82 FR 9131 - Civil Monetary Penalties Inflation Adjustment for 2017
DEPARTMENT OF JUSTICE Federal Register Volume 82, Issue 22 (February 3, 2017)
Federal Register Volume 82, Issue 22 (February 3, 2017)
| Page Range | 9131-9136 | |
| FR Document | 2017-01306 |
[Federal Register Volume 82, Number 22 (Friday, February 3, 2017)] [Rules and Regulations] [Pages 9131-9136] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-01306] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 85 [Docket No. OAG 156; AG Order No. 3823-2017] Civil Monetary Penalties Inflation Adjustment for 2017 AGENCY: Department of Justice. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Department of Justice is adjusting for inflation the civil monetary penalties assessed or enforced by components of the Department, in accordance with the provisions of the Bipartisan Budget Act of 2015, for penalties assessed after February 3, 2017, whose associated violations occurred after November 2, 2015. DATES: Effective date: This rule is effective February 3, 2017. Applicability date: The adjusted civil penalty amounts are applicable only to civil penalties assessed after February 3, 2017, whose associated violations occurred after November 2, 2015. FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone (202) 514-8059 (not a toll-free number). SUPPLEMENTARY INFORMATION: I. Statutory Process for Implementing Annual Inflation Adjustments Section 701 of the Bipartisan Budget Act of 2015, Public Law 114-74 (Nov. 2, 2015), titled the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the ``2015 Amendments''), 28 U.S.C. 2461 note, substantially revised the prior provisions of the Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Public Law 101-410 (the ``Inflation Adjustment Act''), and substituted a different statutory formula for calculating inflation adjustments on an annual basis. In accordance with the provisions of the 2015 Amendments, on June 30, 2016 (81 FR 42491), the Department of Justice published an interim rule (``2016 interim rule'') to adjust for inflation the civil monetary penalties assessed by components of the Department after August 1, 2016, whose associated violations occurred after November 2, 2015 (the so-called ``catch-up'' adjustments). See 28 CFR 85.5. Readers may refer to the Supplementary Information (also known as the preamble) of the Department's 2016 interim rule for additional background information regarding the statutory authority for adjustments of civil monetary penalty amounts to take account of inflation and the Department's past implementation of inflation adjustments. After considering the public comments submitted in response to the 2016 interim rule, the Department will finalize the 2016 interim rule. II. Inflation Adjustments Made by This Rule The 2015 Amendments also provide for agencies to adjust for inflation their civil penalty amounts by January 15, [[Page 9132]] 2017, and not later than January 15 of each year thereafter. Accordingly, the Department is publishing this final rule to adjust the civil penalty amounts that were most recently adjusted as of August 1, 2016. This rule provides the current inflation adjustments being made in 2017. This rule adjusts the civil penalty amounts as established in the 2016 interim rule (which added 28 CFR 85.5), rounded to the nearest dollar. This means that the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty is increased by the cost-of-living adjustment, which is the ``percentage (if any) for each civil monetary penalty by which--(A) the Consumer Price Index for the month of October preceding the date of [this] adjustment, exceeds (B) the Consumer Price Index for the month of October 1 year before the month of October referred to in subparagraph (A).'' Inflation Adjustment Act, as amended, sec. 5(b)(1), 28 U.S.C. 2461 note. As provided in the 2015 Amendments, the adjustments made by this rule are based on the Bureau of Labor Statistics' Consumer Price Index for October 2016.\1\ The inflation factor used in calculating the adjustments was provided to all federal agencies in the OMB Memorandum for the Heads of Executive Departments and Agencies M-17-11 (December 16, 2016). https://www.whitehouse.gov/sites/default/files/omb/memoranda/2017/m-17-11_0.pdf (last visited December 22, 2016). The applicable inflation factor for this adjustment is 1.01636. --------------------------------------------------------------------------- \1\ For inflation adjustments other than the ``initial adjustment'' made in the 2016 rule, the adjustment will be determined by the difference in the Consumer Price Index between the October preceding the date of the new adjustment and the October the year before. See Public Law 114-74, sec. 701(b)(2)(B) (amending section 5(b) of the Inflation Adjustment Act). --------------------------------------------------------------------------- An example of how the adjustment is calculated using this inflation factor is set forth below. Example: The Program Fraud Civil Remedies Act penalty was increased to $10,781 in 2016, in accordance with the catch-up adjustment requirement of the 2015 Amendments. This amount is then multiplied by the inflation factor, as shown below: $10,781 x 1.01636 = $10,957.38 When rounded to the nearest dollar, the new penalty is $10,957. This rule adjusts for inflation the civil monetary penalties assessed by components of the Department of Justice for purposes of the Inflation Adjustment Act, as amended. Other agencies are responsible for the inflation adjustments of certain other civil monetary penalties that the Department's litigating components bring suit to collect. The reader should consult the regulations of those other agencies for inflation adjustments to those penalties. III. Effective Date of Adjusted Civil Penalty Amounts The adjusted civil penalty amounts added by this rule are applicable only to civil penalties assessed after February 3, 2017, whose associated violations occurred after November 2, 2015, the date of enactment of the 2015 Amendments. The penalty amounts set forth in 28 CFR 85.5, as added by the June 30, 2016, interim rule are applicable only to civil penalties assessed after August 1, 2016, and on or before February 3, 2017, whose associated violations occurred after November 2, 2015. For convenient reference, this rule amends the table in 28 CFR 85.5 to include both the adjusted penalty amounts as added by the 2016 interim rule as well as the new adjusted civil penalty amounts being adopted in this final rule. Violations occurring on or before November 2, 2015, and assessments made on or before August 1, 2016, whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts set forth in the Department's regulations 28 CFR parts 20, 22, 36, 68, 71, 76 and 85 as such regulations existed prior to August 1, 2016 (or as set forth by statute if the amount had not yet been adjusted by regulation prior to August 1, 2016). Statutory and Regulatory Analyses Administrative Procedure Act The Inflation Adjustment Act, as amended by the 2015 Amendments, provides that for the second adjustment made after the date of enactment of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, and each adjustment thereafter, the head of an agency shall adjust civil monetary penalties and shall make the adjustment notwithstanding 5 U.S.C. 553. See Public Law 114-74, sec. 701(b)(1)(D) (amending section 4(b)(2) of the Inflation Adjustment Act). Accordingly, this rule is being issued as a final rule without prior notice and public comment, and without a 30-day delayed effective date. Regulatory Flexibility Act Only those entities that are determined to have violated federal law and regulations would be affected by the increase in the civil penalty amounts made by this rule. A Regulatory Flexibility Act analysis is not required for this rule because publication of a notice of proposed rulemaking was not required. See 5 U.S.C. 603(a). Executive Orders 12866 and 13563--Regulatory Review This final rule has been drafted in accordance with Executive Order 12866, ``Regulatory Planning and Review,'' section 1(b), The Principles of Regulation, and in accordance with Executive Order 13563, ``Improving Regulation and Regulatory Review'' section 1, General Principles of Regulation. Executive Orders 12866 and 13563 direct agencies, in certain circumstances, to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Department of Justice has determined that this rule is not a ``significant regulatory action'' under Executive Order 12866, Regulatory Planning and Review, section 3(f), and, accordingly, this rule has not been reviewed by the Office of Management and Budget. This final rule implements the 2015 Amendments by making an across-the-board adjustment of the civil penalty amounts to account for inflation since the adoption of the 2016 interim rule. The 2016 interim rule itself was determined not to be a significant regulatory action under Executive Order 12866. Executive Order 13132--Federalism This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. Executive Order 12988--Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the [[Page 9133]] private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Congressional Review Act This rule is not a major rule as defined by the Congressional Review Act, 5 U.S.C. 804. It will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. List of Subjects in 28 CFR Part 85 Administrative practice and procedure, Penalties. Accordingly, for the reasons set forth in the preamble, chapter I of title 28 of the Code of Federal Regulations is amended as follows: PART 85--CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT 0 1. The authority citation for part 85 continues to read as follows: Authority: 5 U.S.C. 301, 28 U.S.C. 503; Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321; Pub. L. 114-74, section 701, 28 U.S.C. 2461 note. 0 2. Section 85.5 is revised to read as follows: Sec. 85.5 Adjustments to penalties for violations occurring after November 2, 2015. For civil penalties assessed after February 3, 2017, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the fifth column of the following table. For civil penalties assessed after August 1, 2016, and on or before February 3, 2017, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are those set forth in the fourth column of the following table. ---------------------------------------------------------------------------------------------------------------- DOJ penalty DOJ penalty U.S.C. citation Name/description CFR citation assessed after 8/ assessed after 2/ 1/2016 ($) \1\ 3/2017 ($) \2\ ---------------------------------------------------------------------------------------------------------------- ATF ---------------------------------------------------------------------------------------------------------------- 18 U.S.C. 922(t)(5)............ Brady Law--Nat'l ................. 8,162............ 8,296. Instant Criminal Check System; Transfer of firearm without checking NICS. 18 U.S.C. 924(p)............... Child Safety Lock Act; ................. 2,985............ 3,034. Secure gun storage or safety device, violation. ---------------------------------------------------------------------------------------------------------------- Civil Division ---------------------------------------------------------------------------------------------------------------- 12 U.S.C. 1833a(b)(1).......... Financial Institutions 28 CFR 85.3(a)(6) 1,893,610........ 1,924,589. Reform, Recovery, and Enforcement Act (FIRREA) Violation. 12 U.S.C. 1833a(b)(2).......... FIRREA Violation 28 CFR 85.3(a)(7) 1,893,610........ 1,924,589. (continuing) (per day). 12 U.S.C. 1833a(b)(2).......... FIRREA Violation 28 CFR 85.3(a)(7) 9,468,050........ 9,622,947. (continuing). 22 U.S.C. 2399b(a)(3)(A)....... Foreign Assistance 28 CFR 85.3(a)(8) 5,500............ 5,590. Act; Fraudulent Claim for Assistance (per act). 31 U.S.C. 3729(a).............. False Claims Act; \3\ 28 CFR 85.3(a)(9) Min. 10,781...... Min. 10,957. Violations. Max. 21,563...... Max. 21,916. 31 U.S.C. 3802(a)(1)........... Program Fraud Civil 28 CFR 71.3(a)... 10,781........... 10,957. Remedies Act; Violations Involving False Claim (per claim). 31 U.S.C. 3802(a)(2)........... Program Fraud Civil 28 CFR 71.3(f)... 10,781........... 10,957. Remedies Act; Violation Involving False Statement (per statement). 40 U.S.C. 123(a)(1)(A)......... Federal Property and 28 CFR 5,500............ 5,590. Administrative 85.3(a)(12). Services Act; Violation Involving Surplus Government Property (per act). 41 U.S.C. 8706(a)(1)(B)........ Anti-Kickback Act; 28 CFR 21,563........... 21,916. Violation Involving 85.3(a)(13). Kickbacks \4\ (per occurrence). 18 U.S.C. 2723(b).............. Driver's Privacy ................. 7,954............ 8,084. Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records--Substantial Non-compliance (per day). 18 U.S.C. 216(b)............... Ethics Reform Act of 28 CFR 85.3(c)... 94,681........... 96,230. 1989; Penalties for Conflict of Interest Crimes \5\ (per violation). 41 U.S.C. 2105(b)(1)........... Office of Federal ................. 98,935........... 100,554. Procurement Policy Act; \6\ Violation by an individual (per violation). 41 U.S.C. 2105(b)(2)........... Office of Federal ................. 989,345.......... 1,005,531. Procurement Policy Act; \6\ Violation by an organization (per violation). 42 U.S.C. 5157(d).............. Disaster Relief Act of ................. 12,500........... 12,705. 1974; \7\ Violation (per violation). ---------------------------------------------------------------------------------------------------------------- Civil Rights Division (excluding immigration-related penalties) ---------------------------------------------------------------------------------------------------------------- 18 U.S.C. 248(c)(2)(B)(i)...... Freedom of Access to 28 CFR 15,909........... 16,169. Clinic Entrances Act 85.3(b)(1)(i). of 1994 (``FACE Act''); Nonviolent physical obstruction, first violation. 18 U.S.C. 248(c)(2)(B)(ii)..... FACE Act; Nonviolent 28 CFR 23,863........... 24,253. physical obstruction, 85.3(b)(1)(ii). subsequent violation. [[Page 9134]] 18 U.S.C. 248(c)(2)(B)(i)...... FACE Act; Violation 28 CFR 23,863........... 24,253. other than a 85.3(b)(2)(i). nonviolent physical obstruction, first violation. 18 U.S.C. 248(c)(2)(B)(ii)..... FACE Act; Violation 28 CFR 39,772........... 40,423. other than a 85.3(b)(2)(ii). nonviolent physical obstruction, subsequent violation. 42 U.S.C. 3614(d)(1)(C)(i)..... Fair Housing Act of 28 CFR 98,935........... 100,554. 1968; first violation. 85.3(b)(3)(i). 42 U.S.C. 3614(d)(1)(C)(ii).... Fair Housing Act of 28 CFR 197,869.......... 201,106. 1968; subsequent 85.3(b)(3)(ii). violation. 42 U.S.C. 12188(b)(2)(C)(i).... Americans With 28 CFR 89,078........... 90,535. Disabilities Act; 36.504(a)(3)(i). Public accommodations for individuals with disabilities, first violation. 42 U.S.C. 12188(b)(2)(C)(ii)... Americans With 28 CFR 178,156.......... 181,071. Disabilities Act; 36.504(a)(3)(ii). Public accommodations for individuals with disabilities, subsequent violation. 50 U.S.C. App. 597(b)(3)....... Servicemembers Civil 28 CFR 59,810........... 60,788. Relief Act of 2003; 85.3(b)(4)(i). first violation. 50 U.S.C. App. 597(b)(3)....... Servicemembers Civil 28 CFR 119,620.......... 121,577. Relief Act of 2003; 85.3(b)(4)(ii). subsequent violation. ---------------------------------------------------------------------------------------------------------------- Criminal Division ---------------------------------------------------------------------------------------------------------------- 18 U.S.C. 983(h)(1)............ Civil Asset Forfeiture ................. Min. 342......... Min. 348. Reform Act of 2000; Max. 6,834....... Max. 6,946. Penalty for Frivolous Assertion of Claim. 18 U.S.C. 1956(b).............. Money Laundering ................. 21,563........... 21,916. Control Act of 1986; Violation \8\. ---------------------------------------------------------------------------------------------------------------- DEA ---------------------------------------------------------------------------------------------------------------- 21 U.S.C. 844a(a).............. Anti-Drug Abuse Act of 28 CFR 76.3(a)... 19,787........... 20,111. 1988; Possession of small amounts of controlled substances (per violation). 21 U.S.C. 961(1)............... Controlled Substance 28 CFR 85.3(d)... 68,750........... 69,875. Import Export Act; Drug abuse, import or export. 21 U.S.C. 842(c)(1)(A)......... Controlled Substances ................. 62,500........... 63,523. Act (``CSA''); Violations of 842(a)-- other than (5), (10) and (16)--Prohibited acts re: Controlled substances (per violation). 21 U.S.C. 842(c)(1)(B)......... CSA; Violations of ................. 14,502........... 14,739. 842(a)(5) and (10)-- Prohibited acts re: Controlled substances. 21 U.S.C. 842(c)(1)(C)......... CSA; Violation of ................. 500,855.......... 509,049. 825(e) by importer, exporter, manufacturer, or distributor--False labeling of anabolic steroids (per violation). 21 U.S.C. 842(c)(1)(D)......... CSA; Violation of ................. 1,002............ 1,018. 825(e) at the retail level--False labeling of anabolic steroids (per violation). 21 U.S.C. 842(c)(2)(C)......... CSA; Violation of ................. 375,613.......... 381,758. 842(a)(11) by a business--Distributio n of laboratory supply with reckless disregard \9\. 21 U.S.C. 856(d)............... Illicit Drug Anti- ................. 321,403.......... 326,661. Proliferation Act of 2003; Maintaining drug-involved premises \10\. ---------------------------------------------------------------------------------------------------------------- Immigration-Related Penalties ---------------------------------------------------------------------------------------------------------------- 8 U.S.C. 1324a(e)(4)(A)(i)..... Immigration Reform and 28 CFR Min. 539......... Min. 548. Control Act of 1986 68.52(c)(1)(i). Max. 4,313....... Max. 4,384. (``IRCA''); Unlawful employment of aliens, first order (per unauthorized alien). 8 U.S.C. 1324a(e)(4)(A)(ii).... IRCA; Unlawful 28 CFR Min. 4,313....... Min. 4,384. employment of aliens, 68.52(c)(1)(ii). Max. 10,781...... Max. 10,957. second order (per such alien). 8 U.S.C. 1324a(e)(4)(A)(iii)... IRCA; Unlawful 28 CFR Min. 6,469....... Min. 6,575. employment of aliens, 68.52(c)(1)(iii). Max. 21,563...... Max. 21,916. subsequent order (per such alien). 8 U.S.C. 1324a(e)(5)........... IRCA; Paperwork 28 CFR Min. 216......... Min. 220. violation (per 68.52(c)(5). Max. 2,156....... Max. 2,191. relevant individual). 8 U.S.C. 1324a (note).......... IRCA; Violation 28 CFR Min. 751......... Min. 763. relating to 68.52(c)(6). Max. 1,502....... Max. 1,527. participating employer's failure to notify of final nonconfirmation of employee's employment eligibility (per relevant individual). 8 U.S.C. 1324a(g)(2)........... IRCA; Violation/ 28 CFR 2,156............ 2,191. prohibition of 68.52(c)(7). indemnity bonds (per violation). 8 U.S.C. 1324b(g)(2)(B)(iv)(I). IRCA; Unfair 28 CFR Min. 445......... Min. 452. immigration-related 68.52(d)(1)(viii Max. 3,563....... Max. 3,621. employment practices, ). first order (per individual discriminated against). 8 U.S.C. 1324b(g)(2)(B)(iv)(II) IRCA; Unfair 28 CFR Min. 3,563....... Min. 3,621. immigration-related 68.52(d)(1)(ix). Max. 8,908....... Max. 9,054. employment practices, second order (per individual discriminated against). 8 U.S.C. IRCA; Unfair 28 CFR Min. 5,345....... Min. 5,432. 1324b(g)(2)(B)(iv)(III). immigration-related 68.52(d)(1)(x). Max. 17,816...... Max 18,107. employment practices, subsequent order (per individual discriminated against). [[Page 9135]] 8 U.S.C. 1324b(g)(2)(B)(iv)(IV) IRCA; Unfair 28 CFR Min. 178......... Min. 181. immigration-related 68.52(d)(1)(xii). Max. 1,782....... Max. 1,811. employment practices, document abuse (per individual discriminated against). 8 U.S.C. 1324c(d)(3)(A)........ IRCA; Document fraud, 28 CFR Min. 445......... Min. 452. first order--for 68.52(e)(1)(i). Max. 3,563....... Max. 3,621. violations described in U.S.C. 1324c(a)(1)- (4) (per document). 8 U.S.C. 1324c(d)(3)(B)........ IRCA; Document fraud, 28 CFR Min. 3,563....... Min. 3,621. subsequent order--for 68.52(e)(1)(iii). Max. 8,908....... Max. 9,054. violations described in U.S.C. 1324c(a)(1)- (4) (per document). 8 U.S.C. 1324c(d)(3)(A)........ IRCA; Document fraud, 28 CFR Min. 376......... Min. 382. first order--for 68.52(e)(1)(ii). Max. 3,005....... Max. 3,054. violations described in U.S.C. 1324c(a)(5)- (6) (per document). 8 U.S.C. 1324c(d)(3)(B)........ IRCA; Document fraud, 28 CFR Min. 3,005....... Min. 3,054. subsequent order--for 68.52(e)(1)(iv). Max. 7,512....... Max. 7,635. violations described in U.S.C. 1324c(a)(5)- (6) (per document). ---------------------------------------------------------------------------------------------------------------- FBI ---------------------------------------------------------------------------------------------------------------- 49 U.S.C. 30505(a)............. National Motor Vehicle ................. 1,591............ 1,617. Title Identification System; Violation (per violation). ---------------------------------------------------------------------------------------------------------------- Office of Justice Programs ---------------------------------------------------------------------------------------------------------------- 42 U.S.C. 3789g(d)............. Confidentiality of 28 CFR 20.25..... 27,500........... 27,950. information; State and Local Criminal History Record Information Systems-- Right to Privacy Violation. ---------------------------------------------------------------------------------------------------------------- \1\ The figures set forth in the fourth column represent the civil penalty amounts as last adjusted by the Department of Justice, effective August 1, 2016. \2\ All figures set forth in this table are maximum penalties, unless otherwise indicated. \3\ Section 3729(a)(1) of Title 31 provides that any person who violates this section is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person. 31 U.S.C. 3729(a)(1) (2015). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to not less than 2 times the amount of damages which the Government sustains because of the act of that person. Id. section 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1). \4\ Section 8706(a)(1) of Title 41 provides that the Federal Government in a civil action may recover from a person that knowingly engages in conduct prohibited by section 8702 of Title 44 a civil penalty equal to twice the amount of each kickback involved in the violation and not more than $10,000 for each occurrence of prohibited conduct. 41 U.S.C. 8706(a)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706. \5\ Section 216(b) of Title 18 provides that the civil penalty should be no more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. 18 U.S.C. 216(b) (2015). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under section 216(b). \6\ Section 2105(b) of Title 41 provides that the Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of Title 41. 41 U.S.C. 2105(b) (2015). Section 2105(b) further provides that on proof of that conduct by a preponderance of the evidence, an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct, and an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. Id. section 2105(b). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2). \7\ The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2015). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015). \8\ Section 1956(b)(1) of Title 18 provides that whoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of the value of the property, funds, or monetary instruments involved in the transaction; or $10,000. 18 U.S.C. 1956(b)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b). \9\ Section 842(c)(2)(C) of Title 21 provides that in addition to the penalties set forth elsewhere in the subchapter or subchapter II of the chapter, any business that violates paragraph (11) of subsection (a) of the section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under the section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater. 21 U.S.C. 842(c)(2)(C) (2015). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C). \10\ Section 856(d)(1) of Title 21 provides that any person who violates subsection (a) of the section shall be subject to a civil penalty of not more than the greater of $250,000; or 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person. 21 U.S.C. 856(d)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1). [[Page 9136]] Dated: January 13, 2017. Loretta E. Lynch, Attorney General. [FR Doc. 2017-01306 Filed 2-2-17; 8:45 am] BILLING CODE 4410-19-P
![Federal Register / Vol. 82, No. 22 / Friday, February 3, 2017 / Rules and Regulations 9131
records fall within a request and written notification to the requestor accordance with the provisions of the
collecting them requires the time of providing the reasons for the extension. Bipartisan Budget Act of 2015, for
professional or managerial personnel, If the extension goes beyond 10 working penalties assessed after February 3,
and where the time required is days, USADF will notify the requestor 2017, whose associated violations
substantial, for each one quarter hour of services provided by the FOIA Public occurred after November 2, 2015.
spent in excess of the first quarter hour, Liaison and the Office of Government DATES: Effective date: This rule is
$10.00. No charge shall be made for the Information Services. effective February 3, 2017.
time spent in resolving legal or policy (d) Expedited processing. USADF Applicability date: The adjusted civil
issues affecting access to records of shall process requests and appeals on an penalty amounts are applicable only to
known contents. expedited basis where the requestor civil penalties assessed after February 3,
(4) Other charges. When a response to demonstrates a compelling need for the 2017, whose associated violations
a request requires services or materials records, as defined in 5 U.S.C. occurred after November 2, 2015.
other than those described in 552(a)(6)(E)(v). USADF shall make a FOR FURTHER INFORMATION CONTACT:
paragraphs (c)(1) through (3) of this determination of whether to provide Robert Hinchman, Senior Counsel,
section, the direct cost of such services expedited processing, and shall notify Office of Legal Policy, U.S. Department
to the Foundation may be charged, the requestor of the determination, of Justice, Room 4252 RFK Building,
providing the requestor has been given within 10 calendar days after the receipt 950 Pennsylvania Avenue NW.,
an estimate of such cost before it is of the request. USADF shall provide Washington, DC 20530, telephone (202)
incurred. expeditious consideration of 514–8059 (not a toll-free number).
administrative appeals of
§ 1502.8 Exemptions. SUPPLEMENTARY INFORMATION:
determinations of whether to provide
The categories of records maintained expedited processing. I. Statutory Process for Implementing
by the Foundation which may be (e) Confidential commercial Annual Inflation Adjustments
exempted from disclosure are described information. Whenever records
in 5 U.S.C. 552(b). Section 701 of the Bipartisan Budget
containing confidential commercial
Act of 2015, Public Law 114–74 (Nov.
§ 1502.9 Processing of requests.
information are requested under the
2, 2015), titled the Federal Civil
FOIA and USADF determines that it
(a) Processing. A person who has Penalties Inflation Adjustment Act
may be required to disclose the records,
made a written request for records Improvements Act of 2015 (the ‘‘2015
USADF shall promptly provide written
which meets the requirements of Amendments’’), 28 U.S.C. 2461 note,
notice to the submitter of the
§ 1502.4 shall be informed by the Chief substantially revised the prior
confidential commercial information, in
FOIA Officer within 20 working days provisions of the Federal Civil Monetary
conformity with the procedures set forth
after receipt of the request of the Penalties Inflation Adjustment Act of
in Executive Order 12600, Predisclosure
Foundation’s decision whether to deny 1990, Public Law 101–410 (the
Notification Procedures for Confidential
or grant access to the records and the ‘‘Inflation Adjustment Act’’), and
Commercial Information, 3 CFR, 1987
right of the requestor to seek assistance substituted a different statutory formula
Comp., p. 235.
from the Foundation’s Chief Public for calculating inflation adjustments on
Liaison. § 1502.10 Judicial review. an annual basis.
(b) Denials. If the Chief FOIA Officer, On complaint, the district court of the In accordance with the provisions of
with the concurrence of the General United States in the district in which the 2015 Amendments, on June 30, 2016
Counsel, denies a request for records, the complainant resides, or has his/her (81 FR 42491), the Department of Justice
the requestor will be informed of the principal place of business, or in which published an interim rule (‘‘2016
name and title of the official responsible the agency records are situated, or in the interim rule’’) to adjust for inflation the
for the denial, the reasons for it, and the District of Columbia, has jurisdiction to civil monetary penalties assessed by
right to appeal the decision to the enjoin the Foundation from withholding components of the Department after
President of the Foundation within 90 Foundation records, and to order the August 1, 2016, whose associated
calendar days of receipt of the denial. production of any agency records violations occurred after November 2,
The President shall determine any improperly withheld from the 2015 (the so-called ‘‘catch-up’’
appeal within 20 days of receipt and complainant (5 U.S.C. 552(a)(4)(B)). adjustments). See 28 CFR 85.5. Readers
notify the requestor within the time may refer to the Supplementary
[FR Doc. 2017–02239 Filed 2–2–17; 8:45 am]
period of the decision. If the decision is Information (also known as the
BILLING CODE 6117–01–P
to uphold the denial, the requestor will preamble) of the Department’s 2016
be informed of the reasons for the interim rule for additional background
decision, of the right to a judicial review information regarding the statutory
of the decision in the federal courts, and DEPARTMENT OF JUSTICE authority for adjustments of civil
of the dispute resolution services monetary penalty amounts to take
28 CFR Part 85
offered by the FOIA Public Liaison of account of inflation and the
the Foundation or the Office of [Docket No. OAG 156; AG Order No. 3823– Department’s past implementation of
Government Information Services of the 2017] inflation adjustments. After considering
National Archives and Records the public comments submitted in
Administration as a non-exclusive Civil Monetary Penalties Inflation response to the 2016 interim rule, the
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alternative to litigation. Adjustment for 2017 Department will finalize the 2016
(c) Extension of time. In unusual AGENCY: Department of Justice. interim rule.
circumstances, as defined by the FOIA, ACTION: Final rule.
to the extent reasonably necessary to the II. Inflation Adjustments Made by This
proper processing of requests, the time SUMMARY: The Department of Justice is Rule
required to respond to a FOIA request adjusting for inflation the civil monetary The 2015 Amendments also provide
or an appeal may be extended for an penalties assessed or enforced by for agencies to adjust for inflation their
additional 10 working days upon components of the Department, in civil penalty amounts by January 15,
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![9132 Federal Register / Vol. 82, No. 22 / Friday, February 3, 2017 / Rules and Regulations
2017, and not later than January 15 of Act, as amended. Other agencies are increase in the civil penalty amounts
each year thereafter. Accordingly, the responsible for the inflation adjustments made by this rule. A Regulatory
Department is publishing this final rule of certain other civil monetary penalties Flexibility Act analysis is not required
to adjust the civil penalty amounts that that the Department’s litigating for this rule because publication of a
were most recently adjusted as of components bring suit to collect. The notice of proposed rulemaking was not
August 1, 2016. reader should consult the regulations of required. See 5 U.S.C. 603(a).
This rule provides the current those other agencies for inflation
adjustments to those penalties. Executive Orders 12866 and 13563—
inflation adjustments being made in
Regulatory Review
2017. This rule adjusts the civil penalty
III. Effective Date of Adjusted Civil This final rule has been drafted in
amounts as established in the 2016 Penalty Amounts
interim rule (which added 28 CFR 85.5), accordance with Executive Order 12866,
rounded to the nearest dollar. This The adjusted civil penalty amounts ‘‘Regulatory Planning and Review,’’
means that the maximum civil monetary added by this rule are applicable only section 1(b), The Principles of
penalty or the range of minimum and to civil penalties assessed after February Regulation, and in accordance with
maximum civil monetary penalties, as 3, 2017, whose associated violations Executive Order 13563, ‘‘Improving
applicable, for each civil monetary occurred after November 2, 2015, the Regulation and Regulatory Review’’
penalty is increased by the cost-of-living date of enactment of the 2015 section 1, General Principles of
adjustment, which is the ‘‘percentage (if Amendments. Regulation. Executive Orders 12866 and
any) for each civil monetary penalty by The penalty amounts set forth in 28 13563 direct agencies, in certain
which—(A) the Consumer Price Index CFR 85.5, as added by the June 30, 2016, circumstances, to assess all costs and
for the month of October preceding the interim rule are applicable only to civil benefits of available regulatory
date of [this] adjustment, exceeds (B) the penalties assessed after August 1, 2016, alternatives and, if regulation is
Consumer Price Index for the month of and on or before February 3, 2017, necessary, to select regulatory
October 1 year before the month of whose associated violations occurred approaches that maximize net benefits
October referred to in subparagraph after November 2, 2015. For convenient (including potential economic,
(A).’’ Inflation Adjustment Act, as reference, this rule amends the table in environmental, public health and safety
amended, sec. 5(b)(1), 28 U.S.C. 2461 28 CFR 85.5 to include both the effects, distributive impacts, and
adjusted penalty amounts as added by equity).
note.
As provided in the 2015 the 2016 interim rule as well as the new The Department of Justice has
Amendments, the adjustments made by adjusted civil penalty amounts being determined that this rule is not a
this rule are based on the Bureau of adopted in this final rule. ‘‘significant regulatory action’’ under
Violations occurring on or before Executive Order 12866, Regulatory
Labor Statistics’ Consumer Price Index
November 2, 2015, and assessments Planning and Review, section 3(f), and,
for October 2016.1 The inflation factor
made on or before August 1, 2016, accordingly, this rule has not been
used in calculating the adjustments was whose associated violations occurred
provided to all federal agencies in the reviewed by the Office of Management
after November 2, 2015, will continue to and Budget. This final rule implements
OMB Memorandum for the Heads of be subject to the civil monetary penalty
Executive Departments and Agencies the 2015 Amendments by making an
amounts set forth in the Department’s across-the-board adjustment of the civil
M–17–11 (December 16, 2016). https:// regulations 28 CFR parts 20, 22, 36, 68,
www.whitehouse.gov/sites/default/files/ penalty amounts to account for inflation
71, 76 and 85 as such regulations since the adoption of the 2016 interim
omb/memoranda/2017/m-17-11_0.pdf existed prior to August 1, 2016 (or as set
(last visited December 22, 2016). The rule. The 2016 interim rule itself was
forth by statute if the amount had not
applicable inflation factor for this determined not to be a significant
yet been adjusted by regulation prior to
adjustment is 1.01636. regulatory action under Executive Order
August 1, 2016).
An example of how the adjustment is 12866.
calculated using this inflation factor is Statutory and Regulatory Analyses
Executive Order 13132—Federalism
set forth below. Administrative Procedure Act
Example: This rule will not have substantial
The Program Fraud Civil Remedies The Inflation Adjustment Act, as direct effects on the States, on the
Act penalty was increased to $10,781 in amended by the 2015 Amendments, relationship between the national
2016, in accordance with the catch-up provides that for the second adjustment government and the States, or on the
adjustment requirement of the 2015 made after the date of enactment of the distribution of power and
Amendments. This amount is then Federal Civil Penalties Inflation responsibilities among the various
multiplied by the inflation factor, as Adjustment Act Improvements Act of levels of government. Therefore, in
shown below: 2015, and each adjustment thereafter, accordance with Executive Order 13132,
$10,781 × 1.01636 = $10,957.38 the head of an agency shall adjust civil it is determined that this rule does not
When rounded to the nearest dollar, monetary penalties and shall make the have sufficient federalism implications
the new penalty is $10,957. adjustment notwithstanding 5 U.S.C. to warrant the preparation of a
This rule adjusts for inflation the civil 553. See Public Law 114–74, sec. Federalism Assessment.
monetary penalties assessed by 701(b)(1)(D) (amending section 4(b)(2) of
the Inflation Adjustment Act). Executive Order 12988—Civil Justice
components of the Department of Justice Reform
for purposes of the Inflation Adjustment Accordingly, this rule is being issued as
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a final rule without prior notice and This regulation meets the applicable
1 For inflation adjustments other than the ‘‘initial public comment, and without a 30-day standards set forth in sections 3(a) and
adjustment’’ made in the 2016 rule, the adjustment delayed effective date. 3(b)(2) of Executive Order 12988.
will be determined by the difference in the
Consumer Price Index between the October Regulatory Flexibility Act Unfunded Mandates Reform Act of 1995
preceding the date of the new adjustment and the
October the year before. See Public Law 114–74,
Only those entities that are This rule will not result in the
sec. 701(b)(2)(B) (amending section 5(b) of the determined to have violated federal law expenditure by State, local, and tribal
Inflation Adjustment Act). and regulations would be affected by the governments, in the aggregate, or by the
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![9136 Federal Register / Vol. 82, No. 22 / Friday, February 3, 2017 / Rules and Regulations
Dated: January 13, 2017. adjust the OCSLA maximum civil be published as a final rule. This
Loretta E. Lynch, penalty amount at least once every three interpretation of the statute is confirmed
Attorney General. years to reflect any increase in the by OMB Memorandum M–17–11. (OMB
[FR Doc. 2017–01306 Filed 2–2–17; 8:45 am] Consumer Price Index to account for Memorandum M–17–11 at 3 (‘‘This
BILLING CODE 4410–19–P inflation. On November 2, 2015, the means that the public procedure the
President signed into law the Federal APA generally requires—notice, an
Civil Penalties Inflation Adjustment Act opportunity for comment, and a delay in
DEPARTMENT OF THE INTERIOR Improvements Act of 2015 (Sec. 701 of effective date—is not required for
Pub. L. 114–74) (FCPIA of 2015). The agencies to issue regulations
Bureau of Safety and Environmental FCPIA of 2015 requires Federal agencies implementing the annual
Enforcement to adjust the level of civil monetary adjustment.’’)).
penalties with an initial ‘‘catch-up’’
30 CFR Part 250 adjustment through rulemaking, if II. Calculation of Adjustments
warranted, and then to make subsequent
[Docket ID: BSEE–2017–0001; 17XE1700DX Under the FCPIA of 2015 and the
EX1SF0000.DAQ000 EEEE50000] annual adjustments for inflation.
guidance provided in OMB
Agencies are required to publish the
RIN 1014–AA34 Memorandum M–17–11, BSEE has
annual inflation adjustments in the
Federal Register by no later than identified the applicable civil monetary
Civil Penalty Inflation Adjustment January 15, 2017, and by no later than penalty and calculated the necessary
January 15 each subsequent year. The inflation adjustment. The previous
AGENCY: Bureau of Safety and
purpose of these adjustments is to OCSLA civil penalty inflation
Environmental Enforcement, Interior.
maintain the deterrent effect of civil adjustment accounted for inflation
ACTION: Final rule.
penalties and to further the policy goals through October 2015. The required
SUMMARY: This final rule adjusts the of the underlying statutes. annual civil penalty inflation
level of the maximum civil monetary BSEE last updated civil penalty adjustment promulgated through this
penalty contained in the Bureau of amounts in BSEE regulations through rule accounts for inflation through
Safety and Environmental Enforcement RIN 1014–AA30 [81 FR 41801] effective October 2016.
(BSEE) regulations pursuant to the July 28, 2016. Consistent with OMB Annual inflation adjustments are
Outer Continental Shelf Lands Act guidance, BSEE’s interim final rule (IFR) based on the percent change between
(OCSLA), the Federal Civil Penalties implemented the catch-up adjustments the Consumer Price Index for all Urban
Inflation Adjustment Act Improvements required by the FCPIA of 2015, through Consumers (CPI–U) for the October
Act of 2015, and Office of Management October 2015. No public comments preceding the date of the adjustment,
and Budget (OMB) guidance. The civil were received on the IFR, and BSEE and the prior year’s October CPI–U.
penalty inflation adjustment using a published the final rule on November Consistent with the guidance in OMB
1.01636 multiplier accounts for one year 17, 2016 [81 FR 80994]. Memorandum M–17–11, BSEE divided
of inflation spanning from October 2015 The OMB Memorandum M–17–11 the October 2016 CPI–U by the October
to October 2016. (Implementation of the 2017 annual 2015 CPI–U to calculate the multiplying
DATES: This rule is effective on February adjustment pursuant to the FCPIA of factor. In this case, October 2016 CPI–
3, 2017. 2015; https://www.whitehouse.gov/sites/ U (241.729)/October 2015 CPI–U
FOR FURTHER INFORMATION CONTACT: default/files/omb/memoranda/2017/m- (237.838) = 1.01636.
Robert Fisher, Acting Chief Safety and 17-11_0.pdf) explains agency
Enforcement Division, Bureau of Safety For 2017, OCSLA and the FCPIA of
responsibilities for: Identifying
and Environmental Enforcement, (202) 2015 require that BSEE adjust the
applicable penalties and performing the
208–3955 or by email: regs@bsee.gov. OCSLA maximum civil penalty amount.
annual adjustment; publishing in the
To accomplish this, BSEE multiplied
SUPPLEMENTARY INFORMATION: Federal Register; finalizing 2016
the existing OCSLA maximum civil
I. Background and Legal Authority interim final rules; applying adjusted
penalty amount ($42,017) by the
II. Calculation of Adjustments penalty levels; and performing agency
multiplying factor ($42,017 × 1.01636 =
III. Procedural Requirements oversight of inflation adjustments.
A. Regulatory Planning and Review (E.O. $42,704.40). The FCPIA of 2015 requires
BSEE is promulgating this 2017
12866 and 13563) that the OCSLA maximum civil penalty
inflation adjustment for civil penalties
B. Regulatory Flexibility Act amount be rounded to the nearest $1.00
as a final rule pursuant to the provisions
C. Small Business Regulatory Enforcement at the end of the calculation process.
Fairness Act
of the FCPIA of 2015 and OMB
guidance. A proposed rule is not Accordingly, the adjusted OCSLA
D. Unfunded Mandates Reform Act maximum civil penalty is $42,704.
E. Takings (E.O. 12630) required because the FCPIA of 2015
F. Federalism (E.O. 13132) states that agencies shall adjust civil Pursuant to the FCPIA of 2015, the
G. Civil Justice Reform (E.O. 12988) monetary penalties ‘‘notwithstanding increase in the OCSLA maximum civil
H. Consultation with Indian Tribes (E.O. Section 553 of the Administrative penalty amount applies to civil
13175 and Departmental Policy) Procedure Act.’’ (FCPIA of 2015 at penalties assessed after the date the
I. Paperwork Reduction Act increase takes effect, even when the
J. National Environmental Policy Act
§ 4(b)(2)). Accordingly, Congress
K. Effects on the Energy Supply (E.O. expressly exempted the annual inflation associated violation(s) predates such
asabaliauskas on DSK3SPTVN1PROD with RULES
13211) adjustments implemented pursuant to increase. Consistent with the provisions
the FCPIA of 2015 from the pre- of OCSLA and the FCPIA of 2015, this
I. Background and Legal Authority promulgation notice and comment rule adjusts the following maximum
The OCSLA, at 43 U.S.C. 1350(b)(1), requirements of the Administrative civil monetary penalty per day per
directs the Secretary of the Interior to Procedure Act (APA), allowing them to violation:
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Document Created: 2018-02-01 14:34:35
Document Modified: 2018-02-01 14:34:35
| 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 | Effective date: This rule is effective February 3, 2017. | |
| Contact | Robert Hinchman, Senior Counsel, Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK Building, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone (202) 514-8059 (not a toll-free number). | |
| FR Citation | 82 FR 9131 | |
| CFR Associated | Administrative Practice and Procedure and Penalties |
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