Civil Monetary Penalty Inflation Adjustment Rule

Published date15 July 2021
Citation86 FR 37246
Record Number2021-14716
SectionRules and Regulations
CourtArmy, Corps Of Engineers Department,Defense Department
Federal Register, Volume 86 Issue 133 (Thursday, July 15, 2021)
[Federal Register Volume 86, Number 133 (Thursday, July 15, 2021)]
                [Rules and Regulations]
                [Pages 37246-37249]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-14716]
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                DEPARTMENT OF DEFENSE
                Department of the Army, Corps of Engineers
                33 CFR Parts 207 and 326
                RIN 0710-AB19
                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 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 July 15, 2021.
                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 Ms. Karen Mulligan at 202-761-4664 or by email at
                [email protected] or access the U.S. Army Corps of
                Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.
                SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
                Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890 (28 U.S.C.
                2461, note), as amended by the Debt Collection Improvement Act of 1996,
                Public Law 104-134, April 26, 1996, and further amended by the Federal
                Civil Penalties Inflation Adjustment Act Improvements Act of 2015
                (Inflation Adjustment Act), Public Law 114-74,
                [[Page 37247]]
                November 2, 2015, required agencies to annually adjust the level of CMP
                for inflation to improve their effectiveness and maintain their
                deterrent effect.
                 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 2021 annual inflation adjustment based on the guidance provided by
                the Office of Management and Budget (OMB) (see December 23, 2020,
                Memorandum for the Heads of Executive Departments and Agencies,
                Subject: Implementation of Penalty Inflation Adjustments for 2021,
                Pursuant to the Federal Civil Penalties Inflation Adjustment Act
                Improvements Act 2015). The OMB provided to agencies the cost-of-living
                adjustment multiplier for 2021, based on the Consumer Price Index for
                All Urban Consumers (CPI-U) for the month of October 2020, not
                seasonally adjusted, which is 1.01182. 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 2021, agencies multiply
                each applicable penalty by the multiplier, 1.01182, and round to the
                nearest dollar. The multiplier should be applied to the most recent
                penalty amount, i.e., the one that includes the 2020 annual inflation
                adjustment.
                 Table 1
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                 Civil monetary
                 penalty (CMP) 2020 CMP amount in 2021 Inflation CMP amount as of 7/
                 Citation amount established effect prior to adjustment 15/2021
                 by law this rulemaking multiplier
                ----------------------------------------------------------------------------------------------------------------
                Rivers and Harbors Act of 1922 $2,500 per $5,834 per 1.01182 $5,903 per
                 (33 U.S.C. 555). violation. violation. violation.
                CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $22,321 per 1.01182 $22,585 per
                 violation, with a violation, with a violation, with a
                 maximum of $25,000. maximum of $55,801. maximum of
                 $56,461.
                CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $55,801 1.01182 Maximum of $56,461
                 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 $24,441 1.01182 Maximum of $24,730
                 33 U.S.C. 2104(e). per violation. per violation. per violation.
                ----------------------------------------------------------------------------------------------------------------
                 Section 4 of the Inflation Adjustment Act directs federal agencies
                to publish annual penalty inflation adjustments. In accordance with
                Section 553 of the Administrative Procedures Act (APA), most rules are
                subject to notice and comment and are effective no earlier than 30 days
                after publication in the Federal Register. Section 4(b)(2) of the
                Inflation Adjustment Act further provides that each agency shall make
                the annual inflation adjustments ``notwithstanding section 553'' of the
                APA. According to the December 2020 OMB guidance issued to Federal
                agencies on the implementation of the 2021 annual adjustment, the
                phrase ``notwithstanding section 553'' means that ``the public
                procedure the APA generally requires (i.e., notice, an opportunity for
                comment, and a delay in effective date) is not required for agencies to
                issue regulations implementing the annual adjustment.'' Consistent with
                the language of the Inflation Adjustment Act and OMB's implementation
                guidance, this rule is not subject to notice and opportunity for public
                comment. 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 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 their 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)
                 Because notice of proposed rulemaking and opportunity for comment
                are not required pursuant to 5 U.S.C. 553, or any other law, the
                analytical requirements of the Regulatory Flexibility Act (5 U.S.C.
                601, et seq.) are inapplicable. Therefore, a regulatory flexibility
                analysis is not required and has not been prepared.
                [[Page 37248]]
                Unfunded Mandates Reform Act (2 U.S.C. Chapter 25)
                 Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
                U.S.C. 1532) requires agencies to assess anticipated costs and benefits
                before issuing any rule the mandates of which require spending in any
                year of $100 million in 1995 dollars, updated annually for inflation.
                In 2016, that threshold is approximately $146 million. This rule will
                not mandate any requirements for State, local, or tribal governments,
                nor will it affect private sector costs.
                Public Law 104-113, ``National Technology Transfer and Advancement
                Act'' (15 U.S.C. Chapter 7)
                 Section 12(d) of the National Technology Transfer and Advancement
                Act of 1995 (NTTAA), Public Law 104-113, (15 U.S.C. 272 note), directs
                us to use voluntary consensus standards in our regulatory activities,
                unless to do so would be inconsistent with applicable law or otherwise
                impractical. Voluntary consensus standards are technical standards
                (e.g., materials specifications, test methods, sampling procedures, and
                business practices) that are developed or adopted by voluntary
                consensus standards bodies. The NTTAA directs us to provide Congress,
                through OMB, explanations when we decide not to use available and
                applicable voluntary consensus standards. This rule does not involve
                technical standards. Therefore, we did not consider the use of any
                voluntary consensus standards.
                Executive Order 13045, ``Protection of Children From Environmental
                Health Risks and Safety Risks''
                 Executive Order 13045 applies to any rule that: (1) Is determined
                to be ``economically significant'' as defined under Executive Order
                12866, and (2) concerns an environmental health or safety risk that we
                have reason to believe may have a disproportionate effect on children.
                If the regulatory action meets both criteria, we must evaluate the
                environmental health or safety effects of the rule on children, and
                explain why the regulation is preferable to other potentially effective
                and reasonably feasible alternatives. This rule is not subject to this
                Executive Order because it is not economically significant as defined
                in Executive Order 12866. In addition, it does not concern an
                environmental or safety risk that we have reason to believe may have a
                disproportionate effect on children.
                Executive Order 13175, ``Consultation and Coordination With Indian
                Tribal Governments''
                 Executive Order 13175 requires agencies to develop an accountable
                process to ensure ``meaningful and timely input by tribal officials in
                the development of regulatory policies that have tribal implications.''
                The phrase ``policies that have tribal implications'' is defined in the
                Executive Order to include regulations that have ``substantial direct
                effects on one or more Indian tribes, on the relationship between the
                Federal government and the Indian tribes, or on the distribution of
                power and responsibilities between the Federal government and Indian
                tribes.'' This rule does not have tribal implications. The rule imposes
                no new substantive obligations on tribal governments. Therefore,
                Executive Order 13175 does not apply to this rule.
                Public Law 104-121, ``Congressional Review Act'', (5 U.S.C Chapter 8)
                 The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by
                the Small Business Regulatory Enforcement Fairness Act of 1996,
                generally provides that before a rule may take effect, the agency
                promulgating the rule must submit a rule report, which includes a copy
                of the rule, to each House of the Congress and to the Comptroller
                General of the United States. We will submit a report containing this
                rule and other required information to the U.S. Senate, the U.S. House
                of Representatives, and the Comptroller General of the United States. A
                major rule cannot take effect until 60 days after it is published in
                the Federal Register. This rule is not a ``major rule'' as defined by 5
                U.S.C. 804(2).
                Executive Order 12898, ``Federal Actions To Address Environmental
                Justice in Minority Populations and Low-Income Populations''
                 Executive Order 12898 requires that, to the greatest extent
                practicable and permitted by law, each Federal agency must make
                achieving environmental justice part of its mission. Executive Order
                12898 provides that each Federal agency conduct its programs, policies,
                and activities that substantially affect human health or the
                environment in a manner that ensures that such programs, policies, and
                activities do not have the effect of excluding persons (including
                populations) from participation in, denying persons (including
                populations) the benefits of, or subjecting persons (including
                populations) to discrimination under such programs, policies, and
                activities because of their race, color, or national origin. This rule
                merely adjusts civil penalties to account for inflation, and therefore,
                is not expected to negatively impact any community, and therefore is
                not expected to cause any disproportionately high and adverse impacts
                to minority or low-income communities.
                Executive Order 13211, ``Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, or Use''
                 This rule is not a ``significant energy action'' as defined in
                Executive Order 13211 because it is not likely to have a significant
                adverse effect on the supply, distribution, or use of energy.
                List of Subjects
                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, Waterways.
                 Dated: July 6, 2021.
                 Approved by:
                Jaime A. Pinkham,
                Acting Assistant Secretary of the Army (Civil Works).
                Title 33--Navigation and Navigable Waters
                 For the reasons set out in the preamble, title 33, chapter II of
                the Code of Federal Regulations is amended 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. 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 $5,903 per violation under 33 U.S.C. 555, as amended.
                * * * * *
                [[Page 37249]]
                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 $22,585 per violation,
                except that the maximum amount of any Class I civil penalty shall not
                exceed $56,461. Under Section 404(s)(4) of the Clean Water Act,
                judicially-imposed civil penalties may not exceed $56,461 per day for
                each violation. Under Section 205(e) of the National Fishing
                Enhancement Act, penalties for violations of permits issued in
                accordance with that Act shall not exceed $24,730 for each violation.
                 Table 1 to Paragraph (a)(1)
                ----------------------------------------------------------------------------------------------------------------
                 Environmental statute and U.S. code Statutory civil monetary penalty amount for violations that occurred after
                 citation November 2, 2015, and are assessed on or after 7/15/2021
                ----------------------------------------------------------------------------------------------------------------
                Clean Water Act (CWA), Section $22,585 per violation, with a maximum of $56,461.
                 309(g)(2)(A), 33 U.S.C.
                 1319(g)(2)(A).
                CWA, Section 404(s)(4), 33 U.S.C. Maximum of $56,461 per day for each violation.
                 1344(s)(4).
                National Fishing Enhancement Act, Maximum of $24,730 per violation.
                 Section 205(e), 33 U.S.C. 2104(e).
                ----------------------------------------------------------------------------------------------------------------
                * * * * *
                [FR Doc. 2021-14716 Filed 7-14-21; 8:45 am]
                BILLING CODE 3720-58-P
                

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