Bureau of Indian Affairs finalizes one last rule from the Obama era

A person in a Guy Fawkes mask holds a flag featuring an image of a Native person in Washington, D.C, on January 20, 2017, as Republican Donald Trump was sworn in as the 45th president of the United States. Photo: Kyle

The new administration of Republican President Donald Trump has imposed a freeze on the federal regulatory process but it didn't affect one last rule from the Bureau of Indian Affairs.

On Trump's first day in office on Friday, the White House ordered all agencies to withdraw regulations that had not yet appeared in the Federal Register. The directive came after the BIA had already sent over a final rule regarding civil penalties for publication.

According to the Office of the Federal Register, the BIA rule was sent over at 8:45am on Thursday. Trump was sworn in as the 45th president of the United States around noon on Friday and the regulatory freeze was imposed shortly thereafter.

As a result, a slew of pending rules have been pulled back. Public inspection lists for January 19 and January 23 -- essentially, a preview of what's coming in the Federal Register -- indicate that the Department of Energy and the Environmental Protection Agency are among the agencies withdrawing regulations that were due to be published this week.

But the BIA's civil penalties regulation survived the freeze. The document, dated January 11, bears the signature of Larry Roberts, a political appointee who led the agency for the concluding months of the administration of former president Barack Obama, giving it a unique distinction in the new Trump regime.

The rule, though, is hardly controversial and it likely would have been issued by the Trump administration even if it had been put on hold. Through the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Congress has required all federal agencies to update their civil penalties to catch up with inflation and to make annual adjustments thereafter.

For example, the penalty for a non-Native individual who transfers a live reindeer in Alaska has been bumped to $5,983, up from $5,000. Trading without a license on the reservations of the Hopi Tribe, the Navajo Nation and Zuni Pueblo incurs a fine of $1,250, up from $500.

Trump's regulatory freeze was not unexpected or unprecedented. Obama and his predecessor, George W. Bush, took similar actions when they assumed the presidency in 2009 and 2001, respectively.

In Bush's case, a critical land-into-trust regulation was delayed and eventually withdrawn and two tribes that thought they secured federal recognition ended up being denied status.

That's why it was so critical for the notice regarding the Dakota Access Pipeline to be published before Friday. The wealthy backers of the project in fact tried delay the document in anticipation of a regulatory freeze but a federal judge refused to go along with the last-minute request.

Now that the environmental impact statement has officially been announced, it would be difficult, though not impossible, for the Trump administration to pull it back without prompting more litigation or drawing a public backlash.

The BIA's civil penalties rule is considered effective as of Monday.

Federal Register Notice:
Civil Penalties Inflation Adjustments; Annual Adjustments (January 23, 2017)

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