83 FR 706 - Civil Monetary Penalty Adjustments for Inflation

DEPARTMENT OF COMMERCE
Office of the Secretary

Federal Register Volume 83, Issue 5 (January 8, 2018)

This final rule is being issued to adjust for inflation each civil monetary penalty (CMP) provided by law within the jurisdiction of the United States Department of Commerce (Department of Commerce). The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, required the head of each agency to adjust for inflation its CMP levels in effect as of November 2, 2015, under a revised methodology that was effective for 2016 which provided for initial catch up adjustments for inflation in 2016, and requires adjustments for inflation to CMPs under a revised methodology for each year thereafter. The 2017 adjustments for inflation to CMPs to the Department of Commerce's CMPs were published in the Federal Register on December 28, 2016 and became effective January 15, 2017. The revised annual methodology provides for the improvement of the effectiveness of CMPs and to maintain their deterrent effect. Agencies' annual adjustments for inflation to CMPs shall take effect not later than January 15. The Department of Commerce's 2018 adjustments for inflation to CMPs apply only to CMPs with a dollar amount, and will not apply to CMPs written as functions of violations. The Department of Commerce's 2018 adjustments for inflation to CMPs apply only to those CMPs, including those whose associated violation predated such adjustment, which are assessed by the Department of Commerce after the effective date of the new CMP level.

[Federal Register Volume 83, Number 5 (Monday, January 8, 2018)]
[Rules and Regulations]
[Pages 706-709]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-28230]


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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 6

[Docket No. 171219999-7999-01]
RIN 0605-AA48


Civil Monetary Penalty Adjustments for Inflation

AGENCY: Office of the Chief Financial Officer and Assistant Secretary 
for Administration, Department of Commerce.

ACTION: Final rule.

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SUMMARY: This final rule is being issued to adjust for inflation each 
civil monetary penalty (CMP) provided by law within the jurisdiction of 
the United States Department of Commerce (Department of Commerce). The 
Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by 
the Debt Collection Improvement Act of 1996 and the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015, required 
the head of each agency to adjust for inflation its CMP levels in 
effect as of November 2, 2015, under a revised methodology that was 
effective for 2016 which provided for initial catch up adjustments for 
inflation in 2016, and requires adjustments for inflation to CMPs under 
a revised methodology for each year thereafter. The 2017 adjustments 
for inflation to CMPs to the Department of Commerce's CMPs were 
published in the Federal Register on December 28, 2016 and became 
effective January 15, 2017. The revised annual methodology provides for 
the improvement of the effectiveness of CMPs and to maintain their 
deterrent effect. Agencies' annual adjustments for inflation to CMPs 
shall take effect not later than January 15. The Department of 
Commerce's 2018 adjustments for inflation to CMPs apply only to CMPs 
with a dollar amount, and will not apply to CMPs written as functions 
of violations. The Department of Commerce's 2018 adjustments for 
inflation to CMPs apply only to those CMPs, including those whose 
associated violation predated such adjustment, which are assessed by 
the Department of Commerce after the effective date of the new CMP 
level.

DATES: This rule is effective January 15, 2018.

FOR FURTHER INFORMATION CONTACT: Stephen Kunze, Deputy Chief Financial 
Officer and Director for Financial Management, Office of Financial 
Management, at (202) 482-1207, Department of Commerce, 1401 
Constitution Avenue NW, Room D200, Washington, DC 20230. The Department 
of Commerce's Civil Monetary Penalty Adjustments for Inflation are 
available for downloading from the Department of Commerce, Office of 
Financial Management's website at the following address: http://www.osec.doc.gov/ofm/OFM_Publications.html.

SUPPLEMENTARY INFORMATION:

Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. 
L. 101-410; 28 U.S.C. 2461), as amended by the Debt Collection 
Improvement Act of 1996 (Pub. L. 104-134), provided for agencies' 
adjustments for inflation to CMPs to ensure that CMPs continue to 
maintain their deterrent value and that CMPs due to the Federal 
Government were properly accounted for and collected. On October 24, 
1996, November 1, 2000, December 14, 2004, December 11, 2008, and 
December 7, 2012, the Department of Commerce published in the Federal 
Register a schedule of CMPs adjusted for inflation as required by law.
    A CMP is defined as any penalty, fine, or other sanction that:
    1. Is for a specific monetary amount as provided by Federal law, or 
has a maximum amount provided for by Federal law; and,
    2. Is assessed or enforced by an agency pursuant to Federal law; 
and,
    3. Is assessed or enforced pursuant to an administrative proceeding 
or a civil action in the Federal courts.
    On November 2, 2015, the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (Section 701 of Pub. L. 114-74) 
further amended the Federal Civil Penalties Inflation Adjustment Act of 
1990 to improve the effectiveness of CMPs and to maintain their 
deterrent effect. This amendment (1) required agencies to adjust the 
CMP levels in effect as of November 2, 2015, with initial catch up 
adjustments for inflation through a final rulemaking to take effect no 
later than August 1, 2016; and (2) requires agencies to make subsequent 
annual adjustments for inflation to CMPs that shall take effect not 
later than January 15.
    The Department of Commerce's initial catch up adjustments for 
inflation to CMPs were published in the Federal Register on June 7, 
2016, and the new CMP levels became effective July 7, 2016. The 
Department of Commerce's 2017 adjustments for inflation to CMPs were 
published in the Federal Register on December 28, 2016, and the new CMP 
levels became effective January 15, 2017.
    The Department of Commerce's 2018 adjustments for inflation to CMPs 
apply only to CMPs with a dollar amount, and will not apply to CMPs 
written as functions of violations. These 2018 adjustments for 
inflation to CMPs apply only to those CMPs, including those whose 
associated violation predated such adjustment, which are assessed by 
the Department of Commerce after the effective date of the new CMP 
level.
    This regulation adjusts for inflation CMPs that are provided by law 
within the jurisdiction of the Department of Commerce. The actual CMP 
assessed for a particular violation is dependent upon a variety of 
factors. For example, the National Oceanic and Atmospheric 
Administration's (NOAA) Policy for the Assessment of Civil 
Administrative Penalties and Permit Sanctions (Penalty Policy), a 
compilation of NOAA internal guidelines that are used when assessing

[[Page 707]]

CMPs for violations for most of the statutes NOAA enforces, will be 
interpreted in a manner consistent with this regulation to maintain the 
deterrent effect of the CMPs. The CMP ranges in the Penalty Policy are 
intended to aid enforcement attorneys in determining the appropriate 
CMP to assess for a particular violation. The Penalty Policy is 
maintained and made available to the public on NOAA's Office of the 
General Counsel, Enforcement Section website at: http://www.gc.noaa.gov/enforce-office.html.
    The Department of Commerce's 2018 adjustments for inflation to CMPs 
set forth in this regulation were determined pursuant to the 
methodology prescribed by the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015, which requires the maximum 
CMP, or the minimum and maximum CMP, as applicable, to be increased by 
the cost-of-living adjustment. The term ``cost-of-living adjustment'' 
is defined by the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015. For the 2018 adjustments for inflation to 
CMPs, the cost-of-living adjustment is the percentage for each CMP by 
which the Consumer Price Index for the month of October 2017 exceeds 
the Consumer Price Index for the month of October 2016.

Classification

    Pursuant to 5 U.S.C. 553(b)B, there is good cause to issue this 
rule without prior public notice or opportunity for public comment 
because it would be impracticable and unnecessary. The Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 
701(b)) requires agencies to make annual adjustments for inflation to 
CMPs notwithstanding section 553 of title 5, United States Code. 
Additionally, the methodology used for adjusting CMPs for inflation is 
given by statute, with no discretion provided to agencies regarding the 
substance of the adjustments for inflation to CMPs. The Department of 
Commerce is charged only with performing ministerial computations to 
determine the dollar amounts of adjustments for inflation to CMPs. 
Accordingly, prior public notice and an opportunity for public comment 
are not required for this rule.

Paperwork Reduction Act

    The provisions of the Paperwork Reduction Act of 1995, Public Law 
104-13, 44 U.S.C. Chapter 35, and its implementing regulations, 5 CFR 
part 1320, do not apply to this rule because there are no new or 
revised recordkeeping or reporting requirements.

Regulatory Analysis

E.O. 12866, Regulatory Review

    This rule is not a significant regulatory action as that term is 
defined in Executive Order 12866.

Regulatory Flexibility Act

    Because notice of proposed rulemaking and opportunity for comment 
are not required pursuant to 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility act (5 U.S.C. 
601, et seq.) are inapplicable. Therefore, a regulatory flexibility 
analysis is not required and has not been prepared.

List of Subjects in 15 CFR Part 6

    Law enforcement, Civil monetary penalties.

     Dated: December 26, 2017.
Jennifer Ayers,
Acting Deputy Chief Financial Officer and Director for Financial 
Management, Department of Commerce.

Authority and Issuance

0
For the reasons stated in the preamble, the Department of Commerce 
revises 15 CFR part 6 to read as follows:

PART 6--CIVIL MONETARY PENALTY ADJUSTMENTS FOR INFLATION

Sec.
6.1 Definitions.
6.2 Purpose and scope.
6.3 2018 Adjustments for inflation to civil monetary penalties.
6.4 Effective date of 2018 adjustments for inflation to civil 
monetary penalties.
6.5 Subsequent annual adjustments for inflation to civil monetary 
penalties.

    Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); 
Pub. L. 104-134, 110 Stat. 1321 (31 U.S.C. 3701 note); Sec. 701 of 
Pub. L. 114-74, 129 Stat. 599 (28 U.S.C. 1 note; 28 U.S.C. 2461 
note).


Sec.  6.1  Definitions.

    (a) The Department of Commerce means the United States Department 
of Commerce.
    (b) Civil Monetary Penalty means any penalty, fine, or other 
sanction that:
    (1) Is for a specific monetary amount as provided by Federal law, 
or has a maximum amount provided for by Federal law; and
    (2) Is assessed or enforced by an agency pursuant to Federal law; 
and
    (3) Is assessed or enforced pursuant to an administrative 
proceeding or a civil action in the Federal courts.


Sec.  6.2  Purpose and scope.

    The purpose of this part is to make adjustments for inflation to 
civil monetary penalties, as required by the Federal Civil Penalties 
Inflation Adjustment Act of 1990 (Pub. L. 101-410; 28 U.S.C. 2461), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-
134) and the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (Section 701 of Pub. L. 114-74), of each civil 
monetary penalty provided by law within the jurisdiction of the United 
States Department of Commerce (Department of Commerce).


Sec.  6.3  Adjustments for inflation to civil monetary penalties.

    The civil monetary penalties provided by law within the 
jurisdiction of the Department of Commerce, as set forth in paragraphs 
(a) through (f) of this section, are hereby adjusted for inflation in 
2018 in accordance with the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended, from the amounts of such civil 
monetary penalties that were in effect as of January 15, 2017, to the 
amounts of such civil monetary penalties, as thus adjusted. The year 
stated in parenthesis represents the year that the civil monetary 
penalty was last set by law or adjusted by law (excluding adjustments 
for inflation).
    (a) United States Department of Commerce. (1) 31 U.S.C. 3802(a)(1), 
Program Fraud Civil Remedies Act of 1986 (1986), violation, maximum 
from $10,957 to $11,181.
    (2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986 
(1986), violation, maximum from $10,957 to $11,181.
    (3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation, 
minimum from $10,957 to $11,181; maximum from $21,916 to $22,363.
    (b) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), 
Fastener Quality Act (1990), violation, maximum from $45,268 to 
$46,192.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $36,849 to $37,601.
    (3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention 
Implementation Act (1998), violation, maximum from $7,370 to $7,520.
    (4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act 
(2007), violation, maximum from $289,238 to $295,141.
    (5) 22 U.S.C. 8142(a), United States Additional Protocol 
Implementation Act (2006), violation, maximum from $29,946 to $30,557.
    (c) Census Bureau. (1) 13 U.S.C. 304, Collection of Foreign Trade 
Statistics (2002), each day's delinquency of a violation; total of not 
to exceed maximum violation, from $1,333 to

[[Page 708]]

$1,360; maximum per violation, from $13,333 to $13,605.
    (2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics 
(2002), violation, maximum from $13,333 to $13,605.
    (d) Economics and Statistics Administration. (1) 22 U.S.C. 3105(a), 
International Investment and Trade in Services Act (1990); failure to 
furnish information, minimum from $4,527 to $4,619; maximum from 
$45,268 to $46,192.
    (e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign 
Trade Zone (1934), violation, maximum from $2,795 to $2,852.
    (2) 19 U.S.C. 1677f(f)(4), U.S.-Canada FTA Protective Order (1988), 
violation, maximum from $201,106 to $205,211.
    (f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C. 
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation, 
maximum from $11,052 to $11,278.
    (2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010 
(2010), violation, maximum from $11,052 to $11,278.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), 
violation, maximum from $231,391 to $236,114.
    (4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from 
$1,652 to $1,686.
    (5) 16 U.S.C. 957(d), (e), and (f), Tuna Conventions Act of 1950 
(1962):
    (i) Violation of 16 U.S.C. 957(a), maximum from $82,579 to $84,264.
    (ii) Subsequent violation of 16 U.S.C. 957(a), maximum from 
$177,863 to $181,493.
    (iii) Violation of 16 U.S.C. 957(b), maximum from $2,795 to $2,852.
    (iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $16,516 
to $16,853.
    (v) Violation of 16 U.S.C. 957(c), maximum from $355,726 to 
$362,986.
    (6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation, 
maximum from $181,071 to $184,767.
    (7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation, 
maximum from $181,071 to $184,767.
    (8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\ 
violation, maximum from $181,071 to $184,767.
    (9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988), 
violation, maximum from $502,765 to $513,026.
    (10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983), 
violation, maximum from $23,933 to $24,421.
    (11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1972), violation, maximum from $27,950 to $28,520.
    (12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information 
Act,\4\ violation, maximum from $181,071 to $184,767.
    (13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
violation, maximum from $170,472 to $173,951.
    (14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
    (i) Violation as specified (1988), maximum from $50,276 to $51,302.
    (ii) Violation as specified (1988), maximum from $24,132 to 
$24,625.
    (iii) Otherwise violation (1978), maximum from $1,652 to $1,686.
    (15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), violation, maximum from $181,071 to $184,767.
    (16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources 
Convention Act of 1984,\5\ violation, maximum from $181,071 to 
$184,767.
    (17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\ 
violation, maximum from $181,071 to $184,767.
    (18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
    (i) 16 U.S.C. 3373(a)(1), violation, maximum from $25,881 to 
$26,409.
    (ii) 16 U.S.C. 3373(a)(2), violation, maximum from $647 to $660.
    (19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 
1982,\7\ violation, maximum from $181,071 to $184,767.
    (20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\ 
violation, maximum from $181,071 to $184,767.
    (21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 
1986 (1986); violation, minimum from $1,096 to $1,118; maximum from 
$10,957 to $11,181.
    (22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of 
1992,\9\ violation, maximum from $181,071 to $184,767.
    (23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act,\10\ violation, maximum from $181,071 to $184,767.
    (24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation 
Act,\11\ violation, maximum from $181,071 to $184,767.
    (25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995 
(1995), violation, maximum from $157,274 to $160,484.
    (26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995,\12\ violation, maximum from $181,071 to $184,767
    (27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries 
Convention Implementation Act,\13\ violation, maximum from $181,071 to 
$184,767.
    (28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\ 
violation, maximum from $181,071 to $184,767.
    (29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
    (i) Violation, maximum from $27,950 to $28,520.
    (ii) Subsequent violation, maximum from $82,579 to $84,264.
    (30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), violation, maximum, from $71,264 to $72,718.
    (31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980 
(1980), violation, maximum from $71,264 to $72,718.
    (32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\ 
violation, maximum from $181,071 to $184,767.
    (33) 16 U.S.C. 7407(b), Port State Measures Agreement Act of 
2015,\16\ violation, maximum from $181,071 to $184,767.
    (34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium 
Protection Act,\17\ violation, maximum from $181,071 to $184,767.
    (35) 16 U.S.C. 7705, Ensuring Access to Pacific Fisheries Act,\18\ 
(newly reported penalty), violation, maximum $184,767.
    (36) 16 U.S.C. 7805, Ensuring Access to Pacific Fisheries Act,\19\ 
(newly reported penalty), violation, maximum $184,767.

------------
    \1\ This National Oceanic and Atmospheric Administration maximum 
civil monetary penalty, as prescribed by law, is the maximum civil 
penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation 
and Management Act civil monetary penalty (item (15)).
    \2\ See footnote 1.
    \3\ See footnote 1.
    \4\ See footnote 1.
    \5\ See footnote 1.
    \6\ See footnote 1.
    \7\ See footnote 1.
    \8\ See footnote 1.
    \9\ See footnote 1.
    \10\ See footnote 1.
    \11\ See footnote 1.
    \12\ See footnote 1.
    \13\ See footnote 1.
    \14\ See footnote 1.
    \15\ See footnote 1.
    \16\ See footnote 1.
    \17\ See footnote 1.
    \18\ See footnote 1.
    \19\ See footnote 1.


Sec.  6.4   Effective date of adjustments for inflation to civil 
monetary penalties.

    The Department of Commerce's 2018 adjustments for inflation made by 
Sec.  6.3, of the civil monetary penalties there specified, are 
effective on January 15, 2018, and said civil monetary penalties, as 
thus adjusted by the adjustments for inflation made by Sec.  6.3, apply 
only to those civil monetary penalties, including those whose 
associated

[[Page 709]]

violation predated such adjustment, which are assessed by the 
Department of Commerce after the effective date of the new civil 
monetary penalty level, and before the effective date of any future 
adjustments for inflation to civil monetary penalties thereto made 
subsequent to January 15, 2018 as provided in Sec.  6.5.


Sec.  6.5   Subsequent annual adjustments for inflation to civil 
monetary penalties.

    The Secretary of Commerce or his or her designee by regulation 
shall make subsequent adjustments for inflation to the Department of 
Commerce's civil monetary penalties annually, which shall take effect 
not later than January 15, notwithstanding section 553 of title 5, 
United States Code.

[FR Doc. 2017-28230 Filed 1-5-18; 8:45 am]
 BILLING CODE 3510-DP-P