[Federal Register Volume 82, Number 77 (Monday, April 24, 2017)]
[Rules and Regulations]
[Pages 18871-18873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-08198]
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DEPARTMENT OF TRANSPORTATION
Maritime Administration
46 CFR Parts 221, 307, 340, and 356
RIN 2133-AB89
Annual Civil Monetary Penalties Adjustment
AGENCY: Maritime Administration, Department of Transportation.
ACTION: Final rule.
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SUMMARY: The Maritime Administration (MARAD) is updating its
regulations to reflect required annual inflation-related increases to
the civil monetary penalties in its regulations, pursuant to the
Federal Civil Penalties Inflation Adjustment Act Improvement Act of
2015. This final rule adjusts civil penalty amounts for violations of
procedures related to the American Fisheries Act, certain regulated
transactions involving documented vessels, the Automated Mutual
Assistance Vessel Rescue program (AMVER) and the Defense Production
Act.
MARAD finds that good cause exists for immediate implementation of
this final rule because prior notice and comment are unnecessary, per
the specific provisions of the 2015 Act.
DATES: This rule is effective May 4, 2017.
ADDRESSES: Office of Chief Counsel, MAR 225, Maritime Administration,
1200 New Jersey Avenue SE., West Building, Second Floor, Washington, DC
20590.
FOR FURTHER INFORMATION CONTACT: T. Mitchell Hudson, Jr., Office of
Chief Counsel, MARAD, telephone (202) 366-9373, email to:
[email protected], 1200 New Jersey Ave. SE., Washington, DC
20590.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (Sec. 701 of Pub. L. 114-74) (the ``2015 Act''), which is
intended to improve the effectiveness of civil monetary penalties and
to maintain the deterrent effect of such penalties, requires agencies
to adjust the civil monetary penalties for inflation annually.
II. Administrative Procedures Act
Generally, agencies may promulgate final rules only after issuing a
notice of proposed rulemaking and providing an opportunity for public
comment under procedures required by the APA, as provided in 5 U.S.C.
553(b) and (c). The APA, in 5 U.S.C. 553(b)(3)(B), provides an
exception from these requirements when notice and public comment
procedures are ``impracticable, unnecessary, or contrary to the public
interest.'' MARAD finds that prior notice and comment to this civil
penalty adjustment is unnecessary because section 4 of the 2015 Act
specifically requires the annual adjustments to be accomplished through
final rule without notice and comment.
Also pursuant to the APA (5 U.S.C. 553(d)(3)), the rule will be
effective 10 days after publication in the Federal Register. Delaying
the effective date for 30 days after publication would be contrary to
the direction provided in the 2015 Act, which states that annual
adjustments be made by January 15th of each year. As this final rule is
already past that deadline, further delay would be contrary to the
public interest.
III. Regulatory History
On June 30, 2016, MARAD published an interim final rule using an
initial ``catch up'' adjustment, as required by section 4 of the 2015
Act (81 FR 41453). Just like this final rule, the interim final rule
made adjustments to civil penalty amounts for violations of procedures
related to the American Fisheries Act, certain regulated transactions
involving documented vessels, the Automated Mutual Assistance Vessel
Rescue program (AMVER) and the Defense Production Act.
III. Calculation of Adjustment
The annual inflation adjustment for each applicable civil monetary
penalty is determined using the percent increase in the Consumer Price
Index for all Urban Consumers (CPI-U) for the month of October of the
year in which the amount of each civil penalty was most recently
established or modified. In the December 16, 2016, OMB Memorandum for
the Heads of Executive Agencies and Departments, M-17-11,
Implementation of the 2017 annual adjustment pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015, OMB
published the multiplier for the required annual adjustment. The cost-
of-living adjustment multiplier for 2017, based on the CPI-U for the
month of October 2016, not seasonally adjusted, is 1.01636.
Using the 2017 multiplier, MARAD adjusts all its applicable
monetary penalties.
Inflationary Adjustments to Penalty Amounts in 46 CFR Part 221
Changes to Civil Penalties for Regulated Transactions Involving Vessel
Ownership Transfers and Other Maritime Interests (46 CFR 221.61)
The maximum civil penalties arising under 46 CFR 221.61 have not
been updated since they were established, except for inflationary
adjustments pursuant to the Inflation Adjustment Act of 1990. Applying
the multiplier for the increase in CPI-U for 2017, the maximum civil
penalty for a single violation of any provision under 46 U.S.C. Chapter
313 and all of Subtitle III related MARAD regulations, except section
31329, specified in 31309 of Title 46 of the United States Code is
adjusted to $20,111. Likewise, the maximum civil penalty for a single
violation of 31329 of Title 46 of the United States Code as it relates
to the court sales of documented vessels, specified in 31330 of Title
46 of the
[[Page 18872]]
United States Code, is adjusted to $50,276. Lastly, for penalties
arising under 46 CFR 221.61, the maximum civil penalty for a single
violation of 56101 of Title 46 of the United States Code as it relates
to approvals required to transfer a vessel to a noncitizen, specified
in 56101(e) of Title 46 United States Code is adjusted to $19,246.
Inflationary Adjustments to Penalty Amounts in 46 CFR Part 307
Changes to Civil Penalties for Failure To File an AMVER Report (46 CFR
307.19)
Applying the multiplier for the increase in CPI-U for 2017, the
maximum civil penalty for a single violation of 50113 of Title 46 of
the United States Code related to use and performance reports by
operators of vessels as specified in 50113(b) of Title 46 of the United
States Code is adjusted to $127.00.
Inflationary Adjustments to Penalty Amounts in 46 CFR Part 340
Changes to Civil Penalties for Violating Procedures for the Use and
Allocation of Shipping Services, Port Facilities and Services for
National Security and National Defense Operations (46 CFR 340.9)
Applying the multiplier for the increase in CPI-U for 2017, the
maximum civil penalty for a single violation of 4501 of Title 50 of the
United States Code, specified in 4513 of Title 50 of the United States
Code, at 46 CFR 340.9, is adjusted to $25,409.
Inflationary Adjustments to Penalty Amounts in 46 CFR Part 356
Changes to Civil Penalties for Violations in Applying for or Renewing a
Vessel's Fishery Endorsement (46 CFR 356.49)
Applying the multiplier for the increase in CPI-U for 2017, the
maximum civil penalty for a single violation of 12151 of Title 46 of
the United States Code for engaging in fishing operations as defined in
section 3 of the Magnuson-Stevens Fishery Conservation and Management
Act, within the Exclusive Economic Zone, specified in 12151(c) of Title
46 of the United States Code, and at 46 CFR 356.49, is adjusted to
$147,396 for each day such vessel engaged in fishing.
IV. Rulemaking Analyses and Notices
Executive Order 12866, Executive Order 13563, and DOT Regulatory
Policies and Procedures
MARAD has considered the impact of this rulemaking action under
Executive Order 12866, Executive Order 13563, and the Department of
Transportation's regulatory policies and procedures. This rulemaking
document was not reviewed under Executive Order 12866 or Executive
Order 13563. This action is limited to the adoption of adjustments of
civil penalties under statutes that the agency enforces, and has been
determined to be not ``significant'' under the Department of
Transportation's regulatory policies and procedures and the policies of
the Office of Management and Budget. Because this rulemaking does not
change the number of entities that are subject to civil penalties, the
impacts are limited. Furthermore, excluding the penalties in 46 CFR
221.61, 307.19, 340.9 and 356.49 for violating certain long standing
procedures, this final rule does not establish civil penalty amounts
that MARAD is required to seek.
We also do not expect the increase in the civil penalty amount in
any of these regulations to be economically significant. Over the last
five years, MARAD has not collected any civil penalties under these
regulations. Increasing the current civil penalty amount by 150 percent
would not result in an annual effect on the economy of $100 million or
more.
Regulatory Flexibility Act
We have also considered the impacts of this regulation under the
Regulatory Flexibility Act. I certify that this rule will not have a
significant economic impact on a substantial number of small entities.
Since this regulation does not establish a penalty amount that MARAD is
required to seek, except for the long standing civil penalties set
forth in 46 CFR 221.61, 307.19, 340.9 and 356.49, this rule will not
have a significant economic impact on small businesses. Additionally,
over the last five years, MARAD has not collected any civil penalties
under these regulations. Accordingly, increasingly the civil penalty
amount is unlikely to have any economic impact on any small businesses.
Executive Order 13132 (Federalism)
Executive Order 13132 requires MARAD 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.'' ``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.'' Under Executive Order 13132, the agency may not issue a
regulation with Federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, the agency
consults with State and local governments, or the agency consults with
State and local officials early in the process of developing the
regulation.
This rule will not 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, as specified in Executive Order 13132. This rule
only updates existing penalties, pursuant to statute. MARAD has not
collected any civil penalties under these regulations within the last
five years and if it were to assess penalties, due to the amounts
involved, it would not have a substantial direct effect on a State.
Thus, the requirements of Section 6 of the Executive Order do not
apply.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4,
requires agencies to prepare a written assessment of the cost, benefits
and other effects of proposed or final rules that include a Federal
mandate likely to result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of more than
$100 million annually. Because this rule will not have a $100 million
effect, no Unfunded Mandates assessment will be prepared.
Executive Order 12778 (Civil Justice Reform)
This rule does not have a retroactive or preemptive effect.
Judicial review of this rule may be obtained pursuant to 5 U.S.C. 702.
That section does not require that a petition for reconsideration be
filed prior to seeking judicial review.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, we state
that there are no requirements for information collection associated
with this rulemaking action.
List of Subjects
46 CFR Part 221
Administrative practice and procedure, Maritime carriers,
Mortgages, Penalties, Reporting and recordkeeping requirements, Trusts
and trustees.
[[Page 18873]]
46 CFR Part 307
Marine safety, Maritime carriers, Penalties, Reporting and
recordkeeping requirements.
46 CFR Part 340
Harbors, Maritime carriers, National defense, Packaging and
containers.
46 CFR Part 356
Citizenship and naturalization, Fishing vessels, Mortgages,
Penalties, Reporting and recordkeeping requirements, Vessels.
In consideration of the foregoing, 46 CFR parts 221, 307, 340, and
356 are amended as set forth below.
PART 221--REGULATED TRANSACTIONS INVOLVING DOCUMENTED VESSELS AND
OTHER MARITIME INTERESTS
0
1. The authority citation for 46 CFR part 221 continues to read as
follows:
Authority: 46 U.S.C. chs. 301, 313, and 561; Pub. L. 114-74; 49
CFR 1.93.
0
2. Section 221.61 is revised to read as follows:
Sec. 221.61 Compliance.
(a) This subpart describes procedures for the administration of
civil penalties that the Maritime Administration may assess under 46
U.S.C. 31309, 31330 and 56101, pursuant to 49 U.S.C. 336.
(b) Pursuant to 46 U.S.C. 31309, a general penalty of not more than
$20,111 may be assessed for each violation of chapter 313 or 46 U.S.C.
subtitle III administered by the Maritime Administration, and the
regulations in this part that are promulgated thereunder, except that a
person violating 46 U.S.C. 31329 and the regulations promulgated
thereunder is liable for a civil penalty of not more than $50,276 for
each violation. A person that charters, sells, transfers or mortgages a
vessel, or an interest therein, in violation of 46 U.S.C. 56101(e) is
liable for a civil penalty of not more than $19,246 for each violation.
PART 307--ESTABLISHMENT OF MANDATORY POSITION REPORTING SYSTEM FOR
VESSELS
0
3. The authority citation for 46 CFR part 307 continues to read as
follows:
Authority: Pub. L. 109-304; 46 U.S.C. 50113; Pub. L. 114-74; 49
CFR 1.93.
0
4. Section 307.19 is revised to read as follows:
Sec. 307.19 Penalties.
The owner or operator of a vessel in the waterborne foreign
commerce of the United States is subject to a penalty of $127.00 for
each day of failure to file an AMVER report required by this part. Such
penalty shall constitute a lien upon the vessel, and such vessel may be
libeled in the district court of the United States in which the vessel
may be found.
PART 340--PRIORITY USE AND ALLOCATION OF SHIPPING SERVICES,
CONTAINERS AND CHASSIS, AND PORT FACILITIES AND SERVICES FOR
NATIONAL SECURITY AND NATIONAL DEFENSE RELATED OPERATIONS
0
5. The authority citation for 46 CFR part 340 continues to read as
follows:
Authority: 50 U.S.C. 4501 et seq. (``The Defense Production
Act''); Executive Order 13603 (77 FR 16651); Executive Order 12656
(53 FR 47491); Pub. L. 114-74; 49 CFR 1.45; 49 CFR 1.93(l).
0
6. Section 340.9 is revised to read as follows:
Sec. 340.9 Compliance.
Pursuant 50 U.S.C. 4513 any person who willfully performs any act
prohibited, or willfully fails to perform any act required, by the
provisions of this regulation shall, upon conviction, be fined not more
than $25,409 or imprisoned for not more than one year, or both.
PART 356--REQUIREMENTS FOR VESSELS OF 100 FEET OR GREATER IN
REGISTERED LENGTH TO OBTAIN A FISHERY ENDORSEMENT TO THE VESSEL'S
DOCUMENTATION
0
7. The authority citation for 46 CFR part 356 continues to read as
follows:
Authority: 46 U.S.C. 12102; 46 U.S.C. 12151; 46 U.S.C. 31322;
Pub. L. 105-277, division C, title II, subtitle I, section 203 (46
U.S.C. 12102 note), section 210(e), and section 213(g), 112 Stat.
2681; Pub. L. 107-20, section 2202, 115 Stat. 168-170; Pub. L. 114-
74; 49 CFR 1.93.
0
8. Revise Sec. 356.49(b) to read as follows:
Sec. 356.49 Penalties.
* * * * *
(b) A fine of up to $147,396 may be assessed against the vessel
owner for each day in which such vessel has engaged in fishing (as such
term is defined in section 3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802) within the exclusive
economic zone of the United States; and
* * * * *
Dated: April 19, 2017.
By Order of the Maritime Administrator.
T. Mitchell Hudson, Jr.,
Secretary, Maritime Administration.
[FR Doc. 2017-08198 Filed 4-21-17; 8:45 am]
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