[Federal Register Volume 73, Number 239 (Thursday, December 11, 2008)]
[Rules and Regulations]
[Pages 75321-75323]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29263]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 6

[Docket No. 080731957-8958-01]
RIN 0605-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, required the head of each agency to adjust its civil 
monetary penalties (CMP) for inflation no later than October 23, 1996, 
and requires them to make adjustments at least once every four years 
thereafter. These inflation adjustments will apply only to violations 
that occur after the effective date of this rule.

DATES: This rule is effective December 11, 2008.

ADDRESSES: Office of General Counsel, Department of Commerce, 1401 
Constitution Avenue, NW., MS 5876, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Peter Robbins, (202) 482-0846.

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Pub. L. 101-410) provided for the regular 
evaluation of CMPs 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 (Pub. L. 104-134) to 
require each agency to issue regulations to adjust its CMPs for 
inflation at least every four years. The amendment further provided 
that any resulting increases in a CMP due to the inflation adjustment 
should apply only to the violations that occur subsequent to the date 
of the publication in the Federal Register of the increased amount of 
the CMP. The first inflation adjustment of any penalty shall not exceed 
ten percent of such penalty.
    On October 24, 1996 and November 1, 2000, and again on December 14, 
2004, the Department published in the Federal Register a schedule of 
CMP adjusted for inflation as required by law. By this publication, 
CMPs are again being adjusted for inflation as prescribed by law.
    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 National Oceanic and 
Atmospheric Administration (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 NOAA 
enforces, will be interpreted 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 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

[[Page 75322]]

the cost-of-living adjustment. The term ``cost-of-living adjustment'' 
was defined in Public Law 104-134 to mean 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 inflation 
adjustments, the CPI for June of the calendar year preceding the 
adjustment means the CPI for June of 2007.
    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 adjustment.

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 is unnecessary for this rulemaking pursuant to 5 U.S.C. 
553(b)(B). It is unnecessary to ask for notice and comment because the 
Debt Collection Improvement Act of 1996 (the Act) required the head of 
each agency to adjust its civil monetary penalties no later than 
October 23, 1996, and at least every four years thereafter, and the 
Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as 
amended by the Act, states how to calculate the inflation adjustments, 
making such adjustments wholly non-discretionary. This rule merely 
adjusts the Department's CMP according to the statutory requirements. 
For the same reasons, there exists good cause to waive the thirty day 
delay in effectiveness of the rule, pursuant to 5 U.S.C. 553(d)(3).
    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 none was prepared. This rule does not contain information 
collection requirements for purposes of the Paperwork Reduction Act.

List of Subjects in 15 CFR Part 6

    Law enforcement, Penalties.

Lisa Casias,
Deputy Chief Financial Officer and Director for Financial Management.

0
For the reasons set forth in the preamble, subtitle A of Title 15 of 
the Code of Federal Regulations is amended as follows:

PART 6--CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS

0
1. The authority citation for part 6 continues to read as follows:

    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.

0
2. Section 6.4 is revised as follows:


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 5, Pub. 
L. 101-410, from the amounts of such penalties in effect prior to 
December 11, 2008, to the amounts of such penalties, as thus adjusted, 
except for the penalties stated in paragraphs (e)(26) and (e)(27), 
which became effective on January 12, 2007, and except for the 
penalties stated in paragraphs (a)(4) and (e)(3) which became adjusted 
on October 16, 2007 and January 12, 2007, respectively.
    (a) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act--Violation, from $27,500 to $32,500.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act--Inspection Violation, from $25,000 to $25,000.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act--Record Keeping Violation, from $5,000 to $5,000.
    (4) 50 U.S.C. 1705(a), International Emergency Economic Powers Act 
(2007)--Violation, from $50,000 to $250,000.
    (b) Bureau of the Census. (1) 13 U.S.C. 304, Collection of Foreign 
Trade Statistics--Delinquency on Delayed Filing of Export 
Documentation; maximum penalty for each day's delinquency, from $1,000 
to $1,000; maximum per violation, from $10,000 to $10,000.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics--
Violations, from $10,000 to $10,000.
    (c) Economics and Statistics Administration. 22 U.S.C. 3105(a), 
International Investment and Trade in Services Act--Failure to Furnish 
Information; minimum, from $2,500 to $2,500; maximum, from $27,500 to 
$32,500.
    (d) International Trade Administration. (1) 19 U.S.C. 81s, Foreign 
Trade Zone--Violation, from $1,100 to $1,100.
    (2) 16 U.S.C. 1677(f)(4), U.S.-Canada FTA Protective Order--
Violation, from $120,000 to $130,000.
    (e) National Oceanic and Atmospheric Administration. (1) 15 U.S.C. 
5623(a)(3), Land Remote Sensing Policy Act of 1992, from $11,000 to 
$11,000.
    (2) 15 U.S.C. 5658(c), Land Remote Sensing Policy Act of 1992, from 
$11,000 to $11,000.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
from $27,500 to $200,000.
    (4) 16 U.S.C. 783, Sponge Act (1914), from $550 to $650.
    (5) 16 U.S.C. 957, Tuna Conventions Act of 1950 (1962);
    (i) Violation/Subsection (a), from $27,500 to $32,500.
    (ii) Subsequent Violation/Subsection (a), from $65,000 to $70,000.
    (iii) Violation/Subsection (b), from $1,100 to $1,100.
    (iv) Subsequent Violation/Subsection (b), from $5,500 to $6,500.
    (v) Violation/Subsection (c), from $130,000 to $140,000.
    (6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 
(1995), from $130,000 to $140,000.
    (7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984;
    (i) Violation/Subsections (a)(1)-(3), from $27,500 to $32,500.
    (ii) Subsequent Violation/Subsections (a)(1)-(3), from $60,000 to 
$65,000.
    (iii) Violation/Subsections (a)(4)-(5), from $5,500 to $6,500.
    (iv) Subsequent Violation/Subsections (a)(4)-(5), from $5,500 to 
$6,500.
    (v) Violation/Subsection (a)(6), from $130,000 to $140,000.
    (8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, from 
$325,000 to $350,000.
    (9) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983, from 
$11,000 to $11,000.
    (10) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1981), from $11,000 to $11,000.
    (11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act 
(1990), from $120,000 to $130,000.
    (12) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
from $130,000 to $140,000.
    (13) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973;
    (i) Knowing Violation of Section 1538 (1988), from $27,500 to 
$32,500.
    (ii) Other Knowing Violation (1988), from $13,200 to $13,200.
    (iii) Otherwise Violation (1978), from $550 to $650.
    (14) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), from $130,000 to $140,000.

[[Page 75323]]

    (15) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources 
Convention Act of 1984;
    (i) Violation, from $5,500 to $6,500.
    (ii) Knowing Violation, from $11,000 to $11,000.
    (16) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990;
    (i) Violation, from $5,500 to $6,500.
    (ii) Knowing Violation, from $11,000 to $11,000.
    (17) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981;
    (i) Sale and Purchase Violation, from $11,000 to $11,000.
    (ii) Marking Violation, from $275 to $275.
    (iii) False Labeling Violation, from $11,000 to $11,000.
    (iv) Other than Marking Violation, from $11,000 to $11,000.
    (18) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 1982 
(1990), from $130,000 to $140,000.
    (19) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990), 
from $130,000 to $140,000.
    (20) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 
1986; minimum from $500 to $500; maximum from $5,500 to $6,500.
    (21) 16 U.S.C. 5010(a)(1), North Pacific Anadromous Stocks Act of 
1992, from $120,000 to $130,000.
    (22) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act (1993), from $130,000 to $140,000.
    (23) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation Act 
(1990), from $130,000 to $140,000.
    (24) 16 U.S.C. 5507(a)(1), High Seas Fishing Compliance Act of 
1995, from $120,000 to $130,000.
    (25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995, from $130,000 to $140,000.
    (26) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act (2007); new penalty $140,000.
    (27) 16 U.S.C. 7009(c), Pacific Whiting Act of 2006 (2007); new 
penalty $140,000.
    (28) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971);
    (i) Violation, from $11,000 to $11,000.
    (ii) Subsequent Violation, from $27,500 to $32,500.
    (29) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), from $27,500 to $32,500.
    (30) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of 
1980, from $27,500 to $32,500.

0
3. Section 6.5 is revised to read as follows:


Sec.  6.5  Effective date of adjustments.

    The adjustments made by Sec.  6.4 of this part, of the penalties 
there specified, are effective on December 11, 2008, and said 
penalties, as thus adjusted by the adjustments made by Sec.  6.4 of 
this part, shall apply only to violations occurring after December 11, 
2008, and before the effective date of any future inflation adjustment 
thereto made subsequent to December 11, 2008 as provided in Sec.  6.6 
of this part.

 [FR Doc. E8-29263 Filed 12-10-08; 8:45 am]
BILLING CODE 3510-17-P