00-28007. Civil Monetary Penalties; Adjustment for Inflation

AGENCY:

Office of the Secretary, Commerce.

ACTION:

Final rule.

SUMMARY:

This final rule is being issued to adjust each civil monetary penalty provided by law within the jurisdiction of the Department of Commerce (the Department). The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, requires the head of each agency to adjust its civil monetary penalties for inflation no later than October 23, 1996, and at least once every four years thereafter. These inflation adjustments will apply only to violations that occur after the effective date of this rule.

DATES:

This rule is effective November 1, 2000.

ADDRESSES:

Office of Financial Management, Department of Commerce, 14th and Constitution Avenue, MS 6827, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

Lisa Casias, 202-482-0766.

SUPPLEMENTARY INFORMATION:

The Federal Civil Penalties Inflation Adjustment Act of 1990, (Pub. L. 101-410), provided for the regular evaluation of civil monetary penalties to ensure that they continued to maintain their deterrent value and that penalty amounts due to the Federal Government were properly accounted for and collected. On April 26, 1996, the Federal Civil Penalties Inflation Adjustment Act of 1990 was amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to require each agency to issue regulations to adjust its civil monetary penalties (CMP) for inflation at least every four years. The amendment further provides that any resulting increases in a CMP due to the inflation adjustment should apply only to the violations that occur subsequent to the date of the publication in the Federal Register of the increased amount of the CMP. The first inflation adjustment of any penalty shall not exceed ten percent of such penalty.

On October 24, 1996, the Commerce Department published in the Federal Register a schedule of CMP adjusted for inflation as required by law. In one instance, the initial CMP inflation adjustment was zero, and was published accordingly. In two cases the adjustment was nine percent. All other CMP adjusted at that time were increased by the ten percent maximum amount. In the October 24, 1996, publication, the following then existing CMP were not included:

15 U.S.C. 5408 (b)(1), Fastener Quality Act

16 U.S.C. 1174 (b), Fur Seal Act Amendments of 1983

16 U.S.C. 1385 (e), Dolphin Protection Consumer Information Act

16 U.S.C. 2465 (a), Antarctic Protection Act of 1990

16 U.S.C. 4016 (b)(1)(B), Fish and Seafood Promotion Act of 1986

16 U.S.C. 5010 (a), North Pacific Anadromous Stocks Act of 1992

16 U.S.C. 5103 (b)(2), Atlantic Coastal Fisheries Cooperative Management Act

16 U.S.C. 5507 (a), High Seas Fishing Compliance Act of 1995

16 U.S.C. 5606 (b), Northwest Atlantic Fisheries Convention Act of 1995

22 U.S.C. 1978 (e), Fishermen's Protective Act of 1967

By this publication CMP are again being adjusted for inflation as prescribed by law. In the case of those CMP listed above that were not previously adjusted, the CMP adjustment in this document is subject to the initial inflation adjustment limitation of ten percent, and each is being adjusted by that amount. Next, in the October 24, 1996, publication, the CMP included in the Atlantic Striped Bass Conservation Act (16 U.S.C. 1851 Note (Sec. 5)(c)(1)), was adjusted from $1,000 to $1,100. Thus, it is no longer subject to the ten percent limitation for first time adjustments. However, in 1997, this CMP was legislatively changed to be the same amount as the CMP established in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1858(a)), which in 1997 was $110,000. As a consequence, the CMP for the Atlantic Striped Bass Conservation Act is being adjusted in this publication from the 1997 value of $110,000 to $114,000. Third, several new CMP regarding the Chemical Weapons Convention (CWC) are included in this publication and are being adjusted, though each adjustment is less than the ten percent limitation applicable to first time adjustments. In one instance, the CMP for import restriction violations under the CWC, the initial inflation adjustment is zero percent. Finally, two CMP for violations of the Public Works and Economic Development Act (PWEDA), for false statements and embezzlement, respectively, have been deleted. These CMP were deleted due to an amendment to PWEDA that made the penalties for these actions criminal.

A civil monetary penalty 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.

This regulation adjusts the civil penalties that are established by law and assessed or enforced by the Department.

The actual penalty assessed for a particular violation is dependent upon a variety of factors. For example, the National Oceanic and Atmospheric Administration (NOAA) Civil Administrative Penalty Schedule (the Schedule), a compilation of internal guidelines that are used when assessing penalties for violations for most of the statutes NOAA enforces, will be adjusted in a manner consistent with this regulation to maintain the deterrent effect of the penalties recommended therein. The penalty ranges in the Schedule are intended to aid enforcement attorneys in determining the appropriate penalty to assess for a particular violation. Pursuant to the notice published in the Federal Register (59 FR 19160, April 22, 1994), the Schedule is maintained and made available for inspection by the public at specific locations.

The inflation adjustment was determined pursuant to the methodology prescribed by Public Law 101-410, 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” was defined in Public Law 104-34 to mean the percentage for each CMP by which the Consumer Price Index (CPI) for June of the calendar year preceding the adjustment exceeds the CPI for the month of June of the calendar year in which the amount of such CMP was last set or adjusted pursuant to law. For the purpose of computing the inflation adjustments, the CPI for June of the calendar year preceding the adjustment means the CPI for June of 1999.

The raw inflation adjustment amounts are required by Public Law 101-410 to be rounded as follows:

1. If the increase is greater than $0 and less than or equal to $100, round to the nearest multiple of $10.

2. If the increase is greater than $100 and less than or equal to $1,000, round to nearest multiple of $100.

3. If the increase is greater than $1,000 and less than or equal to $10,000, round to the nearest multiple of $1,000.

4. If the increase is greater than $10,000 and less than or equal to $100,000, round to the nearest multiple of $5,000.

5. If the increase is greater than $100,000 and less than or equal to $200,000, round to the nearest multiple of $10,000.

6. If the increase is greater than $200,000, round to the nearest multiple of $25,000.

Public Law 101-410 requires each rounded increase to be added to the minimum or maximum penalty amount being adjusted, and the total is the amount of such penalty, as adjusted, subject to the ten percent limitation provided by Public Law 104-134 for the First Adjustments.

Rulemaking Requirements

It has been determined that this rule is not significant for purposes of Executive Order 12866. The Department for good cause finds that notice and opportunity for comment and the 30-day delayed effective date are unnecessary (5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3)) for this rulemaking. It is unnecessary to ask for notice and comment and delay the effective date because the Debt Collection Improvement Act of 1996 (the Act) requires the head of each agency to adjust its civil monetary penalties for inflation by regulation no later than October 23, 1996, and at least every four years thereafter, and the Federal Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by the Act, states how to calculate the inflation adjustment. This rule merely adjusts the Department's CMP according to the statutory requirements. The Department does not have any discretion in making the adjustments.

Because notice and opportunity for comment are not required by 5 U.S.C. 553, or any other law, a Regulatory Flexibility Analysis is not required and was not prepared for purposes of the Regulatory Flexibility Act. This rule does not contain information collection requirements for purposes of the Paperwork Reduction Act.

List of Subjects 15 CFR Part 6

• Law enforcement
• Penalties

James L. Taylor,

Director for Financial Management and Deputy Chief Financial Officer.

For the reasons set forth in the preamble, subtitle A of Title 15 of the Code of Federal Regulations is amended as follows:

PART 6—CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS

1. The authority citation for Part 6 continues to read as follows:

Authority: Sec. 4, as amended, and sec. 5, Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 104-134, 110 Stat. 1321, 28 U.S.C. 2461 note.

2. Section 6.4 is revised to read as follows:

§ 6.4

Adjustments to penalties.

The civil monetary penalties provided by law within the jurisdiction of the respective agencies or bureaus of the Department, as set forth below in this section, are hereby adjusted in accordance with the inflation adjustment procedures prescribed in Section Five, from the amounts of such penalties in effect prior to November 1, 2000, to the amounts of such penalties, as thus adjusted.

(a) Bureau of Export Administration.

(1) 15 U.S.C. 5408(b)(1), Fastener Quality Act, violation: from $25,000 to $27,500.

(2) 50 U.S.C. 1705(b), International Emergency Economic Powers Act, as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14, 1994), Export Administration Regulations violation: from $11,000 to $12,000.

(3) 50 U.S.C. 1707(b), International Emergency Economic Powers Act, as invoked by E.O. 12924 (August 19, 1994) and E.O. 12938 (November 14, 1994), Chemical Weapons Convention Implementation Act (See E.O. 13128, June 25, 1999), Chemical Weapons Convention, Import restriction violation: from $11,000 to $11,000.

(4) 22 U.S.C. 7661(a)(1)(A), Chemical Weapons Convention Implementation Act, Prohibited acts relating to inspection violation: from $25,000 to $25,500.

(5) 22 U.S.C. 7661(a)(1)(B), Chemical Weapons Convention Implementation Act, Record keeping violation: from $5,000 to $5,100.

(6) 50 U.S.C. app. 2410(c), Export Administration Act, See E.O. 12851(June 11, 1993), Non-national security violation: from $11,000 to $12,000.

(7) 50 U.S.C. app. 2410(c), Export Administration Act, See E.O. 12851 (June 11, 1993), and Section 38 Arms Export Control Act, National security violation: from $110,000 to $120,000.

(b) Economic Development Administration.

(1) 19 U.S.C. 2349, Trade Act of 1974, False statement, etc.: from $5,500 to $6,000.

(2) [Reserved]

(c) Economics and Statistics Administration (ESA)/Census.

(1) 13 U.S.C. 304, Delinquency on delayed filing of export documentation: from $110 per/day (up to $1,100) to $120 per/day (up to $1,200).

(2) 13 U.S.C. 305, Collection of foreign trade statistics violation: from $1,100 to $1,200.

(d) ESA/Bureau of Economic Analysis.

(1) 22 U.S.C. 3105(a), International Investment and Trade in Services Act, Failure to furnish information: from a minimum of $2,750 to $3,000, and from a maximum of $27,500 to $30,000.

(2) [Reserved]

(e) Import Administration.

(1) 19 U.S.C. 81s, Foreign Trade Zone violation: from $1,100 to $1,200.

(2) 19 U.S.C. 1677f(f)(4), North American Free Trade Agreement Protective Order violation: from $110,000 to $120,000.

(f) National Oceanic and Atmospheric Administration.

(1) 15 U.S.C. 5623(a)(3), Land Remote Sensing Policy Act of 1992, violation: from $10,900 to $11,900.

(2) 15 U.S.C. 5658(c), Land Remote Sensing Policy Act of 1992, violation: from $10,900 to $11,900.

(3) 16 U.S.C. 773f(3), Northern Pacific Halibut Act of 1982, violation: from $27,500 to $30,000.

(4) 16 U.S.C. 783, Sponge Act (1914), violation: from $550 to $600.

(5) 16 U.S.C. 957, Tuna Conventions Act of 1950 (1962):

(i) Violation/subsection c: from $110,000 to $120,000.

(ii) Violation/subsection a: from $27,500 to $30,000.

(iii) Violation/subsection b: from $1,100 to $1,200.

(iv) Subsequent violation/subsection a: from $55,000 to $60,000

(v) Subsequent violation/subsection b: from $5,500 to $6,000

(6) 16 U.S.C. 971e(e)(1), Atlantic Tunas Convention Act of 1975 (1995), violation: from $100,000 to $109,000.

(7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984:

(i) Violation/subsections (a)(1)-(3): from $27,500 to $30,000.

(ii) Violation/subsections (a)(4)-(5): from $5,500 to $6,000.

(iii) Subsequent violation/subsections (a)(1)-(3): from $55,000 to $60,000.

(iv) Subsequent violation/subsections (a)(4)-(5): from $5,500 to $6,000.

(v) Violation/subsection (a)(6): from $110,000 to $120,000.

(8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, violation: from $275,000 to $300,000.

(9) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983, violation: from $10,000 to $11,000.

(10) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972, violation: from $11,000 to $12,000.

(11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act (1990), violation: from $100,000 to $110,000.

(12) 16 U.S.C. 1437(c)(1), National Marine Sanctuaries Act (1992), violation: from $109,000 to $119,000.

(13) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:

(i) Knowing violations (1988): from $27,500 to $30,000.

(ii) Otherwise violations (1978): from $550 to $600.

(iii) Other knowing violations (1988): from $13,200 to $14,000.

(14) 16 U.S.C. 1851 Note (Sec. 5)(c)(1), Atlantic Striped Bass Conservation Act (1997), violation: from $110,000 to $114,000.

(15) 16 U.S.C. 1858 (a), Magnuson-Stevens Fishery Conservation and Management Act (1990), violation: from $110,000 to $120,000.

(16) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources Convention Act of 1984:

(i) Knowing violation: from $11,000 to $12,000.

(ii) Violation: from $5,500 to $6,000.

(17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990:

(i) Knowing violation: from $10,000 to $11,000.

(ii) Violation: from $5,000 to $5,500.

(18)16 U.S.C. 3373(a), Lacey Act Amendments of 1981:

(i) Other than marking violation: from $11,000 to $12,000.

(ii) Marking violation: from $275 to $300.

(iii) Sale and purchase violation (1988): from $11,000 to $12,000.

(iv) False labeling violation (1988): from $11,000 to $12,000.

(19) 16 U.S.C. 3606(b), Atlantic Salmon Convention Act of 1982 (1990), violation: from $110,000 to $120,000.

(20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990), violation: from $110,000 to $120,000.

(21) 16 U.S.C. 4016(b)(1)(B) Fish and Seafood Promotion Act of 1986, violation: from $500 (up to $5,000) to $550 (up to $5,500).

(22) 16 U.S.C. 5010(a), North Pacific Anadromous Stocks Act of 1992, violation: from $100,000 to $110,000.

(23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative Management Act (1993), violation: from $100,000 to $110,000.

(24) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995, violation: from $100,000 to $109,000.

(25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act of 1995, violation: from $100,000 to $109,000.

(26) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):

(i) Violation: from $10,000 to $11,000

(ii) Subsequent violation: from $25,000 to $27,500.

(27) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act (1980), violation: from $27,500 to $30,000.

(28) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of 1980, violation: from $27,500 to $30,000.

3. Section 6.5 is revised to read as follows:

§ 6.5

Effective date of adjustments.

The inflation adjustments made by § 6.4 of this part, of the penalties there specified, are effective on November 1, 2000, and said penalties, as thus adjusted by the inflation adjustments made by § 6.4 of this part, shall apply only to violations occurring after November 1, 2000, and before the effective date of any future inflation adjustment thereto made subsequent to November 1, 2000, as provided in § 6.6 of this part.