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Federal Register / Vol. 86, No. 122 / Tuesday, June 29, 2021 / Rules and Regulations III. Administrative Procedure Act Requirements In general, an agency must first publish a proposed rule, to provide prior notice and an opportunity for public comment, before adopting a final rule. However, no such proposal is necessary for this final rule. Section 4b2 of the FCPIAAIA of 2015 states that agencies shall adjust civil monetary penalties notwithstanding Section 553
of the Administrative Procedure Act.
In this manner, Congress exempted the annual inflation adjustments implemented pursuant to the FCPIAAIA
of 2015 from the notice and comment requirements of the Administrative Procedure Act, 5 U.S.C. 551 et seq. the APA, allowing agencies to publish FCPIAAIA adjustments as final rules without prior proposed rules.
This interpretation of the APAs application to FCPIAAIA of 2015 is confirmed by the most recent annual guidance issued by OMB Memorandum on December 23, 2020, in Memorandum M2110, Implementation of Penalty Inflation Adjustments for 2021, Pursuant to the FCPIAAIA of 2015, OMB Memorandum M2110 M21
10, available at https
www.whitehouse.gov/wp-content/
uploads/2020/12/M-21-10.pdf. OMB
Memorandum M2110 explains the agency responsibilities under the FCPIAAIA of 2015 as: 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. As stated in that Memorandum, the public procedure the APA generally requiresnotice, an opportunity for comment, and a delay in effective dateis not required for agencies to issue regulations implementing the annual adjustment.
OMB M2110 at p. 3.
In addition, section 553b of the APA
provides that an opportunity for notice and comment on a proposed rule is not required when an agency finds, for good cause, that prior notice and public procedure are impracticable, unnecessary, or contrary to the public interest. BSEE finds that it is unnecessary to issue a proposed rule prior to this final rule because the FCPIAAIA of 2015 does not leave any discretion to BSEEspecifying the adjustments to be made, the methodology to be employed, and the index for inflation to be utilizedand that BSEE thus cannot choose to take a different course in response to comments.

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Section 553b also provides that the requirement for notice and comment does not apply to rules of agency, organization, procedure, or practice.
BSEEs decision to address the civil penalty adjustment required by the FCPIAAIA by cross-referencing ONRR
regulations, subject to the same standards for adjustment, rather than annually amending the FOGRMA
penalties in each affected BSEE
regulation, is an exercise of procedural rulemaking, which primarily concerns BSEEs internal operations. Here, BSEE
is organizing its internal procedures to meet its own legal duties. Moreover, while notice and comment is required for rules that affect rights or duties of the public, BSEEs reliance on crossreferencing does not affect the rights of any regulated parties because the civil penalty amount will be the same regardless of whether those amounts are cross-referenced to ONRRs regulations.
ONRR must calculate and adjust the MDCP amounts in 30 CFR part 1241
annually in accordance with the FCPIAAIA of 2015 and related OMB
guidance, just as BSEE must do.

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. 603a and 604a. For the reasons discussed in part III of this notice, BSEE is not required to publish a proposed rule prior to this final rule. Thus, the RFA
does not apply to this rulemaking.

IV. Procedural Requirements
D. Unfunded Mandates Reform Act
A. Regulatory Planning and Review E.O. 12866 and 13563

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.

Executive Order E.O. 12866 provides that the OMB Office of Information and Regulatory Affairs OIRA will review all significant rules. OIRA has determined that this rule is not significant. OMB M1803 at 3.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nations regulatory system to promote predictability, to reduce uncertainty, and to use 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. We have developed this rule in a manner consistent with these requirements, to the extent permitted by statute.
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
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C. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 8042, the Small Business Regulatory Enforcement Fairness Act.
This rule:
1 Does not have an annual effect on the economy of $100 million or more.
2 Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
3 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.

E. Takings E.O. 12630
This rule does not affect 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. This rule will not substantially and directly affect the relationship between the Federal and State governments. To the extent that State and local governments have a role in OCS activities, this rule will not affect that role. 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:

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