Proposed Rule2023-27079
Bonding Requirements When Filing an Appeal of a Bureau of Safety and Environmental Enforcement Civil Penalty
Primary source
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Published
December 13, 2023
Issuing agencies
Interior DepartmentSafety and Environmental Enforcement Bureau
Abstract
The Department of the Interior (Interior) is proposing to amend regulations administered by the Bureau of Safety and Environmental Enforcement (BSEE) regarding the bonding requirements for entities filing an appeal of a BSEE decision that assesses a civil penalty. The proposed regulations would clarify that entities appealing a BSEE civil penalty decision to the Interior Board of Land Appeals (IBLA) must have a bond covering the civil penalty assessment amount for the IBLA to have jurisdiction over the appeal.
Full Text
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<title>Federal Register, Volume 88 Issue 238 (Wednesday, December 13, 2023)</title>
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[Federal Register Volume 88, Number 238 (Wednesday, December 13, 2023)]
[Proposed Rules]
[Pages 86285-86288]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27079]
[[Page 86285]]
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DEPARTMENT OF THE INTERIOR
Bureau of Safety and Environmental Enforcement
30 CFR Parts 250 and 290
[Docket ID: BSEE-2023-0014 EEEE500000 245E1700D2 ET1SF0000.EAQ000]
RIN: 1014-AA57
Bonding Requirements When Filing an Appeal of a Bureau of Safety
and Environmental Enforcement Civil Penalty
AGENCY: Bureau of Safety and Environmental Enforcement (BSEE),
Interior.
ACTION: Proposed rule.
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SUMMARY: The Department of the Interior (Interior) is proposing to
amend regulations administered by the Bureau of Safety and
Environmental Enforcement (BSEE) regarding the bonding requirements for
entities filing an appeal of a BSEE decision that assesses a civil
penalty. The proposed regulations would clarify that entities appealing
a BSEE civil penalty decision to the Interior Board of Land Appeals
(IBLA) must have a bond covering the civil penalty assessment amount
for the IBLA to have jurisdiction over the appeal.
DATES: Submit comments on the proposed rule to BSEE by February 12,
2024. BSEE may not fully consider comments received after this date.
ADDRESSES: You may submit comments on the proposed rulemaking by any of
the following methods. Please use the Regulation Identifier Number
(RIN) 1014-AA57 as an identifier in your message.
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
In the entry titled Enter Keyword or ID, enter BSEE-2023-0014 then
click search. Follow the instructions to submit public comments and
view supporting and related materials available for this rulemaking.
BSEE may post all comments submitted.
<bullet> Mail or hand-carry comments to the Department of the
Interior; Bureau of Safety and Environmental Enforcement; Attention:
Regulations and Standards Branch; 45600 Woodland Road, Sterling,
Virginia 20166. Please reference ``Bonding Requirements When Filing an
Appeal of a Bureau of Safety and Environmental Enforcement Civil
Penalty, 1014-AA57'' in your comments and include your name and return
address.
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. In order for
BSEE to withhold from disclosure your personal identifying information,
you must identify any information contained in your comment submittal
that, if released, would constitute a clearly unwarranted invasion of
your personal privacy. You must also briefly describe any possible
harmful consequence(s) of the disclosure of information, such as
embarrassment, injury, or other harm. While you can ask us in your
comment to withhold your personal identifying information from public
review, we cannot guarantee that we will be able to do so.
FOR FURTHER INFORMATION CONTACT: For technical questions, contact
Janine Marie Tobias at <a href="/cdn-cgi/l/email-protection#afe5cec1c6c1ca81fbc0cdc6cedcefcddccaca81c8c0d9"><span class="__cf_email__" data-cfemail="e3a9828d8a8d86cdb78c818a8290a381908686cd848c95">[email protected]</span></a> or (202) 208-4657. For
procedural questions, contact Kirk Malstrom at (703) 787-1751 or by
email at <a href="/cdn-cgi/l/email-protection#0b796e6c784b69786e6e256c647d"><span class="__cf_email__" data-cfemail="81f3e4e6f2c1e3f2e4e4afe6eef7">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Executive Summary
Pursuant to the Outer Continental Shelf Lands Act (OCSLA) (43
U.S.C. 1350), BSEE has the delegated authority to assess civil
penalties to certain entities engaged in oil and gas exploration,
development, and production operations on the Outer Continental Shelf
(OCS) following certain violations by those entities of a statutory
provision, regulation, order, or lease term. The Department's
implementing regulations for this authority are located at 30 CFR part
250, subpart N--Outer Continental Shelf Civil Penalties (Sec. Sec.
250.1400-250.1409). Additional relevant regulations regarding the
procedures for appealing civil penalty assessments are at 30 CFR part
290, subpart A-Bureau of Safety and Environmental Enforcement Appeal
Procedures (Sec. Sec. 290.1-290.8).
BSEE recently commenced a review of its civil penalty assessment
appeal processes at 30 CFR part 250, subpart N and 30 CFR part 290,
subpart A. BSEE's review was initiated following the IBLA's July 7,
2022, order in Petro Ventures, Inc. (IBLA No. 2020-48) analyzing the
effect of the civil penalty appeal bonding requirements in 30 CFR
250.1409. This regulation, at paragraph (b), requires that an entity
filing an appeal of a civil penalty assessment must either ``[s]ubmit a
surety bond in the amount of the penalty'' or request that ``your
lease-specific/area-wide bond on file be used as the bond for the
penalty amount.'' When Interior proposed what is now 30 CFR 250.1409 in
1999, it explained that the civil penalty appeal bonding requirement
was ``designed to ensure that funds will be available to cover the
final civil penalty assessment if the appeal is denied, and to
discourage any appeals filed for the sole purpose of delaying payment
of that assessment.'' 64 FR 1930, 1966 (January 12, 1999). BSEE and its
predecessors have consistently intended and understood this bonding
requirement to operate as a condition precedent to an entity's right to
pursue an appeal, and most entities pursuing civil penalty appeals have
a similar understanding. The IBLA, however, concluded in Petro
Ventures, Inc. that while 30 CFR 250.1409 requires that the appealing
entity have bonding covering the appealed civil penalty amount, the
regulation is not phrased in such a way as to make it a jurisdictional
precondition or to support dismissal of the appeal if the bonding
requirement is not met.
Accordingly, Interior is proposing revisions to 30 CFR 250.1409,
What are my appeal rights?, and 30 CFR 290.4, How do I file an appeal?,
to effectuate the original intent of the bonding requirement by
ensuring that bonding is a jurisdictional precondition for maintaining
an appeal of a BSEE civil penalty assessment at the IBLA.
Section-by-Section Discussion of Proposed Changes
What are my appeal rights? (Sec. 250.1409)
BSEE proposes to change the introductory sentence of Sec.
250.1409(b) from ``If you file an appeal, you must either:'' to ``In
order to file an appeal, you must perform one of the following actions
within the 60-day appeal period to have your appeal heard:''. BSEE also
proposes to move existing Sec. 250.1409(d) to a new Sec. 250.1409(e).
The new proposed Sec. 250.1409(d) would state: ``Satisfying the
bonding requirement in paragraph (b) of this section is a
jurisdictional precondition for a civil penalty appeal. If you have
timely filed a request with BOEM pursuant to paragraph (b)(2) of this
section to use your lease-specific/area-wide bond on file as the bond
for the penalty amount, the IBLA's jurisdiction over the appeal is
preserved while BOEM's decision on your request is pending. Should BOEM
deny your request or require additional security pursuant to paragraph
(c) of
[[Page 86286]]
this section, you have 30 days to satisfy paragraph (b)(1) of this
section or post the required additional security, as applicable, and
jurisdiction is preserved during that 30-day period. If you fail to
satisfy these bonding requirements, the IBLA will lose jurisdiction and
must dismiss your appeal.'' Together, these proposed provisions would
effectuate the intended functions of BSEE's bonding requirements for
filing and maintaining a civil penalty appeal at the IBLA. BSEE
requires bonding covering the civil penalty amount for all civil
penalty appeals to ensure that funds will be available to cover the
civil penalty amount if the assessment is upheld and to discourage
appeals filed for the sole purpose of delaying payment of that
assessment.
Lastly, BSEE proposes to modify the existing Sec. 250.1409(d),
which would become the new Sec. 250.1409(e), by changing the
introductory sentence from ``If you do not either pay the penalty or
file a timely appeal, BSEE will take one or more of the following
actions:'' to ``If you do not either pay the penalty or fully satisfy
the appeal requirements, the Department may take one or more of the
following actions:''. In paragraph (e)(1), BSEE proposes to delete ``We
will'' and start the sentence with ``Collect.'' In paragraph (e)(2),
BSEE proposes to delete ``We may'' and start the sentence with
``Initiate.'' In paragraph (e)(3), BSEE proposes to delete ``We may''
and start the sentence with ``Bar.'' BSEE proposes these edits because
different entities within Interior may take the listed actions and to
improve the grammatical structure of the overall provision.
How do I file an appeal? (Sec. 290.4)
BSEE proposes to add a new paragraph (c) to Sec. 290.4. Existing
Sec. 290.4 sets forth the items that BSEE must receive within 60 days
after a party receives the appealed decision for the appeal to be
considered properly filed. The proposed paragraph (c) would add to that
list: ``If you are appealing a civil penalty assessment, either
notification of payment of the penalty or documentation demonstrating
satisfaction of the requirements in 30 CFR 250.1409(b).'' As with the
other appeal filing requirements in the section, it would also
expressly state that the appellant ``cannot extend the 60-day period
for satisfying this requirement, except as specifically provided in 30
CFR 250.1409(d).'' BSEE is proposing these additions to ensure
awareness of, and consistency with, the requirements in the proposed
Sec. 250.1409; to ensure that appealing entities timely provide BSEE
with documentation demonstrating compliance with Sec. 250.1409; and to
further emphasize the nature of the bonding requirement as a
jurisdictional precondition to maintenance of an appeal.
Procedural Matters
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
When an agency issues a rulemaking proposal, the Regulatory
Flexibility Act (RFA) requires the agency to ``prepare and make
available for public comment an initial regulatory flexibility
analysis'' that will ``describe the impact of the proposed rule on
small entities.'' (5 U.S.C. 603(a)). Section 605 of the RFA allows an
agency to certify a rule, in lieu of preparing an analysis, if the
proposed rulemaking is not expected to have a significant economic
impact on a substantial number of small entities.
BSEE estimates that at least 80 entities (lessees, grant holders,
and operators) would be subject to this proposed rule, of which
approximately 60 percent are small according to the U.S. Small Business
Administration size standards based on each firm's North American
Industry Classification System code, number of employees, and annual
revenues. Therefore, BSEE has determined that this proposed rule would
apply to a substantial number of small entities.
However, BSEE has determined that the impact on entities affected
by the proposed rule would not be significant. The provisions would
only align the language of the regulations with BSEE's and the
regulated industry's longstanding understanding of the effects of the
existing requirement. Existing regulations have long required
satisfaction of appeal bonding requirements for appeals of civil
penalty assessments, and the proposed revisions would only clarify the
procedural effects of noncompliance with that requirement. They would
not add any cost burdens to entities that would be subject to the
proposed rule. Accordingly, the Department hereby certifies that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. BSEE invites comments from
members of the public who believe there would be a significant impact
on companies subject to the proposed rule.
Congressional Review Act (5 U.S.C. 801-808)
The Congressional Review Act (CRA) defines a rule as major if it
meets any of three criteria. The three criteria are:
A. Does the rule have an annual effect on the economy of $100
million or more?
B. Will the rule cause a major increase in the cost or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions?
C. Does the rule have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises?
This proposed rule is not a major rule under the CRA. This rule
would neither generate an annual economic effect of $100 million or
more; nor cause major price increases for consumers, businesses, or
governments, or geographic regions; nor degrade competition,
employment, investment, productivity, innovation, or the ability of
U.S. businesses to compete against foreign businesses. Its effects
would be purely administrative, legal, and procedural.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.)
This proposed rule would not impose an unfunded mandate on state,
local, or Tribal governments or the private sector of more than $189
million per year. The proposed rule would 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 is not required.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This proposed rule does not contain information collection
requirements, and a submission to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act 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.
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347)
This proposed rule would 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, as a regulation of an administrative,
legal, and procedural nature, this proposed rule is covered by a
categorical exclusion (see 43 CFR 46.210(i)). BSEE also determined that
the proposed rule
[[Page 86287]]
would not implicate any of the extraordinary circumstances listed in 43
CFR 46.215 that would require further analysis under NEPA. Therefore, a
detailed statement under NEPA is not required.
Regulatory Planning and Review (Executive Orders (E.O.) 12866 and
13563)
E.O. 12866, Regulatory Planning and Review, as amended by E.O.
14094, provides that OMB's Office of Information and Regulatory Affairs
(OIRA) will review all significant regulatory actions. A significant
regulatory action is one that is likely to result in a rule that:
A. Has an annual effect on the economy of $200 million or more
(adjusted every 3 years by the Administrator of OIRA for changes in
gross domestic product); or adversely affects in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, territorial, or
Tribal governments or communities;
B. Creates a serious inconsistency or otherwise interferes with an
action taken or planned by another agency;
C. Materially alters the budgetary impacts of entitlements, grants,
user fees, loan programs, or the rights and obligations of recipients
thereof; or
D. Raises legal or policy issues for which centralized review would
meaningfully further the President's priorities or the principles set
forth in E.O. 12866.
OIRA has concluded that this proposed rule is not a significant
action under E.O. 12866. The provisions would only align the language
of the regulations with BSEE's and the regulated industry's
longstanding understanding of the effects of the existing requirements
and would not add any cost burdens to entities that would be subject to
the proposed rule, yielding only procedural effects. Accordingly, BSEE
does not anticipate that this proposed rule would have an annual
economic impact of $200 million or more or would have a material
adverse effect on the economy, a sector of the economy, productivity,
competition, jobs, public health or safety, the environment, or State,
local, or Tribal governments or communities. This proposed rule also
would not raise novel legal or policy issues.
E.O. 13563, Improving Regulation and Regulatory Review, 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
proposed rule in a manner consistent with these requirements.
Takings Implication Assessment (E.O. 12630)
Under the criteria in E.O. 12630, this proposed rule does not have
significant takings implications. The proposed rule is not a
governmental action capable of interference with constitutionally
protected property rights. A Takings Implication Assessment is not
required.
Federalism (E.O. 13132)
Under the criteria in E.O. 13132, this proposed rule does not have
federalism implications. This proposed rule would not substantially and
directly affect the relationship between the Federal and State
governments. To the extent that State and local governments have a role
in OCS activities, this proposed rule would not affect that role. A
federalism assessment is not required.
Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of E.O. 12988.
Specifically, this proposed 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.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
BSEE strives to strengthen its government-to-government
relationships with Tribal Nations and Alaska Natives through a
commitment to consultation with Tribes and recognition of their right
to self-governance and Tribal sovereignty. We are also respectful of
our responsibilities for consultation with Alaska Native Claims
Settlement Act Corporations. BSEE has reviewed this proposed rule
pursuant to the criteria in E.O. 13175, Consultation and Coordination
with Indian Tribal Governments (dated November 6, 2000), Interior's
Policy on Consultation with Indian Tribes and Policy on Consultation
with Alaska Native Claims Settlement Act Corporations (512 Departmental
Manual 4, dated November 30, 2022, and 512 Departmental Manual 6, dated
November 30, 2022, respectively), and Interior's Procedures for
Consultation with Indian Tribes and Procedures for Consultation with
Alaska Native Claims Settlement Act Corporations (512 Departmental
Manual 5, dated November 30, 2022, and 512 Departmental Manual 7, dated
November 30, 2022, respectively) and has determined that this rule
would not have substantial direct effects on Tribal Nations or Alaska
Natives, on the relationship between the Federal government and Tribal
Nations or Alaska Natives, or on the distribution of power and
responsibilities between the federal government and Tribal Nations or
Alaska Natives.
Effects on the Nation's Energy Supply (E.O. 13211)
This proposed rule is not a significant energy action under the
definition in E.O. 13211. This proposed rule is not likely to have a
significant adverse effect on the supply, distribution, or use of
energy. A Statement of Energy Effects is not required.
Effects on Environmental Justice for Minority and Low-Income
Populations (E.O. 12898)
E.O. 12898 requires Federal agencies to make achieving
environmental justice part of their mission by identifying and
addressing disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority and low-income populations. BSEE has determined that this
proposed rule would not have a disproportionately high or adverse human
health or environmental effect on native, minority, or low-income
communities because its provisions are administrative and procedural in
nature and do not affect public safety, environmental protection, or
OCS operational requirements.
Clarity of This Regulation
We are required by E.O. 12866, E.O. 12988, and by the Presidential
Memorandum of June 1, 1998, to write all rules in plain language. This
means that each rule we publish must:
A. Be logically organized;
B. Use the active voice to address readers directly;
C. Use clear language rather than jargon;
[[Page 86288]]
D. Be divided into short sections and sentences; and
E. Use lists and tables whenever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, or the sections where you feel lists or tables would be
useful.
List of Subjects
30 CFR Part 250
Administrative practice and procedure, Continental shelf,
Environmental impact statements, Environmental protection, Government
contracts, Investigations, Mineral resources, Oil and gas exploration,
Penalties, Pipelines, Continental Shelf--mineral resources, Continental
Shelf--rights-of-way, Reporting and recordkeeping requirements, Sulfur.
30 CFR Part 290
Administrative practice and procedure.
Steven H. Feldgus,
Deputy Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, the Department of the
Interior is proposing to revise 30 CFR parts 250 and 290 as follows:
PART 250--OIL AND GAS AND SULPHUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for 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.
Subpart N--Outer Continental Shelf Civil Penalties
0
2. Amend Sec. 250.1409 by:
0
a. Revising paragraph (b) introductory text;
0
b. Redesignating paragraph (d) as paragraph (e);
0
c. Adding new paragraph (d); and
0
d. Revising paragraph (e).
The revisions and additions read as follows:
Sec. 250.1409 What are my appeal rights?
* * * * *
(b) In order to file an appeal, you must perform one of the
following actions within the 60-day appeal period to have your appeal
heard:
* * * * *
(d) Satisfying the bonding requirement in paragraph (b) of this
section is a jurisdictional precondition for a civil penalty appeal. If
you have timely filed a request with BOEM pursuant to paragraph (b)(2)
of this section to use your lease-specific/area-wide bond on file as
the bond for the penalty amount, the IBLA's jurisdiction over the
appeal is preserved while BOEM's decision on your request is pending.
Should BOEM deny your request or require additional security pursuant
to paragraph (c) of this section, you have 30 days to satisfy paragraph
(b)(1) of this section or post the required additional security, as
applicable, and jurisdiction is preserved during that 30-day period. If
you fail to satisfy these bonding requirements, the IBLA will lose
jurisdiction and must dismiss your appeal.
(e) If you do not either pay the penalty or fully satisfy the
appeal requirements, the Department may take one or more of the
following actions:
(1) Collect the amount you were assessed, plus interest, late
payment charges, and other fees as provided by law, from the date you
received the Reviewing Officer's final decision until the date we
receive payment;
(2) Initiate additional enforcement, including, if appropriate,
cancellation of the lease, right-of-way, license, permit, or approval,
or the forfeiture of a bond under this part; or
(3) Bar you from doing further business with the Federal Government
according to Executive Orders 12549 and 12689, and section 2455 of the
Federal Acquisition Streamlining Act of 1994, 31 U.S.C. 6101. The
Department of the Interior's regulations implementing these authorities
are found at 43 CFR part 12, subpart D.
PART 290--APPEAL PROCEDURES
0
3. The authority citation for part 290 continues to read as follows:
Authority: 5 U.S.C. 305; 43 U.S.C. 1334.
Subpart A--Bureau of Safety and Environmental Enforcement Appeal
Procedures
0
4. Amend Sec. 290.4 by:
0
a. Removing the text ``and'' at the end of paragraph (a);
0
b. Removing the text ``.'' at the end of the sentence and adding the
text ``; and'' at the end of the paragraph (b) introductory text; and
0
c. Adding paragraph (c).
The revisions and additions read as follows:
Sec. 290.4 How do I file an appeal?
* * * * *
(c) If you are appealing a civil penalty assessment, either
notification of payment of the penalty or documentation demonstrating
satisfaction of the requirements in 30 CFR 250.1409(b). You cannot
extend the 60-day period for satisfying this requirement, except as
specifically provided in 30 CFR 250.1409(d).
[FR Doc. 2023-27079 Filed 12-12-23; 8:45 am]
BILLING CODE 4310-VH-P
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