[Federal Register Volume 88, Number 41 (Thursday, March 2, 2023)]
[Rules and Regulations]
[Pages 13018-13022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-03995]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243, and 249

[234A2100DD/AAKC001030/A0A501010.999900253G]
RIN 1076-AF74


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 March 2, 2023.

FOR FURTHER INFORMATION CONTACT: Oliver Whaley, Director, Office of 
Regulatory Affairs and Collaborative Action (RACA), Office of the 
Assistant Secretary--Indian Affairs; Department of the Interior, 
telephone (202) 738-6065, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background
II. Calculation of Annual Adjustments

[[Page 13019]]

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. Congressional Review Act (CRA)
    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 (CPI-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), for 2018 on 
February 6, 2018 (83 FR 5192), for 2019 on April 15, 2019 (84 FR 
15098), for 2020 on February 19, 2020 (85 FR 9366), for 2021 on January 
28, 2021 (86 FR 7344), and for 2022 on March 9, 2022 (87 FR 13153).

II. Calculation of 2023 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, 2023. See December 15, 2022, Memorandum 
for the Heads of Executive Departments and Agencies, from Shalanda D. 
Young, Director, Office of Management and Budget, re: Implementation of 
Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (M-23-05). 
The guidance states that the cost-of-living adjustment multiplier for 
2023, based on the CPI-U for the month of October 2022, not seasonally 
adjusted, is 1.07745. 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 2023, OMB explains, 
October 2022 CPI-U (298.012)/October 2021 CPI-U (276.589) = 1.07745. 
The guidance instructs agencies to complete the 2023 annual adjustment 
by multiplying each applicable penalty by the multiplier 1.07745 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 2023 by multiplying 1.07745 by each penalty amount as 
updated by the adjustment made in the prior year (2022):

----------------------------------------------------------------------------------------------------------------
                                                                      Current
                                                                      penalty         Annual         Adjusted
             CFR citation                Description of penalty      including      adjustment      penalty for
                                                                      catchup      (multiplier)        2023
                                                                    adjustment
----------------------------------------------------------------------------------------------------------------
25 CFR 140.3.........................  Penalty for trading in             $1,453         1.07745          $1,566
                                        Indian country without a
                                        license.
25 CFR 141.50........................  Penalty for trading on              1,453         1.07745           1,566
                                        Navajo, Hopi, or Zuni
                                        reservations without a
                                        license.
25 CFR 211.55........................  Penalty for violation of            1,747         1.07745           1,882
                                        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              1,453         1.07745           1,566
                                        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 of            1,849         1.07745           1,992
                                        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            1,037         1.07745           1,117
                                        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                   103         1.07745             111
                                        failure to obtain
                                        permission to start
                                        operations.
25 CFR 226.43(b).....................  Penalty per day for                   103         1.07745             111
                                        failure to file records.
25 CFR 226.43(c).....................  Penalty for each well and             103         1.07745             111
                                        tank battery for failure
                                        to mark wells and tank
                                        batteries.

[[Page 13020]]

 
25 CFR 226.43(d).....................  Penalty each day after                103         1.07745             111
                                        operations are commenced
                                        for failure to construct
                                        and maintain pits.
25 CFR 226.43(e).....................  Penalty for failure to                207         1.07745             223
                                        comply with requirements
                                        regarding valve or other
                                        approved controlling
                                        device.
25 CFR 226.43(f).....................  Penalty for failure to                414         1.07745             446
                                        notify Superintendent
                                        before drilling,
                                        redrilling, deepening,
                                        plugging, or abandoning
                                        any well.
25 CFR 226.43(g).....................  Penalty per day for                 1,037         1.07745           1,117
                                        failure to properly care
                                        for and dispose of
                                        deleterious fluids.
25 CFR 226.43(h).....................  Penalty per day for                   103         1.07745             111
                                        failure to file plugging
                                        and other required
                                        reports.
25 CFR 227.24........................  Penalty for failure of              1,453         1.07745           1,566
                                        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              6,852         1.07745           7,383
                                        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              1,453         1.07745           1,566
                                        violation of regulations
                                        at part 249 (Off-
                                        Reservation Treaty
                                        Fishing).
----------------------------------------------------------------------------------------------------------------

    Consistent with the Act, the adjusted penalty levels for 2023 will 
take effect immediately upon the effective date of the adjustment. The 
adjusted penalty levels for 2023 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.

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

    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 Bureau is not required to publish a proposed rule for the 
reasons explained below in Section III.M below.

D. Congressional Review Act (CRA)

    This rule is not a major rule under 5 U.S.C. 804(2). 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 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 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.

[[Page 13021]]

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. 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 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 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.

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 chapter I of title 25 Code of Federal Regulations as 
follows.

Title 25--Indians

Chapter I--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:  5 U.S.C. 301; 18 U.S.C. 437; 25 U.S.C. 2, 9, 261, 
262, 264; sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066, as amended; 
and sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.


Sec.  140.3  [Amended]

0
2. In Sec.  140.3, remove ``$1,453'' and add in its place ``$1,566'' 
and remove the parenthetical authority citation at the end of the 
section.

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 ``$1,453'' and add in its place ``$1,566''.

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.

[[Page 13022]]

Sec.  211.55  [Amended]

0
6. In Sec.  211.55(a), remove ``$1,747'' and add in its place 
``$1,882''.

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 ``$1,453'' and add in its place ``$1,566''.

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 ``$1,849'' and add in its place 
``$1,992''.

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 ``$1,037'' and add in its place ``$1,117''.


Sec.  226.43  [Amended]

0
13. In Sec.  226.43:
0
a. Remove ``$103'' wherever it appears and add ``$111'' in its place.
0
b. In paragraph (e), remove ``$207'' and add in its place ``$223''.
0
c. In paragraph (f), remove ``$414'' and add in its place ``$446''.
0
d. In paragraph (g), remove ``$1,037'' and add in its place ``$1,117''.

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 ``$1,453'' and add in its place ``$1,566''.

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 ``$6,852'' and add in 
its place ``$7,383''.

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 ``$1,453'' and add in its place 
``$1,566''.

Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2023-03995 Filed 3-1-23; 8:45 am]
BILLING CODE 4337-15-P