Civil Penalties Inflation Adjustments; Annual Adjustments
| Published date | 09 March 2022 |
| Record Number | 2022-04989 |
| Section | Rules and Regulations |
| Court | Indian Affairs Bureau |
Federal Register, Volume 87 Issue 46 (Wednesday, March 9, 2022)
[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
[Rules and Regulations]
[Pages 13153-13156]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04989]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Parts 140, 141, 211, 213, 225, 226, 227, 243, 249
[223A2100DD/AAKC001030/A0A501010.999900253G]
RIN 1076-AF70
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 9, 2022.
FOR FURTHER INFORMATION CONTACT: Steven Mullen, Federal Register
Liaison, Office of Regulatory Affairs and Collaborative Action, Office
of the Assistant Secretary--Indian Affairs; telephone (202) 924-2650,
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of Annual Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 113563)
B. Reducing Regulation and Controlling Regulatory Costs (E.O.
113771)
C. Regulatory Flexibility Act
D. Small Business Regulatory Enforcement Fairness Act
E. Unfunded Mandates Reform Act
F. Takings (E.O. 112630)
G. Federalism (E.O. 113132)
H. Civil Justice Reform (E.O. 112988)
I. Consultation With Indian Tribes (E.O. 113175)
J. Paperwork Reduction Act
K. National Environmental Policy Act
L. Effects on the Energy Supply (E.O. 113211)
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), 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), and for 2021 on
January 28, 2021 (86 FR 7344).
II. Calculation of 2022 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, 2022. See December 15, 2021, Memorandum
for the Heads of Executive Departments and Agencies, from Shalanda D.
Young, Acting Director, Office of Management and Budget, re:
Implementation of Penalty Inflation Adjustments for 2022, Pursuant to
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015 (M-21-10). The guidance states that the cost-of-living
adjustment multiplier for 2022, based on the Consumer Price Index (CPI-
U) for the month of October 2021, not seasonally adjusted, is 1.06222.
(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 2022, OMB explains, October 2021 CPI-U
(276.589))/October 2020 CPI-U (260.388)) = 1.06222.) The guidance
instructs agencies to complete the 2022 annual adjustment by
multiplying each applicable penalty by the multiplier, 1.06222, 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 2022 by multiplying 1.06222 (i.e., the cost-of-living
adjustment multiplier for 2022) by each penalty amount as updated by
the adjustment made in the prior year (2021):
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Current
penalty Annual Adjusted
CFR citation Description of penalty including adjustment penalty
catchup (multiplier) for 2022
adjustment
----------------------------------------------------------------------------------------------------------------
25 CFR Sec. 140.3................... Penalty for trading in $1,368 1.06222 $1,453
Indian country without a
license.
[[Page 13154]]
25 CFR Sec. 141.50.................. Penalty for trading on 1,368 1.06222 1,453
Navajo, Hopi or Zuni
reservations without a
license.
25 CFR Sec. 211.55.................. Penalty for violation of 1,645 1.06222 1,747
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 Sec. 213.37.................. Penalty for failure of 1,368 1.06222 1,453
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 Sec. 225.37.................. Penalty for violation of 1,741 1.06222 1,849
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 Sec. 226.42.................. Penalty for violation of 976 1.06222 1,037
lease of Osage reservation
lands for oil and gas
mining or regulations at
part 226, or noncompliance
with the Superintendent's
order.
25 CFR Sec. 226.43(a)............... Penalty per day for failure 97 1.06222 103
to obtain permission to
start operations.
25 CFR Sec. 226.43(b)............... Penalty per day for failure 97 1.06222 103
to file records.
25 CFR Sec. 226.43(c)............... Penalty for each well and 97 1.06222 103
tank battery for failure to
mark wells and tank
batteries.
25 CFR Sec. 226.43(d)............... Penalty each day after 97 1.06222 103
operations are commenced
for failure to construct
and maintain pits.
25 CFR Sec. 226.43(e)............... Penalty for failure to 195 1.06222 207
comply with requirements
regarding valve or other
approved controlling device.
25 CFR Sec. 226.43(f)............... Penalty for failure to 390 1.06222 414
notify Superintendent
before drilling,
redrilling, deepening,
plugging, or abandoning any
well.
25 CFR Sec. 226.43(g)............... Penalty per day for failure 976 1.06222 1,037
to properly care for and
dispose of deleterious
fluids.
25 CFR Sec. 226.43(h)............... Penalty per day for failure 97 1.06222 103
to file plugging and other
required reports.
25 CFR Sec. 227.24.................. Penalty for failure of 1,368 1.06222 1,453
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 Sec. 243.8................... Penalty for non-Native 6,451 1.06222 6,852
transferees of live Alaskan
reindeer who violates part
243, takes reindeer without
a permit, or fails to abide
by permit terms.
25 CFR Sec. 249.6(b)................ Penalty for fishing in 1,368 1.06222 1,453
violation of regulations at
part 249 (Off-Reservation
Treaty Fishing).
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Consistent with the Act, the adjusted penalty levels for 2022 will
take effect immediately upon the effective date of the adjustment. The
adjusted penalty levels for 2022 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
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.
[[Page 13155]]
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.
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 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 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 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.
[[Page 13156]]
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 1 of title 25 Code of Federal Regulations 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 ``$1,368'' and add in its place ``$1,453''.
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 ``$1,368'' and add in its place ``$1,453''.
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, in paragraph (a), remove ``$1,645'' and add in its
place ``$1,747''.
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 ``$1,368'' and add in its place ``$1,453''.
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, in paragraph (a), remove ``$1,741'' and add in its
place ``$1,849''.
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 ``$976'' and add in its place ``$1,037''.
Sec. 226.43 [Amended]
0
13. In Sec. 226.43:
0
a. Remove ``$97'' and add in each place ``$103'' wherever it appears;
0
b. In paragraph (e), remove ``$195'' and add in its place ``$207'';
0
c. In paragraph (f), remove ``$390'' and add in its place ``$414''; and
0
d. In paragraph (g), remove ``$976'' and add in its place ``$1,037''.
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 ``$1,368'' and add in its place ``$1,453''.
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, in paragraph (a) introductory text, remove
``$6,451'' and add in its place ``$6,852''.
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, in paragraph (b), remove ``$1,368'' and add in its
place ``$1,453''.
Bryan Newland,
Assistant Secretary--Indian Affairs.
[FR Doc. 2022-04989 Filed 3-8-22; 8:45 am]
BILLING CODE 4337-15-P
