[Federal Register Volume 78, Number 18 (Monday, January 28, 2013)]
[Rules and Regulations]
[Pages 5722-5726]
From the Federal Register Online via the Government Printing 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: david.b.olson@usace.army.mil. 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 david.b.olson@usace.army.mil 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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