Civil Penalties Inflation Adjustments; Annual Adjustments, 5192-5195 [2018-02200]
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Federal Register / Vol. 83, No. 25 / Tuesday, February 6, 2018 / Rules and Regulations
related to fentanyl by one or more of the
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Dated: February 1, 2018.
Robert W. Patterson,
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[FR Doc. 2018–02319 Filed 2–5–18; 8:45 am]
BILLING CODE 4410–09–P
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/
A0A501010.999900253G]
25 CFR Parts 140, 141, 211, 213, 225,
226, 227, 243, and 249
RIN 1076–AF40
Civil Penalties Inflation Adjustments;
Annual Adjustments
Bureau of Indian Affairs,
Interior.
ACTION: Final rule.
AGENCY:
This rule provides for annual
adjustments to the level of civil
monetary penalties contained in Bureau
of Indian Affairs (Bureau) regulations to
account for inflation under the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 and Office of
Management and Budget (OMB)
guidance.
DATES: This rule is effective on February
6, 2018.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Appel, Director, Office of
Regulatory Affairs and Collaborative
Action, Office of the Assistant
Secretary—Indian Affairs; telephone
(202) 273–4680, elizabeth.appel@
bia.gov.
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SUMMARY:
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SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of Annual Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866, 13563, and 13771)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement
Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O.
13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O.
13211)
L. Clarity of This Regulation
M. Administrative Procedure Act
I. Background
On November 2, 2015, the President
signed into law the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (Sec. 701 of
Pub. L. 114–74) (‘‘the Act’’). The Act
requires Federal agencies to adjust the
level of civil monetary penalties with an
initial ‘‘catch-up’’ adjustment through
rulemaking and then make subsequent
annual adjustments for inflation. The
purpose of these adjustments is to
maintain the deterrent effect of civil
penalties and to further the policy goals
of the underlying statutes.
The Office of Management and Budget
(OMB) issued guidance for Federal
agencies on calculating the catch-up
adjustment. See February 24, 2016,
Memorandum for the Heads of
Executive Departments and Agencies,
from Shaun Donovan, Director, Office of
Management and Budget, re:
Implementation of the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (M–16–06).
Under the guidance, the Department
identified applicable civil monetary
penalties and calculated the catch-up
adjustment. A civil monetary penalty is
any assessment with a dollar amount
that is levied for a violation of a Federal
civil statute or regulation, and is
assessed or enforceable through a civil
action in Federal court or an
administrative proceeding. A civil
monetary penalty does not include a
penalty levied for violation of a criminal
statute, or fees for services, licenses,
permits, or other regulatory review. The
calculated catch-up adjustment is based
on the percent change between the
Consumer Price Index for all Urban
Consumers (CPI0–U) for the month of
October in the year of the previous
adjustment (or in the year of
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establishment, if no adjustment has
been made) and the October 2015
CPI–U.
The Bureau issued an interim final
rule providing for calculated catch-up
adjustments on June 30, 2016 (81 FR
42478) with an effective date of August
1, 2016, and requesting comments postpromulgation. The Bureau issued a final
rule affirming the catch-up adjustments
set forth in the interim final rule on
December 2, 2016 (81 FR 86953). The
Bureau then issued a final rule making
the next scheduled annual inflation
adjustment for 2017 on January 23, 2017
(82 FR 7649).
II. Calculation of 2018 Annual
Adjustments
OMB recently issued guidance to
assist Federal agencies in implementing
the annual adjustments required by the
Act which agencies must complete by
January 15, 2018. See December 15,
2017, Memorandum for the Heads of
Executive Departments and Agencies,
from Mick Mulvaney, Director, Office of
Management and Budget, re:
Implementation of the Penalty Inflation
Adjustments for 2018, Pursuant to the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (M–18–03). The guidance states
that the cost-of-living adjustment
multiplier for 2018, based on the
Consumer Price Index (CPI–U) for the
month of October 2017, not seasonally
adjusted, is 1.02041. (The annual
inflation adjustments are based on the
percent change between the October
CPI–U preceding the date of the
adjustment, and the prior year’s October
CPI–U. For 2017, OMB explains,
October 2017 CPI–U (246.663)/October
2016 CPI–U (241.729) = 1.02041.) The
guidance instructs agencies to complete
the 2018 annual adjustment by
multiplying each applicable penalty by
the multiplier, 1.02041, and rounding to
the nearest dollar. Further, agencies
should apply the multiplier to the most
recent penalty amount that includes the
initial catch-up adjustment required by
the Act.
The annual adjustment applies to all
civil monetary penalties with a dollar
amount that are subject to the Act. This
final rule adjusts the following civil
monetary penalties contained in the
Bureau’s regulations for 2018 by
multiplying 1.02041 (i.e., the cost-ofliving adjustment multiplier for 2018)
by each penalty amount as updated by
the adjustment made in 2017:
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Current
penalty
including
catchup
adjustment
CFR citation
Description of penalty
25 CFR 140.3 ................
25 CFR 141.50 ..............
Penalty for trading in Indian country without a license ...................
Penalty for trading on Navajo, Hopi or Zuni reservations without a
license.
Penalty for violation of leases of Tribal land for mineral development, violation of part 211, or failure to comply with a notice of
noncompliance or cessation order.
Penalty for failure of lessee to comply with lease of restricted
lands of members of the Five Civilized Tribes in Oklahoma for
mining, operating regulations at part 213, or orders.
Penalty for violation of minerals agreement, regulations at part
225, other applicable laws or regulations, or failure to comply
with a notice of noncompliance or cessation order.
Penalty for violation of lease of Osage reservation lands for oil
and gas mining or regulations at part 226, or noncompliance
with the Superintendent’s order.
Penalty per day for failure to obtain permission to start operations
Penalty per day for failure to file records .......................................
Penalty for each well and tank battery for failure to mark wells
and tank batteries.
Penalty each day after operations are commenced for failure to
construct and maintain pits.
Penalty for failure to comply with requirements regarding valve or
other approved controlling device.
Penalty for failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well.
Penalty per day for failure to properly care for and dispose of deleterious fluids.
Penalty per day for failure to file plugging and other required reports.
Penalty for failure of lessee of certain lands in Wind River Indian
Reservation, Wyoming, for oil and gas mining to comply with
lease provisions, operating regulations, regulations at part 227,
or orders.
Penalty for non-Native transferees of live Alaskan reindeer who
violates part 243, takes reindeer without a permit, or fails to
abide by permit terms.
Penalty for fishing in violation of regulations at part 249 (Off-Reservation Treaty Fishing).
25 CFR 211.55 ..............
25 CFR 213.37 ..............
25 CFR 225.37 ..............
25 CFR 226.42 ..............
25 CFR 226.43(a) ..........
25 CFR 226.43(b) ..........
25 CFR 226.43(c) ..........
25 CFR 226.43(d) ..........
25 CFR 226.43(e) ..........
25 CFR 226.43(f) ...........
25 CFR 226.43(g) ..........
25 CFR 226.43(h) ..........
25 CFR 227.24 ..............
25 CFR 243.8 ................
25 CFR 249.6(b) ............
Consistent with the Act, the adjusted
penalty levels for 2018 will take effect
immediately upon the effective date of
the adjustment. The adjusted penalty
levels for 2018 will apply to penalties
assessed after that date including, if
consistent with agency policy,
assessments associated with violations
that occurred on or after November 2,
2015 (the date of the Act). The Act does
not, however, change previously
assessed penalties that the Bureau is
collecting or has collected. Nor does the
Act change an agency’s existing
statutory authorities to adjust penalties.
III. Procedural Requirements
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A. Regulatory Planning and Review
(E.O. 12866, 13563, and 13771)
Executive Order 12866 provides that
the Office of Information and Regulatory
Affairs in the Office of Management and
Budget will review all significant rules.
The Office of Information and
Regulatory Affairs has determined that
this rule is not significant.
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Executive Order 13563 reaffirms the
principles of E.O. 12866 while calling
for improvements in the nation’s
regulatory system to promote
predictability, to reduce uncertainty,
and to use the best, most innovative,
and least burdensome tools for
achieving regulatory ends. The
executive order directs agencies to
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public
where these approaches are relevant,
feasible, and consistent with regulatory
objectives. E.O. 13563 emphasizes
further that regulations must be based
on the best available science and that
the rulemaking process must allow for
public participation and an open
exchange of ideas. We have developed
this rule in a manner consistent with
these requirements.
E.O. 13771 of January 30, 2017,
directs Federal agencies to reduce the
regulatory burden on regulated entities
and control regulatory costs. E.O. 13771,
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Annual
adjustment
(multiplier)
5193
Adjusted
penalty
for 2018
$1,270
1,270
1.02041
1.02041
$1,296
1,296
1,527
1.02041
1,558
1,270
1.02041
1,296
1,617
1.02041
1,650
906
1.02041
924
90
90
90
1.02041
1.02041
1.02041
92
92
92
90
1.02041
92
181
1.02041
185
362
1.02041
369
906
1.02041
924
90
1.02041
92
1,270
1.02041
1,296
5,989
1.02041
6,111
1,270
1.02041
1,296
however, applies only to significant
regulatory actions, as defined in Section
3(f) of E.O. 12866. OIRA has determined
that agency regulations exclusively
implementing the annual adjustment are
not significant regulatory actions under
E.O. 12866, provided they are consistent
with OMB Memorandum M–18–03 (See
OMB Memorandum M–18–03 at 3).
Therefore, E.O. 13771 does not apply to
this final rule.
B. Regulatory Flexibility Act
This rule will not have a significant
economic effect on a substantial number
of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.)
because the rule makes adjustments for
inflation.
C. Small Business Regulatory
Enforcement Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
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(a) Does not have an annual effect on
the economy of $100 million or more.
(b) Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
(c) Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an
unfunded mandate on State, local, or
tribal governments, or the private sector
of more than $100 million per year. The
rule does not have a significant or
unique effect on State, local, or tribal
governments or the private sector. A
statement containing the information
required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not
required.
E. Takings (E.O. 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under Executive
Order 12630. A takings implication
assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of
Executive Order 13132, this rule does
not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement. A federalism summary
impact statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the
requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a)
requiring that all regulations be
reviewed to eliminate errors and
ambiguity and be written to minimize
litigation; and
(b) Meets the criteria of section 3(b)(2)
requiring that all regulations be written
in clear language and contain clear legal
standards.
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H. Consultation With Indian Tribes
(E.O. 13175 and Departmental Policy)
The Department of the Interior strives
to strengthen its government-togovernment relationship with Indian
tribes through a commitment to
consultation with Indian Tribes and
recognition of their right to selfgovernance and tribal sovereignty. We
have evaluated this rule under the
Department’s consultation policy and
under the criteria in Executive Order
13175 and have determined that it has
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no substantial direct effects on federally
recognized Indian Tribes and that
consultation under the Department’s
Tribal consultation policy is not
required.
I. Paperwork Reduction Act
This rule does not contain
information collection requirements,
and a submission to the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.) is not required. We may
not conduct or sponsor, and you are not
required to respond to, a collection of
information unless it displays a
currently valid OMB control number.
J. National Environmental Policy Act
This rule does not constitute a major
Federal action significantly affecting the
quality of the human environment. A
detailed statement under the National
Environmental Policy Act of 1969
(NEPA) is not required because the rule
is covered by a categorical exclusion.
This rule is excluded from the
requirement to prepare a detailed
statement because it is a regulation of an
administrative nature. (For further
information see 43 CFR 46.210(i).) We
have also determined that the rule does
not involve any of the extraordinary
circumstances listed in 43 CFR 46.215
that would require further analysis
under NEPA.
K. Effects on the Energy Supply (E.O.
13211)
This rule is not a significant energy
action under the definition in Executive
Order 13211. A Statement of Energy
Effects is not required.
L. Clarity of This Regulation
We are required by Executive Orders
12866 (section 1(b)(12)), 12988 (section
3(b)(1)(B)), and 13563 (section 1(a)), and
by the Presidential Memorandum of
June 1, 1998, to write all rules in plain
language. This means that each rule we
publish must:
(a) Be logically organized;
(b) Use the active voice to address
readers directly;
(c) Use common, everyday words and
clear language rather than jargon;
(d) Be divided into short sections and
sentences; and
(e) Use lists and tables wherever
possible.
If you feel that we have not met these
requirements, send us comments by one
of the methods listed in the ADDRESSES
section. To better help us revise the
rule, your comments should be as
specific as possible. For example, you
should tell us the numbers of the
sections or paragraphs that you find
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unclear, which sections or sentences are
too long, the sections where you feel
lists or tables would be useful, etc.
M. Administrative Procedure Act
The Act requires agencies to publish
annual inflation adjustments by no later
than January 15, 2018, notwithstanding
section 553 of the Administrative
Procedure Act (APA) (5 U.S.C. 553).
OMB has interpreted this direction to
mean that the usual APA public
procedure for rulemaking—which
includes public notice of a proposed
rule, an opportunity for public
comment, and a delay in the effective
date of a final rule—is not required
when agencies issue regulations to
implement the annual adjustments to
civil penalties that the Act requires.
Accordingly, we are issuing the 2018
annual adjustments as a final rule
without prior notice or an opportunity
for comment and with an effective date
immediately upon publication in the
Federal Register.
Section 553(b) of the Administrative
Procedure Act (APA) provides that,
when an agency for good cause finds
that ‘‘notice and public procedure . . .
are impracticable, unnecessary, or
contrary to the public interest,’’ the
agency may issue a rule without
providing notice and an opportunity for
prior public comment. Under section
553(b), the Bureau finds that there is
good cause to promulgate this rule
without first providing for public
comment. It would not be possible to
meet the deadlines imposed by the Act
if we were to first publish a proposed
rule, allow the public sufficient time to
submit comments, analyze the
comments, and publish a final rule.
Also, the Bureau is promulgating this
final rule to implement the statutory
directive in the Act, which requires
agencies to publish a final rule and to
update the civil penalty amounts by
applying a specified formula. The
Bureau has no discretion to vary the
amount of the adjustment to reflect any
views or suggestions provided by
commenters. Accordingly, it would
serve no purpose to provide an
opportunity for public comment on this
rule prior to promulgation. Thus,
providing for notice and public
comment is impracticable and
unnecessary.
Furthermore, the Bureau finds under
section 553(d)(3) of the APA that good
cause exists to make this final rule
effective immediately upon publication
in the Federal Register. In the Act,
Congress expressly required Federal
agencies to publish annual inflation
adjustments to civil penalties in the
Federal Register by January 15, 2018,
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notwithstanding section 553 of the APA.
Under the statutory framework and
OMB guidance, the new penalty levels
take effect immediately upon the
effective date of the adjustment. The
statutory deadline does not allow time
to delay this rule’s effective date beyond
publication. Moreover, an effective date
after January 15 would delay
application of the new penalty levels,
contrary to Congress’s intent.
List of Subjects
25 CFR Part 140
§ 140.3
PART 141—BUSINESS PRACTICES ON
THE NAVAJO, HOPI AND ZUNI
RESERVATIONS
3. The authority citation for part 141
continues to read as follows:
■
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9;
and Sec. 701, Pub. L. 114–74, 129 Stat. 599,
unless otherwise noted.
§ 141.50
Business and industry, Indians,
Penalties.
[Amended]
2. In § 140.3, remove ‘‘$1,270’’ and
add in its place ‘‘$1,296’’.
■
[Amended]
4. In § 141.50, remove ‘‘$1,270’’ and
add in its place ‘‘$1,296’’.
■
25 CFR Part 141
PART 211—LEASING OF TRIBAL
LANDS FOR MINERAL DEVELOPMENT
Business and industry, Credit,
Indians—business and finance,
Penalties.
25 CFR Part 211
5. The authority citation for part 211
continues to read as follows:
Geothermal energy, Indians—lands,
Mineral resources, Mines, Oil and gas
exploration, Reporting and
recordkeeping requirements.
Authority: Sec. 4, Act of May 11, 1938 (52
Stat. 347); Act of August 1, 1956 (70 Stat.
744); 25 U.S.C. 396a–g; 25 U.S.C. 2 and 9;
and Sec. 701, Pub. L. 114–74, 129 Stat. 599,
unless otherwise noted.
25 CFR Part 213
§ 211.55
■
Indians—lands, Mineral resources,
Mines, Oil and gas exploration,
Reporting and recordkeeping
requirements.
6. In § 211.55(a), remove ‘‘$1,527’’ and
add in its place ‘‘$1,558’’.
■
PART 213—LEASING OF RESTRICTED
LANDS FOR MEMBERS OF FIVE
CIVILIZED TRIBES, OKLAHOMA, FOR
MINING
25 CFR Part 225
Geothermal energy, Indians—lands,
Mineral resources, Mines, Oil and gas
exploration, Penalties, Reporting and
recordkeeping requirements, Surety
bonds.
7. The authority citation for part 213
continues to read as follows:
■
Authority: Sec. 2, 35 Stat. 312; sec. 18, 41
Stat. 426; sec. 1, 45 Stat. 495; sec. 1, 47 Stat.
777; 25 U.S.C. 356; and Sec. 701, Pub. L.
114–74, 129 Stat. 599. Interpret or apply secs.
3, 11, 35 Stat. 313, 316; sec. 8, 47 Stat. 779,
unless otherwise noted.
25 CFR Part 226
Indians—lands.
25 CFR Part 227
Indians—lands, Mineral resources,
Mines, Oil and gas exploration,
Reporting and recordkeeping
requirements.
§ 213.37
[Amended]
8. In § 213.37, remove ‘‘$1,270’’ and
add in its place ‘‘$1,296’’.
PART 225—OIL AND GAS,
GEOTHERMAL AND SOLID MINERALS
AGREEMENTS
Indians, Livestock.
25 CFR Part 249
9. The authority citation for part 225
continues to read as follows:
Fishing, Indians.
For the reasons given in the preamble,
the Department of the Interior amends
25 CFR Chapter I as follows:
■
PART 140—LICENSED INDIAN
TRADERS
§ 225.37
Authority: Sec. 5, 19 Stat. 200, sec. 1, 31
Stat. 1066 as amended; 25 U.S.C. 261, 262;
94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and
9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114–
74, 129 Stat. 599, unless otherwise noted.
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[Amended]
PART 226—LEASING OF OSAGE
RESERVATION LANDS FOR OIL AND
GAS MINING
11. The authority citation for part 226
continues to read as follows:
■
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§ 226.42
[Amended]
12. In § 226.42, remove ‘‘$906’’ and
add in its place ‘‘$924’’.
■
§ 226.43
[Amended]
13. In § 226.43:
a. Remove ‘‘$90’’ each time it appears
and add in each place ‘‘$92’’ wherever
it appears in this section.
■ b. In paragraph (e), remove ‘‘$181’’
and add in its place ‘‘$185’’.
■ c. In paragraph (f), remove ‘‘$362’’ and
add in its place ‘‘$369’’.
■ d. In paragraph (g), remove ‘‘$906’’
and add in its place ‘‘$924’’.
■
■
PART 227—LEASING OF CERTAIN
LANDS IN WIND RIVER INDIAN
RESERVATION, WYOMING, FOR OIL
AND GAS MINING
14. The authority citation for part 227
continues to read as follows:
■
Authority: Sec. 1, 39 Stat. 519; and Sec.
701, Pub. L. 114–74, 129 Stat. 599, unless
otherwise noted.
§ 227.24
[Amended]
15. In § 227.24, remove ‘‘$1,270’’ and
add in its place ‘‘$1,296’’.
■
PART 243—REINDEER IN ALASKA
16. The authority citation for part 243
continues to read as follows:
■
Authority: Sec. 12, 50 Stat. 902; 25 U.S.C.
500K; and Sec. 701, Pub. L. 114–74, 129 Stat.
599.
§ 243.8
[Amended]
17. In § 243.8(a) introductory text,
remove ‘‘$5,989’’ and add in its place
‘‘$6,111’’.
PART 249—OFF-RESERVATION
TREATY FISHING
18. The authority citation for part 249
continues to read as follows:
■
Authority: 25 U.S.C. 2, and 9; 5 U.S.C. 301;
and Sec. 701, Pub. L. 114–74, 129 Stat. 599,
unless otherwise noted.
§ 249.6
[Amended]
19. In § 249.6(b), remove ‘‘$1,270’’ and
add in its place ‘‘$1,296’’.
■
10. In § 225.37(a), remove ‘‘$1,617’’
and add in its place ‘‘$1,650’’.
1. The authority citation for part 140
continues to read as follows:
VerDate Sep<11>2014
Authority: 25 U.S.C. 2, 9, and 2101–2108;
and Sec. 701, Pub. L. 114–74, 129 Stat. 599.
■
■
Authority: Sec. 3, 34 Stat. 543; secs. 1, 2,
45 Stat. 1478; sec. 3, 52 Stat. 1034, 1035; sec.
2(a), 92 Stat. 1660; and Sec. 701, Pub. L. 114–
74, 129 Stat. 599.
■
■
25 CFR Part 243
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Dated: January 24, 2018.
John Tahsuda,
Principal Deputy Assistant Secretary—Indian
Affairs, Exercising the Authority of the
Assistant Secretary—Indian Affairs.
[FR Doc. 2018–02200 Filed 2–5–18; 8:45 am]
BILLING CODE 4337–15–P
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]]>Agencies
[Federal Register Volume 83, Number 25 (Tuesday, February 6, 2018)]
[Rules and Regulations]
[Pages 5192-5195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-02200]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[189A2100DD/AAKC001030/A0A501010.999900253G]
25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243, and 249
RIN 1076-AF40
Civil Penalties Inflation Adjustments; Annual Adjustments
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: This rule provides for annual adjustments to the level of
civil monetary penalties contained in Bureau of Indian Affairs (Bureau)
regulations to account for inflation under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 and Office of
Management and Budget (OMB) guidance.
DATES: This rule is effective on February 6, 2018.
FOR FURTHER INFORMATION CONTACT: Elizabeth Appel, Director, Office of
Regulatory Affairs and Collaborative Action, Office of the Assistant
Secretary--Indian Affairs; telephone (202) 273-4680,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of Annual Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
L. Clarity of This Regulation
M. Administrative Procedure Act
I. Background
On November 2, 2015, the President signed into law the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec.
701 of Pub. L. 114-74) (``the Act''). The Act requires Federal agencies
to adjust the level of civil monetary penalties with an initial
``catch-up'' adjustment through rulemaking and then make subsequent
annual adjustments for inflation. The purpose of these adjustments is
to maintain the deterrent effect of civil penalties and to further the
policy goals of the underlying statutes.
The Office of Management and Budget (OMB) issued guidance for
Federal agencies on calculating the catch-up adjustment. See February
24, 2016, Memorandum for the Heads of Executive Departments and
Agencies, from Shaun Donovan, Director, Office of Management and
Budget, re: Implementation of the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015 (M-16-06). Under the guidance,
the Department identified applicable civil monetary penalties and
calculated the catch-up adjustment. A civil monetary penalty is any
assessment with a dollar amount that is levied for a violation of a
Federal civil statute or regulation, and is assessed or enforceable
through a civil action in Federal court or an administrative
proceeding. A civil monetary penalty does not include a penalty levied
for violation of a criminal statute, or fees for services, licenses,
permits, or other regulatory review. The calculated catch-up adjustment
is based on the percent change between the Consumer Price Index for all
Urban Consumers (CPI0-U) for the month of October in the year of the
previous adjustment (or in the year of establishment, if no adjustment
has been made) and the October 2015 CPI-U.
The Bureau issued an interim final rule providing for calculated
catch-up adjustments on June 30, 2016 (81 FR 42478) with an effective
date of August 1, 2016, and requesting comments post-promulgation. The
Bureau issued a final rule affirming the catch-up adjustments set forth
in the interim final rule on December 2, 2016 (81 FR 86953). The Bureau
then issued a final rule making the next scheduled annual inflation
adjustment for 2017 on January 23, 2017 (82 FR 7649).
II. Calculation of 2018 Annual Adjustments
OMB recently issued guidance to assist Federal agencies in
implementing the annual adjustments required by the Act which agencies
must complete by January 15, 2018. See December 15, 2017, Memorandum
for the Heads of Executive Departments and Agencies, from Mick
Mulvaney, Director, Office of Management and Budget, re: Implementation
of the Penalty Inflation Adjustments for 2018, Pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-
18-03). The guidance states that the cost-of-living adjustment
multiplier for 2018, based on the Consumer Price Index (CPI-U) for the
month of October 2017, not seasonally adjusted, is 1.02041. (The annual
inflation adjustments are based on the percent change between the
October CPI-U preceding the date of the adjustment, and the prior
year's October CPI-U. For 2017, OMB explains, October 2017 CPI-U
(246.663)/October 2016 CPI-U (241.729) = 1.02041.) The guidance
instructs agencies to complete the 2018 annual adjustment by
multiplying each applicable penalty by the multiplier, 1.02041, and
rounding to the nearest dollar. Further, agencies should apply the
multiplier to the most recent penalty amount that includes the initial
catch-up adjustment required by the Act.
The annual adjustment applies to all civil monetary penalties with
a dollar amount that are subject to the Act. This final rule adjusts
the following civil monetary penalties contained in the Bureau's
regulations for 2018 by multiplying 1.02041 (i.e., the cost-of-living
adjustment multiplier for 2018) by each penalty amount as updated by
the adjustment made in 2017:
[[Page 5193]]
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Current
penalty Annual Adjusted
CFR citation Description of penalty including adjustment penalty for
catchup (multiplier) 2018
adjustment
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25 CFR 140.3........................... Penalty for trading in $1,270 1.02041 $1,296
Indian country without
a license.
25 CFR 141.50.......................... Penalty for trading on 1,270 1.02041 1,296
Navajo, Hopi or Zuni
reservations without a
license.
25 CFR 211.55.......................... Penalty for violation 1,527 1.02041 1,558
of leases of Tribal
land for mineral
development, violation
of part 211, or
failure to comply with
a notice of
noncompliance or
cessation order.
25 CFR 213.37.......................... Penalty for failure of 1,270 1.02041 1,296
lessee to comply with
lease of restricted
lands of members of
the Five Civilized
Tribes in Oklahoma for
mining, operating
regulations at part
213, or orders.
25 CFR 225.37.......................... Penalty for violation 1,617 1.02041 1,650
of minerals agreement,
regulations at part
225, other applicable
laws or regulations,
or failure to comply
with a notice of
noncompliance or
cessation order.
25 CFR 226.42.......................... Penalty for violation 906 1.02041 924
of lease of Osage
reservation lands for
oil and gas mining or
regulations at part
226, or noncompliance
with the
Superintendent's order.
25 CFR 226.43(a)....................... Penalty per day for 90 1.02041 92
failure to obtain
permission to start
operations.
25 CFR 226.43(b)....................... Penalty per day for 90 1.02041 92
failure to file
records.
25 CFR 226.43(c)....................... Penalty for each well 90 1.02041 92
and tank battery for
failure to mark wells
and tank batteries.
25 CFR 226.43(d)....................... Penalty each day after 90 1.02041 92
operations are
commenced for failure
to construct and
maintain pits.
25 CFR 226.43(e)....................... Penalty for failure to 181 1.02041 185
comply with
requirements regarding
valve or other
approved controlling
device.
25 CFR 226.43(f)....................... Penalty for failure to 362 1.02041 369
notify Superintendent
before drilling,
redrilling, deepening,
plugging, or
abandoning any well.
25 CFR 226.43(g)....................... Penalty per day for 906 1.02041 924
failure to properly
care for and dispose
of deleterious fluids.
25 CFR 226.43(h)....................... Penalty per day for 90 1.02041 92
failure to file
plugging and other
required reports.
25 CFR 227.24.......................... Penalty for failure of 1,270 1.02041 1,296
lessee of certain
lands in Wind River
Indian Reservation,
Wyoming, for oil and
gas mining to comply
with lease provisions,
operating regulations,
regulations at part
227, or orders.
25 CFR 243.8........................... Penalty for non-Native 5,989 1.02041 6,111
transferees of live
Alaskan reindeer who
violates part 243,
takes reindeer without
a permit, or fails to
abide by permit terms.
25 CFR 249.6(b)........................ Penalty for fishing in 1,270 1.02041 1,296
violation of
regulations at part
249 (Off-Reservation
Treaty Fishing).
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Consistent with the Act, the adjusted penalty levels for 2018 will
take effect immediately upon the effective date of the adjustment. The
adjusted penalty levels for 2018 will apply to penalties assessed after
that date including, if consistent with agency policy, assessments
associated with violations that occurred on or after November 2, 2015
(the date of the Act). The Act does not, however, change previously
assessed penalties that the Bureau is collecting or has collected. Nor
does the Act change an agency's existing statutory authorities to
adjust penalties.
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this rule in a manner consistent
with these requirements.
E.O. 13771 of January 30, 2017, directs Federal agencies to reduce
the regulatory burden on regulated entities and control regulatory
costs. E.O. 13771, however, applies only to significant regulatory
actions, as defined in Section 3(f) of E.O. 12866. OIRA has determined
that agency regulations exclusively implementing the annual adjustment
are not significant regulatory actions under E.O. 12866, provided they
are consistent with OMB Memorandum M-18-03 (See OMB Memorandum M-18-03
at 3). Therefore, E.O. 13771 does not apply to this final rule.
B. Regulatory Flexibility Act
This rule will not have a significant economic effect on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.) because the rule makes adjustments for
inflation.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
[[Page 5194]]
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not affect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(b) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
H. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)
The Department of the Interior strives to strengthen its
government-to-government relationship with Indian tribes through a
commitment to consultation with Indian Tribes and recognition of their
right to self-governance and tribal sovereignty. We have evaluated this
rule under the Department's consultation policy and under the criteria
in Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Indian Tribes and that
consultation under the Department's Tribal consultation policy is not
required.
I. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.) is not required. We may not
conduct or sponsor, and you are not required to respond to, a
collection of information unless it displays a currently valid OMB
control number.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by a categorical exclusion. This
rule is excluded from the requirement to prepare a detailed statement
because it is a regulation of an administrative nature. (For further
information see 43 CFR 46.210(i).) We have also determined that the
rule does not involve any of the extraordinary circumstances listed in
43 CFR 46.215 that would require further analysis under NEPA.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
L. Clarity of This Regulation
We are required by Executive Orders 12866 (section 1(b)(12)), 12988
(section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use common, everyday words and clear language rather than
jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
M. Administrative Procedure Act
The Act requires agencies to publish annual inflation adjustments
by no later than January 15, 2018, notwithstanding section 553 of the
Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted
this direction to mean that the usual APA public procedure for
rulemaking--which includes public notice of a proposed rule, an
opportunity for public comment, and a delay in the effective date of a
final rule--is not required when agencies issue regulations to
implement the annual adjustments to civil penalties that the Act
requires. Accordingly, we are issuing the 2018 annual adjustments as a
final rule without prior notice or an opportunity for comment and with
an effective date immediately upon publication in the Federal Register.
Section 553(b) of the Administrative Procedure Act (APA) provides
that, when an agency for good cause finds that ``notice and public
procedure . . . are impracticable, unnecessary, or contrary to the
public interest,'' the agency may issue a rule without providing notice
and an opportunity for prior public comment. Under section 553(b), the
Bureau finds that there is good cause to promulgate this rule without
first providing for public comment. It would not be possible to meet
the deadlines imposed by the Act if we were to first publish a proposed
rule, allow the public sufficient time to submit comments, analyze the
comments, and publish a final rule. Also, the Bureau is promulgating
this final rule to implement the statutory directive in the Act, which
requires agencies to publish a final rule and to update the civil
penalty amounts by applying a specified formula. The Bureau has no
discretion to vary the amount of the adjustment to reflect any views or
suggestions provided by commenters. Accordingly, it would serve no
purpose to provide an opportunity for public comment on this rule prior
to promulgation. Thus, providing for notice and public comment is
impracticable and unnecessary.
Furthermore, the Bureau finds under section 553(d)(3) of the APA
that good cause exists to make this final rule effective immediately
upon publication in the Federal Register. In the Act, Congress
expressly required Federal agencies to publish annual inflation
adjustments to civil penalties in the Federal Register by January 15,
2018,
[[Page 5195]]
notwithstanding section 553 of the APA. Under the statutory framework
and OMB guidance, the new penalty levels take effect immediately upon
the effective date of the adjustment. The statutory deadline does not
allow time to delay this rule's effective date beyond publication.
Moreover, an effective date after January 15 would delay application of
the new penalty levels, contrary to Congress's intent.
List of Subjects
25 CFR Part 140
Business and industry, Indians, Penalties.
25 CFR Part 141
Business and industry, Credit, Indians--business and finance,
Penalties.
25 CFR Part 211
Geothermal energy, Indians--lands, Mineral resources, Mines, Oil
and gas exploration, Reporting and recordkeeping requirements.
25 CFR Part 213
Indians--lands, Mineral resources, Mines, Oil and gas exploration,
Reporting and recordkeeping requirements.
25 CFR Part 225
Geothermal energy, Indians--lands, Mineral resources, Mines, Oil
and gas exploration, Penalties, Reporting and recordkeeping
requirements, Surety bonds.
25 CFR Part 226
Indians--lands.
25 CFR Part 227
Indians--lands, Mineral resources, Mines, Oil and gas exploration,
Reporting and recordkeeping requirements.
25 CFR Part 243
Indians, Livestock.
25 CFR Part 249
Fishing, Indians.
For the reasons given in the preamble, the Department of the
Interior amends 25 CFR Chapter I as follows:
PART 140--LICENSED INDIAN TRADERS
0
1. The authority citation for part 140 continues to read as follows:
Authority: Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as
amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C.
2 and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599,
unless otherwise noted.
Sec. 140.3 [Amended]
0
2. In Sec. 140.3, remove ``$1,270'' and add in its place ``$1,296''.
PART 141--BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI
RESERVATIONS
0
3. The authority citation for part 141 continues to read as follows:
Authority: 5 U.S.C. 301; 25 U.S.C. 2 and 9; and Sec. 701, Pub.
L. 114-74, 129 Stat. 599, unless otherwise noted.
Sec. 141.50 [Amended]
0
4. In Sec. 141.50, remove ``$1,270'' and add in its place ``$1,296''.
PART 211--LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT
0
5. The authority citation for part 211 continues to read as follows:
Authority: Sec. 4, Act of May 11, 1938 (52 Stat. 347); Act of
August 1, 1956 (70 Stat. 744); 25 U.S.C. 396a-g; 25 U.S.C. 2 and 9;
and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.
Sec. 211.55 [Amended]
0
6. In Sec. 211.55(a), remove ``$1,527'' and add in its place
``$1,558''.
PART 213--LEASING OF RESTRICTED LANDS FOR MEMBERS OF FIVE CIVILIZED
TRIBES, OKLAHOMA, FOR MINING
0
7. The authority citation for part 213 continues to read as follows:
Authority: Sec. 2, 35 Stat. 312; sec. 18, 41 Stat. 426; sec. 1,
45 Stat. 495; sec. 1, 47 Stat. 777; 25 U.S.C. 356; and Sec. 701,
Pub. L. 114-74, 129 Stat. 599. Interpret or apply secs. 3, 11, 35
Stat. 313, 316; sec. 8, 47 Stat. 779, unless otherwise noted.
Sec. 213.37 [Amended]
0
8. In Sec. 213.37, remove ``$1,270'' and add in its place ``$1,296''.
PART 225--OIL AND GAS, GEOTHERMAL AND SOLID MINERALS AGREEMENTS
0
9. The authority citation for part 225 continues to read as follows:
Authority: 25 U.S.C. 2, 9, and 2101-2108; and Sec. 701, Pub. L.
114-74, 129 Stat. 599.
Sec. 225.37 [Amended]
0
10. In Sec. 225.37(a), remove ``$1,617'' and add in its place
``$1,650''.
PART 226--LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING
0
11. The authority citation for part 226 continues to read as follows:
Authority: Sec. 3, 34 Stat. 543; secs. 1, 2, 45 Stat. 1478; sec.
3, 52 Stat. 1034, 1035; sec. 2(a), 92 Stat. 1660; and Sec. 701, Pub.
L. 114-74, 129 Stat. 599.
Sec. 226.42 [Amended]
0
12. In Sec. 226.42, remove ``$906'' and add in its place ``$924''.
Sec. 226.43 [Amended]
0
13. In Sec. 226.43:
0
a. Remove ``$90'' each time it appears and add in each place ``$92''
wherever it appears in this section.
0
b. In paragraph (e), remove ``$181'' and add in its place ``$185''.
0
c. In paragraph (f), remove ``$362'' and add in its place ``$369''.
0
d. In paragraph (g), remove ``$906'' and add in its place ``$924''.
PART 227--LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN
RESERVATION, WYOMING, FOR OIL AND GAS MINING
0
14. The authority citation for part 227 continues to read as follows:
Authority: Sec. 1, 39 Stat. 519; and Sec. 701, Pub. L. 114-74,
129 Stat. 599, unless otherwise noted.
Sec. 227.24 [Amended]
0
15. In Sec. 227.24, remove ``$1,270'' and add in its place ``$1,296''.
PART 243--REINDEER IN ALASKA
0
16. The authority citation for part 243 continues to read as follows:
Authority: Sec. 12, 50 Stat. 902; 25 U.S.C. 500K; and Sec. 701,
Pub. L. 114-74, 129 Stat. 599.
Sec. 243.8 [Amended]
0
17. In Sec. 243.8(a) introductory text, remove ``$5,989'' and add in
its place ``$6,111''.
PART 249--OFF-RESERVATION TREATY FISHING
0
18. The authority citation for part 249 continues to read as follows:
Authority: 25 U.S.C. 2, and 9; 5 U.S.C. 301; and Sec. 701, Pub.
L. 114-74, 129 Stat. 599, unless otherwise noted.
Sec. 249.6 [Amended]
0
19. In Sec. 249.6(b), remove ``$1,270'' and add in its place
``$1,296''.
Dated: January 24, 2018.
John Tahsuda,
Principal Deputy Assistant Secretary--Indian Affairs, Exercising the
Authority of the Assistant Secretary--Indian Affairs.
[FR Doc. 2018-02200 Filed 2-5-18; 8:45 am]
BILLING CODE 4337-15-P
