63274 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

3To ensure that retailers are complying with the

tobacco rule and refusing to sell cigarettes or

smokeless tobacco to persons under age 18, FDA

will conduct compliance checks, wherein an

adolescent, accompanied by a State commissioned

officer, will attempt to purchase cigarettes or

smokeless tobacco.

expressed by comments, the public

health protection in those jurisdictions

would be diminished, not enhanced.

A few comments urged that, rather

than preempt more stringent State or

local requirements, FDA should leave

them intact. In that case, exemptions

from preemption would not be required.

Section 521 of the act clearly states that

State or local restrictions that are

‘‘different from’’ or ‘‘in addition to’’

FDA restrictions are preempted.

However, FDA will continue to consider

applications for exemptions from

preemption for more stringent State or

local requirements that provide greater

public health protection without

imposing significant burdens on

interstate commerce.

One comment urged FDA to refrain

from issuing general determinations

concerning whether a certain type of

State or local requirement is preempted.

Specifically, the comment disagreed

with FDA’s using as an example of a

narrower restriction in the proposed

rule State or local laws that hold

retailers to a standard lower than strict

liability for selling cigarettes or

smokeless tobacco to persons under 18.

This comment argued that, while as a

general rule Medtronic holds that

narrower State or local laws are not

preempted under section 521(a) of the

act, FDA should accept evidence that a

specific State or local requirement,

although narrower, is nonetheless

‘‘different’’ from the FDA requirement

and preempted under the act.

FDA believes that it is important to

provide States and localities with

examples of how to apply the agency’s

interpretation of the scope of

preemption under section 521 of the act,

especially because the agency refined its

interpretation of Medtronic. By

providing an example FDA intends to

assist States and localities in

determining whether they need to apply

for an exemption. FDA agrees with the

comment that the agency must

determine whether a particular

requirement is preempted on a case-bycase basis considering, among other

factors, the statutory, regulatory or other

language, any judicial or administrative

interpretations, and any information

regarding implementation or

enforcement of the requirement.

Therefore, FDA remains open to

receiving specific information regarding

a particular State or local requirement

and would consider the information in

determining whether the requirement

were preempted under section 521(a) of

the act.

Several comments suggested that FDA

preempt certain types of requirements,

including State laws that hold retailers

to a standard lower than strict liability

for illegally selling tobacco products to

minors, and State laws that prohibit

using minors to aid in the inspection of

tobacco retailers3. Comments argued

that these types of requirements should

be preempted because they frustrate the

purpose of the tobacco rule by making

it difficult for FDA to enforce the

Federal requirements.

First, FDA continues to believe that

under Medtronic State or local

requirements holding retailers liable for

knowingly or negligently selling

cigarettes or smokeless tobacco to

persons under age 18 are not preempted.

As explained in the proposal (62 FR

7390 at 7391), State or local statutes that

require proving a retailer’s negligence or

knowledge in an underage sale are

similar to counterpart Federal

requirements holding retailers strictly

liable for illegally selling cigarettes or

smokeless tobacco to minors, but they

are narrower in scope than the tobacco

rule’s prohibition of sales to persons

under age 18 and therefore are not

preempted. Second, because FDA does

not have before it a positive enactment

to consider, the agency declines to issue

an opinion on the preemptive effect of

section 521 of the act on the types of

requirements that prohibit the use of

minors in inspections. Without a

specific State or local enactment before

the agency, including any legislative,

administrative, judicial or enforcement

history, the agency cannot determine

the effect of either section 521(a) of the

act or more general principles of Federal

preemption.

Therefore, in response to applications

received, FDA is granting exemptions

from Federal preemption for certain

State requirements in Alabama, Alaska,

and Utah relating to cigarettes or

smokeless tobacco.

List of Subjects in 21 CFR Part 808

Intergovernmental relations, Medical

devices.

Therefore, under the Federal Food,

Drug, and Cosmetic Act and under

authority delegated to the Commissioner

of Food and Drugs, 21 CFR part 808 is

amended as follows:

PART 808—EXEMPTIONS FROM

FEDERAL PREEMPTION OF STATE

AND LOCAL MEDICAL DEVICE

REQUIREMENTS

1. The authority citation for 21 CFR

part 808 continues to read as follows:

Authority: 21 U.S.C. 360j, 360k, 371.

2. Section 808.51 is added to subpart

C to read as follows:

§ 808.51 Alabama.

To the extent that the age restriction

on the sale, barter, and exchange of

cigarettes and smokeless tobacco found

in Alabama Code, section 13A–12–3, is

preempted under section 521(a) of the

act, the Food and Drug Administration

has exempted it from preemption under

section 521(b) of the act.

3. Section 808.52 is added to subpart

C to read as follows:

§ 808.52 Alaska.

To the extent that the age restriction

on the sale and exchange of cigarettes

and smokeless tobacco found in Alaska

Statutes, sections 11.76.100(a), is

preempted under section 521(a) of the

act, the Food and Drug Administration

has exempted it from preemption under

section 521(b) of the act.

4. Section 808.94 is added to subpart

C to read as follows:

§ 808.94 Utah.

To the extent that the age restriction

on sales of cigarettes and smokeless

tobacco found in the Utah Code

Annotated, section 76–10–104, is

preempted under section 521(a) of the

act, the Food and Drug Administration

has exempted it from preemption under

section 521(b) of the act.

Dated: November 18, 1997.

William B. Schultz,

Deputy Commissioner for Policy.

[FR Doc. 97–31213 Filed 11–26–97; 8:45 am]

BILLING CODE 4160–01–F

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 723, 724, 845, and 846

RIN 1029–AB90

Implementation of the Debt Collection

Improvement Act of 1996

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule.

SUMMARY: This rule implements the

Federal Civil Monetary Penalty Inflation
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations 63275

Adjustment Act of 1990, as amended by

the Debt Collection Improvement Act of

1996, by adjusting for inflation, certain

civil money penalties authorized by the

Surface Mining Control and

Reclamation Act of 1977.

EFFECTIVE DATE: November 28, 1997.

FOR FURTHER INFORMATION CONTACT:

Andy DeVito, Office of Surface Mining

Reclamation and Enforcement, Room

117, South Interior Building, 1951

Constitution Avenue, NW, Washington,

DC 20240; Telephone (202) 208–2701.

E-Mail/Internet: adevito@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Debt Collection Improvement Act of

1996

B. Civil Money Penalties Affected by this

Adjustment

II. Procedural Matters

A. Effect in Federal Program States and on

Indian Lands

B. Effect on State Programs

C. Administrative Procedure Act

D. Executive Order 12866

E. Regulatory Flexibility Act

F. Unfunded Mandates Reform Act

G. Federal Paperwork Reduction Act

H. National Environmental Policy Act

I. Executive Order 12988 on Civil Justice

Reform

I. Background

A. The Debt Collection Improvement

Act of 1996

In an effort to maintain the deterrent

effect of civil money penalties (CMPs)

and promote compliance with the law,

the Federal Civil Monetary Penalty

Inflation Adjustment Act of 1990 (the

Act) (Pub. L. 101–410) was amended by

the Debt Collection Improvement Act of

1996 (Pub. L. 104–134) to require

Federal agencies to regularly adjust

certain CMPs for inflation. As amended,

the Act requires each agency to make an

initial inflationary adjustment for all

applicable CMPs, and to make further

adjustments at least once every four

years thereafter.

Under the amended Act, the inflation

adjustment for a CMP is determined by

increasing the CMP by the amount of

the cost-of-living adjustment which is

defined as the percentage of each CMP

by which the Consumer Price Index

(CPI) for the month of June of the

calendar year preceding the adjustment,

exceeds the CPI for the month of June

of the calendar year in which the

amount of the CMP was last set or

adjusted. The amended Act further

stipulates that any resulting increases in

a CMP due to the calculated inflation

adjustments (1) Should apply only to

violations that occur after the date the

increase takes effect, and (2) should not

exceed 10 percent of the penalty

indicated.

B. Civil Money Penalties Affected By

This Adjustment

Section 518 of the Surface Mining

Control and Reclamation Act of 1977

(SMCRA), 30 U.S.C. 1201 et seq.,

authorizes the Secretary of the Interior

to assess CMPs for violations of SMCRA.

The regulations of the Office of Surface

Mining Reclamation and Enforcement

(OSM) implementing the CMP

provisions of section 518 of SMCRA are

located in 30 CFR 723.14, 723.15,

724.14, 845.14, 845.15, and 846.14.

Sections 723.14 and 723.15 were

promulgated on September 4, 1980 (45

FR 58783), sections 845.14 and 845.15

on August 16, 1982 (47 FR 35640), and

sections 724.14 and 846.14 on February

8, 1988 (53 FR 3664). The CMPs have

not been adjusted since the regulations

were first issued. Since the cost-ofliving adjustment described above

would exceed 10 percent of the CMP,

the adjustments being made to the CMPs

by this rule are being limited to a 10

percent increase as directed by section

7 of the amended Act.

II. Procedural Matters

A. Effect in Federal Program States and

on Indian Lands

The rule will apply through crossreferencing to the following Federal

program states: California, Georgia,

Idaho, Massachusetts, Michigan, North

Carolina, Oregon, Rhode Island, South

Dakota, Tennessee and Washington. The

Federal programs for these States appear

at 30 CFR parts 905, 910, 912, 921, 922,

933, 937, 939, 941, 942 and 947,

respectively. The rule also applies

through cross-referencing to Indian

lands under the Federal program for

Indian lands as provided in 30 CFR 750.

B. Effect on State Programs

Section 518(i) of SMCRA and 30 CFR

840.13(a) require that the civil penalty

provisions of each State program

contain penalties which are ‘‘no less

stringent than’’ those set forth in

SMCRA. Following promulgation of the

final rule, OSM will evaluate State

programs approved under section 503 of

SMCRA to determine any changes in

those programs that will be necessary.

When OSM determines that a particular

State program provision should be

amended in order to be made no less

stringent than the revised Federal

regulations, the particular States will be

notified in accordance with the

provisions of 30 CFR 732.17.

C. Administrative Procedure Act

This final rule has been issued

without prior public notice or

opportunity for public comment. The

Administrative Procedure Act (APA) (5

U.S.C. 553) provides an exception to the

notice and comment procedures when

an agency finds there is good cause for

dispensing with such procedures on the

basis that they are impracticable,

unnecessary or contrary to the public

interest. OSM has determined that

under 5 U.S.C. 553(b)(3)(B) good cause

exists for dispensing with the notice of

proposed rulemaking and public

comment procedures for this rule.

Specifically, this rulemaking is

consistent with the statutory authority

set forth in the Debt Collection

Improvement Act of 1996. In that Act,

Congress required that the agency issue

the inflation adjustment amendments

contained in this rule and provided no

discretion to the agency regarding either

their substance or their issuance. These

same reasons also provide OSM with

good cause under 5 U.S.C. 553(d)(3) of

the APA to have the regulation become

effective on a date that is less than 30

days after the date of publication in the

Federal Register.

D. Executive Order 12866

This rule is not considered a

significant regulatory action under the

provisions of Executive Order 12866.

The rule adjusts OSM’s CMPs according

to the formula contained in the law.

OSM has no discretion in making the

adjustments. Further, most coal mining

operations subject to these regulations

do not engage in prohibited activities

and practices, and, as a result, OSM

believes that the aggregate economic

impact of these revised regulations will

be minimal, affecting only those who

may engage in prohibited behavior in

violation of SMCRA. Consequently, the

amount of the CMPs assessed under the

revised schedule are not expected to

exceed the threshold contained in

Executive Order 12866 for an

economically significant rule.

E. Regulatory Flexibility Act

The Department of the Interior

certifies that this proposed revision

would not have a significant economic

impact on a substantial number of small

entities under the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.). While some

penalties may have an impact on small

entities, it is the nature of the violation

and not the size of the entity that will

result in issuance of a violation notice

and the assessment of a CMP. The

aggregate economic impact of this

rulemaking on small business entities
63276 Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations

should be minimal, affecting only those

who violate the provisions of SMCRA.

F. Unfunded Mandates Reform Act

For purposes of compliance with the

Unfunded Mandates Reform Act of

1995, this rule does not impose any

obligations that individually or

cumulatively would require an

aggregate expenditure of $100 million or

more by State, local, and Tribal

governments and the private sector in

any given year.

G. Federal Paperwork Reduction Act

This rule does not contain collections

of information which require approval

by the Office of Management and

Budget under 44 U.S.C. 3501 et seq.

H. National Environmental Policy Act

This rule has been reviewed by OSM

and it has been determined to be

categorically excluded from the

requirement to prepare an

environmental document under the

National Environmental Policy Act of

1969. This determination was made in

accordance with the Departmental

Manual (516 DM 2, Appendix 1.10).

I. Executive Order 12988 on Civil Justice

Reform

The Department of the Interior has

determined that this rule meets the

requirements of sections (3)(a) and

3(b)(2) of Executive Order 12988, Civil

Justice Reform (61 FR 4729).

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: October 28, 1997.

Sylvia V. Baca,

Acting Assistant Secretary, Land and

Minerals Management.

For the reasons set out in the

preamble, 30 CFR parts 723, 724, 845,

and 846 are amended as follows.

PART 723—CIVIL PENALTIES

1. The authority citation for Part 723

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., Pub. L.

100–34, Pub. L. 101–410, and Pub. L. 104–

134.

2. Section 723.14 is amended by

revising the table to read as follows:

§ 723.14 Determination of amount of

penalty.

* * * * *

Points Dollars

1 .............................................. 22

2 .............................................. 44

3 .............................................. 66

4 .............................................. 88

5 .............................................. 110

6 .............................................. 132

7 .............................................. 154

8 .............................................. 176

9 .............................................. 198

10 .............................................. 220

11 .............................................. 242

12 .............................................. 264

13 .............................................. 286

14 .............................................. 308

15 .............................................. 330

16 .............................................. 352

17 .............................................. 374

18 .............................................. 396

19 .............................................. 418

20 .............................................. 440

21 .............................................. 462

22 .............................................. 484

23 .............................................. 506

24 .............................................. 528

25 .............................................. 550

26 .............................................. 660

27 .............................................. 770

28 .............................................. 880

29 .............................................. 990

30 .............................................. 1,100

31 .............................................. 1,210

32 .............................................. 1,320

33 .............................................. 1,430

34 .............................................. 1,540

35 .............................................. 1,650

36 .............................................. 1,760

37 .............................................. 1,870

38 .............................................. 1,980

39 .............................................. 2,090

40 .............................................. 2,200

41 .............................................. 2,310

42 .............................................. 2,420

43 .............................................. 2,530

44 .............................................. 2,640

45 .............................................. 2,750

46 .............................................. 2,860

47 .............................................. 2,970

48 .............................................. 3,080

49 .............................................. 3,190

50 .............................................. 3,300

51 .............................................. 3,410

52 .............................................. 3,520

53 .............................................. 3,630

54 .............................................. 3,740

55 .............................................. 3,850

56 .............................................. 3,960

57 .............................................. 4,070

58 .............................................. 4,180

59 .............................................. 4,290

Points Dollars

60 .............................................. 4,400

61 .............................................. 4,510

62 .............................................. 4,620

63 .............................................. 4,730

64 .............................................. 4,840

65 .............................................. 4,950

66 .............................................. 5,060

67 .............................................. 5,170

68 .............................................. 5,280

69 .............................................. 5,390

70 .............................................. 5,500

3. In Section 723.15, paragraph (b) is

revised by changing the dollar amount

‘‘$750’’ to ‘‘$825.’’

PART 724—INDIVIDUAL CIVIL

PENALTIES

4. The authority citation for Part 724

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., Pub. L.

100–34, Pub. L. 101–410, and Pub. L. 104–

134.

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 shall not exceed

$5,500 for each violation. * * *

PART 845—CIVIL PENALTIES

6. The authority citation for Part 845

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., Pub. L.

100–34, Pub. L. 100–202, Pub. L. 100–446,

Pub. L. 101–410, and Pub. L. 104–134.

7. Section 845.14 is amended by

revising the table to read as follows:

§ 845.14 Determination of amount of

penalty.

* * * * *

Points Dollars

1 ................................................ 22

2 ................................................ 44

3 ................................................ 66

4 ................................................ 88

5 ................................................ 110

6 ................................................ 132

7 ................................................ 154

8 ................................................ 176

9 ................................................ 198

10 .............................................. 220

11 .............................................. 242

12 .............................................. 264

13 .............................................. 286

14 .............................................. 308

15 .............................................. 330

16 .............................................. 352

17 .............................................. 374

18 .............................................. 396

19 .............................................. 418

20 .............................................. 440

21 .............................................. 462

22 .............................................. 484
Federal Register / Vol. 62, No. 229 / Friday, November 28, 1997 / Rules and Regulations 63277

Points Dollars

23 .............................................. 506

24 .............................................. 528

25 .............................................. 550

26 .............................................. 660

27 .............................................. 770

28 .............................................. 880

29 .............................................. 990

30 .............................................. 1,100

31 .............................................. 1,210

32 .............................................. 1,320

33 .............................................. 1,430

34 .............................................. 1,540

35 .............................................. 1,650

36 .............................................. 1,760

37 .............................................. 1,870

38 .............................................. 1,980

39 .............................................. 2,090

40 .............................................. 2,200

41 .............................................. 2,310

42 .............................................. 2,420

43 .............................................. 2,530

44 .............................................. 2,640

45 .............................................. 2,750

46 .............................................. 2,860

47 .............................................. 2,970

48 .............................................. 3,080

49 .............................................. 3,190

50 .............................................. 3,300

51 .............................................. 3,410

52 .............................................. 3,520

53 .............................................. 3,630

54 .............................................. 3,740

55 .............................................. 3,850

56 .............................................. 3,960

57 .............................................. 4,070

58 .............................................. 4,180

59 .............................................. 4,290

60 .............................................. 4,400

61 .............................................. 4,510

62 .............................................. 4,620

63 .............................................. 4,730

64 .............................................. 4,840

65 .............................................. 4,950

66 .............................................. 5,060

67 .............................................. 5,170

68 .............................................. 5,280

69 .............................................. 5,390

70 .............................................. 5,500

8. In Section 845.15, paragraph (b) is

revised by changing the dollar amount

‘‘$750’’ to ‘‘$825.’’

PART 846—INDIVIDUAL CIVIL

PENALTIES

9. The authority citation for Part 846

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., Pub. L.

100–34, Pub. L. 101–410, and Pub. L. 104–

134.

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 shall not exceed

$5,500 for each violation. * * *

[FR Doc. 97–31267 Filed 11–26–97; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF VETERANS

AFFAIRS

38 CFR Part 36

RIN 2900–AH73

Loan Guaranty: Electronic Payment of

Funding Fee

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

SUMMARY: This document amends the

VA loan guaranty regulations to require

that all funding fees (including late fees

and interest) for VA-guaranteed loans be

paid electronically through the

Automated Clearing House (ACH)

program. The adoption of the ACH

program will eliminate lost mail and

eliminate data errors resulting from

manual recording. Further accounting

reconciliation will be reduced. In

addition, banking costs will be reduced.

This document also corrects a

typographical error in the ‘‘Allowable

fees and charges: manufactured home

unit’’ section.

DATES: Effective date: January 1, 1998.

FOR FURTHER INFORMATION CONTACT: Ms.

Judith Caden, Assistant Director for

Loan Policy (264), Loan Guaranty

Service, Veterans Benefits

Administration, Department of Veterans

Affairs, Washington, DC 20420, (202)

273–7368.

SUPPLEMENTARY INFORMATION: On May 7,

1997, VA published in the Federal

Register (62 FR 24872) proposed

regulations that would require mortgage

lenders to pay all funding fees

(including late fees and interest) for VAguaranteed loans electronically through

the ACH program effective January 1,

1998. The regulations provide three

methods for making payments through

the ACH program and specify the

standard information the lender must

provide the collection agent when

submitting loan guaranty funding fees.

Please refer to the May 7, 1997, Federal

Register for a complete discussion of the

proposed amendments.

Public comments were requested on

the proposal. The comment period

ended July 7, 1997. VA received one

comment. The comment supported the

proposal. The commenter, the Financial

Management Service of the Department

of the Treasury, stated ‘‘that the

proposed rule change will bring

significant cost savings to VA’s internal

operations and provide cash

management savings to the Department

of the Treasury.’’

Based on the rationale set forth in the

proposal and this document, the

proposed rule is adopted as a final rule

without change.

Paperwork Reduction Act

Information collection and

recordkeeping requirements associated

with the final rule (38 CFR 36.4232,

36.4254, and 36.4312) have been

approved by OMB under the provisions

of the Paperwork Reduction Act (44

U.S.C. 3501–3520) and have been

assigned OMB control number 2900–

0474. The information collection subject

to this rulemaking concerns the

requirement that lenders provide VA

information necessary to get set up on

the ACH system to pay the funding fee

electronically and the existing

requirement that lenders provide VA

certain standard information when

submitting loan guaranty funding fees.

Interested parties were invited to submit

comments on the collection of

information. However, no comments

were received regarding the collection

of information.

VA is not authorized to impose a

penalty on persons for failure to comply

with information collection

requirements which do not display a

current OMB control number, if

required.

Regulatory Flexibility Act

The Secretary hereby certifies that

this final rule will not have a significant

economic impact on a substantial

number of small entities as they are

defined in the Regulatory Flexibility

Act, 5 U.S.C. 601–612. The rule

implements a program that will enhance

operations and be cost beneficial for all

participating lenders. Lenders will be

able to participate by having access to

a personal computer, and personal

computing is pervasive within the

industry. Lenders will also have the

option of paying funding fees by calling

an operator who will enter the

information into the ACH system for

them. Funding fees represent actions

that have insignificant impact on

lenders. Therefore, pursuant to 5 U.S.C.

605(b), this final rule is exempt from the

initial and final regulatory flexibility

analysis requirements of sections 603

and 604.

The Catalog of Federal Domestic

Assistance Program numbers are 64.114

and 64.119.

List of Subjects in 38 CFR Part 36

Condominiums, Housing, Individuals

with disabilities, Loan programs—

housing and community development,

Manufactured homes, Reporting and

recordkeeping requirements, Veterans.