Rule2022-28363
Civil Monetary Penalty Adjustments for Inflation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 3, 2023
Effective
January 15, 2023
Issuing agencies
Commerce Department
Abstract
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 Department of Commerce's 2023 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 2023 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.
Full Text
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<title>Federal Register, Volume 88 Issue 1 (Tuesday, January 3, 2023)</title>
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[Federal Register Volume 88, Number 1 (Tuesday, January 3, 2023)]
[Rules and Regulations]
[Pages 3-6]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-28363]
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DEPARTMENT OF COMMERCE
Office of the Secretary
15 CFR Part 6
[Docket No. 221222-0281]
RIN 0605-AA65
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 Department of
Commerce's 2023 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 2023 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, 2023.
FOR FURTHER INFORMATION CONTACT: Stephen M. 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: <a href="http://www.osec.doc.gov/ofm/OFM_Publications.html">http://www.osec.doc.gov/ofm/OFM_Publications.html</a>.
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.
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 2022 adjustments
for inflation to CMPs were published in the Federal Register on January
4, 2022, and the new CMP levels became effective January 15, 2022.
The Department of Commerce's 2023 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 2023
[[Page 4]]
adjustments for inflation 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
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. NOAA's Penalty Policy is
maintained and made available to the public on NOAA's Office of the
General Counsel, Enforcement Section website at: <a href="http://www.gc.noaa.gov/enforce-office.html">http://www.gc.noaa.gov/enforce-office.html</a>.
The Department of Commerce's 2023 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 2023 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 2022 exceeds
the Consumer Price Index for the month of October 2021.
Classification
Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to issue
this rule without prior public notice or opportunity for public comment
because it would be 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. For the same reasons, there is good
cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective
date.
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
Civil monetary penalties, Law enforcement.
Dated: December 23, 2022.
Stephen M. Kunze,
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 Adjustments for inflation to civil monetary penalties.
6.4 Effective date of 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
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, 2022, 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 $12,537 to $13,508.
(2) 31 U.S.C. 3802(a)(2), Program Fraud Civil Remedies Act of 1986
(1986), violation, maximum from $12,537 to $13,508.
(3) 31 U.S.C. 3729(a)(1)(G), False Claims Act (1986); violation,
minimum from $12,537 to $13,508; maximum from $25,076 to $27,018.
(b) Bureau of Economic Analysis. 22 U.S.C. 3105(a), International
Investment and Trade in Services Act (1990); failure to furnish
information, minimum from $5,179 to $5,580; maximum from $51,796 to
$55,808.
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(c) Bureau of Industry and Security. (1) 15 U.S.C. 5408(b)(1),
Fastener Quality Act (1990), violation, maximum from $51,796 to
$55,808.
(2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $42,163 to $45,429.
(3) 22 U.S.C. 6761(a)(l)(B), Chemical Weapons Convention
Implementation Act (1998), violation, maximum from $8,433 to $9,086.
(4) 50 U.S.C. 1705(b), International Emergency Economic Powers Act
(2007), violation, maximum from $330,947 to $356,579.
(5) 22 U.S.C. 8142(a), United States Additional Protocol
Implementation Act (2006), violation, maximum from $34,265 to $36,919.
(6) 50 U.S.C. 4819, Export Controls Act of 2018 (2018), violation,
maximum from $328,121 to $353,534.
(d) 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 per violation, from $1,525 to $1,643; maximum per
violation, from $15,256 to $16,438.
(2) 13 U.S.C. 305(b), Collection of Foreign Trade Statistics
(2002), violation, maximum from $15,256 to $16,438.
(e) International Trade Administration. (1) 19 U.S.C. 81s, Foreign
Trade Zone (1934), violation, maximum from $3,198 to $3,446.
(2) 19 U.S.C. 1677f(f)(4), U.S.-Canada Free Trade Agreement
Protective Order (1988), violation, maximum from $230,107 to $247,929.
(f) National Oceanic and Atmospheric Administration. (1) 51 U.S.C.
60123(a), Land Remote Sensing Policy Act of 2010 (2010), violation,
maximum from $12,646 to $13,625.
(2) 51 U.S.C. 60148(c), Land Remote Sensing Policy Act of 2010
(2010), violation, maximum from $12,646 to $13,625.
(3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982 (2007),
violation, maximum from $264,759 to $285,265.
(4) 16 U.S.C. 783, Sponge Act (1914), violation, maximum from
$1,891 to $2,037.
(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 $94,487 to
$101,805.
(ii) Subsequent violation of 16 U.S.C. 957(a), maximum from
$203,511 to $219,273.
(iii) Violation of 16 U.S.C. 957(b), maximum from $3,198 to $3,446.
(iv) Subsequent violation of 16 U.S.C. 957(b), maximum from $18,898
to $20,362.
(v) Violation of 16 U.S.C. 957(c), maximum from $407,024 to
$438,548.
(6) 16 U.S.C. 957(i), Tuna Conventions Act of 1950,\1\ violation,
maximum from $207,183 to $223,229.
(7) 16 U.S.C. 959, Tuna Conventions Act of 1950,\2\ violation,
maximum from $207,183 to $223,229.
(8) 16 U.S.C. 971f(a), Atlantic Tunas Convention Act of 1975,\3\
violation, maximum from $207,183 to $223,229.
(9) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988 (1988),
violation, maximum from $575,266 to $619,820.
(10) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983 (1983),
violation, maximum from $27,384 to $29,505.
(11) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972
(1972), violation, maximum from $31,980 to $34,457.
(12) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information
Act,\4\ violation, maximum from $207,183 to $223,229.
(13) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992),
violation, maximum from $195,054 to $210,161.
(14) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973:
(i) Violation as specified (1988), maximum from $57,527 to $61,982.
(ii) Violation as specified (1988), maximum from $27,612 to
$29,751.
(iii) Otherwise violation (1978), maximum from $1,891 to $2,037.
(15) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and
Management Act (1990), violation, maximum from $207,183 to $223,229.
(16) 16 U.S.C. 2437(a), Antarctic Marine Living Resources
Convention Act of 1984,\5\ violation, maximum from $207,183 to
$223,229.
(17) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990,\6\
violation, maximum from $207,183 to $223,229.
(18) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981 (1981):
(i) 16 U.S.C. 3373(a)(1), violation, maximum from $29,614 to
$31,908.
(ii) 16 U.S.C. 3373(a)(2), violation, maximum from $740 to $797.
(19) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of
1982,\7\ violation, maximum from $207,183 to $223,229.
(20) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985,\8\
violation, maximum from $207,183 to $223,229.
(21) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of
1986 (1986); violation, minimum from $1,253 to $1,350; maximum from
$12,537 to $13,508.
(22) 16 U.S.C. 5010, North Pacific Anadromous Stocks Act of
1992,\9\ violation, maximum from $207,183 to $223,229.
(23) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative
Management Act,\10\ violation, maximum from $207,183 to $223,229.
(24) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation
Act,\11\ violation, maximum from $207,183 to $223,229.
(25) 16 U.S.C. 5507(a), High Seas Fishing Compliance Act of 1995
(1995), violation, maximum from $179,953 to $193,890.
(26) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act
of 1995,\12\ violation, maximum from $207,183 to $223,229.
(27) 16 U.S.C. 6905(c), Western and Central Pacific Fisheries
Convention Implementation Act,\13\ violation, maximum from $207,183 to
$223,229.
(28) 16 U.S.C. 7009(c) and (d), Pacific Whiting Act of 2006,\14\
violation, maximum from $207,183 to $223,229.
(29) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971):
(i) Violation, maximum from $31,980 to $34,457.
(ii) Subsequent violation, maximum from $94,487 to $101,805.
(30) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act
(1980), violation, maximum, from $81,540 to $87,855.
(31) 42 U.S.C. 9152(c), Ocean Thermal Energy Conversion Act of 1980
(1980), violation, maximum from $81,540 to $87,855.
(32) 16 U.S.C. 1827a, Billfish Conservation Act of 2012,\15\
violation, maximum from $207,183 to $223,229.
(33) 16 U.S.C. 7407(b), Port State Measures Agreement Act of
2015,\16\ violation, maximum from $207,183 to $223,229.
(34) 16 U.S.C. 1826g(f), High Seas Driftnet Fishing Moratorium
Protection Act,\17\ violation, maximum from $207,183 to $223,229.
(35) 16 U.S.C. 7705, Ensuring Access to Pacific Fisheries Act,\18\
violation, maximum from $207,183 to $223,229.
(36) 16 U.S.C. 7805, Ensuring Access to Pacific Fisheries Act,\19\
violation, maximum from $207,183 to $223,229.
(g) National Technical Information Service. 42 U.S.C. 1306c(c),
Bipartisan Budget Act of 2013 (2013), violation, minimum from $1,075 to
$1,158; maximum total penalty on any person for any calendar year,
excluding willful or intentional violations, from $268,694 to $289,504.
(h) Office of the Under Secretary for Economic Affairs. 15 U.S.C.
113, Concrete Masonry Products Research, Education, and Promotion Act
of 2018, (newly reported penalty), violation, maximum $5,000.
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\1\ This National Oceanic and Atmospheric Administration maximum
civil monetary penalty, as prescribed by law, is the maximum civil
monetary penalty per 16 U.S.C. 1858(a), Magnuson-Stevens Fishery
Conservation and Management Act civil monetary penalty (paragraph
(f)(15) of this section).
\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 2023 adjustments for inflation made by
Sec. 6.3, of the civil monetary penalties there specified, are
effective on January 15, 2023, 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 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, 2023 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. 2022-28363 Filed 12-30-22; 8:45 am]
BILLING CODE 3510-DP-P
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