[Federal Register Volume 83, Number 35 (Wednesday, February 21, 2018)]
[Rules and Regulations]
[Pages 7361-7363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-03490]


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SMALL BUSINESS ADMINISTRATION

13 CFR Parts 107, 120, 142, and 146

RIN 3245-AG96


Civil Monetary Penalties Inflation Adjustments

AGENCY: U.S. Small Business Administration.

ACTION: Final rule.

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SUMMARY: The Small Business Administration (SBA) is amending its 
regulations to adjust for inflation the amount of certain civil 
monetary penalties that are within the jurisdiction of the agency. 
These adjustments comply with the requirement in the Federal Civil 
Penalties Inflation Adjustment Act of 1990, as amended by the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015, to 
make annual adjustments to the penalties.

DATES: Effective Date: This rule is effective February 21, 2018.

FOR FURTHER INFORMATION CONTACT: Arlene Embrey, 202-205-6976, or at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On November 2, 2015, the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (the 2015 Inflation Adjustment 
Improvements Act), Public Law 114-74, 129 Stat. 584, was enacted. This 
act amended the Federal Civil Penalties Inflation

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Adjustment Act of 1990, Public Law 101-410, 104 Stat 890 (the 1990 
Inflation Adjustment Act), to improve the effectiveness of civil 
monetary penalties and to maintain their deterrent effect. The 2015 
Inflation Adjustment Improvements Act required agencies to issue an 
interim final rule by August 1, 2016, to adjust the level of civil 
monetary penalties with an initial ``catch-up'' adjustment, and to 
annually adjust these monetary penalties for inflation by January 15 of 
each subsequent year. The act authorizes agencies to implement the 
annual adjustments without regard to the requirements for public notice 
and comment or delayed effective date under the Administrative 
Procedures Act (the APA), 5 U.S.C. 553(b)(3)(B) and (d)(3), 
respectively.
    In addition, based on the definition of a ``civil monetary 
penalty'' in the 1990 Inflation Adjustment Act, agencies are to make 
adjustments only to the civil penalties that (i) are for a specific 
monetary amount as provided by Federal law or have a maximum amount 
provided for by Federal law; (ii) are assessed or enforced by an 
agency; and (iii) are enforced or assessed in an administrative 
proceeding or a civil action in the Federal courts. Therefore, 
penalties that are stated as a percentage of an indeterminate amount or 
as a function of a violation (penalties that encompass actual damages 
incurred) are not to be adjusted.
    On May 19, 2016, SBA published an interim final rule with its 
initial adjustments to the civil monetary penalties, including an 
initial ``catch-up'' adjustment. 81 FR 31489. These adjusted penalties 
became effective on August 1, 2016. SBA published its first annual 
adjustments to the monetary penalties in the Federal Register on 
February 9, 2017 (82 FR 9967), with an immediate effective date. This 
rule will establish the adjusted penalty amounts for 2018.
    According to the 2015 Inflation Adjustment Improvements Act and the 
Office of Management and Budget implementing guidance in M-18-03, 
Implementation of Penalty Inflation Adjustments for 2018, Pursuant to 
the Federal Civil Penalties Inflation Adjustment Act Improvements Act 
of 2015, (December 15, 2017), the formula for calculating the annual 
adjustments is based on the Consumer Price Index for all Urban 
Consumers (CPI-U) for the month of October preceding the adjustment, 
and specifically on the change between the October CPI-U preceding the 
date of adjustment and the prior year's CPI-U. Based on this 
methodology, the 2018 civil monetary penalty adjustment is 1.02041 
(October 2017 CPI-U (246.663)/October 2016 CPI-U (241.729) = 1.02041). 
The annual adjustments identified in this rule were obtained by 
applying this multiplier to the most recently adjusted penalty amounts 
that were published on February 9, 2017 (82 FR 9967).

II. Civil Money Penalties Adjusted by This Rule

    This rule makes adjustments to civil monetary penalties authorized 
by the Small Business Act, the Small Business Investment Act of 1958 
(SBIAct), the Program Fraud Civil Remedies Act, and the Byrd Amendment 
to the Federal Regulation of Lobbying Act. These penalties and the 
implementing regulations are discussed below.

1. 13 CFR 107.665--Civil Penalties

    SBA licenses, regulates and provides financial assistance to 
financial entities called small business investment companies (SBICs). 
Pursuant to section 315 of the SBIAct, 15 U.S.C. 687g, SBA may impose a 
penalty on any SBIC for each day that it fails to comply with SBA's 
regulations or directives governing the filing of regular or special 
reports. The penalty for non-compliance is incorporated in Sec.  
107.665 of the SBIC program regulations.
    This rule amends Sec.  107.665 to adjust the current civil penalty 
from $254 to $259 for each day an SBIC fails to file a required report. 
The current civil penalty amount of $254 was multiplied by the 
multiplier of 1.02041 to reach a product of $259, rounded to the 
nearest dollar.

2. 13 CFR 120.465--Civil Penalty for Late Submission of Required 
Reports

    According to the regulations at Sec.  120.465, any SBA Supervised 
Lender, as defined in 13 CFR 120.10, that violates a regulation or 
written directive issued by the SBA Administrator regarding the filing 
of any regular or special report is subject to the civil penalty amount 
stated in Sec.  120.465(b) for each day the company fails to file the 
report, unless the SBA Supervised Lender can show that there is 
reasonable cause for its failure to file. This penalty is authorized by 
section 23(j)(1) of the Small Business Act, 15 U.S.C. 650(j)(1).
    This rule amends Sec.  120.465 to adjust the current civil penalty 
to $6,460 per day for failure to file. The current civil penalty of 
$6,331 was multiplied by the multiplier of 1.02041 to reach a product 
of $6,460, rounded to the nearest dollar.

3. 13 CFR 142.1--Overview of Regulations

    SBA has promulgated regulations at 13 CFR part 142 to implement the 
civil penalties authorized by the Program Fraud Civil Remedies Act of 
1986 (PFCRA), 31 U.S.C. 3801-3812. The current electronic Code of 
Federal Regulations (eCFR) at Sec.  142.1(b) states that a person who 
submits, or causes to be submitted, a false claim or a false statement 
to SBA is subject to a civil penalty of not more than $10,781, for each 
statement or claim. However, this amount reflected in the eCFR is 
incorrect. Rather, the correct adjusted amount for 2017, as published 
in the February 9, 2017 rule, was $10,957 (the product of $10,781 and 
the multiplier of 1.10636). Therefore, this final rule makes the 
required adjustment for 2018 based on the correct published amount of 
$10,957. Accordingly, the rule amends Sec.  142.1(b) to adjust the 
current civil penalty to $11,181 per statement or claim. The adjusted 
civil penalty amount was calculated by multiplying the civil penalty 
amount of $10,957 by the multiplier of 1.02041 to reach a product of 
$11,181, rounded to the nearest dollar.

4. 13 CFR 146.400--Penalties

    SBA's regulations at 13 CFR part 146 govern lobbying activities by 
recipients of federal financial assistance. These regulations implement 
the authority in 31 U.S.C. 1352, which was established in 1989, and 
impose penalties on any recipient that fails to comply with certain 
requirements in the part. Specifically, under Sec.  146.400(a) and (b), 
penalties may be imposed on those who make prohibited expenditures or 
fail to file the required disclosure forms or to amend such forms, if 
necessary.
    This rule amends Sec.  146.400(a) and (b), to adjust the current 
civil penalty amounts to ``not less than $19,639 and not more than 
$196,387.'' The current civil penalty amounts of $19,246 and $192,459 
were multiplied by the multiplier of 1.02041 to reach a product of 
$19,639 and $196,387, respectively, rounded to the nearest dollar.
    This rule also amends Sec.  146.400(e) to adjust the civil penalty 
that may be imposed for a first time violation of Sec.  146.400(a) and 
(b) to a maximum of $19,639 and to adjust the civil penalty that may be 
imposed for second and subsequent offenses to ``not less than $19,639 
and not more than $196,387.'' The current civil penalty amounts of 
$19,246 and $192,459 were multiplied by the multiplier of 1.02041 to 
reach a product of $19,639 and $196,387,

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respectively, rounded to the nearest dollar.

III. Justification for Final Rule

    The Inflation Adjustment Act provides that agencies shall annually 
adjust civil monetary penalties for inflation notwithstanding Section 
553 of the APA. Additionally, the Inflation Adjustment Act provides a 
nondiscretionary cost-of-living formula for annual adjustment of the 
civil monetary penalties. For these reasons, the requirements in 
sections 553(b), (c), and (d) of the APA, relating to notice and 
comment and requiring that a rule be effective 30 days after 
publication in the Federal Register, are inapplicable.

IV. Justification for Immediate Effective Date

    Section 553(d) requires agencies to publish their rules at least 30 
days before their effective dates, except if the agency finds for good 
cause that the delay is impracticable, unnecessary, or contrary to the 
public interest. By expressly exempting this rule from section 553, the 
2015 Inflation Adjustment Improvements Act has provided SBA with the 
good cause justification for this rule to become effective on the date 
it is published in the Federal Register.

Compliance With Executive Orders 12866, 12988, 13132, 13771, and the 
Paperwork Reduction Act (44 U.S.C. Ch. 35) and the Regulatory 
Flexibility Act (5 U.S.C. 601-612)

Executive Order 12866

    The Office of Management and Budget has determined that this final 
rule is not a significant regulatory action under Executive Order 
12866. This is also not a major rule under the Congressional Review 
Act, 5 U.S.C. 800.

Executive Order 12988

    This action meets applicable standards set forth in Sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.

Executive Order 13132

    For the purpose of Executive Order 13132, SBA has determined that 
the 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, this final rule has no federalism implications 
warranting preparation of a federalism assessment.

Executive Order 13771

    This rule is not an Executive Order 13771 regulatory action because 
this rule is not significant under Executive Order 12866.

Paperwork Reduction Act

    SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements.

Regulatory Flexibility Act (RFA)

    The RFA requires agencies to consider the effect of their 
regulatory actions on small entities, including small non-profit 
businesses, and small local governments. Pursuant to the RFA, when an 
agency issues a rule the agency must prepare an analysis that describes 
whether the impact of the rule will have a significant economic impact 
on a substantial number of such small entities. However, the RFA 
requires such analysis only where notice and comment rulemaking is 
required. As stated above, SBA has express statutory authority to issue 
this rule without regard to the notice and comment requirement of the 
Administrative Procedure Act. Since notice and comment is not required 
before this rule is issued, SBA is not required to prepare a regulatory 
analysis.

List of Subjects

13 CFR Part 107

    Investment companies, Loan programs--business, Reporting and 
recordkeeping requirements, Small businesses.

13 CFR Part 120

    Loan programs--business, Reporting and recordkeeping requirements, 
Small businesses.

13 CFR Part 142

    Administrative practice and procedure, Claims, Fraud, Penalties.

13 CFR Part 146

    Government contracts, Grant programs, Loan programs, Lobbying, 
Penalties, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, SBA amends 13 CFR parts 
107, 120, 142, and 146 as follows:

PART 107--SMALL BUSINESS INVESTMENT COMPANIES

0
1. The authority citation for part 107 continues to read as follows:

    Authority: 15 U.S.C. 681, 683, 687(c), 687b, 687d, 687g, 687m.


Sec.  107.665   [Amended]

0
2. In Sec.  107.665, remove ``$254'' and add in its place ``$259''.

PART 120--BUSINESS LOANS

0
3. The authority citation for part 120 continues to read as follows:

    Authority: 15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h) and note, 
636(a), (h) and (m), 650, 687(f), 696(3) and 697(a) and (e); Pub. L. 
111-5, 123 Stat. 115; Pub. L. 111-240, 124 Stat. 2504; Pub. L. 114-
38, 129 Stat. 437.


Sec.  120.465   [Amended]

0
4. In Sec.  120.465, amend paragraph (b) by removing ``$6,331'' and 
adding in its place ``$6,460''.

PART 142--PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS

0
5. The authority citation for part 142 continues to read as follows:

    Authority: 15 U.S.C. 634(b); 31 U.S.C. 3803(g)(2).


Sec.  142.1   [Amended]

0
6. In Sec.  142.1, amend paragraph (b) by removing ``$10,781'' and 
adding in its place ``$11,181''.

PART 146--NEW RESTRICTIONS ON LOBBYING

0
7. The authority citation for part 146 continues to read as follows:

    Authority: Section 319, Pub. L. 101-121 (31 U.S.C. 1352); 15 
U.S.C. 634(b)(6).


Sec.  146.400   [Amended]

0
8. In Sec.  146.400, amend paragraphs (a), (b), and (e) by removing 
``$19,246'' wherever it appears and adding in its place ``$19,639'' and 
by removing ``$192,459'' and adding in its place ``$196,387''.

    Dated: February 12, 2018.
Linda E. McMahon,
Administrator.
[FR Doc. 2018-03490 Filed 2-20-18; 8:45 am]
BILLING CODE 8025-01-P