Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations 7643 

1 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871, 85 FR 40113 (July 6, 2020), 171 FERC 

¶ 61,201 (2020). 

2The Kinder Morgan Gas Entities include: 

Natural Gas Pipeline Company of America LLC; 

Tennessee Gas Pipeline Company, L.L.C.; Southern 

Natural Gas Company, L.L.C.; Colorado Interstate 

Gas Company, L.L.C.; Wyoming Interstate 

Company, L.L.C.; El Paso Natural Gas Company, 

L.L.C.; Mojave Pipeline Company, L.L.C.; Bear 

Creek Storage Company, L.L.C.; Cheyenne Plains 

Gas Pipeline Company, LLC; Elba Express 

Company, L.L.C.; Kinder Morgan Louisiana 

Pipeline LLC; Southern LNG Company, L.L.C.; and 

TransColorado Gas Transmission Company LLC. 

3 964 F.3d 1 (D.C. Cir. 2020) (en banc) 

(Allegheny). 

4 15 U.S.C. 717r(a) (‘‘Until the record in a 

proceeding shall have been filed in a court of 

appeals, as provided in subsection (b), the 

Commission may at any time, upon reasonable 

notice and in such manner as it shall deem proper, 

modify or set aside, in whole or in part, any finding 

or order made or issued by it under the provisions 

of this chapter.’’). 

5Allegheny, 964 F.3d at 16–17. 

PART 240—GENERAL RULES AND 

REGULATIONS, SECURITIES 

EXCHANGE ACT OF 1934 

■ 1. The general authority citation for 

part 240 continues to read, in part, as 

follows: 

Authority: 15 U.S.C. 77c, 77d, 77g, 77j, 

77s, 77z–2, 77z–3, 77eee, 77ggg, 77nnn, 

77sss, 77ttt, 78c, 78c–3, 78c–5, 78d, 78e, 78f, 

78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, 

78n, 78n–1, 78o, 78o–4, 78o–10, 78p, 78q, 

78q–1, 78s, 78u–5, 78w, 78x, 78dd, 78ll, 

78mm, 80a–20, 80a–23, 80a–29, 80a–37, 80b– 

3, 80b–4, 80b–11, and 7201 et seq., and 8302; 

7 U.S.C. 2(c)(2)(E); 12 U.S.C. 5221(e)(3); 18 

U.S.C. 1350; Pub. L. 111–203, 939A, 124 Stat. 

1376 (2010); and Pub. L. 112–106, sec. 503 

and 602, 126 Stat. 326 (2012), unless 

otherwise noted. 

* * * * * 

■ 2. Section 240.17Ad–24 is added to 

read as follows: 

§ 240.17Ad–24 Exemption from clearing 

agency definition for certain registered 

security-based swap dealers, registered 

security-based swap execution facilities, 

and entities engaging in dealing activity in 

security-based swaps that are eligible for 

an exception under § 240.3a71–2(a) (or 

subject to the period set forth in § 240.3a71– 

2(b)). 

A registered security-based swap 

dealer, a registered security-based swap 

execution facility, or an entity engaging 

in dealing activity in security-based 

swaps that is eligible for an exception 

under § 240.3a71–2(a) (or subject to the 

period set forth in § 240.3a71–2(b)) shall 

be exempt from inclusion in the term 

‘‘clearing agency,’’ as defined in section 

3(a)(23)(A) of the Act, where such 

registered security-based swap dealer, 

registered security-based swap 

execution facility, or entity engaging in 

dealing activity in security-based swaps 

that is eligible for an exception under 

§ 240.3a71–2(a) (or subject to the period 

set forth in § 240.3a71–2(b)) would be 

deemed to be a clearing agency solely by 

reason of: 

(a) Functions performed by such 

institution as part of customary dealing 

activities or providing facilities for 

comparison of data respecting the terms 

of settlement of securities transactions 

effected on such registered securitybased swap execution facility, 

respectively; or 

(b) Acting on behalf of a clearing 

agency or participant therein in 

connection with the furnishing by the 

clearing agency of services to its 

participants or the use of services of the 

clearing agency by its participants. 

By the Commission. 

Dated: December 16, 2020. 

Vanessa A. Countryman, 

Secretary. 

[FR Doc. 2020–28194 Filed 1–29–21; 8:45 am] 

BILLING CODE 8011–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 153 and 157 

[Docket No. RM20–15–001; Order No. 871– 

A] 

Limiting Authorizations To Proceed 

With Construction Activities Pending 

Rehearing 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Order addressing arguments 

raised on rehearing and clarification, 

and providing for additional briefing. 

SUMMARY: On rehearing, the Federal 

Energy Regulatory Commission 

(Commission) modifies Order No. 871, 

which amended its regulations to 

preclude the issuance of authorizations 

to proceed with construction activities 

with respect to natural gas facilities 

authorized by order issued pursuant to 

section 3 or section 7 of the Natural Gas 

Act until either the time for filing a 

request for rehearing of such order has 

passed with no rehearing request being 

filed or the Commission has acted on 

the merits of any rehearing request. The 

Commission provides for further 

briefing on the issues raised in the 

rehearing requests. 

DATES: The effective date of the 

document published on July 6, 2020 (85 

FR 40113) is confirmed: August 5, 2020. 

FOR FURTHER INFORMATION CONTACT: Tara 

DiJohn, Office of the General Counsel, 

Federal Energy Regulatory Commission, 

888 First Street NE, Washington, DC 

20426, (202) 502–8671, tara.dijohn@

ferc.gov. 

SUPPLEMENTARY INFORMATION: 

1. On June 9, 2020, the Federal Energy 

Regulatory Commission (Commission) 

issued Order No. 871, which is a final 

rule that precludes the issuance of 

authorizations to proceed with 

construction activities with respect to a 

Natural Gas Act (NGA) section 3 

authorization or section 7(c) certificate 

order until the Commission acts on the 

merits of any timely-filed request for 

rehearing or the time for filing such a 

request has passed.1 On July 9, 2020, the 

Interstate Natural Gas Association of 

America (INGAA) requested 

clarification or, in the alternative, 

rehearing, and Kinder Morgan, Inc. 

Natural Gas Entities 2 (Kinder Morgan) 

and TC Energy Corporation (TC Energy) 

requested rehearing of Order No. 871. 

2. Pursuant to Allegheny Defense 

Project v. FERC,3 the rehearing requests 

filed in this proceeding may be deemed 

denied by operation of law. However, as 

permitted by section 19(a) of the NGA,4

we are modifying the discussion in 

Order No. 871 and providing for 

additional briefing, as discussed below.5

I. Background 

3. In Order No. 871, the Commission 

explained that historically, due to the 

complex nature of the matters raised on 

rehearing of orders granting 

authorizations under NGA sections 3 

and 7, the Commission had often issued 

an order (known as a tolling order) by 

the thirtieth day following the filing of 

a rehearing request, allowing itself 

additional time to provide thoughtful, 

well-considered attention to the issues 

raised on rehearing. 

4. In order to balance its commitment 

to expeditiously responding to parties’ 

concerns in comprehensive orders on 

rehearing and the serious concerns 

posed by the possibility of construction 

proceeding prior to the completion of 

agency review, the Commission, in 

Order No. 871, exercised its discretion 

by amending its regulations to add new 

§ 157.23, which precludes the issuance 

of authorizations to proceed with 

construction of projects authorized 

under NGA sections 3 and 7 during the 

period for filing request for rehearing of 

7644 Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations 

6Order No. 871 also revised § 153.4 of the 

Commission’s regulations to incorporate a crossreference to new § 157.23. 

7 964 F.3d 1. 

8 15 U.S.C. 717r(a). 

9Allegheny, 964 F.3d at 18–19. 

10See id. at 13 (quoting 15 U.S.C. 717r(a)). 11 INGAA Rehearing at 21–24. 1 15 U.S.C. 717b (2018). 

the initial orders or while rehearing is 

pending.6

5. Three weeks after the Commission 

issued Order No. 871, the U.S. Court of 

Appeals for the District of Columbia 

Circuit (D.C. Circuit) issued an en banc 

decision in Allegheny.7 The court held 

that the Commission’s use of tolling 

orders solely to allow itself additional 

time to consider an application for 

rehearing does not preclude operation of 

the NGA’s deemed denial provision,8

which enables a rehearing applicant to 

obtain judicial review after thirty days 

of agency inaction.9 The court explained 

that, to prevent a rehearing from being 

deemed denied, the Commission must 

act on an application for rehearing 

within thirty days of its filing by taking 

one of the four NGA-enumerated 

actions: Grant rehearing, deny 

rehearing, or abrogate or modify its 

order without further hearing.10

6. On July 9, 2020, INGAA filed a 

request for clarification or, in the 

alterative, rehearing of Order No. 871. 

On the same day, Kinder Morgan and 

TC Energy also filed requests for 

rehearing. 

II. Discussion 

7. We believe that the issues raised 

regarding this rulemaking merit further 

consideration by the Commission. 

Accordingly, to facilitate our 

reconsideration of the rulemaking and 

ensure a complete record for further 

Commission action, we provide all 

interested parties an opportunity to 

comment on the arguments in the 

rehearing requests, including, but not 

limited to, the issues enumerated below. 

a. Should the Commission withhold 

authorizations to commence 

construction during the pendency of all 

rehearing requests? Alternatively, 

should the Commission withhold 

authorizations to commence 

construction only during the pendency 

of rehearing requests that raise certain 

issues or arguments? If the Commission 

were to limit such a rule to only certain 

issues or arguments, which issues or 

arguments should trigger that rule? 

b. If the Commission were to adopt a 

rule of withholding authorizations to 

commence construction while rehearing 

is pending, should that rule apply to all 

orders pertaining to an NGA section 3 

authorization or section 7 certificate or 

only a subset thereof? 

c. In its rehearing request, INGAA 

poses a number of hypotheticals 

regarding circumstances that may 

unfold following Allegheny.11 Please 

comment on how a rule withholding 

authorizations to commence 

construction during rehearing, if 

appropriate, should apply to those 

circumstances. 

d. Should the Commission modify its 

practices or procedures to address 

concerns regarding the exercise of 

eminent domain while rehearing 

requests are pending before the 

Commission? If so, how? 

e. If the Commission retains the rule 

withholding authorizations to 

commence construction while rehearing 

is pending, at what point in time should 

projects be permitted, upon receipt of an 

appropriate authorization, to commence 

construction? For example, should the 

Commission set a specific time, such as 

90 days after the filing for a request for 

rehearing, for the Commission to issue 

an authorization to proceed? 

8. Briefs shall be due within 21 days 

(February 16, 2021). Reply briefs shall 

be due 15 days thereafter (March 3, 

2021). Barring exceptional 

circumstances, the Commission will 

issue an order addressing the issues 

raised on rehearing and in the briefs 

within 60 days of receipt of the reply 

briefs. 

III. Filing Procedures 

9. Submissions must refer to Docket 

No. RM20–15–001, and must include 

the filer’s name, the organization they 

represent, if applicable, and their 

address. The Commission encourages 

electronic filing via the eFiling link on 

the Commission’s website at http://

www.ferc.gov. The Commission accepts 

most standard word processing formats. 

Documents created electronically using 

word processing software should be 

filed in native applications or print-toPDF format and not in a scanned format. 

If filing electronically, you do not need 

to make a paper filing. 

10. In lieu of electronic filing, you 

may submit a paper copy. Submissions 

sent via the U.S. Postal Service must be 

addressed to: Kimberly D. Bose, 

Secretary, Federal Energy Regulatory 

Commission, 888 First Street NE, Room 

1A, Washington, DC 20426. 

Submissions sent via any other carrier 

must be addressed to: Kimberly D. Bose, 

Secretary, Federal Energy Regulatory 

Commission, 12225 Wilkins Avenue, 

Rockville, Maryland 20852. The first 

page of any filing should include docket 

number RM20–15–001. 

11. All submissions will be placed in 

the Commission’s public files and may 

be viewed, printed, or downloaded 

remotely as described in the Document 

Availability section below. 

IV. Document Availability 

12. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the internet through the 

Commission’s Home Page (http://

www.ferc.gov). At this time, the 

Commission has suspended access to 

the Commission’s Public Reference 

Room due to the President’s March 13, 

2020 proclamation declaring a National 

Emergency concerning the Novel 

Coronavirus Disease (COVID–19). 

13. From the Commission’s Home 

Page on the internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number excluding the 

last three digits in the docket number 

field. 

14. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours from 

FERC Online Support at (202) 502–6652 

(toll free at 1–866–208–3676) or email at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. Email the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

V. Effective Date 

15. The effective date of the document 

published on July 6, 2020 (85 FR 40113) 

is confirmed: August 5, 2020. 

By the Commission. Commissioner Danly 

is dissenting with a separate statement 

attached. 

Issued: January 26, 2021. 

Kimberly D. Bose, 

Secretary. 

United States of America 

Federal Energy Regulatory Commission 

Limiting Authorizations To Proceed 

With Construction Activities Pending 

Rehearing 

Docket No. RM20–15–001 

DANLY, Commissioner, dissenting: 

1. On June 9, 2020, the Commission 

issued a final rule providing that an 

authorization to proceed with 

construction activities for a Natural Gas 

Act (NGA) section 3 1 authorization or 

Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations 7645 

2 15 U.S.C. 717f(c). 

3See Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871, 85 FR 40,113 (July 6, 2020), 171 FERC 

¶ 61,201 (2020) (Order No. 871). 

4 964 F.3d 1 (D.C. Cir. 2020) (en banc). 

5See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. 

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983) (‘‘Normally, an agency rule would be 

arbitrary and capricious if the agency has relied on 

factors which Congress has not intended it to 

consider, entirely failed to consider an important 

aspect of the problem, offered an explanation for its 

decision that runs counter to the evidence before 

the agency, or is so implausible that it could not 

be ascribed to a difference in view or the product 

of agency expertise.’’) (emphasis added); New 

England Power Generators Ass’n, Inc. v. FERC, 881 

F.3d 202, 211 (D.C. Cir. 2018) (finding ‘‘that FERC 

did not engage in the reasoned decisionmaking 

required by the Administrative Procedure Act’’ 

because it ‘‘failed to respond to the substantial 

arguments put forward by Petitioners and failed to 

square its decision with its past precedent’’). 

6 Limiting Authorizations to Proceed with 

Construction Activities Pending Rehearing, Order 

No. 871–A, 174 FERC 61,050, at P 7 (2021). 

7See, e.g., PennEast Pipeline Co., LLC, 174 FERC 

¶ 61,056, at P 10 & n.17 (2021) (collecting cases). 

8See 15 U.S.C. 717r(c). 

9 Id. (emphasis added). 

section 7(c) 2 certificate authorization 

will not be issued until the Commission 

acts on the merits of any timely-filed 

request for rehearing or the time for 

filing such a request has passed.3 On 

July 9, 2020, the Interstate Natural Gas 

Association of America requested 

clarification or, in the alternative, 

rehearing, and Kinder Morgan, Inc. 

Natural Gas Entities and TC Energy 

Corporation requested rehearing of 

Order No. 871. Today’s order does not 

address any of these requests for 

rehearing, but instead establishes a 

briefing schedule for addressing several 

questions which touch on some, but not 

all, of the issues raised on rehearing, 

and additionally requests briefing on 

issues not raised on rehearing. 

2. I dissent from today’s order because 

it: (1) Falls short of the Commission’s 

obligation under the Administrative 

Procedure Act (APA) to address the 

arguments raised in requests for 

rehearing; and (2) will delay a ruling on 

the merits of the rehearing requests until 

approximately ten months after they 

were submitted, an action that surely is 

in tension with the U.S. Court of 

Appeals for the District of Columbia 

Circuit’s (D.C. Circuit) decision in 

Allegheny Defense Project v. FERC 

(Allegheny) 4 which prohibits the 

Commission from employing procedural 

means to delay judicial review of its 

orders. 

3. Whether the Commission retains 

the regulation as it is currently written, 

modifies it, or vacates it, the 

Commission is required under the APA 

to explain its reasoning. In doing so, it 

must respond to arguments raised by 

litigants. This requirement is 

fundamental to administrative decision 

making.5 The requests for rehearing 

assert that the adoption of the regulation 

was arbitrary and capricious due to a 

number of infirmities. Among them are: 

• A claim that the regulation could be 

read to prohibit issuing an authorization 

to proceed with construction where a 

request for rehearing is filed by a party 

in support of the project (including by 

the project proponent itself); 

• an argument that the rule would not 

allow an authorization to proceed with 

construction where the party requesting 

rehearing is not an affected landowner; 

• a claim that the regulation, as 

drafted, might not allow the issuance of 

an authorization to proceed with 

construction when a rehearing request 

has been denied by operation of law due 

to Commission inaction; 

• an argument that the rule, strictly 

construed, might not permit the 

issuance of an authorization to proceed 

with construction when the rehearing 

request concerns an amendment to an 

existing authorization or subjects 

unrelated to landowner concerns, such 

as rates; and 

• potential indefinite delay in the 

issuance of an authorization to proceed 

with construction. 

These are legitimate arguments. They 

deserve a response by the Commission. 

The Commission is obligated to provide 

those responses, but all are sidestepped 

in today’s order. 

4. An inattentive reader who does no 

more than glance at the title of today’s 

order might well be lulled into believing 

that it accomplishes more than it really 

does. This order is styled ‘‘Order 

Addressing Arguments Raised on 

Rehearing and Clarification, and 

Providing for Additional Briefing.’’ 

Despite the title, the Commission 

neither addresses the arguments raised 

on rehearing nor provides any 

clarification. Instead, with no 

explanation other than a bald 

declaration that ‘‘[w]e believe that the 

issues raised regarding this rulemaking 

merit further consideration,’’ 6 today’s 

order lists a number of questions for 

further briefing. Although the 

enumerated questions may be relevant 

to some points raised in the requests for 

rehearing, the Commission fails to 

explain why it agrees or disagrees with 

those arguments or why it believes the 

record insufficient for the Commission 

to rule on those arguments. 

5. To the extent that the Commission 

suggests a more complete record is 

needed to consider the requests for 

rehearing, I disagree. The Commission 

received three requests for rehearing 

that detail arguments the Commission 

had not considered in issuing the final 

rule. These arguments are 

straightforward—implicating neither 

complex facts nor difficult legal 

principles. Although I acknowledge that 

the Commission may well have needed 

more than thirty days in which to 

address those arguments, the six months 

that have elapsed surely were more than 

adequate, and I see no reason why the 

Commission needs the additional 

ninety-six days afforded by today’s 

order. Regardless, even if there were 

good reasons for needing more time, the 

Commission necessarily fails in its 

duties by offering no justification for 

further delay. 

6. Moreover, the questions set forth 

for briefing are not confined to the 

issues properly raised on rehearing. One 

question asks whether the Commission 

should modify its practices or 

procedures to address concerns 

regarding the exercise of eminent 

domain while rehearing requests are 

pending before the Commission. No 

rehearing request suggests the 

Commission take this step. One 

wonders why this is the appropriate 

vehicle for such an inquiry, but it is not 

the proper vehicle to respond to 

arguments raised in the normal course 

of litigation. 

7. The inquiry regarding eminent 

domain appears at odds with the 

Commission’s well-developed body of 

law declaring that it lacks the authority 

to restrict a certificate holder’s use of 

eminent domain once the certificate of 

public convenience and necessity is 

received.7 I am not convinced that an 

automatic stay of the exercise of 

eminent domain pending Commission 

action on the merits of a rehearing 

request, which today’s order suggests 

the Commission will consider, can be 

reconciled with NGA section 19(c).8

That section provides that ‘‘[t]he filing 

of an application for rehearing . . . shall 

not, unless specifically ordered by the 

Commission, operate as a stay of the 

Commission’s order.’’ 9 As such, the 

idea that the Commission may adopt 

practices or procedures (presumably) to 

automatically stay an authorization to 

restrict a certificate holder’s use of 

eminent domain would appear, at least 

on initial inquiry, to conflict with NGA 

section 19(c). At a minimum, if the 

Commission wants parties to address 

the question of whether the exercise of 

eminent domain should be stayed 

automatically during the pendency of 

rehearing requests, it should also have 

7646 Federal Register / Vol. 86, No. 19 / Monday, February 1, 2021 / Rules and Regulations 

10See Allegheny, 964 F.3d at 16. 

11See id. 

12 Id. at 9. 

directed the parties to address the 

foundational question of the 

Commission’s legal authority to issue a 

rule mandating such a stay. I strongly 

encourage parties to address this 

question in their briefs, even though it 

was not specifically mentioned in the 

majority’s order. 

8. The Commission’s failure to 

address the substance of the rehearing 

requests might be understandable if the 

order directing briefing had been issued 

earlier. Indeed, the Court in Allegheny 

suggested that it might be permissible 

for the Commission to provide for such 

supplemental briefing.10 However, that 

suggestion was offered in the context of 

the Court’s discussion of a potential 

Commission order issued in connection 

with a timely ruling on rehearing within 

thirty days after a rehearing request.11

Here, we are simply failing to perform 

our duties. 

9. Finally, lest any reader of today’s 

order overlook it, let’s pause for a 

moment to consider the irony of what 

the Commission contemplates here. In 

the very same proceeding in which the 

Commission promulgated a rule 

specifically aimed at alleviating 

concerns that its tolling orders served 

only to ‘‘buy [the Commission] more 

time to act on a rehearing application 

and stall judicial review,’’ 12 the 

Commission attempts to buy more time 

by ordering further procedure after the 

statutory deadline to act on rehearing 

has passed and as judicial review is 

imminent, absent any modification in 

the meantime of the rule under review. 

I for one will be interested to see 

whether the D.C. Circuit countenances 

this action any more than it accepted 

the Commission’s use of tolling orders 

for the very same purpose. Time will 

tell. 

For these reasons, I respectfully 

dissent. 

James P. Danly, 

Commissioner. 

[FR Doc. 2021–02063 Filed 1–29–21; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF THE INTERIOR 

National Indian Gaming Commission 

25 CFR Part 575 

Annual Adjustment of Civil Monetary 

Penalty To Reflect Inflation 

AGENCY: National Indian Gaming 

Commission. 

ACTION: Final rule. 

SUMMARY: In compliance with the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (the Act) and Office of 

Management and Budget (OMB) 

guidance, the National Indian Gaming 

Commission (NIGC or Commission) is 

amending its civil monetary penalty 

rule to reflect an annual adjustment for 

inflation in order to improve the 

penalty’s effectiveness and maintain its 

deterrent effect. The Act provides that 

the new penalty level must apply to 

penalties assessed after the effective 

date of the increase, including when the 

penalties whose associated violation 

predate the increase. 

DATES: This final rule is effective 

February 1, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Armando J. Acosta, Senior Attorney, 

Office of General Counsel, National 

Indian Gaming Commission, at (202) 

632–7003; fax (202) 632–7066 (not tollfree numbers). 

SUPPLEMENTARY INFORMATION: 

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). Beginning in 2017, the 

Act requires agencies to make annual 

inflationary adjustments to their civil 

monetary penalties by January 15th of 

each year, in accordance with annual 

OMB guidance. 

II. Calculation of Annual Adjustment 

In December of every year, OMB 

issues guidance to agencies to calculate 

the annual adjustment. According to 

OMB, the cost-of-living adjustment 

multiplier for 2021 is 1.01182, based on 

the Consumer Price Index for the month 

of October 2020, not seasonally 

adjusted. 

Pursuant to this guidance, the 

Commission has calculated the annual 

adjustment level of the civil monetary 

penalty contained in 25 CFR 575.4 

(‘‘The Chairman may assess a civil fine, 

not to exceed $53,524 per violation, 

against a tribe, management contractor, 

or individual operating Indian gaming 

for each notice of violation . . .’’). The 

2021 adjusted level of the civil 

monetary penalty is $54,157 ($53,524 × 

1.01182). 

III. Regulatory Matters 

Regulatory Planning and Review 

This final rule is not a significant rule 

under Executive Order 12866. 

(1) This rule will not have an effect of 

$100 million or more on the economy or 

will not adversely affect, in a material 

way, the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or state, local, or 

tribal governments or communities. 

(2) This rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. 

(3) This rule does not involve 

entitlements, grants, user fees, or loan 

programs or the rights or obligations of 

recipients. 

(4) This regulatory change does not 

raise novel legal or policy issues. 

Regulatory Flexibility Act 

The Commission certifies that 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 annual 

adjustments for inflation. 

Small Business Regulatory Enforcement 

Fairness Act 

This final rule is not a major rule 

under 5 U.S.C. 804(2), the Small 

Business Regulatory Enforcement 

Fairness Act. It will not result in the 

expenditure by state, local, or tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more 

in any one year. The rule will not result 

in a major increase in costs or prices for 

consumers, individual industries, 

Federal, state, or local government 

agencies, or geographic regions. Nor will 

this rule have significant adverse effects 

on competition, employment, 

investment, productivity, innovation, or 

the ability of the U.S.-based enterprises 

to compete with foreign-based 

enterprises. 

Unfunded Mandates Reform Act 

This final rule does not impose an 

unfunded mandate of more than $100 

million per year on state, local, or tribal 

governments or the private sector. The 

rule also does not have a significant or 

unique effect on state, local, or tribal 

governments or the private sector. 

Therefore, a statement containing the 

information required by the Unfunded 

Mandates Reform Act (2 U.S.C. 1531 et 

seq.) is not required. 

Takings 

Under the criteria in Executive Order 

12630, this final rule does not affect 

individual property rights protected by 

the Fifth Amendment nor does it 

involve a compensable ‘‘taking.’’ Thus, 

a takings implication assessment is not 

required.