Rule2022-22480
Civil Monetary Penalty Inflation Adjustment Rule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 18, 2022
Effective
October 18, 2022
Issuing agencies
Defense DepartmentEngineers Corps
Abstract
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.
Full Text
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<title>Federal Register, Volume 87 Issue 200 (Tuesday, October 18, 2022)</title>
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[Federal Register Volume 87, Number 200 (Tuesday, October 18, 2022)]
[Rules and Regulations]
[Pages 62987-62990]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22480]
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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 October 18, 2022.
FOR FURTHER INFORMATION CONTACT: For the RHA portion, please contact
Mr. Paul Clouse at 202-761-4709 or by email at
<a href="/cdn-cgi/l/email-protection#d989b8acb5f79df79ab5b6acaabc99acaab8babcf7b8abb4a0f7b4b0b5"><span class="__cf_email__" data-cfemail="bcecddc9d092f892ffd0d3c9cfd9fcc9cfdddfd992ddced1c592d1d5d0">[email protected]</span></a>, or for the CWA and NFEA portion, please
contact Mr. Matt Wilson 202-761-5856 or by email at
<a href="/cdn-cgi/l/email-protection#8ec3effafae6ebf9a0dda0d9e7e2fde1e0cefbfdefedeba0effce3f7a0e3e7e2"><span class="__cf_email__" data-cfemail="cb86aabfbfa3aebce598e59ca2a7b8a4a58bbeb8aaa8aee5aab9a6b2e5a6a2a7">[email protected]</span></a> or access the U.S. Army Corps of
Engineers Regulatory Home Page at <a href="https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/">https://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and-Permits/</a>.
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 2022 annual inflation adjustment based on the guidance provided by
the Office of Management and Budget (OMB) (see December 15, 2021,
Memorandum for the Heads of Executive Departments and Agencies,
Subject: Implementation of Penalty Inflation Adjustments for 2022,
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 2022, based on the Consumer Price
Index for All Urban Consumers (CPI-U) for the month of October 2021,
not seasonally adjusted, which is 1.06222. 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 2022, agencies multiply
each applicable penalty by the multiplier, 1.06222, and round to the
nearest dollar. The multiplier should be applied to the most recent
penalty amount, i.e., the one that includes the 2021 annual inflation
adjustment.
Table 1
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Civil Monetary
Penalty (CMP) 2021 CMP amount in 2022 Inflation CMP Amount as of
Citation amount established effect prior to adjustment October 18, 2022
by law this rulemaking multiplier
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Rivers and Harbors Act of 1922 $2,500 per $5,903 per 1.06222 $6,270 per
(33 U.S.C. 555). violation. violation. violation.
CWA, 33 U.S.C. 1319(g)(2)(A)..... $10,000 per $22,585 per 1.06222 $23,990 per
violation, with a violation, with a violation, with a
maximum of $25,000. maximum of $56,461. maximum of
$59,974.
CWA, 33 U.S.C. 1344(s)(4)........ Maximum of $25,000 Maximum of $56,461 1.06222 Maximum of $59,974
per day for each per day for each per day for each
violation. violation. violation.
[[Page 62988]]
National Fishing Enhancement Act, Maximum of $10,000 Maximum of $24,730 1.06222 Maximum of $26,269
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 2021 OMB guidance issued to Federal
agencies on the implementation of the 2022 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 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)
[[Page 62989]]
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, 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 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 $6,270 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 $23,990 per violation,
except that the maximum amount of any Class I civil penalty shall not
exceed $59,974. Under Section 404(s)(4) of the Clean Water Act,
judicially-imposed civil penalties may not exceed $59,974 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 $26,269 for each violation.
[[Page 62990]]
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 October 18, 2022
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Clean Water Act (CWA), Section $23,990 per violation, with a
309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A). maximum of $59,974.
CWA, Section 404(s)(4), 33 U.S.C. Maximum of $59,974 per day for
1344(s)(4). each violation.
National Fishing Enhancement Act, Maximum of $26,269 per
Section 205(e), 33 U.S.C. 2104(e). violation.
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[FR Doc. 2022-22480 Filed 10-17-22; 8:45 am]
BILLING CODE 3720-58-P
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