[Federal Register Volume 86, Number 109 (Wednesday, June 9, 2021)]
[Rules and Regulations]
[Pages 30548-30550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-12053]


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DEPARTMENT OF THE INTERIOR

Bureau of Land Management

43 CFR Parts 3160 and 9230

[212.LLHQ310000.L13100000.PP0000]
RIN 1004-AE77


Onshore Oil and Gas Operations and Coal Trespass--Annual Civil 
Penalties Inflation Adjustments

AGENCY: Bureau of Land Management, Interior.

ACTION: Final rule.

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SUMMARY: This final rule adjusts the level of civil monetary penalties 
contained in the Bureau of Land Management's (BLM) regulations 
governing onshore oil and gas operations and coal trespass as required 
by the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 and consistent with applicable Office of Management and 
Budget (OMB) guidance. The oil and gas operations penalty adjustments 
made by this final rule constitute the 2021 annual inflation 
adjustments, accounting for 1 year of inflation spanning the period 
from October 2019 through October 2020. The coal trespass inflation 
adjustments in this rule include the initial ``catch-up'' adjustment 
for 2016, and the annual adjustments for years 2017 to 2021.

DATES: This rule is effective on June 9, 2021.

FOR FURTHER INFORMATION CONTACT: For information regarding the BLM's 
Fluid Minerals Program, please contact Donna Dixon, Division Chief, 
Fluid Minerals Division, telephone: 505-954-2032; email: 
<a href="/cdn-cgi/l/email-protection#573335333e2f383917353b3a79303821"><span class="__cf_email__" data-cfemail="a2c6c0c6cbdacdcce2c0cecf8cc5cdd4">[email protected]</span></a>. For information regarding the BLM's Solid Minerals 
Program, please contact Lindsey Curnutt, Division Chief, Solid Minerals 
Division, telephone: 775-824-2910; email: <a href="/cdn-cgi/l/email-protection#6b07081e19051e1f1f2b090706450c041d"><span class="__cf_email__" data-cfemail="55393620273b202121153739387b323a23">[email protected]</span></a>. For 
questions relating to regulatory process issues, please contact 
Jennifer Noe, Division of Regulatory Affairs, email: <a href="/cdn-cgi/l/email-protection#3b5155545e7b595756155c544d"><span class="__cf_email__" data-cfemail="e98387868ca98b8584c78e869f">[email protected]</span></a>. 
Persons who use a telecommunications device for the deaf (TDD) may call 
the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, 7 
days a week to contact the above individuals.

SUPPLEMENTARY INFORMATION:
I. Background
II. Calculation of 2021 Adjustments
III. Procedural Requirements
    A. Administrative Procedure Act
    B. Regulatory Planning and Review (E.O. 12866 and E.O. 13563)
    C. Regulatory Flexibility Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act
    F. Takings (E.O. 12630)
    G. Federalism (E.O. 13132)
    H. Civil Justice Reform (E.O. 12988)
    I. Consultation With Indian Tribes (E.O. 13175 and Departmental 
Policy)
    J. Paperwork Reduction Act
    K. National Environmental Policy Act
    L. Effects on the Energy Supply (E.O. 13211)

I. Background

    On November 2, 2015, the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74) 
(the 2015 Act) became law, amending the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410).
    The 2015 Act requires agencies to:
    1. Adjust the level of civil monetary penalties for inflation with 
an initial ``catch-up'' adjustment through an interim final rulemaking 
in 2016;
    2. Make subsequent annual adjustments for inflation beginning in 
2017; and
    3. Report annually in Agency Financial Reports on these inflation 
adjustments.
    The purpose of these adjustments is to maintain the deterrent 
effect of civil monetary penalties and promote compliance with the law 
(see Sec. 1, Pub. L. 101-410).
    As required by the 2015 Act, the BLM issued an interim final rule 
that adjusted the level of civil monetary penalties in BLM regulations 
with the initial ``catch-up'' adjustment (RIN 1004-AE46, 81 FR 41860), 
which was published on June 28, 2016, and became effective on July 28, 
2016. On January 19, 2017, the BLM published a final rule (RIN 1004-
AE49, 82 FR 6305) updating the civil penalty amounts to the 2017 annual 
adjustment levels. Final rules updating the civil penalty amounts to 
2018, 2019, and 2020 annual adjustment levels were published in 
subsequent years (RIN 1004-AE51, 83 FR 3992; RIN 1004-AE56, 84 FR 
22379; and RIN 1004-AE77, 85 FR 10617, respectively).
    OMB issued Memorandum M-21-10 on December 23, 2020, (Implementation 
of Penalty Inflation Adjustments for 2021, Pursuant to the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015) 
explaining agency responsibilities for identifying applicable penalties 
and calculating the annual adjustment for 2021 in accordance with the 
2015 Act.

II. Calculation of 2021 Adjustment

    In accordance with the 2015 Act and OMB Memorandum M-21-10, the BLM 
has identified applicable civil monetary penalties in its regulations 
and calculated the annual adjustments. A civil monetary penalty is any 
assessment with a dollar amount that is levied for a violation of a 
Federal civil statute or regulation and is assessed or enforceable 
through a civil action in Federal court or an administrative 
proceeding. A civil monetary penalty does not include a penalty levied 
for violation of a criminal statute, nor does it include fees for 
services, licenses, permits, or other regulatory review. The calculated 
annual inflation adjustments are based on the percentage change between 
the Consumer Price Index for all Urban Consumers (CPI-U) for the 
October preceding the date of the adjustment, and the prior year's 
October CPI-U. Consistent with guidance in OMB Memorandum M-21-10, the 
BLM divided the October 2020 CPI-U by the October 2019 CPI-U to 
calculate the

[[Page 30549]]

multiplier. In this case, October 2020 CPI-U (260.388)/October 2019 
CPI-U (257.346) = 1.01182. OMB Memorandum M-21-10 confirms that this is 
the proper multiplier. (OMB Memorandum M-21-10 at 1 and n.4.)
    The 2015 Act requires the BLM to adjust the civil penalty amounts 
in 43 CFR 3163.2 and 43 CFR 9239.5-3(f)(1). To accomplish this, the BLM 
multiplied the current penalty amounts in 43 CFR 3163.2(b)(1) and (2), 
(d), (e), and (f) by the multiplier set forth in OMB Memorandum M-21-10 
(1.01182) to obtain the adjusted penalty amounts. The 2015 Act requires 
that the resulting amounts be rounded to the nearest $1.00 at the end 
of the calculation process.
    This year's adjustments include 43 CFR 9239.5-3(f)(1), which 
provides for a penalty of not more than $1,000 for each day of 
violation for willfully conducting coal exploration for commercial 
purposes without an exploration license. This provision meets the 
criteria for annual adjustments under the 2015 Act but was 
inadvertently omitted in previous adjustments. Consistent with OMB 
Memorandum M-16-06 (February 24, 2016), the adjusted penalty amount was 
calculated by applying the initial ``catch-up'' adjustment based on the 
percent change between the CPI-U for 1977, the year the current penalty 
amount was established by regulation, and the October 2015 CPI-U, 
giving a catch-up adjustment multiplier of 3.86101 for 2016. After 
applying the initial catch-up adjustment multiplier, that amount was 
multiplied by 1.09481 to reflect the combined annual inflation 
adjustments for 2017 to 2021, giving an adjusted penalty of $4,227.00.
    The adjusted penalty amounts will take effect immediately upon 
publication of this rule. Pursuant to the 2015 Act, the adjusted civil 
penalty amounts apply to civil penalties assessed after the date the 
increase takes effect, even if the associated violation predates such 
increase. This final rule adjusts the following civil penalties:

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                                                                                      Current        Adjusted
                CFR citation                      Description of the penalty          penalty         penalty
----------------------------------------------------------------------------------------------------------------
43 CFR 3163.2(b)(1)........................  Failure to comply..................          $1,115          $1,128
43 CFR 3163.2(b)(2)........................  If corrective action is not taken..          11,160          11,292
43 CFR 3163.2(d)...........................  If transporter fails to permit                1,115           1,128
                                              inspection for documentation.
43 CFR 3163.2(e)...........................  Failure to permit inspection,                22,320          22,584
                                              failure to notify.
43 CFR 3163.2(f)...........................  False or inaccurate documents;               55,800          56,460
                                              unlawful transfer or purchase.
43 CFR 9239.5-3(f)(1)......................  Coal exploration for commercial               1,000           4,227
                                              purposes without an exploration
                                              license.
----------------------------------------------------------------------------------------------------------------

III. Procedural Requirements

A. Administrative Procedure Act

    In accordance with the 2015 Act, agencies must adjust civil 
monetary penalties ``notwithstanding Section 553 of the Administrative 
Procedure Act'' (sec. 4(b)(2), 2015 Act). The BLM is promulgating this 
2021 inflation adjustment for civil penalties as a final rule pursuant 
to the provisions of the 2015 Act and OMB guidance. A proposed rule is 
not required because the 2015 Act expressly exempts the annual 
inflation adjustments from the notice and comment requirements of the 
Administrative Procedure Act. In addition, since the 2015 Act does not 
give the BLM any discretion to vary the amount of the annual inflation 
adjustment for any given penalty to reflect any views or suggestions 
provided by commenters, it would serve no purpose to provide an 
opportunity for public comment on this rule.

B. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs (OIRA) in the OMB will review all 
significant rules. OIRA has determined that this rule is not 
significant. (See OMB Memorandum M-21-10 at 3).
    E.O. 13563 reaffirms the principles of E.O. 12866 while calling for 
improvements in the nation's regulatory system to promote 
predictability and to reduce uncertainty and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
E.O. 13563 directs agencies to consider regulatory approaches that 
reduce burdens and maintain flexibility and freedom of choice for the 
public where these approaches are relevant, feasible, and consistent 
with regulatory objectives. E.O. 13563 emphasizes further that 
regulations must be based on the best available science, and that the 
rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements to the extent permitted by the 2015 Act.

C. 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 2015 Act expressly exempts these annual 
inflation adjustments from the requirement to publish a proposed rule 
for notice and comment (see sec. 4(b)(2), 2015 Act). Because the final 
rule in this case does not include publication of a proposed rule, the 
RFA does not apply to this final rule.

D. 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; and
    (c) Will not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
    This rule will potentially affect individuals and companies who 
conduct operations on oil and gas leases or who explore for coal for 
commercial purposes without an exploration license on Federal or Indian 
lands. The BLM believes that the vast majority of potentially affected 
entities will be small businesses as defined by the Small Business 
Administration. However, the BLM does not believe the rule will pose a 
significant economic impact on the oil and gas or coal industries, 
including any small entities, as any lessee or trespasser can avoid 
being assessed civil penalties by operating in compliance with BLM 
rules and regulations.

[[Page 30550]]

E. 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. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

F. Takings (E.O. 12630)

    This rule does not effect a taking of private property or otherwise 
have takings implications under E.O. 12630. Therefore, a takings 
implication assessment is not required.

G. Federalism (E.O. 13132)

    Under the criteria in section 1 of E.O. 13132, this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. Therefore, a federalism summary 
impact statement is not required.

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

    This rule complies with the requirements of E.O. 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.

I. Consultation With Indian Tribes (E.O. 13175 and Departmental Policy)

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Indian tribes through a 
commitment to consultation with Indian tribes and recognition of their 
right to self-governance and tribal sovereignty. We have evaluated this 
rule under the Department's consultation policy and under the criteria 
in E.O. 13175 and have determined that it has no substantial direct 
effects on federally recognized Indian tribes and that consultation 
under the Department's tribal consultation policy is not required.

J. Paperwork Reduction Act

    This rule does not contain information collection requirements, and 
a submission to OMB 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.

K. National Environmental Policy Act

    A detailed statement under the National Environmental Policy Act of 
1969 (NEPA) is not required because, as a regulation of an 
administrative nature, the rule is covered by a categorical exclusion 
(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.

L. Effects on the Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in E.O. 13211. Therefore, a Statement of Energy Effects is not 
required.

List of Subjects

43 CFR Part 3160

    Administrative practice and procedure, Government contracts, 
Indians-lands, Mineral royalties, Oil and gas exploration, Penalties, 
Public lands-mineral resources, Reporting and recordkeeping 
requirements.

43 CFR Part 9230

    Penalties, Public lands.

    For the reasons given in the preamble, the BLM amends chapter II of 
title 43 of the Code of Federal Regulations as follows:

PART 3160--ONSHORE OIL AND GAS OPERATIONS

0
1. The authority citation for part 3160 continues to read as follows:

    Authority: 25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 
1751; 43 U.S.C. 1732(b), 1733, 1740; and Sec. 107, Pub. L. 114-74, 
129 Stat. 599, unless otherwise noted.

Subpart 3163--Noncompliance, Assessments, and Penalties


Sec.  3163.2  [Amended]

0
2. In Sec.  3163.2:
0
a. In paragraph (b)(1), remove ``$1,115'' and add in its place 
``$1,128''.
0
b. In paragraph (b)(2), remove ``$11,160'' and add in its place 
``$11,292''.
0
c. In paragraph (d), remove ``$1,115'' and add in its place ``$1,128''.
0
d. In paragraph (e) introductory text, remove ``$22,320'' and add in 
its place ``$22,584''.
0
e. In paragraph (f) introductory text, remove ``$55,800'' and add in 
its place ``$56,460''.

PART 9230--TRESPASS

0
3. The authority citation for part 9230 is revised to read as follows:

    Authority:  R.S. 2478 and 43 U.S.C. 1201.

Subpart 9239--Kinds of Trespass


Sec.  9239.5-3  [Amended]

0
4. In Sec.  9239.5-3(f)(1), remove ``$1,000'' and add in its place 
``$4,227''.

Laura Daniel-Davis,
Principal Deputy Assistant Secretary, Land and Minerals Management.
[FR Doc. 2021-12053 Filed 6-8-21; 8:45 am]
BILLING CODE 4310-84-P


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