[Federal Register Volume 85, Number 26 (Friday, February 7, 2020)]
[Rules and Regulations]
[Pages 7218-7221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02059]
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DEPARTMENT OF THE INTERIOR
Bureau of Ocean Energy Management
30 CFR Parts 550 and 553
[Docket ID: BOEM-2019-0079]
RIN 1010-AE05
2020 Civil Penalties Inflation Adjustments for Oil, Gas, and
Sulfur Operations in the Outer Continental Shelf
AGENCY: Bureau of Ocean Energy Management, Interior.
ACTION: Final rule.
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SUMMARY: This final rule implements the 2020 inflation adjustments to
the maximum daily civil monetary penalties contained in the Bureau of
Ocean Energy Management (BOEM) regulations for violations of the Outer
Continental Shelf Lands Act (OCSLA) and the Oil Pollution Act of 1990
(OPA), pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015 (FCPIA Improvements Act) and relevant Office
of Management and Budget (OMB) guidance. The 2020 adjustment multiplier
of 1.01764 accounts for one year of inflation from October 2018 through
October 2019.
DATES: This rule is effective on February 7, 2020.
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. Legal Authority
II. Background
III. Calculation of 2020 Adjustments
IV. Procedural Requirements
A. Statutes
1. National Environmental Policy Act
2. Regulatory Flexibility Act
3. Paperwork Reduction Act
4. Unfunded Mandates Reform Act
5. Small Business Regulatory Enforcement Fairness Act
6. Congressional Review Act
B. Executive Orders (E.O.)
1. Governmental Actions and Interference With Constitutionally
Protected Property Rights (E.O. 12630)
2. Regulatory Planning and Review (E.O. 12866); Improving
Regulation and Regulatory Review (E.O. 13563); and Reducing
Regulation and Controlling Regulatory Costs (E.O. 13771)
3. Civil Justice Reform (E.O. 12988)
4. Federalism (E.O. 13132)
5. Consultation and Coordination With Indian Tribal Governments
(E.O. 13175)
6. Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use (E.O. 13211)
I. Legal Authority
OCSLA authorizes the Secretary of the Interior to impose a daily
civil monetary penalty for a violation of OCSLA or its regulations,
leases, permits, or orders and directs the Secretary to adjust the
maximum penalty at least every three years to reflect any inflation
increase in the Consumer Price Index. 43 U.S.C. 1350(b)(1). Similarly,
OPA authorizes civil monetary penalties for failure to comply with
OPA's financial responsibility provisions or its implementing
regulations. 33 U.S.C. 2716a(a). OPA does not include a maximum daily
civil penalty inflation adjustment provision. Id.
The FCPIA Improvements Act \1\ requires that Federal agencies
publish inflation adjustments to their civil monetary penalties in the
Federal Register not later than January 15 annually.\2\ Public Law 114-
74, sec. 701(b)(1). The purposes behind these inflation adjustments are
to maintain the deterrent effect of civil penalties and to further the
policy goals of the underlying statutes. Federal Civil Penalties
Inflation Adjustment Act of 1990, Public Law 101-410, sec. 2 (codified
at 28 U.S.C. 2461 note).
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\1\ The FCPIA Improvements Act amended the Federal Civil
Penalties Inflation Adjustment Act of 1990. Public Law 101-410
(codified at 28 U.S.C. 2461 note).
\2\ Under the FCPIA Improvements Act, Federal agencies were
required to adjust their civil monetary penalties for inflation with
an initial ``catch-up'' adjustment through an interim final
rulemaking in 2016 and are required to make subsequent inflation
adjustments not later than January 15 annually, beginning in 2017.
Public Law 114-74, sec. 701(b)(1).
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II. Background
BOEM implemented the 2019 inflation adjustment for its civil
monetary penalties through a final rule published in the Federal
Register on March 26, 2019, which accounted for
[[Page 7219]]
inflation through October 2018. Oil and Gas and Sulfur Operations in
the Outer Continental Shelf-Civil Penalties Inflation Adjustments, 84
FR 11,222 (Mar. 26, 2019).\3\
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\3\ The delayed publication resulted from a lapse of Federal
government funding from December 22, 2018, until January 25, 2019.
84 FR 11,222, 11,222 (Mar. 26, 2019).
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For 2020, OMB issued guidance that explains agency statutory
responsibilities for identifying applicable civil monetary 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. Implementation of Penalty Inflation Adjustments
for 2020, Pursuant to the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015, OMB Memorandum M-20-05, December 16, 2019
(OMB M-20-05), available at https://www.whitehouse.gov/wp-content/uploads/2019/12/M-20-05.pdf.
BOEM is implementing the 2020 inflation adjustments to the OCSLA
and OPA maximum daily civil monetary penalties through this final rule
pursuant to the FCPIA Improvements Act and OMB M-20-05. A proposed rule
is unnecessary. The FCPIA Improvements Act expressly exempts annual
civil penalty inflation adjustments from the Administrative Procedure
Act's (APA) notice of proposed rulemaking, public comment, and standard
effective date provisions. FCPIA Improvements Act, Public Law 114-74,
sec. 701(b)(1)(D); APA, 5 U.S.C. 553.\4\
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\4\ Specifically, Congress directed that agencies adjust civil
monetary penalties ``notwithstanding section 553 of title 5, United
States Code [Administrative Procedure Act (APA)],'' which generally
requires prior notice of proposed rulemaking, opportunity for public
comment on proposed rulemaking, and publication of a final rule at
least 30 days before its effective date. FCPIA Improvements Act,
sec. 4(b)(2); APA, 5 U.S.C. 553. OMB confirmed this interpretation
of the FCPIA Improvements Act. OMB M-20-05 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.'').
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III. Calculation of 2020 Adjustments
OMB issued guidance to Federal agencies on implementing the 2020
annual civil monetary penalties inflation adjustments, including the
adjustment multiplier: 1.01764. OMB M-20-05; FCPIA Improvements Act,
sec. 701(b)(4).\5\ In accordance with the FCPIA Improvements Act and
OMB M-20-05, BOEM determined that the OCSLA and OPA maximum daily civil
monetary penalties require annual inflation adjustments and is issuing
this final rule adjusting those penalty amounts for inflation through
October 2019.
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\5\ The annual inflation adjustment is 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 OMB M-20-05, the 2020
multiplier can be calculated by dividing the October 2019 CPI-U by
the October 2018 CPI-U. In this case, October 2019 CPI-U (257.346)/
October 2018 CPI-U (252.885) = 1.01764.
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For 2020, BOEM multiplied the current OCSLA maximum daily civil
penalty of $44,675 by the multiplier 1.01764 to equal $45,463.07
rounded to nearest cent ($44,675 x 1.01764 = $45,463.07). The FCPIA
Improvements Act requires the resulting amount be rounded to the
nearest dollar. Accordingly, the 2020 adjusted OCSLA maximum daily
civil penalty is $45,463.
For 2020, BOEM multiplied the current OPA maximum daily civil
penalty amount of $47,357 by the multiplier 1.01764 to equal $48,192.38
rounded to nearest cent ($47,357 x 1.01764 = $48,192.38). The FCPIA
Improvements Act requires that the resulting amount be rounded to the
nearest dollar. Accordingly, the 2020 adjusted OPA maximum daily civil
penalty is $48,192.
The adjusted penalty amounts take effect immediately upon
publication of this rule. Under the FCPIA Improvements Act, the
adjusted amounts apply to civil penalties assessed after the date the
increase takes effect, even if the associated violation predates the
increase.
This table summarizes BOEM's 2020 maximum daily civil monetary
penalties for each OCSLA and OPA violation:
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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 (OCSLA)............... Failure to comply per $44,675 1.01764 $45,463
day per violation.
30 CFR 553.51(a) (OPA)................ Failure to comply per $47,357 1.01764 48,192
day per violation.
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IV. Procedural Requirement
A. Statutes
1. 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 (NEPA, 42 U.S.C. 4321 et
seq.) 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). BOEM also has determined that the rule does not implicate
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.
2. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA, 5 U.S.C. 601 et seq.) 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 Improvements
Act expressly exempts these annual inflation adjustments from the
requirement to publish a proposed rule for notice and comment. FCPIA
Improvements Act, Public Law 114-74, sec. 701(b)(1)(D); OMB M-20-05 at
4. Thus, the RFA does not apply to this rulemaking.
3. Paperwork Reduction Act
This rule does not contain information collection requirements,
and, therefore, a submission to OMB under the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.) is not required.
4. 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 $164 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.
[[Page 7220]]
5. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2). 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.
6. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.) and
OMB guidance,\6\ the Office of Information and Regulatory Affairs
(OIRA) designated this rule as not a major rule as defined by that
act.\7\ Office of Info. & Regulatory Affairs, Office of Mgmt. & Budget,
Fall 2019 Unified Agenda of Regulatory and Deregulatory Actions, Dep't
of the Interior, RIN 1010-AE03 (note the RIN for this rule is listed in
error, the correct RIN is 1010-AE05), available at https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201910&RIN=1010-AE03.
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\6\ Office of Mgmt. & Budget, Exec. Office of the President, OMB
M-19-14, Guidance on Compliance with the Congressional Review Act
(2019).
\7\ 5 U.S.C. 804(2).
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B. Executive Orders (E.O.)
1. Governmental Actions and Interference with Constitutionally
Protected Property Rights (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.
2. Regulatory Planning and Review (E.O. 12866); Improving Regulation
and Regulatory Review (E.O. 13563); and Reducing Regulation and
Controlling Regulatory Costs (E.O. 13771)
E.O. 12866 provides that OIRA will review all significant rules.
OIRA has determined that this rule is not significant. See OMB M-20-05
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. E.O. 13563 further emphasizes 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.
However, there is no science being used in this rulemaking, as Congress
directed agencies to adjust the maximum daily civil penalty amounts
using a particular equation and BOEM does not have discretion to use
any other factor in the adjustment. BOEM has developed this rule in a
manner consistent with these requirements, to the extent relevant and
feasible given the limited discretion provided agencies under the FCPIA
Improvements Act.
E.O. 13771 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 this rule is not
significant. This final rule exclusively implements the annual
inflation adjustments consistent with OMB's guidance and its
determination that this rule is not a significant regulatory action.
OMB M-20-05 at 3. Thus, this rule is not considered an E.O. 13771
regulatory action. Id.
3. 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.
4. 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. To the extent State and local
governments have a role in outer continental shelf activities, this
rule will not affect that role. Therefore, a federalism summary impact
statement is not required.
5. Consultation and Coordination With Indian Tribal Governments (E.O.
13175)
The Department of the Interior and BOEM strive to strengthen their
government-to-government relationships with Indian tribes through a
commitment to consultation with Indian tribes and recognition of their
right to self-governance and tribal sovereignty. BOEM has 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. BOEM has determined that this rule 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 and BOEM's tribal
and ANCSA consultation policies is not required.
6. Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use (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
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: January 28, 2020.
Casey Hammond,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons stated in the preamble, BOEM amends title 30,
chapter V, subchapter B, parts 550 and 553 of the Code of Federal
Regulations as follows:
PART 550--OIL AND GAS AND SULPHUR 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:
[[Page 7221]]
Sec. 550.1403 What is the maximum civil penalty?
The maximum civil penalty is $45,463 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. Revise Sec. 553.51(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 $48,192 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. 2020-02059 Filed 2-6-20; 8:45 am]
BILLING CODE 4310-MR-P