[Federal Register Volume 88, Number 148 (Thursday, August 3, 2023)]
[Rules and Regulations]
[Pages 51234-51236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16025]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Parts 207 and 326

RIN 0710-AB13


Civil Monetary Penalty Inflation Adjustment Rule

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

ACTION: Final rule.

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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 Rivers and 
Harbors Appropriation Act of 1922 (RHA), the Clean Water Act (CWA), and 
the National Fishing Enhancement Act (NFEA) to account for inflation.

DATES: This final rule is effective on August 3, 2023.

FOR FURTHER INFORMATION CONTACT: For the RHA portion, please contact 
Mr. Paul Clouse at 202-761-4709 or by email at 
[email protected], or for the CWA and NFEA portion, please 
contact Mr. Matt Wilson 202-761-5856 or by email at 
[email protected] or access the U.S. Army Corps of 
Engineers Regulatory Home Page at https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/.

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410, codified at 28 U.S.C. 2461, 
note, as amended, requires agencies to annually adjust the level of CMP 
for inflation to improve their effectiveness and maintain their 
deterrent effect, as required by the Federal Civil Penalties Adjustment 
Act Improvements Act of 2015, Public Law 114-74, sec. 701, November 2, 
2015 (``Inflation Adjustment Act'').
    With this rule, the new statutory maximum penalty levels listed in 
Table 1 will apply to all statutory civil penalties assessed on or 
after the effective date of this rule. Table 1 shows the calculation of 
the 2023 annual inflation adjustment based on the guidance provided by 
the Office of Management and Budget (OMB) (see December 15, 2022, 
Memorandum for the Heads of Executive Departments and Agencies, 
Subject: Implementation of Penalty Inflation Adjustments for 2023, 
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 2023, based on the Consumer Price 
Index for All Urban Consumers (CPI-U) for the month of October 2022, 
not seasonally adjusted, which is 1.07745. 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 2023, agencies multiply 
each applicable penalty by the multiplier, 1.07745, and round to the 
nearest dollar. The multiplier should be applied to the most recent 
penalty amount, i.e., the one that includes the 2022 annual inflation 
adjustment.

                                                     Table 1
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                                                                                   2022
                                      Civil Monetary      2022 CMP amount in    Inflation     CMP Amount as of
             Citation              Penalty (CMP) amount  effect prior to this   adjustment     August 3, 2023
                                    established by law        rulemaking        multiplier
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Rivers and Harbors Act of 1922     $2,500 per violation  $6,270 per violation      1.07745  $6,756 per
 (33 U.S.C. 555).                                                                            violation.
CWA, 33 U.S.C. 1319(g)(2)(A).....  $10,000 per           $23,990 per               1.07745  $25,848 per
                                    violation, with a     violation, with a                  violation, with a
                                    maximum of $25,000.   maximum of $59,974.                maximum of $64,619.
CWA, 33 U.S.C. 1344(s)(4)........  Maximum of $25,000    Maximum of $59,974        1.07745  Maximum of $64,619
                                    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 $26,269        1.07745  Maximum of $28,304
 33 U.S.C. 2104(e).                 per violation.        per violation.                     per violation.
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    Section 4 of the Inflation Adjustment Act directs federal agencies 
to publish annual penalty inflation adjustments. In accordance with 
section 553 of the Administrative Procedures Act (APA), many rules are 
subject to notice and comment and are effective no earlier than 30 days 
after publication in the Federal Register. Section 4(b)(2) of the 
Inflation Adjustment Act further provides that each agency shall make 
the annual inflation adjustments ``notwithstanding section 553'' of the 
APA. According to the December 2022 OMB guidance issued to Federal 
agencies on the implementation of the 2023 annual adjustment, the 
phrase ``notwithstanding section 553'' means that, ``the public 
procedure the APA generally requires--notice, an opportunity for 
comment, and a delay in effective date--is not required for agencies to 
issue regulations implementing the annual adjustment.'' Consistent with 
the language of the Inflation Adjustment Act and OMB's implementation 
guidance, this rule is not subject to notice and opportunity for public 
comment or a delay in effective date. This rule adjusts the value of 
current statutory civil penalties to reflect and keep pace with the 
levels originally set by Congress when the statutes were enacted, as 
required by the Inflation Adjustment Act. This rule will apply 
prospectively to penalty assessments beginning on the effective date of 
this final rule.

Regulatory Procedures

Plain Language

    In compliance with the principles in the President's Memorandum of 
June 1, 1998, regarding plain language, this preamble is written using 
plain language. The use of ``we'' in this notice refers to the Corps 
and the use of ``you'' refers to the reader. We have also used

[[Page 51235]]

the active voice, short sentences, and common everyday terms except for 
necessary technical terms.

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

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

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    The Department of Defense determined that provisions of the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 
35, and its implementing regulations, 5 CFR part 1320, do not apply to 
this rule because there are no new or revised recordkeeping or 
reporting requirements. This action merely increases the level of 
statutory civil penalties that could be imposed in the context of a 
federal civil administrative enforcement action or civil judicial case 
for violations of Corps-administered statutes and implementing 
regulations.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has Federalism implications. This final rule will not 
have a substantial effect on State and local governments.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    The Assistant Secretary of the Army (Civil Works) certified that 
this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.) because it would not, if promulgated, have a significant 
economic impact on a substantial number of small entities. Because 
notice of proposed rulemaking and opportunity for comment are not 
required pursuant to 5 U.S.C. 553, or any other law, the analytical 
requirements of the Regulatory Flexibility Act are inapplicable. 
Therefore, the Regulatory Flexibility Act, as amended, does not require 
the Corps of Engineers to prepare a regulatory flexibility analysis.

Unfunded Mandates Reform Act (2 U.S.C. Chapter 25)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits 
before issuing any rule the mandates of which require spending in any 
year of $100 million in 1995 dollars, updated annually for inflation. 
This rule will not mandate any requirements for State, local, or tribal 
governments, nor will it affect private sector costs.

Public Law 104-113, ``National Technology Transfer and Advancement Act 
(15 U.S.C. Chapter 7)

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note), directs 
us to use voluntary consensus standards in our regulatory activities, 
unless to do so would be inconsistent with applicable law or otherwise 
impractical. Voluntary consensus standards are technical standards 
(e.g., materials specifications, test methods, sampling procedures, and 
business practices) that are developed or adopted by voluntary 
consensus standards bodies. The NTTAA directs us to provide Congress, 
through OMB, explanations when we decide not to use available and 
applicable voluntary consensus standards. This rule does not involve 
technical standards. Therefore, we did not consider the use of any 
voluntary consensus standards.

Executive Order 13045, ``Protection of Children From Environmental 
Health Risks and Safety Risks''

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

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 requires agencies to develop an accountable 
process to ensure ``meaningful and timely input by tribal officials in 
the development of regulatory policies that have tribal implications.'' 
The phrase ``policies that have tribal implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and the Indian tribes, or on the distribution of 
power and responsibilities between the Federal government and Indian 
tribes.'' This rule does not have tribal implications. The rule imposes 
no new substantive obligations on tribal governments. Therefore, 
Executive Order 13175 does not apply to this rule.

Public Law 104-121, ``Congressional Review Act,'' (5 U.S.C. Chapter 8)

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

Executive Order 12898, ``Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations''

    Executive Order 12898 requires that, to the greatest extent 
practicable and permitted by law, each Federal agency must make 
achieving environmental justice part of its mission. Executive Order 
12898 provides that each Federal agency conduct its programs, policies, 
and activities that substantially affect human health or the 
environment in a manner that ensures that such programs, policies, and 
activities do not have the effect of excluding persons (including 
populations) from participation in, denying persons (including 
populations) the benefits of, or subjecting persons (including 
populations) to discrimination under such programs, policies, and 
activities

[[Page 51236]]

because of their race, color, or national origin. This rule merely 
adjusts civil penalties to account for inflation, and therefore, is not 
expected to negatively impact any community, and therefore is not 
expected to cause any disproportionately high and adverse impacts to 
minority or low-income communities.

Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use''

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211 because it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

List of Subjects

33 CFR Part 207

    Navigation (water), Penalties, Reporting and recordkeeping 
requirements, and Waterways.

33 CFR Part 326

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

    Approved by:
Michael L. Connor,
Assistant Secretary of the Army, (Civil Works).

    For the reasons set out in the preamble, title 33, chapter II, part 
207 of the Code of Federal Regulations is amended as follows:

PART 207--NAVIGATION REGULATIONS

0
1. The authority citation for part 207 continues to read as follows:

    Authority:  33 U.S.C. 1; 33 U.S.C. 555; 28 U.S.C. 2461 note.


0
2. Amend Sec.  207.800 by revising paragraph (c)(2) to read as follows:


Sec.  207.800  Collection of navigation statistics.

* * * * *
    (c) * * *
    (2) In addition, any person or entity that fails to provide timely, 
accurate, and complete statements or reports required to be submitted 
by the regulation in this section may also be assessed a civil penalty 
of up to $6,756 per violation under 33 U.S.C. 555, as amended.
* * * * *

PART 326--ENFORCEMENT

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

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


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


Sec.  326.6  Class I administrative penalties.

    (a) * * *
    (1) This section sets forth procedures for initiation and 
administration of Class I administrative penalty orders under Section 
309(g) of the Clean Water Act, judicially-imposed civil penalties under 
Section 404(s) of the Clean Water Act, and Section 205 of the National 
Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water 
Act, Class I civil penalties may not exceed $25,848 per violation, 
except that the maximum amount of any Class I civil penalty shall not 
exceed $64,619. Under Section 404(s)(4) of the Clean Water Act, 
judicially-imposed civil penalties may not exceed $64,619 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 $28,304 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 August 3, 2023
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Clean Water Act (CWA), Section           $25,848 per violation, with a
 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A).   maximum of $64,619.
CWA, Section 404(s)(4), 33 U.S.C.        Maximum of $64,619 per day for
 1344(s)(4).                              each violation.
National Fishing Enhancement Act,        Maximum of $28,304 per
 Section 205(e), 33 U.S.C. 2104(e).       violation.
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[FR Doc. 2023-16025 Filed 8-2-23; 8:45 am]
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