Federal Register, Volume 69 Issue 122 (Friday, June 25, 2004)

[Federal Register Volume 69, Number 122 (Friday, June 25, 2004)]
[Rules and Regulations]
[Pages 35515-35518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-14396]

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DEPARTMENT OF DEFENSE

Department of the Army; Corps of Engineers

33 CFR Part 326

RIN 0710-AA54

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 amending its
regulations to ajust its Class I civil penalties under the Clean Water
Act and the National Fishing Enhancement Act. 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 civil penalties to account for
inflation since 1989, we are making the initial 10 percent increase
under this Act. The Class I civil penalty under the Clean Water Act
will not exceed $11,000 per violation, with a maximum civil penalty
amount of $27,500. Under the National Fishing Enhancement Act, the
Class I civil penalty will not exceed $11,000 per violation. Increasing
the maximum amounts of the Class I civil penalties to account for
inflation will maintain the deterrent effects of those penalties.

DATES: Effective Date: July 26, 2004.

ADDRESSES: HQUSACE, ATTN: CECW-CO, 441 ``G'' Street, NW., Washington,
DC 20314-1000.

FOR FURTHER INFORMATION CONTACT: Mr. David Olson at 202-761-4922 or
access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/inet/functions/cw/cecwo/reg/.

SUPPLEMENTARY INFORMATION:

Background

In the August 20, 2003, issue of the Federal Register (68 FR 50108)
the Corps issued a proposal to amend 33 CFR 326.6(a)(1) to increase its
Class I administrative penalties under section 309(g) of the Clean
Water Act and section 205(e) of the National Fishing Enhancement Act to
account for inflation. Under section 309(g) of the Clean Water Act,
Class I civil penalties can be assessed for violations of the
conditions and limitations of permits issued under section 404 of the
Clean Water Act. Under section 205(e) of the National Fishing
Enhancement Act, Class I civil penalties can be assessed for violations
of permits issued under section 10 of the Rivers and Harbors Act of
1899 and/or section 404 of the Clean Water Act for the construction and
management of artificial reefs.
According to section 4 of the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended, each Federal agency is required to
adjust for inflation the maximum civil monetary penalties that can be
imposed pursuant to that agency's statutory authorities. Under section
6 of the Federal Civil Penalties Inflation Adjustment Act of 1990, as
amended, the initial adjustment is limited to 10 percent of the civil
penalty amount. Since we had not made any inflation adjustments for the
Class I civil penalties since 33 CFR 326.6 was promulgated in 1989, we
are limited to a 10 percent increase for these civil penalties.
Therefore, we proposed to increase the Class I civil penalty for
violations of the conditions and limitations of Clean Water Act section
404 permits, so that it may not exceed $11,000 per violation, with a
$27,500 maximum penalty. We also proposed to increase the Class I civil
penalty for violations of permits for the construction and management
of artificial reefs under section 205 of the National Fishing
Enhancement Act of 1984 so that it may not exceed $11,000 per
violation.
In response to the August 20, 2003, proposal, we received no
comments. Therefore, we are amending 33 CFR 326.6 as indicated below.

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 final 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.
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,

[[Page 35516]]

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, which expires on December
31, 2004).

Executive Order 12866

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
the Executive Order.
Pursuant to the terms of Executive Order 12866, we have determined
that this final rule is not a ``significant regulatory action'' because
it does not meet any of these four criteria. This final rule adjusts
the Class I civil penalty amounts for violations of permit conditions
and limitations for activities that involve discharges of dredged or
fill material into waters of the United States and/or the construction
and management of artificial reefs in navigable waters.

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 final 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 final rule does not impose new substantive
requirements. In addition, this final 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 final 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 final 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 the final rule on small
entities, we believe that this action will not have a significant
economic impact on a substantial number of small entities. The Corps
regulations at 33 CFR 326.6 had set the Class I civil penalties under
section 309(g)(2)(A) at no more than $10,000 per violation, with a
maximum of $25,000. The Class I civil penalties under section 205 of
the National Fishing Enhancement Act could have been up to $10,000 per
violation. The final rule increases those Class I civil penalties by 10
percent, in accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended. The final 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.
We have determined that this final 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. Previously, in 33 CFR 326.6, the Class I civil
penalties under section 309(g)(2)(A) of the Clean Water Act could not
exceed $10,000 per violation, with a $25,000 maximum. A Class I civil
penalty under section 205(e) of the National Fishing Enhancement Act

[[Page 35517]]

could not exceed $10,000 for each violation. This final rule adjusts
those civil penalties, through 10 percent increases to account for
inflation, as required by the Federal Civil Penalties Adjustment Act of
1990, as amended. Under this final rule, the Class I civil penalties
under section 309(g)(2)(A) of the Clean Water Act cannot exceed $11,000
per violation, with a $27,500 maximum. Under this final rule, a Class I
civil penalty under section 205(e) of the National Fishing Enhancement
Act cannot exceed $11,000 for each violation. This final 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 final rule is not subject to
the requirements of sections 202 and 205 of the UMRA. For the same
reasons, we have determined that this final rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, this final 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), Pub. L. 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 final 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 final rule on children, and explain why the
regulation is preferable to other potentially effective and reasonably
feasible alternatives.
This final 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 final 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 final rule adjusts the civil
penalties in 33 CFR 326.6 through 10 percent increases to account for
inflation, as required by the Federal Civil Penalties 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 final 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 final rule. This
final rule only revises our Class I civil penalties to account for
inflation, as required by the Federal Civil Penalties 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 final 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 final 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 final 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 final 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

[[Page 35518]]

of energy. This final 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
inflation. This final 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: June 18, 2004.
Carl A. Strock,
Major General, U.S. Army, Director of Civil Works.

0
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 is revised 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 $27,500. 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.
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[FR Doc. 04-14396 Filed 6-24-04; 8:45 am]
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