[Federal Register Volume 89, Number 4 (Friday, January 5, 2024)]
[Rules and Regulations]
[Pages 700-702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-29003]
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DEPARTMENT OF STATE
22 CFR Parts 35, 103, 127, and 138
[Public Notice: 12298]
RIN 1400-AF72
Department of State 2024 Civil Monetary Penalties Inflationary
Adjustment
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: This final rule is issued to adjust the civil monetary
penalties (CMP) for regulatory provisions maintained and enforced by
the Department of State. The revised CMP adjusts the amount of civil
monetary penalties assessed by the Department of State based on the
December 2023 guidance from the Office of Management and Budget and by
recent legislation. For penalties adjusted according to the December
2023 guidance, the new amounts will apply only to those penalties
assessed on or after the effective date of this rule, regardless of the
date on which the underlying facts or violations occurred.
DATES: This final rule is effective on January 5, 2024.
FOR FURTHER INFORMATION CONTACT: Alice Kottmyer, Attorney-Adviser,
Office of Management, [email protected]. ATTN: Regulatory Change,
CMP Adjustments, (202) 647-2318.
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990, Public Law 101-410, as amended by the Debt
Collection Improvement Act of 1996, Public Law 104-134, required the
head of each agency to adjust its CMPs for inflation no later than
October 23, 1996 and required agencies to make adjustments at least
once every four years thereafter. The Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015, Section 701 of Public Law 114-
74 (the 2015 Act) further amended the 1990 Act by requiring agencies to
adjust CMPs, if necessary, pursuant to a ``catch-up'' adjustment
methodology prescribed by the 2015 Act, which mandated that the catch-
up adjustment take effect no later than August 1, 2016. Additionally,
the 2015 Act required agencies to make annual adjustments to their
respective CMPs in accordance with guidance issued by the Office of
Management and Budget (OMB).
Based on these statutes, the Department of State (the Department)
published a final rule in June 2016 \1\ to implement the ``catch-up''
provisions, followed by annual updates in January of each year. The
most recent update was in January 2023.\2\
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\1\ 81 FR 36771 (Jun. 8, 2016).
\2\ 88 FR 1505 (Jan. 11, 2023).
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On December 19, 2023, OMB notified agencies that the annual cost-
of-living adjustment multiplier for fiscal year (FY) 2024, based on the
Consumer Price Index, is 1.03241. Additional information may be found
in OMB Memorandum M-24-07. This final rule amends Department CMPs for
fiscal year 2024.
Overview of the Areas Affected by This Rule
See the table for specific changes. Within the Department of State
(title 22, Code of Federal Regulations), this rule affects four areas:
(1) Part 35, which implements the Program Fraud Civil Remedies Act
of 1986 (PFCRA), codified at 31 U.S.C. 3801-3812. The PFCRA, enacted in
1986, authorizes agencies, with approval from the Department of
Justice, to pursue individuals or firms for false claims;
(2) Part 103, which implements the Chemical Weapons Convention
Implementation Act of 1998 (CWC Act) (22 U.S.C. 6761). The CWC Act
provided domestic implementation of the Convention on the Prohibition
of the Development, Production, Stockpiling, and Use of Chemical
Weapons and on Their Destruction. The penalty provisions of the CWC Act
are codified at 22 U.S.C. 6761(a);
(3) Part 127, which implements the penalty provisions of sections
38(e), 39A(c), and 40(k) of the Arms Export Control Act (AECA) (22
U.S.C. 2778(e), 2779a(c), and 2780(k)). The Assistant Secretary of
State for Political-Military Affairs is responsible for the imposition
of CMPs under the International Traffic in Arms Regulations (ITAR),
which is administered by the Directorate of Defense Trade Controls
(DDTC); and
(4) Part 138, which implements section 319 of Public Law 101-121,
codified at 31 U.S.C. 1352, provides penalties for recipients of
Federal contracts, grants, and loans who use appropriated funds to
lobby the executive or legislative branches of the Federal Government
in connection with a specific contract, grant, or loan. Any person who
violates that prohibition is subject to a civil penalty. The statute
also requires each person who requests or receives a Federal contract,
grant, cooperative agreement, loan, or a Federal commitment to insure
or guarantee a loan, to disclose any lobbying; there is a penalty for
failure to disclose.
[[Page 701]]
FY 2024 Multiplier: 1.03241
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New FY 24 max
Citation in 22 CFR FY 23 penalties penalties
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Sec. 35.3................. $13,508 up to $13,946 up to
$405,270. $418,405.
Sec. 103.6(a)(1) $45,429............. $46,901.
Prohibited Acts.
Sec. 103.6(a)(2) $9,086.............. $9,380.
Recordkeeping Violations.
Sec. 127.10(a)(1)(i)...... The greater of The greater of
$1,200,000 or the $1,238,892 or the
amount that is amount that is
twice the value of twice the value of
the transaction the transaction
that is the basis that is the basis
of the violation of the violation
with respect to with respect to
which the penalty which the penalty
is imposed. is imposed.
Sec. 127.10(a)(1)(ii)..... $996,685, or five $1,028,988, or five
times the amount of times the amount of
the prohibited the prohibited
payment, whichever payment, whichever
is greater. is greater.
Sec. 127.10(a)(1)(iii).... $1,186,338.......... $1,224,787.
Sec. 138.400 First $23,343............. $24,100.
Offenders.
Sec. 138.400 Others....... $23,727 up to $24,496 up to
$237,268. $244,958.
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Effective Date of Penalties
The revised CMP amounts for all penalties will go into effect on
the date this rule is published. All violations for which those CMPs
are assessed on or after the effective date of this rule, regardless of
whether the violation occurred before the effective date, will be
assessed at the adjusted penalty level.
Future Adjustments and Reporting
The 2015 Act directed agencies to undertake an annual review of
CMPs using a formula prescribed by the statute. Annual adjustments to
CMPs are made in accordance with the guidance issued by OMB. As in this
rulemaking, the Department of State will publish notification of annual
inflation adjustments to CMPs in the Federal Register no later than
January 15 of each year, with the adjusted amount taking effect
immediately upon publication.
Regulatory Analysis and Notices
Administrative Procedure Act
The Department of State is publishing this rule using the ``good
cause'' exception to the Administrative Procedure Act (5 U.S.C.
553(b)), as the Department has determined that public comment on this
rulemaking would be impractical, unnecessary, or contrary to the public
interest. This rulemaking is mandatory and entirely without agency
discretion; it implements Public Law 114-74. See 5 U.S.C. 553(d)(3).
Regulatory Flexibility Act
Because this rulemaking is exempt from 5 U.S.C. 553, a regulatory
flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This rule does not involve a mandate that will 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 year and it
will not significantly or uniquely affect small governments. Therefore,
no actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Congressional Review Act
This rule is not a major rule within the meaning of the
Congressional Review Act, 5 U.S.C. 801 et seq.
Executive Orders 12372 and 13132
This amendment 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 amendment does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.
Executive Orders 12866, 14094, and 13563
The Department believes that benefits of the rulemaking outweigh
any costs, and there are no feasible alternatives to this rulemaking.
Pursuant to M-23-05, the Office of Information and Regulatory Affairs
(OIRA) has determined that agency regulations that (1) exclusively
implement the annual adjustment, (2) are consistent with this guidance,
and (3) have an annual impact of less than $100 million, are generally
not significant regulatory actions under E.O. 12866. Therefore,
agencies are generally not required to submit regulations satisfying
those criteria to OIRA for review. This regulation satisfies all of
those criteria.
Executive Order 12988
The Department of State has reviewed the amendment in light of
Executive Order 12988 to eliminate ambiguity, minimize litigation,
establish clear legal standards, and reduce burden.
Executive Order 13175
The Department of State has determined that this rulemaking will
not have tribal implications, will not impose substantial direct
compliance costs on Indian Tribal governments, and will not preempt
Tribal law. Accordingly, Executive Order 13175 does not apply to this
rulemaking.
Paperwork Reduction Act
This rulemaking does not impose or revise any information
collections subject to 44 U.S.C. Chapter 35.
List of Subjects
22 CFR Part 35
Administrative practice and procedure, Claims, Fraud, Penalties.
22 CFR Part 103
Administrative practice and procedure, Chemicals, Classified
information, Foreign relations, Freedom of information, International
organization, Investigations, Penalties, Reporting and recordkeeping
requirements.
22 CFR Part 127
Arms and munitions, Crime, Exports, Penalties, Seizures and
forfeitures.
22 CFR Part 138
Government contracts, Grant programs, Loan programs, Lobbying,
Penalties, Reporting and recordkeeping requirements.
For the reasons set forth above, 22 CFR parts 35, 103, 127, and 138
are amended as follows:
PART 35--PROGRAM FRAUD CIVIL REMEDIES
0
1. The authority citation for part 35 continues to read as follows:
[[Page 702]]
Authority: 22 U.S.C. 2651a; 31 U.S.C. 3801 et seq.; Pub. L. 114-
74, 129 Stat. 584.
Sec. 35.3 [Amended]
0
2. In Sec. 35.3:
0
a. In paragraphs (a)(1) introductory text, (b)(1)(ii), and (f) remove
``$13,508'' and add in its place ``13,946; and
0
b. In paragraph (f), remove ``$405,270'' and add in its place
``$418,405''.
PART 103--REGULATIONS FOR IMPLEMENTATION OF THE CHEMICAL WEAPONS
CONVENTION AND THE CHEMICAL WEAPONS CONVENTION IMPLEMENTATION ACT
OF 1998 ON THE TAKING OF SAMPLES AND ON ENFORCEMENT OF REQUIREMENTS
CONCERNING RECORDKEEPING AND INSPECTIONS
0
3. The authority citation for part 103 continues to read as follows:
Authority: 22 U.S.C. 2651a; 22 U.S.C. 6701 et seq.; Pub. L.
114-74, 129 Stat. 584.
Sec. 103.6 [Amended]
0
4. In Sec. 103.6:
0
a. In paragraph (a)(1), remove ``$45,429'' and add in its place
``$46,901''; and
0
b. In paragraph (a)(2), remove ``$9,086'' and add in its place
``$9,380''.
PART 127--VIOLATIONS AND PENALTIES
0
5. The authority citation for part 127 continues to read as follows:
Authority: Sections 2, 38, and 42, Pub. L. 90-629, 90 Stat. 744
(22 U.S.C. 2752, 2778, 2791); 22 U.S.C. 401; 22 U.S.C. 2651a; 22
U.S.C. 2779a; 22 U.S.C. 2780; E.O. 13637, 78 FR 16129; Pub. L. 114-
74, 129 Stat. 584.
Sec. 127.10 [Amended]
0
6. In Sec. 127.10:
0
a. In paragraph (a)(1)(i), remove ``$1,200,000'' and add in its place
``$1,238,892'';
0
b. In paragraph (a)(1)(ii), remove ``$996,685'' and add in its place
``$1,028,988''; and
0
c. In paragraph (a)(1)(iii), remove ``$1,186,338'' and add in its place
``$1,224,787''.
PART 138--RESTRICTIONS ON LOBBYING
0
7. The authority citation for part 138 continues to read as follows:
Authority: 22 U.S.C. 2651a; 31 U.S.C. 1352; Pub. L. 114-74, 129
Stat. 584.
Sec. 138.400 [Amended]
0
8. In Sec. 138.400:
0
a. In paragraphs (a), (b), and (e), remove ``$23,727'' and ``$237,268''
and add in their place ``$24,496'' and ``$244,958'', respectively; and
0
b. In paragraph (e), remove ``$23,343'' and add in its place
``$24,100''.
Kevin E. Bryant,
Deputy Director, Office of Directives Management, Department of State.
[FR Doc. 2023-29003 Filed 1-4-24; 8:45 am]
BILLING CODE 4710-08-P