2019-05507. Civil Monetary Penalty Inflation Adjustments

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule.

SUMMARY:

Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), and Office of Management and Budget (OMB) guidance, this rule adjusts for inflation the level of civil monetary penalties assessed under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

DATES:

This rule is effective on March 22, 2019.

FOR FURTHER INFORMATION CONTACT:

Kathleen Vello, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Mail Stop 4550, Washington, DC 20240; Telephone [phone]. Email: [e-mail].

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 the 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 (Executive Orders 12866, 13563, and 13771)

B. Regulatory Flexibility Act

C. Small Business Regulatory Enforcement Fairness Act

D. Unfunded Mandates Reform Act

E. Takings (Executive Order 12630)

F. Federalism (Executive Order 13132)

G. Civil Justice Reform (Executive Order 12988)

H. Consultation With Indian Tribes (Executive Order 13175 and Departmental Policy)

I. Paperwork Reduction Act

J. National Environmental Policy Act

K. Effects on Energy Supply, Distribution, and Use (Executive Order 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's (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 Pub. L. 114-74) (2015 Act) into law. The 2015 Act, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (codified as amended at 28 U.S.C. 2461 note), requires Federal agencies to promulgate rules to adjust the level of CMPs to account for inflation. The 2015 Act required an initial “catch-up” adjustment. OSMRE published the initial adjustment in the Federal Register on July 8, 2016 (81 FR 44535), and the adjustment took effect on August 1, 2016. The 2015 Act also requires agencies to publish annual inflation adjustments in the Federal Register no later than January 15 of each year. These adjustments are aimed at maintaining the deterrent effect of civil penalties and furthering the policy goals of the statutes that authorize the penalties. Further, the 2015 Act provides that agencies must adjust civil monetary penalties “notwithstanding section 553 of [the Administrative Procedure Act].” Therefore, the public procedure that the Administrative Procedure Act generally requires for rulemaking—notice, an opportunity for comment, and a delay in the effective date—is not required for agencies to issue regulations implementing the annual CMP adjustments. See December 14, 2018, Memorandum for the Heads of Executive Departments and Agencies (M-19-04), from Mick Mulvaney, Director, Office of Management and Budget, Implementation of Penalty Inflation Adjustments for 2019, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (OMB Memorandum).

Pursuant to SMCRA and the 2015 Act, this final rule reflects the statutorily required CMP adjustments as follows:

CFR citation	Points (where applicable)	Current penalty dollar amounts ($)	Adjusted penalty dollar amounts ($)
30 CFR 723.14	1	$65	$67
	2	132	135
	3	197	202
	4	262	269
	5	328	336
	6	394	404
	7	459	471
	8	524	537
	9	590	605
	10	656	673
	11	721	739
	12	787	807
	13	852	873
	14	918	941
	15	985	1,010
	16	1,050	1,076
	17	1,115	1,143
	18	1,182	1,212
	19	1,247	1,278
	20	1,312	1,345
	21	1,378	1,413
	22	1,444	1,480
	23	1,509	1,547
	24	1,574	1,614
	25	1,640	1,681
	26	1,968	2,018
	27	2,296	2,354
	28	2,623	2,689
	29	2,827	2,898
	30	3,281	3,364
	31	3,608	3,699
	32	3,936	4,035
	33	4,264	4,372
	34	4,592	4,708
	35	4,920	5,044
	36	5,248	5,380
	37	5,577	5,718
	38	5,904	6,053
	39	6,232	6,389
	40	6,559	6,724
	41	6,889	7,063
	42	7,216	7,398
	43	7,544	7,734
	44	7,872	8,071
	45	8,200	8,407
	46	8,529	8,744
	47	8,856	9,079
	48	9,185	9,417
	49	9,512	9,752
	50	9,840	10,088
	51	10,167	10,423
	52	10,497	10,762
	53	10,825	11,098
	54	11,152	11,433
	55	11,481	11,771
	56	11,808	12,106
	57	12,136	12,442
	58	12,464	12,778
	59	12,793	13,116
	60	13,120	13,451
	61	13,448	13,787
	62	13,777	14,124
	63	14,105	14,461
	64	14,433	14,797
	65	14,760	15,132
	66	15,089	15,470
	67	15,416	15,805
	68	15,744	16,141
	69	16,072	16,477
	70	16,401	16,815
30 CFR 723.15(b) (Assessment of separate violations for each day)		2,460	2,522
30 CFR 724.14(b) (Individual civil penalties)		16,401	16,815
30 CFR 845.14	1	65	67
	2	132	135
	3	197	202
	4	262	269
	5	328	336
	6	394	404
	7	459	471
	8	524	537
	9	590	605
	10	656	673
	11	721	739
	12	787	807
	13	852	873
	14	918	941
	15	985	1,010
	16	1,050	1,076
	17	1,115	1,143
	18	1,182	1,212
	19	1,247	1,278
	20	1,312	1,345
	21	1,378	1,413
	22	1,444	1,480
	23	1,509	1,547
	24	1,574	1,614
	25	1,640	1,681
	26	1,968	2,018
	27	2,296	2,354
	28	2,623	2,689
	29	2,827	2,898
	30	3,281	3,364
	31	3,608	3,699
	32	3,936	4,035
	33	4,264	4,372
	34	4,592	4,708
	35	4,920	5,044
	36	5,248	5,380
	37	5,577	5,718
	38	5,904	6,053
	39	6,232	6,389
	40	6,559	6,724
	41	6,889	7,063
	42	7,216	7,398
	43	7,544	7,734
	44	7,872	8,071
	45	8,200	8,407
	46	8,529	8,744
	47	8,856	9,079
	48	9,185	9,417
	49	9,512	9,752
	50	9,840	10,088
	51	10,167	10,423
	52	10,497	10,762
	53	10,825	11,098
	54	11,152	11,433
	55	11,481	11,771
	56	11,808	12,106
	57	12,136	12,442
	58	12,464	12,778
	59	12,793	13,116
	60	13,120	13,451
	61	13,448	13,787
	62	13,777	14,124
	63	14,105	14,461
	64	14,433	14,797
	65	14,760	15,132
	66	15,089	15,470
	67	15,416	15,805
	68	15,744	16,141
	69	16,072	16,477
	70	16,401	16,815
30 CFR 845.15(b) (Assessment of separate violations for each day)		2,460	2,522
30 CFR 846.14(b) (Individual civil penalties)		16,401	16,815

In the chart above, there are no numbers listed in the “Points” column relative to 30 CFR 723.15(b), 30 CFR 724.14(b), 30 CFR 845.15(b), and 30 CFR 846.14(b) because those regulatory provisions do not set forth numbers of points. For those provisions, the current regulations only set forth the dollar amounts shown in the chart in the “Current Penalty Dollar Amounts” column; the adjusted amounts, which we are adopting in this rule, are shown in the “Adjusted Penalty Dollar Amounts” column.

B. Calculation of Adjustments

OMB issued guidance on the 2019 annual adjustments for inflation. See OMB Memorandum (December 14, 2018). The OMB Memorandum notes that the 1990 Act defines “civil monetary penalty” as “any penalty, fine, or other sanction that . . . is for a specific monetary amount as provided by Federal law; or . . . has a maximum amount provided for by Federal law; and . . . is assessed or enforced by an agency pursuant to Federal law; and . . . is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts . . . .” It further instructs that agencies “are to adjust ‘the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.' ” See December 14, 2018 OMB Memorandum. The 1990 Act and the OMB Memorandum specify that the annual inflation adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (the CPI-U) published by the Department of Labor for the month of October in the year of the previous adjustment, and the October CPI-U for the preceding year. The recent OMB Memorandum specified that the cost-of-living adjustment multiplier for 2019, not seasonally adjusted, is 1.02522 (the October 2018 CPI-U (252.885) divided by the October 2017 CPI-U (246.663) = 1.02522). OSMRE used this guidance to identify applicable CMPs and calculate the required inflation adjustments. The 1990 Act specifies that any resulting increases in CMPs must be rounded according to a stated rounding formula and that the increased CMPs apply only to violations that occur after the date the increase takes effect.

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 70 points. For example, under our existing regulations in 30 CFR 845.14, a violation totaling 70 points would amount to a $16,401 CMP. To adjust this amount, we multiply $16,401 by the 2019 inflation factor of 1.02522, resulting in a raw adjusted amount of $16,814.65. Because the 2015 Act requires us to round any increase in the CMP amount to the nearest dollar, in this case a violation of 70 points would amount to a new CMP of $16,815. Pursuant to the 2015 Act, the increases in this Final Rule apply to CMPs assessed after the date the increases take effect, even if the associated violation predates the applicable increase.

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

OSMRE directly regulates surface coal mining and reclamation operations within a State or on Tribal lands if the State or Tribe does not obtain its own approved program pursuant to sections 503 or 710(j) of SMCRA, 30 U.S.C. 1253 or 1300(j). The increases in CMPs 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. Under 30 CFR 750.18, the increase in CMPs also applies to Indian lands under the Federal program for Indian lands.

D. Effect of the Rule on Approved State Programs

As a result of litigation, see 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, State regulatory programs are not required to mirror all of the penalty provisions of our regulations. Thus, this rule has no effect on CMPs in States with SMCRA primacy.

II. Procedural Matters and Required Determinations

A. Regulatory Planning and Review (Executive Orders 12866, 13563, and 13771)

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that agency regulations exclusively implementing the annual inflation adjustments are not significant, provided they are consistent with the OMB Memorandum.

Executive Order 13563 reaffirms the principles of Executive Order 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. Executive Order 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.

Executive Order 13771 of January 30, 2017 directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. Executive Order 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of Executive Order 12866. As mentioned above, OIRA has determined that agency regulations exclusively implementing the annual adjustment are not significant regulatory actions under Executive Order 12866, provided they are consistent with the OMB Memorandum (see OMB Memorandum, M-19-04, at 3). Thus, Executive Order 13771 does not apply to this rulemaking.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) 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 annually for inflation “notwithstanding section 553 [of the Administrative Procedure Act].” Thus, no proposed rule will be published, and 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) Will 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) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-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 (Executive Order 12630)

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

F. Federalism (Executive Order 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 (Executive Order 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 (Executive Order 13175 and Departmental Policy)

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and Tribal sovereignty. We have evaluated this rule under the Department's consultation policy, under Departmental Manual Part 512, Chapters 4 and 5, and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on Federally-recognized Tribes or Alaska Native Claims Settlement Act (ANCSA) Corporations, 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 (Executive Order 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 in issuing this final rule, please contact the individual listed in the FOR FURTHER INFORMATION CONTACT section. Your comments should be as specific as possible in order to help us determine whether any future revisions to the rule are necessary. 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

We are issuing this final rule without prior public notice or opportunity for public comment. As discussed above, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to publish adjusted penalties annually. Under the 2015 Act, the public procedure that the Administrative Procedure Act generally requires—notice, an opportunity for comment, and a delay in the effective date—is not required for agencies to issue regulations implementing the annual adjustments required by the 2015 Act. See OMB Memorandum, M-19-04, at 4.

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: February 22, 2019.

Joseph R. Balash,

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 continues to read as follows:

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

2. Revise the table in § 723.14 to read as follows:

§ 723.14

Determination of amount of penalty.

* * * * *

Points	Dollars
1	67
2	135
3	202
4	269
5	336
6	404
7	471
8	537
9	605
10	673
11	739
12	807
13	873
14	941
15	1,010
16	1,076
17	1,143
18	1,212
19	1,278
20	1,345
21	1,413
22	1,480
23	1,547
24	1,614
25	1,681
26	2,018
27	2,354
28	2,689
29	2,898
30	3,364
31	3,699
32	4,035
33	4,372
34	4,708
35	5,044
36	5,380
37	5,718
38	6,053
39	6,389
40	6,724
41	7,063
42	7,398
43	7,734
44	8,071
45	8,407
46	8,744
47	9,079
48	9,417
49	9,752
50	10,088
51	10,423
52	10,762
53	11,098
54	11,433
55	11,771
56	12,106
57	12,442
58	12,778
59	13,116
60	13,451
61	13,787
62	14,124
63	14,461
64	14,797
65	15,132
66	15,470
67	15,805
68	16,141
69	16,477
70	16,815

3. In § 723.15, revise 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 $2,522 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. In § 724.14, revise the first sentence of paragraph (b) to read as follows:

§ 724.14

Amount of individual civil penalty.

* * * * *

(b) The penalty will not exceed $16,815 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. Revise the table in § 845.14 to read as follows:

§ 845.14

Determination of amount of penalty.

* * * * *

Points	Dollars
1	67
2	135
3	202
4	269
5	336
6	404
7	471
8	537
9	605
10	673
11	739
12	807
13	873
14	941
15	1,010
16	1,076
17	1,143
18	1,212
19	1,278
20	1,345
21	1,413
22	1,480
23	1,547
24	1,614
25	1,681
26	2,018
27	2,354
28	2,689
29	2,898
30	3,364
31	3,699
32	4,035
33	4,372
34	4,708
35	5,044
36	5,380
37	5,718
38	6,053
39	6,389
40	6,724
41	7,063
42	7,398
43	7,734
44	8,071
45	8,407
46	8,744
47	9,079
48	9,417
49	9,752
50	10,088
51	10,423
52	10,762
53	11,098
54	11,433
55	11,771
56	12,106
57	12,442
58	12,778
59	13,116
60	13,451
61	13,787
62	14,124
63	14,461
64	14,797
65	15,132
66	15,470
67	15,805
68	16,141
69	16,477
70	16,815

8. In § 845.15, revise 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, 30 U.S.C. 1271(a), a civil penalty of not less than $2,522 will be assessed for each day during which such failure to abate continues, except that:

* * * * *

PART 846—INDIVIDUAL 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. In § 846.14, revise the first sentence of paragraph (b) to read as follows:

§ 846.14

Amount of individual civil penalty.

* * * * *

(b) The penalty will not exceed $16,815 for each violation. * * *