[Federal Register Volume 79, Number 60 (Friday, March 28, 2014)]
[Rules and Regulations]
[Pages 17434-17436]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-06979]
[[Page 17434]]
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DEPARTMENT OF JUSTICE
28 CFR Parts 36 and 85
[Docket No. CRT 127; AG Order No. 3324-2014]
Civil Monetary Penalties Inflation Adjustment--Civil Rights
Division
AGENCY: Office of the Attorney General, Justice.
ACTION: Final rule.
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SUMMARY: In accordance with section 4 of the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Debt Collection
Improvement Act of 1996, the Department of Justice is adjusting for
inflation the civil monetary penalties assessed or enforced by the
Civil Rights Division.
DATES: This rule is effective April 27, 2014.
FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel,
Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK
Building, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone
(202) 514-8059 (not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
The Federal Civil Penalties Inflation Adjustment Act of 1990,
Public Law 101-410, 28 U.S.C. 2461 note (Adjustment Act), provides for
the regular evaluation of civil monetary penalties to ensure that they
continue to maintain their deterrent effect and that penalty amounts
due the Federal Government are properly accounted for and collected. On
April 26, 1996, section 31001 of the Omnibus Consolidated Rescissions
and Appropriations Act of 1996, Public Law 104-134, also known as the
Debt Collection Improvement Act of 1996 (Improvement Act), amended the
Adjustment Act to provide for more effective tools for government-wide
collection of delinquent debt. In particular, section 31001(s)(1) of
the Improvement Act amended section 4 of 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''
and to ``publish each such regulation in the Federal Register'' not
later than 180 days after enactment of the Debt Collection Improvement
Act of 1996, and at least every four years thereafter. Subsection
(s)(1) also added a new section 7 to the Adjustment Act providing that
any increase in a civil monetary penalty made pursuant to that Act
shall apply only to violations that occur after the date the increase
takes effect. Subsection (s)(2) of the Improvement Act provides that
the first adjustment of a civil monetary penalty made pursuant to the
amendment in subsection (s)(1) may not exceed 10 percent of such
penalty.
In compliance with these statutory requirements, the Department of
Justice published a rule on February 12, 1999 (64 FR 7066), adjusting
the immigration-related civil monetary penalties, and a second rule on
August 30, 1999 (64 FR 47099), adjusting the other civil monetary
penalties assessed or enforced by the Department within its areas of
responsibility (codified in 28 CFR parts 36 and 85).
The amounts of the adjustments are determined according to a
formula set forth in the Adjustment Act, Public Law 101-410. The
statutory formulas for the inflation adjustment calculations are set
forth in 28 CFR 85.2, including the applicable ``rounder'' (or
increment) used for calculations based on the amount of the current
penalty. For example, the applicable ``rounder'' for a current $15,000
civil penalty amount is $5,000. This means that there would be no
adjustment of the current amount if the raw inflation adjustment
calculation shows an increase of less than $2,500, but the civil
penalty amount would be increased by the full $5,000 increment if the
raw inflation adjustment is above the rounding threshold.
Adjustments Made in This Rule for Civil Monetary Penalties Relating to
Civil Rights
By this rule, the Department of Justice is making adjustments for
inflation in the civil monetary penalties assessed or enforced by the
Civil Rights Division.\1\ The Department will separately publish a rule
adjusting the other civil monetary penalties assessed or enforced by
the Department.
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\1\ In addition to the civil monetary penalties addressed in
this rule, the Civil Rights Division's Office of Special Counsel for
Immigration-Related Unfair Employment Practices also has enforcement
authority with respect to violations of section 274B of the
Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The
Department most recently made adjustments to penalties under section
274B as part of a joint rule published with the Department of
Homeland Security on February 26, 2008 (73 FR 10130). During the
calculation of inflation adjustments for this rule, it was
determined that neither the civil monetary penalty amounts under INA
section 274B that were adjusted in 2008 nor the civil monetary
penalty amounts under INA section 274B that were not eligible for
adjustment in 2008 meet the threshold for adjustment at this time.
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Several civil monetary penalties were previously adjusted in 1999:
civil monetary penalties in the amounts of $55,000 and $110,000 under
the Americans With Disabilities Act, 42 U.S.C. 12188(b)(2)(C); civil
monetary penalties in the amounts of $11,000 and $27,500 under the
Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C.
248(c)(2)(B), and civil monetary penalties in the amounts of $55,000
and $110,000 under the Fair Housing Act of 1968, 42 U.S.C.
3614(d)(1)(C). However, this rule is also adjusting for the first time
the civil monetary penalties under the Servicemembers Civil Relief Act,
50 U.S.C. App. 597(b)(3), as amended in 2010, and two penalties imposed
under the Freedom of Access to Clinic Entrances Act of 1994, 28 U.S.C.
248(b), which had not previously been adjusted.
The adjustments in the civil monetary penalties under this rule
will take effect in 2014. In accordance with the Act, the adjustments
made by this rule are based on the Bureau of Labor Statistics' Consumer
Price Index for June of the calendar year preceding the year of
adjustment, that is, the amount for June 2013. The inflation factor
from June 1999 (166.2), the year of adjustment for the previously-
adjusted civil monetary penalties, to June 2013 (233.504) is 40.5%.
Applying that factor, and the applicable ``rounders,'' this rule
adjusts previously adjusted civil monetary penalty amounts as follows:
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Adjusted civil penalty
Current amount Raw inflation calculation Rounder Inflation adjustment amount
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$11,000 $4,455 $5,000 $5,000 $16,000
27,500 11,136 5,000 10,000 37,500
55,000 22,273 5,000 20,000 75,000
110,000 44,545 10,000 40,000 150,000
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[[Page 17435]]
Two civil monetary penalties in the amount of $15,000 imposed under
the Freedom of Access to Clinic Entrances Act of 1994 were not adjusted
in 1999 because they did not meet the threshold for adjustment at that
time. The inflation factor from June 1994 (148.0), the year of
enactment, to June 2013 (233.504) is 57.8%. Applying that factor for
the current $15,000 civil penalty amounts, the raw inflation
calculation is $8,666, above the applicable ``rounder'' of $5,000.
However, as this is the first adjustment, the increase is subject to a
10% cap as provided by statute for first adjustments. (Sec. (s)(2) of
the Adjustment Act.) Accordingly, these civil penalty amounts are being
increased from $15,000 to $16,500.
Finally, in 2010 Congress amended the Servicemembers Civil Relief
Act to add two civil monetary penalties, and the inflation factor from
June 2010 (217.965) to June 2013 (233.504) is 7.1%. This rule adjusts
these penalties for the first time. (Although these adjustments are
subject to a 10% cap for a first-time adjustment, the actual inflation
adjustment is less than 10%.)
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Adjusted Civil penalty
Current amount Raw inflation calculation Rounder Inflation adjustment amount
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$55,000 $3,921 $5,000 $5,000 $60,000
110,000 7,842 10,000 10,000 120,000
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In each case, the adjusted civil penalty amounts are applicable
only to violations occurring after the date the increase takes effect.
See 28 U.S.C. 2461 note. Therefore, violations occurring before April
28, 2014, are subject to the civil monetary penalty amounts set forth
in the Department's existing regulations in 28 CFR parts 36 and 85 (or
as set by statute if the amount has not yet been adjusted by
regulation).
Other agencies are responsible for the inflation adjustments of
certain other civil monetary penalties that the Department's litigating
components bring suit to collect. The reader should consult the
regulations of those other agencies for any inflation adjustments to
those penalties.
Administrative Procedure Act, 5 U.S.C. 553
The Attorney General finds that good cause exists under 5 U.S.C.
553(b)(3)(B) for immediate implementation of this final rule without
prior notice and comment. This rule is a nondiscretionary ministerial
action to conform the amount of civil penalties assessed or enforced by
the Department of Justice to the statutorily mandated ranges as
adjusted for inflation. The Attorney General is under a legal
obligation to adjust these civil penalties for inflation using a
statutorily required formula. The calculation of these inflation
adjustments follows the specific mathematical formula set forth in
section 5 of the Adjustment Act.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 605(b), has reviewed this rule and by approving it
certifies that it will not have a significant economic impact on a
substantial number of small entities. Only those entities that are
determined to have violated Federal law and regulations would be
affected by the increase in penalties made by this rule pursuant to the
statutory requirement. Further, no Regulatory Flexibility Act analysis
is required for this rule because publication of a notice of proposed
rulemaking was not required for it.
Executive Orders 12866 and 13563--Regulatory Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866 (``Regulatory Planning and Review''), section
1(b) (``The Principles of Regulation''), and in accordance with
Executive Order 13563 (``Improving Regulation and Regulatory Review''),
section 1 (``General Principles of Regulation'').
The Department of Justice has determined that this rule is not a
``significant regulatory action'' under Executive Order 12866, section
3(f), and accordingly this rule has not been reviewed by the Office of
Management and Budget.
Both Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). This
final rule, however, makes nondiscretionary adjustments to existing
civil monetary penalties, and the Department is required to promulgate
these adjustments in accordance with the formulas prescribed by
statute. The Department therefore does not have the flexibility to
alter the adjustments of the civil monetary penalty amounts as provided
in this rule.
Executive Order 13132--Federalism
This 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 government. Therefore, in accordance with Executive Order
13132 it is determined that this rule does not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Executive Order 12988--Civil Justice Reform
This regulation meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988.
Unfunded Mandates Reform Act of 1995
This 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 it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C.
804. It will not result in an annual effect on the economy of $100
million or more; a major increase in costs or prices; or significant
adverse effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign- based enterprises in domestic and export markets.
[[Page 17436]]
List of Subjects
28 CFR Part 36
Administrative practice and procedure, Alcoholism, Americans with
disabilities, Buildings, Business and industry, Civil rights, Consumer
protection, Drug abuse, Handicapped, Historic preservation, Penalties,
Reporting and recordkeeping requirements.
28 CFR Part 85
Penalties.
Accordingly, for the reasons set forth in the preamble, chapter I
of Title 28 of the Code of Federal Regulations is amended as follows:
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
0
1. The authority citation for part 36 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C.
12188(b); Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-
134, 110 Stat. 1321.
0
2. Section 36.504 is amended by revising paragraphs (a)(3)(i) and (ii)
to read as follows:
Sec. 36.504 Relief.
(a) * * *
(3) * * *
(i) Not exceeding $50,000 for a first violation occurring before
September 29, 1999, and not exceeding $55,000 for a first violation
occurring on or after September 29, 1999, and before April 28, 2014,
and not exceeding $75,000 for a first violation occurring on or after
April 28, 2014.
(ii) Not exceeding $100,000 for any subsequent violation occurring
before September 29, 1999, and not exceeding $110,000 for any
subsequent violation occurring on or after September 29, 1999, and
before April 28, 2014, and not exceeding $150,000 for any subsequent
violation occurring on or after April 28, 2014.
* * * * *
PART 85--CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT
0
3. The authority citation for part 85 continues to read as follows:
Authority: 5 U.S.C. 301, 28 U.S.C. 503; Pub. L. 101-410, 104
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
4. Section 85.3 is amended by revising the introductory text and
paragraph (b) to read as follows:
Sec. 85.3 Adjustments to penalties.
The civil monetary penalties provided by law within the
jurisdiction of the respective components of the Department, as set
forth in paragraphs (a) through (d) of this section, 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, as follows. The adjusted penalties set forth
in paragraphs (a), (c), and (d) of this section are effective for
violations occurring on or after September 29, 1999.
* * * * *
(b) Civil Rights Division. (1) 18 U.S.C. 248(c)(2)(B), Freedom of
Access to Clinic Entrances Act of 1994 (Nonviolent Physical
Obstruction):
(i) The civil monetary penalty amount for a first order for
nonviolent physical obstruction, initially set at $10,000, is adjusted
to $11,000 for a violation occurring on or after September 29, 1999,
and before April 28, 2014, and is adjusted to $16,000 for a violation
occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent order for
nonviolent physical obstruction, initially set at $15,000, is adjusted
to $16,500 for a violation occurring on or after April 28, 2014.
(2) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances
Act of 1994 (Other Violations):
(i) The civil monetary penalty amount for a first order other than
for nonviolent physical obstruction, initially set at $15,000, is
adjusted to $16,500 for a violation occurring on or after April 28,
2014.
(ii) The civil monetary penalty amount for a subsequent order other
than for nonviolent physical obstruction, initially set at $25,000, is
adjusted to $27,500 for a violation occurring on or after September 29,
1999, and before April 28, 2014, and is adjusted to $37,500 for a
violation occurring on or after April 28, 2014.
(3) 42 U.S.C. 3614(d)(1)(C), Fair Housing Act of 1968, as amended
(Pattern or Practice Violation):
(i) The civil monetary penalty amount for a first order, initially
set at $50,000, is adjusted to $55,000 for a violation occurring on or
after September 29, 1999, and before April 28, 2014, and is adjusted to
$75,000 for a violation occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent order,
initially set at $100,000, is adjusted to $110,000 for a violation
occurring on or after September 29, 1999, and before April 28, 2014,
and is adjusted to $150,000 for a violation occurring on or after April
28, 2014.
(4) 50 U.S.C. App. 597(b)(3), Servicemembers Civil Relief Act of
2003, as amended:
(i) The civil monetary penalty amount for a first violation,
initially set at $55,000, is adjusted to $60,000 for a violation
occurring on or after April 28, 2014.
(ii) The civil monetary penalty amount for a subsequent violation,
initially set at $110,000, is adjusted to $120,000 for a violation
occurring on or after April 28, 2014.
* * * * *
Dated: March 21, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-06979 Filed 3-27-14; 8:45 am]
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