[Federal Register Volume 81, Number 109 (Tuesday, June 7, 2016)]
[Rules and Regulations]
[Pages 36454-36458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13231]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 6

[Docket No. 160523449-6449-01]
RIN 0605-AA44


Civil Monetary Penalty Adjustments for Inflation

AGENCY: Office of the Chief Financial Officer and Assistant Secretary 
for Administration, Department of Commerce.

ACTION: Interim final rule with request for comments.

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SUMMARY: This interim final rule is being issued to adjust for 
inflation each civil monetary penalty (CMP) provided by law within the 
jurisdiction of the Department of Commerce (Commerce Department). The 
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by 
the Debt Collection Improvement Act of 1996 and the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015, requires 
the head of each agency to adjust for inflation its CMP levels in 
effect as of November 2, 2015, under a revised methodology effective 
for 2016 which provides for initial catch up adjustments for inflation 
in 2016, and under a revised methodology for each year thereafter. The 
revised methodologies provide for the improvement of the effectiveness 
of CMPs and to maintain their deterrent effect. The initial catch up 
adjustment for inflation of a CMP in 2016 shall not exceed 150 percent 
of the amount of the CMP on the date of enactment of the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (November 
2, 2015). The initial catch up adjustments for inflation to CMPs are 
required to be published through an interim final rule not later than 
July 1, 2016, and the adjustments for inflation shall take effect not 
later than August 1, 2016. For each year thereafter, the adjustments 
for inflation to CMPs shall take effect not later than January 15. 
These adjustments for inflation apply only to CMPs with a dollar 
amount, and will not apply to CMPs written as functions of violations.

[[Page 36455]]

These adjustments for inflation apply only to those CMPs, including 
those whose associated violation predated such adjustment, which are 
assessed by Commerce Department after the effective date of the new CMP 
level.

DATES:  This rule is effective July 7, 2016; comments must be received 
on or before July 7, 2016.

ADDRESSES: You may submit comments, identified by the regulations.gov 
docket number DOC-2016-0004, by any of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=DOC-2016-0004 click the ``Comment Now'' icon, complete 
the required fields, and enter or attach your comments.
     Mail: Acting Deputy Chief Financial Officer, Office of 
Financial Management, Department of Commerce, 1401 Constitution Ave 
NW., Room D200, Washington, DC 20230.
    Instructions: You must submit comments by one of the above methods 
to ensure that Commerce Department receives the comments and considers 
them. Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered. All comments received are a part of the public record and 
will generally be posted to http://www.regulations.gov without change. 
All Personal Identifying Information (for example, name, address, etc.) 
voluntarily submitted by the commenter may be publicly accessible. Do 
not submit Confidential Business Information or otherwise sensitive or 
protected information.
    Commerce Department will accept anonymous comments (enter ``N/A'' 
in the required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, 
WordPerfect, or Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Jennifer Ayers, Acting Deputy Chief 
Financial Officer and Director for Financial Management, Office of 
Financial Management, at (202) 482-1207, Department of Commerce, 1401 
Constitution Avenue NW., Room D200, Washington, DC 20230. The Commerce 
Department Civil Monetary Penalties; Adjustment for Inflation are 
available for downloading from Commerce Department, Office of Financial 
Management's Web site at the following address: http://www.osec.doc.gov/ofm/OFM_Publications.html.

SUPPLEMENTARY INFORMATION: 

Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. 
L. 101-410; 28 U.S.C. 2461), as amended by the Debt Collection 
Improvement Act of 1996 (Pub. L. 104-134), provided for adjustments for 
inflation to CMPs to ensure that CMPs continue to maintain their 
deterrent value and that CMPs due to the Federal Government were 
properly accounted for and collected. On October 24, 1996, November 1, 
2000, December 14, 2004, December 11, 2008, and December 7, 2012, 
Commerce Department published in the Federal Register a schedule of 
CMPs adjusted for inflation as required by law.
    A CMP 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.
    On November 2, 2015, the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114-74) 
further amended the Federal Civil Penalties Inflation Adjustment Act of 
1990 to improve the effectiveness of CMPs and to maintain their 
deterrent effect. This amendment requires agencies to: (1) Adjust the 
CMP levels in effect as of November 2, 2015, with initial catch up 
adjustments for inflation through an interim final rulemaking; and (2) 
make subsequent annual adjustments for inflation to CMPs.
    Agencies are required to publish interim final rules with initial 
catch up adjustments for inflation by July 1, 2016, and the adjustments 
for inflation shall take effect no later than August 1, 2016. For each 
year thereafter, the adjustments for inflation to CMPs shall take 
effect not later than January 15.
    The maximum amount for an initial catch up adjustment for inflation 
shall not exceed 150 percent of the amount of that CMP on the date of 
enactment of the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (November 2, 2015).
    These adjustments for inflation apply only to CMPs with a dollar 
amount, and will not apply to CMPs written as functions of violations. 
These adjustments for inflation apply only to those CMPs, including 
those whose associated violation predated such adjustment, which are 
assessed by Commerce Department after the effective date of the new CMP 
level.
    For an initial catch up adjustment for inflation to a CMP, agencies 
may adjust for inflation the amount of a CMP by less than the otherwise 
required amount if after publishing a notice of proposed rulemaking and 
providing an opportunity for comment, the agency determines in a final 
rule that increasing that CMP by the otherwise required amount will 
have a negative economic impact; or the social costs of increasing that 
CMP by the otherwise required amount outweigh the benefits. The 
concurrence of the Director of the Office of Management and Budget will 
be required if the adjustment for inflation is less than the otherwise 
required amount.
    This regulation adjusts for inflation CMPs that are provided by law 
within the jurisdiction of Commerce Department. The actual CMP assessed 
for a particular violation is dependent upon a variety of factors. For 
example, the National Oceanic and Atmospheric Administration's (NOAA) 
Policy for the Assessment of Civil Administrative Penalties and Permit 
Sanctions (Penalty Policy), a compilation of NOAA internal guidelines 
that are used when assessing CMPs 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 CMPs. The CMP 
ranges in the Penalty Policy are intended to aid enforcement attorneys 
in determining the appropriate CMP to assess for a particular 
violation. The Penalty Policy is maintained and made available to the 
public on the NOAA Office of the General Counsel, Enforcement Section, 
Web site at: http://www.gc.noaa.gov/enforce-office3.html.
    The initial catch up adjustments for inflation to CMPs set forth in 
this regulation were determined pursuant to the revised methodology 
prescribed by the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015, 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'' is defined 
by the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015. For the initial catch up adjustments for inflation to 
CMPs, the cost-of-living adjustment is the percentage (if any) for each 
CMP by which the Consumer Price Index for the month of October 2015 
exceeds the Consumer Price Index of October of the calendar year during 
which the amount of such CMP was established or adjusted under a 
provision of law other than the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of

[[Page 36456]]

2015. For subsequent adjustments for inflation to CMPs, the cost-of-
living adjustment is the percentage (if any) for each CMP by which the 
Consumer Price Index for the month of October preceding the date of the 
adjustment exceeds the Consumer Price Index for the previous month of 
October.

Classification

    Pursuant to 5 U.S.C. 553(b)B, there is good cause to issue this 
rule without prior public notice or opportunity for public comment 
because it would be impracticable and unnecessary. The Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 
701(b)(1)) requires initial catch up adjustments for inflation to CMPs 
and to provide the new CMP levels through an interim final rulemaking, 
to be published by July 1, 2016. This law also requires agencies to 
make subsequent annual adjustments for inflation to CMPs 
notwithstanding section 553 of title 5, United States Code. 
Additionally, the methodologies used for adjusting CMPs for inflation 
is given by statute, with no discretion provided to agencies regarding 
the substance of the adjustments for inflation to CMPs. Commerce 
Department is charged only with performing ministerial computations to 
determine the dollar amount of adjustments for inflation to CMPs. 
Accordingly, prior public notice and comment are not required for this 
rule.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this rule because there are no new or 
revised recordkeeping or reporting requirements.

Regulatory Analysis

E.O. 12866, Regulatory Review

    This rule is not a significant regulatory action as the term is 
defined in Executive Order 12866.

Regulatory Flexibility Act

    Because notice of proposed rulemaking and opportunity for comment 
are not required pursuant to 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility act (5 U.S.C. 
601, et seq.) are inapplicable. Therefore, a regulatory flexibility 
analysis is not required and has not been prepared.

List of Subjects in 15 CFR Part 6

    Law enforcement, Civil monetary penalties.

    Dated: May 31, 2016.
Jennifer Ayers,
Acting Deputy Chief Financial Officer and Director for Financial 
Management, Department of Commerce.

Authority and Issuance

0
For the reasons stated in the preamble, Commerce Department revises 15 
CFR part 6 to read as follows:

PART 6--CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION

Sec.
Sec.  6.1 Definitions.
Sec.  6.2 Purpose and scope.
Sec.  6.3 Limitation on initial catch up adjustments for inflation.
Sec.  6.4 Adjustments for inflation.
Sec.  6.5 Effective date of adjustments for inflation.
Sec.  6.6 Subsequent adjustments for inflation.

    Authority:  Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 
note); Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 
701 of Pub. L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 
2461 note).


Sec.  6.1  Definitions.

    (a) Commerce Department means the United States Department of 
Commerce.
    (b) Civil Monetary Penalty means 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.


Sec.  6.2  Purpose and scope.

    The purpose of this part is to make adjustments for inflation to 
civil monetary penalties, as required by the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-
134) and the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (Section 701 of Pub. L. 114-74), of each civil 
monetary penalty provided by law within the jurisdiction of the United 
States Department of Commerce (Commerce Department).


Sec.  6.3  Limitation on initial catch up adjustments for inflation.

    The initial catch up adjustment for inflation to a civil monetary 
penalty shall not exceed 150 percent of the amount of that civil 
monetary penalty that was in effect as of November 2, 2015.


Sec.  6.4  Adjustments for inflation.

    The civil monetary penalties provided by law within the 
jurisdiction of Commerce Department, as set forth in paragraphs (a) 
through (f) of this section, are hereby adjusted for inflation in 
accordance with the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended, from the amount of such civil monetary penalties that 
was in effect as of November 2, 2015, to the amounts of such civil 
monetary penalties, as thus adjusted. The year stated in parenthesis 
represents the year that the civil monetary penalty was last set by law 
or adjusted by law (excluding adjustments for inflation).
    (a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1), 
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum 
from $5,500 to $10,781.
    (2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986 
(1986; newly reported penalty), violation, maximum $10,781.
    (3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation, 
minimum from $5,500 to $10,781; maximum from $11,000 to $21,563.
    (b) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act (1990), violation, maximum from $32,500 to 
$44,539.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $25,000 to $36,256.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $5,000 to $7,251.
    (4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act 
(2007), violation, maximum $284,582.
    (5) 22 U.S.C. 8142(a), United States Additional Protocol 
Implementation Act (2006), violation, maximum from $27,500 to $29,464.
    (c) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade 
Statistics (2002), each day's delinquency of a violation; total of not 
to exceed maximum violation, from $1,000 to $1,312; maximum per 
violation, from $10,000 to $13,118.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics 
(2002), violation, maximum from $10,000 to $13,118.
    (d) Economics and Statistics Administration. (1) 22 U.S.C. 3105(a), 
International Investment and Trade in Services Act (1990); failure to 
furnish information, minimum from $2,500 to $4,454; maximum from 
$32,500 to $44,539.
    (e) International Trade Administration. (1) 19 U.S.C. 81s,

[[Page 36457]]

Foreign Trade Zone (1934), violation, maximum from $1,100 to $2,750.
    (2) 19 U.S.C. 1677f(f)(4), U.S.-Canada FTA Protective Order (1988), 
violation, maximum from $130,000 to $197,869.
    (f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C. 
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation, 
maximum from $10,000 to $10,874.
    (2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010 
(2010), violation, maximum from $10,000 to $10,874.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
violation, maximum from $200,000 to $227,666.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from $650 
to $1,625.
    (5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950 
(1962):
    (i) Violation of 16 U.S.C. 957(a), maximum from $32,500 to $81,250.
    (ii) Subsequent violation of 16 U.S.C. 957(a), maximum from $70,000 
to $175,000.
    (iii) Violation of 16 U.S.C. 957(b), maximum from $1,100 to $2,750.
    (iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $6,500 
to $16,250.
    (v) Violation of 16 U.S.C. 957(c), maximum from $140,000 to 
$350,000.
    (6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950 \1\ (new 
penalty), violation, maximum $178,156.
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    \1\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty, as prescribed by law, is the maximum civil 
penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation 
and Management Act civil monetary penalty (item (15)).
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    (7) 16 U.S.C. 959, Tuna Conventions Act of 1950 \2\ (new penalty), 
violation, maximum $178,156.
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    \2\ See footnote 1.
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    (8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\ 
violation, maximum from $140,000 to $178,156.
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    \3\ See footnote 1.
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    (9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988), 
violation, maximum from $350,000 to $494,672.
    (10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983), 
violation, maximum from $11,000 to $23,548.
    (11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1972), violation, maximum from $11,000 to $27,500.
    (12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information 
Act,\4\ violation, maximum from $130,000 to $178,156.
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    \4\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty was revised by law in 2015 to be the maximum 
civil penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery 
Conservation and Management Act civil monetary penalty (item (15)).
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    (13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
violation, maximum from $140,000 to $167,728.
    (14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Violation as specified (1988), maximum from $32,500 to $49,467.
    (ii) Violation as specified (1988), maximum from $13,200 to 
$23,744.
    (iii) Otherwise violation (1978), maximum from $650 to $1,625.
    (15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation, maximum from $140,000 to $178,156.
    (16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources 
Convention Act of 1984,\5\ violation, maximum from $6,500 to $178,156.
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    \5\ See footnote 4.
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    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\ 
violation, maximum from $6,500 to $178,156.
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    \6\ See footnote 4.
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    (18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
    (i) 16 U.S.C. 3373(a)(1), violation, maximum from $11,000 to 
$25,464.
    (ii) 16 U.S.C. 3373(a)(2), violation, maximum from $275 to $637.
    (19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 
1982,\7\ violation, maximum from $140,000 to $178,156.
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    \7\ See footnote 1.
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    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\ 
violation, maximum from $140,000 to $178,156.
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    \8\ See footnote 1.
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    (21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 
1986 (1986); violation, minimum from $500 to $1,078; maximum from 
$6,500 to $10,781.
    (22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 
1992,\9\ violation, maximum from $130,000 to $178,156.
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    \9\ See footnote 4.
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    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act,\10\ violation, maximum from $140,000 to $178,156.
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    \10\ See footnote 1.
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    (24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation 
Act,\11\ violation, maximum from $140,000 to $178,156.
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    \11\ See footnote 1.
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    (25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995 
(1995), violation, maximum from $130,000 to $154,742.
    (26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995,\12\ violation, maximum from $140,000 to $178,156.
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    \12\ See footnote 1.
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    (27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act,\13\ violation, maximum from $140,000 to 
$178,156.
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    \13\ See footnote 1.
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    (28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\ 
violation, maximum from $140,000 to $178,156.
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    \14\ See footnote 1.
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    (29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation, maximum from $11,000 to $27,500.
    (ii) Subsequent violation, maximum from $32,500 to $81,250.
    (30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation, maximum, from $32,500 to $70,117.
    (31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980 
(1980), violation, maximum from $32,500 to $70,117.
    (32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012 \15\ (new 
penalty), violation, maximum $178,156.
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    \15\ See footnote 1.
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    (33) 16 U.S.C. 7407(b)(1), Port State Measures Agreement Act of 
2015 \16\ (new penalty), violation, maximum $178,156.
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    \16\ See footnote 1.
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    (34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium 
Protection Act \17\ (new penalty), violation, maximum $178,156.
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    \17\ See footnote 1.
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Sec.  6.5  Effective date of adjustments for inflation.

    The adjustments for inflation made by Sec.  6.4, of the civil 
monetary penalties there specified, are effective on July 7, 2016, and 
said civil monetary penalties, as thus adjusted by the adjustments for 
inflation made by Sec.  6.4, apply only to those civil monetary 
penalties, including those whose associated violation predated such 
adjustment, which are assessed by Commerce Department after the 
effective date of the new civil monetary penalty level, and before the 
effective date of any future adjustments for inflation to civil 
monetary penalties thereto made subsequent to July 7, 2016 as provided 
in Sec.  6.6.


Sec.  6.6  Subsequent adjustments for inflation.

    The Secretary of Commerce or his or her designee by regulation 
shall make subsequent adjustments for inflation to Commerce 
Department's civil monetary penalties annually, which shall take effect 
not later than January 15, 2017,

[[Page 36458]]

and for each year thereafter, notwithstanding section 553 of title 5, 
United States Code.
[FR Doc. 2016-13231 Filed 6-6-16; 8:45 am]
 BILLING CODE 3510-DP-P