[Federal Register Volume 82, Number 31 (Thursday, February 16, 2017)]
[Rules and Regulations]
[Pages 10864-10866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-03138]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary of the Interior
43 CFR Part 10
[NPS-WASO-NAGPRA-22726; GPO Deposit Acct. 4311H2]
RIN 1024-AE37
Civil Penalties Inflation Adjustments
AGENCY: Office of the Secretary, Interior.
ACTION: Final rule.
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SUMMARY: This rule revises U.S. Department of the Interior regulations
implementing the Native American Graves Protection and Repatriation Act
to provide for annual adjustments of civil penalties to account for
inflation under the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 and Office of Management and Budget guidance.
The purpose of these adjustments is to maintain the deterrent effect of
civil penalties and to further the policy goals of the underlying
statutes.
DATES: This rule is effective on February 16, 2017.
FOR FURTHER INFORMATION CONTACT: Melanie O'Brien, Manager, National
NAGPRA Program, National Park Service, 1849 C Street NW., Washington,
DC 20240.
SUPPLEMENTARY INFORMATION:
I. Background
On November 2, 2015, the President signed into law the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec.
701 of Pub. L. 114-74) (``the Act''). The 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 no later than January 15 of each year.
The Office of Management and Budget (OMB) issued guidance for
Federal agencies on calculating the catch-up adjustment. See February
24, 2016, Memorandum for the Heads of Executive Departments and
Agencies, from Shaun Donovan, Director, Office of Management and
Budget, re: Implementation of the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015 (M-16-06). Under the guidance,
the U.S. Department of the Interior (Department) identified applicable
civil monetary penalties and calculated the catch-up adjustment. 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, or fees for
services, licenses, permits, or other regulatory review. The calculated
catch-up adjustment was based on the percent change between the
Consumer Price Index for all Urban Consumers (CPI0-U) for the month of
October in the year of the previous adjustment (or in the year of
establishment, if no adjustment has been made) and the October 2015
CPI-U.
The Department issued an interim final rule providing for
calculated catch-up adjustments to civil monetary penalties contained
in regulations
[[Page 10865]]
implementing the Native American Graves Protection and Repatriation Act
(NAGPRA) on June 28, 2016 (81 FR 41858) and requested comments post-
promulgation. The Department issued a correcting amendment to the
interim final rule on September 20, 2016 (81 FR 64356) that adjusted
the following civil monetary penalties, effective on September 20,
2016:
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Description of the Current Catchup Adjusted
CFR citation penalty penalty adjustment penalty
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43 CFR 10.12(g)(2).................... Failure of Museum to $5,000 $1,428 $6,428
Comply.
43 CFR 10.12(g)(3).................... Continued Failure to 1,000 268 1,286
Comply Per Day.
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II. Calculation of Annual Adjustments
OMB recently issued guidance to assist Federal agencies in
implementing the annual adjustments required by the Act which agencies
must complete by January 15, 2017. See December 16, 2016, Memorandum
for the Heads of Executive Departments and Agencies, from Shaun
Donovan, Director, Office of Management and Budget, re: Implementation
of the 2017 annual adjustment pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (M-17-11). The
guidance states that the cost-of-living adjustment multiplier for 2017,
based on the Consumer Price Index (CPI-U) for the month of October
2016, not seasonally adjusted, is 1.01636. (The annual inflation
adjustments are based on the percent change between the October CPI-U
preceding the date of the adjustment, and the prior year's October CPI-
U. For 2017, OMB explains, October 2016 CPI-U (241.729) / October 2015
CPI-U (237.838) = 1.01636.) The guidance instructs agencies to complete
the 2017 annual adjustment by multiplying each applicable penalty by
the multiplier, 1.01636, and rounding to the nearest dollar. Further,
the guidance instructs agencies to apply the multiplier to the most
recent penalty amount that includes the catch-up adjustment required by
the Act.
The annual adjustment applies to all civil monetary penalties with
a dollar amount that are subject to the Act. This final rule adjusts
the following civil monetary penalties contained in the Department
regulations implementing NAGPRA for 2017 by multiplying 1.01636 (i.e.,
the cost-of-living adjustment multiplier for 2017) by each penalty
amount as updated by the catch-up adjustment made in 2016:
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Current
penalty Annual
CFR citation Description of the including adjustment Adjusted
penalty catch-up (multiplier) penalty
adjustment
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43 CFR 10.12(g)(2).................... Failure of Museum to $6,428 1.01636 $6,533
Comply.
43 CFR 10.12(g)(3).................... Continued Failure to 1,286 1.01636 1,307
Comply Per Day.
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Consistent with the Act, the adjusted penalty levels for 2017 will
take effect immediately upon the effective date of the adjustment. The
adjusted penalty levels for 2017 will apply to penalties assessed after
that date including, if consistent with agency policy, assessments
associated with violations that occurred on or after November 2, 2015.
The Act does not, however, change previously assessed penalties that
the Department is collecting or has collected. Nor does the Act change
an agency's existing statutory authorities to adjust penalties.
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866 and 13563)
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 rule in a manner consistent
with these requirements.
B. Regulatory Flexibility Act
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 RFA does not apply to this final rule
because the Office of the Secretary is not required to publish a
proposed rule for the reasons explained below in Section III.L.
C. 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) 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.
D. 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. A
[[Page 10866]]
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
E. Takings (E.O. 12630)
This rule does not effect a taking of private property or otherwise
have taking implications under Executive Order 12630. A takings
implication assessment is not required.
F. Federalism (E.O. 13132)
Under the criteria in section 1 of Executive Order 13132, this rule
does not have sufficient federalism implications to warrant the
preparation of a federalism summary impact statement. A federalism
summary impact statement is not required.
G. 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.
H. 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 Executive Order 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.
I. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the Office of Management and Budget 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.
J. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by a categorical exclusion. This
rule is excluded from the requirement to prepare a detailed statement
because it is a regulation of an administrative nature. (For further
information 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.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211. A Statement of Energy Effects is not
required.
L. Administrative Procedure Act
The Act requires agencies to publish annual inflation adjustments
by no later than January 15, 2017, and by no later than January 15 each
subsequent year, notwithstanding section 553 of the Administrative
Procedure Act (APA) (5 U.S.C. 553). OMB has interpreted this direction
to mean that the usual APA public procedure for rulemaking--which
includes public notice of a proposed rule, an opportunity for public
comment, and a delay in the effective date of a final rule--is not
required when agencies issue regulations to implement the annual
adjustments to civil penalties that the Act requires. Accordingly, we
are issuing the 2017 annual adjustments as a final rule without prior
notice or an opportunity for comment and with an effective date
immediately upon publication in the Federal Register.
List of Subjects in 43 CFR Part 10
Administrative practice and procedure, Hawaiian Natives, Historic
preservation, Indians--claims, Indians--lands, Museums, Penalties,
Public lands, Reporting and recordkeeping requirements.
For the reasons given in the preamble, the Office of the Secretary
amends 43 CFR part 10 as follows.
PART 10--NATIVE AMERICAN GRAVES PROTECTION AND REPATRIATION
REGULATIONS
0
1. The authority citation for part 10 continues to read as follows:
Authority: 16 U.S.C. 470dd; 25 U.S.C. 9, 3001 et seq.
Sec. 10.12 [Amended]
0
2. In Sec. 10.12, in paragraph (g)(2) introductory text, remove
``$6,428'' and add in its place ``$6,533'' and in paragraph (g)(3),
remove ``$1,286'' and add in its place ``$1,307''.
Maureen Foster,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 2017-03138 Filed 2-15-17; 8:45 am]
BILLING CODE 4312-52-P