Civil Penalties Inflation Adjustments; Annual Adjustments, 7344-7348 [2021-01517]
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Federal Register / Vol. 86, No. 17 / Thursday, January 28, 2021 / Rules and Regulations
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DEPARTMENT OF THE INTERIOR
account for inflation under the Federal
Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 and Office of
Management and Budget (OMB)
guidance.
Bureau of Indian Affairs
DATES:
[212A2100DD/AAKC001030/
A0A501010.999900253G]
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2021–01832 Filed 1–27–21; 8:45 am]
BILLING CODE 4910–13–P
This rule is effective on January
28, 2021.
25 CFR Parts 140, 141, 211, 213, 225,
226, 227, 243 and 249
RIN 1076–AF52
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
SUMMARY:
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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.
SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of Annual Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O.
12866 and 13563)
B. Reducing Regulation and Controlling
Regulatory Costs (E.O. 13771)
C. Regulatory Flexibility Act
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D. Small Business Regulatory Enforcement
Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 12630)
G. Federalism (E.O. 13132)
H. Civil Justice Reform (E.O. 12988)
I. Consultation With Indian Tribes (E.O.
13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O.
13211)
M. Clarity of This Regulation
N. 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
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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 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), for 2018 on February 6,
2018 (83 FR 5192), for 2019 on April 15,
2019 (84 FR 15098), and for 2020 on
February 19, 2020 (85 FR 9366).
II. Calculation of 2021 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, 2021. See December 23,
2020, Memorandum for the Heads of
Executive Departments and Agencies,
from Russell T. Vought, Director, Office
of Management and Budget, re:
Implementation of Penalty Inflation
Adjustments for 2021, Pursuant to the
Federal Civil Penalties Inflation
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
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) ..........
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Adjustment Act Improvements Act of
2015 (M–21–10). The guidance states
that the cost-of-living adjustment
multiplier for 2021, based on the
Consumer Price Index (CPI–U) for the
month of October 2020, not seasonally
adjusted, is 1.01182. (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 2021, OMB explains,
October 2020 CPI–U (260.388)/October
2019 CPI–U (257.346) = 1.01182.) The
guidance instructs agencies to complete
the 2021 annual adjustment by
multiplying each applicable penalty by
the multiplier, 1.01182, 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 2021 by
multiplying 1.01182 (i.e., the cost-ofliving adjustment multiplier for 2021)
by each penalty amount as updated by
the adjustment made in the prior year
(2020):
Current
penalty
including
catchup
adjustment
CFR citation
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Annual
adjustment
(multiplier)
Adjusted
penalty
for 2021
$1,352
1,352
1.01182
1.01182
$1,368
1,368
1,626
1.01182
1,645
1,352
1.01182
1,368
1,721
1.01182
1,741
965
1.01182
976
96
96
96
1.01182
1.01182
1.01182
97
97
97
96
1.01182
97
193
1.01182
195
385
1.01182
390
965
1.01182
976
96
1.01182
97
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Current
penalty
including
catchup
adjustment
CFR citation
Description of penalty
25 CFR 227.24 ...............
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 243.8 .................
25 CFR 249.6(b) ............
Annual
adjustment
(multiplier)
Adjusted
penalty
for 2021
1,352
1.01182
1,368
6,376
1.01182
6,451
1,352
1.01182
1,368
Consistent with the Act, the adjusted
penalty levels for 2021 will take effect
immediately upon the effective date of
the adjustment. The adjusted penalty
levels for 2021 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.
B. Reducing Regulation and Controlling
Regulatory Costs (Executive Order
13771)
Order 12630. A takings implication
assessment is not required.
This rule is not an E.O. 13771
regulatory action because this rule is not
significant under Executive Order
12866.
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.
III. Procedural Requirements
D. Small Business Regulatory
Enforcement Fairness Act
A. Regulatory Planning and Review
(E.O. 12866 and 13563)
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.
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C. 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.
This rule is not a major rule under 5
U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act.
This rule:
(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.
E. 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.
F. Takings (E.O. 12630)
This rule does not affect a taking of
private property or otherwise have
taking implications under Executive
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G. Federalism (E.O. 13132)
H. 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.
I. 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
no substantial direct effects on federally
recognized Indian Tribes and that
consultation under the Department’s
Tribal consultation policy is not
required.
J. 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
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information unless it displays a
currently valid OMB control number.
K. 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.
L. 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.
M. Administrative Procedure Act
The Act requires agencies to publish
annual inflation adjustments by no later
than January 15, of each year,
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 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.
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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 of each
year, 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 140
Business and industry, Indians,
Penalties.
25 CFR 141
7347
25 CFR 227
Indians—lands, Mineral resources,
Mines, Oil and gas exploration,
Reporting and recordkeeping
requirements.
25 CFR 243
Indians, Livestock.
25 CFR 249
Fishing, Indians.
For the reasons given in the preamble,
the Department of the Interior amends
Chapter 1 of title 25 Code of Federal
Regulations as follows.
Title 25—Indians
Chapter 1—Bureau of Indian Affairs
DEPARTMENT OF THE INTERIOR
PART 140—LICENSED INDIAN
TRADERS
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.
§ 140.3
[Amended]
2. In § 140.3, remove ‘‘$1,352’’ and
add in its place ‘‘$1,368’’.
■
PART 141—BUSINESS PRACTICES ON
THE NAVAJO, HOPI AND ZUNI
RESERVATIONS
3. The authority citation for part 141
continues to read as follows:
■
Business and industry, Credit,
Indians—business and finance,
Penalties.
25 CFR 211
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.
Geothermal energy, Indians—lands,
Mineral resources, Mines, Oil and gas
exploration, Reporting and
recordkeeping requirements.
§ 141.50
25 CFR 213
PART 211—LEASING OF TRIBAL
LANDS FOR MINERAL DEVELOPMENT
Indians—lands, Mineral resources,
Mines, Oil and gas exploration,
Reporting and recordkeeping
requirements.
25 CFR 225
Geothermal energy, Indians—lands,
Mineral resources, Mines, Oil and gas
exploration, Penalties, Reporting and
recordkeeping requirements, Surety
bonds.
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.
§ 211.55
[Amended]
6. In § 211.55, in paragraph (a),
remove ‘‘$1,626’’ and add in its place
‘‘$1,645’’.
Indians—lands.
Frm 00011
4. In § 141.50, remove ‘‘$1,352’’ and
add in its place ‘‘$1,368’’.
■
■
25 CFR 226
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PART 213—LEASING OF RESTRICTED
LANDS FOR MEMBERS OF FIVE
CIVILIZED TRIBES, OKLAHOMA, FOR
MINING
§ 227.24
[Amended]
15. In § 227.24, remove ‘‘$1,352’’ and
add in its place ‘‘$1,368’’.
■
PART 243—REINDEER IN ALASKA
7. The authority citation for part 213
continues to read as follows:
■
§ 213.37
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, in paragraph (a)
introductory text, remove ‘‘$6,376’’ and
add in its place ‘‘$6,451’’.
■
[Amended]
8. In § 213.37, remove ‘‘$1,352’’ and
add in its place ‘‘$1,368’’.
■
PART 225—OIL AND GAS,
GEOTHERMAL AND SOLID MINERALS
AGREEMENTS
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.
§ 225.37
16. The authority citation for part 243
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.
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, in paragraph (b),
remove ‘‘$1,352’’ and add in its place
‘‘$1,368’’.
[Amended]
■
10. In § 225.37, in paragraph (a),
remove ‘‘$1,721’’ and add in its place
‘‘$1,741’’.
■
PART 226—LEASING OF OSAGE
RESERVATION LANDS FOR OIL AND
GAS MINING
11. The authority citation for part 226
continues to read as follows:
Tara Sweeney,
Assistant Secretary—Indian Affairs.
[FR Doc. 2021–01517 Filed 1–27–21; 8:45 am]
BILLING CODE 4337–15–P
■
DEPARTMENT OF THE TREASURY
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.
Financial Crimes Enforcement Network
§ 226.42
Financial Crimes Enforcement
Network; Inflation Adjustment of Civil
Monetary Penalties
[Amended]
12. In § 226.42, remove ‘‘$965’’ and
add in its place ‘‘$976’’.
■
§ 226.43
13. In § 226.43:
a. Remove ‘‘$96’’ each time it appears
and add in each place ‘‘$97’’ wherever
it appears in this section.
■ b. In paragraph (e), remove ‘‘$193’’
and add in its place ‘‘$195’’.
■ c. In paragraph (f), remove ‘‘$385’’ and
add in its place ‘‘$390’’.
■ d. In paragraph (g), remove ‘‘$965’’
and add in its place ‘‘$976’’.
■
■
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.
16:04 Jan 27, 2021
Financial Crimes Enforcement
Network (‘‘FinCEN’’), Treasury.
ACTION: Final rule.
AGENCY:
[Amended]
VerDate Sep<11>2014
31 CFR Part 1010
Jkt 253001
FinCEN publishes this final
rule to reflect inflation adjustments to
its civil monetary penalties (‘‘CMPs’’) as
mandated by the Federal Civil Penalties
Inflation Adjustment Act of 1990, as
amended. This rule adjusts certain
CMPs within the jurisdiction of FinCEN
to the maximum amount required by
that act.
DATES: Effective January 28, 2021.
FOR FURTHER INFORMATION CONTACT: The
FinCEN Regulatory Support Section at
1–800–767–2825, or electronically at
frc@fincen.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
In order to improve the effectiveness
of civil monetary penalties (‘‘CMPs’’)
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
and to maintain their deterrent effect,
the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended, 28
U.S.C. 2461 note (the ‘‘Act’’), requires
Federal agencies to adjust each CMP
provided by law within the jurisdiction
of the agency. The Act requires agencies
to adjust the level of CMPs with an
initial ‘‘catch-up’’ adjustment through
an interim final rulemaking and to make
subsequent annual adjustments for
inflation, without needing to provide
notice and the opportunity for public
comment otherwise required by 5 U.S.C.
553. The Act provides that any increase
in a CMP shall apply to CMPs that are
assessed after the date the increase takes
effect, regardless of whether the
underlying violation predated such
increase.1
II. Method of Calculation
The method of calculating CMP
adjustments applied in this final rule is
required by the Act. Under the Act and
the Office of Management and Budget
(‘‘OMB’’) guidance required by the Act,
annual inflation adjustments subsequent
to the initial catch-up adjustment are to
be based on the percent change between
the Consumer Price Index for all Urban
Consumers (‘‘CPI–U’’) for the October
preceding the date of the adjustment
and the prior year’s October CPI–U. As
set forth in OMB Memorandum M–21–
10 of December 23, 2020, the adjustment
multiplier for 2021 is 1.01182. In order
to complete the 2021 annual
adjustment, each current CMP is
multiplied by the 2021 adjustment
multiplier. Under the Act, any increase
in CMP must be rounded to the nearest
multiple of $1.2
Procedural Matters
1. Administrative Procedure Act
Section 4(b) of the Act requires
agencies, beginning in 2017, to make
annual adjustments for inflation to
CMPs without needing to provide notice
and the opportunity for public comment
required by 5 U.S.C. 553. Additionally,
the methodology used for adjusting
CMPs for inflation, effective 2017, is
1 The increased CMPs, however, apply only with
respect to underlying violations occurring after
November 2, 2015 the date of enactment of the most
recent amendment to the Act.
2 FinCEN has previously described that it applied
a catch-up adjustment for each penalty subject to
the Act, based on the year and corresponding
amount(s) for which the maximum penalty or range
of minimum and maximum penalties was
established or last adjusted, whichever is later. See
Civil Monetary Penalty Adjustment and Table, 81
FR 42503, 42504 (June 30, 2016). Because the year
varies for different penalties, penalties that were
originally of the same size when promulgated can
have different values today pursuant to the
application of the Act.
E:\FR\FM\28JAR1.SGM
28JAR1
]]>Agencies
[Federal Register Volume 86, Number 17 (Thursday, January 28, 2021)]
[Rules and Regulations]
[Pages 7344-7348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01517]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[212A2100DD/AAKC001030/ A0A501010.999900253G]
25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243 and 249
RIN 1076-AF52
Civil Penalties Inflation Adjustments; Annual Adjustments
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
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 January 28, 2021.
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 and 13563)
B. Reducing Regulation and Controlling Regulatory Costs (E.O.
13771)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 12630)
G. Federalism (E.O. 13132)
H. Civil Justice Reform (E.O. 12988)
I. Consultation With Indian Tribes (E.O. 13175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O. 13211)
M. Clarity of This Regulation
N. 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
[[Page 7345]]
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), for 2018 on
February 6, 2018 (83 FR 5192), for 2019 on April 15, 2019 (84 FR
15098), and for 2020 on February 19, 2020 (85 FR 9366).
II. Calculation of 2021 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, 2021. See December 23, 2020, Memorandum
for the Heads of Executive Departments and Agencies, from Russell T.
Vought, Director, Office of Management and Budget, re: Implementation
of Penalty Inflation Adjustments for 2021, Pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-
21-10). The guidance states that the cost-of-living adjustment
multiplier for 2021, based on the Consumer Price Index (CPI-U) for the
month of October 2020, not seasonally adjusted, is 1.01182. (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 2021, OMB explains, October 2020 CPI-U
(260.388)/October 2019 CPI-U (257.346) = 1.01182.) The guidance
instructs agencies to complete the 2021 annual adjustment by
multiplying each applicable penalty by the multiplier, 1.01182, 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 2021 by multiplying 1.01182 (i.e., the cost-of-living
adjustment multiplier for 2021) by each penalty amount as updated by
the adjustment made in the prior year (2020):
----------------------------------------------------------------------------------------------------------------
Current
penalty Annual Adjusted
CFR citation Description of penalty including adjustment penalty for
catchup (multiplier) 2021
adjustment
----------------------------------------------------------------------------------------------------------------
25 CFR 140.3.......................... Penalty for trading in $1,352 1.01182 $1,368
Indian country without a
license.
25 CFR 141.50......................... Penalty for trading on 1,352 1.01182 1,368
Navajo, Hopi or Zuni
reservations without a
license.
25 CFR 211.55......................... Penalty for violation of 1,626 1.01182 1,645
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 1,352 1.01182 1,368
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 of 1,721 1.01182 1,741
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 of 965 1.01182 976
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 failure 96 1.01182 97
to obtain permission to
start operations.
25 CFR 226.43(b)...................... Penalty per day for failure 96 1.01182 97
to file records.
25 CFR 226.43(c)...................... Penalty for each well and 96 1.01182 97
tank battery for failure
to mark wells and tank
batteries.
25 CFR 226.43(d)...................... Penalty each day after 96 1.01182 97
operations are commenced
for failure to construct
and maintain pits.
25 CFR 226.43(e)...................... Penalty for failure to 193 1.01182 195
comply with requirements
regarding valve or other
approved controlling
device.
25 CFR 226.43(f)...................... Penalty for failure to 385 1.01182 390
notify Superintendent
before drilling,
redrilling, deepening,
plugging, or abandoning
any well.
25 CFR 226.43(g)...................... Penalty per day for failure 965 1.01182 976
to properly care for and
dispose of deleterious
fluids.
25 CFR 226.43(h)...................... Penalty per day for failure 96 1.01182 97
to file plugging and other
required reports.
[[Page 7346]]
25 CFR 227.24......................... Penalty for failure of 1,352 1.01182 1,368
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 6,376 1.01182 6,451
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 1,352 1.01182 1,368
violation of regulations
at part 249 (Off-
Reservation Treaty
Fishing).
----------------------------------------------------------------------------------------------------------------
Consistent with the Act, the adjusted penalty levels for 2021 will
take effect immediately upon the effective date of the adjustment. The
adjusted penalty levels for 2021 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 and 13563)
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.
B. Reducing Regulation and Controlling Regulatory Costs (Executive
Order 13771)
This rule is not an E.O. 13771 regulatory action because this rule
is not significant under Executive Order 12866.
C. 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.
D. 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:
(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.
E. 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.
F. 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.
G. 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.
H. 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.
I. 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.
J. 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
[[Page 7347]]
information unless it displays a currently valid OMB control number.
K. 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.
L. 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.
M. Administrative Procedure Act
The Act requires agencies to publish annual inflation adjustments
by no later than January 15, of each year, 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 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 of
each year, 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 140
Business and industry, Indians, Penalties.
25 CFR 141
Business and industry, Credit, Indians--business and finance,
Penalties.
25 CFR 211
Geothermal energy, Indians--lands, Mineral resources, Mines, Oil
and gas exploration, Reporting and recordkeeping requirements.
25 CFR 213
Indians--lands, Mineral resources, Mines, Oil and gas exploration,
Reporting and recordkeeping requirements.
25 CFR 225
Geothermal energy, Indians--lands, Mineral resources, Mines, Oil
and gas exploration, Penalties, Reporting and recordkeeping
requirements, Surety bonds.
25 CFR 226
Indians--lands.
25 CFR 227
Indians--lands, Mineral resources, Mines, Oil and gas exploration,
Reporting and recordkeeping requirements.
25 CFR 243
Indians, Livestock.
25 CFR 249
Fishing, Indians.
For the reasons given in the preamble, the Department of the
Interior amends Chapter 1 of title 25 Code of Federal Regulations as
follows.
Title 25--Indians
Chapter 1--Bureau of Indian Affairs
DEPARTMENT OF THE INTERIOR
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 ``$1,352'' and add in its place ``$1,368''.
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 ``$1,352'' and add in its place ``$1,368''.
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, in paragraph (a), remove ``$1,626'' and add in its
place ``$1,645''.
[[Page 7348]]
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 ``$1,352'' and add in its place ``$1,368''.
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, in paragraph (a), remove ``$1,721'' and add in its
place ``$1,741''.
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 ``$965'' and add in its place ``$976''.
Sec. 226.43 [Amended]
0
13. In Sec. 226.43:
0
a. Remove ``$96'' each time it appears and add in each place ``$97''
wherever it appears in this section.
0
b. In paragraph (e), remove ``$193'' and add in its place ``$195''.
0
c. In paragraph (f), remove ``$385'' and add in its place ``$390''.
0
d. In paragraph (g), remove ``$965'' and add in its place ``$976''.
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 ``$1,352'' and add in its place ``$1,368''.
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, in paragraph (a) introductory text, remove
``$6,376'' and add in its place ``$6,451''.
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, in paragraph (b), remove ``$1,352'' and add in its
place ``$1,368''.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2021-01517 Filed 1-27-21; 8:45 am]
BILLING CODE 4337-15-P
