Rule2023-03995
Civil Penalties Inflation Adjustments; Annual Adjustments
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
March 2, 2023
Effective
March 2, 2023
Issuing agencies
Interior DepartmentIndian Affairs Bureau
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 41 (Thursday, March 2, 2023)</title>
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<body><pre>[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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, <a href="/cdn-cgi/l/email-protection#81d3c0c2c0c1e3e8e0afe6eef7"><span class="__cf_email__" data-cfemail="386a797b79785a5159165f574e">[email protected]</span></a>.
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):
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Current
penalty Annual Adjusted
CFR citation Description of penalty including adjustment penalty for
catchup (multiplier) 2023
adjustment
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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
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