82_FR_9993 82 FR 9967 - Civil Monetary Penalties Inflation Adjustments

82 FR 9967 - Civil Monetary Penalties Inflation Adjustments

SMALL BUSINESS ADMINISTRATION

Federal Register Volume 82, Issue 26 (February 9, 2017)

Page Range9967-9969
FR Document2017-02657

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

Federal Register, Volume 82 Issue 26 (Thursday, February 9, 2017)
[Federal Register Volume 82, Number 26 (Thursday, February 9, 2017)]
[Rules and Regulations]
[Pages 9967-9969]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02657]


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SMALL BUSINESS ADMINISTRATION

13 CFR Parts 107, 120, 142, and 146

RIN 3245-AG83


Civil Monetary Penalties Inflation Adjustments

AGENCY: Small Business Administration.

ACTION: Interim final rule.

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

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

DATES: Effective Date: This rule is effective February 9, 2017.
    Comment Date: Comments must be received on or before April 10, 
2017.

ADDRESSES: You may submit comments, identified by RIN 3245-AG83 by any 
of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail or Hand Delivery/Courier: Arlene Embrey, 409 Third 
Street SW., Washington, DC 20416.
    SBA will post all comments on http://www.regulations.gov. If you 
wish to submit confidential business information (CBI) as defined in 
the User Notice at http://www.regulations.gov, please submit the 
information to Arlene Embrey, Trial Attorney, 409 Third Street SW., 
Washington, DC 20416, and highlight the information that you consider 
to be CBI and explain why you believe this information should be held 
confidential. SBA will review the information and make a final 
determination as to whether or not the information will be published.

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

SUPPLEMENTARY INFORMATION:

I. Background

    On November 2, 2015, the President signed into law the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 
2015 Inflation Adjustment Improvements Act), Public Law 114-74, 129 
Stat. 584. This act amended the Federal Civil Penalties Inflation 
Adjustment Act of 1990, Public Law 101-410, 104 Stat 890 (the 1990 
Inflation Adjustment Act), to improve the effectiveness of civil 
monetary penalties and to maintain their deterrent effect. The 2015 
Inflation Adjustment Improvements Act requires agencies to issue an 
interim final rule (IFR) to: (1) Adjust the level of civil monetary 
penalties with an initial ``catch-up'' adjustment; and (2) make 
subsequent annual adjustments for inflation no later than January 15 of 
each subsequent year. The 2015 Inflation Adjustment Improvements Act 
also authorizes agencies to implement the annual adjustments without 
regard to the requirements for public notice and comment or delayed 
effective date under the Administrative Procedures Act, 5 U.S.C. 
553(b)(B) and (d)(3), respectively.
    In addition, based on the definition of a ``civil monetary 
penalty'' in the 1990 Inflation Adjustment Act, agencies are to make 
adjustments only to the civil penalties that (i) are for a specific 
monetary amount as provided by federal

[[Page 9968]]

law or have a maximum amount provided for by federal law; (ii) are 
assessed or enforced by an agency; and (iii) are enforced or assessed 
in an administrative proceeding or a civil action in the Federal 
courts. Therefore, penalties that are stated as a percentage of an 
indeterminate amount or as a function of a violation (penalties that 
encompass actual damages incurred) are not to be adjusted.
    On May 19, 2016, SBA complied with the first requirement by 
publishing an IFR with the initial adjustments to the civil penalties 
SBA is responsible for assessing or enforcing. 81 FR 31489. These 
initial adjustments to the penalties became effective on August 1, 
2016. In this rule SBA complies with the second requirement by making 
the first annual inflation adjustment to these penalties.
    Consistent with the 2015 Inflation Adjustment Improvements Act, as 
well as the guidance issued by the Office of Management and Budget in 
M-17-11, Implementation of the 2017 annual adjustment pursuant to the 
Federal Civil Penalties Inflation Act Improvements Act, (December 16, 
2016), the formula for calculating the annual adjustments is based on 
the Consumer Price Index for all Urban Consumers (CPI-U) for the month 
of October preceding the adjustment. Specifically, the change between 
the October CPI-U preceding the date of adjustment and the prior year's 
CPI-U, which for the adjustments in this rule is the percentage change 
between October 2016 CPI-U (241.729) and October 2015 CPI-U (237.838) 
or 1.01636. Therefore, the annual adjustments identified in this rule 
were obtained by applying this multiplier to the most recent penalty 
amounts established in the IFR published in May 2016.

II. Civil Money Penalties Adjusted by This Rule

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

1. 13 CFR 107.665--Civil Penalties

    SBA licenses, regulates and provides financial assistance to 
financial entities called small business investment companies (SBICs). 
Pursuant to section 315 of the SBIAct, 15 U.S.C. 687g, SBA may impose a 
penalty on any SBIC that fails to comply with SBA's regulations or 
directives governing the filing of regular or special reports. The 
penalty for non-compliance is incorporated in Sec.  107.665 of the SBIC 
program regulations.
    The current civil penalty amount for violation of this requirement, 
as adjusted in May 2016, is $250. This amount was multiplied by the 
multiplier of 1.01636 to reach a product of $254, rounded to the 
nearest dollar. Thus, the new civil penalty amount is $254 for each and 
every day an SBIC fails to file a required report.

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

    According to the regulations at Sec.  120.465, any small business 
lending company (SBLC) that violates a regulation or written directive 
issued by the SBA Administrator regarding the filing of any regular or 
special report is subject to the civil penalty amount stated in Sec.  
120.465(b) for each day the company fails to file the report, unless 
the small business lending company can show that there is reasonable 
cause for its failure to file. This penalty, which is authorized by 
section 23(j)(1) of the Small Business Act, 15 U.S.C. 650(j)(1), was 
adjusted in the May 2016 IFR from $5,000 to $6,229. However, due to a 
typographical error, the amount was published incorrectly in the May 
2016 IFR as $6,299. The amount should have been stated as $6,229, the 
product of the then $5,000 penalty multiplied by 1.24588, the 
multiplier established under the 2015 Inflation Adjustment Improvements 
Act.
    In light of this correction, this rule amends Sec.  120.465(b) to 
adjust this civil penalty by multiplying $6,229, the correct product 
under the guidelines for the May 2016 IFR, by the multiplier of 1.01636 
to reach a product of $6,331, rounded to the nearest dollar. Thus, the 
new civil penalty amount is not more than $6,331 for each and every day 
an SBLC fails to file the respective report.

3. 13 CFR 142.1--Overview of Regulations

    SBA has promulgated regulations at 13 CFR part 142 to implement the 
civil penalties authorized by the Program Fraud Civil Remedies Act of 
1986 (PFCRA), 31 U.S.C. 3801-3812. Under the current regulation at 
Sec.  142.1(b), a person who submits, or causes to be submitted, a 
false claim or a false statement to SBA is subject to a civil penalty 
of not more than $10,781, for each statement or claim.
    This rule amends Sec.  142.1(b) to adjust the current civil penalty 
to $10,957 per statement or claim. The adjusted civil penalty amount 
was calculated by multiplying the current civil penalty of $10,781 by 
the multiplier of 1.01636 to reach a product of $10,957, rounded to the 
nearest dollar.

4. 13 CFR 146.400--Penalties

    SBA's regulations at 13 CFR part 146 govern lobbying activities by 
recipients of federal financial assistance. These regulations implement 
the authority in 31 U.S.C. 1352, which was established in 1989 and 
impose penalties on any recipient that fails to comply with certain 
requirements in the part. Specifically, under Sec.  146.400(a) and (b), 
penalties may be imposed on those who make prohibited expenditures or 
fail to file the required disclosure forms or to amend such forms, if 
necessary. The regulations at Sec.  146.400(a) and (b) were amended by 
the May 2016 IFR to adjust the penalty amounts of ``not less than 
$10,000 and no more than $100,000'' to ``not less $18,936 and no more 
than $189,361'' for each prohibited expenditure or failure to file or 
amend the disclosure forms. The May 2016 IFR also amended Sec.  
146.400(e) to (1) adjust the civil penalty that may be imposed for a 
first time violation of Sec.  146.400(a) and (b), to a maximum of 
$18,936, absent aggravating circumstances, and (2) adjust the civil 
penalty that may be imposed for second and subsequent offenses to not 
less $18,936 and no more than $189,361.
    This rule amends Sec.  146.400(a) and (b), to adjust the current 
civil penalty amounts to ``not less than $19,246 and not more than 
$192,459.'' The current civil penalty amounts of $18,936 and $189,361 
were multiplied by the multiplier of 1.01636 to reach a product of 
$19,246 and $192,459, respectively, rounded to the nearest dollar.
    This rule also amends Sec.  146.400(e) to adjust the civil penalty 
that may be imposed for a first time violation of Sec.  146.400(a) and 
(b) to a maximum of $19,246 and to adjust the civil penalty that may be 
imposed for second and subsequent offenses to not less than $19,246 and 
not more than $192,459. The current civil penalty amounts of $18,936 
and $189,361 were multiplied by the multiplier of 1.01636 to reach a 
product of $19,246 and $192,459, respectively, rounded to the nearest 
dollar.

III. Justification for Interim Final Rule

    The 2015 Inflation Adjustment Improvements Act specifically 
authorizes agencies to promulgate rulemaking for the annual adjustment 
to their civil monetary penalties, ``notwithstanding section 553 of 
title 5, United States Code,'' which generally requires agencies to 
provide the public with an opportunity to comment on the

[[Page 9969]]

rule making before the rule can be effective. 5 U.S.C. 553(b)

IV. Justification for Immediate Effective Date

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

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

Executive Order 12866
    The Office of Management and Budget has determined that this 
interim final rule is not a significant regulatory action under 
Executive Order 12866. This is also not a major rule under the 
Congressional Review Act, 5 U.S.C. 800.
Executive Order 12988
    This action meets applicable standards set forth in Sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. The action does not 
have retroactive or preemptive effect.
Executive Order 13132
    For the purpose of Executive Order 13132, SBA has determined that 
the rule will not have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Therefore, this interim final rule has no federalism 
implications warranting preparation of a federalism assessment.
Paperwork Reduction Act
    SBA has determined that this rule does not impose additional 
reporting or recordkeeping requirements.
Regulatory Flexibility Act (RFA)
    The RFA requires agencies to consider the effect of their 
regulatory actions on small entities, including small non-profit 
businesses, and small local governments. Pursuant to the RFA, when an 
agency issues a rule the agency must prepare an analysis that describes 
whether the impact of the rule will have a significant economic impact 
on a substantial number of such small entities. However, the RFA 
requires such analysis only where notice and comment rulemaking is 
required. As stated above, SBA has express statutory authority to issue 
this rule without regard to the notice and comment. Since notice and 
comment is not required before this rule is issued, SBA is not required 
to prepare a regulatory analysis.

List of Subjects

13 CFR Part 107

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

13 CFR Part 120

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

13 CFR Part 142

    Administrative practice and procedure, Claims, Fraud, Penalties.

13 CFR Part 146

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

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

PART 107--SMALL BUSINESS INVESTMENT COMPANIES

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

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


Sec.  107.665  [Amended]

0
2. In Sec.  107.665, remove ``$250'' and add in its place ``$254''.

PART 120--BUSINESS LOANS

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

    Authority: 15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 
636(a), (h) and (m), 650, 687(f), 696(3), and 697(a) and (e); Public 
Law 111-5, 123 Stat. 115, Public Law 111-240, 124 Stat. 2504; Public 
Law 114-113, 129 Stat. 2242.


Sec.  120.465  [Amended]

0
4. Paragraph (b) of Sec.  120.465 is amended by removing ``$6,299'' and 
adding in its place ``$6,331''.

PART 142--PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS

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

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


Sec.  142.1  [Amended]

0
6. Paragraph (b) of Sec.  142.1 is amended by removing ``$10,781'' and 
adding in its place ``$10,957''.

PART 146--NEW RESTRICTIONS ON LOBBYING

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

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


Sec.  146.400  [Amended]

0
8. Paragraphs (a), (b), and (e) of Sec.  146.400 are amended by 
removing ``$18,936'' wherever it appears and adding in its place 
``$19,246'' and by removing ``$189,361'' and adding in its place 
``$192,459''.

    Dated: February 3, 2017.
Joseph P. Loddo,
Acting Administrator.
[FR Doc. 2017-02657 Filed 2-8-17; 8:45 am]
 BILLING CODE 8025-01-P



                                                                                                                                                                                                9967

                                              Rules and Regulations                                                                                         Federal Register
                                                                                                                                                            Vol. 82, No. 26

                                                                                                                                                            Thursday, February 9, 2017



                                              This section of the FEDERAL REGISTER                    Pending Review.’’ This memorandum                       • Federal Rulemaking Portal: http://
                                              contains regulatory documents having general            directs agencies to extend the effective              www.regulations.gov. Follow the
                                              applicability and legal effect, most of which           dates of regulations which have been                  instructions for submitting comments.
                                              are keyed to and codified in the Code of                published in the Federal Register, but                  • Mail or Hand Delivery/Courier:
                                              Federal Regulations, which is published under           have not taken effect. This action delays             Arlene Embrey, 409 Third Street SW.,
                                              50 titles pursuant to 44 U.S.C. 1510.
                                                                                                      the effective date of the final rule,                 Washington, DC 20416.
                                              The Code of Federal Regulations is sold by              Organic Livestock and Poultry Practices,                SBA will post all comments on http://
                                              the Superintendent of Documents. Prices of              82 FR 7042 (January 19, 2017), by 60                  www.regulations.gov. If you wish to
                                              new books are listed in the first FEDERAL               days.                                                 submit confidential business
                                              REGISTER issue of each week.                               To the extent that 5 U.S.C. 553(b)(A)              information (CBI) as defined in the User
                                                                                                      applies to this action, it is exempt from             Notice at http://www.regulations.gov,
                                                                                                      notice and comment for good cause and                 please submit the information to Arlene
                                              DEPARTMENT OF AGRICULTURE                               the reasons cited above. AMS finds that               Embrey, Trial Attorney, 409 Third Street
                                                                                                      notice and solicitation of comment                    SW., Washington, DC 20416, and
                                              Agricultural Marketing Service                          regarding the brief extension of the                  highlight the information that you
                                                                                                      effective date for the final regulation are           consider to be CBI and explain why you
                                              7 CFR Part 205                                          impracticable, unnecessary, or contrary               believe this information should be held
                                              [Doc. No. AMS–NOP–15–0012; NOP–15–06]                   to the public interest pursuant to 5                  confidential. SBA will review the
                                                                                                      U.S.C. 553(b)(B). AMS also believes that              information and make a final
                                              RIN 0581–AD44
                                                                                                      affected entities need to be informed as              determination as to whether or not the
                                              National Organic Program (NOP);                         soon as possible of the extension and its             information will be published.
                                              Organic Livestock and Poultry                           length in order to plan and adjust their              FOR FURTHER INFORMATION CONTACT:
                                              Practices                                               implementation process accordingly.                   Arlene Embrey, 202–205–6976, or at
                                                                                                        Dated: February 3, 2017.                            arlene.embrey@sba.gov.
                                              AGENCY:    Agricultural Marketing Service,                                                                    SUPPLEMENTARY INFORMATION:
                                                                                                      Bruce Summers,
                                              USDA.
                                                                                                      Acting Administrator, Agricultural Marketing          I. Background
                                              ACTION:   Final rule; delay of effective                Service.
                                              date.                                                   [FR Doc. 2017–02608 Filed 2–8–17; 8:45 am]               On November 2, 2015, the President
                                                                                                                                                            signed into law the Federal Civil
                                              SUMMARY:    Consistent with the                         BILLING CODE 3410–02–P
                                                                                                                                                            Penalties Inflation Adjustment Act
                                              Memorandum of January 20, 2017, from
                                                                                                                                                            Improvements Act of 2015 (the 2015
                                              the Assistant to the President and Chief
                                                                                                                                                            Inflation Adjustment Improvements
                                              of Staff, entitled, ‘‘Regulatory Freeze                 SMALL BUSINESS ADMINISTRATION
                                                                                                                                                            Act), Public Law 114–74, 129 Stat. 584.
                                              Pending Review,’’ this action delays the
                                                                                                      13 CFR Parts 107, 120, 142, and 146                   This act amended the Federal Civil
                                              effective date for 60 days for the rule,
                                                                                                                                                            Penalties Inflation Adjustment Act of
                                              Organic Livestock and Poultry Practices.                RIN 3245–AG83                                         1990, Public Law 101–410, 104 Stat 890
                                              This rule, published in the Federal
                                                                                                                                                            (the 1990 Inflation Adjustment Act), to
                                              Register on January 19, 2017, amends                    Civil Monetary Penalties Inflation
                                                                                                                                                            improve the effectiveness of civil
                                              the organic livestock and poultry                       Adjustments
                                                                                                                                                            monetary penalties and to maintain
                                              production requirements by adding new
                                                                                                      AGENCY:    Small Business Administration.             their deterrent effect. The 2015 Inflation
                                              provisions for livestock handling and
                                                                                                      ACTION:   Interim final rule.                         Adjustment Improvements Act requires
                                              transport for slaughter and avian living
                                                                                                                                                            agencies to issue an interim final rule
                                              conditions; and expands and clarifies                   SUMMARY:   The Small Business                         (IFR) to: (1) Adjust the level of civil
                                              existing requirements covering livestock                Administration (SBA) is amending its                  monetary penalties with an initial
                                              care and production practices and                       regulations to adjust for inflation the               ‘‘catch-up’’ adjustment; and (2) make
                                              mammalian living conditions. The rule                   amount of certain civil monetary                      subsequent annual adjustments for
                                              was originally set to take effect on                    penalties that are within the jurisdiction            inflation no later than January 15 of
                                              March 20, 2017.                                         of the agency. These adjustments                      each subsequent year. The 2015
                                              DATES: The effective date of the final                  comply with the requirement in the                    Inflation Adjustment Improvements Act
                                              rule published on January 19, 2017 (82                  Federal Civil Penalties Inflation                     also authorizes agencies to implement
                                              FR 7042) is delayed from March 20,                      Adjustment Act of 1990, as amended by                 the annual adjustments without regard
                                              2017, to a new effective date of May 19,                the Federal Civil Penalties Inflation                 to the requirements for public notice
                                              2017.                                                   Adjustment Act Improvements Act of                    and comment or delayed effective date
                                              FOR FURTHER INFORMATION CONTACT: Paul                   2015, to make annual adjustments to the               under the Administrative Procedures
                                              Lewis, Ph.D., Director, Standards                       penalties.                                            Act, 5 U.S.C. 553(b)(B) and (d)(3),
sradovich on DSK3GMQ082PROD with RULES




                                              Division. Telephone: (202) 720–3252;                    DATES: Effective Date: This rule is                   respectively.
                                              Fax: (202) 260–9151.                                    effective February 9, 2017.                              In addition, based on the definition of
                                              SUPPLEMENTARY INFORMATION: AMS is                          Comment Date: Comments must be                     a ‘‘civil monetary penalty’’ in the 1990
                                              taking this action based on the                         received on or before April 10, 2017.                 Inflation Adjustment Act, agencies are
                                              Memorandum of January 20, 2017, from                    ADDRESSES: You may submit comments,                   to make adjustments only to the civil
                                              the Assistant to the President and Chief                identified by RIN 3245–AG83 by any of                 penalties that (i) are for a specific
                                              of Staff, entitled, ‘‘Regulatory Freeze                 the following methods:                                monetary amount as provided by federal


                                         VerDate Sep<11>2014   15:44 Feb 08, 2017   Jkt 241001   PO 00000   Frm 00001   Fmt 4700   Sfmt 4700   E:\FR\FM\09FER1.SGM   09FER1


                                              9968             Federal Register / Vol. 82, No. 26 / Thursday, February 9, 2017 / Rules and Regulations

                                              law or have a maximum amount                            regular or special reports. The penalty               $10,781 by the multiplier of 1.01636 to
                                              provided for by federal law; (ii) are                   for non-compliance is incorporated in                 reach a product of $10,957, rounded to
                                              assessed or enforced by an agency; and                  § 107.665 of the SBIC program                         the nearest dollar.
                                              (iii) are enforced or assessed in an                    regulations.
                                                                                                         The current civil penalty amount for               4. 13 CFR 146.400—Penalties
                                              administrative proceeding or a civil
                                              action in the Federal courts. Therefore,                violation of this requirement, as                        SBA’s regulations at 13 CFR part 146
                                              penalties that are stated as a percentage               adjusted in May 2016, is $250. This                   govern lobbying activities by recipients
                                              of an indeterminate amount or as a                      amount was multiplied by the                          of federal financial assistance. These
                                              function of a violation (penalties that                 multiplier of 1.01636 to reach a product              regulations implement the authority in
                                              encompass actual damages incurred) are                  of $254, rounded to the nearest dollar.               31 U.S.C. 1352, which was established
                                              not to be adjusted.                                     Thus, the new civil penalty amount is                 in 1989 and impose penalties on any
                                                 On May 19, 2016, SBA complied with                   $254 for each and every day an SBIC                   recipient that fails to comply with
                                              the first requirement by publishing an                  fails to file a required report.                      certain requirements in the part.
                                              IFR with the initial adjustments to the                                                                       Specifically, under § 146.400(a) and (b),
                                                                                                      2. 13 CFR 120.465—Civil Penalty for                   penalties may be imposed on those who
                                              civil penalties SBA is responsible for
                                                                                                      Late Submission of Required Reports                   make prohibited expenditures or fail to
                                              assessing or enforcing. 81 FR 31489.
                                              These initial adjustments to the                           According to the regulations at                    file the required disclosure forms or to
                                              penalties became effective on August 1,                 § 120.465, any small business lending                 amend such forms, if necessary. The
                                              2016. In this rule SBA complies with                    company (SBLC) that violates a                        regulations at § 146.400(a) and (b) were
                                              the second requirement by making the                    regulation or written directive issued by             amended by the May 2016 IFR to adjust
                                              first annual inflation adjustment to                    the SBA Administrator regarding the                   the penalty amounts of ‘‘not less than
                                              these penalties.                                        filing of any regular or special report is            $10,000 and no more than $100,000’’ to
                                                 Consistent with the 2015 Inflation                   subject to the civil penalty amount                   ‘‘not less $18,936 and no more than
                                              Adjustment Improvements Act, as well                    stated in § 120.465(b) for each day the               $189,361’’ for each prohibited
                                              as the guidance issued by the Office of                 company fails to file the report, unless              expenditure or failure to file or amend
                                              Management and Budget in M–17–11,                       the small business lending company can                the disclosure forms. The May 2016 IFR
                                              Implementation of the 2017 annual                       show that there is reasonable cause for               also amended § 146.400(e) to (1) adjust
                                              adjustment pursuant to the Federal Civil                its failure to file. This penalty, which is           the civil penalty that may be imposed
                                              Penalties Inflation Act Improvements                    authorized by section 23(j)(1) of the                 for a first time violation of § 146.400(a)
                                              Act, (December 16, 2016), the formula                   Small Business Act, 15 U.S.C. 650(j)(1),              and (b), to a maximum of $18,936,
                                              for calculating the annual adjustments is               was adjusted in the May 2016 IFR from                 absent aggravating circumstances, and
                                              based on the Consumer Price Index for                   $5,000 to $6,229. However, due to a                   (2) adjust the civil penalty that may be
                                              all Urban Consumers (CPI–U) for the                     typographical error, the amount was                   imposed for second and subsequent
                                              month of October preceding the                          published incorrectly in the May 2016                 offenses to not less $18,936 and no more
                                              adjustment. Specifically, the change                    IFR as $6,299. The amount should have                 than $189,361.
                                              between the October CPI–U preceding                     been stated as $6,229, the product of the                This rule amends § 146.400(a) and (b),
                                              the date of adjustment and the prior                    then $5,000 penalty multiplied by                     to adjust the current civil penalty
                                              year’s CPI–U, which for the adjustments                 1.24588, the multiplier established                   amounts to ‘‘not less than $19,246 and
                                              in this rule is the percentage change                   under the 2015 Inflation Adjustment                   not more than $192,459.’’ The current
                                              between October 2016 CPI–U (241.729)                    Improvements Act.                                     civil penalty amounts of $18,936 and
                                              and October 2015 CPI–U (237.838) or                        In light of this correction, this rule             $189,361 were multiplied by the
                                              1.01636. Therefore, the annual                          amends § 120.465(b) to adjust this civil              multiplier of 1.01636 to reach a product
                                              adjustments identified in this rule were                penalty by multiplying $6,229, the                    of $19,246 and $192,459, respectively,
                                              obtained by applying this multiplier to                 correct product under the guidelines for              rounded to the nearest dollar.
                                              the most recent penalty amounts                         the May 2016 IFR, by the multiplier of                   This rule also amends § 146.400(e) to
                                              established in the IFR published in May                 1.01636 to reach a product of $6,331,                 adjust the civil penalty that may be
                                              2016.                                                   rounded to the nearest dollar. Thus, the              imposed for a first time violation of
                                                                                                      new civil penalty amount is not more                  § 146.400(a) and (b) to a maximum of
                                              II. Civil Money Penalties Adjusted by                   than $6,331 for each and every day an                 $19,246 and to adjust the civil penalty
                                              This Rule                                               SBLC fails to file the respective report.             that may be imposed for second and
                                                 This rule makes adjustments to civil                                                                       subsequent offenses to not less than
                                              monetary penalties authorized by the                    3. 13 CFR 142.1—Overview of                           $19,246 and not more than $192,459.
                                              Small Business Act, the Small Business                  Regulations                                           The current civil penalty amounts of
                                              Investment Act of 1958 (SBIAct), the                       SBA has promulgated regulations at                 $18,936 and $189,361 were multiplied
                                              Program Fraud Civil Remedies Act and                    13 CFR part 142 to implement the civil                by the multiplier of 1.01636 to reach a
                                              the Byrd Amendment to the Federal                       penalties authorized by the Program                   product of $19,246 and $192,459,
                                              Regulation of Lobbying Act. These                       Fraud Civil Remedies Act of 1986                      respectively, rounded to the nearest
                                              penalties and the implementing                          (PFCRA), 31 U.S.C. 3801–3812. Under                   dollar.
                                              regulations are discussed below.                        the current regulation at § 142.1(b), a
                                                                                                      person who submits, or causes to be                   III. Justification for Interim Final Rule
                                              1. 13 CFR 107.665—Civil Penalties                       submitted, a false claim or a false                      The 2015 Inflation Adjustment
                                                 SBA licenses, regulates and provides                 statement to SBA is subject to a civil                Improvements Act specifically
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                                              financial assistance to financial entities              penalty of not more than $10,781, for                 authorizes agencies to promulgate
                                              called small business investment                        each statement or claim.                              rulemaking for the annual adjustment to
                                              companies (SBICs). Pursuant to section                     This rule amends § 142.1(b) to adjust              their civil monetary penalties,
                                              315 of the SBIAct, 15 U.S.C. 687g, SBA                  the current civil penalty to $10,957 per              ‘‘notwithstanding section 553 of title 5,
                                              may impose a penalty on any SBIC that                   statement or claim. The adjusted civil                United States Code,’’ which generally
                                              fails to comply with SBA’s regulations                  penalty amount was calculated by                      requires agencies to provide the public
                                              or directives governing the filing of                   multiplying the current civil penalty of              with an opportunity to comment on the


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                                                               Federal Register / Vol. 82, No. 26 / Thursday, February 9, 2017 / Rules and Regulations                                               9969

                                              rule making before the rule can be                      substantial number of such small                        Authority: 15 U.S.C. 634(b); 31 U.S.C.
                                              effective. 5 U.S.C. 553(b)                              entities. However, the RFA requires                   3803(g)(2).
                                                                                                      such analysis only where notice and
                                              IV. Justification for Immediate Effective                                                                     § 142.1    [Amended]
                                                                                                      comment rulemaking is required. As
                                              Date                                                                                                          ■  6. Paragraph (b) of § 142.1 is amended
                                                                                                      stated above, SBA has express statutory
                                                Section 553(d) requires agencies to                   authority to issue this rule without                  by removing ‘‘$10,781’’ and adding in
                                              publish their rules at least 30 days                    regard to the notice and comment. Since               its place ‘‘$10,957’’.
                                              before their effective dates, except if the             notice and comment is not required
                                              agency finds for good cause that the                                                                          PART 146—NEW RESTRICTIONS ON
                                                                                                      before this rule is issued, SBA is not
                                              delay is impracticable, unnecessary, or                                                                       LOBBYING
                                                                                                      required to prepare a regulatory
                                              contrary to the public interest. By                     analysis.                                             ■ 7. The authority citation for part 146
                                              expressly exempting this rule from
                                                                                                      List of Subjects                                      continues to read as follows:
                                              section 553, the 2015 Inflation
                                              Adjustment Improvements Act has                                                                                 Authority: Section 319, Pub. L. 101–121
                                                                                                      13 CFR Part 107
                                              provided the agency with the good                                                                             (31 U.S.C. 1352); 15 U.S.C. 634(b)(6).
                                              cause justification for this rule to                      Investment companies, Loan
                                                                                                      programs—business, Reporting and                      § 146.400     [Amended]
                                              become effective on the date it is
                                              published in the Federal Register.                      recordkeeping requirements, Small                     ■  8. Paragraphs (a), (b), and (e) of
                                                                                                      businesses.                                           § 146.400 are amended by removing
                                              Compliance With Executive Orders                                                                              ‘‘$18,936’’ wherever it appears and
                                              12866, 12988, and 13132, and the                        13 CFR Part 120
                                                                                                                                                            adding in its place ‘‘$19,246’’ and by
                                              Paperwork Reduction Act (44 U.S.C. Ch.                    Loan programs—business, Reporting                   removing ‘‘$189,361’’ and adding in its
                                              35) and the Regulatory Flexibility Act (5               and recordkeeping requirements, Small                 place ‘‘$192,459’’.
                                              U.S.C. 601–612)                                         businesses.
                                                                                                                                                              Dated: February 3, 2017.
                                              Executive Order 12866                                   13 CFR Part 142                                       Joseph P. Loddo,
                                                The Office of Management and Budget                     Administrative practice and                         Acting Administrator.
                                              has determined that this interim final                  procedure, Claims, Fraud, Penalties.                  [FR Doc. 2017–02657 Filed 2–8–17; 8:45 am]
                                              rule is not a significant regulatory action             13 CFR Part 146                                       BILLING CODE 8025–01–P
                                              under Executive Order 12866. This is
                                              also not a major rule under the                           Government contracts, Grant
                                              Congressional Review Act, 5 U.S.C. 800.                 programs, Loan programs, Lobbying,                    DEPARTMENT OF COMMERCE
                                                                                                      Penalties, Reporting and recordkeeping
                                              Executive Order 12988                                   requirements.                                         National Oceanic and Atmospheric
                                                 This action meets applicable                           For the reasons set forth in the                    Administration
                                              standards set forth in Sections 3(a) and                preamble, SBA amends 13 CFR parts
                                              3(b)(2) of Executive Order 12988, Civil                 107, 120, 142, and 146 as follows:                    15 CFR Part 902
                                              Justice Reform, to minimize litigation,
                                              eliminate ambiguity, and reduce                         PART 107—SMALL BUSINESS                               50 CFR Part 300
                                              burden. The action does not have                        INVESTMENT COMPANIES
                                                                                                                                                            [Docket No. 120201087–6641–02]
                                              retroactive or preemptive effect.
                                                                                                      ■  1. The authority citation for part 107
                                                                                                                                                            RIN 0648–BB86
                                              Executive Order 13132                                   is revised to read as follows:
                                                For the purpose of Executive Order                      Authority: 15 U.S.C. 681, 683, 687(c), 687b,        International Affairs; Antarctic Marine
                                              13132, SBA has determined that the rule                 687d, 687g, 687m.                                     Living Resources Convention Act
                                              will not have substantial direct effects
                                              on the States, on the relationship
                                                                                                      § 107.665    [Amended]                                AGENCY:  National Marine Fisheries
                                              between the national government and                     ■ 2. In § 107.665, remove ‘‘$250’’ and                Service (NMFS), National Oceanic and
                                              the States, or on the distribution of                   add in its place ‘‘$254’’.                            Atmospheric Administration (NOAA),
                                              power and responsibilities among the                                                                          Commerce.
                                              various levels of government. Therefore,                PART 120—BUSINESS LOANS                               ACTION: Final rule; delay of effective
                                              this interim final rule has no federalism                                                                     date.
                                                                                                      ■ 3. The authority citation for part 120
                                              implications warranting preparation of a                continues to read as follows:                         SUMMARY:    In accordance with the
                                              federalism assessment.                                                                                        memorandum of January 20, 2017, from
                                                                                                        Authority: 15 U.S.C. 634(b)(6), (b)(7),
                                              Paperwork Reduction Act                                 (b)(14), (h), and note, 636(a), (h) and (m), 650,     the Assistant to the President and Chief
                                                                                                      687(f), 696(3), and 697(a) and (e); Public Law        of Staff, entitled ‘‘Regulatory Freeze
                                                SBA has determined that this rule
                                                                                                      111–5, 123 Stat. 115, Public Law 111–240,             Pending Review,’’ published in the
                                              does not impose additional reporting or
                                                                                                      124 Stat. 2504; Public Law 114–113, 129 Stat.         Federal Register on January 24, 2017
                                              recordkeeping requirements.                             2242.                                                 (the Memorandum), this action delays
                                              Regulatory Flexibility Act (RFA)                                                                              the effective date of the final rule
                                                                                                      § 120.465    [Amended]
                                                 The RFA requires agencies to consider                                                                      published on January 19, 2017.
                                                                                                      ■ 4. Paragraph (b) of § 120.465 is                    DATES: Effective February 9, 2017, the
                                              the effect of their regulatory actions on
                                                                                                      amended by removing ‘‘$6,299’’ and
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                                              small entities, including small non-                                                                          effective date of the final rule amending
                                                                                                      adding in its place ‘‘$6,331’’.                       15 CFR part 902 and 50 CFR part 300,
                                              profit businesses, and small local
                                              governments. Pursuant to the RFA,                       PART 142—PROGRAM FRAUD CIVIL                          that published on January 19, 2017, at
                                              when an agency issues a rule the agency                 REMEDIES ACT REGULATIONS                              82 FR 6221, is delayed until March 21,
                                              must prepare an analysis that describes                                                                       2017.
                                              whether the impact of the rule will have                ■ 5. The authority citation for part 142              FOR FURTHER INFORMATION CONTACT: Mi
                                              a significant economic impact on a                      continues to read as follows:                         Ae Kim, Office of International Affairs


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Document Created: 2017-02-09 01:03:04
Document Modified: 2017-02-09 01:03:04
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionInterim final rule.
DatesEffective Date: This rule is effective February 9, 2017.
ContactArlene Embrey, 202-205-6976, or at [email protected]
FR Citation82 FR 9967 
RIN Number3245-AG83
CFR Citation13 CFR 107
13 CFR 120
13 CFR 142
13 CFR 146
CFR AssociatedInvestment Companies; Loan Programs-Business; Reporting and Recordkeeping Requirements; Small Businesses; Administrative Practice and Procedure; Claims; Fraud; Penalties; Government Contracts; Grant Programs; Loan Programs and Lobbying

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