[Federal Register Volume 81, Number 126 (Thursday, June 30, 2016)]
[Rules and Regulations]
[Pages 42491-42503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15528]
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DEPARTMENT OF JUSTICE
28 CFR Parts 20, 22, 36, 68, 71, 76, and 85
[Docket No. OAG 148; AG Order No. 3690-2016]
Civil Monetary Penalties Inflation Adjustment
AGENCY: Department of Justice.
ACTION: Interim final rule with request for comments.
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SUMMARY: In accordance with the provisions of the Bipartisan Budget Act
of 2015, the Department of Justice is adjusting for inflation civil
monetary penalties assessed or enforced by components of the
Department.
DATES: Effective date: This rule is effective August 1, 2016.
Public comments: Written comments must be postmarked and electronic
comments must be submitted on or before August 29, 2016. Commenters
should be aware that the electronic Federal Docket Management System
(FDMS) will accept comments submitted prior to Midnight Eastern Time on
the last day of the comment period.
ADDRESSES: To ensure proper handling of comments, please reference
``Docket No. OAG 148'' on all electronic and written correspondence.
The Department encourages all comments be submitted electronically
through http://www.regulations.gov using the electronic comment form
provided on that site. An electronic copy of this document is also
available at http://
[[Page 42492]]
www.regulations.gov for easy reference. Paper comments that duplicate
the electronic submission are not necessary as all comments submitted
to http://www.regulations.gov will be posted for public review and are
part of the official docket record. Should you, however, wish to submit
written comments via regular or express mail, they should be sent to
Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S.
Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue
NW., Washington, DC 20530.
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:
Posting of Public Comments
Please note that all comments received are considered part of the
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying
information (such as your name and address) voluntarily submitted by
the commenter. You are not required to submit personal identifying
information in order to comment on this rule. Nevertheless, if you want
to submit personal identifying information (such as your name and
address) as part of your comment, but do not want it to be posted
online, you must include the phrase ``PERSONAL IDENTIFYING
INFORMATION'' in the first paragraph of your comment.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. Personal identifying information and confidential
business information identified as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
Background
A. Prior Statutory Provisions for Inflation Adjustments
The Federal Civil Monetary Penalties Inflation Adjustment Act of
1990, Public Law 101-410, 28 U.S.C. 2461 note (2014) (``Inflation
Adjustment Act''), provided for the regular evaluation and adjustment
for inflation of civil monetary penalties to, among other things,
ensure that they continue to maintain their deterrent effect and that
penalty amounts due the Federal Government are properly accounted for
and collected. Section 31001(s)(1) 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 section 4 of the Inflation Adjustment Act to require
the head of each agency to adjust periodically each civil monetary
penalty provided by law within the jurisdiction of the Federal agency
by regulation and to publish each such regulation in the Federal
Register. Subsection (s)(1) also added a new section to the Inflation
Adjustment Act providing that any increase in a civil monetary penalty
made under the Act shall apply only to violations that occur after the
date the increase takes effect. Subsection (s)(2) of the Improvement
Act provided 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.
The amounts of the adjustments were determined according to a
formula set forth in the Inflation Adjustment Act, which used
applicable ``rounders'' (or increments) for calculations based on the
amount of the current penalty along with the statutorily defined cost-
of-living adjustment. See 28 CFR 85.2 (2015); Public Law 101-410, sec.
5. For example, the applicable ``rounder'' for a current $15,000 civil
penalty amount was $5,000, which meant that there would be no inflation
adjustment if the raw inflation adjustment calculation showed 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
was above the rounding threshold. See id.
B. Past Inflation Adjustment Rules
In compliance with the prior statutory requirements, the Department
of Justice published a rule on February 12, 1999 (64 FR 7066-03)
adjusting the immigration-related civil monetary penalties assessed or
enforced by the Executive Office for Immigration Review's (EOIR) Office
of the Chief Administrative Hearing Officer (OCAHO). On August 30, 1999
(64 FR 47099), the Department published a rule adjusting the other
civil monetary penalties assessed or enforced by it.
On February 26, 2008 (73 FR 10130-01), the Department of Homeland
Security (DHS) and the Department of Justice published a rule adjusting
for inflation the immigration-related civil monetary penalties assessed
or enforced by those two Departments under sections 274A, 274B, and
274C of the Immigration and Nationality Act (INA).\1\ On March 28, 2014
(79 FR 17434-01), the Department published a rule adjusting for
inflation the civil monetary penalties assessed or enforced by the
Civil Rights Division.
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\1\ The former Immigration and Naturalization Service (INS) was
part of the Department of Justice when the 1999 inflation
adjustments rules for civil monetary penalties were adopted.
However, Congress abolished the former INS effective March 1, 2003,
and transferred its functions to DHS pursuant to the Homeland
Security Act, Public Law 107-296 (Nov. 25, 2002). EOIR was a
separate component at that time, and it remains within the
Department of Justice under the authority of the Attorney General.
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C. Revised Statutory Process for Implementing Annual Inflation
Adjustments
Section 701 of the Bipartisan Budget Act of 2015, Public Law 114-74
(Nov. 2, 2015), titled the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015 (``2015 Amendments''), 28 U.S.C. 2461
note, substantially revised the prior provisions of the Inflation
Adjustment Act and substituted a different statutory formula for
calculating inflation adjustments on an annual basis.
The 2015 Amendments set forth a different method of calculation for
the initial adjustment following the 2015 Amendments than for
subsequent adjustments. For the initial adjustment, the ``cost-of-
living adjustment,'' which sets the amount by which the maximum civil
monetary penalty or the range of minimum and maximum civil monetary
penalties, as applicable, would be increased, is defined as ``the
percentage (if any) for each civil monetary penalty by which the
Consumer Price Index for the month of October, 2015 exceeds the
Consumer Price Index for the month of October of the calendar year
during which the amount of such civil monetary penalty was established
or adjusted under a provision of law other than this Act.'' Public Law
114-74, sec. 701(b)(2)(B) (amending section 5(b) of the Inflation
Adjustment Act). This adjustment is to be applied to ``the amount of
the civil monetary penalty as it was most recently established or
adjusted under a provision of law other than this Act,'' and ``shall
not exceed 150 percent of the amount of that civil monetary penalty on
the date of enactment of'' the 2015 Amendments. Id. For adjustments
other than the initial adjustment, the ``cost-of-living adjustment'' is
defined as ``the percentage (if any) for each civil monetary penalty by
which--(A) the
[[Page 42493]]
Consumer Price Index for the month of October preceding the date of the
adjustment, exceeds (B) the Consumer Price Index 1 year before the
month of October referred to in subparagraph (A).'' Id.
In short, the 2015 Amendments tie the inflation adjustments for the
initial adjustment to an index reflecting the cost of living increases
between 2015 and the year in which each civil penalty was established
or adjusted by a provision of law other than the Inflation Adjustment
Act. For subsequent adjustments, however, the adjustment will be
determined by the difference in the Consumer Price Index between the
October preceding the new adjustment and the October the year before.
In addition, instead of using the larger ``rounders'' under the old
formula, the resulting new civil penalty amounts adjusted under the
2015 Amendments are rounded to the nearest $1.
The 2015 Amendments removed the 10 percent cap on the first-time
inflation adjustment for each penalty, and, as noted above, provided
that the initial adjustment following the 2015 Amendments ``shall not
exceed 150 percent of the amount of that civil monetary penalty on the
date of enactment of'' the 2015 Amendments. See Public Law 114-74, sec.
701(c) (repealing section 31001(s)(2) of the Improvement Act); id. sec.
701(b)(2)(B) (amending section 5(b) of the Inflation Adjustment Act).
Effectively, this means that the adjusted civil penalty under this
rule--which sets forth the initial inflation adjustment following the
2015 Amendments--cannot be more than 2.5 times the amount of the
current penalty, including prior inflation adjustments under the
Inflation Adjustment Act. As shown in Table A of this preamble
indicating the calculation of inflation adjustments, this statutory cap
affects only six of the civil penalties being adjusted under this rule,
because of prior inflation adjustments implemented since 1999. Although
the statute authorizes the Department, with the concurrence of the
Director of the Office of Management and Budget, to make a
determination in certain circumstances to increase a civil penalty by
less than the otherwise required amount, the Department is not invoking
that authority in this rule. See Public Law 114-74, sec. 701(b)(1)(D)
(adding section 4(c) to Inflation Adjustment Act).
The 2015 Amendments also amended section 6 of the Inflation
Adjustment Act to provide that ``[a]ny increase under this Act in a
civil monetary penalty shall apply only to civil monetary penalties,
including those whose associated violation predated such increase,
which are assessed after the date the increase takes effect.''
Adjustments Made in This Rule for Civil Monetary Penalties
In accordance with the 2015 Amendments, the adjustments made by
this rule are based on the Bureau of Labor Statistics' Consumer Price
Index for October 2015. The inflation factors used in Table A were
provided to all federal agencies in the OMB Memorandum for the Heads of
Executive Departments and Agencies M-16-06 (Feb. 24, 2016). https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf
(last visited June 3, 2016).
Table A provides the calculations upon which the current inflation
adjustments are being made. As summarized above, the key factors for
these calculations are (1) the year in which each civil penalty amount
was established or adjusted under a provision of law other than the
Inflation Adjustment Act; (2) the amount of each civil penalty as so
established or adjusted; (3) the inflationary adjustment factor (as
determined according to the chart prepared by OMB) for the year of the
most recent establishment or adjustment of the amount of the penalty;
and (4) the resulting amount of the new adjusted civil penalty. For
example, for a civil penalty that was most recently established by law
at the amount of $1,000 in the year 1996, applying the inflationary
adjustment factor of 1.50245 for that year, the adjusted penalty as
determined under this rule is $1,502, as rounded to the nearest $1. The
only departures from this straightforward calculation are for those
civil penalties whose amount was set decades ago and not previously
adjusted; in those few cases, the civil penalty amount is capped at 2.5
times the civil penalty amount currently in effect, as noted by the
footnotes in Table A.
[[Page 42494]]
Table A
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Last year
Year adjusted Penalty (Non IAA) DOJ Penalty as of New DOJ penalty
U.S.C. Citation Name/Description CFR Citation enacted (Non ($) Multiplier 11/2/15 ($) \1\ \2\
IAA)
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ATF
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18 U.S.C. 922(t)(5)........................ Brady Law--Nat'l ............................... 1993 1993 5,000.............. 1.63238 5,000............. 8,162
Instant Criminal
Check System;
Transfer of
firearm without
checking NICS.
18 U.S.C. 924(p)........................... Child Safety Lock ............................... 2005 2005 2,500.............. 1.19397 2,500............. 2,985
Act; Secure gun
storage or safety
device, violation.
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Civil Division
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12 U.S.C. 1833a(b)(1)...................... Financial 28 CFR 85.3(a)(6).............. 1989 1989 1,000,000.......... 1.89361 1,100,000......... 1,893,610
Institutions
Reform, Recovery,
and Enforcement
Act (FIRREA)
Violation.
12 U.S.C. 1833a(b)(2)...................... FIRREA Violation 28 CFR 85.3(a)(7).............. 1989 1989 1,000,000.......... 1.89361 1,100,000......... 1,893,610
(continuing) (per
day).
12 U.S.C. 1833a(b)(2)...................... FIRREA Violation 28 CFR 85.3(a)(7).............. 1989 1989 5,000,000.......... 1.89361 5,500,000......... 9,468,050
(continuing).
22 U.S.C. 2399b(a)(3)(A)................... Foreign Assistance 28 CFR 85.3(a)(8).............. 1968 1968 2,000.............. 6.73762 2,200............. 5,500 **
Act; Fraudulent
Claim for
Assistance (per
act).
31 U.S.C. 3729(a).......................... False Claims Act; 28 CFR 85.3(a)(9).............. 1986 1986 Min. 5,000......... 2.15628 Min, 5,500........ Min. 10,781
\3\ Violations. Max. 10,000........ Max. 11,000....... Max. 21,563
31 U.S.C. 3802(a)(1)....................... Program Fraud 28 CFR 71.3(a)................. 1986 1986 5,000.............. 2.15628 5,500............. 10,781
Civil Remedies
Act; Violations
Involving False
Claim (per claim).
31 U.S.C. 3802(a)(2)....................... Program Fraud 28 CFR 71.3(f)................. 1986 1986 5,000.............. 2.15628 5,500............. 10,781
Civil Remedies
Act; Violation
Involving False
Statement (per
statement).
40 U.S.C. 123(a)(1)(A)..................... Federal Property 28 CFR 85.3(a)(12)............. 1949 1949 2,000.............. 10.03536 2,200............. 5,500 **
and
Administrative
Services Act;
Violation
Involving Surplus
Government
Property (per
act).
41 U.S.C. 8706(a)(1)(B).................... Anti-Kickback Act; 28 CFR 85.3(a)(13)............. 1986 1986 10,000............. 2.15628 11,000............ 21,563
Violation
Involving
Kickbacks \4\
(per occurrence).
18 U.S.C. 2723(b).......................... Driver's Privacy ............................... 1994 1994 5,000.............. 1.59089 5,000............. 7,954
Protection Act of
1994; Prohibition
on Release and
Use of Certain
Personal
Information from
State Motor
Vehicle Records--
Substantial Non-
compliance (per
day).
18 U.S.C. 216(b)........................... Ethics Reform Act 28 CFR 85.3(c)................. 1989 1989 50,000............. 1.89361 55,000............ 94,681
of 1989;
Penalties for
Conflict of
Interest Crimes
\5\ (per
violation).
41 U.S.C. 2105(b)(1)....................... Office of Federal ............................... 1988 1988 50,000............. 1.97869 50,000............ 98,935
Procurement
Policy Act; \6\
Violation by an
individual (per
violation).
41 U.S.C. 2105(b)(2)....................... Office of Federal ............................... 1988 1988 500,000............ 1.97869 500,000........... 989,345
Procurement
Policy Act; \6\
Violation by an
organization (per
violation).
42 U.S.C. 5157(d).......................... Disaster Relief ............................... 1974 1974 5,000.............. 4.65436 5,000............. 12,500 **
Act of 1974; \7\
Violation (per
violation).
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[[Page 42495]]
Civil Rights Division (excluding immigration-related penalties)
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18 U.S.C. 248(c)(2)(B)(i).................. Freedom of Access 28 CFR 85.3(b)(1)(i)........... 1994 1994 10,000............. 1.59089 16,000............ 15,909
to Clinic
Entrances Act of
1994 (``FACE
Act'');
Nonviolent
physical
obstruction,
first violation.
18 U.S.C. 248(c)(2)(B)(ii)................. FACE Act; 28 CFR 85.3(b)(1)(ii).......... 1994 1994 15,000............. 1.59089 16,500............ 23,863
Nonviolent
physical
obstruction,
subsequent
violation.
18 U.S.C. 248(c)(2)(B)(i).................. FACE Act; 28 CFR 85.3(b)(2)(i)........... 1994 1994 15,000............. 1.59089 16,500............ 23,863
Violation other
than a nonviolent
physical
obstruction,
first violation.
18 U.S.C. 248(c)(2)(B)(ii)................. FACE Act; 28 CFR 85.3(b)(2)(ii).......... 1994 1994 25,000............. 1.59089 37,500............ 39,772
Violation other
than a nonviolent
physical
obstruction,
subsequent
violation.
42 U.S.C. 3614(d)(1)(C)(i)................. Fair Housing Act 28 CFR 85.3(b)(3)(i)........... 1988 1988 50,000............. 1.97869 75,000............ 98,935
of 1968; first
violation.
42 U.S.C. 3614(d)(1)(C)(ii)................ Fair Housing Act 28 CFR 85.3(b)(3)(ii).......... 1988 1988 100,000............ 1.97869 150,000........... 197,869
of 1968;
subsequent
violation.
42 U.S.C. 12188(b)(2)(C)(i)................ Americans With 28 CFR 36.504(a)(3)(i)......... 1990 1990 50,000............. 1.78156 75,000............ 89,078
Disabilities Act;
Public
accommodations
for individuals
with
disabilities,
first violation.
42 U.S.C. 12188(b)(2)(C)(ii)............... Americans With 28 CFR 36.504(a)(3)(ii)........ 1990 1990 100,000............ 1.78156 150,000........... 178,156
Disabilities Act;
Public
accommodations
for individuals
with
disabilities,
subsequent
violation.
50 U.S.C. App. 597(b)(3)................... Servicemembers 28 CFR 85.3(b)(4)(i)........... 2010 2010 55,000............. 1.08745 60,000............ 59,810
Civil Relief Act
of 2003; first
violation.
50 U.S.C. App. 597(b)(3)................... Servicemembers 28 CFR 85.3(b)(4)(ii).......... 2010 2010 110,000............ 1.08745 120,000........... 119,620
Civil Relief Act
of 2003;
subsequent
violation.
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Criminal Division
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18 U.S.C. 983(h)(1)........................ Civil Asset ............................... 2000 2000 Min. 250........... 1.36689 Min. 250.......... Min. 342
Forfeiture Reform Max. 5,000......... Max. 5,000........ Max. 6,834
Act of 2000;
Penalty for
Frivolous
Assertion of
Claim.
18 U.S.C. 1956(b).......................... Money Laundering ............................... 1986 1986 10,000............. 2.15628 10,000............ 21,563
Control Act of
1986; Violation
\8\.
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DEA
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21 U.S.C. 844a(a).......................... Anti-Drug Abuse 28 CFR 76.3(a)................. 1988 1988 10,000............. 1.97869 11,000............ 19,787
Act of 1988;
Possession of
small amounts of
controlled
substances (per
violation).
21 U.S.C. 961(1)........................... Controlled 28 CFR 85.3(d)................. 1970 1970 25,000............. 6.03650 27,500............ 68,750 **
Substance Import
Export Act; Drug
abuse, import or
export.
21 U.S.C. 842(c)(1)(A)..................... Controlled ............................... 1970 1970 25,000............. 6.03650 25,000............ 62,500 **
Substances Act
(``CSA'');
Violations of
842(a)--other
than (5), (10)
and (16)--
Prohibited acts
re: controlled
substances (per
violation).
21 U.S.C. 842(c)(1)(B)..................... CSA; Violations of ............................... 1998 1998 10,000............. 1.45023 10,000............ 14,502
842(a)(5) and
(10)--Prohibited
acts re:
controlled
substances.
21 U.S.C. 842(c)(1)(C)..................... CSA; Violation of ............................... 2014 2014 500,000............ 1.00171 500,000........... 500,855
825(e) by
importer,
exporter,
manufacturer, or
distributor--Fals
e labeling of
anabolic steroids
(per violation).
21 U.S.C. 842(c)(1)(D)..................... CSA; Violation of ............................... 2014 2014 1,000.............. 1.00171 1,000............. 1,002
825(e) at the
retail level--
False labeling of
anabolic steroids
(per violation).
[[Page 42496]]
21 U.S.C. 842(c)(2)(C)..................... CSA; Violation of ............................... 1996 1996 250,000............ 1.50245 250,000........... 375,613
842(a)(11) by a
business--Distrib
ution of
laboratory supply
with reckless
disregard.\9\
21 U.S.C. 856(d)........................... Illicit Drug Anti- ............................... 2003 2003 250,000............ 1.28561 250,000........... 321,403
Proliferation Act
of 2003;
Maintaining drug-
involved
premises.\10\
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Immigration-Related Penalties
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8 U.S.C. 1324a(e)(4)(A)(i)................. Immigration Reform 28 CFR 68.52(c)(1)(i).......... 1986 1986 Min. 250........... 2.15628 Min. 375.......... Min. 539
and Control Act Max. 2,000......... Max. 3,200........ Max. 4,313
of 1986
(``IRCA'');
Unlawful
employment of
aliens, first
order (per
unauthorized
alien).
8 U.S.C. 1324a(e)(4)(A)(ii)................ IRCA; Unlawful 28 CFR 68.52(c)(1)(ii)......... 1986 1986 Min. 2,000......... 2.15628 Min. 3,200........ Min. 4,313
employment of Max. 5,000......... Max. 6,500........ Max. 10,781
aliens, second
order (per such
alien).
8 U.S.C. 1324a(e)(4)(A)(iii)............... IRCA; Unlawful 28 CFR 68.52(c)(1)(iii)........ 1986 1986 Min. 3,000......... 2.15628 Min. 4,300........ Min. 6,469
employment of Max. 10,000........ Max. 16,000....... Max. 21,563
aliens,
subsequent order
(per such alien).
8 U.S.C. 1324a(e)(5)....................... IRCA; Paperwork 28 CFR 68.52(c)(5)............. 1986 1986 Min. 100........... 2.15628 Min. 110.......... Min. 216
violation (per Max. 1,000......... Max. 1,100........ Max. 2,156
relevant
individual).
8 U.S.C. 1324a (note)...................... IRCA; Violation 28 CFR 68.52(c)(6)............. 1996 1996 Min. 500........... 1.50245 Min. 550.......... Min. 751
relating to Max. 1,000......... Max. 1,100........ Max. 1,502
participating
employer's
failure to notify
of final
nonconfirmation
of employee's
employment
eligibility (per
relevant
individual).
8 U.S.C. 1324a(g)(2)....................... IRCA; Violation/ 28 CFR 68.52(c)(7)............. 1986 1986 1,000.............. 2.15628 1,100............. 2,156
prohibition of
indemnity bonds
(per violation).
8 U.S.C. 1324b(g)(2)(B)(iv)(I)............. IRCA; Unfair 28 CFR 68.52(d)(1)(viii)....... 1990 1990 Min. 250........... 1.78156 Min, 375.......... Min. 445
immigration- Max. 2,000......... Max. 3,200........ Max. 3,563
related
employment
practices, first
order (per
individual
discriminated
against).
8 U.S.C. 1324b(g)(2)(B)(iv)(II)............ IRCA; Unfair 28 CFR 68.52(d)(1)(ix)......... 1990 1990 Min. 2,000......... 1.78156 Min. 3,200........ Min. 3,563
immigration- Max. 5,000......... Max. 6,500........ Max. 8,908
related
employment
practices, second
order (per
individual
discriminated
against).
8 U.S.C. 1324b(g)(2)(B)(iv)(III)........... IRCA; Unfair 28 CFR 68.52(d)(1)(x).......... 1990 1990 Min. 3,000......... 1.78156 Min. 4,300........ Min. 5,345
immigration- Max. 10,000........ Max. 16,000....... Max. 17,816
related
employment
practices,
subsequent order
(per individual
discriminated
against).
8 U.S.C. 1324b(g)(2)(B)(iv)(IV)............ IRCA; Unfair 28 CFR 68.52(d)(1)(xii)........ 1990 1990 Min. 100........... 1.78156 Min. 110.......... Min. 178
immigration- Max. 1,000......... Max. 1,100........ Max. 1,782
related
employment
practices,
document abuse
(per individual
discriminated
against).
8 U.S.C. 1324c(d)(3)(A).................... IRCA; Document 28 CFR 68.52(e)(1)(i).......... 1990 1990 Min. 250........... 1.78156 Min. 375.......... Min. 445
fraud, first Max. 2,000......... Max. 3,200........ Max. 3,563
order--for
violations
described in
U.S.C.
1324c(a)(1)-(4)
(per document).
8 U.S.C. 1324c(d)(3)(B).................... IRCA; Document 28 CFR 68.52(e)(1)(iii)........ 1990 1990 Min. 2,000......... 1.78156 Min. 3,200........ Min. 3,563
fraud, subsequent Max. 5,000......... Max. 6,500........ Max. 8,908
order--for
violations
described in
U.S.C.
1324c(a)(1)-(4)
(per document).
8 U.S.C. 1324c(d)(3)(A).................... IRCA; Document 28 CFR 68.52(e)(1)(ii)......... 1996 1996 Min. 250........... 1.50245 Min. 275.......... Min. 376
fraud, first Max. 2,000......... Max. 2,200........ Max. 3,005
order--for
violations
described in
U.S.C.
1324c(a)(5)-(6)
(per document).
8 U.S.C. 1324c(d)(3)(B).................... IRCA; Document 28 CFR 68.52(e)(1)(iv)......... 1996 1996 Min. 2,000......... 1.50245 Min. 2,200........ Min. 3,005
fraud, subsequent Max. 5,000......... Max. 5,500........ Max. 7,512
order--for
violations
described in
U.S.C.
1324c(a)(5)-(6)
(per document).
[[Page 42497]]
FBI
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49 U.S.C. 30505(a)......................... National Motor ............................... 1994 1994 1,000.............. 1.59089 1,000............. 1,591
Vehicle Title
Identification
System; Violation
(per violation).
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Office of Justice Programs
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42 U.S.C. 3789g(d)......................... Confidentiality of 28 CFR 20.25................... 1979 1979 10,000............. 3.16274 11,000............ 27,500 **
information;
State and Local
Criminal History
Record
Information
Systems--Right to
Privacy Violation.
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** Adjusted penalty capped at 2.5 times the penalty amount in effect on November 2, 2015, the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015, Public Law 114-74, sec. 701 (``2015 Amendments''). See id. Sec. 701(b)(2) (amending section 5(b)(2)(C) of the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461
note) to provide that the amount of the first inflation adjustment after the date of enactment of the 2015 Amendments ``shall not exceed 150 percent of the amount of that civil monetary
penalty on the date of enactment of the [2015 Amendments].'').
\1\ The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation or statute as of November 2, 2015.
\2\ All figures set forth in this table are maximum penalties, unless otherwise indicated.
\3\ Section 3729(a)(1) of Title 31 states that any person who violates this section ``is liable to the United States Government for a civil penalty of not less than $5,000 and not more than
$10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person.'' 31
U.S.C. 3729(a)(1) (2012) (citation omitted). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to ``not less than 2 times the amount of damages which the
Government sustains because of the act of that person.'' Id. Sec. 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in
subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1).
\4\ Section 8706(a)(1) of Title 41 states that ``[t]he Federal Government in a civil action may recover from a person--(1) that knowingly engages in conduct prohibited by section 8702 of this
title a civil penalty equal to--(A) twice the amount of each kickback involved in the violation; and (B) not more than $10,000 for each occurrence of prohibited conduct . . . .'' 41 U.S.C.
8706(a)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil
penalty imposed under section 8706.
\5\ Section 216(b) of Title 18 states the civil penalty should be no ``more than $50,000 for each violation or the amount of compensation which the person received or offered for the
prohibited conduct, whichever amount is greater.'' 18 U.S.C. 216(b) (2012). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount
stated in subsection (b), which is only one aspect of the possible civil penalty imposed under Sec. 216(b).
\6\ Section 2105(b) of Title 41 states, ``(b) Civil penalties.--The Attorney General may bring a civil action in an appropriate district court of the United States against a person that
engages in conduct that violates section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence--(1) an individual is liable to the Federal Government
for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and (2) an
organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or
offered for the prohibited conduct.'' 41 U.S.C. 2105(b) (2012). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections
(b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2).
\7\ The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2012)). The Federal
Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human
Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015).
\8\ Section 1956(b)(1) of Title 18 states that ``[w]hoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation,
transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of--(A) the value of the property, funds, or
monetary instruments involved in the transaction; or (B) $10,000.'' 18 U.S.C. 1956(b)(1) (2012). The adjustment made by this regulation is only applicable to the specific statutory penalty
amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b).
\9\ Section 842(c)(2)(C) of Title 21 states that ``[i]n addition to the penalties set forth elsewhere in this subchapter or subchapter II of this chapter, any business that violates paragraph
(11) of subsection (a) of this section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal
penalties under this section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is
greater.'' 21 U.S.C. 842(c)(2)(C) (2012). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount
stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C).
\10\ Section 856(d)(1) of Title 21 states that ``(1) Any person who violates subsection (a) of this section shall be subject to a civil penalty of not more than the greater of--(A) $250,000;
or (B) 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person.'' 21 U.S.C. 856(d)(1) (2012). The adjustment made by
this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section
856(d)(1).
[[Page 42498]]
Currently, 28 CFR 85.3 provides for inflation adjustments of a
number of civil penalties enforced by the Department, pursuant to the
former inflation adjustment statutory provisions. This rule revises
Sec. 85.3 to provide that the inflation adjustments set forth in that
section will continue to apply to violations occurring on or before
November 2, 2015, the date of enactment of the 2015 Amendments, as well
as to assessments made before August 1, 2016, whose associated
violations occurred after November 2, 2015. Other existing Department
regulations provide for inflation adjustments of other civil penalties
under prior law, such as the civil penalties under certain provisions
of the immigration laws in 28 CFR 68.52. Those other existing
regulations are also being revised to provide that the existing
regulatory inflation adjustments will continue to apply to violations
occurring on or before November 2, 2015, as well as to assessments made
before August 1, 2016, whose associated violations occurred after
November 2, 2015.
A new regulatory provision, Sec. 85.5, includes a comprehensive
table setting forth the penalty amounts for civil penalties assessed
after August 1, 2016, whose associated violations occurred after
November 2, 2015. The table in Sec. 85.5 is the same as Table A in
this preamble, except that it only includes the first three descriptive
columns for each civil penalty provision, and the last two columns
setting forth the penalty amounts in effect on November 2, 2015 (the
date of enactment of the 2015 Amendments) and the new adjusted civil
penalty amounts taking effect for civil penalties assessed after August
1, 2016, whose associated violations occurred after November 2, 2015.
(The other columns in Table A, which show how the adjusted civil
penalty amounts are calculated, are provided for informational purposes
in this preamble, but are not being codified in the Code of Federal
Regulations.) Those instances where the civil penalty amount for the
initial adjustment is capped at 2.5 times the civil penalty amount
currently in effect, as provided in the 2015 Amendments, are noted by
footnote in the table in Sec. 85.5.\2\
---------------------------------------------------------------------------
\2\ In rare instances, the adjusted civil penalty amount under
this rule is less than the penalty amount currently in effect,
because, in these cases, the use of rounders under the former law
increased a particular penalty by an increment exceeding the actual
rate of inflation. For example, in 2014, the Department published a
rule increasing the $55,000 civil penalty for a first violation of
the Servicemembers Civil Relief Act, 50 U.S.C. 4041(b)(3), by an
increment of $5,000 to $60,000. 79 FR 17434-01 (Mar. 28, 2014).
Under this rule, taking account of the actual rate of inflation
since enactment, the civil penalty amount is adjusted slightly lower
to $59,810.
---------------------------------------------------------------------------
This rule adjusts for inflation civil monetary penalties within the
jurisdiction of the Justice Department for purposes of the Inflation
Adjustment Act, as amended. 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
inflation adjustments to those penalties.
Effective Date of Adjusted Civil Penalty Amounts
In this rule, the adjusted civil penalty amounts are applicable
only to civil penalties assessed after August 1, 2016, whose associated
violations occurred after November 2, 2015, the date of enactment of
the 2015 Amendments. Therefore, violations occurring on or before
November 2, 2015, and assessments made prior to August 1, 2016, whose
associated violations occurred after November 2, 2015, will continue to
be subject to the civil monetary penalty amounts set forth in the
Department's existing regulations in 28 CFR parts 20, 22, 36, 68, 71,
76 and 85 (or as set forth by statute if the amount has not yet been
adjusted by regulation).
Statutory and Regulatory Analyses
Administrative Procedure Act, 5 U.S.C. 553
The Attorney General is publishing this rule as an interim final
rule, without prior notice and comment, as authorized by the 2015
Amendments. The Department is providing a 60-day period for public
comment after publication of this rule and welcomes public comment on
the changes made to reflect the revised process for calculating
inflation adjustments under the Inflation Adjustment Act, as amended by
the 2015 Amendments.
Regulatory Flexibility Act
Only those entities that are determined to have violated Federal
law and regulations would be affected by the increase in the civil
penalty amounts made by this rule. A Regulatory Flexibility Act
analysis is not required for this rule because publication of a notice
of proposed rulemaking is not required. See 5 U.S.C. 603(a).
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,
Regulatory Planning and Review, 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, in certain
circumstances, 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). As stated above, the statute authorizes the Department,
with the concurrence of the Director of the Office of Management and
Budget, to make a determination in certain circumstances to increase a
civil penalty by less than the otherwise required amount. However, the
Department is not invoking that authority in this rule. The adjustments
to existing civil monetary penalties set forth in this rule are
calculated pursuant to the statutory formula.
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
[[Page 42499]]
of the Unfunded Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act, 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
for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; 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.
List of Subjects
28 CFR Part 20
Classified information, Crime, Intergovernmental relations,
Investigations, Law Enforcement, Penalties, Privacy, Research, and
Statistics.
28 CFR Part 22
Crime, Juvenile delinquency, Penalties, Privacy, Research, and
Statistics.
28 CFR Part 36
Administrative practice and procedure, Alcoholism, Americans with
disabilities, Buildings and facilities, Business and industry, Civil
rights, Consumer protection, Drug abuse, Handicapped, Historic
preservation, Individuals with disabilities, Penalties, Reporting and
recordkeeping requirements.
28 CFR Part 68
Administrative practice and procedure, Aliens, Citizenship and
naturalization, Civil rights, Discrimination in employment, Employment,
Equal employment opportunity, Immigration, Nationality, Non-
discrimination.
28 CFR Part 71
Administrative practice and procedure, Claims, Fraud, Organization
and function (Government agencies), Penalties.
28 CFR Part 76
Administrative practice and procedure, Drug abuse, Drug traffic
control, Penalties.
28 CFR Part 85
Administrative practice and procedure, 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 20--CRIMINAL JUSTICE INFORMATION SYSTEMS
0
1. The authority citation for part 20 continues to read as follows:
Authority: 28 U.S.C. 534; Pub. L. 92-544, 86 Stat. 1115; 42
U.S.C. 3711, et seq.; Pub. L. 99-169, 99 Stat. 1002, 1008-1011, as
amended by Pub. L. 99-569, 100 Stat. 3190, 3196; Pub. L. 101-410,
104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
2. In Sec. 20.25, add after the first sentence a new sentence to read
as follows:
Sec. 20.25 Penalties.
* * * For civil penalties assessed after August 1, 2016, whose
associated violations occurred after November 2, 2015, see the civil
penalty amount as provided in 28 CFR 85.5. * * *
PART 22--CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL
INFORMATION
0
3. The authority citation for part 22 continues to read as follows:
Authority: Secs. 801(a), 812(a), Omnibus Crime Control and Safe
Streets Act of 1968, 42 U.S.C. 3701, et seq., as amended (Pub. L.
90-351, as amended by Pub. L. 93-83, Pub. L. 93-415, Pub. L. 94-430,
Pub. L. 94-503, Pub. L. 95-115, Pub. L. 96-157, and Pub. L. 98-473);
secs. 262(b), 262(d), Juvenile Justice and Delinquency Prevention
Act of 1974, 42 U.S.C. 5601, et seq., as amended (Pub. L. 93-415, as
amended by Pub. L. 94-503, Pub. L. 95-115, Pub. L. 99-509, and Pub.
L. 98-473); and secs. 1407(a) and 1407(d) of the Victims of Crime
Act of 1984, 42 U.S.C. 10601, et seq., Pub. L. 98-473; Pub. L. 101-
410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
4. In Sec. 22.29 add a new sentence at the end to read as follows:
Sec. 22.29 Sanctions.
* * * For civil penalties assessed after August 1, 2016, whose
associated violations occurred after November 2, 2015, see the civil
penalty amount as provided in 28 CFR 85.5.
PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
0
5. 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
6. In Sec. 36.504, revise paragraphs (a)(3)(i) and (a)(3)(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, except that, for civil penalties assessed after August
1, 2016, for a first violation occurring after November 2, 2015, the
civil penalty shall not exceed the applicable amount set forth in 28
CFR 85.5.
(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, except that, for civil
penalties assessed after August 1, 2016, for any subsequent violation
occurring after November 2, 2015, the civil penalty shall not exceed
the applicable amount set forth in 28 CFR 85.5.
* * * * *
PART 68--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE
HEARINGS BEFORE ADMINISTRATIVE LAW JUDGES IN CASES INVOLVING
ALLEGATIONS OF UNLAWFUL EMPLOYMENT OF ALIENS, UNFAIR IMMIGRATION-
RELATED EMPLOYMENT PRACTICES, AND DOCUMENT FRAUD
0
7. The authority citation for part 68 continues to read as follows:
Authority: 5 U.S.C. 301, 554; 8 U.S.C. 1103, 1324a, 1324b, and
1324c.
0
8. In Sec. 68.52, revise paragraphs (c)(8), (d)(2), and (e)(3), to
read as follows:
Sec. 68.52 Final order of the Administrative Law Judge.
* * * * *
(c) * * *
(8) Civil penalties assessed after August 1, 2016. For civil
penalties assessed after August 1, 2016, whose associated violations
described in paragraph (c) of this section occurred after November 2,
2015, the applicable civil penalty amounts are set forth in 28 CFR
85.5.
* * * * *
(d) * * *
(2) Civil penalties assessed after August 1, 2016. For civil
penalties assessed after August 1, 2016, whose associated violations
described in paragraph (d) of this section occurred
[[Page 42500]]
after November 2, 2015, the applicable civil penalty amounts are set
forth in 28 CFR 85.5.
* * * * *
(e) * * *
(3) Civil penalties assessed after August 1, 2016. For civil
penalties assessed after August 1, 2016, whose associated violations
described in paragraph (e) of this section occurred after November 2,
2015, the applicable civil penalty amounts are set forth in 28 CFR
85.5.
* * * * *
PART 71--IMPLEMENTATION OF THE PROVISIONS OF THE PROGRAM FRAUD
CIVIL REMEDIES ACT OF 1986
0
9. The authority citation for part 71 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 31 U.S.C. 3801-
3812; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134,
110 Stat. 1321.
0
10. In Sec. 71.3, paragraph (a) introductory text and paragraph (f)
introductory text are revised, to read as follows:
Sec. 71.3 Basis for civil penalties and assessments.
(a) Any person shall be subject, in addition to any other remedy
that may be prescribed by law, to a civil penalty of not more than
$5,000 for each claim listed in paragraphs (a)(1) through (a)(4) of
this section made before September 29, 1999, and not more than $5,500
for each such claim made on or after September 29, 1999, and not more
than the applicable amount as provided in 28 CFR 85.5 for civil
penalties assessed after August 1, 2016, for each such claim made after
November 2, 2015, if that person makes a claim that the person knows or
has reason to know:
* * * * *
(f) Any person shall be subject, in addition to any other remedy
that may be prescribed by law, to a civil penalty of not more than
$5,000 for each statement listed in paragraphs (f)(1) and (f)(2) of
this section made before September 29, 1999, and not more than $5,500
for each such statement made on or after September 29, 1999, and not
more than the applicable amount as provided in 28 CFR 85.5 for civil
penalties assessed after August 1, 2016 for each such statement made
after November 2, 2015, if that person makes a written statement that:
* * * * *
PART 76--RULES OF PROCEDURE FOR ASSESSMENT OF CIVIL PENALTIES FOR
POSSESSION OF CERTAIN CONTROLLED SUBSTANCES
0
11. The authority citation for part 76 continues to read as follows:
Authority: 5 U.S.C. 301; 21 U.S.C. 844a, 875, 876; 28 U.S.C.
509, 510; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-
134, 110 Stat. 1321.
0
12. In Sec. 76.3 add a new sentence at the end of paragraph (a) to
read as follows:
Sec. 76.3 Basis for civil penalty.
(a) * * * For civil penalties assessed after August 1, 2016, whose
associated violations occurred after November 2, 2015, see the civil
penalty amount as provided in 28 CFR 85.5.
* * * * *
PART 85--CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT
0
13. The authority citation for part 85 is revised 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; Pub. L.
114-74, section 701, 28 U.S.C. 2461 note.
0
14. Revise Sec. 85.1 to read as follows:
Sec. 85.1 In general.
(a) For violations occurring on or before November 2, 2015, and for
civil penalties assessed before August 1, 2016, whose associated
violations occurred after November 2, 2015, the civil monetary
penalties provided by law within the jurisdiction of the Department of
Justice and listed in section 85.3 are adjusted as set forth in that
section, in accordance with the requirements of the Federal Civil
Penalties Inflation Adjustment Act of 1990, Public Law 104-410, 104
Stat. 890, in effect prior to November 2, 2015.
(b) For civil penalties assessed after August 1, 2016, whose
associated violations occurred after November 2, 2015, the civil
monetary penalties provided by law within the jurisdiction of the
Department of Justice are adjusted as set forth in section 85.5, in
accordance with the requirements of the Bipartisan Budget Act of 2015,
Public Law 114-74, section 701 (Nov. 2, 2015), 28 U.S.C. 2461 note.
Sec. 85.2 [Removed and reserved]
0
15. Remove and reserve Sec. 85.2.
0
16. In Sec. 85.3, revise the heading and the introductory text to read
as follows:
Sec. 85.3 Adjustments to penalties for violations occurring on or
before November 2, 2015.
For all violations occurring on or before November 2, 2015, and for
assessments made before August 1, 2016, for violations occurring after
November 2, 2015, 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 as
provided in this section 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 in effect
prior to November 2, 2015. 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, and on or before
November 2, 2015, and for assessments made before August 1, 2016, for
violations occurring after November 2, 2015. For civil penalties
assessed after August 1, 2016, whose associated violations occurred
after November 2, 2015, see the adjusted penalty amounts in section
85.5.
* * * * *
0
17. Add Sec. 85.5 to read as follows:
Sec. 85.5 Adjustments to penalties for violations occurring after
November 2, 2015.
For civil penalties assessed after August 1, 2016, whose associated
violations occurred after November 2, 2015, the civil monetary
penalties provided by law within the jurisdiction of the Department are
adjusted as set forth in the following table.
----------------------------------------------------------------------------------------------------------------
DOJ Penalty as of 11/2/ New DOJ penalty
U.S.C. Citation Name/Description CFR Citation 15 ($) \1\ \2\
----------------------------------------------------------------------------------------------------------------
ATF
----------------------------------------------------------------------------------------------------------------
18 U.S.C. 922(t)(5)........... Brady Law--Nat'l ................ 5,000................. 8,162
Instant Criminal
Check System;
Transfer of firearm
without checking
NICS.
[[Page 42501]]
18 U.S.C. 924(p).............. Child Safety Lock ................ 2,500................. 2,985
Act; Secure gun
storage or safety
device, violation.
----------------------------------------------------------------------------------------------------------------
Civil Division
----------------------------------------------------------------------------------------------------------------
12 U.S.C. 1833a(b)(1)......... Financial 28 CFR 1,100,000............. 1,893,610
Institutions Reform, 85.3(a)(6).
Recovery, and
Enforcement Act
(FIRREA) Violation.
12 U.S.C. 1833a(b)(2)......... FIRREA Violation 28 CFR 1,100,000............. 1,893,610
(continuing) (per 85.3(a)(7).
day).
12 U.S.C. 1833a(b)(2)......... FIRREA Violation 28 CFR 5,500,000............. 9,468,050
(continuing). 85.3(a)(7).
22 U.S.C. 2399b(a)(3)(A)...... Foreign Assistance 28 CFR 2,200................. 5,500 **
Act; Fraudulent 85.3(a)(8).
Claim for Assistance
(per act).
31 U.S.C. 3729(a)............. False Claims Act; \3\ 28 CFR Min, 5,500............ Min. 10,781
Violations. 85.3(a)(9).
Max. 11,000........... Max. 21,563
31 U.S.C. 3802(a)(1).......... Program Fraud Civil 28 CFR 71.3(a).. 5,500................. 10,781
Remedies Act;
Violations Involving
False Claim (per
claim).
31 U.S.C. 3802(a)(2).......... Program Fraud Civil 28 CFR 71.3(f).. 5,500................. 10,781
Remedies Act;
Violation Involving
False Statement (per
statement).
40 U.S.C. 123(a)(1)(A)........ Federal Property and 28 CFR 2,200................. 5,500 **
Administrative 85.3(a)(12).
Services Act;
Violation Involving
Surplus Government
Property (per act).
41 U.S.C. 8706(a)(1)(B)....... Anti-Kickback Act; 28 CFR 11,000................ 21,563
Violation Involving 85.3(a)(13).
Kickbacks \4\ (per
occurrence).
18 U.S.C. 2723(b)............. Driver's Privacy ................ 5,000................. 7,954
Protection Act of
1994; Prohibition on
Release and Use of
Certain Personal
Information from
State Motor Vehicle
Records--Substantial
Non-compliance (per
day).
18 U.S.C. 216(b).............. Ethics Reform Act of 28 CFR 85.3(c).. 55,000................ 94,681
1989; Penalties for
Conflict of Interest
Crimes \5\ (per
violation).
41 U.S.C. 2105(b)(1).......... Office of Federal ................ 50,000................ 98,935
Procurement Policy
Act; \6\ Violation
by an individual
(per violation).
41 U.S.C. 2105(b)(2).......... Office of Federal ................ 500,000............... 989,345
Procurement Policy
Act; \6\ Violation
by an organization
(per violation).
42 U.S.C. 5157(d)............. Disaster Relief Act ................ 5,000................. 12,500 **
of 1974;\7\
Violation (per
violation).
----------------------------------------------------------------------------------------------------------------
Civil Rights Division (excluding immigration-related penalties)
----------------------------------------------------------------------------------------------------------------
18 U.S.C. 248(c)(2)(B)(i)..... Freedom of Access to 28 CFR 16,000................ 15,909
Clinic Entrances Act 85.3(b)(1)(i).
of 1994 (``FACE
Act''); Nonviolent
physical
obstruction, first
violation.
18 U.S.C. 248(c)(2)(B)(ii).... FACE Act; Nonviolent 28 CFR 16,500................ 23,863
physical 85.3(b)(1)(ii).
obstruction,
subsequent violation.
18 U.S.C. 248(c)(2)(B)(i)..... FACE Act; Violation 28 CFR 16,500................ 23,863
other than a 85.3(b)(2)(i).
nonviolent physical
obstruction, first
violation.
18 U.S.C. 248(c)(2)(B)(ii).... FACE Act; Violation 28 CFR 37,500................ 39,772
other than a 85.3(b)(2)(ii).
nonviolent physical
obstruction,
subsequent violation.
42 U.S.C. 3614(d)(1)(C)(i).... Fair Housing Act of 28 CFR 75,000................ 98,935
1968; first 85.3(b)(3)(i).
violation.
42 U.S.C. 3614(d)(1)(C)(ii)... Fair Housing Act of 28 CFR 150,000............... 197,869
1968; subsequent 85.3(b)(3)(ii).
violation.
42 U.S.C. 12188(b)(2)(C)(i)... Americans With 28 CFR 75,000................ 89,078
Disabilities Act; 36.504(a)(3)(i).
Public
accommodations for
individuals with
disabilities, first
violation.
42 U.S.C. 12188(b)(2)(C)(ii).. Americans With 28 CFR 150,000............... 178,156
Disabilities Act; 36.504(a)(3)(ii
Public ).
accommodations for
individuals with
disabilities,
subsequent violation.
50 U.S.C. App. 597(b)(3)...... Servicemembers Civil 28 CFR 60,000................ 59,810
Relief Act of 2003; 85.3(b)(4)(i).
first violation.
50 U.S.C. App. 597(b)(3)...... Servicemembers Civil 28 CFR 120,000............... 119,620
Relief Act of 2003; 85.3(b)(4)(ii).
subsequent violation.
----------------------------------------------------------------------------------------------------------------
Criminal Division
----------------------------------------------------------------------------------------------------------------
18 U.S.C. 983(h)(1)........... Civil Asset ................ Min. 250.............. Min. 342
Forfeiture Reform
Act of 2000; Penalty
for Frivolous
Assertion of Claim.
Max. 5,000............ Max. 6,834
18 U.S.C. 1956(b)............. Money Laundering ................ 10,000................ 21,563
Control Act of 1986;
Violation \8\.
----------------------------------------------------------------------------------------------------------------
DEA
----------------------------------------------------------------------------------------------------------------
21 U.S.C. 844a(a)............. Anti-Drug Abuse Act 28 CFR 76.3(a).. 11,000................ 19,787
of 1988; Possession
of small amounts of
controlled
substances (per
violation).
21 U.S.C. 961(1).............. Controlled Substance 28 CFR 85.3(d).. 27,500................ 68,750 **
Import Export Act;
Drug abuse, import
or export.
[[Page 42502]]
21 U.S.C. 842(c)(1)(A)........ Controlled Substances ................ 25,000................ 62,500 **
Act (``CSA'');
Violations of
842(a)--other than
(5), (10) and (16)--
Prohibited acts re:
controlled
substances (per
violation).
21 U.S.C. 842(c)(1)(B)........ CSA; Violations of ................ 10,000................ 14,502
842(a)(5) and (10)--
Prohibited acts re:
controlled
substances.
21 U.S.C. 842(c)(1)(C)........ CSA; Violation of ................ 500,000............... 500,855
825(e) by importer,
exporter,
manufacturer, or
distributor--False
labeling of anabolic
steroids (per
violation).
21 U.S.C. 842(c)(1)(D)........ CSA; Violation of ................ 1,000................. 1,002
825(e) at the retail
level--False
labeling of anabolic
steroids (per
violation).
21 U.S.C. 842(c)(2)(C)........ CSA; Violation of ................ 250,000............... 375,613
842(a)(11) by a
business--Distributi
on of laboratory
supply with reckless
disregard \9\.
21 U.S.C. 856(d).............. Illicit Drug Anti- ................ 250,000............... 321,403
Proliferation Act of
2003; Maintaining
drug-involved
premises \10\.
----------------------------------------------------------------------------------------------------------------
Immigration-Related Penalties
----------------------------------------------------------------------------------------------------------------
8 U.S.C. 1324a(e)(4)(A)(i).... Immigration Reform 28 CFR Min. 375.............. Min. 539
and Control Act of 68.52(c)(1)(i).
1986 (``IRCA'');
Unlawful employment
of aliens, first
order (per
unauthorized alien).
Max 3,200............. Max. 4,313
8 U.S.C. 1324a(e)(4)(A)(ii)... IRCA; Unlawful 28 CFR Min. 3,200............ Min. 4,313
employment of 68.52(c)(1)(ii).
aliens, second order
(per such alien).
Max. 6,500............ Max. 10,781
8 U.S.C. 1324a(e)(4)(A)(iii).. IRCA; Unlawful 28 CFR Min. 4,300............ Min. 6,469
employment of 68.52(c)(1)(iii
aliens, subsequent ).
order (per such
alien).
Max. 16,000........... Max. 21,563
8 U.S.C. 1324a(e)(5).......... IRCA; Paperwork 28 CFR Min. 110.............. Min. 216
violation (per 68.52(c)(5).
relevant individual).
..................... ................ Max. 1,100............ Max. 2,156
8 U.S.C. 1324a (note)......... IRCA; Violation 28 CFR Min. 550.............. Min. 751
relating to 68.52(c)(6).
participating
employer's failure
to notify of final
nonconfirmation of
employee's
employment
eligibility (per
relevant individual).
Max. 1,100............ Max. 1,502
8 U.S.C. 1324a(g)(2).......... IRCA; Violation/ 28 CFR 1,100................. 2,156
prohibition of 68.52(c)(7).
indemnity bonds (per
violation).
8 U.S.C. 1324b(g)(2)(B)(iv)(I) IRCA; Unfair 28 CFR Min, 375.............. Min. 445
immigration-related 68.52(d)(1)(vii
employment i).
practices, first
order (per
individual
discriminated
against).
Max. 3,200............ Max. 3,563
8 U.S.C. IRCA; Unfair 28 CFR Min. 3,200............ Min. 3,563
1324b(g)(2)(B)(iv)(II). immigration-related 68.52(d)(1)(ix).
employment
practices, second
order (per
individual
discriminated
against).
Max. 6,500............ Max. 8,908
8 U.S.C. IRCA; Unfair 28 CFR Min. 4,300............ Min. 5,345
1324b(g)(2)(B)(iv)(III). immigration-related 68.52(d)(1)(x).
employment
practices,
subsequent order
(per individual
discriminated
against).
Max. 16,000........... Max. 17,816
8 U.S.C. IRCA; Unfair 28 CFR Min. 110.............. Min. 178
1324b(g)(2)(B)(iv)(IV). immigration-related 68.52(d)(1)(xii
employment ).
practices, document
abuse (per
individual
discriminated
against).
Max. 1,100............ Max. 1,782
8 U.S.C. 1324c(d)(3)(A)....... IRCA; Document fraud, 28 CFR Min. 375.............. Min. 445
first order--for 68.52(e)(1)(i).
violations described
in U.S.C.
1324c(a)(1)-(4) (per
document).
Max. 3,200............ Max. 3,563
8 U.S.C. 1324c(d)(3)(B)....... IRCA; Document fraud, 28 CFR Min. 3,200............ Min. 3,563
subsequent order-- 68.52(e)(1)(iii
for violations ).
described in U.S.C.
1324c(a)(1)-(4) (per
document).
Max. 6,500............ Max. 8,908
8 U.S.C. 1324c(d)(3)(A)....... IRCA; Document fraud, 28 CFR Min. 275.............. Min. 376
first order--for 68.52(e)(1)(ii).
violations described
in U.S.C.
1324c(a)(5)-(6) (per
document).
Max. 2,200............ Max. 3,005
8 U.S.C. 1324c(d)(3)(B)....... IRCA; Document fraud, 28 CFR Min. 2,200............ Min. 3,005
subsequent order-- 68.52(e)(1)(iv).
for violations
described in U.S.C.
1324c(a)(5)-(6) (per
document).
Max. 5,500............ Max. 7,512
----------------------------------------------------------------------------------------------------------------
FBI
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 30505(a)............ National Motor ................ 1,000................. 1,591
Vehicle Title
Identification
System; Violation
(per violation).
----------------------------------------------------------------------------------------------------------------
[[Page 42503]]
Office of Justice Programs
----------------------------------------------------------------------------------------------------------------
42 U.S.C. 3789g(d)............ Confidentiality of 28 CFR 20.25.... 11,000................ 27,500 **
information; State
and Local Criminal
History Record
Information Systems--
Right to Privacy
Violation.
----------------------------------------------------------------------------------------------------------------
** Adjusted penalty capped at 2.5 times the penalty amount in effect on November 2, 2015, the date of enactment
of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701
(``2015 Amendments''). See id. Sec. 701(b)(2) (amending section 5(b)(2)(C) of the Federal Civil Penalties
Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to provide that the amount of the first inflation
adjustment after the date of enactment of the 2015 Amendments ``shall not exceed 150 percent of the amount of
that civil monetary penalty on the date of enactment of the [2015 Amendments].'').
\1\ The figures set forth in this column represent the penalty as last adjusted by Department of Justice
regulation or statute as of November 2, 2015.
\2\ All figures set forth in this table are maximum penalties, unless otherwise indicated.
\3\ Section 3729(a)(1) of Title 31 states that any person who violates this section ``is liable to the United
States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the
Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the
Government sustains because of the act of that person.'' 31 U.S.C. 3729(a)(1) (2012) (citation omitted).
Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to ``not less than 2
times the amount of damages which the Government sustains because of the act of that person.'' Id. Sec.
3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty
amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section
3729(a)(1).
\4\ Section 8706(a)(1) of Title 41 states that ``[t]he Federal Government in a civil action may recover from a
person--(1) that knowingly engages in conduct prohibited by section 8702 of this title a civil penalty equal
to--(A) twice the amount of each kickback involved in the violation; and (B) not more than $10,000 for each
occurrence of prohibited conduct . . . .'' 41 U.S.C. 8706(a)(1) (2012). The adjustment made by this regulation
is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one
component of the civil penalty imposed under section 8706.
\5\ Section 216(b) of Title 18 states the civil penalty should be no ``more than $50,000 for each violation or
the amount of compensation which the person received or offered for the prohibited conduct, whichever amount
is greater.'' 18 U.S.C. 216(b) (2012). Therefore, the adjustment made by this regulation is only applicable to
the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil
penalty imposed under Sec. 216(b).
\6\ Section 2105(b) of Title 41 states, ``(b) Civil penalties.--The Attorney General may bring a civil action in
an appropriate district court of the United States against a person that engages in conduct that violates
section 2102, 2103, or 2104 of this title. On proof of that conduct by a preponderance of the evidence--(1) an
individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation
plus twice the amount of compensation that the individual received or offered for the prohibited conduct; and
(2) an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each
violation plus twice the amount of compensation that the organization received or offered for the prohibited
conduct.'' 41 U.S.C. 2105(b) (2012). The adjustments made by this regulation are only applicable to the
specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component
of the civil penalties imposed under sections 2105(b)(1) and (b)(2).
\7\ The Attorney General has authority to bring a civil action when a person has violated or is about to violate
a provision under this statute. 42 U.S.C. 5157(b) (2012)). The Federal Emergency Management Agency has
promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR
206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation
regarding the penalty under this statute. 42 CFR 38.8 (2015).
\8\ Section 1956(b)(1) of Title 18 states that ``[w]hoever conducts or attempts to conduct a transaction
described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer
described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the
greater of--(A) the value of the property, funds, or monetary instruments involved in the transaction; or (B)
$10,000.'' 18 U.S.C. 1956(b)(1) (2012). The adjustment made by this regulation is only applicable to the
specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible
civil penalty imposed under section 1956(b).
\9\ Section 842(c)(2)(C) of Title 21 states that ``[i]n addition to the penalties set forth elsewhere in this
subchapter or subchapter II of this chapter, any business that violates paragraph (11) of subsection (a) of
this section shall, with respect to the first such violation, be subject to a civil penalty of not more than
$250,000, but shall not be subject to criminal penalties under this section, and shall, for any succeeding
violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty,
whichever is greater.'' 21 U.S.C. 842(c)(2)(C) (2012). The adjustment made by this regulation regarding the
penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in
subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation
imposed under section 842(c)(2)(C).
\10\ Section 856(d)(1) of Title 21 states that ``(1) Any person who violates subsection (a) of this section
shall be subject to a civil penalty of not more than the greater of--(A) $250,000; or (B) 2 times the gross
receipts, either known or estimated, that were derived from each violation that is attributable to the
person.'' 21 U.S.C. 856(d)(1) (2012). The adjustment made by this regulation is only applicable to the
specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible
civil penalty imposed under section 856(d)(1).
Dated: June 24, 2016.
Loretta E. Lynch,
Attorney General.
[FR Doc. 2016-15528 Filed 6-29-16; 8:45 am]
BILLING CODE 4410-19-P