2022-04989. Civil Penalties Inflation Adjustments; Annual Adjustments  

  • Start Preamble

    AGENCY:

    Bureau of Indian Affairs, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This rule provides for annual adjustments to the level of civil monetary penalties contained in Bureau of Indian Affairs (Bureau) regulations to account for inflation under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget (OMB) guidance.

    DATES:

    This rule is effective on March 9, 2022.

    Start Further Info

    FOR FURTHER INFORMATION CONTACT:

    Steven Mullen, Federal Register Liaison, Office of Regulatory Affairs and Collaborative Action, Office of the Assistant Secretary—Indian Affairs; telephone (202) 924-2650, RACA@bia.gov.

    End Further Info End Preamble Start Supplemental Information

    SUPPLEMENTARY INFORMATION:

    I. Background

    II. Calculation of Annual Adjustments

    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. Small Business Regulatory Enforcement Fairness Act

    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 (CPI0-U) for the month of October in the year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U.

    The Bureau issued an interim final rule providing for calculated catch-up adjustments on June 30, 2016 (81 FR 42478) with an effective date of August 1, 2016, and requesting comments post-promulgation. The Bureau issued a final rule affirming the catch-up adjustments set forth in the interim final rule on December 2, 2016 (81 FR 86953). The Bureau then issued a final rule making the next scheduled annual inflation adjustment for 2017 on January 23, 2017 (82 FR 7649), for 2018 on February 6, 2018 (83 FR 5192), for 2019 on April 15, 2019 (84 FR 15098), for 2020 on February 19, 2020 (85 FR 9366), and for 2021 on January 28, 2021 (86 FR 7344).

    II. Calculation of 2022 Annual Adjustments

    OMB recently issued guidance to assist Federal agencies in implementing the annual adjustments required by the Act, which agencies must complete by January 15, 2022. See December 15, 2021, Memorandum for the Heads of Executive Departments and Agencies, from Shalanda D. Young, Acting Director, Office of Management and Budget, re: Implementation of Penalty Inflation Adjustments for 2022, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (M-21-10). The guidance states that the cost-of-living adjustment multiplier for 2022, based on the Consumer Price Index (CPI-U) for the month of October 2021, not seasonally adjusted, is 1.06222. (The annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U. For 2022, OMB explains, October 2021 CPI-U (276.589))/October 2020 CPI-U (260.388)) = 1.06222.) The guidance instructs agencies to complete the 2022 annual adjustment by multiplying each applicable penalty by the multiplier, 1.06222, and rounding to the nearest dollar. Further, agencies should apply the multiplier to the most recent penalty amount that includes the initial catch-up adjustment required by the Act.

    The annual adjustment applies to all civil monetary penalties with a dollar amount that are subject to the Act. This final rule adjusts the following civil monetary penalties contained in the Bureau's regulations for 2022 by multiplying 1.06222 ( i.e., the cost-of-living adjustment multiplier for 2022) by each penalty amount as updated by the adjustment made in the prior year (2021):

    CFR citationDescription of penaltyCurrent penalty including catchup adjustmentAnnual adjustment (multiplier)Adjusted penalty for 2022
    25 CFR § 140.3Penalty for trading in Indian country without a license$1,3681.06222$1,453
    Start Printed Page 13154
    25 CFR § 141.50Penalty for trading on Navajo, Hopi or Zuni reservations without a license1,3681.062221,453
    25 CFR § 211.55Penalty for violation of leases of Tribal land for mineral development, violation of part 211, or failure to comply with a notice of noncompliance or cessation order1,6451.062221,747
    25 CFR § 213.37Penalty for failure of 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 orders1,3681.062221,453
    25 CFR § 225.37Penalty for violation of minerals agreement, regulations at part 225, other applicable laws or regulations, or failure to comply with a notice of noncompliance or cessation order1,7411.062221,849
    25 CFR § 226.42Penalty for violation of lease of Osage reservation lands for oil and gas mining or regulations at part 226, or noncompliance with the Superintendent's order9761.062221,037
    25 CFR § 226.43(a)Penalty per day for failure to obtain permission to start operations971.06222103
    25 CFR § 226.43(b)Penalty per day for failure to file records971.06222103
    25 CFR § 226.43(c)Penalty for each well and tank battery for failure to mark wells and tank batteries971.06222103
    25 CFR § 226.43(d)Penalty each day after operations are commenced for failure to construct and maintain pits971.06222103
    25 CFR § 226.43(e)Penalty for failure to comply with requirements regarding valve or other approved controlling device1951.06222207
    25 CFR § 226.43(f)Penalty for failure to notify Superintendent before drilling, redrilling, deepening, plugging, or abandoning any well3901.06222414
    25 CFR § 226.43(g)Penalty per day for failure to properly care for and dispose of deleterious fluids9761.062221,037
    25 CFR § 226.43(h)Penalty per day for failure to file plugging and other required reports971.06222103
    25 CFR § 227.24Penalty for failure of 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 orders1,3681.062221,453
    25 CFR § 243.8Penalty for non-Native transferees of live Alaskan reindeer who violates part 243, takes reindeer without a permit, or fails to abide by permit terms6,4511.062226,852
    25 CFR § 249.6(b)Penalty for fishing in violation of regulations at part 249 (Off-Reservation Treaty Fishing)1,3681.062221,453

    Consistent with the Act, the adjusted penalty levels for 2022 will take effect immediately upon the effective date of the adjustment. The adjusted penalty levels for 2022 will apply to penalties assessed after that date including, if consistent with agency policy, assessments associated with violations that occurred on or after November 2, 2015 (the date of the Act). The Act does not, however, change previously assessed penalties that the Bureau is collecting or has collected. Nor does the Act change an agency's existing statutory authorities to adjust penalties.

    III. Procedural Requirements

    A. Regulatory Planning and Review (E.O. 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

    B. Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

    This rule is not an E.O. 13771 regulatory action because this rule is not significant under Executive Order 12866.

    C. Regulatory Flexibility Act

    This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because the rule makes adjustments for inflation.

    D. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

    (a) Does not have an annual effect on the economy of $100 million or more.

    (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

    (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Start Printed Page 13155

    E. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

    F. Takings (E.O. 12630)

    This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

    G. Federalism (E.O. 13132)

    Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism summary impact statement is not required.

    H. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. Specifically, this rule: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

    I. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

    J. Paperwork Reduction Act

    This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) is not required. We may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    K. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. This rule is excluded from the requirement to prepare a detailed statement because it is a regulation of an administrative nature. (For further information see 43 CFR 46.210(i)). We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

    L. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

    M. Administrative Procedure Act

    The Act requires agencies to publish annual inflation adjustments by no later than January 15, of each year, notwithstanding section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction to mean that the usual APA public procedure for rulemaking—which includes public notice of a proposed rule, an opportunity for public comment, and a delay in the effective date of a final rule—is not required when agencies issue regulations to implement the annual adjustments to civil penalties that the Act requires. Accordingly, we are issuing the annual adjustments as a final rule without prior notice or an opportunity for comment and with an effective date immediately upon publication in the Federal Register .

    Section 553(b) of the Administrative Procedure Act (APA) provides that, when an agency for good cause finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. Under section 553(b), the Bureau finds that there is good cause to promulgate this rule without first providing for public comment. It would not be possible to meet the deadlines imposed by the Act if we were to first publish a proposed rule, allow the public sufficient time to submit comments, analyze the comments, and publish a final rule. Also, the Bureau is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish a final rule and to update the civil penalty amounts by applying a specified formula. The Bureau has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Accordingly, it would serve no purpose to provide an opportunity for public comment on this rule prior to promulgation. Thus, providing for notice and public comment is impracticable and unnecessary.

    Furthermore, the Bureau finds under section 553(d)(3) of the APA that good cause exists to make this final rule effective immediately upon publication in the Federal Register . In the Act, Congress expressly required Federal agencies to publish annual inflation adjustments to civil penalties in the Federal Register by January 15 of each year, notwithstanding section 553 of the APA. Under the statutory framework and OMB guidance, the new penalty levels take effect immediately upon the effective date of the adjustment. The statutory deadline does not allow time to delay this rule's effective date beyond publication. Moreover, an effective date after January 15 would delay application of the new penalty levels, contrary to Congress's intent.

    Start List of Subjects

    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
    End List of Subjects

    For the reasons given in the preamble, the Department of the Interior amends chapter 1 of title 25 Code of Federal Regulations as follows.

    Start Part

    PART 140—LICENSED INDIAN TRADERS

    End Part Start Amendment Part

    1. The authority citation for part 140 continues to read as follows:

    End Amendment Part Start Authority

    Authority: Sec. 5, 19 Stat. 200, sec. 1, 31 Stat. 1066 as amended; 25 U.S.C. 261, 262; 94 Stat. 544, 18 U.S.C. 437; 25 U.S.C. 2 and 9; 5 U.S.C. 301; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    End Authority
    [Amended]
    Start Amendment Part

    2. In § 140.3, remove “$1,368” and add in its place “$1,453”.

    End Amendment Part Start Part

    PART 141—BUSINESS PRACTICES ON THE NAVAJO, HOPI AND ZUNI RESERVATIONS

    End Part Start Amendment Part

    3. The authority citation for part 141 continues to read as follows:

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    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.

    End Authority
    [Amended]
    Start Amendment Part

    4. In § 141.50, remove “$1,368” and add in its place “$1,453”.

    End Amendment Part Start Part

    PART 211—LEASING OF TRIBAL LANDS FOR MINERAL DEVELOPMENT

    End Part Start Amendment Part

    5. The authority citation for part 211 continues to read as follows:

    End Amendment Part Start Authority

    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.

    End Authority
    [Amended]
    Start Amendment Part

    6. In § 211.55, in paragraph (a), remove “$1,645” and add in its place “$1,747”.

    End Amendment Part Start Part

    PART 213—LEASING OF RESTRICTED LANDS FOR MEMBERS OF FIVE CIVILIZED TRIBES, OKLAHOMA, FOR MINING

    End Part Start Amendment Part

    7. The authority citation for part 213 continues to read as follows:

    End Amendment Part Start Authority

    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.

    End Authority
    [Amended]
    Start Amendment Part

    8. In § 213.37, remove “$1,368” and add in its place “$1,453”.

    End Amendment Part Start Part

    PART 225—OIL AND GAS, GEOTHERMAL AND SOLID MINERALS AGREEMENTS

    End Part Start Amendment Part

    9. The authority citation for part 225 continues to read as follows:

    End Amendment Part Start Authority

    Authority: 25 U.S.C. 2, 9, and 2101-2108; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    End Authority
    [Amended]
    Start Amendment Part

    10. In § 225.37, in paragraph (a), remove “$1,741” and add in its place “$1,849”.

    End Amendment Part Start Part

    PART 226—LEASING OF OSAGE RESERVATION LANDS FOR OIL AND GAS MINING

    End Part Start Amendment Part

    11. The authority citation for part 226 continues to read as follows:

    End Amendment Part Start Authority

    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.

    End Authority
    [Amended]
    Start Amendment Part

    12. In § 226.42, remove “$976” and add in its place “$1,037”.

    End Amendment Part
    [Amended]
    Start Amendment Part

    13. In § 226.43:

    End Amendment Part Start Amendment Part

    a. Remove “$97” and add in each place “$103” wherever it appears;

    End Amendment Part Start Amendment Part

    b. In paragraph (e), remove “$195” and add in its place “$207”;

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    c. In paragraph (f), remove “$390” and add in its place “$414”; and

    End Amendment Part Start Amendment Part

    d. In paragraph (g), remove “$976” and add in its place “$1,037”.

    End Amendment Part Start Part

    PART 227—LEASING OF CERTAIN LANDS IN WIND RIVER INDIAN RESERVATION, WYOMING, FOR OIL AND GAS MINING

    End Part Start Amendment Part

    14. The authority citation for part 227 continues to read as follows:

    End Amendment Part Start Authority

    Authority: Sec. 1, 39 Stat. 519; and Sec. 701, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.

    End Authority
    [Amended]
    Start Amendment Part

    15. In § 227.24, remove “$1,368” and add in its place “$1,453”.

    End Amendment Part Start Part

    PART 243—REINDEER IN ALASKA

    End Part Start Amendment Part

    16. The authority citation for part 243 continues to read as follows:

    End Amendment Part Start Authority

    Authority: Sec. 12, 50 Stat. 902; 25 U.S.C. 500K; and Sec. 701, Pub. L. 114-74, 129 Stat. 599.

    End Authority
    [Amended]
    Start Amendment Part

    17. In § 243.8, in paragraph (a) introductory text, remove “$6,451” and add in its place “$6,852”.

    End Amendment Part Start Part

    PART 249—OFF-RESERVATION TREATY FISHING

    End Part Start Amendment Part

    18. The authority citation for part 249 continues to read as follows:

    End Amendment Part Start Authority

    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.

    End Authority
    [Amended]
    Start Amendment Part

    19. In § 249.6, in paragraph (b), remove “$1,368” and add in its place “$1,453”.

    End Amendment Part Start Signature

    Bryan Newland,

    Assistant Secretary—Indian Affairs.

    End Signature End Supplemental Information

    [FR Doc. 2022-04989 Filed 3-8-22; 8:45 am]

    BILLING CODE 4337-15-P

Document Information

Effective Date:
3/9/2022
Published:
03/09/2022
Department:
Indian Affairs Bureau
Entry Type:
Rule
Action:
Final rule.
Document Number:
2022-04989
Dates:
This rule is effective on March 9, 2022.
Pages:
13153-13156 (4 pages)
Docket Numbers:
223A2100DD/AAKC001030/A0A501010.999900253G
RINs:
1076-AF70: Civil Penalties; 2022 Inflation Adjustments for Civil Monetary Penalties
RIN Links:
https://www.federalregister.gov/regulations/1076-AF70/civil-penalties-2022-inflation-adjustments-for-civil-monetary-penalties
Topics:
Business and industry, Credit, Fishing, Geothermal energy, Indians, Indians-business and finance, Indians-lands, Livestock, Mineral resources, Mines, Oil and gas exploration, Penalties, Reporting and recordkeeping requirements, Surety bonds
PDF File:
2022-04989.pdf
Supporting Documents:
» Civil Monetary Penalty Inflation Adjustment
» Annual Adjustments: Civil Penalties Inflation Adjustments
» Civil Penalties Inflation Adjustments; Annual Adjustments
» Civil Penalties Inflation Adjustments; Annual Adjustments
CFR: (10)
25 CFR 140.3
25 CFR 141.50
25 CFR 211.55
25 CFR 213.37
25 CFR 225.37
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