83 FR 1550 - Civil Monetary Penalty Inflation Adjustments

DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission

Federal Register Volume 83, Issue 9 (January 12, 2018)

The Federal Energy Regulatory Commission (Commission) is issuing a final rule to amend its regulations governing the maximum civil monetary penalties assessable for violations of statutes, rules, and orders within the Commission's jurisdiction. The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended most recently by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, requires the Commission to issue this final rule.

[Federal Register Volume 83, Number 9 (Friday, January 12, 2018)]
[Rules and Regulations]
[Pages 1550-1552]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00415]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 250 and 385

[Docket No. RM18-4-000; Order No. 839]


Civil Monetary Penalty Inflation Adjustments

AGENCY:  Federal Energy Regulatory Commission.

ACTION: Final rule.

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

SUMMARY:  The Federal Energy Regulatory Commission (Commission) is 
issuing a final rule to amend its regulations governing the maximum 
civil monetary penalties assessable for violations of statutes, rules, 
and orders within the Commission's jurisdiction. The Federal Civil 
Penalties Inflation Adjustment Act of 1990, as amended most recently by 
the Federal Civil Penalties Inflation Adjustment Act Improvements Act 
of 2015, requires the Commission to issue this final rule.

DATES:  This final rule is effective January 12, 2018.

FOR FURTHER INFORMATION CONTACT:  Todd Hettenbach, Attorney, Office of 
Enforcement, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8794 [email protected].

SUPPLEMENTARY INFORMATION:

Order No. 839

Final Rule

    1. In this final rule, the Federal Energy Regulatory Commission 
(Commission) is complying with its statutory obligation to amend the 
civil monetary penalties provided by law for matters within the 
agency's jurisdiction.

Background

    2. The Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (2015 Adjustment Act),\1\ which further 
amended the Federal Civil Penalties Inflation Adjustment Act of 1990 
(1990 Adjustment Act),\2\ required the head of each federal agency to 
issue a rule by July 2016 adjusting for inflation each ``civil monetary 
penalty'' provided by law within the agency's jurisdiction and to make 
further inflation adjustments on an annual basis every January 15 
thereafter.\3\
---------------------------------------------------------------------------

    \1\ Sec. 701, Public Law 114-74, 129 Stat. 584, 599.
    \2\ Public Law 101-410, 104 Stat. 890 (codified as amended at 28 
U.S.C. 2461 note).
    \3\ 28 U.S.C. 2461 note, at (4). The Commission made its January 
2017 adjustment on January 9, 2017, in Docket No. RM17-9-000. See 
Civil Monetary Penalty Inflation Adjustments, Order No. 834, 82 FR 
8137 (Jan. 24, 2017), FERC Stats. & Regs. ] 31,390 (2017).
---------------------------------------------------------------------------

II. Discussion

    3. The 2015 Adjustment Act defines a civil monetary penalty as any 
penalty, fine, or other sanction that: (A)(i) Is for a specific 
monetary amount as provided by federal law; or (ii) has a maximum 
amount provided for by federal law; (B) is assessed or enforced by an 
agency pursuant to federal law; and (C) is assessed or enforced 
pursuant to an administrative proceeding or a civil action in the 
federal courts.\4\ This

[[Page 1551]]

definition applies to the maximum civil penalties that may be imposed 
under the Federal Power Act (FPA),\5\ the Natural Gas Act (NGA),\6\ the 
Natural Gas Policy Act of 1978 (NGPA),\7\ and the Interstate Commerce 
Act (ICA).\8\
---------------------------------------------------------------------------

    \4\ Id. (3).
    \5\ 16 U.S.C. 791a et seq.
    \6\ 15 U.S.C. 717 et seq.
    \7\ 15 U.S.C. 3301 et seq.
    \8\ 49 App. U.S.C. 1 et seq. (1988).
---------------------------------------------------------------------------

    4. Under the 2015 Adjustment Act, the first step for such 
adjustment of a civil monetary penalty for inflation requires 
determining the percentage by which the U.S. Department of Labor's 
Consumer Price Index for all-urban consumers (CPI-U) for October of the 
preceding year exceeds the CPI-U for October of the year before 
that.\9\ The CPI-U for October 2017 exceeded the CPI-U for October 2016 
by 2.041 percent.\10\
---------------------------------------------------------------------------

    \9\ 28 U.S.C. 2461 note, at (5)(b)(1).
    \10\ See, e.g., Memorandum from Mick Mulvaney, Office of 
Management and Budget, Implementation of the Penalty Inflation 
Adjustments for 2018, Pursuant to the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015, 1 (Dec. 15, 
2017).
---------------------------------------------------------------------------

    5. The second step requires multiplying the CPI-U percentage 
increase by the applicable existing maximum civil monetary penalty.\11\ 
This step results in a base penalty increase amount.
---------------------------------------------------------------------------

    \11\ Id. (5)(a).
---------------------------------------------------------------------------

    6. The third step requires rounding the base penalty increase 
amount to the nearest dollar and adding that amount to the base penalty 
to calculate the new adjusted maximum civil monetary penalty.\12\
---------------------------------------------------------------------------

    \12\ Id.
---------------------------------------------------------------------------

    7. Under the 2015 Adjustment Act, an agency is directed to use the 
maximum civil monetary penalty applicable at the time of assessment of 
a civil penalty, regardless of the date on which the violation 
occurred.\13\
---------------------------------------------------------------------------

    \13\ Id. (6).
---------------------------------------------------------------------------

    8. The adjustments that the Commission is required to make pursuant 
to the 2015 Adjustment Act are reflected in the following table:

------------------------------------------------------------------------
                                Existing maximum    New adjusted maximum
           Source                civil monetary        civil monetary
                                     penalty               penalty
------------------------------------------------------------------------
16 U.S.C. 825o-1(b), Sec.     $1,213,503 per        $1,238,271 per
 316A of the Federal Power     violation, per day.   violation, per day.
 Act.
16 U.S.C. 823b(c),..........  $21,916 per           $22,363 per
Sec. 31(c) of the Federal      violation, per day.   violation, per day.
 Power Act.
16 U.S.C. 825n(a),..........  $2,795 per violation  $2,852 per
Sec. 315(a) of the Federal                           violation.
 Power Act.
15 U.S.C. 717t-1,...........  $1,213,503 per        $1,238,271 per
Sec. 22 of the Natural Gas     violation, per day.   violation, per day.
 Act.
15 U.S.C. 3414(b)(6)(A)(i),   $1,213,503 per        $1,238,271 per
 Sec. 504(b)(6)(A)(i) of the   violation, per day.   violation, per day.
 Natural Gas Policy Act of
 1978.
49 App. U.S.C. 6(10) (1988),  $1,270 per offense    $1,296 per offense
 Sec. 6(10) of the             and $64 per day       and $65 per day
 Interstate Commerce Act.      after the first day.  after the first
                                                     day.
49 App. U.S.C. 16(8) (1988),  $12,705 per           $12,964 per
 Sec. 16(8) of the             violation, per day.   violation, per day.
 Interstate Commerce Act.
49 App. U.S.C. 19a(k)         $1,270 per offense,   $1,296 per offense,
 (1988), Sec. 19a(k) of the    per day.              per day.
 Interstate Commerce Act.
49 App. U.S.C. 20(7)(a)       $1,270 per offense,   $1,296 per offense,
 (1988), Sec. 20(7)(a) of      per day.              per day.
 the Interstate Commerce Act.
------------------------------------------------------------------------

III. Administrative Findings

    9. Congress directed that agencies issue final rules to adjust 
their maximum civil monetary penalties notwithstanding the requirements 
of the Administrative Procedure Act (APA).\14\ Because the Commission 
is required by law to undertake these inflation adjustments 
notwithstanding the notice and comment requirements that otherwise 
would apply pursuant to the APA, and because the Commission lacks 
discretion with respect to the method and amount of the adjustments, 
prior notice and comment would be impractical, unnecessary, and 
contrary to the public interest.
---------------------------------------------------------------------------

    \14\ Id. (3)(b)(2).
---------------------------------------------------------------------------

IV. Regulatory Flexibility Statement

    10. The Regulatory Flexibility Act, as amended, requires agencies 
to certify that rules promulgated under their authority will not have a 
significant economic impact on a substantial number of small 
businesses.\15\ The requirements of the Regulatory Flexibility Act 
apply only to rules promulgated following notice and comment.\16\ The 
requirements of the Regulatory Flexibility Act do not apply to this 
rulemaking because the Commission is issuing this final rule without 
notice and comment.
---------------------------------------------------------------------------

    \15\ 5 U.S.C. 601 et seq.
    \16\ 5 U.S.C. 603, 604.
---------------------------------------------------------------------------

V. Paperwork Reduction Act

    11. This rule does not require the collection of information. The 
Commission is therefore not required to submit this rule for review to 
the Office of Management and Budget pursuant to the Paperwork Reduction 
Act of 1995.\17\
---------------------------------------------------------------------------

    \17\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

VI. Document Availability

    12. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, 
Washington DC 20426.
    13. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and downloading. To access this document in eLibrary, type 
the docket number (excluding the last three digits) in the docket 
number field.
    14. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202)-502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659, [email protected].

[[Page 1552]]

VII. Effective Date and Congressional Notification

    15. For the same reasons the Commission has determined that public 
notice and comment are unnecessary, impractical, and contrary to the 
public interest, the Commission finds good cause to adopt an effective 
date that is less than 30 days after the date of publication in the 
Federal Register pursuant to the Administrative Procedure Act,\18\ and 
therefore, the regulation is effective upon publication in the Federal 
Register.
---------------------------------------------------------------------------

    \18\ 5 U.S.C. 553(d)(3).
---------------------------------------------------------------------------

    16. The Commission has determined, with the concurrence of the 
Administrator of the Office of Information and Regulatory Affairs of 
the Office of Management and Budget, that this rule is not a ``major 
rule'' as defined in section 351 of the Small Business Regulatory 
Enforcement Fairness Act of 1996. This Final Rule is being submitted to 
the Senate, House, and Government Accountability Office.

List of Subjects

18 CFR Part 250

    Natural gas, Reporting and recordkeeping requirements.

18 CFR Part 385

    Administrative practice and procedure, Electric power, Penalties, 
Pipelines, Reporting and recordkeeping requirements.

    By the Commission.

    Issued: January 8, 2018.
Kimberly D. Bose,
Secretary.
    In consideration of the foregoing, the Commission amends parts 250 
and 385, chapter I, title 18, Code of Federal Regulations as follows:

PART 250--FORMS

0
1. The authority citation for part 250 continues to read as follows:

    Authority: 15 U.S.C. 717-717w, 3301-3432; 42 U.S.C. 7101-7352; 
28 U.S.C. 2461 note.

0
2. Amend Sec.  250.16 by revising paragraph (e)(1) to read as follows:


Sec.  250.16  Format of compliance plan transportation services and 
affiliate transactions.

* * * * *
    (e) * * * (1) Any person who transports gas for others pursuant to 
subparts B or G of part 284 of this chapter and who knowingly violates 
the requirements of Sec. Sec.  358.4 and 358.5, Sec.  250.16, or Sec.  
284.13 of this chapter will be subject, pursuant to sections 311(c), 
501, and 504(b)(6) of the Natural Gas Policy Act of 1978, to a civil 
penalty, which the Commission may assess, of not more than $1,238,271 
for any one violation.
* * * * *

PART 385--RULES OF PRACTICE AND PROCEDURE

0
3. The authority citation for part 385 continues to read as follows:

    Authority:  5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791a-825v, 2601-2645; 28 U.S.C. 2461; 31 U.S.C 3701, 9701; 42 
U.S.C. 7101-7352, 16441, 16451-16463; 49 U.S.C. 60502; 49 App. 
U.S.C. 1-85 (1988); 28 U.S.C. 2461 note (1990); 28 U.S.C. 2461 note 
(2015).


0
4. Revise Sec.  385.1504(a) to read as follows:


Sec.  385.1504  Maximum civil penalty (Rule 1504).

    (a) Except as provided in paragraph (b) of this section, the 
Commission may assess a civil penalty of up to $22,363 for each day 
that the violation continues.
* * * * *

0
5. Revise Sec.  385.1602 to read as follows:


Sec.  385.1602  Civil penalties, as adjusted (Rule 1602).

    The current inflation-adjusted civil monetary penalties provided by 
law within the jurisdiction of the Commission are:
    (a) 15 U.S.C. 3414(b)(6)(A)(i), Natural Gas Policy Act of 1978: 
$1,238,271.
    (b) 16 U.S.C. 823b(c), Federal Power Act: $22,363 per day.
    (c) 16 U.S.C. 825n(a), Federal Power Act: $2,852.
    (d) 16 U.S.C. 825o-1(b), Federal Power Act: $1,238,271 per day.
    (e) 15 U.S.C. 717t-1, Natural Gas Act: $1,238,271 per day.
    (f) 49 App. U.S.C. 6(10) (1988), Interstate Commerce Act: $1,296 
per offense and $65 per day after the first day.
    (g) 49 App. U.S.C. 16(8) (1988), Interstate Commerce Act: $12,964 
per day.
    (h) 49 App. U.S.C. 19a(k) (1988), Interstate Commerce Act: $1,296 
per day.
    (i) 49 App. U.S.C. 20(7)(a) (1988), Interstate Commerce Act: $1,296 
per day.

[FR Doc. 2018-00415 Filed 1-11-18; 8:45 am]
BILLING CODE 6717-01-P