[Federal Register Volume 84, Number 72 (Monday, April 15, 2019)]
[Rules and Regulations]
[Pages 15098-15102]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-07469]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
[192A2100DD/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 April 15, 2019.
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 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) and for 2018 on
February 6, 2018 (83 FR 5192).
II. Calculation of 2019 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, 2019. See December 14, 2018, 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 2019, Pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of
[[Page 15099]]
2015 (M-19-04). The guidance states that the cost-of-living adjustment
multiplier for 2019, based on the Consumer Price Index (CPI-U) for the
month of October 2018, not seasonally adjusted, is 1.02522. (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 2019, OMB explains, October 2018 CPI-U
(252.885) / October 2017 CPI-U (246.663) = 1.02522.) The guidance
instructs agencies to complete the 2019 annual adjustment by
multiplying each applicable penalty by the multiplier, 1.02522, 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 2019 by multiplying 1.02522 (i.e., the cost-of-living
adjustment multiplier for 2019) by each penalty amount as updated by
the adjustment made in 2018:
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Current
penalty Annual Adjusted
CFR citation Description of penalty including adjustment penalty for
catchup (multiplier) 2019
adjustment
----------------------------------------------------------------------------------------------------------------
25 CFR 140.3..................... Penalty for trading in Indian $1,296 1.02522 $1,329
country without a license.
25 CFR 141.50.................... Penalty for trading on 1,296 1.02522 1,329
Navajo, Hopi or Zuni
reservations without a
license.
25 CFR 211.55.................... Penalty for violation of 1,558 1.02522 1,597
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 lessee 1,296 1.02522 1,329
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 1,650 1.02522 1,692
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 924 1.02522 948
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 92 1.02522 94
to obtain permission to
start operations.
25 CFR 226.43(b)................. Penalty per day for failure 92 1.02522 94
to file records.
25 CFR 226.43(c)................. Penalty for each well and 92 1.02522 94
tank battery for failure to
mark wells and tank
batteries.
25 CFR 226.43(d)................. Penalty each day after 92 1.02522 94
operations are commenced for
failure to construct and
maintain pits.
25 CFR 226.43(e)................. Penalty for failure to comply 185 1.02522 189
with requirements regarding
valve or other approved
controlling device.
25 CFR 226.43(f)................. Penalty for failure to notify 369 1.02522 379
Superintendent before
drilling, redrilling,
deepening, plugging, or
abandoning any well.
25 CFR 226.43(g)................. Penalty per day for failure 924 1.02522 948
to properly care for and
dispose of deleterious
fluids.
25 CFR 226.43(h)................. Penalty per day for failure 92 1.02522 94
to file plugging and other
required reports.
25 CFR 227.24.................... Penalty for failure of lessee 1,296 1.02522 1,329
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 6,111 1.02522 6,265
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 1,296 1.02522 1,329
violation of regulations at
part 249 (Off-Reservation
Treaty Fishing).
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Consistent with the Act, the adjusted penalty levels for 2019 will
take effect immediately upon the effective date of the adjustment. The
adjusted penalty levels for 2019 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.
[[Page 15100]]
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 Order13132, 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 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. 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.
N. 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 2019 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
[[Page 15101]]
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 is revised 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 ``$1,296'' and add in its place ``$1,329''.
PART 141--BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI
RESERVATIONS
0
3. The authority citation for part 141 is revised 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 ``$1,296'' and add in its place ``$1,329''.
PART 211--LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT
0
5. The authority citation for part 211 is revised 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 ``$1,558'' and add in its place
``$1,597''.
PART 213--LEASING OF RESTRICTED LANDS FOR MEMBERS OF FIVE CIVILIZED
TRIBES, OKLAHOMA, FOR MINING
0
7. The authority citation for part 213 is revised 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 ``$1,296'' and add in its place ``$1,329''.
PART 225--OIL AND GAS, GEOTHERMAL AND SOLID MINERALS AGREEMENTS
0
9. The authority citation for part 225 is revised 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 ``$1,650'' and add in its place
``$1,692''.
PART 226--LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING
0
9. The authority citation for part 226 is revised 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
10. In Sec. 226.42, remove ``$924'' and add in its place ``$948''.
Sec. 226.43 [Amended]
0
11. In Sec. 226.43:
0
a. Remove ``$92'' each time it appears and add in each place ``$94''
wherever it appears in this section.
0
b. In paragraph (e), remove ``$185'' and add in its place ``$189''.
0
c. In paragraph (f), remove ``$369'' and add in its place ``$379''.
0
d. In paragraph (g), remove ``$924'' and add in its place ``$948''.
PART 227--LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN
RESERVATION, WYOMING, FOR OIL AND GAS MINING
0
12. The authority citation for part 227 is revised 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
13. In Sec. 227.24, remove ``$1,296'' and add in its place ``$1,329''.
PART 243--REINDEER IN ALASKA
0
14. The authority citation for part 243 is revised 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.
[[Page 15102]]
Sec. 243.8 [Amended]
0
15. In Sec. 243.8(a), remove ``$6,111'' and add in its place
``$6,265''.
PART 249--OFF-RESERVATION TREATY FISHING
0
16. The authority citation for part 249 is revised 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
17. In Sec. 249.6(b), remove ``$1,296'' and add in its place
``$1,329''.
Dated: February 1, 2019.
Tara Sweeney,
Assistant Secretary--Indian Affairs.
[FR Doc. 2019-07469 Filed 4-12-19; 8:45 am]
BILLING CODE 4337-15-P