[Federal Register Volume 82, Number 197 (Friday, October 13, 2017)]
[Rules and Regulations]
[Pages 47623-47628]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-22218]


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DEPARTMENT OF DEFENSE

Department of the Army, Corps of Engineers

33 CFR Part 326

[COE-2017-0008]
RIN 0710-AA77


Civil Monetary Penalty Inflation Adjustment Rule

AGENCY: U.S. Army Corps of Engineers, Department of Defense

ACTION: Direct 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 under the Clean Water Act 
(CWA) and the National Fishing Enhancement Act to account for 
inflation. This action is mandated by the Federal Civil Penalties 
Inflation Adjustment Act of 1990, as amended by the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation 
Adjustment Act), which requires agencies to adjust the levels of civil 
monetary penalties with an initial ``catch-up'' adjustment followed by 
annual adjustments for inflation. The Inflation Adjustment Act 
prescribes a formula for adjusting statutory civil penalties to reflect 
inflation, maintain the deterrent effect of statutory civil penalties, 
and promote compliance with the law. Using the adjustment criteria 
provided in the Inflation Adjustment Act for the initial ``catch-up'' 
adjustment and the December 16, 2016, Office of Management and Budget 
Memorandum regarding the ``Implementation of the 2017 annual adjustment 
pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015'', the 2016 catch-up adjustment and 2017 
annual adjustment for inflation will increase the Class I civil penalty 
under Section 309 of the Clean Water Act to $20,966 per violation, and 
the maximum civil penalty increases to $52,414. The judicial civil 
penalty under Section 404(s) of the Clean Water Act increases to 
$52,414 per day for each violation. Under the National Fishing 
Enhancement Act, the Class I civil penalty increases to $22,957 per 
violation.

DATES: This rule is effective December 12, 2017 without further notice, 
unless the Corps receives substantive adverse comment by November 13, 
2017. 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-
2017-0008, by any of the following methods:.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Email: <a href="/cdn-cgi/l/email-protection#2350574240465a0d4e0d49464d50464d6356504240460d42514e5a0d4e4a4f"><span class="__cf_email__" data-cfemail="0576716466607c2b682b6f606b76606b4570766466602b6477687c2b686c69">[email protected]</span></a>. Include the docket number, 
COE-2017-0008, in the subject line of the message.
    Mail: U.S. Army Corps of Engineers, ATTN: CECW-CO (Stacey M. 
Jensen), 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-2017-0008. 
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

[[Page 47624]]

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: Ms. Stacey M. Jensen at 202-761-5856 
or by email at <a href="/cdn-cgi/l/email-protection#81f2f5e0e2e4f8afecafebe4eff2e4efc1f4f2e0e2e4afe0f3ecf8afece8ed"><span class="__cf_email__" data-cfemail="394a4d585a5c40175417535c574a5c57794c4a585a5c17584b544017545055">[email protected]</span></a> or 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

    The Corps is publishing this final rule to adjust its civil 
monetary penalties for inflation pursuant to the Inflation Adjustment 
Act. This law requires the Corps to publish an initial ``catch-up'' 
adjustment with subsequent annual adjustments for inflation. The 
purpose of the Inflation Adjustment Act is to maintain the deterrent 
effect of civil penalties by translating originally enacted statutory 
civil penalty amounts to today's dollars and rounding statutory civil 
penalties to the nearest dollar. Although the Inflation Adjustment Act 
required agencies to make an initial ``catch-up'' adjustment through an 
interim final rule to be published by July 1, 2016, and to publish 
annual adjustments beginning no later than January 15, 2017, the Corps 
has not yet made either adjustment. Accordingly, the Corps is combining 
both the ``catch-up'' adjustment that would have become effective by 
August 1, 2016, and the first annual adjustment that would have become 
effective by January 15, 2017, in this final rule. The rule will apply 
prospectively, to penalty assessments beginning on its effective date. 
Subsequently, the Corps intends to publish annual adjustments as 
required by the Inflation Adjustment Act, no later than January 15 of 
each calendar year.
    Pursuant to the Inflation Adjustment Act, the Administrative 
Procedure Act, 5 U.S.C. 553(b)(3)(B), and guidance issued by the Office 
of Management and Budget (OMB),\1\ the Corps finds that good cause 
exists for issuing this final rule without prior notice and comment. 
The Inflation Adjustment Act does not require agencies to implement the 
required adjustments through a notice and comment process unless 
proposing an adjustment of less than the amount otherwise required, and 
the Corps is not exercising any discretion it may have to make a lesser 
adjustment. For the annual adjustments beginning in 2017, the Inflation 
Adjustment Act provides a clear formula for adjustment of the civil 
penalties, and the Corps has no discretion to vary the amount of the 
adjustment to reflect any views or suggestions provided by commenters. 
The Inflation Adjustment Act further provides that the increased 
penalty levels apply to penalties assessed after the effective date of 
the increase. For these reasons, the Corps finds that notice and 
comment would be impracticable and unnecessary in this situation and 
contrary to the language of the Inflation Adjustment Act. The Corps 
also notes that as we have no discretion on this action, comments 
received on this civil penalty rulemaking will generally not be viewed 
as ``adverse,'' but the 30-day delayed effective date period does 
provide the opportunity for the public to voice their concerns if we 
have overlooked anything.
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    \1\ See Office of Management and Budget (OMB) Memoranda M-16-06 
(Feb. 24, 2016) and M-17-11 (Dec. 16, 2016).
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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), most rules are 
subject to notice and comment and are effective no earlier than 30 days 
after publication in the Federal Register. However, because the 
Inflation Adjustment Act directed agencies to make the initial ``catch-
up'' adjustment through an interim final rule, agencies were not 
required to complete a notice and comment process prior to promulgating 
that adjustment.\2\ 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 2016 OMB guidance issued to Federal agencies on the 
implementation of the 2017 annual adjustment, the phrase 
``notwithstanding section 553'' means that ``the public procedure the 
APA generally provides--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. As 
the Corps did not previously publish an interim final rule, the Corps 
is delaying the effective date of this final rule for 30 days following 
publication.
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    \2\ Federal Civil Penalties Inflation Adjustment Act of 1990, 
Pub. L. 101-410, 4(b)(1)(A), 104 Stat. 890 (amended 2015) (codified 
as amended at 28 U.S.C. 2461 note); OMB Memorandum No. M-16-06 at 3.
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Background

    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.
    On November 2, 2015, the President signed into law the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. 
L. 114-74, 701 (Inflation Adjustment Act), which further amended the 
Federal Civil Penalties Inflation Adjustment Act of 1990 as previously 
amended by the 1996 Debt Collection Improvement Act (DCIA; 
collectively, ``prior inflation adjustment Acts''), to improve the 
effectiveness of civil monetary penalties and to maintain their 
deterrent effect. The Inflation Adjustment Act requires agencies to do 
the following: (1) Adjust the level of civil monetary penalties with an 
initial ``catch-up'' adjustment, through an interim final rule to be 
published by July 1, 2016; and (2) beginning no later than January 15, 
2017, make subsequent annual adjustments for inflation. The Inflation 
Adjustment Act does not alter an agency's statutory authority, to the 
extent it exists, to assess penalties below the maximum level. This 
final rule

[[Page 47625]]

implements the initial ``catch-up'' adjustment mandated by the 
Inflation Adjustment Act as well as the 2017 annual inflation 
adjustment mandated by the Act.
    The Inflation Adjustment Act amends prior inflation adjustment Acts 
by substantially revising the method of calculating inflation 
adjustments. Prior inflation adjustment Acts required adjustments to 
civil penalties to be rounded significantly. For example, a penalty 
increase that was greater than $1,000, but less than or equal to 
$10,000, would be rounded to the nearest multiple of $1,000. While this 
allowed penalties to be kept at round numbers, it meant that agencies 
often would not increase penalties at all if the inflation factor was 
not large enough. Furthermore, increases to penalties were capped at 10 
percent, which meant that longer periods without an inflation 
adjustment could cause a penalty to rapidly lose value in real terms. 
Over time, this formula caused agency civil penalties to lose value 
relative to total inflation, thereby undermining Congress' original 
purpose in enacting statutory civil monetary penalties to be a 
deterrent and to promote compliance with the law. The Inflation 
Adjustment Act has removed these rounding rules. Penalties now are 
simply rounded to the nearest dollar. This rounding ensures that 
penalties will be increased each year to more effectively keep up with 
inflation.
    The Inflation Adjustment Act required a ``catch-up'' adjustment 
that reset the inflation calculations by excluding prior inflationary 
adjustments under prior inflation adjustment Acts, and subsequent, 
annual adjustments to all civil penalties under the laws implemented by 
that agency. 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.

Calculation of ``Catch-Up'' Adjustment

    OMB issued guidance on calculating the initial ``catch-up'' 
adjustment in February 2016. That guidance included a table of 
multipliers to adjust the penalty level based on the year that the 
penalty was established or last adjusted by statute or regulation 
(other than the Inflation Adjustment Act).
    Table 1 shows the calculation of the initial catch-up adjustment 
based on the guidance provided by OMB. Column (1) contains the United 
States Code citations for the penalty statute. Column (2) contains the 
dollar amount most recently established by law (other than prior 
inflation adjustment Acts) for each civil monetary penalty. Column (3) 
sets out the year the Corps' civil monetary penalties were enacted or 
last adjusted by law (other than adjustments under the Inflation 
Adjustment Act). Column (4) sets out the factor determined by OMB to 
adjust for inflation from October of the corresponding year in column 
(3) to October 2015. Column (5) sets out the adjusted civil monetary 
penalty resulting from multiplying the dollar amount of the civil 
monetary penalty set out in Column (2) by the inflation factor in 
column (4). Column (6) sets out the civil monetary penalty that was in 
effect on November 2, 2015. Column (7) sets out the maximum catch-up 
penalty--an amount that is 250 percent of the 2015 penalty--which is 
calculated by multiplying the penalty amount in Column (6) by 2.5 (to 
achieve a 150 percent increase for a total of 250 percent of the 2015 
penalty). Column (8) sets out the initial catch-up penalty amount, 
which is the lesser of the adjusted civil monetary penalty in Column 
(5) or the maximum civil monetary penalty in Column (7).

Calculation of 2017 Annual Inflation Adjustment

    The Office of Management and Budget (OMB) issued guidance on 
calculating the 2017 annual inflation adjustment. See December 16, 
2016, Memorandum for the Heads of Executive Departments and Agencies, 
from Shaun Donovan, Director, OMB, Subject: Implementation of the 2017 
annual adjustment 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 2017, based on the CPI-U 
for the month of October 2016, not seasonally adjusted, which is 
1.01636. 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 2017, agencies multiply each applicable penalty by 
the multiplier, 1.01636, and round to the nearest dollar. The 
multiplier should be applied to the most recent penalty amount, i.e., 
the one that includes the initial catch-up adjustment mandated by the 
Inflation Adjustment Act. Column (9) in Table 1 sets out the 2017 
Inflation Adjustment Multiplier while Column (10) sets out the new 
penalty levels which take effect upon the effective date of this 
adjustment, on December 12, 2017.

                                                                                             Table 1
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                                                        Year CMP  Inflation                                                                                         2017
                                     Current civil      enacted     factor     Adjusted CMP--$                           CMP Cap-- 2.5 x       Catch-up CMP--     Inflation
            Citation                monetary penalty    or last    for year   amount in  column     CMP amount as of     amount in column     lesser of column   adjustment    CMP amount as of
                                      (CMP) amount      adjusted  in column    (2) x factor in        Nov. 2, 2015             (6)               (5) or (7)                   December 12, 2017
                                   established by law    by law       (3)         column (4)                                                                     multiplier
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CWA, 33 U.S.C. 1319(g)(2)(A)....  $10,000 per               1987    2.06278  $20,628 per          $11,000 per          $27,500 per          $20,628 per             1.01636  $20,966 per
                                   violation, with a                          violation, with a    violation, with a    violation, with a    violation, with a                violation, with a
                                   maximum of $25,000.                        maximum of $51,570.  maximum of $32,500.  maximum of $81,250.  maximum of $51,570.              maximum of
                                                                                                                                                                              $52,414.
CWA, 33 U.S.C. 1344(s)(4).......  Maximum of $25,000        1987    2.06278  Maximum of $51,570   Maximum of $25,000   Maximum of $81,250   Maximum of $51,570      1.01636  Maximum of $52,414
                                   per day for each                           per day for each     per day for each     per day for each     per day for each                 per day for each
                                   violation.                                 violation.           violation.           violation.           violation.                       violation.
National Fishing Enhancement      Maximum of $10,000        1984    2.25867  Maximum of $22,587   Maximum of $11,000   Maximum of $27,500   Maximum of $22,587      1.01636  Maximum of $22,957
 Act, 33 U.S.C. 2104(e).           per violation.                             per violation.       per violation.       per violation.       per violation.                   per violation.
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    In sum, under this final rule the minimum Class I civil penalty for 
violations under CWA Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)A), will 
increase from $11,000 per violation to $20,966, and the maximum penalty 
will increase from $32,500 per violation to $52,414. Judicially-imposed 
civil penalties under CWA Section 404(s)(4), 33 U.S.C. 1344(s)(4), will 
increase from a maximum of $25,000 per day for each violation to 
$52,414. Finally, the Class

[[Page 47626]]

I civil penalty for violations of Section 205(e) of the National 
Fishing Enhancement Act, 33 U.S.C. 2104(e), will increase from a 
maximum of $11,000 per violation to $22,957.
    This rule will not result in any additional costs to implement the 
Corps Regulatory Program because the Class I civil penalties and 
judicial civil penalties have been in effect since 1990 when the Corps 
first promulgated regulations regarding such penalties (Class I civil 
penalties were first established by statute in 1987). This rule merely 
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 result in additional costs to members of the regulated public who 
do not comply with the terms and conditions of issued Department of the 
Army permits and either receive a final Class I civil administrative 
penalty order from a District Engineer or are subject to a judicial 
civil penalty because it increases the minimum and maximum penalty 
amounts to $20,966 and $52,414 for Class I civil administrative 
penalties under the Clean Water Act, to a maximum of $52,414 for 
judicially-imposed civil penalties under the Clean Water Act, and to a 
maximum of $22,957 for Class I civil administrative penalties under the 
National Fishing Enhancement Act. The benefit of this rule will be to 
improve the effectiveness of Corps civil monetary penalties by 
maintaining their deterrent effect and promoting compliance with the 
law.

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 final rule will not impose any new information collection 
burden under the provisions of the Paperwork Production Act (44 U.S.C. 
3501 et seq.). 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.
    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). However, there are no new approval or 
application processes required as a result of this rulemaking that 
necessitate a new Information Collection Request (ICR). The regulation 
would not impose reporting or recordkeeping requirements. Therefore, 
this action is not subject to the Paperwork Reduction Act.

Executive Order 12866 and Executive Order 13563, ``Improving Regulation 
and Regulatory Review''

    The OMB has not designated this final rule a ``significant 
regulatory action'' under Executive Order 12866. Accordingly, OMB has 
not reviewed this rule. 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. To the extent this rule increases 
civil monetary penalties, it would result in an increase in transfers 
from persons or entities assessed a civil monetary penalty to the 
government.

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. This 
nondiscretionary action is required by the Inflation Adjustment Act and 
will have no 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. 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.
    The Regulatory Flexibility Act applies only to rules subject to 
notice-and-comment rulemaking requirements under the Administrative 
Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-
612. The Regulatory Flexibility Act does not apply to this final rule 
because a notice-and-comment rulemaking process is not required for the 
reasons stated above.

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-

[[Page 47627]]

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 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 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. Therefore, no actions are deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

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. The rule imposes no 
new substantive obligations on tribal governments but instead merely 
adjusts the value of current statutory civil monetary penalties to 
reflect and keep pace with the levels originally set by Congress when 
the statutes were enacted. The calculation of the increases is formula-
driven and prescribed by statute and OMB guidance, and the Corps has no 
discretion to vary the amount of the adjustment to reflect any views or 
suggestions provided by commenters. 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 final rule 
does not constitute a major Federal action significantly affecting the 
quality of the human environment because it merely increases the value 
of statutory civil monetary penalties to reflect and keep pace with the 
levels originally set by Congress when the statutes were enacted. The 
calculation of the increases is formula-driven and prescribed by 
statute and OMB guidance, and the Corps has no discretion to vary the 
amount of the adjustment.
    Appropriate environmental documentation has been, or will be, 
prepared for each permit action that is subject to the civil penalty 
process. Therefore, environmental documentation under the National 
Environmental Policy Act (NEPA) is not required for this final rule.

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

[[Page 47628]]

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 civil 
penalties 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 civil penalties to account for 
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: October 4, 2017.
Douglas W. Lamont,
Senior Official Performing the Duties of the 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 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, 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 $20,966 per 
violation, except that the maximum amount of any Class I civil penalty 
shall not exceed $52,414. Under Section 404(s)(4) of the Clean Water 
Act, judicially-imposed civil penalties may not exceed $52,414 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 $22,957 for each violation.

------------------------------------------------------------------------
                                             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  [Insert Effective Date]
------------------------------------------------------------------------
Clean Water Act (CWA), Section           $20,966 per violation, with a
 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A).   maximum of $52,414.
CWA, Section 404(s)(4), 33 U.S.C.        Maximum of $52,414 per day for
 1344(s)(4).                              each violation.
National Fishing Enhancement Act,        Maximum of $22,957 per
 Section 205(e), 33 U.S.C. 2104(e).       violation.
------------------------------------------------------------------------

* * * * *
[FR Doc. 2017-22218 Filed 10-12-17; 8:45 am]
 BILLING CODE 3720-58-P


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