97-27593. Longshore Act Civil Money Penalties Adjustment  

  • [Federal Register Volume 62, Number 201 (Friday, October 17, 1997)]
    [Rules and Regulations]
    [Pages 53955-53957]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-27593]
    
    
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    DEPARTMENT OF LABOR
    
    Employment Standards Administration
    
    20 CFR Part 702
    
    RIN 1215-AB17
    
    
    Longshore Act Civil Money Penalties Adjustment
    
    AGENCY: Office of Workers' Compensation Program, Employment Standards 
    Administration, Labor.
    
    ACTION: Final rule.
    
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    SUMMARY: On July 2, 1997, the Department of Labor published a proposal 
    to amend various provisions of the regulations implementing the 
    Longshore and Harbor Workers' Compensation Act (LHWCA). More 
    specifically, the amendments, which are now being published in final 
    with only minor word changes in Secs. 702.204 and 702.236, will 
    increase the maximum civil penalties that may be assessed under the 
    LHWCA as required by the Federal Civil Penalties Inflation Adjustment 
    Act of 1990 (FCPIAA), as amended by the Debt Collection Improvement Act 
    of 1996 (DCIA).
    
    EFFECTIVE DATE: The rule is effective on November 17, 1997.
    
    FOR FURTHER INFORMATION CONTACT:
    Joseph F. Olimpio, Director for Longshore and Harbor Workers' 
    Compensation, Employment Standards Administration, Room C-4315, Frances 
    Perkins Building, 200 Constitution Avenue, NW., Washington, DC 20210; 
    Telephone (202) 219-8721.
    
    SUPPLEMENTARY INFORMATION: The LHWCA authorizes the assessment of a 
    civil money penalty in three situations: (1) Where an employer fails to 
    file a report within sixteen days of the final payment of compensation, 
    it shall be assessed a $100.00 civil penalty (LHWCA, section 14(g)); 
    (2) where an employer, insurance carrier, or self-insured employer 
    knowingly and willfully fails to file any report required by section 
    30, or knowingly or willfully makes a false statement or 
    misrepresentation in any required report, the employer, insurance 
    carrier, or self-insured employer shall be assessed a civil penalty not 
    to exceed $10,000.00 (LHWCA, section 30(e)); and (3) where an employer 
    is found to have discriminated against an employee because the employee 
    had claimed or attempted to claim compensation, or has testified or is 
    about to testify in proceedings under the LHWCA, the employer shall be 
    liable for a civil penalty of not less than $1,000.00 or more than 
    $5,000.00 (LHWCA, section 49). The DCIA, amending the FCPIAA, requires 
    each agency to issue regulations adjusting the amount of civil money 
    penalties they may levy. The DCIA requires that the civil money 
    penalties be adjusted by a cost-of-living increase equal to the 
    percentage, if any, by which the Department of Labor's Consumer Price 
    Index for all-urban customers (CPI) for June of the calendar year 
    preceding the adjustment exceeds the June CPI for the calendar year in 
    which the civil penalty amount was last set or adjusted. Due to 
    inflation since the LHWCA civil money penalties were last set or 
    adjusted, the increase will, in every case, be the maximum 10% 
    initially permitted under the DCIA. The adjusted civil penalties will 
    apply only to violations occurring after the regulations become 
    effective.
        The Department did not receive any comments concerning the 
    substance of its proposal. It did, however, receive a letter from the 
    Chief Counsel of the Office of Advocacy at the Small Business 
    Administration requesting clarification on whether the expected 
    increase in the amount to be collected under the revised regulations is 
    $2,500.00 in the aggregate, or $2,500.00 per case. Under the revised 
    rules, the Department expects to collect an additional $2,500.00 for 
    all cases in
    
    [[Page 53956]]
    
    which civil money penalties are assessed. This estimate is based on an 
    analysis of the penalties collected in 1995 and 1996. During that 
    period the total civil penalties collected for all cases was 
    $50,000.00, or an average of $25,000.00 for each year. Each year 
    penalties were collected from an average of 206 cases, so that the 
    average penalty in each case was $121.36. Thus, assuming the maximum 10 
    percent increase is collected in each case under the final rule, the 
    average increase for each individual case is estimated to be $12.14.
    
    Executive Order 12866
    
        The Department has determined that this regulatory action is not a 
    ``significant'' rule within the meaning of Executive Order 12866, 
    because it is not likely to result in: (1) An annual effect on the 
    economy of $100 million or more, or an adverse and material effect on a 
    sector of the economy, productivity, competition, jobs, the 
    environment, public health or safety, or State, local or tribal 
    governments or communities; (2) the creation of a serious inconsistency 
    or interference with an action taken or planned by another agency; (3) 
    a material alteration in the budgetary impacts of entitlement, grants, 
    user fees, or loan programs or the rights and obligations of recipients 
    thereof; or (4) the raising of novel legal or policy issues arising out 
    of legal mandates, the President's priorities, or the principles set 
    forth in Executive Order 12866.
    
    Regulatory Flexibility Act
    
        The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires each 
    agency to perform an initial regulatory flexibility analysis for all 
    proposed rules unless the head of the agency certifies that the rule 
    will not, if promulgated, have a significant economic impact on a 
    substantial number of small entities. Small entities include small 
    businesses, organizations, and governmental jurisdictions. This rule 
    does no more than mechanically increase certain statutory civil money 
    penalties to account for inflation, pursuant to specific directions set 
    forth in the FCPIAA, as amended. The statute specifies the procedure 
    for calculating the adjusted civil money penalties and does not allow 
    the Department to vary the calculation to minimize the effect on small 
    entities. Moreover, as noted above, the total additional amount 
    collected from all projected cases will not exceed $2,500.00. 
    Therefore, the Assistant Secretary hereby certifies that the rule will 
    not have a significant impact on a substantial number of small entities 
    within the meaning of the Regulatory Flexibility Act.
    
    Unfunded Mandates Reform Act
    
        For purposes of the Unfunded Mandates Reform Act of 1985, as well 
    as E.O. 12875, this rules does not include any federal mandate that may 
    result in increased expenditures by State, local or tribal government, 
    or increased expenditures by the private sector of more than $100 
    million.
    
    Paperwork Reduction Act
    
        The rule does not contain any collection of information 
    requirements.
    
    Submission to Congress and the General Accounting Office
    
        In accordance with the Small Business Regulatory Enforcement Act of 
    1996, the Department will submit to each House of the Congress and to 
    the Comptroller General a report regarding the issuance of today's 
    final rule prior to the effective date set forth at the outset of this 
    notice. The report will note that this rule does not constitute a 
    ``major rule'' as defined by 5 U.S.C. 804(2).
    
    List of Subjects in 20 CFR Part 702
    
        Administrative practice and procedure, Claims, Insurance, 
    Longshoremen, Vocational rehabilitation, and Workers' Compensation.
    
        For the reasons set forth in the preamble, part 702 of chapter VI 
    of title 20, Code of Federal Regulations, is amended as follows:
    
    PART 702--ADMINISTRATION AND PROCEDURE
    
        1. The authority citation for part 702 is revised to read as 
    follows:
    
        Authority: 5 U.S.C. 301, 8171 et seq., Reorganization Plan No. 6 
    of 1950, 15 FR 3174, 3 CFR 1949-1953, Comp., p. 1004, 64 Stat. 1263; 
    28 U.S.C. 2461, 33 U.S.C. 930, 36 D.C. Code 501 et seq., 42 U.S.C. 
    1651 et seq., 43 U.S.C. 1331; Secretary's Order 5-96, 62 FR 107.
    
        2. Section 702.204 is revised to read as follows:
    
    
    Sec. 702.204   Employer's report; penalty for failure to furnish and or 
    falsifying.
    
        Any employer, insurance carrier, or self-insured employer who 
    knowingly and willfully fails or refuses to send any report required by 
    Sec. 702.201, or who knowingly or willfully makes a false statement or 
    misrepresentation in any report, shall be subject to a civil penalty 
    not to exceed $10,000.00 for each such failure, refusal, false 
    statement, or misrepresentation. Provided, however, that for any 
    violations occurring on or after November 17, 1997 the maximum civil 
    penalty may not exceed $11,000.00. The district director has the 
    authority and responsibility for assessing a civil penalty under this 
    section.
        3. Section 702.236 is revised to read as follows:
    
    
    Sec. 702.236   Penalty for failure to report termination of payments.
    
        Any employer failing to notify the district director that the final 
    payment of compensation has been made as required by Sec. 702.235 shall 
    be assessed a civil penalty in the amount of $100.00. Provided, 
    however, that for any violation occurring on or after November 17, 1997 
    the civil penalty will be $110.00. The district director has the 
    authority and responsibility for assessing a civil penalty under this 
    section.
        4. Paragraph (a) of Sec. 702.271 is revised to read as follows:
    
    
    Sec. 702.271   Discrimination against employees who bring proceedings, 
    prohibition and penalty.
    
        (a)(1) No employer or its duly authorized agent may discharge or in 
    any manner discriminate against an employee as to his/her employment 
    because that employee: (i) Has claimed or attempted to claim 
    compensation under this Act; or (ii) has testified or is about to 
    testify in a proceeding under this Act. To discharge or refuse to 
    employ a person who has been adjudicated to have filed a fraudulent 
    claim for compensation or otherwise made a false statement or 
    misrepresentation under section 31(a)(1) of the Act, 33 U.S.C. 
    931(a)(1), is not a violation of this section.
        (2) Any employer who violates this section shall be liable to a 
    penalty of not less that $1,000.00 or more than $5,000.00 to be paid 
    (by the employer alone, and not by a carrier) to the district director 
    for deposit in the special fund described in section 44 of the Act, 33 
    U.S.C. 944; and shall restore the employee to his or her employment 
    along with all wages lost due to the discrimination unless the employee 
    has ceased to be qualified to perform the duties of employment. 
    Provided however, that for any violation occurring on or after November 
    17, 1997 the employer shall be liable to a penalty of not less than 
    $1,100.00 or more than $5,500.00.
    * * * * *
    
    [[Page 53957]]
    
        Signed at Washington, D.C., this 14th day of October 1997.
    Bernard E. Anderson,
    Assistant Secretary for Employment Standards.
    Shelby Hallmark,
    Acting Director, Office of Workers' Compensation Programs.
    [FR Doc. 97-27593 Filed 10-16-97; 8:45 am]
    BILLING CODE 4510-27-M
    
    
    

Document Information

Effective Date:
11/17/1997
Published:
10/17/1997
Department:
Employment Standards Administration
Entry Type:
Rule
Action:
Final rule.
Document Number:
97-27593
Dates:
The rule is effective on November 17, 1997.
Pages:
53955-53957 (3 pages)
RINs:
1215-AB17: Civil Money Penalties Adjustment of the Longshore Act
RIN Links:
https://www.federalregister.gov/regulations/1215-AB17/civil-money-penalties-adjustment-of-the-longshore-act
PDF File:
97-27593.pdf
CFR: (4)
20 CFR 702.201
20 CFR 702.204
20 CFR 702.236
20 CFR 702.271