[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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)).
---------------------------------------------------------------------------
(7) 16 U.S.C. 959, Tuna Conventions Act of 1950 \2\ (new penalty),
violation, maximum $178,156.
---------------------------------------------------------------------------
\2\ See footnote 1.
---------------------------------------------------------------------------
(8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------
\3\ See footnote 1.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\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)).
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\5\ See footnote 4.
---------------------------------------------------------------------------
(17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\
violation, maximum from $6,500 to $178,156.
---------------------------------------------------------------------------
\6\ See footnote 4.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\7\ See footnote 1.
---------------------------------------------------------------------------
(20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------
\8\ See footnote 1.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\9\ See footnote 4.
---------------------------------------------------------------------------
(23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative
Management Act,\10\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------
\10\ See footnote 1.
---------------------------------------------------------------------------
(24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation
Act,\11\ violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------
\11\ See footnote 1.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\12\ See footnote 1.
---------------------------------------------------------------------------
(27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries
Convention Implementation Act,\13\ violation, maximum from $140,000 to
$178,156.
---------------------------------------------------------------------------
\13\ See footnote 1.
---------------------------------------------------------------------------
(28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\
violation, maximum from $140,000 to $178,156.
---------------------------------------------------------------------------
\14\ See footnote 1.
---------------------------------------------------------------------------
(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.
---------------------------------------------------------------------------
\15\ See footnote 1.
---------------------------------------------------------------------------
(33) 16 U.S.C. 7407(b)(1), Port State Measures Agreement Act of
2015 \16\ (new penalty), violation, maximum $178,156.
---------------------------------------------------------------------------
\16\ See footnote 1.
---------------------------------------------------------------------------
(34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium
Protection Act \17\ (new penalty), violation, maximum $178,156.
---------------------------------------------------------------------------
\17\ See footnote 1.
---------------------------------------------------------------------------
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