[Federal Register Volume 61, Number 207 (Thursday, October 24, 1996)]
[Rules and Regulations]
[Pages 55092-55095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-27403]
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DEPARTMENT OF COMMERCE
Office of the Secretary
15 CFR Parts 6, 25, and 28
[Docket No. 961021291-6291-01]
RIN 0690-AA27
Civil Monetary Penalties; Adjustment for Inflation
AGENCY: Office of the Secretary, Commerce.
ACTION: Final rule.
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SUMMARY: This final rule is being issued to adjust each civil monetary
penalty provided by law within the jurisdiction of the Department of
Commerce (the Department). The Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996, requires the head of each agency to adjust its civil
monetary penalties for inflation no later than October 23, 1996, and at
least once every four years thereafter. The inflation adjustments will
apply only to violations that occur after the effective date of this
rule.
EFFECTIVE DATE: This rule is effective October 23, 1996.
FOR FURTHER INFORMATION CONTACT: Charles Yaple, 202-482-0232.
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990, (Pub. L. 101-410), provided for the regular
evaluation of civil monetary penalties to ensure that they continued to
maintain their deterrent value and that penalty amounts due to the
Federal Government were properly accounted for and collected. On April
26, 1996, the Federal Civil Penalties Inflation Adjustment Act of 1990
was amended by the Debt Collection Improvement Act of 1996 (Public Law
104-134) to require each agency to issue regulations to adjust its
civil monetary penalties (CMP) for inflation. The amendment further
provides that any resulting increases in a CMP due to the inflation
adjustment should apply only to the violations that occur after October
23, 1996. The first inflation adjustment of any penalty shall not
exceed ten percent of such penalty.
A civil monetary penalty is defined as any penalty, fine, or other
sanction that:
1. Is for a specific monetary amount as provided by Federal law, or
has a maximum amount provided for by Federal law; and,
2. Is assessed or enforced by an agency pursuant to Federal law;
and,
3. Is assessed or enforced pursuant to an administrative proceeding
or a civil action in the Federal courts.
This regulation adjusts the civil penalties that are established by
law and assessed or enforced by the Department.
The actual penalty assessed for a particular violation is dependent
upon a variety of factors. For example, the NOAA Civil Administrative
Penalty Schedule (the Schedule), a compilation of internal guidelines
that are used when assessing penalties for violations for most of the
statutes the National Oceanic and Atmospheric Administration enforces,
will be adjusted in a manner consistent with this regulation to
maintain the deterrent effect of the penalties recommended therein. The
penalty ranges in the Schedule are intended to aid enforcement
attorneys in determining the appropriate penalty to assess for a
particular violation. Pursuant to the notice published in the Federal
Register (59 FR 19160, April 22, 1994), the Schedule is maintained and
made
[[Page 55093]]
available for inspection by the public at specific locations.
The inflation adjustment was determined pursuant to the methodology
prescribed by Public Law 101-410, which requires the maximum CMP, or
the minimum and maximum CMP, as applicable, to be increased by the
cost-of-living adjustment. The term ``cost-of-living'' adjustment means
the percentage for each CMP by which the Consumer Price Index (CPI) for
June of the calendar year preceding the adjustment exceeds the CPI for
the month of June of the calendar year in which the amount of such CMP
was last set or adjusted pursuant to law. For the purpose of computing
the First Adjustments, the CPI for June of the calendar year preceding
the adjustment means the CPI for June of 1995.
The raw inflation adjustment amounts are required by Public Law
101-410 to be rounded as follows:
1. If the increase is greater than $0 and less than or equal to
$100, round to the nearest multiple of $10.
2. If the increase is greater than $100 and less than or equal to
$1,000, round to nearest multiple of $100.
3. If the increase is greater than $1,000 and less than or equal to
$10,000, round to the nearest multiple of $1,000.
4. If the increase is greater than $10,000 and less than or equal
to $100,000, round to the nearest multiple of $5,000.
5. If the increase is greater than $100,000 and less than or equal
to $200,000, round to the nearest multiple of $10,000.
6. If the increase is greater than $200,000, round to the nearest
multiple of $25,000.
Public Law 101-410 requires each rounded increase to be added to
the minimum or maximum penalty amount being adjusted, and the total is
the amount of such penalty, as adjusted, subject to the ten percent
limitation provided by Public Law 104-134 for the First Adjustments.
Rulemaking Requirements
It has been determined that this rule is not significant for
purposes of Executive Order 12866. The Department for good cause finds
that notice and opportunity for comment and the 30-day delayed
effective date are unnecessary (5 U.S.C. 553(b)(B) and 5 U.S.C.
553(d)(3)) for this rulemaking. It is unnecessary to ask for notice and
comment and delay the effective date because the Debt Collection
Improvement Act of 1996 (the Act) requires the head of each agency to
adjust its civil monetary penalties for inflation by regulation no
later than October 23, 1996, and the Federal Civil Monetary Penalty
Inflation Adjustment Act of 1990, as amended by the Act, states how to
calculate the inflation adjustment. This rule merely adjusts the
Department's CMPs according to the statutory requirements. The
Department does not have any discretion in making the adjustments.
Because notice and opportunity for comment are not required by 5 U.S.C.
553, or any other law, a Regulatory Flexibility Analysis is not
required and was not prepared for purposes of the Regulatory
Flexibility Act. This rule does not contain information collection
requirements for purposes of the Paperwork Reduction Act.
List of Subjects
15 CFR Part 6
Law enforcement, Penalties.
15 CFR Part 25
Administrative practice and procedure, Fraud, Investigations,
Organizations and functions (Government agencies), Penalties.
15 CFR Part 28
Contract programs, Grant programs, Loan programs, Lobbying,
Penalties.
Dated: October 18, 1996.
Raymond G. Kammer,
Acting, Chief Financial Officer and Assistant Secretary for
Administration.
For the reasons set forth in the preamble, Title 15 of the Code of
Federal Regulations is amended by adding part 6 and amending parts 25
and 28 to read as follows:
1. Part 6 is added to read as follows:
PART 6--CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS
Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 Limitation on First Adjustments.
6.4 Adjustments to penalties.
6.5 Effective date of adjustments.
6.6 Subsequent adjustments.
Authority: Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104
Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28
U.S.C. 2461 note.
Sec. 6.1 Definitions.
As used in this part:
(a) Inflation Adjustment Act means the Federal Civil Penalties
Inflation Adjustment Act of 1990 (Pub. L. 101-410, October 5, 1990, 104
Stat. 890, 28 U.S.C. 2461 note).
(b) Improvement Act means the Debt Collection Improvement Act of
1996 (Public Law 104-134, April 26, 1996).
(c) Amended Section Four means section 4 of the Inflation
Adjustment Act, as amended by the Improvement Act.
(d) Section Five means section 5 of the Inflation Adjustment Act.
(e) Department means the Department of Commerce.
(f) Secretary means the Secretary of the Department of Commerce.
(g) First Adjustments means the inflation adjustments made by
Sec. 6.4 of this part which, as provided in Sec. 6.5 of this part, are
effective on October 23, 1996.
Sec. 6.2 Purpose and scope.
The purpose of this part is to make the inflation adjustment,
described in Section Five and required by Amended Section Four, of each
minimum and maximum civil monetary penalty provided by law within the
jurisdiction of the Department.
Sec. 6.3 Limitation on First Adjustments.
Each of the First Adjustments may not exceed ten percent (10%) of
the respective penalty being adjusted.
Sec. 6.4 Adjustments to penalties.
The civil monetary penalties provided by law within the
jurisdiction of the respective agencies or bureaus of the Department,
as set forth below in this section, are hereby adjusted in accordance
with the inflation adjustment procedures prescribed in Section Five,
from the amounts of such penalties in effect prior to October 23, 1996,
to the amounts of such penalties, as thus adjusted.
(a) Bureau of Export Administration.
(1) 50 U.S.C. app. 2410(c), Export Administration Act,1 Non-
national security violation: from $10,000 to $11,000.
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\1\ See E.O. 12851 (June 11, 1993).
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(2) 50 U.S.C. app. 2410(c), Export Administration Act 1 and
Section 38 Arms Export Control Act, National security violation: from
$100,000 to $110,000.
(3) 50 U.S.C. 1705(b), International Emergency Economic Powers Act,
as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14,
1994), Export Administration Regulation violation: from $10,000 to
$11,000.
(b) Economic Development Administration.
(1) 19 U.S.C. 2349, Trade Act of 1974, False statement, etc.: from
$5,000 to $5,500.
(2) 42 U.S.C. 3220(a), Public Works and Economic Development Act of
1965, False statement, etc.: from $10,000 to $11,000.
(3) 42 U.S.C. 3220(b), Public Works and Economic Development Act of
[[Page 55094]]
1965, Embezzlement, etc.: from $10,000 to $11,000.
(c) Economics and Statistics Administration (ESA)/Census.
(1) 13 U.S.C. 304, Delinquency on delayed filing of export
documentation: from $100 per/day (up to $1,000) to $110 per/day (up to
$1,100).
(2) 13 U.S.C. 305, Collection of foreign trade statistics
violations: from $1,000 to $1,100.
(d) ESA/Bureau of Economic Analysis.
(1) 22 U.S.C. 3105(a), International Investment and Trade in
Services Act, Failure to furnish information: from a minimum of $2,500
to $2,750, and from a maximum of $25,000 to $27,500.
(2) [Reserved]
(e) Import Administration.
(1) 19 U.S.C. 81s, Foreign Trade Zone violation: from $1,000 to
$1,100.
(2) 19 U.S.C. 1677f(f)(4), North American Free Trade Agreement
Protective Order violation: from $100,000 to $110,000.
(f) National Oceanic and Atmospheric Administration.
(1) 15 U.S.C. 5623, Land Remote Sensing Policy Act of 1992
violation: from $10,000 to $10,900.
(2) 15 U.S.C. 5658, Land Remote Sensing Policy Act of 1992
violation: from $10,000 to $10,900.
(3) 16 U.S.C. 773f(3), Northern Pacific Halibut Act of 1982
violation: from $25,000 to $27,500.
(4) 16 U.S.C. 783, Sponge Act (1914), Violation involving catching
or taking within specific areas: from $500 to $550.
(5) 16 U.S.C. 957, Tuna Convention Act of 1950 (1962):
(i) Violation of Sec. 957(a) [Fine at Sec. 957(d)]: from $25,000 to
$27,500.
(A) Subsequent violation of section 957(a) [Fine at Sec. 957(d)]:
from $50,000 to $55,000.
(B) [Reserved]
(ii) Violation of section 957(b) [Fine at section 957(e)]: from
$1,000 to $1,100.
(A) Subsequent violation of Sec. 957(b) Fine at Sec. 957(e)]: from
$5,000 to $5,500.
(B) [Reserved]
(iii) Violation of section 957(c) [Fine at section 957(f)]: from
$100,000 to $110,000.
(6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 (1995)
violation: from $100,000 to $100,000.
(7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984:
(i) Violation of section 972f(a)(1)-(3): from $25,000 to $27,500.
(A) Subsequent violation of Sec. 972f(a)(1)-(3): from $50,000 to
$55,000.
(B) [Reserved]
(ii) Violation of section 972f(a)(4)-(5): from $5,000 to $5,500.
(A) Subsequent violation of Sec. 972f(a)(4)-(5): from $5,000 to
$5,500.
(B) [Reserved]
(iii) Violation of section 972f(a)(6): from $100,000 to $110,000.
(8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 violation:
from $250,000 to $275,000.
(9) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972:
(i) Violation: from $10,000 to $11,000.
(ii) Knowing violation (1981): from $20,000 to $22,000.
(10) 16 U.S.C. 1437(c)(1), National Marine Sanctuaries Act (1992)
violation: from $100,000 to $109,000.
(11) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
(i) Knowing violations or engaged in business of section 1538
(a)(1)(A), (B), (C), (D), (E), or (F), (a)(2)(A), (B), (C), or (D),
(c), (d) (other than recordkeeping or filing reports), (f), or (g)
(1988): from $25,000 to $27,500.
(ii) Other knowing or business-related violations (1988): from
$12,000 to $13,200.
(iii) Otherwise (1978): from $500 to $550.
(12) 16 U.S.C. 1851 Note (Sec.5)(c)(1), Atlantic Striped Bass
Conservation Act (1984) violation: from $1,000 to $1,100.
(13) 16 U.S.C. 1858, Magnuson Fishery Conservation and Management
Act (1990): from $100,000 to $110,000.
(14) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources
Convention Act (1984):
(i) Knowing violation: from $10,000 to $11,000.
(ii) Violation: from $5,000 to $5,500.
(15) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981:
(i) Violations involving possession, sale, or transport of fish/
plants/wildlife (1981): from $10,000 to $11,000.
(ii) Marking violations of fish/plant/wildlife (1981): from $250 to
$275.
(iii) False labeling/knowingly (1988): from $10,000 to $11,000.
(16) 16 U.S.C. 3606, Atlantic Salmon Convention Act of 1982 (1990):
from $100,000 to $110,000.
(17) 16 U.S.C. 3637, Pacific Salmon Treaty Act of 1985 (1990): from
$100,000 to $110,000.
(18) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980): from $25,000 to $27,500.
(19) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of
1980: from $25,000 to $27,500.
Sec. 6.5 Effective date of adjustments.
The First Adjustments made by Sec. 6.4 of this part, of the
penalties there specified, are effective on October 23, 1996, and said
penalties, as thus adjusted by the First Adjustments made by Sec. 6.4
of this part, shall apply only to violations occurring after October
23, 1996, and before the effective date of any future inflation
adjustment thereto made subsequent to October 23, 1996, as provided in
Sec. 6.6 of this part. The penalties specified in Sec. 6.4 of this part
which became effective prior to October 23, 1996, shall, without any
First Adjustments thereto, apply only to violations occurring before
October 24, 1996.
Sec. 6.6 Subsequent adjustments.
The Secretary or his or her designee by regulation shall, at least
once every four years after October 23, 1996, make the inflation
adjustment, described in Section Five and required by Amended Section
Four, of each civil monetary penalty provided by law and within the
jurisdiction of the Department.
PART 25--PROGRAM FRAUD CIVIL REMEDIES
2. The authority for 15 CFR part 25 is revised to read as follows:
Authority: Secs. 6101-6104, Pub. L. 99-509, 100 Stat. 1874 (31
U.S.C. 3801-3812); Sec. 4, as amended, and sec. 5, Pub. L. 101-410,
104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat.
1321, 28 U.S.C. 2461 note.
3. Section 25.3 is amended by revising paragraphs (a)(1)(iv) and
(b)(1)(ii) to read as follows:
Sec. 25.3 Basis for civil penalties and assessments.
(a) * * *
(1) * * *
(iv) Is for payment for the provision of property or services which
the person has not provided as claimed, shall be subject, in addition
to any other remedy that may be prescribed by law, to a civil penalty
of not more than $5,000 for each such claim made on or before October
23, 1996, and of not more than $5,500 for each such claim made after
October 23, 1996.
* * * * *
(b) * * *
(1) * * *
(ii) Contains, or is accompanied by, an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement, shall be subject, in addition to any other remedy that may
be prescribed by law, to a civil penalty of not more than $5,000 for
each such statement made on or before October 23, 1996, and of not more
than $5,500 for each such statement made after October 23, 1996.
* * * * *
[[Page 55095]]
PART 28--NEW RESTRICTIONS ON LOBBYING
4. The authority for 15 CFR part 28 is revised to read as follows:
Authority: Sec. 319, Pub. L. 101-121 (31 U.S.C. 1352; 5 U.S.C.
301; Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 Stat. 890
(28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 U.S.C.
2461 note.
5. Part 28 is amended by revising Sec. 28.400(a) and (b) and (e) to
read as follows:
Sec. 28.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure made on or before October 23, 1996,
and of not less than $11,000 and not more than $110,000 for each such
expenditure made after October 23, 1996.
(b) Any person who fails to file or amend the disclosure form (see
Appendix B of this part) to be filed or amended if required herein,
shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure occurring on or before October
23, 1996, and of not less than $11,000 and not more than $110,000 for
each such failure occurring after October 23, 1996.
* * * * *
(e) First offenders under paragraphs (a) or (b) of this section
shall be subject to a civil penalty of $10,000, absent aggravating
circumstances for each such offense committed on or before October 23,
1996, and $11,000 for each such offense committed after October 23,
1996. Second and subsequent offenses by persons shall be subject to an
appropriate civil penalty between $10,000 and $100,000 for each such
offense committed on or before October 23, 1996, and between $11,000
and $110,000 for each such offense committed after October 23, 1996, as
determined by the agency head or his or her designee.
* * * * *
6. Part 28 is further amended by revising paragraph (3) and all
that follows of Appendix A.
Appendix A to Part 28--Certification Regarding Lobbying
* * * * *
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards
at all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all
subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon
which reliance was placed when this transaction was made or entered
into. Submission of this certification is a prerequisite for making
or entering into this transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required certification
shall be subject to a civil penalty of not less than $10,000 and not
more than $100,000 for each such failure occurring on or before
October 23, 1996, and of not less than $11,000 and not more than
$110,000 for each such failure occurring after October 23, 1996.
Statement for Loan Guarantees and Loan Insurance
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or
an employee of a Member of Congress in connection with this
commitment providing for the United States to insure or guarantee a
loan, the undersigned shall complete and submit Standard Form-LLL,
``Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
Submission of this statement is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31,
U.S. Code. Any person who fails to file the required statement shall
be subject to a civil penalty of not less than $10,000 and not more
than $100,000 for each such failure occurring on or before October
23, 1996, and of not less than $11,000 and not more than $110,000
for each such failure occurring after October 23, 1996.
[FR Doc. 96-27403 Filed 10-22-96; 12:31 pm]
BILLING CODE 3510-17-P