[Federal Register Volume 88, Number 37 (Friday, February 24, 2023)]
[Rules and Regulations]
[Pages 11818-11820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03711]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 3160 and 9230

[212.LLHQ310000.L13100000.PP0000]
RIN 1004-AE91


Onshore Oil and Gas Operations and Coal Trespass--Annual Civil 
Penalties Inflation Adjustments

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: This final rule adjusts the level of civil monetary penalties 
contained in the Bureau of Land Management's (BLM) regulations 
governing onshore oil and gas operations and coal trespass as required 
by the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015. This final rule is consistent with applicable Office of 
Management and Budget (OMB) guidance. The penalty adjustments made by 
this final rule constitute the 2023 annual inflation adjustments, 
accounting for one year of inflation spanning the period from October 
2021 through October 2022.

DATES: This rule is effective on February 24, 2023.

FOR FURTHER INFORMATION CONTACT: 
    For information regarding the BLM's Fluid Minerals Program, please 
contact Lonny Bagley, Acting Division Chief, Fluid Minerals Division, 
telephone: 307-622-6956; email: [email protected]. For information 
regarding the BLM's Solid Minerals Program, please contact Tim Barnes, 
Acting Division Chief, Solid Minerals Division, telephone: 541-588-
0853; email: [email protected].
    For questions relating to regulatory process issues, please contact 
Jennifer Noe, Division of Regulatory Affairs, email: [email protected].
    Individuals in the United States who are deaf, deafblind, hard of 
hearing, or have a speech disability may dial 711 (TTY, TDD, or 
TeleBraille) to access telecommunications relay services. Individuals 
outside the United States should use the relay services offered within 
their country to make international calls to the point-of-contact in 
the United States.

SUPPLEMENTARY INFORMATION:

I. Background
II. Calculation of 2023 Adjustments
III. Procedural Requirements
    A. Administrative Procedure Act
    B. Regulatory Planning and Review (Executive Orders 12866 and 
13563)
    C. Regulatory Flexibility Act
    D. Congressional Review 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 and Departmental 
Policy)
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Effects on the Energy Supply (E.O. 13211)

I. Background

    On November 2, 2015, the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (sec. 701, Pub. L. 114-74) (the 
2015 Act) became law, amending the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Pub. L. 101-410).
    The 2015 Act requires agencies to:
    1. Adjust the level of civil monetary penalties for inflation with 
an initial ``catch-up'' adjustment through an interim final rulemaking 
in 2016;
    2. Make subsequent annual adjustments for inflation beginning in 
2017; and
    3. Report annually in Agency Financial Reports on these inflation 
adjustments.
    The purpose of these adjustments is to maintain the deterrent 
effect of civil monetary penalties and promote compliance with the law 
(see sec. 1, Pub. L. 101-410).
    As required by the 2015 Act, the BLM issued an interim final rule 
that adjusted the level of civil monetary penalties in BLM regulations 
with the initial ``catch-up'' adjustment (RIN 1004-AE46, 81 FR 41860), 
which was published on June 28, 2016, and became effective on July 28, 
2016. On January 19, 2017, the BLM published a final rule (RIN 1004-
AE49, 82 FR 6305) updating the civil penalty amounts to the 2017 annual 
adjustment levels. Final rules updating the civil penalty amounts to 
2018 through 2022 annual adjustment levels were published in subsequent 
years.
    OMB issued Memorandum M-23-05 on December 15, 2022, entitled, 
Implementation of Penalty Inflation Adjustments for 2023, Pursuant to 
the Federal Civil Penalties Inflation Adjustment Act Improvements Act 
of 2015, which explains agency responsibilities for identifying 
applicable penalties and calculating the annual adjustment for 2023 in 
accordance with the 2015 Act.

II. Calculation of 2022 Adjustments

    In accordance with the 2015 Act and OMB Memorandum M-23-05, the BLM 
has identified applicable civil monetary penalties in its regulations 
and calculated the annual adjustments. 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, nor does it include fees for 
services, licenses, permits, or other regulatory review. The calculated 
annual inflation adjustments are based on the percentage 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. Consistent with guidance in OMB Memorandum M-23-05, the 
BLM divided the October 2022 CPI-U by the October 2021 CPI-U to 
calculate the multiplier. In this case, October 2022 CPI-U (298.012)/
October 2021 CPI-U (276.589) = 1.07745. OMB Memorandum M-23-05 confirms 
that this is the proper multiplier. (OMB Memorandum M-23-05 at 1 and n. 
4.)
    The 2015 Act requires the BLM to adjust the civil penalty amounts 
in 43 CFR 3163.2 and 9239.5-3(f)(1). To accomplish this, the BLM 
multiplied the current penalty amounts in those paragraphs by the 
multiplier set forth in OMB Memorandum M-23-05 (1.07745) to obtain the 
adjusted penalty amounts. The 2015 Act requires that the resulting 
amounts be rounded to the nearest $1.00 at the end of the calculation 
process.
    The adjusted penalty amounts will take effect immediately upon 
publication of this rule. Pursuant to the 2015 Act, the adjusted civil 
penalty amounts apply to civil penalties assessed after the date the 
increase takes effect, even if the associated violation predates such 
increase. This final rule adjusts the following civil penalties:

[[Page 11819]]



----------------------------------------------------------------------------------------------------------------
                                                                                            Current    Adjusted
                   CFR citation                           Description of the penalty        penalty     penalty
----------------------------------------------------------------------------------------------------------------
43 CFR 3163.2(b)(1)...............................  Failure to comply....................     $1,198      $1,291
43 CFR 3163.2(b)(2)...............................  If corrective action is not taken....     11,995      12,924
43 CFR 3163.2(d)..................................  If transporter fails to permit             1,198       1,291
                                                     inspection for documentation.
43 CFR 3163.2(e)..................................  Failure to permit inspection, failure     23,989      25,847
                                                     to notify.
43 CFR 3163.2(f)..................................  False or inaccurate documents;            59,973      64,618
                                                     unlawful transfer or purchase.
43 CFR 9239.5-3(f)(1).............................  Coal exploration for commercial            4,490       4,838
                                                     purposes without an exploration
                                                     license.
----------------------------------------------------------------------------------------------------------------

III. Procedural Requirements

A. Administrative Procedure Act

    In accordance with the 2015 Act, agencies must adjust civil 
monetary penalties ``notwithstanding Section 553 of the Administrative 
Procedure Act'' (sec. 4(b)(2), 2015 Act). The BLM is promulgating this 
2023 inflation adjustment for civil penalties as a final rule pursuant 
to the provisions of the 2015 Act and OMB guidance. A proposed rule is 
not required because the 2015 Act expressly exempts the annual 
inflation adjustments from the notice and comment requirements of the 
Administrative Procedure Act. In addition, the 2015 Act does not give 
the BLM any discretion to vary the amount of the annual inflation 
adjustment for any given penalty to reflect any views or suggestions 
provided by commenters. Accordingly, the BLM will not provide an 
opportunity for public comment on this rule.

B. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the OMB will review all 
significant rules. OIRA has determined that this rule is not 
significant. (See OMB Memorandum M-23-05)
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability and to reduce uncertainty and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
E.O. 13563 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 that is 
consistent with these requirements to the extent permitted by the 2015 
Act.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare 
a regulatory flexibility analysis for all 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 2015 Act expressly exempts these annual 
inflation adjustments from the requirement to publish a proposed rule 
for notice and comment (see sec. 4(b)(2), 2015 Act). Because the final 
rule in this case does not include publication of a proposed rule, the 
RFA does not apply to this final rule.

D. Congressional Review Act

    This rule is not a major rule under the Congressional Review Act. 
This rule:
    (a) Will 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; and
    (c) Will 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. Therefore, 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 takings implications under E.O. 12630. Therefore, a takings 
implication assessment is not required.

G. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have federalism implications that warrant the preparation of a 
federalism summary impact statement. Therefore, 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 
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 E.O. 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 OMB 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 because of the 
non-discretionary nature of the civil penalty adjustment as required by 
law (see 40

[[Page 11820]]

CFR 1508.1(q)(1)(ii)). The Department of Labor's Consumer Price Index 
sets the amount of the annual civil penalty adjustment to account for 
inflation as required by the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015. Accordingly, BLM has no 
discretion in the execution of the civil penalty adjustments. Even if 
this were a discretionary action, which it is not, a detailed statement 
under NEPA would also not be required because, as a regulation of an 
administrative nature, this rule would otherwise be covered by a 
categorical exclusion. See 43 CFR 46.210(i). BLM has determined that 
the rule does not implicate any of the extraordinary circumstances 
listed in 43 CFR 46.215 that would prevent reliance on the categorical 
exclusion. Because this rule is not a Major Federal Action, it is 
therefore not subject to the requirements of the National Environmental 
Policy Act of 1969 (NEPA).

L. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. Therefore, a Statement of Energy Effects is not 
required.

List of Subjects

43 CFR Part 3160

    Administrative practice and procedure, Government contracts, 
Indians--lands, Mineral royalties, Oil and gas exploration, Penalties, 
Public lands--mineral resources, Reporting and recordkeeping 
requirements.

43 CFR Part 9230

    Penalties, Public lands.

    For the reasons given in the preamble, the BLM amends chapter II of 
title 43 of the Code of Federal Regulations as follows:

PART 3160--ONSHORE OIL AND GAS OPERATIONS

0
1. The authority citation for part 3160 continues to read as follows:

    Authority: 25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 
1751; 43 U.S.C. 1732(b), 1733, 1740; and Sec. 107, Pub. L. 114-74, 
129 Stat. 599, unless otherwise noted.

Subpart 3163--Noncompliance, Assessments, and Penalties


Sec.  3163.2  [Amended]

0
2. In Sec.  3163.2:
0
a. In paragraph (b)(1), remove ``$1,198'' and add in its place 
``$1,291''.
0
b. In paragraph (b)(2), remove ``$11,995'' and add in its place 
``$12,924''.
0
c. In paragraph (d), remove ``$1,198'' and add in its place ``$1,291''.
0
d. In paragraph (e) introductory text, remove ``$23,989'' and add in 
its place ``$25,847''.
0
e. In paragraph (f) introductory text, remove ``$59,973'' and add in 
its place ``$64,618''.

PART 9230--TRESPASS

0
3. The authority citation for part 9230 continues to read as follows:

    Authority: R.S. 2478 and 43 U.S.C. 1201.

Subpart 9239--Kinds of Trespass


Sec.  9239.5-3  [Amended]

0
4. In Sec.  9239.5-3(f)(1), remove ``$4,490'' and add in its place 
``$4,838''.

Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
[FR Doc. 2023-03711 Filed 2-23-23; 8:45 am]
BILLING CODE 4331-29-P