81_FR_42658 81 FR 42532 - Inspection Service Authority; Civil Monetary Penalty Inflation Adjustment

81 FR 42532 - Inspection Service Authority; Civil Monetary Penalty Inflation Adjustment

POSTAL SERVICE

Federal Register Volume 81, Issue 126 (June 30, 2016)

Page Range42532-42534
FR Document2016-15464

This rule updates postal regulations to implement inflation adjustments to civil monetary penalties that may be imposed under consumer protection and mailability provisions enforced by the Postal Service pursuant to the Deceptive Mail Prevention and Enforcement Act and the Postal Accountability and Enhancement Act. These adjustments are required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This notice also includes the statutory civil monetary penalties subject to the 2015 Act.

Federal Register, Volume 81 Issue 126 (Thursday, June 30, 2016)
[Federal Register Volume 81, Number 126 (Thursday, June 30, 2016)]
[Rules and Regulations]
[Pages 42532-42534]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-15464]


=======================================================================
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POSTAL SERVICE

39 CFR Part 233


Inspection Service Authority; Civil Monetary Penalty Inflation 
Adjustment

AGENCY: Postal Service.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY:  This rule updates postal regulations to implement inflation 
adjustments to civil monetary penalties that may be imposed under 
consumer protection and mailability provisions enforced by the Postal 
Service pursuant to the Deceptive Mail Prevention and Enforcement Act 
and the Postal Accountability and Enhancement Act. These adjustments 
are required under the Federal Civil Penalties Inflation Adjustment Act 
of 1990, as amended by the Federal Civil Penalties Inflation Adjustment 
Act Improvements Act of 2015. This notice also includes the statutory 
civil monetary penalties subject to the 2015 Act.

DATES: Effective date: August 1, 2016.

FOR FURTHER INFORMATION CONTACT: Steven Sultan, (202) 268-7385.

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (2015 Act), Public Law 114-74, 
129 Stat. 584, amended the Federal Civil Penalties Inflation Adjustment 
Act of 1990 (1990 Act), Public Law 101-410, 104 Stat. 890 (28 U.S.C. 
2461 note), to improve the effectiveness of civil monetary penalties 
and to maintain their deterrent effect. Section 3 of the 1990 Act 
specifically includes the Postal Service in the definition of 
``agency'' subject to its provisions.
    The 2015 Act requires the Postal Service to make two types of 
adjustments to civil penalties that meet the definition of ``civil 
monetary penalty'' under the 1990 Act. The Office of Management and 
Budget has furnished detailed instructions regarding these adjustments 
in memorandum M-16-06, Implementation of the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2016 (February 24, 2016), 
www.whitehouse.gov/omb/memoranda/2016/m-16-06.
    First, the Postal Service must make an initial ``catch-up'' 
adjustment to each of its qualifying civil monetary penalties through 
an interim final rule by July 1, 2016. The catch-up adjustment is based 
on the Consumer Price Index (CPI-U) and is calculated for each penalty. 
The amount of the adjustment is calculated by multiplying the current 
published penalty amount by an adjustment factor provided by the Office 
of Management and Budget (OMB). The adjustment factor varies depending 
on the year a penalty was last adjusted. The new penalty amount must be 
rounded to the nearest dollar.
    Second, the Postal Service must make an annual adjustment for 
inflation and publish the adjustment in the Federal Register by January 
15 of each year, beginning in 2017. Each penalty will be adjusted as 
instructed by OMB based on CPI-U from the most recent October.
    The 2015 Act allows the interim final rule and annual inflation 
adjustments to be published without prior public notice or opportunity 
for public comment.

Adjustments to Postal Service Civil Monetary Penalties

    Civil monetary penalties may be assessed for postal offenses under 
sections 106 and 108 of the Deceptive Mail Prevention and Enforcement 
Act, Public Law 106-168, 113 Stat. 1811, 1814 (see, 39 U.S.C. 3012(a), 
(c)(1), (d), and 3017(g)(2), (h)(1)(A)); and section 1008 of the Postal 
Accountability and Enhancement Act, Public Law 109-435, 120 Stat. 3259-
3261 (see, 39 U.S.C. 3018 (c)(1)(A)). The statutory civil monetary 
penalties subject to the 2015 Act and the amount of each penalty after 
the ``catch-up'' adjustment are as follows:

39 U.S.C. 3012(a)--False representations and lottery orders.

    Under 39 U.S.C. 3005(a)(1)-(3), the Postal Service may issue 
administrative orders prohibiting persons from using the mail to obtain 
money through false representations or lotteries. Persons who evade, 
attempt to evade, or fail to comply with an order to stop such 
prohibited practices may be liable to the United States for a civil 
penalty under 39 U.S.C. 3012(a). This section currently imposes a 
$50,000 penalty for each mailing less than 50,000 pieces, $100,000 for 
each mailing 50,000 to 100,000 pieces, and $10,000 for each piece above 
100,000 up to a penalty of $2,000,000. These penalties were last 
adjusted in 2000. Based on the guidance

[[Page 42533]]

in OMB memorandum M-16-06, an adjustment multiplier of 1.36689 will be 
used. The new penalties will be as follows: $68,345 for each mailing 
less than 50,000 pieces, $136,689 for each mailing of 50,000 to 100,000 
pieces, and $13,669 for each piece above 100,000 not to exceed 
$2,733,780.

39 U.S.C. 3012(c)(1)--False representation and lottery penalties in 
lieu of or as part of an order.

    In lieu of or as part of an order issued under 39 U.S.C. 
3005(a)(1)-(3), the Postal Service may assess a civil penalty. 
Currently, the amount of this penalty, set in 39 U.S.C. 3012(c)(1), is 
$25,000 for each mailing that is less than 50,000 pieces, $50,000 for 
each mailing of 50,000 to 100,000 pieces, and an additional $5,000 for 
every additional 10,000 pieces above 100,000 not to exceed $1,000,000. 
These penalties were last adjusted in 2000. Based on OMB guidance, an 
adjustment multiplier of 1.36689 will be used. The new penalties will 
be $34,172 for each mailing that is less than 50,000 pieces, $68,345 
for each mailing of 50,000 to 100,000 pieces, and an additional $6,834 
for every additional 10,000 pieces above 100,000 not to exceed 
$1,366,890.

39 U.S.C. 3012(d)--Misleading references to the United States 
Government; Sweepstakes and deceptive mailings.

    Persons sending certain deceptive mail matter described in 39 
U.S.C. 3001((h)-(k), including:
     Solicitations making false claims of Federal Government 
connection or approval;
     Certain solicitations for the purchase of a product or 
service that may be obtained without cost from the Federal Government;
     Solicitations containing improperly prepared ``facsimile 
checks''; and
     Certain solicitations for ``skill contests'' and 
``sweepstakes'' sent to individuals who, in accordance with 39 U.S.C. 
3017(d), have requested that such materials not be mailed to them);

may be liable to the United States for a civil penalty under 39 U.S.C. 
3012(d). Currently, this penalty is not to exceed $10,000 for each 
mailing. The penalty was last adjusted in 2000. Based on OMB guidance, 
an adjustment multiplier of 1.36689 will be used. The new penalty will 
be $13,669.

39 U.S.C. 3017(g)(2)--Commercial use of lists of persons electing not 
to receive skill contest or sweepstakes mailings.

    Under 39 U.S.C. 3017(g)(2), the Postal Service may impose a civil 
penalty against a person who provides information for commercial use 
about individuals who, in accordance with 39 U.S.C. 3017(d), have 
elected not to receive certain sweepstakes and contest information. 
Currently, this civil penalty may not exceed $2,000,000 per violation. 
The penalty was last adjusted in 2000. Based on OMB guidance, an 
adjustment multiplier of 1.36689 will be used. The new penalty may not 
exceed $2,733,780 per violation.

39 U.S.C. 3017(h)(1)(A)--Reckless mailing of skill contest or 
sweepstakes matter.

    Currently, under 39 U.S.C. 3017(h)(1)(A), any promoter who 
recklessly mails nonmailable skill contest or sweepstakes matter may be 
liable to the United States in the amount of $10,000 per violation for 
each mailing to an individual. The penalty was last adjusted in 2000. 
Based on OMB guidance, an adjustment multiplier of 1.36689 will be 
used. The new penalty is $13,669 per violation.

39 U.S.C. 3018(c)(1)(A)--Hazardous material.

    Under 39 U.S.C. 3018(c)(1)(A), the Postal Service may impose a 
civil penalty payable into the Treasury of the United States on a 
person who knowingly mails nonmailable hazardous materials or fails to 
follow postal laws on mailing hazardous materials. Currently, this 
civil penalty is at least $250, but not more than $100,000 for each 
violation. The penalty amounts were last adjusted in 2006. Based on OMB 
guidance, an adjustment multiplier of 1.17858 will be used. The new 
penalty is at least $295, but not more than $117,858 for each 
violation.

List of Subjects in 39 CFR Part 233

    Administrative practice and procedure, Banks, Banking, Credit, 
Crime, Infants and children, Law enforcement, Penalties, Privacy, 
Seizures and forfeitures.

    For the reasons set out in this document, the Postal Service amends 
39 CFR part 233 as follows:

PART 233--INSPECTION SERVICE AUTHORITY

0
1. The authority citation for 39 CFR part 233 is revised to read as 
follows:

    Authority:  39 U.S.C. 101, 102, 202, 204, 401, 402, 403, 404, 
406, 410, 411, 1003, 3005, 3012, 3017, 3018; 12 U.S.C. 3401-3422; 18 
U.S.C. 981, 983, 1956, 1957, 2254, 3061; 21 U.S.C. 881; Pub. L. 101-
410, 104 Stat. 890; Pub. L. 104-208, 110 Stat. 3009-378; Pub. L. 
106-168, 113 Stat. 1806; Pub. L. 114-74, 129 Stat. 584.


0
2. Revise Sec.  233.12 to read as follows:


Sec.  233.12  Civil penalties.

    (a) False representations and lottery orders. Under 39 U.S.C. 
3005(a)(1)-(3), the Postal Service may issue administrative orders 
prohibiting persons from using the mail to obtain money through false 
representations or lotteries. Persons who evade, attempt to evade, or 
fail to comply with an order to stop such prohibited practices may be 
liable to the United States for a civil penalty under 39 U.S.C. 
3012(a). As adjusted under Public Law 114-74, the penalties are as 
follows: $68,345 for each mailing less than 50,000 pieces, $136,689 for 
each mailing of 50,000 to $100,000 pieces, and $13,669 for each piece 
above 100,000 not to exceed $2,733,780.
    (b) False representation and lottery penalties in lieu of or as 
part of an order. In lieu of or as part of an order issued under 39 
U.S.C. 3005(a)(1)-(3), the Postal Service may assess a civil penalty 
payable under 39 U.S.C. 3012(c)(1). As adjusted under Public Law 114-
74, the penalties are as follows: $34,172 for each mailing that is less 
than 50,000 pieces, $68,345 for each mailing of 50,000 to 100,000 
pieces, and an additional $6,834 for every additional 10,000 pieces 
above 100,000 not to exceed $1,366,890.
    (c) Misleading references to the United States Government; 
Sweepstakes and deceptive mailings. Persons sending certain deceptive 
mail matter described in 39 U.S.C. 3001(h)-(k), including:
    (1) Solicitations making false claims of Federal Government 
connection or approval;
    (2) Certain solicitations for the purchase of a product or service 
that may be obtained without cost from the Federal Government;
    (3) Solicitations containing improperly prepared ``facsimile 
checks''; and
    (4) Solicitations for ``skill contests'' and ``sweepstakes'' sent 
to individuals who, in accordance with 39 U.S.C. 3017(d), have 
requested that such materials not be mailed to them; may be liable to 
the United States for a civil penalty under 39 U.S.C. 3012(d). As 
adjusted under Public Law 114-74, this penalty is not to exceed $13,669 
for each mailing.
    (d) Commercial use of lists of persons electing not to receive 
skill contest or sweepstakes mailings. Under 39 U.S.C. 3017(g)(2), the 
Postal Service may impose a civil penalty against a person who provides 
information for commercial use about individuals who, in accordance 
with 39 U.S.C. 3017(d), have elected not to receive certain sweepstakes 
and contest information. As adjusted under Public Law 114-74,

[[Page 42534]]

the penalty may not exceed $2,733,780 per violation.
    (e) Reckless mailing of skill contest or sweepstakes matter. Under 
39 U.S.C. 3017(h)(1)(A), any promoter who recklessly mails nonmailable 
skill contest or sweepstakes matter may be liable to the United States 
for a civil penalty for each mailing to an individual. As adjusted 
under Public Law 114-74, the penalty is $13,669 per violation.
    (f) Hazardous material. Under 39 U.S.C. 3018(c)(1)(A), the Postal 
Service may impose a civil penalty payable into the Treasury of the 
United States on a person who knowingly mails nonmailable hazardous 
materials or fails to follow postal laws on mailing hazardous 
materials. As adjusted under Public Law 114-74, the penalty is at least 
$295, but not more than $117,858 for each violation.

Stanley F. Mires,
Attorney, Federal Compliance.
[FR Doc. 2016-15464 Filed 6-29-16; 8:45 am]
 BILLING CODE 7710-12-P



                                              42532              Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations

                                              G. Protest Activities                                   Notices to Mariners, Local Notices to                  Penalties Inflation Adjustment Act
                                                The Coast Guard respects the First                    Mariners, and/or Safety Marine                         Improvements Act of 2016 (February 24,
                                              Amendment rights of protesters.                         Information Broadcasts as appropriate of               2016), www.whitehouse.gov/omb/
                                              Protesters are asked to contact the                     the enforcement period for each safety                 memoranda/2016/m-16-06.
                                              person listed in the FOR FURTHER                        zone as well as any changes in the                        First, the Postal Service must make an
                                              INFORMATION CONTACT section to
                                                                                                      planned and published dates and times                  initial ‘‘catch-up’’ adjustment to each of
                                              coordinate protest activities so that your              of enforcement.                                        its qualifying civil monetary penalties
                                              message can be received without                                                                                through an interim final rule by July 1,
                                                                                                      R.V. Timme,
                                              jeopardizing the safety or security of                                                                         2016. The catch-up adjustment is based
                                                                                                      Captain, U.S. Coast Guard, Captain of the              on the Consumer Price Index (CPI–U)
                                              people, places or vessels.                              Port Ohio Valley.
                                                                                                                                                             and is calculated for each penalty. The
                                              List of Subjects in 33 CFR Part 165                     [FR Doc. 2016–15571 Filed 6–29–16; 8:45 am]
                                                                                                                                                             amount of the adjustment is calculated
                                                                                                      BILLING CODE 9110–04–P                                 by multiplying the current published
                                                Harbors, Marine safety, Navigation
                                              (water), Reporting and recordkeeping                                                                           penalty amount by an adjustment factor
                                              requirements, Security measures,                                                                               provided by the Office of Management
                                                                                                      POSTAL SERVICE                                         and Budget (OMB). The adjustment
                                              Waterways.
                                                                                                                                                             factor varies depending on the year a
                                                For the reasons discussed in the                      39 CFR Part 233                                        penalty was last adjusted. The new
                                              preamble, the Coast Guard amends 33
                                                                                                      Inspection Service Authority; Civil                    penalty amount must be rounded to the
                                              CFR part 165 as follows:
                                                                                                      Monetary Penalty Inflation Adjustment                  nearest dollar.
                                              PART 165—REGULATED NAVIGATION                                                                                     Second, the Postal Service must make
                                              AREAS AND LIMITED ACCESS AREAS                          AGENCY:    Postal Service.                             an annual adjustment for inflation and
                                                                                                      ACTION:   Interim final rule.                          publish the adjustment in the Federal
                                              ■ 1. The authority citation for part 165                                                                       Register by January 15 of each year,
                                              continues to read as follows:                           SUMMARY:   This rule updates postal                    beginning in 2017. Each penalty will be
                                                                                                      regulations to implement inflation                     adjusted as instructed by OMB based on
                                                Authority: 33 U.S.C. 1231; 50 U.S.C. 191;
                                                                                                      adjustments to civil monetary penalties                CPI–U from the most recent October.
                                              33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5;
                                              Department of Homeland Security Delegation              that may be imposed under consumer                        The 2015 Act allows the interim final
                                              No. 0170.1.                                             protection and mailability provisions                  rule and annual inflation adjustments to
                                                                                                      enforced by the Postal Service pursuant                be published without prior public
                                              ■ 2. Add § 165.T08–0502 to read as                      to the Deceptive Mail Prevention and                   notice or opportunity for public
                                              follows:                                                Enforcement Act and the Postal                         comment.
                                              § 165.T08–0502 Safety Zone; Ohio River,
                                                                                                      Accountability and Enhancement Act.
                                                                                                      These adjustments are required under                   Adjustments to Postal Service Civil
                                              Mile 607.5 to Mile 608.6.                                                                                      Monetary Penalties
                                                                                                      the Federal Civil Penalties Inflation
                                                (a) Location. The following area is a
                                                                                                      Adjustment Act of 1990, as amended by                     Civil monetary penalties may be
                                              safety zone: All waters of the Ohio River
                                                                                                      the Federal Civil Penalties Inflation                  assessed for postal offenses under
                                              from mile 607.5 to mile 608.6.
                                                                                                      Adjustment Act Improvements Act of                     sections 106 and 108 of the Deceptive
                                                 (b) Enforcement period. This safety
                                                                                                      2015. This notice also includes the                    Mail Prevention and Enforcement Act,
                                              zone will be enforced from 10:30 p.m.
                                                                                                      statutory civil monetary penalties                     Public Law 106–168, 113 Stat. 1811,
                                              until 11:00 p.m. on July 3, 2016.
                                                                                                      subject to the 2015 Act.                               1814 (see, 39 U.S.C. 3012(a), (c)(1), (d),
                                                 (c) Definitions. As used in this
                                              section, designated representative                      DATES: Effective date: August 1, 2016.                 and 3017(g)(2), (h)(1)(A)); and section
                                              means a Coast Guard Patrol                              FOR FURTHER INFORMATION CONTACT:                       1008 of the Postal Accountability and
                                              Commander, including a Coast Guard                      Steven Sultan, (202) 268–7385.                         Enhancement Act, Public Law 109–435,
                                              coxswain, petty officer, or other officer               SUPPLEMENTARY INFORMATION: The
                                                                                                                                                             120 Stat. 3259–3261 (see, 39 U.S.C. 3018
                                              operating a Coast Guard vessel and a                    Federal Civil Penalties Inflation                      (c)(1)(A)). The statutory civil monetary
                                              Federal, State, and local officer                       Adjustment Act Improvements Act of                     penalties subject to the 2015 Act and the
                                              designated by or assisting the Captain of               2015 (2015 Act), Public Law 114–74,                    amount of each penalty after the ‘‘catch-
                                              the Port (COTP) Ohio Valley in the                      129 Stat. 584, amended the Federal Civil               up’’ adjustment are as follows:
                                              enforcement of the safety zone.                         Penalties Inflation Adjustment Act of                  39 U.S.C. 3012(a)—False
                                                 (d) Regulations. (1) Under the general               1990 (1990 Act), Public Law 101–410,                        representations and lottery orders.
                                              safety zone regulations in subpart C of                 104 Stat. 890 (28 U.S.C. 2461 note), to                   Under 39 U.S.C. 3005(a)(1)–(3), the
                                              this part, you may not enter the safety                 improve the effectiveness of civil                     Postal Service may issue administrative
                                              zone described in paragraph (a) of this                 monetary penalties and to maintain                     orders prohibiting persons from using
                                              section unless authorized by the COTP                   their deterrent effect. Section 3 of the               the mail to obtain money through false
                                              or the COTP’s designated representative.                1990 Act specifically includes the Postal              representations or lotteries. Persons who
                                                 (2) To seek permission to enter,                     Service in the definition of ‘‘agency’’                evade, attempt to evade, or fail to
                                              contact the COTP or designated                          subject to its provisions.                             comply with an order to stop such
                                              representative via VHF–FM radio                           The 2015 Act requires the Postal                     prohibited practices may be liable to the
                                              channel 16 or phone at 1–800–253–                       Service to make two types of                           United States for a civil penalty under
                                              7465.                                                   adjustments to civil penalties that meet               39 U.S.C. 3012(a). This section currently
srobinson on DSK5SPTVN1PROD with RULES




                                                 (3) All persons and vessels shall                    the definition of ‘‘civil monetary                     imposes a $50,000 penalty for each
                                              comply with the instruction of the                      penalty’’ under the 1990 Act. The Office               mailing less than 50,000 pieces,
                                              COTP and designated on-scene                            of Management and Budget has                           $100,000 for each mailing 50,000 to
                                              personnel.                                              furnished detailed instructions                        100,000 pieces, and $10,000 for each
                                                 (e) Information broadcasts. The COTP                 regarding these adjustments in                         piece above 100,000 up to a penalty of
                                              or a designated representative will                     memorandum M–16–06,                                    $2,000,000. These penalties were last
                                              inform the public through Broadcast                     Implementation of the Federal Civil                    adjusted in 2000. Based on the guidance


                                         VerDate Sep<11>2014   20:00 Jun 29, 2016   Jkt 238001   PO 00000   Frm 00080   Fmt 4700   Sfmt 4700   E:\FR\FM\30JNR1.SGM   30JNR1


                                                                 Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations                                          42533

                                              in OMB memorandum M–16–06, an                           against a person who provides                          § 233.12   Civil penalties.
                                              adjustment multiplier of 1.36689 will be                information for commercial use about                      (a) False representations and lottery
                                              used. The new penalties will be as                      individuals who, in accordance with 39                 orders. Under 39 U.S.C. 3005(a)(1)–(3),
                                              follows: $68,345 for each mailing less                  U.S.C. 3017(d), have elected not to                    the Postal Service may issue
                                              than 50,000 pieces, $136,689 for each                   receive certain sweepstakes and contest                administrative orders prohibiting
                                              mailing of 50,000 to 100,000 pieces, and                information. Currently, this civil                     persons from using the mail to obtain
                                              $13,669 for each piece above 100,000                    penalty may not exceed $2,000,000 per                  money through false representations or
                                              not to exceed $2,733,780.                               violation. The penalty was last adjusted               lotteries. Persons who evade, attempt to
                                              39 U.S.C. 3012(c)(1)—False                              in 2000. Based on OMB guidance, an                     evade, or fail to comply with an order
                                                   representation and lottery penalties               adjustment multiplier of 1.36689 will be               to stop such prohibited practices may be
                                                   in lieu of or as part of an order.                 used. The new penalty may not exceed                   liable to the United States for a civil
                                                In lieu of or as part of an order issued              $2,733,780 per violation.                              penalty under 39 U.S.C. 3012(a). As
                                              under 39 U.S.C. 3005(a)(1)–(3), the                     39 U.S.C. 3017(h)(1)(A)—Reckless                       adjusted under Public Law 114–74, the
                                                                                                           mailing of skill contest or                       penalties are as follows: $68,345 for
                                              Postal Service may assess a civil
                                                                                                           sweepstakes matter.                               each mailing less than 50,000 pieces,
                                              penalty. Currently, the amount of this
                                                                                                         Currently, under 39 U.S.C.                          $136,689 for each mailing of 50,000 to
                                              penalty, set in 39 U.S.C. 3012(c)(1), is
                                                                                                      3017(h)(1)(A), any promoter who                        $100,000 pieces, and $13,669 for each
                                              $25,000 for each mailing that is less
                                                                                                      recklessly mails nonmailable skill                     piece above 100,000 not to exceed
                                              than 50,000 pieces, $50,000 for each
                                                                                                      contest or sweepstakes matter may be                   $2,733,780.
                                              mailing of 50,000 to 100,000 pieces, and                                                                          (b) False representation and lottery
                                              an additional $5,000 for every                          liable to the United States in the amount
                                                                                                                                                             penalties in lieu of or as part of an
                                              additional 10,000 pieces above 100,000                  of $10,000 per violation for each mailing
                                                                                                                                                             order. In lieu of or as part of an order
                                              not to exceed $1,000,000. These                         to an individual. The penalty was last
                                                                                                                                                             issued under 39 U.S.C. 3005(a)(1)–(3),
                                              penalties were last adjusted in 2000.                   adjusted in 2000. Based on OMB
                                                                                                                                                             the Postal Service may assess a civil
                                              Based on OMB guidance, an adjustment                    guidance, an adjustment multiplier of
                                                                                                                                                             penalty payable under 39 U.S.C.
                                              multiplier of 1.36689 will be used. The                 1.36689 will be used. The new penalty
                                                                                                                                                             3012(c)(1). As adjusted under Public
                                              new penalties will be $34,172 for each                  is $13,669 per violation.                              Law 114–74, the penalties are as
                                              mailing that is less than 50,000 pieces,                39 U.S.C. 3018(c)(1)(A)—Hazardous                      follows: $34,172 for each mailing that is
                                              $68,345 for each mailing of 50,000 to                        material.                                         less than 50,000 pieces, $68,345 for each
                                              100,000 pieces, and an additional                          Under 39 U.S.C. 3018(c)(1)(A), the                  mailing of 50,000 to 100,000 pieces, and
                                              $6,834 for every additional 10,000                      Postal Service may impose a civil                      an additional $6,834 for every
                                              pieces above 100,000 not to exceed                      penalty payable into the Treasury of the               additional 10,000 pieces above 100,000
                                              $1,366,890.                                             United States on a person who                          not to exceed $1,366,890.
                                              39 U.S.C. 3012(d)—Misleading                            knowingly mails nonmailable hazardous                     (c) Misleading references to the
                                                   references to the United States                    materials or fails to follow postal laws               United States Government; Sweepstakes
                                                   Government; Sweepstakes and                        on mailing hazardous materials.                        and deceptive mailings. Persons sending
                                                   deceptive mailings.                                Currently, this civil penalty is at least              certain deceptive mail matter described
                                                Persons sending certain deceptive                     $250, but not more than $100,000 for                   in 39 U.S.C. 3001(h)–(k), including:
                                              mail matter described in 39 U.S.C.                      each violation. The penalty amounts                       (1) Solicitations making false claims
                                              3001((h)–(k), including:                                were last adjusted in 2006. Based on                   of Federal Government connection or
                                                • Solicitations making false claims of                OMB guidance, an adjustment                            approval;
                                              Federal Government connection or                        multiplier of 1.17858 will be used. The                   (2) Certain solicitations for the
                                              approval;                                               new penalty is at least $295, but not                  purchase of a product or service that
                                                • Certain solicitations for the                       more than $117,858 for each violation.                 may be obtained without cost from the
                                              purchase of a product or service that                                                                          Federal Government;
                                              may be obtained without cost from the                   List of Subjects in 39 CFR Part 233                       (3) Solicitations containing
                                              Federal Government;                                       Administrative practice and                          improperly prepared ‘‘facsimile
                                                • Solicitations containing improperly                 procedure, Banks, Banking, Credit,                     checks’’; and
                                              prepared ‘‘facsimile checks’’; and                      Crime, Infants and children, Law                          (4) Solicitations for ‘‘skill contests’’
                                                • Certain solicitations for ‘‘skill                   enforcement, Penalties, Privacy,                       and ‘‘sweepstakes’’ sent to individuals
                                              contests’’ and ‘‘sweepstakes’’ sent to                  Seizures and forfeitures.                              who, in accordance with 39 U.S.C.
                                              individuals who, in accordance with 39                    For the reasons set out in this                      3017(d), have requested that such
                                              U.S.C. 3017(d), have requested that such                document, the Postal Service amends 39                 materials not be mailed to them; may be
                                              materials not be mailed to them);                       CFR part 233 as follows:                               liable to the United States for a civil
                                                                                                                                                             penalty under 39 U.S.C. 3012(d). As
                                              may be liable to the United States for a
                                                                                                      PART 233—INSPECTION SERVICE                            adjusted under Public Law 114–74, this
                                              civil penalty under 39 U.S.C. 3012(d).
                                                                                                      AUTHORITY                                              penalty is not to exceed $13,669 for
                                              Currently, this penalty is not to exceed
                                                                                                                                                             each mailing.
                                              $10,000 for each mailing. The penalty                   ■ 1. The authority citation for 39 CFR                    (d) Commercial use of lists of persons
                                              was last adjusted in 2000. Based on                     part 233 is revised to read as follows:                electing not to receive skill contest or
                                              OMB guidance, an adjustment                                                                                    sweepstakes mailings. Under 39 U.S.C.
                                              multiplier of 1.36689 will be used. The                   Authority: 39 U.S.C. 101, 102, 202, 204,
                                                                                                      401, 402, 403, 404, 406, 410, 411, 1003, 3005,         3017(g)(2), the Postal Service may
                                              new penalty will be $13,669.
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                                                                                                      3012, 3017, 3018; 12 U.S.C. 3401–3422; 18              impose a civil penalty against a person
                                              39 U.S.C. 3017(g)(2)—Commercial use                     U.S.C. 981, 983, 1956, 1957, 2254, 3061; 21            who provides information for
                                                   of lists of persons electing not to                U.S.C. 881; Pub. L. 101–410, 104 Stat. 890;            commercial use about individuals who,
                                                   receive skill contest or sweepstakes               Pub. L. 104–208, 110 Stat. 3009–378; Pub. L.           in accordance with 39 U.S.C. 3017(d),
                                                   mailings.                                          106–168, 113 Stat. 1806; Pub. L. 114–74, 129           have elected not to receive certain
                                                Under 39 U.S.C. 3017(g)(2), the Postal                Stat. 584.                                             sweepstakes and contest information.
                                              Service may impose a civil penalty                      ■   2. Revise § 233.12 to read as follows:             As adjusted under Public Law 114–74,


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                                              42534              Federal Register / Vol. 81, No. 126 / Thursday, June 30, 2016 / Rules and Regulations

                                              the penalty may not exceed $2,733,780                   I. Introduction                                        only apply to very limited proceeding
                                              per violation.                                             In this Order, the Commission adopts                types.
                                                 (e) Reckless mailing of skill contest or             final rules concerning ex parte                        II. Background
                                              sweepstakes matter. Under 39 U.S.C.                     communications. The final rules
                                              3017(h)(1)(A), any promoter who                         adopted by this Order amend existing                      On January 8, 2016, the Commission
                                              recklessly mails nonmailable skill                      Commission rules and remove obsolete                   issued Order No. 3005, introducing a
                                              contest or sweepstakes matter may be                    rules no longer applicable under the                   proposed revision and reorganization of
                                              liable to the United States for a civil                 Postal Accountability and Enhancement                  its rules concerning ex parte
                                              penalty for each mailing to an                          Act (PAEA), Public Law 109–435, 120                    communications. See Order No. 3005.
                                              individual. As adjusted under Public                    Stat. 3218 (2006). The final rules are                 Order No. 3005 explained that the
                                              Law 114–74, the penalty is $13,669 per                  located at 39 CFR part 3008. Existing                  current rules concerning ex parte
                                              violation.                                              rules located at §§ 3000.735–501, 502,                 communications are located at
                                                 (f) Hazardous material. Under 39                     3001.5(o), and 3001.7 are amended to                   §§ 3000.735–501, 502, and 3001.7. See
                                              U.S.C. 3018(c)(1)(A), the Postal Service                reflect the revised location of the ex                 id. The Commission identified a need to
                                              may impose a civil penalty payable into                 parte communications rules. Existing                   revise the existing rules for several
                                              the Treasury of the United States on a                  rules located at 39 CFR part 3000 are                  reasons. The existing rules contained
                                              person who knowingly mails                              renumbered for consistency with                        significant redundancy between the
                                              nonmailable hazardous materials or fails                Federal Register guidance.                             requirements of § 3000.735–501 and the
                                              to follow postal laws on mailing                           The rules as adopted incorporate                    requirements of § 3001.7. Furthermore,
                                              hazardous materials. As adjusted under                  suggestions offered by commenters that                 the existing rules made it difficult to
                                              Public Law 114–74, the penalty is at                    restructure some rules as proposed, but                identify who qualified as Commission
                                              least $295, but not more than $117,858                  do not materially affect their substance.              ‘‘decision-making personnel’’ without
                                              for each violation.                                     The initial approach taken by the                      referring to unrelated sections of the
                                                                                                      Commission was to codify only what                     CFR.
                                              Stanley F. Mires,                                       were considered mandatory ex parte                        The existing rules also referred to rate
                                              Attorney, Federal Compliance.                           communications requirements in the                     and classification cases under 39 U.S.C.
                                              [FR Doc. 2016–15464 Filed 6–29–16; 8:45 am]             Code of Federal Regulations (CFR)                      3624, which were eliminated under the
                                              BILLING CODE 7710–12–P                                  applicable to a limited set of                         PAEA. Finally, the existing rules lacked
                                                                                                      Commission docket types. The                           guidance for Commission personnel on
                                                                                                      Commission also proposed to issue a                    how to treat ex parte communications
                                              POSTAL REGULATORY COMMISSION                            more comprehensive policy document                     falling outside the scope of the specific
                                                                                                      to include ex parte communications                     docket types mentioned.
                                              39 CFR Parts 3000, 3001, and 3008                       requirements for other possible docket                    The operative statute requires the
                                                                                                      types.1 The Commission understands                     Commission to restrict ex parte
                                              [Docket No. RM2016–4; Order No. 3379]                   comments suggesting the proposed                       communications only in matters where
                                                                                                      approach would cause confusion                         the Commission must provide an
                                              Ex Parte Communications                                 concerning when the mandatory rules                    opportunity for a hearing on the record
                                                                                                      apply versus when the policy applies.                  pursuant to 5 U.S.C. 556 through 557.
                                              AGENCY:    Postal Regulatory Commission.
                                                                                                      The Commission has adopted modified                    Under the PAEA, the Commission is
                                              ACTION:   Final rule.                                   rules to alleviate this confusion by                   only required to provide an opportunity
                                                                                                      making the rules inclusive of all                      for a hearing in matters regarding a
                                              SUMMARY:    The Commission is issuing a                 proceeding types before the Commission                 change in the nature of postal services
                                              set of final rules amending existing                    with specific exceptions. This is a                    pursuant to 39 U.S.C. 3633. In addition
                                              Commission rules related to ex parte                    change in form, but not substance.2                    to nature of service matters,
                                              communications. The final rules are                        The change in structure also is                     Commission regulations historically
                                              consistent with the recommended                         intended to clarify that the Commission                have extended restrictions on ex parte
                                              approach to agency treatment of ex parte                in most instances will effectively take a              communications to post office appeal
                                              communications. Relative to the                         permit-but-disclose approach to ex parte               cases pursuant to 39 U.S.C. 404(d)(5)
                                              proposed rules, some rules were                         communications, which was suggested                    and (6) and complaint cases pursuant to
                                              restructured based on comments                          by many of the commenters. However,                    39 U.S.C. 3662. The Commission
                                              received, others were modified to                       given the opportunities the Commission                 considers the restriction appropriate
                                              alleviate confusion.                                    provides to participants to avoid ex                   because of the potential impact ex parte
                                              DATES: Effective August 1, 2016.                        parte communications issues altogether,                communications might have on
                                              FOR FURTHER INFORMATION CONTACT:                        the rules do not encourage ex parte                    participants and their associated rights
                                              David A. Trissell, General Counsel, at                  communications as the norm.3 The                       in those types of proceedings. See Order
                                              202–789–6820.                                           proposed changes in structure also are                 No. 3005 at 2–3.
                                                                                                      intended to clarify that penalties for                    In addition to the above three types of
                                              SUPPLEMENTARY INFORMATION:                              violating ex parte communication rules                 proceedings—nature of service, post
                                              Regulatory History                                                                                             office closings, and complaints—many
                                                                                                        1 The opportunity to comment on both the rules       other types of proceedings come before
                                                 81 FR 1931, January 14, 2016.                        and the policy were provided in Order No. 3005.        the Commission. Accordingly, the
                                                                                                      Notice of Proposed Rulemaking Regarding Ex Parte
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                                              Table of Contents                                       Communications, January 8, 2016 (Order No. 3005).
                                                                                                                                                             Commission attached as a library
                                                                                                        2 The Commission’s internal policy is revised to     reference to Order No. 3005 a new
                                              I. Introduction                                         reflect the changes in the final rules and will be     proposed internal policy on the
                                              II. Background                                          made available on the Commission’s Web site.           treatment of ex parte communications
                                              III. Comments                                             3 For example, participants generally have
                                              IV. Commission Analysis
                                                                                                                                                             applicable to all cases. For consistency
                                                                                                      sufficient opportunities to make their views known
                                              V. Changes to the Proposed Rules                        by filing documents on the Commission’s Web site
                                                                                                                                                             with prevailing principles regarding
                                              VI. Ordering Paragraphs                                 during the course of a proceeding.                     agency treatment of ex parte


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Document Created: 2018-02-08 07:45:39
Document Modified: 2018-02-08 07:45:39
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule.
DatesEffective date: August 1, 2016.
ContactSteven Sultan, (202) 268-7385.
FR Citation81 FR 42532 
CFR AssociatedAdministrative Practice and Procedure; Banks; Banking; Credit; Crime; Infants and Children; Law Enforcement; Penalties; Privacy and Seizures and Forfeitures

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