Rule2024-26504
Bonding Requirements When Filing an Appeal of a Bureau of Safety and Environmental Enforcement Civil Penalty
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
November 14, 2024
Effective
January 13, 2025
Issuing agencies
Interior DepartmentSafety and Environmental Enforcement Bureau
Abstract
The Department of the Interior (Interior) is amending regulations administered by the Bureau of Safety and Environmental Enforcement (BSEE) regarding the bonding requirements for entities filing an appeal from a BSEE decision that assesses a civil penalty. The regulations will 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 89 Issue 220 (Thursday, November 14, 2024)</title>
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[Federal Register Volume 89, Number 220 (Thursday, November 14, 2024)]
[Rules and Regulations]
[Pages 89922-89926]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-26504]
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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 256E1700D2 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, Interior.
ACTION: Final rule.
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SUMMARY: The Department of the Interior (Interior) is amending
regulations administered by the Bureau of Safety and Environmental
Enforcement (BSEE) regarding the bonding requirements for entities
filing an appeal from a BSEE decision that assesses a civil penalty.
The regulations will 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: This final rule is effective on January 13, 2025.
FOR FURTHER INFORMATION CONTACT: For technical questions, contact
Janine Marie Tobias at <a href="/cdn-cgi/l/email-protection#e5af848b8c8b80cbb18a878c8496a587968080cb828a93"><span class="__cf_email__" data-cfemail="9cd6fdf2f5f2f9b2c8f3fef5fdefdcfeeff9f9b2fbf3ea">[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#4735222034072534222269202831"><span class="__cf_email__" data-cfemail="334156544073514056561d545c45">[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 energy 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, license, or permit term.
Interior'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
found 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 regulations for civil
penalty
[[Page 89923]]
assessment appeals. BSEE initiated this review following the IBLA's
July 7, 2022, order in Petro Ventures, Inc. (IBLA No. 2020-48), which
analyzed 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. The IBLA, however, concluded in Petro
Ventures, Inc. that while 30 CFR 250.1409 requires that the appellant
have bonding covering the appealed civil penalty amount, the regulation
is not phrased in such a way as to make it a jurisdictional
precondition that would require dismissal of the appeal if the bonding
requirement is not met.
Accordingly, Interior is revising 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 appealing a BSEE
civil penalty assessment to the IBLA.
Table of Contents
I. Discussion of Public Comment on the Proposed Rule
II. Section-by-Section Summary
III. Procedural Matters
I. Discussion of Public Comment on the Proposed Rule
BSEE published a proposed rule in late 2023 with revisions to 30
CFR 250.1409 and 30 CFR 290.4. 88 FR 86285 (Dec. 13, 2023). BSEE
received one comment on the proposed rule related to Interior's
determination under E.O. 13175 that this rule will 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. The commenter stated
that ``there is no indication you have consulted with Tribal Nations or
Alaska Natives in order to come to this conclusion.'' Here, BSEE
determined that this is an administrative update to current policy with
no substantial direct effects on federally recognized Indian Tribes,
Alaska Native Claims Settlement Act (``ANCSA'') Corporations, or the
Native Hawaiian Community pursuant to the criteria in E.O. 13175, and
that this action does not have Tribal implications pursuant to
Interior's consultation policies. BSEE evaluated this proposed
ruleunder the Department's consultation policy in Departmental Manual
part 512 chapters 4 and 5, and under the criteria in E.O. 13175.
Accordingly, BSEE did not initiate a consultation process for the
proposed rule.
II. Section-by-Section Summary
What are my appeal rights? (Sec. 250.1409)
Summary of Proposed Rule Revisions
BSEE proposed 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
proposed to move existing Sec. 250.1409(d) to a new Sec. 250.1409(e).
The proposed Sec. 250.1409(d) states that ``the bonding requirement in
paragraph (b) of this section is a jurisdictional precondition for a
civil penalty appeal.'' Together, these revised provisions would
effectuate the intended functions of BSEE's bonding requirements for
filing and maintaining a civil penalty appeal to the IBLA. BSEE
requires bonding coverage for the full civil penalty amount of 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 proposed moving existing Sec. 250.1409(d) to the new
Sec. 250.1409(e), and revising Sec. 250.1409(d) 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 proposed deleting ``We
will'' and starting the sentence with ``Collect.'' In paragraph (e)(2),
BSEE proposed deleting ``We may'' and starting the sentence with
``Initiate.'' In paragraph (e)(3), BSEE proposed deleting ``We may''
and starting the sentence with ``Bar.'' BSEE proposed these edits
because different entities within Interior may take the listed actions
and to improve the grammatical structure of the overall provision.
Summary of Final Rule Revisions
BSEE did not receive any comments on the proposed revisions and
includes the proposed revisions in the final rule without change.
How do I file an appeal? (Sec. 290.4)
Summary of Proposed Rule Revisions
BSEE proposed 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 a decision for an appeal to be considered
properly filed. The proposed paragraph (c) adds 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 expressly states that the
appellant ``cannot extend the 60-day period for satisfying this
requirement, except as specifically provided in 30 CFR 250.1409(d).''
BSEE proposed 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.
Summary of Final Rule Revisions
BSEE did not receive any comments on the proposed revisions and
includes the proposed revisions in the final rule without change.
III. 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
[[Page 89924]]
significant economic impact on a substantial number of small entities.
BSEE estimates that at least 80 entities (lessees, grant holders,
and operators) are subject to this 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 rule applies to a substantial
number of small entities.
However, BSEE has determined that the impact on entities affected
by the rule is not significant. The provisions of this regulation only
align the language of the regulations with BSEE's longstanding
understanding of the effects of the existing requirement. Existing
regulations have long required satisfaction of bonding requirements for
appeals of civil penalty assessments, and these revisions only clarify
the procedural effects of noncompliance with that requirement. They do
not add any cost burdens to entities that would be subject to the rule.
Accordingly, Interior hereby certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
Small Business Regulatory Enforcement Fairness Act/Congressional Review
Act (5 U.S.C. 801-808)
This rule does not meet the criteria under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule:
(1) Does not have an annual effect on the economy of $100 million
or more;
(2) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions; and
(3) Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not generate an annual economic effect of $100
million or more; cause major price increases for consumers, businesses,
governments, or geographic regions; or degrade competition, employment,
investment, productivity, innovation, or the ability of U.S. businesses
to compete against foreign businesses. Its effects are purely
administrative, legal, and procedural.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.)
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $189 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
is not required.
Takings Implication Assessment (E.O. 12630)
Under the criteria in E.O. 12630, this rule does not have
significant takings implications. The 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 section 1 of E.O. 13132, this rule does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement. To the extent that State and local
governments have a role in Outer Continental Shelf activities, this
rule will not affect that role. Therefore, a federalism summary impact
statement is not required.
Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of E.O. 12988.
Specifically, this rule:
(1) Meets the criteria of section 3(a) requiring that all
regulations be reviewed to eliminate errors and ambiguity and be
written to minimize litigation; and
(2) Meets the criteria of section 3(b)(2) requiring that all
regulations be written in clear language and contain clear legal
standards.
Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
BSEE strives to strengthen its government-to-government
relationships with federally recognized Indian Tribes 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 ANCSA Corporations. BSEE has
reviewed this rule pursuant to the criteria in E.O. 13175,
``Consultation and Coordination with Indian Tribal Governments'' (dated
November 6, 2000), and Interior's policies and procedures for
consultation with Indian Tribes and ANCSA Corporations. (512
Departmental Manual 4-7). BSEE is also respectful of our
responsibilities for consultation with the Native Hawaiian Community.
BSEE follows the Department's Office of Native Hawaiian Relations
``Standard Operating Procedure for Consultation with the Native
Hawaiian Community.'' This Standard Operating Procedure provides that:
``Congress has also required Federal agencies to consult before taking
actions that have the potential to significantly affect Native Hawaiian
resources, rights, or lands by correspondingly charging the Office with
fully integrating the policy and practice of meaningful consultation by
such Federal agencies.'' BSEE has determined that this rule will not
have substantial direct effects on federally recognized Indian Tribes,
ANCSA Corporations, or the Native Hawaiian Community and will not have
substantial direct effects on the relationship between the Federal
Government and federally recognized Indian Tribes, ANCSA Corporations,
or the Native Hawaiian Community, or on the distribution of power and
responsibilities between the Federal Government and federally
recognized Indian Tribes, ANCSA Corporations, or the Native Hawaiian
Community.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This 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 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, as a regulation of an administrative nature, this
rule is covered by a categorical exclusion (see 43 CFR 46.210(i)). BSEE
also determined that the rule does 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.
Effects on the Nation's Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O. 13211. This 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.
[[Page 89925]]
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 rule is not a significant action under
E.O. 12866. The provisions of the final rule will align the language of
the regulations with BSEE's and the regulated industry's longstanding
understanding of the effects of the existing requirements and will not
add any cost burdens to entities that would be subject to the rule,
yielding only procedural effects. Accordingly, BSEE does not anticipate
that this rule will have an annual economic impact of $200 million or
more or 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 rule also will 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
rule in a manner consistent with these requirements.
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 rule
will 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
does not affect public safety, environmental protection, or OCS
operational requirements.
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.
This action by the Principal Deputy Assistant Secretary is taken
herein pursuant to an existing delegation of authority.
Steven H. Feldgus,
Principal Deputy Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, the Department of the
Interior amends 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 revising paragraphs (b) and (d) and adding
paragraph (e) to 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.
[[Page 89926]]
Subpart A--Bureau of Safety and Environmental Enforcement Appeal
Procedures
0
4. Amend Sec. 290.4 by:
0
a. Removing the word ``and'' at the end of paragraph (a);
0
b. In paragraph (b) introductory text, removing ``.'' and adding in its
place ``; and''; and
0
c. Adding paragraph (c).
The addition reads 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. 2024-26504 Filed 11-13-24; 8:45 am]
BILLING CODE 4310-VH-P
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