[Federal Register Volume 82, Number 31 (Thursday, February 16, 2017)]
[Rules and Regulations]
[Pages 10864-10866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03138]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary of the Interior

43 CFR Part 10

[NPS-WASO-NAGPRA-22726; GPO Deposit Acct. 4311H2]


RIN 1024-AE37

Civil Penalties Inflation Adjustments

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.

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SUMMARY: This rule revises U.S. Department of the Interior regulations 
implementing the Native American Graves Protection and Repatriation Act 
to provide for annual adjustments of civil penalties to account for 
inflation under the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 and Office of Management and Budget guidance. 
The purpose of these adjustments is to maintain the deterrent effect of 
civil penalties and to further the policy goals of the underlying 
statutes.

DATES: This rule is effective on February 16, 2017.

FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, Manager, National 
NAGPRA Program, National Park Service, 1849 C Street NW., Washington, 
DC 20240.

SUPPLEMENTARY INFORMATION: 

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 no later than January 15 of each year.
    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 U.S. Department of the Interior (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 was 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 Department issued an interim final rule providing for 
calculated catch-up adjustments to civil monetary penalties contained 
in regulations

[[Page 10865]]

implementing the Native American Graves Protection and Repatriation Act 
(NAGPRA) on June 28, 2016 (81 FR 41858) and requested comments post-
promulgation. The Department issued a correcting amendment to the 
interim final rule on September 20, 2016 (81 FR 64356) that adjusted 
the following civil monetary penalties, effective on September 20, 
2016:

----------------------------------------------------------------------------------------------------------------
                                           Description of the         Current         Catchup        Adjusted
             CFR citation                        penalty              penalty       adjustment        penalty
----------------------------------------------------------------------------------------------------------------
43 CFR 10.12(g)(2)....................  Failure of Museum to              $5,000          $1,428          $6,428
                                         Comply.
43 CFR 10.12(g)(3)....................  Continued Failure to               1,000             268           1,286
                                         Comply Per Day.
----------------------------------------------------------------------------------------------------------------

II. Calculation of 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, 2017. See December 16, 2016, Memorandum 
for the Heads of Executive Departments and Agencies, from Shaun 
Donovan, Director, Office of Management and Budget, re: Implementation 
of the 2017 annual adjustment pursuant to the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015 (M-17-11). The 
guidance states that the cost-of-living adjustment multiplier for 2017, 
based on the Consumer Price Index (CPI-U) for the month of October 
2016, not seasonally adjusted, is 1.01636. (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 2016 CPI-U (241.729) / October 2015 
CPI-U (237.838) = 1.01636.) The guidance instructs agencies to complete 
the 2017 annual adjustment by multiplying each applicable penalty by 
the multiplier, 1.01636, and rounding to the nearest dollar. Further, 
the guidance instructs agencies to apply the multiplier to the most 
recent penalty amount that includes the 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 Department 
regulations implementing NAGPRA for 2017 by multiplying 1.01636 (i.e., 
the cost-of-living adjustment multiplier for 2017) by each penalty 
amount as updated by the catch-up adjustment made in 2016:

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                                                                      Current
                                                                      penalty         Annual
             CFR citation                  Description of the        including      adjustment       Adjusted
                                                 penalty             catch-up      (multiplier)       penalty
                                                                    adjustment
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43 CFR 10.12(g)(2)....................  Failure of Museum to              $6,428         1.01636          $6,533
                                         Comply.
43 CFR 10.12(g)(3)....................  Continued Failure to               1,286         1.01636           1,307
                                         Comply Per Day.
----------------------------------------------------------------------------------------------------------------

    Consistent with the Act, the adjusted penalty levels for 2017 will 
take effect immediately upon the effective date of the adjustment. The 
adjusted penalty levels for 2017 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 Act does not, however, change previously assessed penalties that 
the Department 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. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare 
a regulatory flexibility analysis for rules unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. The RFA applies only to rules for 
which an agency is required to first publish a proposed rule. See 5 
U.S.C. 603(a) and 604(a). The RFA does not apply to this final rule 
because the Office of the Secretary is not required to publish a 
proposed rule for the reasons explained below in Section III.L.

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:
    (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

[[Page 10866]]

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 effect 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 E.O. 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. Administrative Procedure Act

    The Act requires agencies to publish annual inflation adjustments 
by no later than January 15, 2017, and by no later than January 15 each 
subsequent 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 2017 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.

List of Subjects in 43 CFR Part 10

    Administrative practice and procedure, Hawaiian Natives, Historic 
preservation, Indians--claims, Indians--lands, Museums, Penalties, 
Public lands, Reporting and recordkeeping requirements.

    For the reasons given in the preamble, the Office of the Secretary 
amends 43 CFR part 10 as follows.

PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION 
REGULATIONS

0
1. The authority citation for part 10 continues to read as follows:

    Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.


Sec.  10.12   [Amended]

0
2. In Sec.  10.12, in paragraph (g)(2) introductory text, remove 
``$6,428'' and add in its place ``$6,533'' and in paragraph (g)(3), 
remove ``$1,286'' and add in its place ``$1,307''.

Maureen Foster,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-03138 Filed 2-15-17; 8:45 am]
 BILLING CODE 4312-52-P