S.C. 555 will increase from $2,500 per violation to $5,732.
This rule will not result in any additional costs to implement the
Corps Navigation Program because the civil penalty in 33 U.S.C. 555 has
been in effect since 1986 when Congress amended Section 11 of the
Rivers and Harbors Appropriation Act of 1922 to provide for the
assessment of civil penalties. This rule merely adjusts the value of a
current statutory civil penalty to reflect and keep pace with the
levels originally set by Congress when the statute was amended, as
required by the Inflation Adjustment Act. This rule will result in
additional costs to the person or entity receiving remuneration for the
movement of vessels or for the transportation of goods or passengers on
the navigable waters who do not comply with the statement and reporting
requirements under 33 U.S.C. 555 and 33 CFR 207.800, because it
increases the maximum penalty amount to $5,732 for each violation. 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.
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 final rule will not impose any new information collection
burden under the provisions of the Paperwork Reduction Act (44 U.S.C.
3501 et seq.). This action merely increases the level of a statutory
civil penalty that could be imposed in the context of a Federal civil
administrative enforcement action or civil judicial case for violations
of a Corps-administered statute and its implementing regulations.
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
[[Page 31496]]
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 navigation program,
the collection of commercial statistics pertaining to rivers, harbors
and waterways, and annual reports thereof to Congress, are required by
the River and Harbor Act of June 23, 1866 (14 Stat. 70), the act of
February 21, 1891 (26 Stat. 766), the River and Harbor Act of June 13,
1902 (32 Stat. 376), the River and Harbor Act of July 25, 1912 (937
Stat. 201), the River and Harbor Act of September 22, 1922 (42
Sta.1043), and Public Law 16, February 10, 1932 (47 Stat. 42).2, the
current OMB approval number for information requirements is maintained
by the Corps of Engineers (OMB approval number 0710-0006). However,
there are no new approval or application processes required as a result
of this rulemaking that necessitate a new Information Collection
Request (ICR). The regulation would not impose reporting or
recordkeeping requirements. Therefore, this action is not subject to
the Paperwork Reduction Act.
Executive Order 12866 and Executive Order 13563, ``Improving Regulation
and Regulatory Review''
The OMB has not designated this final rule a ``significant
regulatory action'' under Executive Order 12866. Accordingly, OMB has
not reviewed this rule. Moreover, this final rule makes a
nondiscretionary adjustment to an existing civil monetary penalty 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. To the extent this rule increases a
civil monetary penalty, it would result in an increase in transfers
from persons or entities assessed a civil monetary penalty to the
government.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This rule is not significant under E.O. 12866, therefore, it is not
subject to the requirements of E.O. 13771.
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. This
nondiscretionary action is required by the Inflation Adjustment Act and
will have no 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. 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.
The Regulatory Flexibility Act applies only to rules subject to
notice-and-comment rulemaking requirements under the Administrative
Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-
612. The Regulatory Flexibility Act does not apply to this final rule
because a notice-and-comment rulemaking process is not required for the
reasons stated above.
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 this final rule 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 final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, this final rule is not subject to the
requirements of Section 203 of UMRA. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
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
[[Page 31497]]
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. The rule imposes no
new substantive obligations on tribal governments but instead merely
adjusts the value of a current statutory civil monetary penalty to
reflect and keep pace with the levels originally set by Congress when
the statutes were enacted. The calculation of the increases is formula-
driven and prescribed by statute and OMB guidance, and the Corps has no
discretion to vary the amount of the adjustment to reflect any views or
suggestions provided by commenters. 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 final rule
does not constitute a major Federal action significantly affecting the
quality of the human environment because it merely increases the value
of statutory civil monetary penalties to reflect and keep pace with the
levels originally set by Congress when the statutes were enacted. The
calculation of the increases is formula-driven and prescribed by
statute and OMB guidance, and the Corps has no discretion to vary the
amount of the adjustment.
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 a civil penalty 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 civil penalties to account for
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 207
Navigation (water), Penalties, Reporting and recordkeeping
requirements, Waterways.
Dated: June 19, 2019.
Approved by:
R.D. James,
Assistant Secretary of the Army (Civil Works).
For the reasons set forth in the preamble, the Corps amends 33 CFR
part 207 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. [thinsp]207.800 by revising paragraph (c)(2) to read as
follows:
Sec. 207.800 Collection of navigation statistics.
* * * * *
(c) * * *
(2) Civil penalties. In addition, any person or entity that fails
to provide timely, accurate, and complete statements or reports
required to be submitted by the regulation in this section may also be
assessed a civil penalty of up to $5,732 per violation under 33 U.S.C.
555, as amended.
* * * * *
[FR Doc. 2019-13467 Filed 7-1-19; 8:45 am]
BILLING CODE 3720-58-P