[Federal Register Volume 76, Number 231 (Thursday, December 1, 2011)]
[Rules and Regulations]
[Pages 74625-74630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-30174]



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  Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / 
Rules and Regulations  

[[Page 74625]]



DEPARTMENT OF HOMELAND SECURITY

8 CFR Part 280

[CBP Dec. No. 11-23]
RIN 1651-AA91

DEPARTMENT OF JUSTICE

Executive Office for Immigration Review

8 CFR Part 1280

[EOIR Docket No. 172; AG Order No. 3309-2011]
RIN 1125-AA69


Civil Monetary Penalties Inflation Adjustment

AGENCIES: U.S. Customs and Border Protection, Department of Homeland 
Security; Executive Office for Immigration Review, Department of 
Justice.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule amends the Department of Homeland Security (DHS) 
regulations to adjust for inflation certain civil monetary penalties 
assessed under the Immigration and Nationality Act (INA). The adjusted 
penalties are calculated according to a statutory formula, and will be 
effective for violations occurring on or after the effective date. This 
rule also amends the Department of Justice (DOJ) regulations to 
eliminate duplicative language and to substitute cross-references to 
the relevant regulations.

DATES: This rule will take effect on January 3, 2012.

FOR FURTHER INFORMATION CONTACT: 
    Concerning amendments to 8 CFR part 280: Joseph O'Donnell, U.S. 
Customs and Border Protection, Office of Field Operations, (202) 344-
1691 (not a toll-free call), [email protected].
    Concerning amendments to 8 CFR part 1280: Robin M. Stutman, General 
Counsel, Office of the General Counsel, Executive Office for 
Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite 
2600, Falls Church, VA 22041. Contact Telephone Number: (703) 305-0470 
(not a-toll free call).

SUPPLEMENTARY INFORMATION:

I. Background

    The Homeland Security Act of 2002 transferred the functions of the 
Immigration and Naturalization Service (INS) to DHS. See Pub. L. 107-
296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192. DOJ and its 
administrative component, the Executive Office for Immigration Review 
(EOIR), retained the functions of EOIR, see 6 U.S.C. 521, including 
jurisdiction over regulations currently codified in chapter V of title 
8 of the Code of Federal Regulations (CFR). On February 28, 2003, the 
Attorney General published a final rule in the Federal Register that 
reflects the transfer of authorities from the INS to DHS and the 
current division of regulations between DHS and EOIR. See 68 FR 9824-01 
(Feb. 28, 2003). Pursuant to that rule, certain parts of chapter I of 
title 8 of the CFR (pertaining to DHS) were duplicated in chapter V 
(pertaining to EOIR) to ensure that all relevant authority relating to 
the shared responsibilities was preserved. See id. at 9825. Part of 
those duplicative regulations pertain to civil monetary penalties 
assessed under the INA.
    The Federal Civil Penalties Inflation Adjustment Act of 1990 
(Adjustment Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461 
note, provides for the regular evaluation of civil monetary penalties 
to ensure that the penalty amounts continue to maintain their deterrent 
effect and that the penalty amounts owed to the Federal Government are 
properly accounted for and collected. The Debt Collection Improvement 
Act of 1996 (Improvement Act) amended the Adjustment Act to require the 
head of each agency to ``by regulation adjust each civil monetary 
penalty provided by law within the jurisdiction of the Federal 
agency.'' Public Law 104-134, Sec.  31001(s)(1), 110 Stat. 1321. The 
Improvement Act requires inflation adjustments every four years.
    The penalties that may be assessed by U.S. Customs and Border 
Protection (CBP) upon carriers and persons who violate specified 
provisions of the INA currently are enumerated in 8 CFR 280.53. This 
section is repeated in chapter V of title 8 of the CFR at Sec.  1280.53 
in regulations relating to DOJ. As discussed above, this duplication 
was done in 2003 to ensure that all relevant authority was preserved.
    After the revisions in this final rule take effect, the penalties 
for specified violations of the INA will be enumerated only in 8 CFR 
280.53. Those penalties will be for the following violations of the 
INA:
     Section 231(g) of the INA, Penalties for non-compliance 
with arrival and departure manifest requirements for passengers, 
crewmembers, or occupants transported on commercial vessels or aircraft 
arriving to or departing from the United States.
     Section 234 of the INA, Penalties for non-compliance with 
landing requirements at designated ports of entry for aircraft 
transporting aliens.
     Section 240B(d) of the INA, Penalties for failure to 
depart voluntarily.
     Section 243(c)(1) of the INA, Penalties for violations of 
removal orders relating to aliens transported on vessels or aircraft 
under section 241(d) of the INA or for costs associated with removal 
under section 241(e) of the INA and penalties for failure to remove 
alien stowaways under section 241(d)(2) of the INA.
     Section 251(d) of the INA, Penalties for failure to report 
an illegal landing or desertion of alien crewmen, and for each alien 
not reported on arrival or departure manifest and lists in accordance 
with section 251 of the INA and penalties for use of alien crewmen for 
longshore work in violation of section 251(d) of the INA.
     Section 254(a) of the INA, Penalties for failure to 
control alien crewmen.
     Section 255 of the INA, Penalties for employment on 
passenger vessels of aliens afflicted with certain disabilities.
     Section 256 of the INA, Penalties for discharge of alien 
crewmen.
     Section 257 of the INA, Penalties for bringing into the 
United States alien crewmen with intent to evade immigration laws.
     Section 271(a) of the INA, Penalties for failure to 
prevent the unauthorized landing of aliens.
     Section 272(a) of the INA, Penalties for bringing to the 
United States aliens

[[Page 74626]]

subject to denial of admission on a health-related ground.
     Section 273(b) of the INA, Penalties for bringing to the 
United States aliens without required documentation.
     Section 274D of the INA, Penalties for failure to depart.
     Section 275(b) of the INA, Penalties for improper entry.
    The penalty amounts for the violations of the INA enumerated in 8 
CFR 280.53 were last adjusted for inflation in 1999, when DOJ published 
a final rule in the Federal Register, in accordance with the Adjustment 
and Improvement Acts. See 64 FR 47099 (Aug. 30, 1999). The final rule, 
however, did not adjust the penalties for certain violations of the INA 
that had only been in effect since 1996. DOJ noted at that time that 
the ``[p]enalties not being adjusted by this rule will be adjusted, if 
appropriate, during the next adjustment required by the Debt Collection 
Improvement Act.'' Id. at 47100. DOJ listed those penalties under 
paragraph (d) of 8 CFR 280.53, including for violations of sections 
240B(d), 243(c)(1)(A) and (B), 274D, and 275(b) of the INA.
    This final rule reflects compliance with Congress's mandate to 
adjust civil penalties for inflation. Congress has detailed the method 
for calculating inflation adjustments. Section 5(a) of the Adjustment 
Act provides that the inflation adjustment shall be determined by 
increasing the maximum civil penalty or the range of minimum and 
maximum civil monetary penalties, as applicable, for each civil 
monetary penalty by the cost-of-living adjustment, as defined in 
section 5(b). See 5 U.S.C. 2461 note. The cost-of-living adjustment is 
defined in section 5(b) as the percentage (if any) by which--
    (1) The Consumer Price Index for the month of June of the calendar 
year preceding the adjustment, exceeds
    (2) The Consumer Price Index for the month of June of the calendar 
year in which the civil monetary penalty was last set or adjusted 
pursuant to law.

    Id. Section 3(3) of the Adjustment Act defines ``Consumer Price 
Index'' to mean the Consumer Price Index for all-urban consumers [`CPI-
U'] published by the Department of Labor. Id. The CPI-U is accordingly 
used for all calculations in this final rule.
    Section 5(a) of the Adjustment Act further provides that any 
increase required by the cost-of-living adjustment is subject to 
rounding according to the following standards:
     For penalties less than or equal to $100, increases are 
rounded to multiples of $10;
     For penalties greater than $100 but less than or equal to 
$1,000, increases are rounded to multiples of $100;
     For penalties greater than $1,000 but less than or equal 
to $10,000, increases are rounded to multiples of $1,000;
     For penalties greater than $10,000 but less than or equal 
to $100,000, increases are rounded to multiples of $5,000;
     For penalties greater than $100,000 but less than or equal 
to $200,000, increases are rounded to multiples of $10,000; and
     For penalties greater than $200,000, increases are rounded 
to multiples of $25,000.

See id.
    In 2002, after the publication of DOJ's final rule, Congress 
redesignated 8 U.S.C. 1221(d) (section 231(d) of the INA) as 8 U.S.C. 
1221(g) (section 231(g) of the INA) and increased the penalty for 
noncompliance from $300 per person to $1,000 per person. See Public Law 
107-173, tit. IV, Sec.  402(c), 116 Stat. 559. For that reason, the 
penalty in section 231(g) of the INA, which is currently listed as 
corresponding to section 231(d) in 8 CFR 280.53(c)(1) and 8 CFR 
1280.53(c)(1) as $330 per person, has been superseded by the subsequent 
legislation and is currently $1,000 per person.

II. Summary of the Calculations

    In this final rule, DHS is adjusting the civil monetary penalty 
amounts specified in 8 CFR 280.53, as well as in section 231(g) of the 
INA (8 U.S.C. 1221(g)), relating to penalties imposed for various 
violations of the INA, in accordance with the cost-of-living adjustment 
formula and the rounding provisions.
    To explain how we calculated the inflation increase adjustment for 
those penalties that were previously adjusted in 1999, as adjusted for 
cost-of-living, we will use the current penalty in section 234 of the 
INA (8 U.S.C. 1224), listed in 8 CFR 280.53(c)(2), as an example.
    First, we must determine the CPI factor. Because we are adjusting 
the civil monetary penalty in 2011 and the penalty was last adjusted in 
1999, we use the CPI-U for June of 2010 (217.965) and the CPI-U for 
June of 1999 (166.2). We calculate the CPI factor by subtracting the 
CPI-U for June of 1999 (166.2) from the CPI-U for June of 2010 
(217.965) and then dividing by the CPI-U for June of 1999 (166.2). The 
result is 31.15%.
    Second, to calculate the raw increase for each civil penalty 
(before rounding), we multiply the current penalty by the CPI factor. 
In our example, we multiply $2,200 by 31.15%, which equals $685.30.
    In the third step, we round the raw increase according to the rules 
in section 5(a) of the Adjustment Act. Under these rules, because the 
current penalty ($2,200) is greater than $1,000, but less than or equal 
to $10,000, we round the raw increase ($685.30) to the nearest multiple 
of $1,000. The result is a rounded increase of $1,000.
    In the fourth and final step, we add the rounded increase ($1,000) 
to the current penalty ($2,200). Therefore, in our first example, the 
adjusted penalty for section 234 of the INA is $3,200.
    To explain how we calculated the inflation increase adjustment for 
the penalty in section 231(g) of the INA (8 U.S.C. 1221(g)), which was 
set by legislation in 2002, we first must determine the CPI factor. 
Because we are adjusting the civil monetary penalty in 2011 and the 
penalty in section 231(g) was set in 2002, we must use the CPI-U for 
June of 2010 (217.965) and for June of 2002 (179.9). We calculate the 
CPI factor by subtracting the CPI-U for June of 2002 (179.9) from the 
CPI-U for June of 2010 (217.965) and then dividing by the CPI-U for 
June of 2002 (179.9). The result is 21.16%.
    Second, to calculate the raw increase (before rounding), we 
multiply the current penalty by the CPI factor. Here, we multiply 
$1,000 by 21.16%, which equals $211.60.
    In the third step, we round the raw increase according to the rules 
in section 5(a) of the Adjustment Act. Since the current penalty 
($1,000) is greater than $100, but less than or equal to $1,000, we 
round to the nearest multiple of $100, which makes the rounded increase 
$200.
    In the fourth and final step, we add the rounded increase ($200) to 
the current penalty ($1,000). Therefore, here, the adjusted penalty for 
section 231(g) would increase to $1,200. However, section 31001(s)(2) 
of the Improvement Act provides that the initial adjustment of a civil 
monetary penalty may not exceed 10% of such penalty. Because the 
penalty in section 231(g) was set by legislation in 2002, it has not 
been previously adjusted; therefore, the 10% statutory cap applies.
    To apply the statutory cap, we must calculate 10% of the penalty. 
To calculate the statutory cap for the penalty, we take 10% of $1,000, 
which equals $100. We then add that result to the current penalty, 
$1,000. The result is $1,100. Because the adjusted penalty is higher 
than the 10% statutory cap, the 10% statutory cap must be used. 
Therefore, the adjusted civil monetary

[[Page 74627]]

penalty for violations of section 231(g) is $1,100.
    Because DHS is also adjusting certain other penalties for the first 
time (namely, the penalties set forth in sections 240B(d), 243(c)(1)(A) 
and (B), 274D, and 275(b) of the INA), those increases are also subject 
to the 10% statutory cap. Accordingly, we must first apply the normal 
formula and then, if necessary, apply the statutory cap.
    To explain our calculations for adjusting the civil monetary 
amounts for those penalties that are being adjusted for the first time, 
we will use section 240B(d) of the INA (8 U.S.C. 1229c(d)) as our 
example. Section 240B(d) provides that each alien who fails to depart 
the U.S. voluntarily after being permitted to do so is liable for a 
$1,000 minimum and a $5,000 maximum penalty.
    First, we must determine the CPI factor. The civil monetary penalty 
was enacted in 1996, so we must use the CPI-U for June of 1996 (156.7). 
We calculate the CPI factor by subtracting the CPI-U for June of 1996 
(156.7) from the CPI-U for June of 2010 (217.965) and then dividing by 
the CPI-U for June of 1996 (156.7). The result is 39.10%.
    Second, to calculate the raw increase (before rounding), we 
multiply the current penalty by the CPI factor. For the minimum 
penalty, the raw increase is calculated by multiplying $1,000 by 
39.10%, which is $391.00. For the maximum penalty, we multiplied $5,000 
by 39.10%, which equals $1,955.00.
    In the third step, we round the raw increase according to the rules 
in section 5(a) of the Adjustment Act and then add this rounded 
increase to the current penalty. In this instance, the raw increase for 
the minimum penalty ($391.00) rounds to $400, resulting in an adjusted 
penalty of $1,400. For the maximum penalty, the raw increase 
($1,955.00) rounds to $2,000, resulting in an adjusted penalty of 
$7,000. However, as stated above, under section 31001(s)(2) of the 
Improvement Act, the initial adjustment of a civil monetary penalty may 
not exceed 10% of such penalty.
    To apply the statutory cap, we must calculate 10% of the minimum 
and maximum penalties. To calculate the statutory cap for the minimum 
penalty, we take 10% of $1,000, which equals $100. We then add that 
result to the current minimum, $1,000. The result is $1,100. We follow 
the same steps to calculate the maximum statutory penalty: We take 10% 
of $5,000, which equals $500. We then add that number ($500) to the 
current maximum, $5,000. The result is $5,500. Because the adjusted 
penalties are higher than the 10% statutory cap, the 10% statutory cap 
must be used. Therefore, the minimum and maximum adjusted civil 
monetary penalties for violations of section 240B(d) of the INA are 
$1,100 and $5,500, respectively.

III. Adjustment of Civil Monetary Penalties

    As shown above in the first example, application of the cost-of-
living adjustment formula results in an inflation adjustment of 31.15%, 
based on a CPI-U of 217.965 for June 2010 and a CPI-U of 166.2 for June 
1999 (when the last adjustment was made). This results in new civil 
monetary penalties for violations of sections 234, 251(d), 254(a), 257, 
271(a), 272(a), and 273(b) of the INA and for the maximum penalty for 
violations of section 256 of the INA. There will be no inflation 
adjustment to the civil monetary penalty for violations of section 255 
or the minimum penalty for violations of section 256 of the INA 
because, due to rounding, the application of the cost-of-living 
adjustment formula results in the same adjusted penalty as the current 
penalty, as demonstrated in the chart below. Additionally, there will 
be an inflation adjustment to the civil monetary penalty for violations 
of section 231(g) of the INA. DHS has also adjusted the civil monetary 
penalties for violations of sections 240B(d), 243(c)(1), 274D, and 
275(b) of the INA. The adjustments are shown in the chart below:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     Year last       CPI factor      Raw increase                           Rounded          Adjusted
      INA Sec.   Statute       Current  penalty      adjusted        (2011)  (%)        (2011)            Rounder          increase          penalty
--------------------------------------------------------------------------------------------------------------------------------------------------------
INA Sec.   231(g); 8 U.S.C.    $1,000..........  Enacted in 2002.           21.16  $211.60.........  10% statutory     $100............  $1,100.
 1221(g).                                                                                             cap.
INA Sec.   234; 8 U.S.C. 1224  $2,200..........  1999............           31.15  $685.30.........  1,000...........  $1,000..........  $3,200.
INA Sec.   240B(d); 8 U.S.C.   $1,000 minimum/   Enacted in 1996.           39.10  $391.00 minimum/  10% statutory     $100 minimum/     $1,100 minimum/
 1229c(d).                      5,000 maximum.                                      $1,955.00         cap.              $500 maximum.     $5,500
                                                                                    maximum.                                              maximum.
INA Sec.   243(c)(1)(A); 8     $2,000..........  Enacted in 1996.           39.10  $782.00.........  10% statutory     $200............  $2,200.
 U.S.C. 1253(c)(1)(A).                                                                                cap.
INA Sec.   243(c)(1)(B); 8     $5,000..........  Enacted in 1996.           39.10  $1,955.00.......  10% statutory     $500............  $5,500.
 U.S.C. 1253(c)(1)(B).                                                                                cap.
INA Sec.   251(d); 8 U.S.C.    $220 for each     1999............           31.15  $68.53 for each   100 for each      $100 for each     $320 for each
 1281(d).                       alien not                                           alien not         alien not         alien not         alien not
                                reported/$5,500                                     reported/         reported/1,000    reported/$2,000   reported;
                                for use of                                          $1,713.25 for     for use of        for use of        $7,500 for use
                                alien crewman.                                      use of alien      alien crewman.    alien crewman.    of alien
                                                                                    crewman.                                              crewman.
INA Sec.   254(a); 8 U.S.C.    $550 minimum/     1999............           31.15  $171.33 minimum/  100 minimum/      $200 minimum/     $750 minimum/
 1284(a).                       $3,300 maximum.                                     $1,027.95         1,000 maximum.    $1,000 maximum.   $4,300
                                                                                    maximum.                                              maximum.
INA Sec.   255; 8 U.S.C. 1285  $1,100..........  1999............           31.15  $342.65.........  1,000...........  $0..............  $1,100.
INA Sec.   256; 8 U.S.C. 1286  $1,500 minimum/   1999............           31.15  $467.25 minimum/  1,000 minimum/    $0 minimum/       $1,500 minimum/
                                $3,300 maximum.                                     $1,027.95         1,000 maximum.    $1,000 maximum.   $4,300
                                                                                    maximum.                                              maximum.
INA Sec.   257; 8 U.S.C. 1287  $11,000.........  1999............           31.15  $3,426.50.......  5,000...........  $5,000..........  $16,000.

[[Page 74628]]

 
INA Sec.   271(a); 8 U.S.C.    $3,300..........  1999............           31.15  $1,027.95.......  1,000...........  $1,000..........  $4,300.
 1321(a).
INA Sec.   272(a); 8 U.S.C.    $3,300..........  1999............           31.15  $1,027.95.......  1,000...........  $1,000..........  $4,300.
 1322(a).
INA Sec.   273(b); 8 U.S.C.    $3,300..........  1999............           31.15  $1,027.95.......  1,000...........  $1,000..........  $4,300.
 1323(b).
INA Sec.   274D; 8 U.S.C.      $500............  Enacted in 1996.           39.10  $195.50.........  10% statutory     $50.............  $550.
 1324d.                                                                                               cap.
INA Sec.   275(b); 8 U.S.C.    $50 minimum/$250  Enacted in 1996.           39.10  $19.55 minimum/   10% statutory     $5 minimum/$25    $55 minimum/
 1325(b).                       maximum.                                            $97.75 maximum.   cap.              maximum.          $275 maximum.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The increased penalty amounts will apply only to violations that 
occur on or after the effective date of this rule. For violations that 
occurred before the effective date, the current penalties listed as the 
first amount in the regulation (and shown in the chart above) will 
apply.
    DHS is amending 8 CFR 280.53(c) to adjust the listed penalty 
amounts pursuant to the statutory formula discussed above. DHS is also 
amending 8 CFR 280.53(c) to add to the list those civil monetary 
penalties that are being adjusted for the first time. These include the 
penalties prescribed in sections 240B(d), 243(c)(1), 274D, and 275(b) 
of the INA. These penalties were previously listed in Sec.  280.53(d), 
entitled, ``Identification of sections requiring no adjustment to 
penalties.'' Because these penalties will be incorporated in 8 CFR 
280.53(c) in the final rule, DHS is removing 8 CFR 280.53(d).

IV. Conforming Changes to DHS Regulations

    As explained further in the following section discussing changes to 
the DOJ regulations, part 280 contains two existing regulations (last 
amended in 1989), that have never been updated to reflect subsequent 
changes in the relevant regulatory provisions. DHS is making two 
technical, conforming amendments to provide revised language referring 
to the correct, current regulatory provisions. Sections 280.13(b) and 
280.51(c) are being revised to delete the phrase ``an appeal may be 
taken to the Board of Immigration Appeals (Board) within 15 days after 
the mailing of the notification of decision as provided in part 3 of 
this chapter'' and to substitute the phrase ``an appeal may be taken to 
the Board as provided in 8 CFR part 1003.''

V. Changes to DOJ Regulations

    DOJ has concluded that it is not necessary to retain the provisions 
of 8 CFR 1280.53 to reflect the inflation adjustments to the penalties 
imposed by DHS. Section 1280.53, which, as noted above, simply 
reproduces the DHS regulations at 8 CFR 280.53, was promulgated in 2003 
in connection with the transfer of authority from the former INS to 
DHS. See 68 FR 9824 (Feb. 28, 2003). To ensure that all relevant 
authority relating to the shared responsibilities of DHS and DOJ was 
preserved, DOJ duplicated in their entirety the regulations in 8 CFR 
280 into new part 1280 so that these provisions would also continue to 
be a part of the DOJ regulations. See id. at 9827. Following the 
transfer of authority, the Board retained appellate authority to review 
DHS decisions involving certain administrative fines and penalties 
listed in 8 CFR 280.53. See 8 CFR 1003.1(b)(4). Because the Board's 
appellate authority to review DHS decisions involving the penalty 
provisions set forth in 8 CFR 280.53 is provided in 8 CFR part 1003 and 
because the duplicative language in 8 CFR 1280.53 does not add anything 
to the existing regulatory provisions, DOJ is removing Sec.  1280.53 to 
eliminate the duplicative language.
    Upon review of the remaining provisions in part 1280 other than 
Sec.  1280.53, DOJ has concluded that these other provisions do not 
need to be retained in the EOIR regulations either. These other 
provisions in part 1280 duplicate regulatory provisions in 8 CFR 280 
and almost all of them relate solely to the authority of DHS to impose 
fines and civil monetary penalties. It is unnecessary to duplicate in 
the EOIR regulations the text of provisions that pertain to DHS's 
internal authority.
    There are two provisions in part 1280 relating directly to the 
authority of the Board, Sec. Sec.  1280.13(b) and 1280.51(c), each of 
which provides that ``an appeal may be taken to the Board [from DHS's 
decision] within 15 days after the mailing of the notification of 
decision as provided in part 3 of this chapter.'' These two provisions, 
and the corresponding provisions in part 280 from which they were 
taken, have not been substantively revised since 1989 and have long 
been out-of-date. Sections 1280.13(b) and 1280.51(c) still refer to 8 
CFR part 3, even though the relevant provisions of that part were 
redesignated as part 1003 in 2003, as discussed above. More 
significantly, the current language in Sec. Sec.  1280.13(b) and 
1280.51(c) (and the corresponding language in Sec. Sec.  280.13(b) and 
280.51(c) of the DHS regulations) refers to a 15-day period for the 
filing of an appeal to the Board. Those provisions have never been 
revised to conform to the regulatory amendments that were made years 
ago to extend the period for filing an appeal to the Board from a DHS 
decision to 30 days, as is provided in Sec.  1003.3(a)(2). See 67 FR 
54878, 54904 (Aug. 26, 2002). These provisions accordingly need to be 
removed from part 1280 to avoid confusion given that the controlling 
regulations relating to the Board's appellate review are set forth in 
Sec.  1003.3.
    For these reasons, DOJ is removing all of the current provisions in 
part 1280 and adding a new Sec.  1280.1, which cross-references the DHS 
regulations in 8 CFR part 280 and the EOIR regulations in 8 CFR part 
1003 governing the appellate authority of the Board. The removal of 
these duplicative regulatory provisions does not affect the current 
legal regime or the authority of the Board to adjudicate appeals from 
DHS decisions imposing fines and civil penalties under 8 CFR part 280.
    DOJ has already made similar changes to its regulations at 8 CFR 
part 1274a, addressing control of employment of aliens. See 76 FR 16525 
(Mar. 24, 2011); 74 FR 2337, 2339 (Jan. 15, 2009). There, DOJ removed 
duplicative regulations in part 1274a, and replaced them with a new 
Sec.  1274a.1 that contains a cross-reference to the DHS regulations at 
8 CFR part 274a. A statement was added indicating that these DHS 
regulations apply, to the extent relevant, in proceedings before EOIR. 
The changes that DOJ is making to 8 CFR part 1280 in this final rule 
are modeled on the

[[Page 74629]]

changes DOJ previously made to 8 CFR part 1274a in an analogous 
context. These changes to part 1280 do not alter the current legal 
regime because the regulations in part 1280, which have been applicable 
to the Board, merely duplicate the existing regulations in part 280.

VI. Regulatory Analyses

A. Administrative Procedure Act (APA), 5 U.S.C. 553

    This final rule is being promulgated to ensure that the amount of 
civil penalties assessed or enforced by DHS reflect the statutorily 
mandated ranges as adjusted for inflation. Pursuant to 5 U.S.C. 
553(b)(3)(B), the Secretary and the Attorney General find that good 
cause exists for immediate implementation of this final rule without 
prior notice and comment because it would be unnecessary to delay 
publication of this rule in final form, pending notice and an 
opportunity for public comment. This rule is a nondiscretionary 
ministerial action as the calculations of the adjustments follow the 
mathematical formula set forth in section 5 of the Adjustment Act, as 
amended. In addition, the other changes to part 1280 do not alter the 
current legal requirements or the authority of the Board to adjudicate 
appeals from DHS decisions imposing fines and penalties under 8 CFR 
part 280 because the regulations in part 1280 merely duplicate the 
existing regulations in part 280. For these reasons, notice and comment 
would be unnecessary.

B. Executive Order 12866 and Regulatory Flexibility Act

    This final rule does not meet the criteria of a ``significant 
regulatory action'' as specified under Executive Order 12866, section 
3(f), Regulatory Planning and Review, and accordingly this rule has not 
been reviewed by the Office of Management and Budget. Furthermore, the 
Regulatory Flexibility Act applies only to rules for which an agency 
publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 
553(b). See 5 U.S.C. 601 et seq. The Regulatory Flexibility Act does 
not apply to this final rule because a notice of proposed rulemaking is 
not required for the reasons stated above.

C. Executive Order 13132: Federalism

    This final rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of the government. Therefore, in accordance with 
Executive Order 13132, it is determined that this final rule does not 
have sufficient federalism implications to warrant a preparation of a 
Federalism Assessment.

D. Unfunded Mandates Reform Act of 1995

    This final rule will not result in the expenditure by State, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any one year, and will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the Unfunded Mandates Reform Act of 1995.

E. Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. 
chapter 35, and its implementing regulations, 5 CFR part 1320, do not 
apply to this final rule because there are no new or revised 
recordkeeping or reporting requirements triggered by this final rule.

F. Executive Order 12988: Civil Justice Reform

    This rule meets the applicable standards set forth in sections 3(a) 
and 3(b)(2) of Executive Order 12988.

VII. Signing Authority

    This amendment to the regulations is being issued in accordance 
with 8 U.S.C. 1103 pertaining to the authority of the Secretary of 
Homeland Security (or his/her delegate) and the Attorney General (or 
his/her delegate) to prescribe regulations regarding immigration and 
nationality.

List of Subjects

8 CFR Part 280

    Administrative practice and procedure, Immigration, and Penalties.

8 CFR Part 1280

    Administrative practice and procedure, Immigration, and Penalties.

Department of Homeland Security

8 CFR CHAPTER I

    For the reasons stated in the preamble, the Secretary amends part 
280 of title 8 of the Code of Federal Regulations as set forth below.

PART 280--IMPOSITION AND COLLECTION OF FINES

0
1. The authority citation for part 280 is revised to read as follows:

    Authority:  8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 
1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197, 
201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.


Sec.  280.13  [Amended]

0
2. In Sec.  280.13, the last sentence of paragraph (b) is amended by 
removing the phrase ``an appeal may be taken to the Board within 15 
days after the mailing of the notification of decision as provided in 
part 3 of this chapter'' and adding in its place the phrase ``an appeal 
may be taken to the Board as provided in 8 CFR part 1003''.


Sec.  280.51  [Amended]

0
3. In Sec.  280.51, the last sentence of paragraph (c) is amended by 
removing the phrase ``an appeal may be taken to the Board within 15 
days after the mailing of the notification of decision as provided in 
part 3 of this chapter'' and adding in its place the phrase ``an appeal 
may be taken to the Board as provided in 8 CFR part 1003''.

0
4. Section 280.53 is revised to read as follows:


Sec.  280.53  Civil monetary penalties inflation adjustment.

    (a) In general. In accordance with the requirements of the Federal 
Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 
104 Stat. 890, as amended by the Debt Collection Improvement Act of 
1996, Public Law 104-34, 110 Stat. 1321, the civil monetary penalties 
provided by law within the jurisdiction of the Department of Homeland 
Security (DHS) and listed in paragraph (c) of this section are adjusted 
as set forth in this section, effective for violations occurring on or 
after January 3, 2012.
    (b) Calculation of adjustment. (1) The inflation adjustments 
described in paragraph (c) of this section were determined by 
increasing the maximum civil monetary penalty or the range of minimum 
and maximum civil monetary penalties, as applicable, for each civil 
monetary penalty assessed or enforced by DHS by the cost-of-living 
adjustment as that term is defined by the Federal Civil Penalties 
Inflation Adjustment Act of 1990, Public Law 101-410. Any increase so 
determined was rounded to the nearest--
    (i) Multiples of $10 in the case of penalties less than or equal to 
$100;
    (ii) Multiples of $100 in the case of penalties greater than $100 
but less than or equal to $1,000;
    (iii) Multiples of $1,000 in the case of penalties greater than 
$1,000 but less than or equal to $10,000;
    (iv) Multiples of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000;

[[Page 74630]]

    (v) Multiples of $10,000 in the case of penalties greater than 
$100,000 but less than or equal to $200,000; and
    (vi) Multiples of $25,000 in the case of penalties greater than 
$200,000.
    (2) Notwithstanding the provisions of paragraph (b)(1) of this 
section, the initial adjustment for each penalty is capped at 10%.
    (c) Adjustment to penalties. The civil monetary penalties provided 
by law within the jurisdiction of DHS, as set forth in this paragraph 
(c)(1) through (14), are adjusted in accordance with the inflation 
adjustment procedures prescribed in section 5 of the Federal Civil 
Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 
effective for violations occurring on or after January 3, 2012 as 
follows:
    (1) Section 231(g) of the Act, Penalties for non-compliance with 
arrival and departure manifest requirements for passengers, 
crewmembers, or occupants transported on commercial vessels or aircraft 
arriving to or departing from the United States: From $1,000 to $1,100.
    (2) Section 234 of the Act, Penalties for non-compliance with 
landing requirements at designated ports of entry for aircraft 
transporting aliens: From $2,200 to $3,200.
    (3) Section 240B(d) of the Act, Penalties for failure to depart 
voluntarily: From $1,000 minimum/$5,000 maximum to $1,100 minimum/
$5,500 maximum.
    (4) Section 243(c)(1) of the Act, Penalties for violations of 
removal orders relating to aliens transported on vessels or aircraft, 
under section 241(d) of the Act, or for costs associated with removal 
under section 241(e) of the Act, from $2,000 to $2,200; and penalties 
for failure to remove alien stowaways under section 241(d)(2), from 
$5,000 to $5,500.
    (5) Section 251(d) of the Act, Penalties for failure to report an 
illegal landing or desertion of alien crewmen, and for each alien not 
reported on arrival or departure manifest and lists in accordance with 
section 251 of the Act: From $220 to $320; and penalties for use of 
alien crewmen for longshore work in violation of section 251(d) of the 
Act: From $5,500 to $7,500.
    (6) Section 254(a) of the Act, Penalties for failure to control 
alien crewmen: From $550 minimum/$3,300 maximum to $750 minimum/$4,300 
maximum.
    (7) Section 255 of the Act, Penalties for employment on passenger 
vessels of aliens afflicted with certain disabilities: Remains at 
$1,100.
    (8) Section 256 of the Act, Penalties for discharge of alien 
crewmen: From $1,500 minimum/$3,300 maximum to $1,500 minimum/$4,300 
maximum.
    (9) Section 257 of the Act, Penalties for bringing into the United 
States alien crewmen with intent to evade immigration laws: From 
$11,000 maximum to $16,000 maximum.
    (10) Section 271(a) of the Act, Penalties for failure to prevent 
the unauthorized landing of aliens: From $3,300 to $4,300.
    (11) Section 272(a) of the Act, Penalties for bringing to the 
United States aliens subject to denial of admission on a health-related 
ground: From $3,300 to $4,300.
    (12) Section 273(b) of the Act, Penalties for bringing to the 
United States aliens without required documentation: From $3,300 to 
$4,300.
    (13) Section 274D of the Act, Penalties for failure to depart: From 
$500 to $550, for each day the alien is in violation.
    (14) Section 275(b) of the Act, Penalties for improper entry: From 
$50 minimum/$250 maximum to $55 minimum/$275 maximum, for each entry or 
attempted entry.

Department of Justice

8 CFR CHAPTER V

    For the reasons stated in the preamble, the Attorney General amends 
part 1280 of title 8 of the Code of Federal Regulations, as set forth 
below.

PART 1280--IMPOSITION AND COLLECTION OF FINES

0
1. The authority citation for part 1280 is revised to read as follows:

    Authority:  8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281, 
1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197, 
201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.


0
2. Section 1280.1 is revised to read as follows:


Sec.  1280.1  Review of fines and civil monetary penalties imposed by 
DHS.

    (a) Applicable regulations. The regulations of the Department of 
Homeland Security (DHS) relating to the imposition of certain fines and 
civil monetary penalties under provisions of the Immigration and 
Nationality Act, including sections 231(g), 234, 240B(d), 241(d) and 
(e), 243(c)(1), 251(d), 254(a), 255, 256, 257, 271(a), 272(a), 273(b), 
274D, and 275(b), are contained in 8 CFR part 280.
    (b) Adjudication of civil monetary penalty proceedings. The Board 
of Immigration Appeals (Board) has appellate authority to review DHS 
decisions involving fines and civil monetary penalties imposed under 8 
CFR part 280, as provided under 8 CFR part 1003. The regulations in 8 
CFR part 280 governing the imposition of certain fines and civil 
monetary penalties are applicable in such proceedings before the Board.
    (c) Civil monetary penalties under sections 274A, 274B, or 274C. 
For regulations relating to civil monetary penalties imposed under 
sections 274A, 274B, or 274C of the Act, see 8 CFR parts 274a and 1274a 
and 28 CFR part 68.

0
3. Sections 1280.2 through 1280.7 are removed.

0
4. Sections 1280.11 through 1280.15 are removed.

0
5. Section 1280.21 is removed.

0
6. Sections 1280.51 through 1280.53 are removed.

Janet Napolitano,
Secretary.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-30174 Filed 11-30-11; 8:45 am]
BILLING CODE 4410-10-P