E8-29263. 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, required the head of each agency to adjust its civil monetary penalties (CMP) for inflation no later than October 23, 1996, and requires them to make adjustments 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 December 11, 2008.

ADDRESSES:

Office of General Counsel, Department of Commerce, 1401 Constitution Avenue, NW., MS 5876, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT:

Peter Robbins, [phone].

SUPPLEMENTARY INFORMATION:

The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410) provided for the regular evaluation of CMPs 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 CMPs for inflation at least every four years. The amendment further provided 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 and November 1, 2000, and again on December 14, 2004, the Department published in the Federal Register a schedule of CMP adjusted for inflation as required by law. By this publication, CMPs are again being adjusted for inflation as prescribed by law.

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 interpreted 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 104-134 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 2007.

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 adjustment.

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 is unnecessary for this rulemaking pursuant to 5 U.S.C. 553(b)(B). It is unnecessary to ask for notice and comment because the Debt Collection Improvement Act of 1996 (the Act) required the head of each agency to adjust its civil monetary penalties 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 adjustments, making such adjustments wholly non-discretionary. This rule merely adjusts the Department's CMP according to the statutory requirements. For the same reasons, there exists good cause to waive the thirty day delay in effectiveness of the rule, pursuant to 5 U.S.C. 553(d)(3).

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 none was prepared. This rule does not contain information collection requirements for purposes of the Paperwork Reduction Act.

List of Subjects in 15 CFR Part 6

• Law enforcement
• Penalties

Lisa Casias,

Deputy Chief Financial Officer and Director for Financial Management.

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 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 5, Pub. L. 101-410, from the amounts of such penalties in effect prior to December 11, 2008, to the amounts of such penalties, as thus adjusted, except for the penalties stated in paragraphs (e)(26) and (e)(27), which became effective on January 12, 2007, and except for the penalties stated in paragraphs (a)(4) and (e)(3) which became adjusted on October 16, 2007 and January 12, 2007, respectively.

(a) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1), Fastener Quality Act—Violation, from $27,500 to $32,500.

(2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention Implementation Act—Inspection Violation, from $25,000 to $25,000.

(3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention Implementation Act—Record Keeping Violation, from $5,000 to $5,000.

(4) 50 U.S.C. 1705(a), International Emergency Economic Powers Act (2007)—Violation, from $50,000 to $250,000.

(b) Bureau of the Census. (1) 13 U.S.C. 304, Collection of Foreign Trade Statistics—Delinquency on Delayed Filing of Export Documentation; maximum penalty for each day's delinquency, from $1,000 to $1,000; maximum per violation, from $10,000 to $10,000.

(2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics—Violations, from $10,000 to $10,000.

(c) Economics and Statistics Administration. 22 U.S.C. 3105(a), International Investment and Trade in Services Act—Failure to Furnish Information; minimum, from $2,500 to $2,500; maximum, from $27,500 to $32,500.

(d) International Trade Administration. (1) 19 U.S.C. 81s, Foreign Trade Zone—Violation, from $1,100 to $1,100.

(2) 16 U.S.C. 1677(f)(4), U.S.-Canada FTA Protective Order—Violation, from $120,000 to $130,000.

(e) National Oceanic and Atmospheric Administration. (1) 15 U.S.C. 5623(a)(3), Land Remote Sensing Policy Act of 1992, from $11,000 to $11,000.

(2) 15 U.S.C. 5658(c), Land Remote Sensing Policy Act of 1992, from $11,000 to $11,000.

(3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007), from $27,500 to $200,000.

(4) 16 U.S.C. 783, Sponge Act (1914), from $550 to $650.

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

(i) Violation/Subsection (a), from $27,500 to $32,500.

(ii) Subsequent Violation/Subsection (a), from $65,000 to $70,000.

(iii) Violation/Subsection (b), from $1,100 to $1,100.

(iv) Subsequent Violation/Subsection (b), from $5,500 to $6,500.

(v) Violation/Subsection (c), from $130,000 to $140,000.

(6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 (1995), from $130,000 to $140,000.

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

(i) Violation/Subsections (a)(1)-(3), from $27,500 to $32,500.

(ii) Subsequent Violation/Subsections (a)(1)-(3), from $60,000 to $65,000.

(iii) Violation/Subsections (a)(4)-(5), from $5,500 to $6,500.

(iv) Subsequent Violation/Subsections (a)(4)-(5), from $5,500 to $6,500.

(v) Violation/Subsection (a)(6), from $130,000 to $140,000.

(8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, from $325,000 to $350,000.

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

(10) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 (1981), from $11,000 to $11,000.

(11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act (1990), from $120,000 to $130,000.

(12) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), from $130,000 to $140,000.

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

(i) Knowing Violation of Section 1538 (1988), from $27,500 to $32,500.

(ii) Other Knowing Violation (1988), from $13,200 to $13,200.

(iii) Otherwise Violation (1978), from $550 to $650.

(14) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and Management Act (1990), from $130,000 to $140,000.

(15) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources Convention Act of 1984;

(i) Violation, from $5,500 to $6,500.

(ii) Knowing Violation, from $11,000 to $11,000.

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

(i) Violation, from $5,500 to $6,500.

(ii) Knowing Violation, from $11,000 to $11,000.

(17) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981;

(i) Sale and Purchase Violation, from $11,000 to $11,000.

(ii) Marking Violation, from $275 to $275.

(iii) False Labeling Violation, from $11,000 to $11,000.

(iv) Other than Marking Violation, from $11,000 to $11,000.

(18) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 1982 (1990), from $130,000 to $140,000.

(19) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990), from $130,000 to $140,000.

(20) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 1986; minimum from $500 to $500; maximum from $5,500 to $6,500.

(21) 16 U.S.C. 5010(a)(1), North Pacific Anadromous Stocks Act of 1992, from $120,000 to $130,000.

(22) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative Management Act (1993), from $130,000 to $140,000.

(23) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation Act (1990), from $130,000 to $140,000.

(24) 16 U.S.C. 5507(a)(1), High Seas Fishing Compliance Act of 1995, from $120,000 to $130,000.

(25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act of 1995, from $130,000 to $140,000.

(26) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries Convention Implementation Act (2007); new penalty $140,000.

(27) 16 U.S.C. 7009(c), Pacific Whiting Act of 2006 (2007); new penalty $140,000.

(28) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971);

(i) Violation, from $11,000 to $11,000.

(ii) Subsequent Violation, from $27,500 to $32,500.

(29) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act (1980), from $27,500 to $32,500.

(30) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of 1980, from $27,500 to $32,500.

3. Section 6.5 is revised to read as follows:

§ 6.5

Effective date of adjustments.

The adjustments made by § 6.4 of this part, of the penalties there specified, are effective on December 11, 2008, and said penalties, as thus adjusted by the adjustments made by § 6.4 of this part, shall apply only to violations occurring after December 11, 2008, and before the effective date of any future inflation adjustment thereto made subsequent to December 11, 2008 as provided in § 6.6 of this part.