82 FR 57821 - Civil Monetary Penalty Adjustments for Inflation
DEPARTMENT OF HOMELAND SECURITY
U.S. Customs and Border Protection Federal Register Volume 82, Issue 235 (December 8, 2017)
U.S. Customs and Border Protection
Federal Register Volume 82, Issue 235 (December 8, 2017)
| Page Range | 57821-57825 | |
| FR Document | 2017-26506 |
[Federal Register Volume 82, Number 235 (Friday, December 8, 2017)] [Rules and Regulations] [Pages 57821-57825] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-26506] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection 19 CFR Part 4 [CBP Dec. 17-20] RIN 1651-AB15 Civil Monetary Penalty Adjustments for Inflation AGENCY: U.S. Customs and Border Protection, DHS. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This rule amends U.S. Customs and Border Protection (CBP) regulations to adjust for inflation the amounts that CBP can assess as civil monetary penalties for the following three violations-- transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel; towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel; and dealing in or using an empty stamped imported liquor container after it has already been used once. These adjustments are being made in in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) which was enacted on November 2, 2015. Other CBP civil penalty amounts were adjusted pursuant to this 2015 Act in previously published rule documents published in the Federal Register on July 1, 2016, and January 27, 2017, but the adjustments for these three civil penalties were inadvertently left out of those documents. DATES: This rule is effective on December 8, 2017. The adjusted penalty amounts will be applicable for penalties assessed after December 8, 2017 if the associated violations occurred after November 2, 2015. FOR FURTHER INFORMATION CONTACT: Millie Gleason, Office of Field Operations, U.S. Customs and Border Protection. Phone: (202) 325-4291. SUPPLEMENTARY INFORMATION: I. Statutory and Regulatory Background On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74 section 701 (Nov. 2, 2015)) (2015 Act).\1\ The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) (1990 Inflation Adjustment Act) to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act required agencies to: (1) Adjust the level of civil monetary penalties with an initial ``catch-up'' adjustment through issuance of an interim final rule (IFR) and (2) make subsequent annual adjustments for inflation. Through the ``catch-up'' adjustment, agencies were required to adjust the maximum amounts of civil monetary penalties to more accurately reflect inflation rates. The 2015 Act directed the Office of Management and Budget (OMB) to issue guidance to agencies on implementing the initial ``catch-up'' adjustment. The 2015 Act required that agencies publish their IFRs in the Federal Register no later than July 1, 2016 and that the adjusted amounts were to take effect no later than August 1, 2016. --------------------------------------------------------------------------- \1\ The 2015 Act was enacted as part of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015). --------------------------------------------------------------------------- For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment. The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments. The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the Federal Register. The Department of Homeland Security (DHS) undertook a review of the civil penalties that DHS and its components administer to determine which penalties would need adjustments. On July 1, 2016, DHS published an IFR adjusting the civil monetary penalties with an initial ``catch- up'' adjustment, as required by the 2015 Act. See 81 FR 42987. DHS calculated the adjusted penalties based upon nondiscretionary provisions in the 2015 Act and upon guidance issued by OMB on February 24, 2016.\2\ The adjusted penalties were effective for civil penalties assessed after August 1, 2016 (the effective date of the IFR) whose associated violations occurred after November 2, 2015 (the date of enactment of the 2015 Act).\3\ On January 27, 2017, DHS published a final rule adopting as final the civil monetary penalty adjustment methodology from the IFR and making the 2017 annual inflation adjustment pursuant to the 2015 Act and upon guidance OMB issued to agencies on December 16, 2016.\4\ See 82 FR 8571. --------------------------------------------------------------------------- \2\ OMB, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, February 24, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf. \3\ DHS published a correction to the IFR on August 23, 2016 to correct one amendatory instruction. See 81 FR 57442. \4\ OMB, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 16, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf. --------------------------------------------------------------------------- As discussed in Section II below, three civil monetary penalties assessed by CBP and subject to the 2015 Act were inadvertently omitted from these DHS rulemakings. II. CBP Penalties CBP assesses or enforces penalties under various titles of the Unites States Code (U.S.C.) and the Code of Federal Regulations (CFR). These penalties include civil monetary penalties for certain violations of title 8 of the CFR pursuant to the Immigration and Nationality Act of 1952,\5\ as well as certain civil monetary penalties for customs violations for laws codified in title 19 of the U.S.C. and the CFR. CBP assesses many of the title 19 penalties under the Tariff Act of 1930, as amended, and as discussed in the IFR preamble at 81 FR 42987, the 2015 Act specifically exempts Tariff Act penalties from the inflation adjustment requirements in the 2015 Act. For that reason, DHS did not list those penalties in the tables of CBP penalty adjustments in the DHS rulemakings. There are also various other monetary penalties found throughout the U.S.C. and CFR which CBP may seek to issue or enforce but which were not included in the tables because they fall within the purview of [[Page 57822]] another Department or Agency for purposes of the 2015 Act.\6\ --------------------------------------------------------------------------- \5\ Public Law 82-414, as amended (INA). The INA contains provisions that impose penalties on persons, including carriers and aliens, who violate specified provisions of the INA. While CBP is responsible for enforcing various provisions of the INA and assessing penalties for violations of those provisions, all the penalty amounts CBP can assess for violations of the INA are set forth in one section of title 8 of the CFR--8 CFR 280.53. For a complete list of the INA sections for which penalties are assessed, in addition to a brief description of each violation, see the IFR preamble at 81 FR 42989-42990. \6\ For example, CBP may enforce the Clean Diamond Trade Act penalty set forth in 19 U.S.C. 3907, which falls within the purview of the Department of Treasury. See 31 CFR part 501, app. A. --------------------------------------------------------------------------- However, three non-Tariff Act penalties that are assessed by CBP were inadvertently omitted from the DHS rulemakings. The first is a penalty set forth at 19 U.S.C. 469, and not reflected in the CBP regulations, for dealing in or using already used empty stamped imported liquor containers. The other two penalties are set forth in title 46 of the U.S.C., 46 U.S.C. 55103 and 46 U.S.C. 55111 and reflected in the CBP regulations in 19 CFR part 4. Pursuant to 46 U.S.C. 55103(b) and 19 CFR 4.80(b)(2), CBP assesses penalties for transporting passengers between coastwise points in the United States by a non-coastwise qualified vessel. Pursuant to 46 U.S.C. 55111(c) and 19 CFR 4.92, CBP assesses penalties for towing a vessel between coastwise points in the United States by a non-coastwise qualified vessel. This final rule adjusts these penalty amounts using the same civil monetary penalty adjustment methodology that DHS announced in the IFR (81 FR 42987) and finalized in the DHS final rule (82 FR 8571), and detailed below. III. Inflation Adjustment Methodology Required by 2015 Act A. Overview The 2015 Act provides a new method for calculating inflation adjustments. The new method differs substantially from the methods that agencies used in the past when conducting inflation adjustments pursuant to the 1990 Inflation Adjustment Act. The new method is intended to more accurately reflect inflation. Previously, when agencies conducted adjustments to civil penalties, they did so under rules that required significant rounding of figures. For example, an agency would round a penalty increase that was greater than $1,000, but less than or equal to $10,000, to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that agencies would often not increase penalties at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent, which meant that longer periods without an inflation adjustment could cause a penalty to rapidly lose value in real terms. Over time, the formula used in the 1990 Inflation Adjustment Act calculations frequently caused penalties to lose value relative to actual inflation. The 2015 Act removed these rounding rules, and instead instructs agencies to round penalties to the nearest $1. While this creates penalty values that are no longer round numbers, it does ensure that agencies will increase penalties each year to a figure commensurate with the actual calculated inflation. To better reflect the original impact of civil penalties, the 2015 Act ``resets'' the inflation calculations by excluding prior inflationary adjustments under the Inflation Adjustment Act. To do this, the 2015 Act requires agencies to identify, for each penalty, the year that Congress originally enacted the maximum penalty level/range of minimum and maximum penalty levels or the year that the agency last adjusted the penalty amount other than to pursuant to the Inflation Adjustment Act, and the corresponding penalty amount(s). The 2015 Act then requires agencies to perform an initial ``catch-up'' adjustment, using the original amounts of civil penalties as a baseline, so that the 2016 penalty levels are equal, in real terms, to the penalty amounts as they were originally established. The 2015 Act also requires agencies to make subsequent annual adjustments to increase the penalty amounts by a cost-of-living adjustment. B. Catch-Up Adjustment This section sets forth the initial ``catch-up'' adjustment for three civil monetary penalties assessed by CBP that were inadvertently omitted from the DHS rulemakings. The catch-up adjustments for these three penalties are listed in Table 1 below. This table shows how DHS would have initially increased the penalties pursuant to the 2015 Act. The table contains the following information:In the first column (penalty name), we provide a description of the penalty. In the second column (citation), we provide the statutory cite from the United States Code (U.S.C.) and the regulatory cite from the Code of Federal Regulations (CFR). In the third column (current penalty), we list the existing penalty in effect on November 2, 2015. In the fourth column (baseline penalty (year)), we provide the amount and year of the penalty as enacted by Congress or as last changed through a mechanism other than pursuant to the Inflation Adjustment Act, whichever is later. In the fifth column (2016 multiplier), we list the multiplier used to adjust the penalty pursuant to the initial OMB catch-up guidance. The multiplier is determined by the year of enactment or last adjustment of the penalty. The multiplier is based upon the Consumer Price Index (CPI-U) for the month of October 2015, not seasonally adjusted. In the sixth column (preliminary new penalty), we list the amount obtained by multiplying the Baseline Penalty from column 4 with the Multiplier from column 5. This amount will be the catch-up adjustment amount, if, in accordance with the 2015 Act, this level does not increase penalty levels by more than 150 percent of the corresponding levels in effect on November 2, 2015. In the seventh column (adjusted 2016 penalty), we provide the number for the penalty as it would have been adjusted for 2016. To derive this number, we compare the preliminary new penalty with the current penalty from column 3. The adjusted new penalty is the lesser of either the preliminary new penalty or an amount equal to 150 percent more than the current penalty. Table 1--U.S. Customs and Border Protection Civil Penalties Initial Catch-Up Adjustments -------------------------------------------------------------------------------------------------------------------------------------------------------- Adjusted 2016 Preliminary new penalty [increase Penalty name Citation Current penalty Baseline penalty * 2016 penalty [2016 capped at 150% (year) Multiplier ** multiplier x more than current baseline penalty] penalty] -------------------------------------------------------------------------------------------------------------------------------------------------------- Penalty for dealing in or using 19 U.S.C. 469...... $200............... $200 (1879)........ 23.54832 $4,710............. $500. empty stamped imported liquor containers. [[Page 57823]] Penalty for transporting 46 U.S.C. 55103(b) $300............... $200 (1898)........ 23.54832 $4,710............. $750. passengers between coastwise 19 CFR 4.80(b)(2). points in the United States by a non-coastwise qualified vessel. Penalty for towing a vessel 46 U.S.C. 55111(c) $350-$1100, plus $250-$1000, plus 16.98843 $4,247-$16,988, $875-$2,750, plus between coastwise points in the 19 CFR 4.92. $60 per ton. $50 per ton (1940). plus $849 per ton. $150 per ton. United States by a non- coastwise qualified vessel. -------------------------------------------------------------------------------------------------------------------------------------------------------- * The amount of the penalty and the year when the penalty was established or last adjusted in statute or regulation other than pursuant to the Inflation Adjustment Act of 1990. ** OMB, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Table A: 2016 Civil Monetary Penalty Catch-Up Adjustment Multiplier by Calendar Year, February 24, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf. C. 2017 Adjustments This final rule also makes the 2017 annual inflation adjustment pursuant to the 2015 Act and the guidance OMB issued to agencies on December 16, 2016.\7\ Pursuant to 28 U.S.C. 2461 note sec. 6, as amended by the 2015 Act, the penalty amounts adjusted by this final rule will be applicable for penalties assessed after December 8, 2017 where the associated violation occurred after November 2, 2015 (i.e., the date the 2015 Act was signed into law). Consistent with OMB guidance, the 2015 Act does not change previously assessed penalties that the agency is actively collecting or has collected. --------------------------------------------------------------------------- \7\ See footnote 4. --------------------------------------------------------------------------- In Table 2 below, we show: (1) The civil penalty (or penalties) name, (2) the penalty statutory and/or regulatory citation, (3) the penalty amount as it would have been adjusted in 2016 (see Table 1), (4) the cost-of-living adjustment multiplier for 2017 that OMB provided in its December 16, 2016 guidance, and (5) the new 2017 adjusted penalty. Additionally, we have made conforming edits to the regulatory text for the new adjusted penalty amounts in 19 CFR 4.80(b)(2) and 19 CFR 4.92. Because the 19 U.S.C. 469 penalty is not included in the CFR, there are no conforming edits to be made to the regulatory text. However, this penalty is listed in Table 2 for informational purposes. Table 2--U.S. Customs and Border Protection Civil Penalties 2017 Adjustments ---------------------------------------------------------------------------------------------------------------- Adjusted 2016 2017 New penalty as Penalty name Citation penalty (see Table Multiplier adjusted by this 1) * final rule ---------------------------------------------------------------------------------------------------------------- Penalty for dealing in or using 19 U.S.C. 469....... $500................ 1.01636 $508.** empty stamped imported liquor containers. Penalty for transporting 46 U.S.C. 55103(b) $750................ 1.01636 $762. passengers between coastwise 19 CFR 4.80(b)(2). points in the United States by a non-coastwise qualified vessel. Penalty for towing a vessel 46 U.S.C. 55111(c) $875-$2,750, plus 1.01636 $889-$2,795, plus between coastwise points in the 19 CFR 4.92. $150 per ton. $152 per ton. United States by a non-coastwise qualified vessel. ---------------------------------------------------------------------------------------------------------------- * OMB, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, December 16, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf. ** No applicable conforming edit to regulatory text. IV. Administrative Procedure Act The Administrative Procedure Act (APA) generally requires agencies to publish a notice of proposed rulemaking in the Federal Register (5 U.S.C. 553(b)) and to provide interested persons with the opportunity to submit comments (5 U.S.C. 553(c)). The APA also requires agencies to provide a delayed effective date (of not less than 30 days) for substantive rules. 5 U.S.C. 553(d). The 2015 Act, however, specifically instructed that agencies are to make the required annual adjustments notwithstanding section 553 of title 5, United States Code. DHS is promulgating this final rule to ensure that the amount of civil penalties that CBP assesses or enforces that was inadvertently omitted from the DHS rulemakings reflects the statutorily mandated ranges as adjusted for inflation. The 2015 Act provides a clear nondiscretionary formula for adjustment of the civil penalties; DHS and CBP have been charged only with performing ministerial computations to determine the amounts of adjustments for inflation to civil monetary penalties. Additionally, although the 2015 Act requires publication of an IFR to take effect not later than August 1, 2016, that date has passed and publishing a separate IFR to account for these inadvertently omitted penalty adjustments would cause unnecessary delay. Further, this final rule merely applies the adjustment methodology [[Page 57824]] that DHS provided for public comment in the 2016 IFR and finalized in the 2017 final rule. DHS finds that it is unnecessary to seek further public comment regarding the application of the finalized methodology to these three penalties. For these reasons, and as specified in the 2015 Act, DHS finds good cause to promulgate these CBP civil monetary penalty adjustments as a final rule and finds that the prior public notice-and-comment procedures and delayed effective date requirements of the APA are unnecessary and do not apply to this rule. As described in Section I above, the 2015 Act requires agencies to make annual adjustments to civil monetary penalties no later than January 15 of each year and to publish the adjustments in the Federal Register. DHS will make future annual inflation adjustments required pursuant to the 2015 Act by final rule notwithstanding the notice-and- comment and delayed effective date requirements of the APA, as required by the 2015 Act. For future annual adjustments, DHS will update the penalty amounts by applying a cost-of-living adjustment multiplier pursuant to OMB guidance. DHS will publish a final rule that provides a table with the adjusted penalty amounts and that updates the numbers in the regulatory text accordingly. DHS will incorporate the three CBP penalties adjusted in this final rule into such future annual adjustment final rules. V. Regulatory Analyses A. Executive Orders 12866, 13563, and 13771 Executive Orders 12866 (``Regulatory Planning and Review'') and 13563 (``Improving Regulation and Regulatory Review'') direct agencies to assess the 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (``Reducing Regulation and Controlling Regulatory Costs'') directs agencies to reduce regulation and control regulatory costs and provides that ``for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.'' OMB has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action it is not subject to the requirements of Executive Order 13771. See OMB's Memorandum, ``Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs''' (April 5, 2017) at Q2. This final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the 2015 Act and OMB guidance.\8\ DHS therefore did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this final rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government. --------------------------------------------------------------------------- \8\ See footnotes 2 and 4. --------------------------------------------------------------------------- B. Regulatory Flexibility Act The Regulatory Flexibility Act applies only to rules for which an agency publishes a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice of proposed rulemaking was not required for the reasons stated above. C. Unfunded Mandates Reform Act The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. This final rule will not result in such an expenditure. D. Paperwork Reduction Act The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this final rule, because this final rule does not trigger any new or revised recordkeeping or reporting. VI. Signing Authority The signing authority for this document falls under 19 CFR 0.2(a). Accordingly, this document is signed by the Secretary of Homeland Security. List of Subjects in 19 CFR Part 4 Customs duties and inspection, Exports, Freight, Harbors, Maritime carriers, Oil pollution, Reporting and recordkeeping requirements, Vessels. Amendments to the Regulations For the reasons stated in the preamble, CBP amends 19 CFR part 4 as follows: PART 4--VESSELS IN FOREIGN AND DOMESTIC TRADES 0 1. The authority citation for part 4 continues to read in part as follows: Authority: 5 U.S.C. 301; 19 U.S.C. 66, 1431, 1433, 1434, 1624, 2071 note; 46 U.S.C. 501, 60105. * * * * * Sections 4.80, 4.80a, and 4.80b also issued under 19 U.S.C. 1706a; 28 U.S.C. 2461 note; 46 U.S.C. 12112, 12117, 12118, 50501- 55106, 55107, 55108, 55110, 55114, 55115, 55116, 55117, 55119, 56101, 55121, 56101, 57109; Pub. L. 108-7, Division B, Title II, Sec. 211; * * * * * Section 4.92 also issued under 28 U.S.C. 2461 note; 46 U.S.C. 55111; * * * * * 0 2. Revise Sec. 4.80(b)(2) to read as follows: Sec. 4.80 Vessels entitled to engage in coastwise trade. * * * * * (b) * * * (2) The penalty imposed for the unlawful transportation of passengers between coastwise points is $300 for each passenger so transported and landed on or before November 2, 2015, and $762 for each passenger so transported and landed after November 2, 2015 (46 U.S.C. 55103, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). * * * * * 0 3. Revise Sec. 4.92 to read as follows: Sec. 4.92 Towing. No vessel other than a vessel documented for the coastwise trade, or which would be entitled to be so documented except for its tonnage (see Sec. 4.80), may tow a vessel other than a vessel in distress between points in the U.S. embraced within the coastwise laws, or for any part of such towing (46 U.S.C. 55111). The penalties for violation of this provision occurring on or before November 2, 2015, are a fine of from $350 to $1100 against the owner or master of the towing vessel and a further penalty against the towing vessel of $60 per ton of the towed vessel. The penalties for violation of this provision occurring after November 2, 2015, are a [[Page 57825]] fine of from $889 to $2,795 against the owner or master of the towing vessel and a further penalty against the towing vessel of $152 per ton of the towed vessel (46 U.S.C. 55111, as adjusted by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). Dated: December 5, 2017. Elaine C. Duke, Acting Secretary of Homeland Security. [FR Doc. 2017-26506 Filed 12-7-17; 8:45 am] BILLING CODE 9111-14-P
![Federal Register / Vol. 82, No. 235 / Friday, December 8, 2017 / Rules and Regulations 57821
scheduled on December 11, 2017. The Operations, U.S. Customs and Border adjusted penalties were effective for
final CoC, TS, and SER can be viewed Protection. Phone: (202) 325–4291. civil penalties assessed after August 1,
in ADAMS under Accession No. SUPPLEMENTARY INFORMATION: 2016 (the effective date of the IFR)
ML17338A091. whose associated violations occurred
I. Statutory and Regulatory Background after November 2, 2015 (the date of
Dated at Rockville, Maryland, this 5th day
of December 2017. On November 2, 2015, the President enactment of the 2015 Act).3 On January
For the Nuclear Regulatory Commission. signed into law the Federal Civil 27, 2017, DHS published a final rule
Cindy K. Bladey, Penalties Inflation Adjustment Act adopting as final the civil monetary
Improvements Act of 2015 (Pub. L. 114– penalty adjustment methodology from
Chief, Regulatory Analysis and Rulemaking
Support Branch, Division of Rulemaking, 74 section 701 (Nov. 2, 2015)) (2015 the IFR and making the 2017 annual
Office of Nuclear Material Safety and Act).1 The 2015 Act amended the inflation adjustment pursuant to the
Safeguards. Federal Civil Penalties Inflation 2015 Act and upon guidance OMB
[FR Doc. 2017–26508 Filed 12–7–17; 8:45 am] Adjustment Act of 1990 (28 U.S.C. 2461 issued to agencies on December 16,
BILLING CODE 7590–01–P note) (1990 Inflation Adjustment Act) to 2016.4 See 82 FR 8571.
improve the effectiveness of civil As discussed in Section II below,
monetary penalties and to maintain three civil monetary penalties assessed
DEPARTMENT OF HOMELAND their deterrent effect. The 2015 Act by CBP and subject to the 2015 Act were
SECURITY required agencies to: (1) Adjust the level inadvertently omitted from these DHS
of civil monetary penalties with an rulemakings.
U.S. Customs and Border Protection initial ‘‘catch-up’’ adjustment through
issuance of an interim final rule (IFR) II. CBP Penalties
19 CFR Part 4 and (2) make subsequent annual CBP assesses or enforces penalties
adjustments for inflation. Through the under various titles of the Unites States
[CBP Dec. 17–20] ‘‘catch-up’’ adjustment, agencies were Code (U.S.C.) and the Code of Federal
RIN 1651–AB15 required to adjust the maximum Regulations (CFR). These penalties
amounts of civil monetary penalties to include civil monetary penalties for
Civil Monetary Penalty Adjustments for more accurately reflect inflation rates. certain violations of title 8 of the CFR
Inflation The 2015 Act directed the Office of pursuant to the Immigration and
Management and Budget (OMB) to issue Nationality Act of 1952,5 as well as
AGENCY: U.S. Customs and Border guidance to agencies on implementing certain civil monetary penalties for
Protection, DHS. the initial ‘‘catch-up’’ adjustment. The customs violations for laws codified in
ACTION: Final rule. 2015 Act required that agencies publish title 19 of the U.S.C. and the CFR. CBP
their IFRs in the Federal Register no assesses many of the title 19 penalties
SUMMARY: This rule amends U.S. later than July 1, 2016 and that the
Customs and Border Protection (CBP) under the Tariff Act of 1930, as
adjusted amounts were to take effect no amended, and as discussed in the IFR
regulations to adjust for inflation the later than August 1, 2016.
amounts that CBP can assess as civil preamble at 81 FR 42987, the 2015 Act
For the subsequent annual specifically exempts Tariff Act penalties
monetary penalties for the following adjustments, the 2015 Act requires
three violations—transporting from the inflation adjustment
agencies to increase the penalty requirements in the 2015 Act. For that
passengers between coastwise points in amounts by a cost-of-living adjustment.
the United States by a non-coastwise reason, DHS did not list those penalties
The 2015 Act directs OMB to provide in the tables of CBP penalty adjustments
qualified vessel; towing a vessel guidance to agencies each year to assist
between coastwise points in the United in the DHS rulemakings. There are also
agencies in making the annual various other monetary penalties found
States by a non-coastwise qualified adjustments. The 2015 Act requires
vessel; and dealing in or using an empty throughout the U.S.C. and CFR which
agencies to make the annual CBP may seek to issue or enforce but
stamped imported liquor container after adjustments no later than January 15 of
it has already been used once. These which were not included in the tables
each year and to publish the because they fall within the purview of
adjustments are being made in in adjustments in the Federal Register.
accordance with the Federal Civil The Department of Homeland
Penalties Inflation Adjustment Act whitehouse.archives.gov/sites/default/files/omb/
Security (DHS) undertook a review of memoranda/2016/m-16-06.pdf.
Improvements Act of 2015 (2015 Act) the civil penalties that DHS and its 3 DHS published a correction to the IFR on
which was enacted on November 2, components administer to determine August 23, 2016 to correct one amendatory
2015. Other CBP civil penalty amounts which penalties would need instruction. See 81 FR 57442.
were adjusted pursuant to this 2015 Act adjustments. On July 1, 2016, DHS
4 OMB, Implementation of the 2017 annual
in previously published rule documents adjustment pursuant to the Federal Civil Penalties
published an IFR adjusting the civil Inflation Adjustment Act Improvements Act of
published in the Federal Register on monetary penalties with an initial 2015, December 16, 2016. https://obama
July 1, 2016, and January 27, 2017, but ‘‘catch-up’’ adjustment, as required by whitehouse.archives.gov/sites/default/files/omb/
the adjustments for these three civil the 2015 Act. See 81 FR 42987. DHS
memoranda/2017/m-17-11_0.pdf.
5 Public Law 82–414, as amended (INA). The INA
penalties were inadvertently left out of calculated the adjusted penalties based contains provisions that impose penalties on
those documents. upon nondiscretionary provisions in the persons, including carriers and aliens, who violate
DATES: This rule is effective on 2015 Act and upon guidance issued by specified provisions of the INA. While CBP is
sradovich on DSK3GMQ082PROD with RULES
December 8, 2017. The adjusted penalty responsible for enforcing various provisions of the
OMB on February 24, 2016.2 The INA and assessing penalties for violations of those
amounts will be applicable for penalties provisions, all the penalty amounts CBP can assess
assessed after December 8, 2017 if the 1 The 2015 Act was enacted as part of the
for violations of the INA are set forth in one section
associated violations occurred after Bipartisan Budget Act of 2015, Public Law 114–74 of title 8 of the CFR—8 CFR 280.53. For a complete
November 2, 2015. (Nov. 2, 2015). list of the INA sections for which penalties are
2 OMB, Implementation of the Federal Civil assessed, in addition to a brief description of each
FOR FURTHER INFORMATION CONTACT: Penalties Inflation Adjustment Act Improvements violation, see the IFR preamble at 81 FR 42989–
Millie Gleason, Office of Field Act of 2015, February 24, 2016. https://obama 42990.
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another Department or Agency for penalties at all if the inflation factor was shows how DHS would have initially
purposes of the 2015 Act.6 not large enough. Furthermore, increased the penalties pursuant to the
However, three non-Tariff Act increases to penalties were capped at 10 2015 Act. The table contains the
penalties that are assessed by CBP were percent, which meant that longer following information:
inadvertently omitted from the DHS periods without an inflation adjustment • In the first column (penalty name),
rulemakings. The first is a penalty set could cause a penalty to rapidly lose we provide a description of the penalty.
forth at 19 U.S.C. 469, and not reflected value in real terms. Over time, the • In the second column (citation), we
in the CBP regulations, for dealing in or formula used in the 1990 Inflation provide the statutory cite from the
using already used empty stamped Adjustment Act calculations frequently United States Code (U.S.C.) and the
imported liquor containers. The other caused penalties to lose value relative to regulatory cite from the Code of Federal
two penalties are set forth in title 46 of actual inflation. The 2015 Act removed Regulations (CFR).
the U.S.C., 46 U.S.C. 55103 and 46 these rounding rules, and instead • In the third column (current
U.S.C. 55111 and reflected in the CBP instructs agencies to round penalties to penalty), we list the existing penalty in
regulations in 19 CFR part 4. Pursuant the nearest $1. While this creates effect on November 2, 2015.
to 46 U.S.C. 55103(b) and 19 CFR penalty values that are no longer round • In the fourth column (baseline
4.80(b)(2), CBP assesses penalties for numbers, it does ensure that agencies penalty (year)), we provide the amount
transporting passengers between will increase penalties each year to a and year of the penalty as enacted by
coastwise points in the United States by figure commensurate with the actual Congress or as last changed through a
a non-coastwise qualified vessel. calculated inflation. mechanism other than pursuant to the
Pursuant to 46 U.S.C. 55111(c) and 19 To better reflect the original impact of Inflation Adjustment Act, whichever is
CFR 4.92, CBP assesses penalties for civil penalties, the 2015 Act ‘‘resets’’ the later.
towing a vessel between coastwise inflation calculations by excluding prior • In the fifth column (2016
points in the United States by a non- inflationary adjustments under the multiplier), we list the multiplier used
coastwise qualified vessel. Inflation Adjustment Act. To do this, to adjust the penalty pursuant to the
This final rule adjusts these penalty the 2015 Act requires agencies to initial OMB catch-up guidance. The
amounts using the same civil monetary identify, for each penalty, the year that multiplier is determined by the year of
penalty adjustment methodology that Congress originally enacted the enactment or last adjustment of the
DHS announced in the IFR (81 FR maximum penalty level/range of penalty. The multiplier is based upon
42987) and finalized in the DHS final minimum and maximum penalty levels the Consumer Price Index (CPI–U) for
rule (82 FR 8571), and detailed below. or the year that the agency last adjusted the month of October 2015, not
III. Inflation Adjustment Methodology the penalty amount other than to seasonally adjusted.
Required by 2015 Act pursuant to the Inflation Adjustment • In the sixth column (preliminary
Act, and the corresponding penalty new penalty), we list the amount
A. Overview amount(s). The 2015 Act then requires obtained by multiplying the Baseline
The 2015 Act provides a new method agencies to perform an initial ‘‘catch- Penalty from column 4 with the
for calculating inflation adjustments. up’’ adjustment, using the original Multiplier from column 5. This amount
The new method differs substantially amounts of civil penalties as a baseline, will be the catch-up adjustment amount,
from the methods that agencies used in so that the 2016 penalty levels are equal, if, in accordance with the 2015 Act, this
the past when conducting inflation in real terms, to the penalty amounts as level does not increase penalty levels by
adjustments pursuant to the 1990 they were originally established. The more than 150 percent of the
Inflation Adjustment Act. The new 2015 Act also requires agencies to make corresponding levels in effect on
method is intended to more accurately subsequent annual adjustments to November 2, 2015.
reflect inflation. Previously, when increase the penalty amounts by a cost- • In the seventh column (adjusted
agencies conducted adjustments to civil of-living adjustment. 2016 penalty), we provide the number
penalties, they did so under rules that for the penalty as it would have been
B. Catch-Up Adjustment
required significant rounding of figures. adjusted for 2016. To derive this
For example, an agency would round a This section sets forth the initial number, we compare the preliminary
penalty increase that was greater than ‘‘catch-up’’ adjustment for three civil new penalty with the current penalty
$1,000, but less than or equal to monetary penalties assessed by CBP that from column 3. The adjusted new
$10,000, to the nearest multiple of were inadvertently omitted from the penalty is the lesser of either the
$1,000. While this allowed penalties to DHS rulemakings. The catch-up preliminary new penalty or an amount
be kept at round numbers, it meant that adjustments for these three penalties are equal to 150 percent more than the
agencies would often not increase listed in Table 1 below. This table current penalty.
TABLE 1—U.S. CUSTOMS AND BORDER PROTECTION CIVIL PENALTIES INITIAL CATCH-UP ADJUSTMENTS
Adjusted 2016
Preliminary new penalty
Baseline penalty
2016 [increase
Penalty name Citation Current penalty penalty * [2016 multiplier
Multiplier ** capped at 150%
(year) × baseline more than
penalty] current penalty]
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Penalty for dealing in or using 19 U.S.C. 469 .. $200 ................. $200 (1879) ..... 23.54832 $4,710 .............. $500.
empty stamped imported liquor
containers.
6 For example, CBP may enforce the Clean 3907, which falls within the purview of the Department of Treasury. See 31 CFR part 501,
Diamond Trade Act penalty set forth in 19 U.S.C. app. A.
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TABLE 1—U.S. CUSTOMS AND BORDER PROTECTION CIVIL PENALTIES INITIAL CATCH-UP ADJUSTMENTS—Continued
Adjusted 2016
Preliminary new penalty
Baseline penalty
2016 [increase
Penalty name Citation Current penalty penalty * [2016 multiplier
Multiplier ** capped at 150%
(year) × baseline more than
penalty] current penalty]
Penalty for transporting pas- 46 U.S.C. $300 ................. $200 (1898) ..... 23.54832 $4,710 .............. $750.
sengers between coastwise 55103(b) 19
points in the United States by CFR
a non-coastwise qualified ves- 4.80(b)(2).
sel.
Penalty for towing a vessel be- 46 U.S.C. $350–$1100, $250–$1000, 16.98843 $4,247– $875–$2,750,
tween coastwise points in the 55111(c) 19 plus $60 per plus $50 per $16,988, plus plus $150 per
United States by a non-coast- CFR 4.92. ton. ton (1940). $849 per ton. ton.
wise qualified vessel.
* The amount of the penalty and the year when the penalty was established or last adjusted in statute or regulation other than pursuant to the
Inflation Adjustment Act of 1990.
** OMB, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Table A: 2016 Civil Monetary Pen-
alty Catch-Up Adjustment Multiplier by Calendar Year, February 24, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/
memoranda/2016/m-16-06.pdf.
C. 2017 Adjustments 2015 Act was signed into law). guidance, and (5) the new 2017 adjusted
Consistent with OMB guidance, the penalty.
This final rule also makes the 2017 2015 Act does not change previously
annual inflation adjustment pursuant to Additionally, we have made
assessed penalties that the agency is conforming edits to the regulatory text
the 2015 Act and the guidance OMB actively collecting or has collected.
issued to agencies on December 16, In Table 2 below, we show: (1) The for the new adjusted penalty amounts in
2016.7 Pursuant to 28 U.S.C. 2461 note civil penalty (or penalties) name, (2) the 19 CFR 4.80(b)(2) and 19 CFR 4.92.
sec. 6, as amended by the 2015 Act, the penalty statutory and/or regulatory Because the 19 U.S.C. 469 penalty is not
penalty amounts adjusted by this final citation, (3) the penalty amount as it included in the CFR, there are no
rule will be applicable for penalties would have been adjusted in 2016 (see conforming edits to be made to the
assessed after December 8, 2017 where Table 1), (4) the cost-of-living regulatory text. However, this penalty is
the associated violation occurred after adjustment multiplier for 2017 that listed in Table 2 for informational
November 2, 2015 (i.e., the date the OMB provided in its December 16, 2016 purposes.
TABLE 2—U.S. CUSTOMS AND BORDER PROTECTION CIVIL PENALTIES 2017 ADJUSTMENTS
New
Adjusted 2016 penalty as
2017
Penalty name Citation penalty adjusted
Multiplier *
(see Table 1) by this
final rule
Penalty for dealing in or using empty stamped imported liquor 19 U.S.C. 469 ........... $500 ..................... 1.01636 $508.**
containers.
Penalty for transporting passengers between coastwise points 46 U.S.C. 55103(b) $750 ..................... 1.01636 $762.
in the United States by a non-coastwise qualified vessel. 19 CFR 4.80(b)(2).
Penalty for towing a vessel between coastwise points in the 46 U.S.C. 55111(c) $875–$2,750, plus 1.01636 $889–$2,795, plus
United States by a non-coastwise qualified vessel. 19 CFR 4.92. $150 per ton. $152 per ton.
* OMB, Implementation of the 2017 annual adjustment pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015, December 16, 2016. https://obamawhitehouse.archives.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf.
** No applicable conforming edit to regulatory text.
IV. Administrative Procedure Act instructed that agencies are to make the have been charged only with performing
required annual adjustments ministerial computations to determine
The Administrative Procedure Act notwithstanding section 553 of title 5, the amounts of adjustments for inflation
(APA) generally requires agencies to United States Code. to civil monetary penalties.
publish a notice of proposed rulemaking DHS is promulgating this final rule to Additionally, although the 2015 Act
in the Federal Register (5 U.S.C. 553(b)) ensure that the amount of civil penalties requires publication of an IFR to take
and to provide interested persons with that CBP assesses or enforces that was effect not later than August 1, 2016, that
the opportunity to submit comments (5 inadvertently omitted from the DHS date has passed and publishing a
sradovich on DSK3GMQ082PROD with RULES
U.S.C. 553(c)). The APA also requires rulemakings reflects the statutorily separate IFR to account for these
agencies to provide a delayed effective mandated ranges as adjusted for inadvertently omitted penalty
date (of not less than 30 days) for inflation. The 2015 Act provides a clear adjustments would cause unnecessary
substantive rules. 5 U.S.C. 553(d). The nondiscretionary formula for adjustment delay. Further, this final rule merely
2015 Act, however, specifically of the civil penalties; DHS and CBP applies the adjustment methodology
7 See footnote 4.
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![Federal Register / Vol. 82, No. 235 / Friday, December 8, 2017 / Rules and Regulations 57825
fine of from $889 to $2,795 against the longer in force, and should be removed Type the docket number in the
owner or master of the towing vessel from the Code of Federal Regulations. ‘‘SEARCH’’ box and click ‘‘SEARCH.’’
and a further penalty against the towing It has been determined that Click on Open Docket Folder on the line
vessel of $152 per ton of the towed publication of this CFR subchapter associated with this deviation.
vessel (46 U.S.C. 55111, as adjusted by removal for public comment is
the Federal Civil Penalties Inflation impracticable, unnecessary, and FOR FURTHER INFORMATION CONTACT: If
Adjustment Act Improvements Act of contrary to public interest because it is you have questions on this temporary
2015). based on removing outdated policies deviation, call or email Carl T. Hausner,
and procedures. Chief, Bridge Section, Eleventh Coast
Dated: December 5, 2017.
As this repeal removes information Guard District; telephone 510–437–
Elaine C. Duke, 3516; email Carl.T.Hausner@uscg.mil.
that is now obsolete from the CFR, there
Acting Secretary of Homeland Security.
is no cost savings to the public for the SUPPLEMENTARY INFORMATION: San
[FR Doc. 2017–26506 Filed 12–7–17; 8:45 am]
repeal of this subchapter. Joaquin County Department of Public
BILLING CODE 9111–14–P
List of Subjects in 32 CFR Parts 9, 10, Works has requested a temporary
11, 12, 13, 14, 15, 16, and 17 change to the operation of the San
Joaquin County (Bacon Island Road)
DEPARTMENT OF DEFENSE Military law.
highway Drawbridge over the Middle
SUBCHAPTER B—[REMOVED AND River, mile 8.6, between Bacon Island
Office of the Secretary RESERVED] and Lower Jones Tract, CA. The
32 CFR Parts 9, 10, 11, 12, 13, 14, 15, ■ Accordingly, by the authority of 5 drawbridge navigation span provides a
16, and 17 U.S.C. 301, title 32, subtitle A, chapter vertical clearance of 8 feet above Mean
I of the Code of Federal Regulations is High Water in the closed-to-navigation
[Docket ID: DOD–2017–OS–0062] amended by removing and reserving position. The draw operates as required
subchapter B, consisting of parts 9, 10, by 33 CFR 117.171(a). Navigation on the
RIN 0790–AJ58 11, 12, 13, 14, 15, 16, 17, 19, and 20. waterway is commercial and
Military Commissions Dated: December 4, 2017. recreational.
Aaron Siegel, The drawspan will be secured in the
AGENCY: Office of the General Counsel, Alternate OSD Federal Register Liaison closed-to-navigation position from 6
DoD. Officer, Department of Defense. a.m. on December 18, 2017 through 6
ACTION: Final rule. [FR Doc. 2017–26433 Filed 12–7–17; 8:45 am] p.m. on December 22, 2017, to allow the
BILLING CODE 5001–06–P bridge owner to make emergency
SUMMARY: The Department of Defense is
structural repairs. This temporary
removing its regulations regarding
deviation has been coordinated with the
procedures for the conduct of military
commissions to try certain terror DEPARTMENT OF HOMELAND waterway users. No objections to the
suspects for war crimes because the SECURITY proposed temporary deviation were
subchapter, which contains eleven raised.
Coast Guard
parts, is outdated and no longer in force. Vessels able to pass through the
DATES: This rule is effective on bridge in the closed position may do so
33 CFR Part 117
December 8, 2017. at anytime. In the event of an emergency
FOR FURTHER INFORMATION CONTACT:
[Docket No. USCG–2017–1069] the draw can open if at least 12 hours
Gerald Dziecichowicz at 703–693–9958. advance notice is given to the bridge
Drawbridge Operation Regulation; operator. Old River can be used as an
SUPPLEMENTARY INFORMATION: On Middle River, Between Bacon Island alternate route for vessels unable to pass
November 13, 2001, President George and Lower Jones Tract, CA through the bridge in the closed
W. Bush issued the Military Order titled
AGENCY: Coast Guard, DHS. position. The Coast Guard will also
‘‘Detention, Treatment, and Trial of
ACTION:Notice of deviation from inform the users of the waterway
Certain Non-Citizens in the War Against
drawbridge regulation. through our Local and Broadcast
Terrorism,’’ which authorized the use of
Notices to Mariners of the change in
military commissions to try certain
SUMMARY: The Coast Guard has issued a operating schedule for the bridge so that
terror suspects for war crimes. Pursuant
to section 4 of that order, the Secretary temporary deviation from the operating vessel operators can arrange their
of Defense issued policies and schedule that governs the San Joaquin transits to minimize any impact caused
procedures for the conduct of those County (Bacon Island Road) highway by the temporary deviation.
proceedings, which were codified at 32 Drawbridge across the Middle River, In accordance with 33 CFR 117.35(e),
CFR chapter I, subchapter B. In 2006, mile 8.6, between Bacon Island and the drawbridge must return to its regular
the Supreme Court essentially Lower Jones Tract, CA. The deviation is operating schedule immediately at the
invalidated that military commissions necessary to allow the bridge owner to end of the effective period of this
process. Congress subsequently passed make emergency structural repairs. This temporary deviation. This deviation
several laws reshaping and deviation allows the bridge to remain in from the operating regulations is
reauthorizing the use of military the closed-to-navigation position during authorized under 33 CFR 117.35.
sradovich on DSK3GMQ082PROD with RULES
commissions, which required the the deviation period.
DATES: This deviation is effective from Dated: December 4, 2017.
Secretary of Defense to issue new
policies and procedures. These updated 6 a.m. on December 18, 2017 through 6 Carl T. Hausner,
directives are publicly available and p.m. on December 22, 2017. District Bridge Chief, Eleventh Coast Guard
posted to a department Web site. ADDRESSES: The docket for this District.
Accordingly, this subchapter, which deviation, USCG–2017–1069, is [FR Doc. 2017–26463 Filed 12–7–17; 8:45 am]
contains eleven parts, is outdated, no available at http://www.regulations.gov. BILLING CODE 9110–04–P
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Document Created: 2017-12-08 01:43:19
Document Modified: 2017-12-08 01:43:19
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on December 8, 2017. The adjusted penalty amounts will be applicable for penalties assessed after December 8, 2017 if the associated violations occurred after November 2, 2015. | |
| Contact | Millie Gleason, Office of Field Operations, U.S. Customs and Border Protection. Phone: (202) 325-4291. | |
| FR Citation | 82 FR 57821 | |
| RIN Number | 1651-AB15 | |
| CFR Associated | Customs Duties and Inspection; Exports; Freight; Harbors; Maritime Carriers; Oil Pollution; Reporting and Recordkeeping Requirements and Vessels |
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