2016-16190. Civil Penalties Inflation Adjustments

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Interim final rule.

SUMMARY:

Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 and Office of Management and Budget (OMB) guidance, this rule adjusts the level of civil monetary penalties assessed under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

DATES:

This rule is effective on August 1, 2016. Comments will be accepted until September 6, 2016.

ADDRESSES:

You may submit comments by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for Docket No. OSM-2016-0008 and follow the online instructions for submitting comments.
• Mail, Hand Delivery, or Courier: Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution Avenue NW., Washington, DC 20240. Please include the Docket ID: OSM-2016-0008.

FOR FURTHER INFORMATION CONTACT:

Adrienne Alsop, Office of Surface Mining Reclamation and Enforcement, South Interior Building MS-203, 1951 Constitution Avenue NW., Washington, DC 20240; Telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015

B. Calculation of Adjustments

C. Effect of Rule in Federal Program States and on Indian Lands

D. Effect of the Rule on Approved State Programs

II. Procedural Matters and Required Determinations

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

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates Reform Act

E. Takings (E.O. 12630)

F. Federalism (E.O. 13132)

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

H. Consultation with Indian Tribes (E.O. 13175 and Departmental Policy)

I. Paperwork Reduction Act

J. National Environmental Policy Act

K. Effects on Energy Supply, Distribution, and Use (E.O. 13211)

L. Clarity of this Regulation

M. Data Quality Act

N. Administrative Procedure Act

I. Background

A. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015

Section 518 of SMCRA, 30 U.S.C. 1268, authorizes the Secretary of the Interior to assess civil monetary penalties (CMPs) for violations of SMCRA. The Office of Surface Mining Reclamation and Enforcement (OSMRE) regulations implementing the CMP provisions of section 518 are located in 30 CFR parts 723, 724, 845, and 846. We are adjusting CMPs in four sections—30 CFR 723.14, 724.14, 845.14, and 846.14.

On November 2, 2015, the President signed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Public Law 114-74) (“the Act”) into law. The Act requires that Federal agencies promulgate rules to adjust the level of civil monetary penalties (“CMPs”) to account for inflation. The Act requires agencies to enact an initial “catch-up” adjustment by August 1, 2016. The Act also authorizes agencies to make subsequent annual adjustments to civil monetary penalties to account for inflation. These adjustments are aimed at maintaining the deterrent effect of civil penalties and furthering the policy goals of the statutes which authorize them.

Pursuant to SMCRA, this rule adjusts the following civil penalties:

CFR Citation	Points	Current penalty ($)	Adjusted penalty ($)
30 CFR 723.14	1	32	63
	2	74	127
	3	96	190
	3	108	253
	5	210	316
	6	232	380
	7	254	443
	8	276	506
	9	298	569
	10	320	633
	11	342	696
	12	364	759
	13	486	822
	14	508	886
	15	530	949
	16	552	1,012
	17	574	1,075
	18	596	1,139
	19	718	1,202
	20	740	1,265
	21	762	1,328
	22	784	1,392
	23	806	1,455
	24	828	1,518
	25	850	1,581
	26	960	1,898
	27	1,070	2,214
	28	1,080	2,530
	29	1,090	2,725
	30	2,100	3,163
	31	2,210	3,479
	32	2,320	3,795
	33	2,430	4,112
	34	2,540	4,428
	35	2,650	4,744
	36	2,760	5,060
	37	2,870	5,377
	38	2,980	5,693
	39	3,090	6,009
	40	3,200	6,325
	41	3,310	6,642
	42	3,420	6,958
	43	3,530	7,274
	44	3,640	7,591
	45	4,750	7,907
	46	4,860	8,223
	47	4,970	8,539
	48	5,080	8,856
	49	5,190	9,172
	50	5,300	9,488
	51	5,410	9,804
	52	5,520	10,121
	53	5,630	10,437
	54	5,740	10,753
	55	5,850	11,070
	56	5,960	11,386
	57	7,070	11,702
	58	7,180	12,018
	59	7,290	12,335
	60	7,400	12,651
	61	7,510	12,967
	62	7,620	13,284
	63	7,730	13,600
	64	7,840	13,916
	65	7,950	14,232
	66	8,060	14,549
	67	8,170	14,865
	68	8,280	15,181
	69	8,390	15,497
	70	8,500	15,814
30 CFR 723.15(b) (Assessment of separate violations for each day)	Maximum	1,025	2,372
30 CFR 724.14(b) (Individual)	Maximum	8,500	17,395
30 CFR 845.14	1	32	63
	2	74	127
	3	96	190
	3	108	253
	5	210	316
	6	232	380
	7	254	443
	8	276	506
	9	298	569
	10	320	633
	11	342	696
	12	364	759
	13	486	822
	14	508	886
	15	530	949
	16	552	1,012
	17	574	1,075
	18	596	1,139
	19	718	1,202
	20	740	1,265
	21	762	1,328
	22	784	1,392
	23	806	1,455
	24	828	1,518
	25	850	1,581
	26	960	1,898
	27	1,070	2,214
	28	1,080	2,530
	29	1,090	2,725
	30	2,100	3,163
	31	2,210	3,479
	32	2,320	3,795
	33	2,430	4,112
	34	2,540	4,428
	35	2,650	4,744
	36	2,760	5,060
	37	2,870	5,377
	38	2,980	5,693
	39	3,090	6,009
	40	3,200	6,325
	41	3,310	6,642
	42	3,420	6,958
	43	3,530	7,274
	44	3,640	7,591
	45	4,750	7,907
	46	4,860	8,223
	47	4,970	8,539
	48	5,080	8,856
	49	5,190	9,172
	50	5,300	9,488
	51	5,410	9,804
	52	5,520	10,121
	53	5,630	10,437
	54	5,740	10,753
	55	5,850	11,070
	56	5,960	11,386
	57	7,070	11,702
	58	7,180	12,018
	59	7,290	12,335
	60	7,400	12,651
	61	7,510	12,967
	62	7,620	13,284
	63	7,730	13,600
	64	7,840	13,916
	65	7,950	14,232
	66	8,060	14,549
	67	8,170	14,865
	68	8,280	15,181
	69	8,390	15,497
	70	8,500	15,814
30 CFR 845.15(b) (Assessment of separate violations for each day)	Maximum	1,025	2,372
30 CFR 846.14(b) (Individual)	Maximum	8,500	17,395

B. Calculation of Adjustments

The Office of Management and Budget (OMB) issued guidance 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.

The OMB guidance defines “civil monetary penalty” as “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.” It further instructs that 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 reviews.” The guidance also specifies that agencies should calculate the catch-up adjustment by determining the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the calendar year of the previous adjustment (or in the year of establishment, if no adjustment has been made) and the October 2015 CPI-U. OSMRE used this guidance to identify applicable civil monetary penalties and calculate the required catch-up adjustments.

Generally, OSMRE assigns points to a violation as described in 30 CFR 723.13 and 845.13. The CMP owed is based on the number of points received, ranging from one point to seventy points. For 2016, the Act requires that OSMRE adjust the civil penalty amounts for violations of SMCRA and provides the adjustment timing. The Act instructs OSMRE to use the maximum civil penalty amount as last adjusted by a provision of law other than the Federal Civil Penalties Inflation Adjustment Act of 1990 (Public Law 104-410) (FCPIA of 1990) when calculating the 2016 civil penalty adjustment. The maximum civil penalty amounts for violations of SMCRA have not been adjusted by a provision of law other than the FCPIA of 1990 since the penalties were established in SMCRA in 1977. Because the penalties were first published in the Federal Register in 1979, in computing the new civil penalty amounts for violations of SMCRA, OSMRE used the adjustment factor for 1979 provided in OMB's guidance. This resulted in a multiplying factor of 3.16274. The statutory maximum civil penalty amount (e.g., $5,000) was multiplied by the multiplying factor (e.g., $5,000 × 3.16274 = $15,813.70). The Act requires that the maximum civil penalty amount be rounded to the nearest $1.00 at the end of the calculation process (e.g., $15,814). OSMRE's calculated increases do not exceed 150 percent of the maximum civil penalty amount as of November 2, 2015, and thus, they comply with the Act. Also, pursuant to the Act, these increases apply to civil penalties assessed after the date they take effect, even if the associated violation predates such increase.

C. Effect of Rule in Federal Program States and on Indian Lands

OSMRE directly regulates surface coal mining and reclamation activities within a State or on tribal lands if the State or tribe does not adopt its own program pursuant to section 503 of SMCRA. The increase in civil monetary penalties contained in this rule will apply to the following Federal program states: Arizona, California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington. The Federal programs for those States appear at 30 CFR parts 903, 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947, respectively. The increase in civil monetary penalties also applies to Indian lands under the Federal program for Indian lands, which appears in 30 CFR 750.18.

D. Effect of the Rule on Approved State Programs

State regulatory programs are not required to mirror all of the penalty provisions of our regulations. In re Permanent Surface Mining Regulation Litigation, No. 79-1144, Mem. Op. (D.D.C. May 16, 1980), 19 Env't Rep. Cas. (BNA) 1477. Thus, this rule has no effect on CMPs in states with SMCRA primacy.

II. Procedural Matters and Required Determinations

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, to the extent permitted by statute.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (FRA) requires an agency to prepare a regulatory flexibility analysis for all rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. 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 Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to adjust civil penalties with an initial “catch-up” adjustment through an interim final rule. An interim final rule does not include first publishing a proposed rule. Thus, the RFA does not apply to this rulemaking.

C. 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.

D. 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.

E. Takings (E.O. 12630)

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

F. 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.

G. 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.

H. 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.

I. 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.

J. 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.

K. Effects on Energy Supply, Distribution, and Use (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.

L. Clarity of This Regulation

We are required by Executive Orders 12866 (section 1 (b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), 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 common, everyday words and clear language rather than jargon;

(d) Be divided into short sections and sentences; and

(e) Use lists and tables wherever possible.

If you believe 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, the sections where you feel lists or tables would be useful, etc.

M. Data Quality Act

In developing this rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

N. Administrative Procedure Act

The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to publish interim final rules by July 1, 2016, with an effective date for the adjusted penalties no later than August 1, 2016. To comply with the Act, we are issuing these regulations as an interim final rule and are requesting comments post-promulgation. 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. 5 U.S.C. 553(b).

OSMRE finds that there is good cause to promulgate this rule without first providing for public comment. It would not be practicable 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, OSMRE is promulgating this final rule to implement the statutory directive in the Act, which requires agencies to publish an interim final rule and to update the civil penalty amounts by applying a specified formula. OSMRE 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 pre-promulgation public comment on this rule. Thus, OSMRE finds pre-promulgation notice and public comment to be impracticable and unnecessary.

Also, OSMRE finds that there is good cause for publishing this rule less than thirty days before its effective date, since the Act requires agencies to publish interim final rules with an effective date no later than August 1, 2016. 5 U.S.C. 553(d). OSMRE has no discretion to provide for an effective date that is later than August 1, 2016.

List of Subjects

30 CFR Part 723

• Administrative practice and procedure
• Penalties
• Surface mining
• Underground mining

30 CFR Part 724

• Administrative practice and procedure
• Penalties
• Surface mining
• Underground mining

30 CFR Part 845

• Administrative practice and procedure
• Law enforcement
• Penalties
• Reporting and recordkeeping requirements
• Surface mining
• Underground mining

30 CFR Part 846

• Administrative practice and procedure
• Penalties
• Surface mining
• Underground mining

Dated: June 29, 2016.

Janice M. Schneider,

Assistant Secretary, Land and Minerals Management.

For the reasons given in the preamble, the Department of the Interior amends 30 CFR parts 723, 724, 845, and 846 as set forth below.

PART 723—CIVIL PENALTIES

1. The authority citation for Part 723 is amended to read as follows:

Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 3701.

2. Section 723.14 is amended by revising the table to read as follows:

§ 723.14

Determination of amount of penalty.

* * * * *

Points	Dollars
1	63
2	127
3	190
4	253
5	316
6	380
7	443
8	506
9	569
10	633
11	696
12	759
13	822
14	886
15	949
16	1,012
17	1,075
18	1,139
19	1,202
20	1,265
21	1,328
22	1,392
23	1,455
24	1,518
25	1,581
26	1,898
27	2,214
28	2,530
29	2,725
30	3,163
31	3,479
32	3,795
33	4,112
34	4,428
35	4,744
36	5,060
37	5,377
38	5,693
39	6,009
40	6,325
41	6,642
42	6,958
43	7,274
44	7,591
45	7,907
46	8,223
47	8,539
48	8,856
49	9,172
50	9,488
51	9,804
52	10,121
53	10,437
54	10,753
55	11,070
56	11,386
57	11,702
58	12,018
59	12,335
60	12,651
61	12,967
62	13,284
63	13,600
64	13,916
65	14,232
66	14,549
67	14,865
68	15,181
69	15,497
70	15,814

3. Section 723.15 is amended by revising paragraph (b) introductory text to read as follows:

§ 723.15

Assessment of separate violations for each day.

* * * * *

(b) In addition to the civil penalty provided for in paragraph (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to section 521(a) of the Act, 30 U.S.C. 1271(a), a civil penalty of not less than $2,372 will be assessed for each day during which such failure to abate continues, except that:

* * * * *

PART 724—INDIVIDUAL CIVIL PENALTIES

4. The authority citation for part 724 continues to read as follows:

Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 3701.

5. Section 724.14 is amended by revising the first sentence of paragraph (b) to read as follows:

§ 724.14

Amount of individual civil penalty.

* * * * *

(b) The penalty will not exceed $17,395 for each violation. * * *

PART 845—CIVIL PENALTIES

6. The authority citation for part 845 continues to read as follows:

Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., 31 U.S.C. 3701, Pub. L. 100-202, and Pub. L. 100-446.

7. Section 845.14 is amended by revising the table to read as follows:

§ 845.14

Determination of amount of penalty.

* * * * *

Points	Dollars
1	63
2	127
3	190
4	253
5	316
6	380
7	443
8	506
9	569
10	633
11	696
12	759
13	822
14	886
15	949
16	1,012
17	1,075
18	1,139
19	1,202
20	1,265
21	1,328
22	1,392
23	1,455
24	1,518
25	1,581
26	1,898
27	2,214
28	2,530
29	2,725
30	3,163
31	3,479
32	3,795
33	4,112
34	4,428
35	4,744
36	5,060
37	5,377
38	5,693
39	6,009
40	6,325
41	6,642
42	6,958
43	7,274
44	7,591
45	7,907
46	8,223
47	8,539
48	8,856
49	9,172
50	9,488
51	9,804
52	10,121
53	10,437
54	10,753
55	11,070
56	11,386
57	11,702
58	12,018
59	12,335
60	12,651
61	12,967
62	13,284
63	13,600
64	13,916
65	14,232
66	14,549
67	14,865
68	15,181
69	15,497
70	15,814

8. Section 845.15 is amended by revising paragraph (b) introductory text to read as follows:

§ 845.15

Assessment of separate violations for each day.

* * * * *

(b) In addition to the civil penalty provided for in paragraph (a) of this section, whenever a violation contained in a notice of violation or cessation order has not been abated within the abatement period set in the notice or order or as subsequently extended pursuant to section 521(a) of the Act, a civil penalty of not less than $2,372 will be assessed for each day during which such failure to abate continues, except that:

* * * * *

PART 846—CIVIL PENALTIES

9. The authority citation for part 846 continues to read as follows:

Authority: 28 U.S.C. 2461, 30 U.S.C. 1201 et seq., and 31 U.S.C. 3701.

10. Section 846.14 is amended by revising the first sentence of paragraph (b) to read as follows:

§ 846.14

Amount of individual civil penalty.

* * * * *

(b) The penalty will not exceed $17,395 for each violation. * * *