[Federal Register Volume 88, Number 57 (Friday, March 24, 2023)]
[Rules and Regulations]
[Pages 17725-17727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-05990]
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DEPARTMENT OF THE INTERIOR
Bureau of Safety and Environmental Enforcement
30 CFR Part 250
[Docket ID: BSEE-2023-0001; 234E1700D2; ETISF0000.EAQ000 EEEE500000]
RIN 1014-AA58
Oil and Gas and Sulfur Operations on the Outer Continental
Shelf--Civil Penalty Inflation Adjustment
AGENCY: Bureau of Safety and Environmental Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: This final rule adjusts the level of the maximum daily civil
monetary penalty contained in the Bureau of Safety and Environmental
Enforcement (BSEE) regulations for violations of the Outer Continental
Shelf Lands Act (OCSLA), in accordance with the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (FCPIA of 2015) and
Office of Management and Budget (OMB) guidance. The civil penalty
inflation adjustment, using a 1.07745 multiplier, accounts for one year
of inflation based on the Consumer Price Index for all Urban Consumers
(CPI-U) spanning from October 2021 to October 2022.
DATES: This rule is effective on March 24, 2023.
FOR FURTHER INFORMATION CONTACT: Janine Marie Tobias, Safety and
Enforcement Division, Bureau of Safety and Environmental Enforcement,
(202) 208-4657 or by email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Legal Authority
The OCSLA, at 43 U.S.C. 1350(b)(1), directs the Secretary of the
Interior (Secretary) to adjust the OCSLA maximum daily civil penalty
amount at least once every three years to reflect any increase in the
CPI-U to account for inflation. On November 2, 2015, the President
signed into law the FCPIA of 2015 (Sec. 701 of Pub. L. No. 114-74),
which required Federal agencies to adjust the level of civil monetary
penalties found in their regulations with an initial ``catch-up''
adjustment
[[Page 17726]]
through rulemaking, if warranted, and then to 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. Agencies were required to
publish the first annual inflation adjustments in the Federal Register
by no later than January 15, 2017, and must publish recurring annual
inflation adjustments by no later than January 15 of each subsequent
year.
BSEE last updated the maximum daily civil penalty amounts in BSEE's
regulations for OCSLA violations by a final rule published and
effective on February 24, 2022. (See 87 FR 10306). Consistent with OMB
guidance, BSEE's final rule implemented the inflation adjustments
required by the FCPIA of 2015 through October 2021.
The OMB Memorandum M-23-05 (Implementation of Penalty Inflation
Adjustments for 2023, Pursuant to the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015; available at https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-05-CMP-CMP-Guidance.pdf) explains agency responsibilities for: identifying
applicable penalties and performing the annual adjustment; publishing
revisions to regulations to implement the adjustment in the Federal
Register; applying adjusted penalty levels; and performing agency
oversight of inflation adjustments.
BSEE is promulgating this 2023 inflation adjustment for the OCSLA
maximum daily civil penalties as a final rule pursuant to the
provisions of the FCPIA of 2015 and OMB's guidance. A proposed rule is
not required because the FCPIA of 2015 expressly exempted the annual
inflation adjustments implemented pursuant to the FCPIA of 2015 from
the pre-promulgation notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. 553 et seq. (the APA), allowing
those adjustments to be published as final rules. Specifically, the
FCPIA of 2015 states that agencies shall adjust civil monetary
penalties ``notwithstanding Section 553 of the Administrative Procedure
Act.'' (FCPIA of 2015 at Sec. 4(b)(2)). This interpretation of the
FCPIA of 2015 is confirmed by OMB Memorandum M-23-05 at 3-4 (``This
means that the public procedure the APA generally requires--notice, an
opportunity for comment, and a delay in effective date--is not required
for agencies to issue regulations implementing the annual
adjustment.'').
II. Calculations of Adjustments of This Rule
In accordance with the FCPIA of 2015 and the guidance provided in
OMB Memorandum M-23-05, BSEE has calculated the necessary inflation
adjustment for the maximum daily civil monetary penalty amount in 30
CFR 250.1403 for violations of OCSLA. The previous OCSLA civil penalty
inflation adjustment accounted for inflation through October 2021. The
required annual civil penalty inflation adjustment promulgated through
this rule accounts for inflation through October 2022.
Annual inflation adjustments are based on the percent change
between the CPI-U for the October preceding the date of the adjustment
and the prior year's October CPI-U. Consistent with the guidance in OMB
Memorandum M-23-05, BSEE divided the October 2022 CPI-U by the October
2021 CPI-U to calculate the multiplying factor. In this case, the
October 2022 CPI-U (298.012) divided by the October 2021 CPI-U
(276.589) is 1.07745. OMB Memorandum M-23-05 confirms that this is the
proper multiplier. (OMB Memorandum M-23-05 at 1, n.4).
The FCPIA of 2015 requires that BSEE adjust the OCSLA maximum daily
civil penalty amount for inflation using the applicable 2023 multiplier
(1.07745). Accordingly, BSEE multiplied the existing OCSLA maximum
daily civil penalty amount ($48,862) by 1.07745 to arrive at the new
maximum daily civil penalty amount ($52,646.36). The FCPIA of 2015
requires that the resulting amount be rounded to the nearest $1.00 at
the end of the calculation process. Accordingly, the adjusted OCSLA
maximum daily civil penalty for 2023 is $52,646.
The adjusted penalty levels take effect immediately upon
publication of this rule. Pursuant to the FCPIA of 2015, the increase
in the OCSLA maximum daily civil penalty amount applies to civil
penalties assessed after the date the increase takes effect, even when
the associated violation(s) predates such increase. Consistent with the
provisions of OCSLA and the FCPIA of 2015, this rule adjusts the
following maximum civil monetary penalty per day per violation as
follows:
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Current Adjusted
CFR citation Description of the maximum Multiplier maximum
penalty penalty penalty
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30 CFR 250.1403....................... Failure to comply per- $48,862 1.07745 $52,646
day, per-violation.
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This rulemaking does not address any updates to the civil penalties
related to Federal Oil and Gas Royalty Management Act (FOGRMA)
violations. Per 86 FR 34132, BSEE regulations at 30 CFR part 250
Subpart N addressing maximum FOGRMA civil penalties (30 CFR 250.1453)
cross-reference regulations of the Office of Natural Resources Revenue
(ONRR) at 30 CFR 1251.52 that set maximum daily civil penalty amounts
for FOGRMA violations that are not timely corrected. Please refer to
the cross-referenced ONRR regulations for the most up to date FOGRMA
civil penalty amounts.
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
Executive Order (E.O.) 12866 provides that the OMB Office of
Information and Regulatory Affairs (OIRA) will review all significant
rules. OIRA has determined that this rule is not significant. (See OMB
Memorandum M-23-05 at 3).
E.O. 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.
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 further emphasizes 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, to the extent permitted by statute.
[[Page 17727]]
B. 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 FCPIA of 2015 expressly exempts these
annual inflation adjustments from the requirement to publish a proposed
rule for notice and comment. (See FCPIA of 2015 at Sec. 4(b)(2); OMB
Memorandum M-23-05 at 3-4). Thus, the RFA does not apply to this
rulemaking.
C. Congressional Review Act/Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the
Congressional Review Act/Small Business Regulatory Enforcement Fairness
Act. This rule:
(1) Does not have an annual effect on the economy of $100 million
or more;
(2) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; and
(3) 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. Therefore, 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 effect a taking of private property or otherwise
have takings implications under E.O. 12630. Therefore, a takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. To the extent that State and local
governments have a role in Outer Continental Shelf activities, this
rule will not affect that role. Therefore, a federalism summary impact
statement is not required.
G. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(1) 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
(2) 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 of the Interior's consultation policy, under
Departmental Manual Part 512 Chapters 4 and 5, and under the criteria
in E.O. 13175. We have determined that it has no substantial direct
effects on Federally-recognized Indian Tribes or Alaska Native Claims
Settlement Act (ANCSA) Corporations, and that consultation under the
Department of the Interior's Tribal and ANCSA consultation policies is
not required.
I. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.) is not required.
J. National Environmental Policy Act
This rule does not constitute a major Federal action under the
National Environmental Policy Act of 1969 (NEPA) because of the non-
discretionary nature of the civil penalty adjustment as required by law
(see 40 CFR 1508.1(q)(1)(ii)). The FCPIA of 2015 requires BSEE to
annually adjust the amounts of its civil penalties to account for
inflation as measured by the Department of Labor's Consumer Price
Index. Accordingly, BSEE has no discretion in the execution of the
civil penalty adjustments reflected in this final rule. Because this
rule is not a major Federal action, it is not subject to the
requirements of NEPA. Even if this were a discretionary action subject
to NEPA, which it is not, a detailed statement under NEPA would
nevertheless 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)). BSEE 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. Therefore, a detailed statement under NEPA is not required.
K. 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 in 30 CFR Part 250
Administrative practice and procedure, Continental shelf,
Environmental impact statements, Environmental protection, Government
contracts, Investigations, Oil and gas exploration, Penalties,
Pipelines, Continental Shelf--mineral resources, Continental Shelf--
rights-of-way, Reporting and recordkeeping requirements, Sulfur.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, the BSEE amends title 30,
chapter II, subchapter B, part 250 of the Code of Federal Regulations
as follows.
PART 250--OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for 30 CFR part 250 continues to read as
follows:
Authority: 30 U.S.C. 1751, 31 U.S.C. 9701, 33 U.S.C.
1321(j)(1)(C), 43 U.S.C. 1334.
0
2. Revise Sec. 250.1403 to read as follows:
Sec. 250.1403 What is the maximum civil penalty?
The maximum civil penalty is $52,646 per day per violation.
[FR Doc. 2023-05990 Filed 3-23-23; 8:45 am]
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