[Federal Register Volume 83, Number 20 (Tuesday, January 30, 2018)]
[Rules and Regulations]
[Pages 4151-4152]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-01680]



Office of the Secretary of the Interior

43 CFR Part 10

RIN 1024-AE40

Civil Penalties Inflation Adjustments

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.


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 

DATES: This rule is effective on January 30, 2018.

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


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.

II. Calculation of Annual Adjustments

    The Office of Management and Budget (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 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.) 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, 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. 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. This final 
rule adjusts the following civil monetary penalties contained in the 
Department regulations implementing the Native American Graves 
Protection and Repatriation Act (NAGPRA) for 2018 by multiplying 
1.02041 by each penalty amount as updated by the catch-up adjustment 
made in 2017:

                                                                      penalty         Annual
             CFR citation                  Description of the        including      adjustment       Adjusted
                                                 penalty             catch-up      (multiplier)       penalty
43 CFR 10.12(g)(2)....................  Failure of Museum to              $6,533         1.02041          $6,666
43 CFR 10.12(g)(3)....................  Continued Failure to               1,307         1.02041           1,334
                                         Comply Per Day.

    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 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

[[Page 4152]]

this rule in a manner consistent with these requirements.

B. Reducing Regulation and Controlling Regulatory Costs (Executive 
Order 13771)

    This rule is not subject to E.O. 13771 because it is neither a 
significant regulatory action as defined in Section 3(f) of E.O. 12866 
or a deregulatory action under E.O. 13771.

C. 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.M.

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 effect 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 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 

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 

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 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 

M. Administrative Procedure Act

    The Act requires agencies to publish annual inflation adjustments 
by no later than January 15, 2018 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 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.

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:


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]

2. In Sec.  10.12:
a. In paragraph (g)(2) introductory text, remove ``$6,533'' and add in 
its place ``$6,666''.
b. In paragraph (g)(3), remove ``$1,307'' and add in its place 

Jason Larrabee,
Principal Deputy Assistant Secretary for Fish and Wildlife and Parks, 
exercising the authority of the Assistant Secretary for Fish and 
Wildlife and Parks.

[FR Doc. 2018-01680 Filed 1-29-18; 8:45 am]