[Federal Register Volume 81, Number 124 (Tuesday, June 28, 2016)]
[Rules and Regulations]
[Pages 41862-41866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15268]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 11
[Docket No. FWS-HQ-LE-2016-0045; FF09L00200-FX-LE18110900000]
RIN 1018-BB32
Civil Penalties; Inflation Adjustments for Civil Monetary
Penalties
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Interim rule.
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SUMMARY: The U.S. Fish and Wildlife Service (Service or we) is revising
our
[[Page 41863]]
civil procedure regulations. The regulations provide uniform rules and
procedures for the assessment of civil penalties resulting from
violations of certain laws and regulations enforced by the Service. We
are issuing this interim rule, in accordance with the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation
Adjustment Act) and Office of Management and Budget (OMB) guidance, to
adjust for inflation in the statutory civil monetary penalties that may
be assessed for violations of Service-administered statutes and their
implementing regulations. We are required to adjust civil monetary
penalties as necessary for inflation according to a formula specified
in the Inflation Adjustment Act. This interim rule also revises the
authority citation of part 11, updates the scope of the regulations,
and corrects the address for the Departmental Cases Hearings Division,
Office of Hearings and Appeals, U.S. Department of the Interior.
DATES: This interim rule is effective July 28, 2016. We will accept
comments on this interim rule received or postmarked on or before
August 29, 2016.
ADDRESSES: You may submit comments by one of the following methods:
Federal eRulemaking portal at: http://www.regulations.gov.
Follow the instructions for submitting comments to Docket No. FWS-HQ-
LE-2016-0045.
U.S. mail or hand-delivery: Public Comments Processing,
Attn: FWS-HQ-LE-2016-0045; Division of Policy, Performance, and
Management Programs; U.S. Fish and Wildlife Service; 5275 Leesburg
Pike, MS: BPHC, Falls Church, VA 22041-3803.
We will not accept email or faxes. We will post all comments on http://www.regulations.gov. This generally means that we will post any
personal information that you provide to us (see Public Comments,
below, for more information).
FOR FURTHER INFORMATION CONTACT: Paul Beiriger, Special Agent in
Charge, Branch of Investigations, U.S. Fish and Wildlife Service,
Office of Law Enforcement, (703) 358-1949.
SUPPLEMENTARY INFORMATION:
Background
The regulations at 50 CFR part 11 provide uniform rules and
procedures for the assessment of civil penalties resulting from
violations of certain laws and regulations enforced by the Service.
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) (Inflation Adjustment Act). The Inflation
Adjustment Act requires Federal agencies to adjust the level of civil
monetary penalties with an initial ``catch up'' adjustment through
rulemaking and then make subsequent annual adjustments for inflation.
The purpose of these adjustments is to maintain the deterrent effect of
civil penalties and to further the policy goals of the underlying
statutes.
Under section 4 of the Federal Civil Penalties Inflation Adjustment
Act of 1990, 28 U.S.C. 2461 note, as amended by the Inflation
Adjustment Act, Public Law 114-74, 129 Stat. 584 (2015), each Federal
agency is required to issue regulations adjusting for inflation the
statutory civil monetary penalties (civil penalties) that can be
imposed under the laws administered by that agency. The Inflation
Adjustment Act provides for an initial ``catch up adjustment'' to take
effect no later than August 1, 2016, followed by subsequent adjustments
to be made no later than January 15 every year thereafter. This interim
rule adjusts, in accordance with the Inflation Adjustment Act, the
maximum amount of each statutory penalty that may be imposed for
violations of Service-administered statutes and their implementing
regulations. Section 11.33 identifies the applicable Service-
administered statutes and sets out the inflation-adjusted civil penalty
amounts that may be imposed pursuant to each statutory provision. The
adjusted penalty amounts are applicable to civil penalties assessed
after the Inflation Adjustment Act takes effect.
The Inflation Adjustment Act provides for determining the initial
catch up adjustment by first determining the cost-of-living adjustment
(COLA), which is defined in section 5 of the Inflation Adjustment Act
as the percentage (if any) for each civil monetary penalty by which the
Consumer Price Index (CPI) for the month of October 2015 exceeds the
CPI for the month of October of the calendar year during which the
amount of such civil monetary penalty was established or adjusted under
a provision of law other than this Act. The Inflation Adjustment Act
further provides that the initial catch up adjustment shall not exceed
150 percent of the amount of that civil monetary penalty on the date of
the enactment of the Inflation Adjustment Act. The CPI is defined in
the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C.
2461 note, as the CPI for all-urban consumers published by the
Department of Labor.
Once the COLA is determined, the current civil penalty is adjusted
accordingly. For instance, the current maximum civil penalty amount
under the Bald and Golden Eagle Protection Act (BGEPA) is $5,000, see
16 U.S.C. 668(b), which was last adjusted in 1972. The CPI in October
1972 was 42.3 as compared to the CPI in October 2015, which was
237.838. This represents an increase of over 150 percent, but since the
Inflation Adjustment Act caps the initial catch up adjustment at 150
percent, the COLA adjustment for civil penalties under BGEPA will be
150 percent. Thus, the current civil penalty of $5,000 under BGEPA will
increase to $12,500 once this regulation becomes effective, as
described below.
OMB issued a memorandum, M-16-06, entitled ``Implementation of the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015,'' which provides in Table A the civil penalty catch-up adjustment
multiplier by calendar year. The Appendix to OMB's memorandum provides
step-by-step instructions for determining the catch up adjustment, and
the Service determined the adjustments accordingly.
Public Comments
You may submit your comments and materials concerning this interim
rule by one of the methods listed in ADDRESSES. We request that you
send comments only by the methods described in ADDRESSES. We will not
consider hand-delivered comments that we do not receive, or mailed
comments that are not postmarked, by the date specified in DATES. If
you submit information via http://www.regulations.gov, your entire
submission, including any personal identifying information, will be
posted on the Web site. If your submission is made via a hard copy that
includes personal identifying information, you may request at the top
of your document that we withhold this information from public review.
However, we cannot guarantee that we will be able to do so. We will
post all hard copy submissions on http://www.regulations.gov.
Comments and materials we receive, as well as supporting
documentation we used in preparing this interim rule, will be available
for public inspection on http://www.regulations.gov, or by appointment,
during normal business hours, at the U.S. Fish and Wildlife Service,
Office of Law Enforcement (see FOR FURTHER INFORMATION CONTACT).
Clarity of the Rule
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
[[Page 41864]]
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in ADDRESSES. To better help us
revise the rule, your comments should be as specific as possible. For
example, you should tell us the numbers of the sections or paragraphs
that are unclearly written, which sections or sentences are too long,
the sections where you feel lists or tables would be useful, etc.
Required Determinations
Executive Orders 12866 and 13563 (Regulatory Planning and Review)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget will review
all significant rules. The Office of Information and Regulatory Affairs
has determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The executive order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. 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 interim rule in a manner
consistent with these requirements.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
The Regulatory Flexibility Act (RFA) requires an agency to prepare
a regulatory flexibility analysis for 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 Inflation Adjustment Act requires
agencies to adjust civil penalties with an initial catch up adjustment
through an interim rule. An interim rule does not include first
publishing a proposed rule. Thus, the RFA does not apply to this rule.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
This interim rule is not a major rule under 5 U.S.C. 804(2), the
Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million
or more.
(b) Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
(c) Does 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.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
Under the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.),
this interim rule will not ``significantly or uniquely'' affect small
governments.
a. This interim rule will not significantly or uniquely affect
small governments. A Small Government Agency Plan is not required.
We are the lead agency for enforcing numerous conservation acts and
executive orders, for regulating wildlife trade through the declaration
process, for issuing permits to conduct activities affecting wildlife
and their habitats, and for carrying out U.S. obligations under the
Convention on International Trade in Endangered Species of Wild Fauna
and Flora (CITES). No small government assistance or impact is expected
as a result of this interim rule.
b. This interim rule will not produce a Federal requirement that
may result in the combined expenditure by State, local, or tribal
governments of $100 million or greater in any year, so it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act.
This interim rule will not result in any combined expenditure by
State, local, or tribal governments.
Executive Order 12630 (Takings)
Under Executive Order 12630, this interim rule does not have
significant takings implications. Under Executive Order 12630, this
interim rule does not affect any constitutionally protected property
rights. This interim rule has no private property takings implications
as defined in Executive Order 12630. This executive order specifically
exempts civil procedures for violations of law.
Executive Order 13132 (Federalism)
Under Executive Order 13132, this interim rule does not have
significant Federalism effects. A federalism summary impact statement
is not required. This interim rule will not have a substantial direct
effect on the States, on the relationship between the Federal
government and the States, or on the distribution of power and
responsibilities among the various levels of government.
Executive Order 12988 (Civil Justice Reform)
Under Executive Order 12988, the Department of the Interior has
determined that this interim rule does not overly burden the judicial
system and meets the requirements of sections 3(a) and 3(b)(2) of the
Order. The purpose of this interim rule is to adjust for inflation the
statutory civil monetary penalties that may be assessed for violations
of Service-administered statutes and their implementing regulations.
Specifically, this interim rule has been reviewed to eliminate errors
and ensure clarity, has been written to minimize lawsuits, provides a
clear legal standard for affected actions, and specifies in clear
language the effect on existing Federal law or regulation.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This interim rule does not contain any information collection
requirements that require approval by the Office of Management and
Budget (OMB) under the Paperwork Reduction Act. We may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.
National Environmental Policy Act (42 U.S.C. 4321 et seq.)
This interim rule has been analyzed under the criteria of the
National Environmental Policy Act (NEPA) and part 516, chapter 8 of the
Departmental Manual (DM) (516 DM 8). This interim rule does not amount
to a major Federal action significantly affecting the quality of the
human environment. Neither an environmental impact statement nor an
environmental assessment is required. This interim rule is
categorically excluded from further NEPA requirements, under 43 CFR
46.210. This categorical exclusion addresses policies, directives,
regulations, and guidelines that are of an administrative, financial,
legal, technical, or procedural
[[Page 41865]]
nature and whose environmental effects are too broad, speculative, or
conjectural to lend themselves to meaningful analysis under NEPA.
Executive Order 13175 (Tribal Consultation) and 512 DM 2 (Government-
to-Government Relationship With Tribes)
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. Under the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951), Executive Order
13175, and 512 DM 2, we have evaluated possible effects on federally
recognized Indian tribes and have determined that there are no adverse
effects. For violations of certain laws and regulations enforced by the
Service, individual tribal members are subject to the same civil
procedures as other individuals.
Executive Order 13211 (Energy Supply, Distribution, or Use)
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, or
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This interim rule
applies only to U.S. Government civil procedures, it is not a
significant regulatory action under Executive Order 12866, and it is
not expected to significantly affect energy supplies, distribution, or
use. Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Administrative Procedure Act
The Inflation Adjustment Act requires Federal agencies to publish
interim rules by July 1, 2016, with an effective date for the adjusted
penalties no later than August 1, 2016. To comply with the Inflation
Adjustment Act, we are issuing these regulations as an interim rule and
are requesting comments after publication. Section 553(b) of the
Administrative Procedure Act (APA) provides that, when an agency for
good cause finds that notice and public procedure are impracticable,
unnecessary, or contrary to the public interest, the agency may issue a
rule without providing notice and an opportunity for prior public
comment. The Service finds that there is good cause to issue this
interim rule without first providing for public comment. It would not
be possible to meet the deadlines imposed by the Inflation Adjustment
Act if we were to first publish a proposed rule, allow the public
sufficient time to submit comments, analyze the comments, and publish a
final rule. The Service is issuing this interim rule to implement the
statutory directive in the Inflation Adjustment Act, which requires
agencies to publish an interim rule and to update the civil penalty
amounts by applying a specified formula. The Service has no discretion
to vary the amount of the adjustment to reflect any views or
suggestions provided by commenters. Accordingly, it would serve no
purpose to provide an opportunity for public comment prior to
publication of this rule. Thus, pre-publication notice and public
comment is impracticable and unnecessary. This rule will also update
the address for the Office of Hearings and Appeals in sections 11.15,
11.25, and 11.26. Since these updates are merely ministerial, we find
that pre-publication notice and public comment with respect to those
revisions is unnecessary.
List of Subjects in 50 CFR Part 11
Administrative practice and procedure, Exports, Fish, Imports,
Penalties, Plants, Transportation, Wildlife.
Regulation Promulgation
For the reasons described above, we amend part 11, subchapter B of
chapter I, title 50 of the Code of Federal Regulations as set forth
below.
PART 11--CIVIL PROCEDURES
0
1. The authority citation for part 11 is revised to read as follows:
Authority: 16 U.S.C. 470aa-470mm, 470aaa-470aaa-11, 668-668d,
1361-1384, 1401-1407, 1531-1544, 3371-3378, 4201-4245, 4901-4916,
5201-5207, 5301-5306; 18 U.S.C. 42-43; 25 U.S.C. 3001-3013; and Sec.
107, Pub. L. 114-74, 129 Stat. 599, unless otherwise noted.
0
2. Revise Sec. 11.2 to read as follows:
Sec. 11.2 Scope of regulations.
The regulations contained in this part apply only to actions
arising under the following laws and regulations issued thereunder:
(a) Lacey Act, 18 U.S.C. 42-43;
(b) Lacey Act Amendments of 1981, 16 U.S.C. 3371 et seq.;
(c) Bald and Golden Eagle Protection Act, 16 U.S.C. 668-668d;
(d) Endangered Species Act of 1973, 16 U.S.C. 1531 et seq.;
(e) Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq.;
(f) African Elephant Conservation Act, 16 U.S.C. 4201 et seq.;
(g) Rhinoceros and Tiger Conservation Act, 16 U.S.C. 5301 et seq.;
(h) Archaeological Resources Protection Act, 16 U.S.C. 470aa et
seq.;
(i) Paleontological Resources Protection Act, 16 U.S.C. 470aaa et
seq.;
(j) The Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001 et seq.;
(k) Recreational Hunting Safety Act of 1994, 16 U.S.C. 5201 et
seq.; and
(l) Wild Bird Conservation Act, 16 U.S.C. 4901 et seq.
0
3. Revise Sec. 11.15 to read as follows:
Sec. 11.15 Request for a hearing.
Except where a right to request a hearing is deemed to have been
waived as provided in Sec. 11.11, the respondent may, within 45
calendar days from the date of the notice of assessment referred to in
Sec. 11.14, file a dated, written request for a hearing with the
Departmental Cases Hearings Division, Office of Hearings and Appeals,
U.S. Department of the Interior, 351 South West Temple, Suite 6.300,
Salt Lake City, Utah 84101.
0
4. Amend Sec. 11.25 by revising paragraph (a) to read as follows:
Sec. 11.25 Appeal.
(a) Either the respondent or the Director may seek an appeal from
the decision of an administrative law judge rendered subsequent to
January 1, 1974, by the filing of a ``Notice of Request for Appeal''
with the Director, Office of Hearings and Appeals, U.S. Department of
the Interior, 351 South West Temple, Suite 6.300, Salt Lake City, Utah
84101, within 30 calendar days of the date of the administrative law
judge's decision. Such notice shall be accompanied by proof of service
on the administrative law judge and the opposing party.
* * * * *
0
5. Revise Sec. 11.26 to read as follows:
Sec. 11.26 Reporting service.
Copies of decisions in civil penalty proceedings instituted under
statutes referred to in subpart A of this part and rendered subsequent
to June 3, 1970, may be obtained by letter of request addressed to the
Director, Office of Hearings and Appeals, U.S. Department of the
Interior, 351 South West Temple, Suite 6.300, Salt Lake City, Utah
84101. Fees for this service shall be as established by the Director of
that Office.
0
6. Add a new subpart D to part 11 to read as follows:
[[Page 41866]]
Subpart D--Civil Monetary Penalty Inflation Adjustments
Sec.
11.31 Definitions.
11.32 Purpose and scope.
11.33 Adjustments to penalties.
11.34 Subsequent adjustments.
Subpart D--Civil Monetary Penalty Inflation Adjustments
Sec. 11.31 Definitions.
(a) Civil monetary penalty means any penalty, fine, or other
sanction that:
(1)(i) Is for a specific monetary amount as provided by Federal
law; or
(ii) Has a maximum amount provided for by Federal law;
(2) Is assessed or enforced by an agency pursuant to Federal law;
and
(3) Is assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts.
(b) Inflation Adjustment Act means the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74,
November 2, 2015, 129 Stat. 584, 28 U.S.C. 2461 note).
Sec. 11.32 Purpose and scope.
The purpose of this part is to make the inflation adjustment,
described in and required by the Inflation Adjustment Act, of each
civil monetary penalty provided by law within the jurisdiction of the
U.S. Fish and Wildlife Service.
Sec. 11.33 Adjustments to penalties.
The civil monetary penalties provided by law within the
jurisdiction of the U.S. Fish and Wildlife Service are adjusted as
follows:
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Maximum civil
Law Citation Type of violation monetary
penalty
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(a) African Elephant Conservation 16 U.S.C. 4224(b)..................... Any violation....... $9,893
Act.
(b) Bald and Golden Eagle 16 U.S.C. 668(b)...................... Any violation....... 12,500
Protection Act.
(c) Endangered Species Act of 1973 16 U.S.C. 1540(a)(1).................. (1) Knowing 49,467
violation of
section 1538.
(2) Other knowing 23,744
violation.
(3) Any other 1,250
violation.
(d) Lacey Act Amendments of 1981.. 16 U.S.C. 3373(a)..................... (1) Violations 25,000
referred to in 16
U.S.C. 3373(a)(1).
(2) Violations 625
referred to in 16
U.S.C. 3373(a)(2).
(e) Marine Mammal Protection Act 16 U.S.C. 1375........................ Any violation....... 25,000
of 1972.
(f) Recreational Hunting Safety 16 U.S.C. 5202(b)..................... (1) Violation 15,909
Act of 1994. involving use of
force or violence
or threatened use
of force or
violence.
(2) Any other 7,954
violation.
(g) Rhinoceros and Tiger 16 U.S.C. 5305a(b)(2)................. Any violation....... 17,403
Conservation Act of 1998.
(h) Wild Bird Conservation Act.... 16 U.S.C. 4912(a)(1).................. (1) Violation of 41,932
section 4910(a)(1),
section 4910(a)(2),
or any permit
issued under
section 4911.
(2) Violation of 20,127
section 4910(a)(3).
(3) Any other 839
violation.
----------------------------------------------------------------------------------------------------------------
Sec. 11.34 Subsequent adjustments.
The Secretary of the Interior or his or her designee will, every
year after August 1, 2016, make the inflation adjustment described in
and required by the Inflation Adjustment Act of each civil monetary
penalty provided by law and within the jurisdiction of the U.S. Fish
and Wildlife Service. Each annual adjustment will be reflected in the
table in Sec. 11.33.
Dated: June 21, 2016.
Michael J. Bean,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2016-15268 Filed 6-27-16; 8:45 am]
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