[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]]



----------------------------------------------------------------------------------------------------------------
                                                                      Current
                                                                      penalty         Annual         Adjusted
              CFR citation                Description of penalty     including      adjustment      penalty for
                                                                      catchup      (multiplier)        2018
                                                                    adjustment
----------------------------------------------------------------------------------------------------------------
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).
----------------------------------------------------------------------------------------------------------------

    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