70698 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Parts 723, 724, 845 and 846 

RIN 1029–AC48 

Civil Penalty Adjustments 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: This rule adjusts the penalty 

amount of certain civil monetary 

penalties authorized by the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA). The rule implements 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990 which requires 

that civil monetary penalties be adjusted 

for inflation at least once every four 

years. 

DATES: Effective Date: November 28, 

2005. 

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: adevito@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. The Federal Civil Penalties Inflation 

Adjustment Act 

B. Method of Calculation 

C. Example of a Calculation 

D. Civil Monetary Penalties Affected by 

This Adjustment 

E. Effect of the Rule in Federal Program 

States and on Indian Lands 

F. Effect of the Rule on Approved State 

Programs 

II. Procedural Matters and Required 

Determinations 

I. Background 

A. The Federal Civil Penalties Inflation 

Adjustment Act 

In an effort to maintain the deterrent 

effect of civil monetary penalties (CMPs) 

and promote compliance with the law, 

the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Inflation 

Adjustment Act) (28 U.S.C. 2461, note) 

was amended by the Debt Collection 

Improvement Act of 1996 (31 U.S.C. 

3701) to require Federal agencies to 

regularly adjust CMPs for inflation. The 

Inflation Adjustment Act, as amended, 

requires each agency to make an initial 

inflationary adjustment for all 

applicable CMPs, and to make 

subsequent adjustments at least once 

every four years thereafter. The Office of 

Surface Mining Reclamation and 

Enforcement (we or OSM) has adjusted 

the CMPs authorized by SMCRA on two 

previous occasions, November 28, 1997 

(62 FR 63274), and November 21, 2001 

(66 FR 58644). To satisfy the 

requirement of the Inflation Adjustment 

Act, we are again adjusting our CMPs 

according to the formula set forth in the 

law. 

Under the Inflation Adjustment Act, 

the inflation adjustment for a CMP is 

determined by increasing the CMP by 

the amount of the cost-of-living 

adjustment. The cost-of-living 

adjustment is defined as the percentage 

of each CMP by which the Consumer 

Price Index for the month of June of the 

calendar year preceding the adjustment 

exceeds the Consumer Price Index for 

the month of June of the calendar year 

in which the amount of the CMP was 

last set or adjusted. The Inflation 

Adjustment Act defines the Consumer 

Price Index as the Consumer Price Index 

for all urban consumers (CPI–U) 

published by the Department of Labor. 

See 28 U.S.C. 2461, note. In addition, 

the Inflation Adjustment Act specifies 

that any resulting increases in a CMP 

must be rounded according to a stated 

rounding formula, and apply only to 

violations that occur after the date the 

increase takes effect. 

B. Method of Calculation 

Since this adjustment will be effective 

before December 31, 2005, we must use 

the CPI–U for the month of June 2004. 

That figure is 189.7. We last reviewed 

and adjusted our civil monetary 

penalties in November 2001. Because of 

the rounding formula that we are 

required to use, only ten CMPs were 

adjusted in 2001. For those ten CMPs, 

the factor that we have used in 

calculating the increase for 2005 is 

189.7 (the CPI–U for June 2004) divided 

by 178.0 (the CPI–U for June 2001). The 

resulting multiplier is 1.0657 (i.e., a 6.57 

percent increase). 

For those CMPs that were adjusted in 

1997, but not in 2001, we divide 189.7 

(the CPI–U for June 2004) by 160.3 (the 

CPI–U for June 1997). The resulting 

multiplier is 1.1834 (i.e., an 18.34 

percent increase). 

Any potential increase under this 

adjustment is then subject to the 

rounding formula set forth in section 

5(a) of the Inflation Adjustment Act. 

Under the formula, any increase must be 

rounded to the nearest: 

(1) Multiple of $10 in the case of 

penalties less than or equal to $100; 

(2) Multiple of $100 in the case of 

penalties greater than $100 but less than 

or equal to $1,000; 

(3) Multiple of $1,000 in the case of 

penalties greater than $1,000 but less 

than or equal to $10,000; 

(4) Multiple of $5,000 in the case of 

penalties greater than $10,000 but less 

than or equal to $100,000; 

(5) Multiple of $10,000 in the case of 

penalties greater than $100,000 but less 

than or equal to $200,000; and 

(6) Multiple of $25,000 in the case of 

penalties greater than $200,000. 

C. Example of a Calculation 

To explain the inflation adjustment 

calculation for the CMPs that were last 

adjusted in 2001, we will use the 

following example. Our regulations at 

30 CFR 845.15(b) currently require the 

imposition of a civil penalty of not less 

than $925 for each day during which an 

operator fails to abate a violation within 

the specified abatement period 

contained in a notice of violation or a 

cessation order. Multiplying the $925 by 

the inflation factor of 1.0657 results in 

a sum of $985.77. We round the raw 

inflation amount ($985.77) according to 

the rounding formula in section 5(a) of 

the Inflation Adjustment Act. Since we 

round only the increase, we calculate 

the increase amount by subtracting the 

current penalty amount from the raw 

inflation adjustment. Accordingly, the 

increase amount for the penalty in our 

example is $60.77 (i.e., $985.77 minus 

$925.00). Under the rounding formula, 

if the penalty is more than $100 but less 

than $1,000, we round the increase to 

the nearest multiple of $100 (i.e., $60.77 

is rounded to $100.00). Finally, we add 

the rounded increase to the existing 

penalty which results in a new 

§ 845.15(b) penalty amount of $1,025.00 

(i.e., $925.00 plus $100.00) for each day 

during which the failure to abate 

continues. For those CMPs last adjusted 

in 1997, the calculations would be the 

same but the multiplier would be 1.1834 

instead of 1.0657. 

D. Civil Monetary Penalties Affected by 

This Adjustment 

Section 518 of SMCRA, 30 U.S.C. 

1268, authorizes the Secretary of the 

Interior to assess CMPs for violations of 

SMCRA. OSM’s regulations 

implementing the CMP provisions of 

section 518 are located in 30 CFR 

723.14, 723.15, 724.14, 845.14, 845.15, 

and 846.14. Because of the rounding 

formula specified in the Inflation 

Adjustment Act, some of the CMPs in 

those sections were not adjusted in 2001 

and some of them are not being adjusted 

in this review. When we review and 

adjust our CMPs in 2009, we will be 

required to compare the CPI–U for June 

2008 with the CPI–U for the year in 

which each CMP was last adjusted. In 

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70699 

some instances that will be 1997, and in 

others 2001 or 2005. 

E. Effect of the Rule in Federal Program 

States and on Indian Lands 

The increase in civil monetary 

penalties contained in this rule will 

apply through cross-referencing 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 those States appear 

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

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

respectively. The increase in civil 

monetary penalties also applies through 

cross-referencing to Indian lands under 

the Federal program for Indian lands as 

provided in 30 CFR 750. 

F. Effect of the Rule on Approved State 

Programs 

Section 518(i) of SMCRA requires that 

the civil penalty provisions of each 

State program contain penalties which 

are ‘‘no less stringent than’’ those set 

forth in SMCRA. Our regulations at 30 

CFR 840.13(a) specify that each State 

program shall contain penalties which 

are no less stringent than those set forth 

in section 518 of the Act and shall be 

consistent with 30 CFR part 845. 

However, in a 1980 decision on OSM’s 

regulations governing CMPs, the U.S. 

District Court for the District of 

Columbia held that because section 518 

of SMCRA fails to enumerate a point 

system for assessing civil penalties, the 

imposition of this requirement upon the 

States is inconsistent with SMCRA. In 

response to the Secretary’s request for 

clarification, the Court further stated 

that it could not uphold requiring the 

States to impose penalties as stringent 

as those appearing in 30 CFR 845.15. 

Consequently, we cannot require that 

the CMP provisions contained in a 

State’s regulatory program mirror the 

penalty provisions of our regulations at 

30 CFR 845.14 and 845.15. As a result 

of the litigation, 30 CFR 840.13(a) was 

suspended in part on August 4,1980 (45 

FR 51548). 

Following publication of this final 

rule, we will, however, evaluate the 

State programs approved under section 

503 of SMCRA and, based on the 

requirements of SMCRA, our 

regulations, and the court’s opinion, 

determine any changes in those 

programs that will be necessary. When 

we determine that a particular State 

program provision should be amended, 

the particular State will be notified in 

accordance with the provisions of 30 

CFR 732.17. 

II. Procedural Matters and Required 

Determinations 

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. We have 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. This 

rulemaking is consistent with the 

statutory authority and requirements set 

forth in the Inflation Adjustment Act as 

amended by the Debt Collection 

Improvement Act of 1996. The Inflation 

Adjustment Act requires that we adjust 

our CMPs once every four years and 

specifies the manner in which the 

adjustment is to be made. Accordingly, 

the adjustments made may be seen as 

ministerial, technical, and nondiscretionary. For these same reasons, 

we believe there is good cause under 5 

U.S.C. 553(d)(3) of the APA to have the 

rule become effective on a date that is 

less than 30 days after the date of 

publication in the Federal Register. 

Executive Order 12866—Regulatory 

Planning and Review 

This rule has been reviewed under the 

provisions of Executive Order 12866 

and is not considered a significant 

regulatory action. This determination is 

based on the fact that the rule adjusts 

OSM’s CMPs according to the formula 

contained in the Inflation Adjustment 

Act. OSM has no discretion in making 

the adjustments. Further, most coal 

mining operations subject to the rule do 

not engage in prohibited activities and 

practices, and, as a result, we believe 

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. 

Civil penalty data from our annual 

reports indicates that in Fiscal Years 

2001–2004, we conducted a total of 

8,484 inspections on sites for which 

OSM is the regulatory authority, and 

issued a total of 157 Notices of Violation 

and 8 Failure-to-Abate Cessation orders. 

During those four years, the total CMPs 

collected by OSM for all violations was 

$231,560. If that number were adjusted 

for inflation using the largest inflation 

factor contained in this rule (1.1834 or 

18.34 percent), the CMPs collected for 

that period would have increased by 

$42,468 for a total of $274,028. 

Consequently, the annual increase in 

CMPs that we might reasonably expect 

to collect under the revised dollar 

amounts contained in this rule is 

substantially less than the $100 million 

annual threshold contained in Executive 

Order 12866 for an economically 

significant rule. Based on the above, we 

have determined that: 

a. The rule will not have an annual 

effect of $100 million or more on the 

economy, nor will it 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. 

b. The rule will not create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency. 

c. The rule will not alter the 

budgetary effects of entitlements, grants, 

user fees, or loan programs or the rights 

or obligations of their recipients. 

d. The rule does not raise novel legal 

or policy issues. 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this revision will 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.). The aggregate 

economic impact of this rulemaking on 

small business entities should be 

minimal, affecting only those who 

violate the provisions of SMCRA. As 

previously indicated, the number of 

violation notices issued during the past 

four years was not significant when 

compared to the total number of Federal 

inspections conducted, and the 

estimated increase in cost to operators 

that will result from the inflation 

adjustment is not considered significant. 

Small Business Regulatory Enforcement 

Fairness Act 

For the reasons previously stated, this 

rule is not considered a major rule 

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

Business Regulatory Enforcement 

Fairness Act. This rule: 

1. Will not have an annual effect on 

the economy of $100 million. 

2. Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, state, or 

local government agencies, or 

geographic regions because the rule 

does not impose new requirements on 

the coal mining industry or consumers. 

3. Will not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

70700 Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 

the ability of U.S. based enterprises to 

compete with foreign-based enterprises. 

Unfunded Mandates Reform Act 

For purposes of compliance with the 

Unfunded Mandates Reform Act of 

1995, this rule will 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. 

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. 

National Environmental Policy Act 

We have reviewed this rule and 

determined that it is categorically 

excluded from the requirement to 

prepare an environmental document 

under the National Environmental 

Policy Act of 1969. In addition, we have 

determined that none of the 

‘‘extraordinary circumstances’’

exceptions to the categorical exclusion 

apply. This determination was made in 

accordance with the Departmental 

Manual (516 DM 2, Appendixes 1.9 and 

2). 

Executive Order 12988—Civil Justice 

Reform 

In accordance with Executive Order 

12988, the Department of the Interior 

has determined that this rule (1) does 

not unduly burden the judicial system 

and (2) meets the requirements of 

sections 3(a) and 3(b)(2) of the Order. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

Executive Order 13211 requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is not considered significant 

under Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federallyrecognized Indian tribes and have 

determined that the proposed revisions 

would not have substantial direct effects 

on the relationship between the Federal 

Government and Indian Tribes, or on 

the distribution of power and 

responsibilities between the Federal 

Government and Indian Tribes. 

Executive Order 12630—Takings 

In accordance with Executive Order 

12630, the rule does not have takings 

implications. This determination is 

based on the fact that the rule will not 

have an impact on the use or value of 

private property and so, does not result 

in significant costs to the government. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. It will not have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’

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: November 10, 2005. 

James O. Ratliff, 

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: 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 .................................................... 22 

2 .................................................... 54 

3 .................................................... 76 

4 .................................................... 108 

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

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

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

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

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

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

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

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

13 .................................................. 386 

14 .................................................. 408 

15 .................................................. 430 

16 .................................................. 452 

17 .................................................. 474 

18 .................................................. 496 

19 .................................................. 518 

20 .................................................. 540 

21 .................................................. 562 

22 .................................................. 584 

23 .................................................. 606 

24 .................................................. 628 

25 .................................................. 650 

26 .................................................. 760 

27 .................................................. 970 

28 .................................................. 1,080 

29 .................................................. 1,090 

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 .................................................. 3,750 

46 .................................................. 3,860 

47 .................................................. 3,970 

48 .................................................. 4,080 

49 .................................................. 4,190 

50 .................................................. 4,300 

51 .................................................. 4,410 

52 .................................................. 4,520 

53 .................................................. 4,630 

54 .................................................. 4,740 

55 .................................................. 4,850 

56 .................................................. 4,960 

57 .................................................. 5,070 

58 .................................................. 5,180 

59 .................................................. 5,290 

60 .................................................. 5,400 

61 .................................................. 5,510 

62 .................................................. 5,620 

63 .................................................. 5,730 

64 .................................................. 5,840 

65 .................................................. 5,950 

66 .................................................. 6,060 

67 .................................................. 6,170 

68 .................................................. 6,280 

69 .................................................. 6,390 

70 .................................................. 6,500 

■ 3. In § 723.15, amend paragraph (b) by 

removing the dollar amount ‘‘$925’’ and 

adding in its place ‘‘$1,025.’’

Federal Register / Vol. 70, No. 224 / Tuesday, November 22, 2005 / Rules and Regulations 70701 

PART 724—INDIVIDUAL CIVIL 

PENALTIES 

■ 4. The authority citation for part 724 

is revised 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 shall not exceed 

$6,500 for each violation. * * * 

PART 845—CIVIL PENALTIES 

■ 6. The authority citation for part 845 

is revised 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 .................................................... 22 

2 .................................................... 54 

3 .................................................... 76 

4 .................................................... 108 

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

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

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

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

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

Points Dollars 

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

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

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

13 .................................................. 386 

14 .................................................. 408 

15 .................................................. 430 

16 .................................................. 452 

17 .................................................. 474 

18 .................................................. 496 

19 .................................................. 518 

20 .................................................. 540 

21 .................................................. 562 

22 .................................................. 584 

23 .................................................. 606 

24 .................................................. 628 

25 .................................................. 650 

26 .................................................. 760 

27 .................................................. 970 

28 .................................................. 1,080 

29 .................................................. 1,090 

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 .................................................. 3,750 

46 .................................................. 3,860 

47 .................................................. 3,970 

48 .................................................. 4,080 

49 .................................................. 4,190 

50 .................................................. 4,300 

51 .................................................. 4,410 

52 .................................................. 4,520 

53 .................................................. 4,630 

Points Dollars 

54 .................................................. 4,740 

55 .................................................. 4,850 

56 .................................................. 4,960 

57 .................................................. 5,070 

58 .................................................. 5,180 

59 .................................................. 5,290 

60 .................................................. 5,400 

61 .................................................. 5,510 

62 .................................................. 5,620 

63 .................................................. 5,730 

64 .................................................. 5,840 

65 .................................................. 5,950 

66 .................................................. 6,060 

67 .................................................. 6,170 

68 .................................................. 6,280 

69 .................................................. 6,390 

70 .................................................. 6,500 

■ 8. In Section 845.15, amend paragraph 

(b) by removing the dollar amount 

‘‘$925’’ and adding in its place 

‘‘$1,025.’’

PART 846—CIVIL PENALTIES 

■ 9. The authority citation for part 846 

is revised 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 shall not exceed 

$6,500 for each violation. * * * 

[FR Doc. 05–23015 Filed 11–21–05; 8:45 am] 

BILLING CODE 4310–05–P