Civil Monetary Penalty Inflation Adjustments

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Parts 723, 724, 845, and 846</CFR> <RIN>RIN 1029-AC86</RIN> <DEPDOC>[Docket ID: OSM 2024-0001; S1D1S SS08011000 SX064A000 245S180110; S2D2SSS08011000 SX064A00 24XS501520]</DEPDOC> <SUBJECT>Civil Monetary Penalty Inflation Adjustments</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), and Office of Management and Budget guidance, this rule adjusts for inflation the level of civil monetary penalties assessed under the Surface Mining Control and Reclamation Act of 1977 (SMCRA) and its implementing regulations. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective April 5, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Khalia A. Boyd, Office of Surface Mining Reclamation and Enforcement, 1849 C Street NW, Mail Stop 4558, Washington, DC 20240; Telephone (202) 208-2823. Email: <E T="03">kboyd@osmre.gov</E> . </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background</FP> <FP SOURCE="FP1-2">A. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015</FP> <FP SOURCE="FP1-2">B. Calculation of Adjustments</FP> <FP SOURCE="FP1-2">C. Effect of the Rule in Federal Program States and on Indian Lands</FP> <FP SOURCE="FP1-2">D. Effect of the Rule on Approved State Programs</FP> <FP SOURCE="FP-2">II. Procedural Matters</FP> <FP SOURCE="FP1-2">A. Regulatory Planning and Review (Executive Orders 14094, 12866 and 13563)</FP> <FP SOURCE="FP1-2">B. Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Congressional Review Act</FP> <FP SOURCE="FP1-2">D. Unfunded Mandates Reform Act</FP> <FP SOURCE="FP1-2">E. Takings (Executive Order 12630)</FP> <FP SOURCE="FP1-2">F. Federalism (Executive Order 13132)</FP> <FP SOURCE="FP1-2">G. Civil Justice Reform (Executive Order 12988)</FP> <FP SOURCE="FP1-2">H. Consultation With Indian Tribes (Executive Order 13175 and Departmental Policy)</FP> <FP SOURCE="FP1-2">I. Paperwork Reduction Act</FP> <FP SOURCE="FP1-2">J. National Environmental Policy Act</FP> <FP SOURCE="FP1-2">K. Effects on Energy Supply, Distribution, and Use (Executive Order 13211)</FP> <FP SOURCE="FP1-2">L. Administrative Procedure Act</FP> <FP SOURCE="FP1-2">M. National Technology Transfer and Advancement Act</FP> <FP SOURCE="FP1-2">N. Protection of Children From Environmental Health Risks and Safety Risks (Executive Order 13045)</FP> </EXTRACT> <HD SOURCE="HD1">I. Background</HD> <HD SOURCE="HD2">A. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015</HD> Section 518 of SMCRA, 30 U.S.C. 1268, authorizes the Secretary of the Interior to assess civil monetary penalties (CMPs) for violations of SMCRA. The Federal regulations implementing the CMP provisions of section 518 are located in 30 CFR parts 723, 724, 845, and 846. The Office of Surface Mining Reclamation and Enforcement (OSMRE) is adjusting CMPs in six sections: 30 CFR 723.14, 723.15, 724.14, 845.14, 845.15, and 846.14. On November 2, 2015, the President signed the 2015 Act into law (Sec. 701 of Pub. L. 114-74). The 2015 Act, which amended the 1990 Act (Pub. L. 101-410), requires Federal agencies to promulgate rules to adjust the level of CMPs to account for inflation. The 2015 Act requires agencies to publish annual inflation adjustments. These adjustments are aimed at maintaining the deterrent effect of civil penalties and furthering the policy goals of the statutes that authorize the penalties. <HD SOURCE="HD2">B. Calculation of Adjustments</HD> The Office of Management and Budget (OMB) issued guidance on the 2024 annual adjustments for inflation. December 19, 2023, Memorandum for the Heads of Executive Departments and Agencies (M-24-07), <E T="03">Implementation of Penalty Inflation Adjustments for 2024, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015</E> (OMB Memorandum). The OMB Memorandum notes that the 1990 Act defines “civil monetary penalty” as “any penalty, fine, or other sanction that . . . is for a specific monetary amount as provided by Federal law; or . . . has a maximum amount provided for by Federal law; and . . . is assessed or enforced by an agency pursuant to Federal law; and . . . is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts . . . .” <E T="03">Id.</E> at 2. It further instructs that agencies “are to adjust `the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.' ” <E T="03">Id.</E> The 1990 Act, as amended by the 2015 Act, and the OMB Memorandum specify that the annual inflation adjustments are based on the percent change between the Consumer Price Index for all Urban Consumers (the CPI-U) published by the Department of Labor for the month of October in the year of the previous adjustment, and the October CPI-U for the preceding year. The recent OMB Memorandum specified that the cost-of-living adjustment multiplier for 2024, not seasonally adjusted, is 1.03241 (the October 2023 CPI-U (307.671) divided by the October 2022 CPI-U (298.012) = 1.03241). OSMRE used this guidance to identify applicable CMPs and calculate the required inflation adjustments. The 1990 Act, as amended by the 2015 Act, specifies that any resulting increases in CMPs must be rounded according to a stated rounding formula and that the increased CMPs apply only to CMP assessments that occur after the date that the increases take effect. Generally, OSMRE assigns points to a violation as described in 30 CFR 723.13 and 845.13. The CMP owed is based on the number of points received, ranging from one point to 70 points. For example, under our existing regulations in 30 CFR 845.14, a violation totaling 70 points would amount to a $19,815 CMP. To adjust this amount, OSMRE multiplied $19,815 by the 2023 inflation factor of 1.03241, resulting in a raw adjusted amount of $20,457.20. Because the 2015 Act requires rounding any increase in the CMP amount to the nearest dollar, in this case a violation of 70 points would amount to a new CMP of $20,457. Pursuant to the 2015 Act, the increases in this Final Rule apply to CMPs assessed after the date the increases take effect, even if the associated violation predates the applicable increase. There are no points associated with 30 CFR 723.15(b), 30 CFR 724.14(b), 30 CFR 845.15(b), and 30 CFR 846.14(b) because those regulatory provisions do not set forth numbers of points, only dollar amounts. <HD SOURCE="HD2">C. Effect of the Rule in Federal Program States and on Indian Lands</HD> OSMRE directly regulates surface coal mining and reclamation operations within a State or on Indian lands if the State or Tribe does not obtain its own approved program pursuant to sections 503 or 710(j) of SMCRA, 30 U.S.C. 1253 or 1300(j). The increases in CMPs contained in this rule will apply to the following Federal program States: Arizona, California, Georgia, Idaho, Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington. The Federal programs for those States appear at 30 CFR parts 903, 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947, respectively. Under 30 CFR 750.18, the increases in CMPs also apply to Indian lands under the Federal program for Indian lands. <HD SOURCE="HD2">D. Effect of the Rule on Approved State Programs</HD> As a result of litigation, State regulatory programs are not required to mirror all of the penalty provisions of our regulations. <E T="03">See In re Permanent Surface Mining Regul. Litig.,</E> No. 79-1144, 1980 U.S. Dist. LEXIS 17722, at *21-23 (D.D.C. Feb. 26, 1980); 1980 U.S. Dist. LEXIS 17660, at *87-88 (D.D.C. May 16, 1980). Thus, this rule has no effect on CMPs in States with SMCRA primacy. <HD SOURCE="HD1">II. Procedural Matters</HD> <HD SOURCE="HD2">A. Regulatory Planning and Review (Executive Orders 12866, 13563, and 14094)</HD> Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866 and E.O. 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) within OMB will review all significant rules. OIRA has determined that agency regulations exclusively implementing the annual inflation adjustments and that are consistent with the OMB Memorandum, such as this rule, are not significant. <HD SOURCE="HD2">B. Regulatory Flexibility Act</HD> 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. <E T="03">See</E> 5 U.S.C. 603(a) and 604(a). The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires agencies to adjust civil penalties annually for inflation “notwithstanding section 553 [of the Administrative Procedure Act].” Thus, no proposed rule will be published ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 21k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━