83 FR 2902 - Adjustments to Civil Penalty Amounts

FEDERAL TRADE COMMISSION

Federal Register Volume 83, Issue 14 (January 22, 2018)

The Federal Trade Commission (``FTC'' or ``Commission'') is implementing adjustments to the civil penalty amounts within its jurisdiction to account for inflation, as required by law.

[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Rules and Regulations]
[Pages 2902-2903]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00979]


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FEDERAL TRADE COMMISSION

16 CFR Part 1


Adjustments to Civil Penalty Amounts

AGENCY: Federal Trade Commission.

ACTION: Final rule.

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SUMMARY: The Federal Trade Commission (``FTC'' or ``Commission'') is 
implementing adjustments to the civil penalty amounts within its 
jurisdiction to account for inflation, as required by law.

DATES: Effective date: January 22, 2018.

FOR FURTHER INFORMATION CONTACT: Kenny A. Wright, Attorney, Office of 
the General Counsel, FTC, 600 Pennsylvania Avenue NW, Washington, DC 
20580, (202) 326-2907, [email protected].

SUPPLEMENTARY INFORMATION: Commission Rule 1.98 sets forth civil 
penalty amounts for violations of certain laws enforced by the 
Commission.\1\ As mandated by the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015,\2\ the Commission adjusted the 
maximum civil penalty amounts under its jurisdiction through an Interim 
Final Rulemaking in June 2016 \3\ and a subsequent annual inflation 
adjustment in January 2017.\4\
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    \1\ 16 CFR 1.98.
    \2\ Public Law 114-74, section 701, 129 Stat. 599 (2015). The 
Act amends the Federal Civil Penalties Inflation Adjustment Act 
(``FCPIAA''), Public Law 101-410, 104 Stat. 890 (codified at 28 
U.S.C. 2461 note).
    \3\ 81 FR 42476 (June 30, 2016).
    \4\ 82 FR 8135 (Jan. 24, 2017).
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    Following the initial catch-up adjustment, the FCPIAA, as amended, 
directs agencies to adjust their civil penalties for inflation every 
January thereafter. Accordingly, the Commission is increasing these 
maximum civil penalty amounts to address inflation since the January 
2017 adjustment. The following adjusted amounts will take effect on 
January 22, 2018:
     Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1) 
(premerger filing notification violations under the Hart-Scott-Rodino 
Improvements Act)--Increase from $40,654 to $41,484;
     Section 11(l) of the Clayton Act, 15 U.S.C. 21(l) 
(violations of cease and desist orders issued under Clayton Act section 
11(b))--Increase from $21,598 to $22,039;
     Section 5(l) of the FTC Act, 15 U.S.C. 45(l) (unfair or 
deceptive acts or practices)--Increase from $40,654 to $41,484;
     Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A) 
(unfair or deceptive acts or practices)--Increase from $40,654 to 
$41,484;
     Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B) 
(unfair or deceptive acts or practices)--Increase from $40,654 to 
$41,484;
     Section 10 of the FTC Act, 15 U.S.C. 50 (failure to file 
required reports)--Increase from $534 to $545;
     Section 5 of the Webb-Pomerene (Export Trade) Act, 15 
U.S.C. 65 (failure by associations engaged solely in export trade to 
file required statements)--Increase from $534 to $545;
     Section 6(b) of the Wool Products Labeling Act, 15 U.S.C. 
68d(b) (failure by wool manufacturers to maintain required records)--
Increase from $534 to $545;
     Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 
69a(e) (failure to maintain required records regarding fur products)--
Increase from $534 to $545;
     Section 8(d)(2) of the Fur Products Labeling Act, 15 
U.S.C. 69f(d)(2) (failure to maintain required records regarding fur 
products)--Increase from $534 to $545;
     Section 333(a) of the Energy Policy and Conservation Act, 
42 U.S.C. 6303(a) (knowing violations of EPCA section 332, including 
labeling violations)--Increase from $440 to $449;
     Section 525(a) of the Energy Policy and Conservation Act, 
42 U.S.C. 6395(a) (recycled oil labeling violations)--Increase from 
$21,598 to $22,039;
     Section 525(b) of the Energy Policy and Conservation Act, 
42 U.S.C. 6395(b) (willful violations of recycled oil labeling 
requirements)--Increase from $40,654 to $41,484;
     Section 621(a)(2) of the Fair Credit Reporting Act, 15 
U.S.C. 1681s(a)(2) (knowing violations of the Fair Credit Reporting 
Act)--Increase from $3,817 to $3,895;
     Section 1115(a) of the Medicare Prescription Drug 
Improvement and Modernization Act of 2003, Public Law 108-173, 21 
U.S.C. 355 note (failure to comply with filing requirements)--Increase 
from $14,373 to $14,666; and
     Section 814(a) of the Energy Independence and Security Act 
of 2007, 42 U.S.C. 17304 (violations of prohibitions on market 
manipulation and provision of false information to federal agencies)--
Increase from $1,156,953 to $1,180,566.

Calculation of Inflation Adjustments

    The FCPIAA, as amended, directs federal agencies to adjust each 
civil monetary penalty under their jurisdiction for inflation in 
January of each year pursuant to a cost-of-living adjustment.\5\ The 
cost-of-living adjustment is based on the percent change between the 
U.S. Department of Labor's Consumer Price Index for all-urban consumers 
(``CPI-U'') for the month of October preceding the date of the 
adjustment, and the CPI-U for October of the prior year.\6\ Based on 
that formula, the cost-of-living adjustment multiplier for 2018 is 
1.02041. The FCPIAA also directs that these penalty level adjustments 
should be rounded to the nearest dollar. Agencies do not have 
discretion over whether to adjust a maximum civil penalty, or the 
method used to determine the adjustment.
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    \5\ 28 U.S.C. 2461 note (4).
    \6\ Id. (3), (5)(b); Office of Management and Budget, Memorandum 
M-18-03, Implementation of Penalty Inflation Adjustments for 2018, 
Pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015, at 4 (December 15, 2017), available at 
https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf.
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    The following chart illustrates the application of these 
adjustments to the civil monetary penalties under the Commission's 
jurisdiction.

                         Calculation of Adjustments to Maximum Civil Monetary Penalties
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                                                                      Current       Adjustment       Adjusted
               Citation                        Description        penalty (2017)    multiplier        penalty
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16 CFR 1.98(a): 15 U.S.C. 18a(g)(1)...  Premerger filing                 $40,654         1.02041         $41,484
                                         notification violations.
16 CFR 1.98(b): 15 U.S.C. 21(l).......  Violations of cease and           21,598         1.02041          22,039
                                         desist orders.
16 CFR 1.98(c): 15 U.S.C. 45(l).......  Unfair or deceptive acts          40,654         1.02041          41,484
                                         or practices.
16 CFR 1.98(d): 15 U.S.C. 45(m)(1)(A).  Unfair or deceptive acts          40,654         1.02041          41,484
                                         or practices.

[[Page 2903]]

 
16 CFR 1.98(e): 15 U.S.C. 45(m)(1)(B).  Unfair or deceptive acts          40,654         1.02041          41,484
                                         or practices.
16 CFR 1.98(f): 15 U.S.C. 50..........  Failure to file required             534         1.02041             545
                                         reports.
16 CFR 1.98(g): 15 U.S.C. 65..........  Failure to file required             534         1.02041             545
                                         statements.
16 CFR 1.98(h): 15 U.S.C. 68d(b)......  Failure to maintain                  534         1.02041             545
                                         required records.
16 CFR 1.98(i): 15 U.S.C. 69a(e)......  Failure to maintain                  534         1.02041             545
                                         required records.
16 CFR 1.98(j): 15 U.S.C. 69f(d)(2)...  Failure to maintain                  534         1.02041             545
                                         required records.
16 CFR 1.98(k): 42 U.S.C. 6303(a).....  Knowing violations......             440         1.02041             449
16 CFR 1.98(l): 42 U.S.C. 6395(a).....  Recycled oil labeling             21,598         1.02041          22,039
                                         violations.
16 CFR 1.98(l): 42 U.S.C. 6395(b).....  Willful violations......          40,654         1.02041          41,484
16 CFR 1.98(m): 15 U.S.C. 1681s(a)(2).  Knowing violations......           3,817         1.02041           3,895
16 CFR 1.98(n): 21 U.S.C. 355 note....  Non-compliance with               14,373         1.02041          14,666
                                         filing requirements.
16 CFR 1.98(o): 42 U.S.C. 17304.......  Market manipulation or         1,156,953         1.02041       1,180,566
                                         provision of false
                                         information to federal
                                         agencies.
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Effective Dates of New Penalties

    These new penalty levels apply to civil penalties assessed after 
the effective date of the applicable adjustment, including civil 
penalties whose associated violation predated the effective date.\7\ 
These adjustments do not retrospectively change previously assessed or 
enforced civil penalties that the FTC is actively collecting or has 
collected.
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    \7\ 28 U.S.C. 2461 note (6).
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Procedural Requirements

    The FCPIAA, as amended, directs agencies to adjust civil monetary 
penalties through rulemaking and to publish the required inflation 
adjustments in the Federal Register, notwithstanding section 553 of 
title 5, United States Code. Pursuant to this congressional mandate, 
prior public notice and comment under the APA and a delayed effective 
date are not required. For this reason, the requirements of the 
Regulatory Flexibility Act (``RFA'') also do not apply.\8\ Further, 
this rule does not contain any collection of information requirements 
as defined by the Paperwork Reduction Act of 1995 as amended. 44 U.S.C. 
3501 et seq.
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    \8\ A regulatory flexibility analysis under the RFA is required 
only when an agency must publish a notice of proposed rulemaking for 
comment. See 5 U.S.C. 603.
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List of Subjects for 16 CFR Part 1

    Administrative practice and procedure, Penalties, Trade practices.

Text of Amendments

    For the reasons set forth in the preamble, the Federal Trade 
Commission amends title 16, chapter I, subchapter A, of the Code of 
Federal Regulations, as follows:

PART 1--GENERAL PROCEDURES

Subpart L--Civil Penalty Adjustments Under the Federal Civil 
Penalties Inflation Adjustment Act of 1990, as Amended

0
1. The authority citation for part 1, subpart L continues to read as 
follows:

    Authority: 28 U.S.C. 2461 note.


0
2. Revise Sec.  1.98 to read as follows:


Sec.  1.98   Adjustment of civil monetary penalty amounts.

    This section makes inflation adjustments in the dollar amounts of 
civil monetary penalties provided by law within the Commission's 
jurisdiction. The following maximum civil penalty amounts apply only to 
penalties assessed after January 22, 2018, including those penalties 
whose associated violation predated January 22, 2018.
    (a) Section 7A(g)(1) of the Clayton Act, 15 U.S.C. 18a(g)(1)--
$41,484;
    (b) Section 11(l) of the Clayton Act, 15 U.S.C. 21(l)--$22,039;
    (c) Section 5(l) of the FTC Act, 15 U.S.C. 45(l)--$41,484;
    (d) Section 5(m)(1)(A) of the FTC Act, 15 U.S.C. 45(m)(1)(A)--
$41,484;
    (e) Section 5(m)(1)(B) of the FTC Act, 15 U.S.C. 45(m)(1)(B)--
$41,484;
    (f) Section 10 of the FTC Act, 15 U.S.C. 50--$545;
    (g) Section 5 of the Webb-Pomerene (Export Trade) Act, 15 U.S.C. 
65--$545;
    (h) Section 6(b) of the Wool Products Labeling Act, 15 U.SC. 
68d(b)--$545;
    (i) Section 3(e) of the Fur Products Labeling Act, 15 U.S.C. 
69a(e)--$545;
    (j) Section 8(d)(2) of the Fur Products Labeling Act, 15 U.S.C. 
69f(d)(2)--$545;
    (k) Section 333(a) of the Energy Policy and Conservation Act, 42 
U.S.C. 6303(a)--$449;
    (l) Sections 525(a) and (b) of the Energy Policy and Conservation 
Act, 42 U.S.C. 6395(a) and (b), respectively--$22,039 and $41,484, 
respectively;
    (m) Section 621(a)(2) of the Fair Credit Reporting Act, 15 U.S.C. 
1681s(a)(2)--$3,895;
    (n) Section 1115(a) of the Medicare Prescription Drug Improvement 
and Modernization Act of 2003, Public Law 108-173, 21 U.S.C. 355 note--
$14,666;
    (o) Section 814(a) of the Energy Independence and Security Act of 
2007, 42 U.S.C. 17304--$1,180,566; and
    (p) Civil monetary penalties authorized by reference to the Federal 
Trade Commission Act under any other provision of law within the 
jurisdiction of the Commission--refer to the amounts set forth in 
paragraphs (c), (d), (e) and (f) of this section, as applicable.

    By direction of the Commission.
Donald S. Clark,
Secretary.
[FR Doc. 2018-00979 Filed 1-19-18; 8:45 am]
 BILLING CODE 6750-01-P