[Federal Register Volume 83, Number 42 (Friday, March 2, 2018)]
[Rules and Regulations]
[Pages 8930-8933]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-04248]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Parts 550 and 553
[Docket ID: BOEM-2017-0079; MMAA104000]
RIN 1010-AD99
Oil and Gas and Sulfur Operations in the Outer Continental
Shelf--Civil Penalties Inflation Adjustments
AGENCY: Bureau of Ocean Energy Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule implements the 2018 adjustment of the level of
the maximum civil monetary penalties contained in the Bureau of Ocean
Energy Management (BOEM) regulations pursuant to the Outer Continental
Shelf Lands Act (OCSLA), the Oil Pollution Act of 1990 (OPA), the
Federal Civil
[[Page 8931]]
Penalties Inflation Adjustment Act Improvements Act of 2015 (FCPIA of
2015), and the Office of Management and Budget (OMB) guidance. The 2018
adjustment multiplier of 1.02041 accounts for one year of inflation
spanning the period from October 2016 through October 2017.
DATES: This rule is effective on March 2, 2018.
FOR FURTHER INFORMATION CONTACT: Deanna Meyer-Pietruszka, Chief, Office
of Policy, Regulation and Analysis, Bureau of Ocean Energy Management,
at (202) 208-6352 or by email at [email protected].
SUPPLEMENTARY INFORMATION:
I. Background and Legal Authority
II. Calculation of 2018 Adjustments
III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
B. Regulatory Flexibility Act
C. Small Business Regulatory Enforcement Fairness Act
D. Unfunded Mandates Reform Act
E. Takings (E.O. 12630)
F. Federalism (E.O. 13132)
G. Civil Justice Reform (E.O. 12988)
H. Consultation With Indian Tribes (E.O. 13175 and Departmental
Policy)
I. Paperwork Reduction Act
J. National Environmental Policy Act
K. Effects on the Energy Supply (E.O. 13211)
I. Background and Legal Authority
The Outer Continental Shelf Lands Act (OCSLA) directs the Secretary
of the Interior to adjust the OCSLA maximum civil penalty amount at
least once every three years to reflect any increase in the Consumer
Price Index to account for inflation (43 U.S.C. 1350(b)(1)). The
Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 104-
410) (FCPIA of 1990) requires that all civil monetary penalties,
including the OCSLA maximum civil penalty amount, be adjusted at least
once every four years.
Similarly, the Oil Pollution Act of 1990 (OPA) authorizes the
Secretary of the Interior to impose civil penalties for failure to
comply with financial responsibility regulations that implement OPA.
The FCPIA of 1990 requires that all civil monetary penalties, including
the OPA maximum civil penalty amount, be adjusted for inflation at
least once every four years.
The FCPIA of 2015 requires Federal agencies to promulgate annual
inflation adjustments for civil monetary penalties. Specifically,
agencies are required to adjust the level of civil monetary penalties
with an initial ``catch-up'' adjustment through an interim final
rulemaking (IFR) in 2016, and must make subsequent annual adjustments
for inflation, beginning in 2017. Agencies were required to publish the
first annual inflation adjustments in the Federal Register by no later
than January 15, 2017, and must publish recurring annual inflation
adjustments by no later than January 15 each subsequent year. The
purpose of these adjustments is to maintain the deterrent effect of
civil penalties and to further the policy goals of the underlying
statutes.
BOEM last adjusted the levels of civil monetary penalties in BOEM
regulations through a final rule, RIN 1010-AD95 [82 FR 10709], which
was published on February 15, 2017.
The OMB Memorandum M-18-03, issued December 15, 2017,
(Implementation of Penalty Inflation Adjustments for 2018, Pursuant to
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015; https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf) explains agency statutory responsibilities for: Identifying
applicable penalties and performing the annual adjustment; publishing
revisions to regulations to implement the adjustment in the Federal
Register; applying adjusted penalty levels; and performing agency
oversight of inflation adjustments.
BOEM is promulgating this 2018 inflation adjustment for civil
penalties as a final rule pursuant to the provisions of the FCPIA of
2015 and OMB guidance. A proposed rule is not required because the
FCPIA of 2015 states that agencies shall adjust civil monetary
penalties ``notwithstanding Section 553 of the Administrative Procedure
Act.'' (FCPIA of 2015 at sec. 4(b)(2)). Accordingly, Congress expressly
exempted the annual inflation adjustments implemented pursuant to the
FCPIA of 2015 from the pre-promulgation notice and comment requirements
of the Administrative Procedure Act (APA), allowing them to be
published as a final rule. This interpretation of the statute is
confirmed by OMB Memorandum M-18-03. (OMB Memorandum M-18-03 at 4
(``This means that the public procedure the APA generally requires--
notice, an opportunity for comment, and a delay in effective date--is
not required for agencies to issue regulations implementing the annual
adjustment.'')).
II. Calculation of 2018 Adjustments
Under the FCPIA of 2015 and the guidance provided in OMB Memorandum
M-18-03, BOEM has identified applicable civil monetary penalties and
calculated the necessary inflation adjustments. The previous civil
penalty inflation adjustments accounted for inflation through October
2016. The required annual civil penalty inflation adjustment
promulgated through this rule accounts for inflation through October
2017.
Annual inflation adjustments are based on the percent 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 the guidance in OMB Memorandum M-18-03,
BOEM divided the October 2017 CPI-U by the October 2016 CPI-U to
calculate the multiplying factor. In this case, October 2017 CPI-U
(246.663)/October 2016 CPI-U (241.729) = 1.02041. OMB Memorandum M-18-
03 confirms that this is the proper multiplier. (See OMB Memorandum M-
18-03 at 1 and n.4).
For 2018, OCSLA and the FCPIA of 2015 require that BOEM adjust the
OCSLA maximum civil penalty amount. To accomplish this, BOEM multiplied
the existing OCSLA maximum civil penalty amount ($42,704) by the
multiplying factor ($42,704 x 1.02041 = $43,575.59). The FCPIA of 2015
requires that the resulting amount be rounded to the nearest $1.00 at
the end of the calculation process. Accordingly, the adjusted OCSLA
maximum civil penalty is $43,576.
For 2018, the FCPIA of 2015 requires that BOEM adjust the OPA
maximum civil penalty amount. To accomplish this, BOEM multiplied the
current OPA maximum civil penalty amount ($45,268) by the multiplying
factor (45,268 x 1.02041 = $46,191.92). The FCPIA of 2015 requires that
the resulting amount be rounded to the nearest $1.00 at the end of the
calculation process. Accordingly, the adjusted OPA maximum civil
penalty is $46,192.
The adjusted penalty levels will take effect immediately upon
publication of this rule. Pursuant to the FCPIA of 2015, the increases
in the OCSLA and OPA maximum civil penalty amounts apply to civil
penalties assessed after the date the increase takes effect, even if
the associated violation(s) predates such increase. Consistent with the
provisions of OCSLA, OPA, and the FCPIA of 2015, this rule adjusts the
following maximum civil monetary penalties per day per violation:
[[Page 8932]]
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Current Adjusted
CFR Citation Description of the maximum Multiplier maximum
penalty penalty penalty
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30 CFR 550.1403........................ Failure to comply per $42,704 1.02041 $43,576
day per violation.
30 CFR 553.51(a)....................... Failure to comply per 45,268 1.02041 46,192
day per violation.
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III. Procedural Requirements
A. Regulatory Planning and Review (E.O. 12866, 13563, and 13771)
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-18-03 at 3).
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for
improvements in the Nation's regulatory system to reduce uncertainty
and to promote predictability and the use of 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. We have developed this rule in a manner consistent with
these requirements, to the extent relevant and feasible given the
limited discretion provided agencies in FCPIA.
E.O. 13771 of January 30, 2017 directs Federal agencies to reduce
the regulatory burden on regulated entities and control regulatory
costs. E.O. 13771, however, applies only to significant regulatory
actions, as defined in Section 3(f) of E.O. 12866. OIRA has determined
that agency regulations exclusively implementing the annual adjustment
are not significant regulatory actions under E.O. 12866, provided they
are consistent with OMB Memorandum M-18-03 (See OMB Memorandum M-18-03
at 3); thus, E.O. 13771 does not apply to this rulemaking.
B. 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 FCPIA of 2015 expressly exempts these
annual inflation adjustments from the requirement to publish a proposed
rule for notice and comment. (See FCPIA of 2015 at section 4(b)(2); OMB
Memorandum M-18-03 at 4). Thus, the RFA does not apply to this
rulemaking.
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) 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.
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. Therefore, a
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 takings implications under E.O. 12630. Therefore, a takings
implication assessment is not required.
F. 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.
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 of the Interior's consultation policy, under
Departmental Manual Part 512, Chapters 4 and 5, and under the criteria
in E.O. 13175. We have determined that it has no substantial direct
effects on Federally-recognized Indian tribes or Alaska Native Claims
Settlement Act (ANCSA) Corporations, and that consultation under the
Department of the Interior's tribal and ANCSA consultation policies is
not required.
I. Paperwork Reduction Act
This rule does not contain information collection requirements, and
a submission to the 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.
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, as a regulation of an administrative nature, this
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. Therefore, a detailed statement under NEPA
is not required.
K. Effects on the Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in E.O.
[[Page 8933]]
13211. Therefore, a Statement of Energy Effects is not required.
List of Subjects
30 CFR Part 550
Administrative practice and procedure, Continental shelf,
Environmental impact statements, Environmental protection, Federal
lands, Government contracts, Investigations, Mineral resources, Oil and
gas exploration, Outer continental shelf, Penalties, Pipelines,
Reporting and recordkeeping requirements, Rights-of-way, Sulfur.
30 CFR Part 553
Administrative practice and procedure, Continental shelf, Financial
responsibility, Liability, Limit of liability, Oil and gas exploration,
Oil pollution, Outer continental shelf, Penalties, Pipelines, Reporting
and recordkeeping requirements, Rights-of-way, Surety bonds, Treasury
securities.
Dated: February 12, 2018.
Joseph R. Balash,
Assistant Secretary--Land and Minerals Management.
For the reasons stated in the preamble, the BOEM amends 30 CFR
parts 550 and 553 as follows:
PART 550--OIL AND GAS AND SULFUR OPERATIONS IN THE OUTER
CONTINENTAL SHELF
0
1. The authority citation for part 550 continues to read as follows:
Authority: 30 U.S.C. 1751; 31 U.S.C. 9701; 43 U.S.C. 1334.
0
2. Revise Sec. 550.1403 to read as follows:
Sec. 550.1403 What is the maximum civil penalty?
The maximum civil penalty is $43,576 per day per violation.
PART 553--OIL SPILL FINANCIAL RESPONSIBILITY FOR OFFSHORE
FACILITIES
0
3. The authority citation for part 553 continues to read as follows:
Authority: 33 U.S.C. 2704, 2716; E.O. 12777, as amended.
0
4. In Sec. 553.51, revise paragraph (a) to read as follows:
Sec. 553.51 What are the penalties for not complying with this part?
(a) If you fail to comply with the financial responsibility
requirements of OPA at 33 U.S.C. 2716 or with the requirements of this
part, then you may be liable for a civil penalty of up to $46,192 per
COF per day of violation (that is, each day a COF is operated without
acceptable evidence of OSFR).
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[FR Doc. 2018-04248 Filed 3-1-18; 8:45 am]
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