Rule2023-03217
2023 Civil Penalties Inflation Adjustments for Oil, Gas, and Sulfur Operations in the Outer Continental Shelf
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 15, 2023
Effective
February 15, 2023
Issuing agencies
Interior DepartmentOcean Energy Management Bureau
Abstract
This final rule implements the 2023 inflation adjustments to the maximum daily civil monetary penalties contained in the Bureau of Ocean Energy Management (BOEM) regulations for violations of the Outer Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990 (OPA), pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Improvements Act) and relevant Office of Management and Budget (OMB) guidance. The 2023 adjustment multiplier of 1.07745 accounts for 1 year of inflation from October 2021 through October 2022.
Full Text
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<title>Federal Register, Volume 88 Issue 31 (Wednesday, February 15, 2023)</title>
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[Federal Register Volume 88, Number 31 (Wednesday, February 15, 2023)]
[Rules and Regulations]
[Pages 9749-9752]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03217]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Parts 550 and 553
[Docket ID: BOEM-2023-0001]
RIN 1010-AE17
2023 Civil Penalties Inflation Adjustments for Oil, Gas, and
Sulfur Operations in the Outer Continental Shelf
AGENCY: Bureau of Ocean Energy Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule implements the 2023 inflation adjustments to
the maximum daily civil monetary penalties contained in the Bureau of
Ocean Energy Management (BOEM) regulations for violations of the Outer
Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990
(OPA), pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (Improvements Act) and relevant Office of
Management and Budget (OMB) guidance. The 2023 adjustment multiplier of
1.07745 accounts for 1 year of inflation from October 2021 through
October 2022.
DATES: This rule is effective on February 15, 2023.
FOR FURTHER INFORMATION CONTACT: Questions regarding the inflation
adjustment methodology or amount should be directed to Martin Heinze,
Economics Division, BOEM, at <a href="/cdn-cgi/l/email-protection#e68b8794928f88c88e838f889c83a68489838bc8818990"><span class="__cf_email__" data-cfemail="264b4754524f48084e434f485c43664449434b08414950">[email protected]</span></a> or at (703) 787-
1010. Questions regarding the timing of this adjustment or the
applicability of the regulations should be directed to Satrina Lord,
Office of Regulations, BOEM at <a href="/cdn-cgi/l/email-protection#bfccdecbcdd6d1de91d3d0cddbffddd0dad291d8d0c9"><span class="__cf_email__" data-cfemail="b0c3d1c4c2d9ded19edcdfc2d4f0d2dfd5dd9ed7dfc6">[email protected]</span></a> or at (703) 787-
1250.
SUPPLEMENTARY INFORMATION:
I. Legal Authority
II. Background and Purpose
III. Calculation of the 2023 Adjustments
IV. Statutory and Executive Order Reviews
A. Statutes
1. National Environmental Policy Act
2. Regulatory Flexibility Act
3. Paperwork Reduction Act
4. Unfunded Mandates Reform Act
5. Small Business Regulatory Enforcement Fairness Act
6. Congressional Review Act
B. Executive Orders (E.O.)
1. Governmental Actions and Interference With Constitutionally
Protected Property Rights (E.O. 12630)
2. Regulatory Planning and Review (E.O. 12866); Improving
Regulation and Regulatory Review (E.O. 13563)
3. Civil Justice Reform (E.O. 12988)
4. Federalism (E.O. 13132)
5. Consultation and Coordination With Indian Tribal Governments
(E.O. 13175)
6. Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (E.O. 13211)
I. Legal Authority
OCSLA authorizes the Secretary of the Interior (the Secretary) to
impose a daily civil monetary penalty for a violation of OCSLA or its
implementing regulations, leases, permits, or orders. It also directs
the Secretary to adjust the maximum penalty at least every 3 years to
reflect any inflation increase in the Consumer Price Index. 43 U.S.C.
1350(b)(1). Similarly, OPA authorizes civil monetary penalties for
failure to comply with OPA's financial responsibility provisions or
their implementing regulations. 33 U.S.C. 2716a(a). OPA does not
include a maximum daily civil penalty inflation adjustment provision.
Id.
The Improvements Act \1\ requires that Federal agencies publish
inflation adjustments to their civil monetary penalties in the Federal
Register not later than January 15 annually.\2\ Public Law 114-74, sec.
701(b)(1). The purposes of these inflation adjustments are to maintain
the deterrent effect of civil penalties and to further the policy goals
of the underlying statutes. Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law 101-410, sec. 2 (codified at 28
U.S.C. 2461 note).
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\1\ The Improvements Act amended the Federal Civil Penalties
Inflation Adjustment Act of 1990. See Public Law 101-410 (codified
at 28 U.S.C. 2461 note).
\2\ Under the Improvements Act, Federal agencies were required
to adjust their civil monetary penalties for inflation with an
initial ``catch-up'' adjustment through an interim final rulemaking
in 2016 and must make subsequent inflation adjustments not later
than January 15 annually, beginning in 2017. Public Law 114-74, sec.
701(b)(1).
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II. Background and Purpose
BOEM implemented the 2022 inflation adjustment for its civil
monetary penalties through a final rule entitled ``2022 Civil Penalties
Inflation Adjustments for Oil, Gas, and Sulfur Operations in the Outer
Continental Shelf,'' which was published in the Federal Register. 87 FR
15333 (March 18, 2022). That rule accounted for inflation for the 12-
month period between October 2020 and October 2021.
The OMB memorandum M-23-05 \3\ reiterates agency responsibilities
under
[[Page 9750]]
the Improvements Act. Such responsibilities include identifying
applicable penalties and performing the annual adjustment; publishing
revisions to regulations to implement the adjustment in the Federal
Register; applying adjusted penalty dollar amounts; and performing
agency oversight of inflation adjustments.
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\3\ 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'' is available at
<a href="https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-05-CMP-CMP-Guidance.pdf">https://www.whitehouse.gov/wp-content/uploads/2022/12/M-23-05-CMP-CMP-Guidance.pdf</a>).
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Pursuant to the Improvements Act, this final rule implements BOEM's
2023 inflation adjustments to OCSLA and OPA maximum daily civil
monetary penalties. A proposed rule is unnecessary as the Improvements
Act expressly exempts annual civil penalty inflation adjustments from
the Administrative Procedure Act's (APA) notice of proposed rulemaking,
public comment, and standard effective date provisions. Improvements
Act, Public Law 114-74, sec. 701(b)(1)(D); APA, 5 U.S.C. 553.\4\
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\4\ Specifically, Congress directed that agencies adjust civil
monetary penalties ``notwithstanding section 553 of title 5, United
States Code [Administrative Procedure Act (APA)],'' which generally
requires prior notice of proposed rulemaking, opportunity for public
comment on proposed rulemaking, and publication of a final rule at
least 30 days before its effective date. Improvements Act, sec.
701(b)(1)(D); APA, 5 U.S.C. 553. OMB confirmed this interpretation
of the Improvements Act. OMB 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.'').
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On July 22, 2021, BOEM issued a final rule entitled ``Maximum Daily
Civil Penalty Amounts for Violations of the Federal Oil and Gas Royalty
Management Act'' (RIN 1010-AE08, 86 FR 38557), which amended those BOEM
regulations that set maximum daily civil penalty (MDCP) amounts for
violations of the Federal Oil and Gas Royalty Management Act (FOGRMA).
BOEM amended its regulations to cross-reference the Office of Natural
Resources Revenue (ONRR) regulations that also set MDCP amounts for
FOGRMA violations. This cross-reference ensured consistency between
BOEM's FOGRMA MDCP amounts and ONRR's FOGRMA MDCP amounts. It also
ensured consistent compliance with the Improvements Act and related OMB
guidance while reducing unnecessary duplication of effort and costs to
BOEM. Because that rule established a permanent cross-reference between
BOEM's FOGRMA civil penalties amounts and those of ONRR, the BOEM
FOGRMA civil penalties are not being adjusted with this rulemaking
(which is now confined to civil penalties unrelated to FOGRMA).
III. Calculation of the 2023 Adjustments
In accordance with the Improvements Act, BOEM determined that OCSLA
and OPA maximum daily civil monetary penalties require annual inflation
adjustments and issues this final rule adjusting those penalty amounts
for inflation through October 2022. The annual inflation adjustment is
based on the percent 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 OMB M-
23-05, the 2023 inflation adjustment multiplier can be calculated by
dividing the October 2022 CPI-U by the October 2021 CPI-U. In this
case, October 2022 CPI-U (298.012)/October 2021 CPI-U (276.589) =
1.07745.
For 2023, BOEM multiplied the current OCSLA maximum daily civil
monetary penalty of $48,862 by the multiplier 1.07745 to equal
$52,646.36. The Improvements Act requires that the resulting amount
then be rounded to the nearest dollar. Accordingly, the 2023 adjusted
OCSLA maximum daily civil monetary penalty is $52,646.
For 2023, BOEM multiplied the current OPA maximum daily civil
penalty amount of $51,796 by the multiplier 1.07745 to equal
$55,807.60. The Improvements Act requires that the resulting amount
then be rounded to the nearest dollar. Accordingly, the 2023 adjusted
OPA maximum daily civil monetary penalty is $55,808.
The adjusted penalty amounts take effect immediately upon
publication of this rule. Under the Improvements Act, the adjusted
amounts apply to civil penalties assessed after the date the increase
takes effect, even if the associated violation predates the increase.
This table summarizes BOEM's 2023 maximum daily civil monetary
penalties for each OCSLA and OPA violation:
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Current Adjusted
CFR citation Description of the maximum Multiplier maximum
penalty penalty penalty
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30 CFR 550.1403 (OCSLA)............... Failure to comply per $48,862 1.07745 $52,646
day per violation.
30 CFR 553.51(a) (OPA)................ Failure to comply per 51,796 1.07745 55,808
day per violation.
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IV. Statutory and Executive Order Reviews
A. Statutes
1. National Environmental Policy Act
This rule does not constitute a major Federal action under the
National Environmental Policy Act of 1969 (NEPA) because the civil
penalty adjustments are required by law (see 40 CFR 1508.1(q)(1)(ii)).
The Improvements Act requires BOEM 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, BOEM 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 therefore 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 not be required because, as a regulation of
an administrative nature, this rule would be covered by a categorical
exclusion (see 43 CFR 46.210(i)). Moreover, BOEM 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.
2. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq.) 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. However, 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
Improvements Act expressly exempts these annual inflation adjustments
from the requirement to publish a proposed rule for notice and comment.
Improvements Act, Public Law 114-74, sec. 701(b)(1)(D); OMB M-23-05 at
3-4.
[[Page 9751]]
Thus, the RFA does not apply to this rulemaking.
3. Paperwork Reduction Act
This rule does not contain information collection requirements,
and, therefore, a submission to OMB under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.) is not required.
4. Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or on the private sector, of more than $100 million
per year (adjusted for inflation). The rule does not have a significant
or unique effect on State, local, or Tribal governments, or on 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.
5. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2). 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.
6. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.) and
OMB guidance,\5\ this rule is not a major rule, as defined by that act.
5 U.S.C. 804(2).
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\5\ See Office of Mgmt. & Budget, Exec. Office of the President,
OMB M-19-14, Guidance on Compliance with the Congressional Review
Act (2019), available at <a href="https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf">https://www.whitehouse.gov/wp-content/uploads/2019/04/M-19-14.pdf</a>; OMB Memorandum M-23-05 at 3.
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B. Executive Orders (E.O.)
1. Governmental Actions and Interference With Constitutionally
Protected Property Rights (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.
2. Regulatory Planning and Review (E.O. 12866); Improving Regulation
and Regulatory Review (E.O. 13563)
E.O. 12866 provides that the Office of Information and Regulatory
Affairs (OIRA) will review all significant rules. OIRA determined that
annual civil penalty inflation adjustment rules are not significant if
they exclusively implement the annual inflation adjustment consistent
with OMB guidance and have an annual impact of less than $100 million.
See OMB Memorandum M-23-05 at 3. This rule meets those conditions and,
thus, is not a significant rule.
E.O. 13563 reaffirms the principles of E.O. 12866, while calling
for improvements in the Nation's regulatory system to reduce
uncertainty and to promote predictability and for the use of 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. However, BOEM is using neither science nor public
participation in this rulemaking. Congress directed agencies to adjust
the maximum daily civil penalty amounts using a particular equation
without public participation. BOEM does not have discretion to use any
other factor in the adjustment. BOEM has developed this rule in a
manner consistent with the requirements in E.O. 13563 to the extent
relevant and feasible given the limited discretion provided agencies
under the Improvements Act.
3. 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.
4. 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. This rule merely adjusts the
dollar amount of civil monetary penalties that BOEM may impose on its
lessees and has no effects on any action of State or local governments.
Therefore, a federalism summary impact statement is not required.
5. Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
The Department of the Interior and BOEM strive to strengthen their
government-to-government relationships with Indian Tribes through a
commitment to consultation with Indian Tribes and recognition of the
Tribes' right to self-governance and Tribal sovereignty. BOEM evaluated
this rule under the Department of the Interior's consultation policy,
Departmental Manual part 512 chapters 4 and 5, and E.O. 13175, and
determined that this rule has no substantial direct effects on
federally recognized Indian Tribes or Alaska Native Claims Settlement
Act Corporations and that consultation under existing Department and
BOEM policies is not required.
6. Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use (E.O. 13211)
This rule is not a ``significant energy action'' under the
definition of that term found in E.O. 13211. Therefore, a statement of
energy effects is not required.
List of Subjects
30 CFR Part 550
Administrative practice and procedure, Continental shelf,
Environmental impact statements, Environmental protection, Federal
lands, Government contracts, Investigations, Mineral resources, Oil and
gas exploration, Outer continental shelf, Penalties, Pipelines,
Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
30 CFR Part 553
Administrative practice and procedure, Continental shelf, Financial
responsibility, Liability, Limit of liability, Oil and gas exploration,
Oil pollution, Outer continental shelf, Penalties, Pipelines, Reporting
and recordkeeping requirements, Rights-of-way, Surety bonds, Treasury
securities.
Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, BOEM amends 30 CFR parts
550 and 553 as follows:
[[Page 9752]]
PART 550--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for part 550 continues to read as follows:
Authority: 30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
0
2. Revise Sec. 550.1403 to read as follows:
Sec. 550.1403 What is the maximum civil penalty?
The maximum civil penalty is $52,646 per day per violation.
PART 553--OIL SPILL FINANCIAL RESPONSIBILITY FOR OFFSHORE
FACILITIES
0
3. The authority citation for part 553 continues to read as follows:
Authority: 33 U.S.C. 2704, 2716; E.O. 12777, as amended.
0
4. Revise Sec. 553.51(a) to read as follows:
Sec. 553.51 What are the penalties for not complying with this part?
(a) If you fail to comply with the financial responsibility
requirements of OPA at 33 U.S.C. 2716 or with the requirements of this
part, then you may be liable for a civil penalty of up to $55,808 per
COF per day of violation (that is, each day a COF is operated without
acceptable evidence of OSFR).
* * * * *
[FR Doc. 2023-03217 Filed 2-14-23; 8:45 am]
BILLING CODE 4340-98-P
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</html>Indexed from Federal Register on February 15, 2023.
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