Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments
Federal Register, Volume 81 Issue 127 (Friday, July 1, 2016)
Federal Register Volume 81, Number 127 (Friday, July 1, 2016)
Rules and Regulations
Pages 43429-43461
From the Federal Register Online via the Government Publishing Office www.gpo.gov
FR Doc No: 2016-15378
Page 43429
Vol. 81
Friday,
No. 127
July 1, 2016
Part IV
Department of Labor
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29 CFR Part 5
41 CFR Part 50-201
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Employment and Training Administration
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20 CFR Part 655
Office of Workers' Compensation Programs
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20 CFR Parts 702, 725, 726
Wage and Hour Division
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29 CFR Parts 500, 501, 530, et al.
Occupational Safety and Health Administration
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29 CFR Parts 1902, 1903
Employee Benefits Security Administration
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29 CFR Parts 2560, 2575, 2590
Mine Safety and Health Administration
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30 CFR Part 100
Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments; Final Rule
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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Office of Workers' Compensation Programs
20 CFR Parts 702, 725, 726
Office of the Secretary
29 CFR Part 5
41 CFR Part 50-201
Wage and Hour Division
29 CFR Parts 500, 501, 530, 570, 578, 579, 801, 825
Occupational Safety and Health Administration
29 CFR Parts 1902, 1903
Employee Benefits Security Administration
29 CFR Part 2560, 2575, 2590
Mine Safety and Health Administration
30 CFR Part 100
RIN 1290-AA31
Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments
AGENCY: Employment and Training Administration, Office of Workers' Compensation Programs, Office of the Secretary, Wage and Hour Division, Occupational Safety and Health Administration, Employee Benefits Security Administration, and Mine Safety and Health Administration, Department of Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: The U.S. Department of Labor is issuing this interim final rule to adjust the amounts of civil penalties assessed or enforced in its regulations. The Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act) requires agencies to adjust the levels of civil monetary penalties with an initial catch-up adjustment, followed by annual adjustments for inflation. The Department is required to calculate the catch-up and subsequent annual adjustments based on the Consumer Price Index for all Urban Consumers. The Department must publish the interim final rule by July 1, 2016, and the new penalty levels are effective no later than August 1, 2016.
DATES: This interim final rule is effective August 1, 2016. See SUPPLEMENTARY INFORMATION for applicability dates. Interested persons are invited to submit written comments on this interim final rule on or before August 15, 2016.
ADDRESSES: You may submit comments, identified by Regulatory Information Number (RIN) 1290-AA31, by either of the following methods:
Electronic Comments: Comments may be sent via http://www.regulations.gov, a Federal E-Government Web site that allows the public to find, review, and submit comments on documents that agencies have published in the Federal Register and that are open for comment. Simply type in ``Department of Labor Federal Civil Penalties Inflation Adjustment Act Catch-Up Adjustments'' (in quotes) in the Comment or Submission search box, click Go, and follow the instructions for submitting comments.
Mail: Address written submissions to Tiffany Jones, U.S. Department of Labor, Room S-2312, 200 Constitution Avenue NW., Washington, DC 20210.
Instructions: Please submit only one copy of your comments by only one method. All submissions must include the agency name and RIN, identified above, for this rulemaking. Please be advised that comments received will become a matter of public record and will be posted without change to http://www.regulations.gov, including any personal information provided. Comments that are mailed must be received by the date indicated for consideration.
Docket: For access to the docket to read background documents or comments, go to the Federal e-Rulemaking Portal at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Pamela Peters, Program Analyst, U.S. Department of Labor, Room S-2312, 200 Constitution Avenue NW., Washington, DC 20210; telephone: (202) 693-5959 (this is not a toll-
free number). Copies of this proposed rule may be obtained in alternative formats (large print, Braille, audio tape or disc), upon request, by calling (202) 693-5959 (this is not a toll-free number). TTY/TDD callers may dial toll-free 1-877-889-5627 to obtain information or request materials in alternative formats.
SUPPLEMENTARY INFORMATION:
Preamble Table of Contents
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Regulatory Information
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Background
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Section-by-Section Analysis
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Employment and Training Administration
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Office of Workers' Compensation Programs
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Office of the Secretary
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Wage and Hour Division
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Occupational Safety and Health Administration
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Employee Benefits Security Administration
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Mine Safety and Health Administration
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Paperwork Reduction Act
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Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review
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Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act
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Other Regulatory Considerations
a. The Unfunded Mandates Reform Act of 1995
b. Executive Order 13132: Federalism
c. Executive Order 13175: Indian Tribal Governments
d. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families
e. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
f. Environmental Impact Assessment
g. Executive Order 13211: Energy Supply
h. Executive Order 12630: Constitutionally Protected Property Rights
i. Executive Order 12988: Civil Justice Reform Analysis
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Regulatory Information
The U.S. Department of Labor (Department) is publishing this interim final rule (IFR) to adjust its civil monetary penalties for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990 as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act). This law requires the Department to publish an initial ``catch-up adjustment'' through an interim final rule.
Pursuant to the Inflation Adjustment Act and 5 U.S.C. 553(b)(3)(B), the Department finds that good cause exists for issuing this IFR without prior notice and comment. By operation of the Inflation Adjustment Act, the Department must publish the catch-up adjustment by July 1, 2016, and the rule must be effective no later than August 1, 2016. The Inflation Adjustment Act further provides that the increased penalty levels apply to any penalties assessed after the effective date of the increase. Additionally, the Inflation Adjustment Act provides a clear
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formula for adjustment of the civil penalties, leaving little room for discretion. For these reasons, the Department finds that notice and comment would be impracticable and unnecessary in this situation and contrary to the language of the Inflation Adjustment Act.
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Background
On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (collectively, the ``Prior Inflation Adjustment Act''), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment Act requires agencies to: (1) Adjust the level of civil monetary penalties with an initial ``catch-up'' adjustment through an interim final rulemaking (IFR); and (2) make subsequent annual adjustments for inflation.
The Inflation Adjustment Act amends the Prior Inflation Adjustment Act in two key respects. First, the Inflation Adjustment Act rescinds an exemption that previously disallowed inflationary adjustments for violations of the Occupational Safety and Health Act (OSH Act). As a result, the Department is updating the penalties under the OSH Act for the first time since 1990.
Second, the Inflation Adjustment Act substantially revises the method of calculating inflation adjustments. The Prior Inflation Adjustment Act required adjustments to civil penalties to be rounded significantly. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. As a result, penalties were increased infrequently, and when they were finally increased, the amounts of the increases were sometimes substantial. Over time, this formula caused most of the Department's penalties to lose value relative to total inflation for long periods of time, thereby undermining the Prior Inflation Adjustment Act's purposes of maintaining the deterrent effect of civil money penalties and promoting compliance with the law.
The Inflation Adjustment Act has removed these rounding rules; now, penalties are simply rounded to the nearest dollar. This rounding ensures that penalties will be increased each year to more effectively keep up with inflation, and ensures that penalties are more evenly established.
Furthermore, the Inflation Adjustment Act provides for an initial ``catch-up'' adjustment that generally excludes prior inflationary adjustments under the Prior Inflation Adjustment Act. For this catch-up adjustment, the Inflation Adjustment Act requires agencies to identify, for each penalty, the year and corresponding amount(s) for which the penalty amount, the maximum penalty level, or range of minimum and maximum penalties was established (i.e., originally enacted by Congress or by regulation) or last adjusted other than pursuant to the Prior Inflation Adjustment Act. That amount becomes the basis of any such catch-up adjustment, subject to a cap on any penalty increase of 150 percent of the current penalty amount as of November 2015--allowing for a total new penalty of no more than 250 percent of the November 2015 penalty amount. The Inflation Adjustment Act also mandates that the catch-up adjustment apply to any civil monetary penalty assessed after August 1, 2016, ``including those whose associated violation predated such increase.'' Pub. L. 114-74 at Sec. 701. The adjusted civil penalty amounts are applicable only to civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, the date of enactment of the Inflation Adjustment Act. Therefore, violations occurring on or before November 2, 2015, as well as assessments made prior to August 1, 2016 whose associated violations occurred after November 2, 2015, will continue to be subject to the civil monetary penalty amounts currently set forth in the the Department's prior regulations at 20 CFR parts 655, 702, 725, and 726; 29 CFR parts 5, 500, 501, 530, 570, 578, 579, 801, 825, 1902, 1903, 2560, 2575, and 2590; 30 CFR part 100; and 41 CFR part 50-201 (or as set forth by statute if the amount has not yet been adjusted by regulation)..
The Department has undertaken a thorough review of civil penalties administered by its various components pursuant to the Inflation Adjustment Act and in accordance with guidance issued by the Office of Management and Budget.\1\ The Department first identified for each penalty the year and corresponding amount or amounts for which the maximum penalty level or range of minimum and maximum penalties was established or last adjusted, other than pursuant to the Prior Inflation Adjustment Act. Then the Department determined the applicable inflation adjustments based upon the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) for the preceding year versus the year of enactment or last adjustment.\2\ The Department compared the amount of the penalty adjustment against the 150 percent cap and added the lower of the two to the existing penalty to compute the new penalty. This IFR establishes the initial catch-up adjustment for civil penalties as described.\3\
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\1\ OMB Mem. M-16-06 (Feb. 24, 2016), https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.
\2\ OMB has provided the relevant year-over-year multipliers, rounded to 5 decimal points. Id. at 6.
\3\ Appendix 1 consists of a table that provides ready access to key information about each penalty.
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Section-by-Section Analysis
The following section-by-section discussion of this IFR presents the contents of each section in more detail. The Department invites comments on any issues addressed in this IFR.
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Employment and Training Administration (20 CFR Part 655)
1. General
This section A of the preamble addresses civil monetary penalties authorized by the Immigration and Nationality Act's (INA) D-1 and H-1B visa programs and that are reflected in the Employment and Training Administration's regulations, but are enforced by the Department's Wage and Hour Division (WHD). Paragraph 2(a) involves violations of the D-1 visa program, and paragraph 2(b) involves violations of the H-1B visa program.
2. Specific Penalty Increases
a. Section 655.620--Civil Money Penalties and Other Remedies
Section 258(c)(4)(E)(i) of the INA, 8 U.S.C. 1288(c)(4)(E)(i), and existing 20 CFR 655.620(a), provide for the imposition of civil money penalties where the Secretary of Labor (Secretary) finds, after notice and an opportunity for hearing, that there has been a violation of, or misrepresentation in, the attestations by employers using alien crewmembers for longshore activities in U.S. ports, pursuant to the D-1 visa program, or of the Secretary's regulations regarding the D-1 program. These authorities provide that such civil money penalties are not to exceed $5,000 for each alien crewmember with respect to whom there has been a violation. The maximum penalty amount last established by statute or regulation, other than the Prior Inflation Adjustment Act, was set in 1990 and is the same as the existing maximum
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penalty amount. See Immigration Act of 1990, Pub. L. 101-649, 203(a)(1) (Nov. 29, 1990).
To adjust the existing civil money penalty for this section, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1990 of 1.78156, which resulted in a maximum penalty of $8,908. The amount of the increase from $5,000 to $8,908 is $3,908, which is less than the statutory cap of 150 percent of the existing $5,000 penalty, which is $7,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 655.620(a) is revised to increase the maximum penalty for violations specified therein from $5,000 to $8,908 for each alien crewmember with respect to whom there has been a violation.
b. Section 655.810--What remedies may be ordered if violations are found?
Section 212(n)(2)(C) of the INA, 8 U.S.C. 1182(n)(2)(C), and existing 20 CFR 655.810(b) provide for the imposition of civil money penalties for certain violations of the H-1B visa program. There are three levels of civil money penalties provided for by these authorities.
First, existing Sec. 655.810(b)(1) provides for a civil money penalty, not to exceed $1,000 per violation, for certain specific violations of the H-1B program. See Sec. 655.810(b)(1)(i)-(vi). The maximum penalty amount last established by statute or regulation, other than the Prior Inflation Adjustment Act, was set in 1990 and is the same as the existing maximum penalty amount. See Immigration Act of 1990, Pub. L. 101-649, 205(3) (Nov. 29, 1990). In 1998, Congress amended the INA by, in part, providing for additional civil money penalties in the H-1B program, as discussed below. See American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Div. C, Title IV, of Pub. L. 105-277, 413(a) (Oct. 21, 1998). The 1998 amendments did not adjust the $1,000 civil money penalty reflected in existing Sec. 655.810(b)(1). Accordingly, we consider 1990 as the year in which this maximum penalty amount was last established by statute or regulation other than the Prior Inflation Adjustment Act.
To adjust the existing civil money penalty for this section, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1990 of 1.78156, which resulted in a maximum penalty of $1,782. The amount of the increase from $1,000 to $1,782 is $782, which is less than the statutory cap of 150 percent of the existing $1,000 penalty, which is $1,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 655.810(b)(1) is revised to increase the maximum penalty for violations specified therein from $1,000 to $1,782 per violation.
Second, existing Sec. 655.810(b)(2) provides for a civil money penalty, not to exceed $5,000 per violation for certain willful violations specified therein and for discrimination against an employee, as described in 20 CFR 655.801(a). The civil money penalty for discrimination against an employee is also referenced in Sec. 655.801(b). The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 1998 and is the same as the existing maximum penalty amount. See ACWIA Sec. 413(a).
To adjust the existing civil money penalty for this section, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1998 of 1.45023, which resulted in a maximum penalty of $7,251. The amount of the increase from $5,000 to $7,251 is $2,251, which is less than the statutory cap of 150 percent of the existing $5,000 penalty, which is $7,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 655.810(b)(2) is revised to increase the maximum penalty for violations specified therein from $5,000 per violation to $7,251 per violation. Conforming changes to reflect the adjusted civil money penalty amount were also made to 20 CFR 655.801(b).
Third, existing Sec. 655.810(b)(3) provides for a civil money penalty, not to exceed $35,000 per violation, where an employer displaced a U.S. worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition in conjunction with certain willful violations specified therein. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 1998 and is the same as the existing maximum penalty amount. See ACWIA Sec. 413(a).
To adjust the existing civil money penalty for this section, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1998 of 1.45023, which resulted in a maximum penalty of $50,758. The amount of the increase from $35,000 to $50,758 is $15,758, which is less than the statutory cap of 150 percent of the existing $35,000 penalty, which is $52,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 655.810(b)(3) is revised to increase the maximum penalty for violations specified therein from $35,000 to $50,578 per violation.
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Office of Workers' Compensation Programs (20 CFR Parts 702, 725, 726)
1. General
This section B of the preamble addresses the civil monetary penalties administered by Office of Workers' Compensation Programs (OWCP) to enforce provisions of the Longshore and Harbor Workers' Compensation Act (Longshore Act), and the Longshore Act extensions, the Defense Base Act, the District of Columbia Workmen's Compensation Act, the Outer Continental Shelf Lands Act, and the Black Lung Benefits Act (BLBA). Paragraphs 2(a) through (f) explain revisions to each of the civil penalties administered and enforced by OWCP.
2. Specific Penalty Increases
a. Section 702.204--Employer's Report; Penalty for Failure To Furnish and or Falsifying
Existing Sec. 702.201 requires employers to furnish a report of an employee's injury (resulting in the loss of one or more shifts) or death within 10 days of the injury or death, or an employer's knowledge of the same, and to provide additional supplemental information upon request. Existing Sec. 702.204 provides that an employer who, on or after November 17, 1997, knowingly and willfully fails or refuses to file any report required by Sec. 702.201 or who knowingly or willfully makes a false statement or misrepresentation on any report shall be subject to a civil penalty not to exceed $11,000 for each failure, refusal, false statement, or misrepresentation. It provides that an employer who does so before November 17, 1997 shall be subject to a civil penalty not to exceed $10,000 for each instance. The maximum penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act was $10,000 in 1984. See Public Law 98-426.
To adjust the existing civil penalty for this section, the Department multiplied the penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act, $10,000, by the inflation adjustment factor for 1984 of 2.25867, which resulted in a penalty of $22,587 (rounded to the nearest dollar). The amount of the increase from existing Sec. 702.204's $11,000 penalty to $22,587 is $11,587. $11,587 is less than the statutory cap of 150 percent of the
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existing $11,000 penalty, which is $16,500. Accordingly, the amount of the increase is not limited by the statutory cap. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 702.204 therefore increases the maximum penalty for each failure to furnish or falsifying an employer's report from $11,000 to $22,587.
b. Section 702.236--Penalty for Failure To Report Termination of Payments
Existing Sec. 702.235 requires employers to notify the district director within 16 days after making a final payment of compensation. Existing Sec. 702.236 provides that an employer who, on or after November 17, 1997, fails to notify the district director that a final payment of compensation has been made as required by Sec. 702.235, shall be assessed a civil penalty in the amount of $110. It provides that an employer who does so before November 17, 1997 shall be assessed a civil penalty in the amount of $100. The penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act was $100 in 1927. See 33 U.S.C. 914(g).
To adjust the existing civil penalty for this section, the Department multiplied the penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act, $100, by the inflation adjustment factor for 1927 of 13.66885, which resulted in a penalty of $1,367 (rounded to the nearest dollar). The amount of the increase from existing Sec. 702.236's $110 penalty to $1,367 is $1,257, which would be more than the statutory cap of 150 percent of the existing $110 penalty, which is $165. Accordingly, the amount of the increase is limited by the statutory cap to a total of $165. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 702.236 therefore increases the penalty for failure to report termination of payments from $110 to $275 (the current $110 penalty amount plus the $165 statutory cap).
c. Section 702.271--Discrimination; Against Employees Who Bring Proceedings, Prohibition and Penalty
Existing Sec. 702.271(a)(1) provides that no employer or its agent may discharge or in any manner discriminate against an employee as to his or her employment because that employee has claimed or attempted to claim compensation under the Longshore and Harbor Workers' Compensation Act, or has testified or is about to testify in a proceeding under that Act. Existing Sec. 702.271(a)(2) provides that any employer who, on or after November 17, 1997, violates Sec. 702.271 shall be liable for a penalty of not less than $1,100 or more than $5,500. It provides that an employer who does so before November 17, 1997 shall be liable for a penalty of not less than $1,000 or more than $5,000. The penalty amounts last established by statute or regulation other than pursuant to the Inflation Adjustment Act were a minimum amount of $1,000 and a maximum amount of $5,000 in 1984. See Public Law 98-426.
To adjust the civil penalties for this section, the Department multiplied the minimum and maximum penalty amounts last established by statute or regulation other than pursuant to the Inflation Adjustment Act, $1,000 and $5,000, respectively, by the inflation adjustment factor for 1984 of 2.25867, which resulted in a minimum penalty of $2,259 (rounded to the nearest dollar) and a maximum penalty of $11,293 (rounded to the nearest dollar). The amount of the increase from existing Sec. 702.271(a)(2)'s $1,100 minimum penalty to $2,259 is $1,159, which is less than the statutory cap of 150 percent of the existing $1,100 minimum penalty, which is $1,650. The amount of the increase from existing Sec. 702.271(a)(2)'s $5,500 maximum penalty to $11,293 is $5,793. $5,793 is less than the statutory cap of 150 percent of the existing $5,500 maximum penalty, which is $8,250. Accordingly, neither the amount of the increased minimum nor the increased maximum penalty is limited by the statutory cap. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 702.271 therefore increases the minimum penalty for discrimination against employees who claim compensation or bring proceedings under the Act from $1,100 to $2,259, and increases the maximum penalty from $5,500 to $11,293.
The Department also changes the ``that'' in the first sentence of Sec. 702.271(a)(2) to ``than'' to correct a typo in the regulation and twice corrects the phrase ``liable to a penalty'' to ``liable for a penalty.'' No substantive change results from or is intended by these technical edits.
d. Section 725.621--Reports
Existing Sec. 725.621(a) requires employers to notify the district director upon making a first payment of benefits and upon suspension, reduction, or increase of payments. Existing Sec. 725.621(b) requires employers to notify the district director, within 16 days after making a final payment of benefits. Existing Sec. 724.621(c) allows the Director to prescribe additional reporting by operators, other employers, or carriers. Existing Sec. 725.621(d) provides that an employer who does not file a report required by the section, after January 19, 2001, shall be subject to a civil penalty not to exceed $550 for each failure or refusal to file. It provides that an employer who does so on or before January 19, 2001, shall be subject to a civil penalty not to exceed $500 for each failure or refusal to file. The maximum penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act was $500 in 1978. See Public Law 95-239.
To adjust the existing civil penalty for this section, the Department multiplied the penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act, $500, by the inflation adjustment factor for 1978 of 3.54453, which resulted in a penalty of $1,772 (rounded to the nearest dollar). The amount of the increase from existing Sec. 725.621(d)'s $550 penalty to $1,772 is $1,222, which is more than the statutory cap of 150 percent of the existing $550 penalty, which is $825. Accordingly, the amount of the increase is limited by the statutory cap to a total of $825. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 725.261 therefore increases the maximum penalty for each failure or refusal to furnish an employer's required report from $550 to $1,375 (the current $550 penalty amount plus the $825 statutory cap).
e. Section 726.300--Purpose and Scope
Section 423 of the Black Lung Benefits Act and existing Sec. 726.4 require each coal mine operator to secure its liability for benefits either by qualifying as a self-insurer in accordance with regulations prescribed by the Secretary, or by insuring and keeping insured the payment of such benefits with a licensed workers' compensation insurer. 30 U.S.C. 933(a); 20 CFR 726.4. Section 423 also provides that each coal mine operator failing to meet its insurance obligation shall be subject to a civil money penalty of up to $1,000 per day. 30 U.S.C. 933(d)(1). Existing Sec. 726.300 identifies the purpose and scope of Subpart D of Part 726, which is to set forth definitions, criteria, and procedures for assessing this civil money penalty. In so doing, it references the Black Lung Benefits Act's maximum daily penalty of $1,000. This statutory maximum, however, is adjusted by the
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Federal Civil Penalties Inflation Adjustment Act of 1990, as amended. Thus, the existing regulation is amended to refer to the adjusted penalty amount authorized by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.
f. Section 726.302--Determination of Penalty
Existing Sec. 726.302 provides the method for determining the amount of any penalty assessed against a coal mine operator for failure to secure the payment of benefits in violation of Section 423 of the Black Lung Benefits Act and existing Sec. 726.4. Existing Sec. 726.302(b) provides that the penalty will be calculated by multiplying the daily base penalty amount or amounts by the number of days during which the operator was required to and failed to secure its obligations. Existing Sec. 726.302(c)(i) explains that the daily base penalty amount is $100 per day for operators employing fewer than 25 employees, $200 per day for operators employing 25 to 50 employees, $300 per day for operators employing 51 to 100 employees, and $400 per day for operators employing more than 100 employees. Existing Sec. 726.302(c)(4) provides that the daily base penalty amounts in Sec. 726.302(c)(2)(i) will increase by $100 on the 11th day after the operator receives the Director's notice of violation. Existing Sec. 726.302(c)(5) provides that if an operator or certain of its related entities has violated Sec. 726.4 and been assessed a penalty, the daily base penalty amount shall increase by $300. It also provides that an operator who violates Sec. 726.4 after January 19, 2001, shall be subject to a maximum daily base penalty of $1,100, and that an operator that violates it on or before January 19, 2001, shall be subject to a maximum daily base penalty amount of $1,000. The daily base penalty amounts and increases in paragraphs (c)(2)(i), (c)(4), and (c)(5) were established by regulation in 2001 and have not subsequently been increased by the Inflation Adjustment Act or otherwise. See 65 FR 79920. The maximum daily base penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act was $1,000 in 1978. See Public Law 95-239.
To adjust the existing daily base penalty for operators employing fewer than 25 employees, the Department multiplied the existing $100 penalty by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty of $134 (rounded to the nearest dollar). To adjust the existing daily base penalty for operators employing 25 to 50 employees, the Department multiplied the existing $200 penalty by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty of $268 (rounded to the nearest dollar). To adjust the existing daily base penalty for operators employing 51 to 100 employees, the Department multiplied the existing $300 penalty by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty of $402 (rounded to the nearest dollar). To adjust the existing daily base penalty for operators employing more than 100 employees, the Department multiplied the existing $400 penalty by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty of $535 (rounded to the nearest dollar). To adjust the existing daily base penalty increase for operators who fail to respond to the Director's notice of violation more than 10 days after receipt in paragraph (c)(4), the Department multiplied the existing $100 penalty increase by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty increase of $134 (rounded to the nearest dollar). To adjust the existing daily base penalty increase for operators who have been subject to a previous penalty assessment in paragraph (c)(5), the Department multiplied the existing $300 penalty increase by the inflation adjustment factor for 2001 of 1.33842, which resulted in a penalty increase of $402 (rounded to the nearest dollar). The Department has not previously updated these penalty amounts pursuant to the Inflation Adjustment Act and the multiplier for each (1.33842) is less than 2.5, the penalty amount (100 percent) plus the statutory cap (150 percent). Thus, the amount of the increase for each is necessarily less than the statutory cap of 150 percent of the existing penalty amount. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 726.302 therefore increases the daily base penalty for operators employing fewer than 25 employees from $100 to $134; increases the daily base penalty for operators employing 25 to 50 employees from $200 to $268; increases the daily base penalty for operators employing 51 to 100 employees from $300 to $402; increases the daily base penalty for operators employing more than 100 employees from $400 to $535; increases the daily base penalty increase for operators who continue to be in violation more than 10 days after receiving the Director's notice of violation from $100 to $134; and increases the daily base penalty increase for operators who have been subject to a previous penalty assessment from $300 to $402.
To adjust the existing maximum daily base penalty in paragraph (c)(5), the Department multiplied the penalty amount last established by statute or regulation other than pursuant to the Inflation Adjustment Act, $1,000, by the inflation adjustment factor for 1978 of 3.54453, which resulted in a penalty of $3,545 (rounded to the nearest dollar). The amount of the increase from existing Sec. 726.302(c)(5)'s $1,100 maximum penalty to $3,545 is $2,445, which is more than the statutory cap of 150 percent of the existing $1,100 penalty, which is $1,650. Accordingly, the amount of the increase is limited by the statutory cap to a total of $1,650. For penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, final Sec. 726.302 therefore increases the maximum daily base penalty for any violation of Sec. 726.4 from $1,100 to $2,750 (the current $1,100 penalty amount plus the $1,650 statutory cap).
The Department also moves discussion of the maximum daily base penalty from subparagraph (c)(5) to new subparagraph (c)(6) for greater clarity. No substantive change results from or is intended by this technical edit.
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Office of the Secretary (29 CFR Part 5 and 41 CFR Part 50-201)
1. General
This section C of the preamble addresses the civil monetary penalties provisions of the Contract Work Hours and Safety Standards Act (CWHSSA) and the Walsh-Healey Public Contracts Act (PCA), as amended. These provisions are included in regulations established by the Office of the Secretary, which have been delegated to WHD for enforcement. Paragraphs 2(a) and (b) explain revisions to each of these civil money penalties.
2. Specific Penalty Increases
a. Section 5.8(a)--Liquidated Damages Under the Contract Work Hours and Safety Standards Act
Section 3702(c) of title 40 of the United States Code and existing 29 CFR 5.8(a) impose ``liquidated damages'' if a laborer or mechanic is not paid wages at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in any workweek on contracts covered by CWHSSA, to be computed with respect to each laborer or mechanic employed
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in violation of CWHSSA.\4\ The penalty amount of $10 for each calendar day in the workweek on which such individual was required or permitted to work in excess of forty hours without payment of required overtime wages was last established by statute or regulation other than the Prior Inflation Adjustment Act in 1962 and is the same as the existing penalty amount. See Contract Work Hours Standards Act, Title I of Public Law 87-581, Sec. 102(b)(2) (Aug. 13, 1962).
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\4\ Although the statute and regulation refer to the amount assessed as ``liquidated damages'' it is appropriate to treat the amount as a civil money penalty for purposes of the Inflation Adjustment Act because the amount due is paid to the government, not the laborer or mechanic. Indeed, the Department of Labor has long recognized that the CWHSSA damages provision ``operates as a civil monetary penalty.'' Letter to Honorable Carl Levin, Chairman, Subcommittee on Oversight of Government Management, from Ann McLaughlin, Secretary of Labor, (Feb. 22, 1988).
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To adjust the existing penalty for this section, the Department multiplied that penalty amount of $10 by the inflation adjustment factor for 1962 of 7.82362, which would have resulted in a penalty of $78. The amount of the increase from $10 to $78 is $68, which exceeds the statutory cap of 150 percent of the existing $10, which is $15; accordingly, the amount of the increase is limited by the statutory cap to a total of $15. Consequently, Sec. 5.8(a) is revised to increase the penalty if a laborer or mechanic is not paid wages at least one and one-half times the basic rate of pay for all hours worked in excess of forty hours in any workweek from $10 to $25 for each calendar day in the workweek on which such individual was required or permitted to work in excess of forty hours without payment of required overtime wages. Conforming changes to reflect the adjusted penalty amount were also made to Sec. 5.5(b)(2).
b. Section 50-201.3--Public Contracts, Department of Labor; Insertion of Stipulations.
Section 6503(b)(1) of title 41 of the United States Code and existing 41 CFR 50-201.3(e) impose ``liquidated damages'' \5\ of $10 per day for each individual under 16 years of age and each incarcerated individual knowingly employed in the performance of a contract covered by the PCA, as amended. The penalty amount of $10 for each day and for each individual under 16 years of age and each incarcerated individual knowingly employed was last established by statute or regulation other than the Prior Inflation Adjustment Act in 1936 and is the same as the existing penalty amount. See Walsh-Healey Act of 1936, 49 Stat. 2036, Sec. 2 (June 30, 1936).
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\5\ Although the statute and regulation refer to the amount assessed as ``liquidated damages'' it is appropriate to treat the amount as a civil money penalty for purposes of the Inflation Adjustment Act because the amount due is paid to the government, not the worker. Indeed, the Department of Labor has long recognized that the Walsh-Healey Public Contracts Act damages provision ``operates as a civil monetary penalty.'' Letter to Honorable Carl Levin, Chairman, Subcommittee on Oversight of Government Management, from Ann McLaughlin, Secretary of Labor, (Feb. 22, 1988).
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To adjust the existing civil money penalty for this section, the Department multiplied that penalty amount of $10 by the inflation adjustment factor for 1936 of 16.98843, which would have resulted in a penalty of $170. The amount of the increase from $10 to $170 is $160, which exceeds the statutory cap of 150 percent of the existing $10 penalty, which is $15. Accordingly, the amount of the increase is limited by the statutory cap to a total of $15. Consequently, Sec. 50-
201.3(e) is revised to increase the penalty for the knowing employment on a covered contract of individuals under 16 or who are incarcerated from $10 to $25 per day.
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Wage and Hour Division (29 CFR Parts 500, 501, 530, 570, 578, 579, 801, 825)
1. General
This section D of the preamble addresses the civil monetary penalties administered by WHD to enforce provisions of the Migrant and Seasonal Agricultural Worker Protection Act, the Immigration and Nationality Act,\6\ the Fair Labor Standards Act, the Employee Polygraph Protection Act, and the Family and Medical Leave Act. Paragraphs 2(a) through (g) explain revisions to each of these civil penalties administered and enforced by WHD.
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\6\ The Department and the Department of Homeland Security are jointly publishing a separate IFR to implement the Inflation Adjustment Act's requirements with respect to the civil money penalty provisions found at 29 CFR 503.23.
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a. Section 500.1--Purpose and Scope
Section 503(a)(1) of the Migrant and Seasonal Agricultural Worker Protection Act (MSPA), 29 U.S.C. 1853(a)(1), and existing 29 CFR 500.1(e), authorize the Secretary to impose a civil money penalty of not more than $1,000 per violation on persons who violate MSPA or any regulation under MSPA. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 1983 and is the same as the existing maximum penalty amount. See MSPA, Public Law 97-470 (Jan. 14, 1983).
To adjust the existing civil money penalty for this paragraph, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1983 of 2.35483, which resulted in a maximum penalty of $2,355. The amount of the increase from $1,000 to $2,355 is $1,355, which is less than the statutory cap of 150 percent of the existing $1,000 penalty, which is $1,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 500.1(e) is revised to increase the maximum penalty for violations of MSPA or the MSPA regulations from $1,000 to $2,355 per violation.
b. Section 501.19--Civil Money Penalty Assessment
Section 218(g)(2) of the INA, 8 U.S.C. 1188(g)(2), authorizes the Secretary of Labor to impose appropriate penalties in order to assure employer compliance with the terms and conditions of employment under the H-2A visa program. Pursuant to this and other authorities, the Secretary has promulgated regulations through notice and comment rulemaking regarding the assessment of civil money penalties. See, e.g., Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States, 75 FR 6884 (Feb. 12, 2010) (codified at 29 CFR part 501 and 20 CFR part 655) (2010 H-2A Final Rule). 29 CFR 501.19(a) of these regulations provides for the imposition of civil money penalties for each violation of the work contract, or the obligations imposed by 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in 29 CFR part 501. Section 501.19(c) through (f) provides the maximum civil money penalty amounts for various violations as specified below.
First, existing Sec. 501.19(c) provides that a civil money penalty for each violation of the work contract or of the H-2A visa program's statutory or regulatory requirements will not exceed $1,500 per violation, with exceptions as specified below. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2010 and is the same as the existing maximum penalty amount. See 2010 H-2A Final Rule.
To adjust the existing civil money penalty for Sec. 501.19(c), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2010 of 1.08745, which resulted in a maximum penalty of $1,631. The amount of the increase from $1,500 to $1,631 is $131, which is less than the statutory cap of 150 percent of
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the existing $1,500 penalty, which is $2,250; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(c) is revised to increase the maximum penalty for violations specified therein from $1,500 to $1,631 per violation.
Second, existing Sec. 501.19(c)(1) provides that a civil money penalty for each willful violation of the work contract, of the H-2A visa program's statutory or regulatory requirements, or for each act of discrimination prohibited by Sec. 501.4 shall not exceed $5,000. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2008 and is the same as the existing maximum penalty amount. See Final Rule, Temporary Agricultural Employment of H-2A Aliens in the United States; Modernizing the Labor Certification Process and Enforcement, 73 FR 77,110 (Dec. 18, 2008) (2008 H-2A Final Rule). This penalty amount was not adjusted by the H-2A 2010 Final Rule. Accordingly, we consider 2008 as the year in which this maximum penalty amount was last established by statute or regulation other than the Prior Inflation Adjustment Act.
To adjust the existing civil money penalty for Sec. 501.19(c)(1), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2008 of 1.09819, which resulted in a maximum penalty of $5,491. The amount of the increase from $5,000 to $5,491 is $491, which is less than the statutory cap of 150 percent of the existing $5,000 penalty, which is $7,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(c)(1) is revised to increase the maximum penalty for violations specified therein from $5,000 to $5,491.
Third, existing Sec. 501.19(c)(2) provides that a civil money penalty for a violation of a housing or transportation safety and health provision of the work contract or of the H-2A visa program's statutory or regulatory requirements that proximately causes the death or serious injury of any worker shall not exceed $50,000 per worker. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2010 and is the same as the existing maximum penalty amount. See 2010 H-2A Final Rule.
To adjust the existing civil money penalty for Sec. 501.19(c)(2), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2010 of 1.08745, which resulted in a maximum penalty of $54,373. The amount of the increase from $50,000 to $54,373 is $4,373, which is less than the statutory cap of 150 percent of the existing $50,000 penalty, which is $75,000; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(c)(2) is revised to increase the maximum penalty for violations specified therein from $50,000 to $54,373 per worker.
Fourth, existing Sec. 501.19(c)(4) provides that a civil money penalty for a repeat or willful violation of a housing or transportation safety and health provision of the work contract or of the H-2A visa program's statutory or regulatory requirements that proximately causes the death or serious injury of any worker shall not exceed $100,000 per worker. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2010 and is the same as the existing maximum penalty amount. See 2010 H-2A Final Rule.
To adjust the existing civil money penalty for Sec. 501.19(c)(4), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2010 of 1.08745, which resulted in a maximum penalty of $108,745. The amount of the increase from $100,000 to $108,745 is $8,745, which is less than the statutory cap of 150 percent of the existing $100,000 penalty, which is $150,000; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(c)(4) is revised to increase the maximum penalty for violations specified therein from $100,000 to $108,745 per worker.
Fifth, existing Sec. 501.19(d) provides that a civil money penalty for failure to cooperate with a WHD investigation shall not exceed $5,000 per investigation. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2008 and is the same as the existing maximum penalty amount. See 2008 H-2A Final Rule. This penalty amount was not adjusted by the H-2A 2010 Final Rule. Accordingly, we consider 2008 as the year in which this maximum penalty amount was last established by statute or regulation other than the Prior Inflation Adjustment Act.
To adjust the existing civil money penalty for Sec. 501.19(d), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2008 of 1.09819, which resulted in a maximum penalty of $5,491. The amount of the increase from $5,000 to $5,491 is $491, which is less than the statutory cap of 150 percent of the existing $5,000 penalty, which is $7,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(d) is revised to increase the maximum penalty for failure to cooperate with a WHD investigation from $5,000 to $5,491 per investigation.
Sixth, existing Sec. 501.19(e) provides that a civil money penalty for laying off or displacing any U.S. worker employed, under the circumstances specified therein, shall not exceed $15,000 per violation per worker. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2010 and is the same as the existing maximum penalty amount. See 2010 H-2A Final Rule.
To adjust the existing civil money penalty for Sec. 501.19(e), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2010 of 1.08745, which resulted in a maximum penalty of $16,312. The amount of the increase from $15,000 to $16,312 is $1,312, which is less than the statutory cap of 150 percent of the existing $15,000 penalty, which is $22,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(e) is revised to increase the maximum penalty for violations specified therein from $15,000 to $16,312 per violation per worker.
Finally, existing Sec. 501.19(f) provides that a civil money penalty for improperly rejecting a U.S. worker who is an applicant for employment, in violation of the H-2A visa program's statutory or regulatory requirements, shall not exceed $15,000 per violation per worker. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was set in 2010 and is the same as the existing maximum penalty amount. See 2010 H-2A Final Rule.
To adjust the existing civil money penalty for Sec. 501.19(f), the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2010 of 1.08745, which resulted in a maximum penalty of $16,312. The amount of the increase from $15,000 to $16,312 is $1,312, which is less than the statutory cap of 150 percent of the existing $15,000 penalty, which is $22,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 501.19(f) is revised to increase the maximum penalty for violations
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specified therein from $15,000 to $16,312 per violation per worker.
c. Section 530.302--Amounts of Civil Money Penalties
Section 11(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. 211(d), authorizes the Administrator of the WHD to issue such regulations and orders as necessary to assure compliance with the FLSA's requirements with respect to industrial homework. Pursuant to this and other authorities, the Administrator has promulgated regulations through notice and comment rulemaking. See Final Rule, Employment of Homeworkers in Certain Industries; Records To Be Kept by Employers, 53 FR 45706 (Nov. 10, 1988) (codified at 29 CFR parts 516 and 530). Section 530.302 of these regulations provides for the imposition of civil money penalties. Existing Sec. 530.302(a) imposes a civil money penalty of not more than $500 per affected homeworker for any violation of the FLSA related to homework \7\, or of part 530, or of the assurances given in connection with the issuance of a homeworker certificate. Existing Sec. 530.302(b) states that the amount of civil money penalties shall be determined per affected homeworker within the limits set forth in a following table, except that no penalty shall be assessed in the case of violations which are deemed to be de minimis in nature. The table appears in the existing regulation as follows in Table A:
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\7\ Except for child labor violations, which are covered under 29 CFR part 579.
Table A--Existing Homework Penalties
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Penalty per affected homeworker
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Nature of violation Repeated,
Minor Substantial intentional or
knowing
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Recordkeeping................................................... $10-100 $100-200 $200-500
Monetary violations............................................. $10-100 $100-200 ..............
Employment of homeworkers without a certificate................. .............. $100-200 $200-500
Other violations of statutes, regulations or employer assurances $10-100 $100-200 $200-500
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The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was $500 in 1988 and is the same as the existing maximum penalty amount. See 53 FR 45706, 45724.
To adjust the existing civil money penalty for this section, the Department multiplied the maximum penalty amount of $500 by the inflation adjustment factor for 1988 of 1.97869, which resulted in a maximum penalty of $989. The amount of the increase from $500 to $989 is $489, which is less than the statutory cap of 150 percent of the existing $500 penalty, which is $750; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 530.302(a) and (b) are revised to increase the maximum penalty from $500 to $989 and the percentage of that maximum penalty amount for minor (2 percent to 20 percent); substantial (20 percent to 40 percent); or repeated, intentional, or knowing (40 percent to 100 percent) violations by the same percentages of the adjusted maximum penalty amount as under the existing section. As a result, the revised penalty amounts are $20-198 for a minor violation; $198-396 for a substantial violation; and $396-989 for a repeated, intentional, or knowing violation.
d. Section 578.3--What types of violations may result in a penalty being assessed?
Section 16(e)(2) of the FLSA, 29 U.S.C. 216(e)(2), and existing 29 CFR 578.3(a), provide for the assessment of civil money penalties for any person who repeatedly or willfully violates section 6 (minimum wage) or section 7 (overtime) of the FLSA. Existing Sec. 578.3(a) provides for a civil money penalty of up to $1,100 per violation, and that level is the result of an inflation adjustment in 2001. See Final Rule, Adjustment of Civil Money Penalties for Inflation, 66 FR 63501 (Dec. 7, 2001). The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was $1,000 in 1989. See Fair Labor Standards Amendments of 1989, Pub. L. 101-157, Sec. 9 (Nov. 17, 1989).
To adjust the existing civil money penalty for this paragraph, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1989 of 1.89361, which resulted in a maximum penalty of $1,894. The amount of the increase from $1,100 to $1,894 is $794, which is less than the statutory cap of 150 percent of the existing $1,100 penalty, which is $1,650; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 578.3(a) is revised to increase the maximum penalty for a repeated or willful violation of section 6 (minimum wage) or section 7 (overtime) of the FLSA from $1,100 to $1,894 per violation.
Conforming changes to reflect the adjusted maximum civil money penalty amount were also made to Sec. 579.1(a)(2). In addition, historical information concerning penalties for repeated or willful violations of Sections 6 or 7 of the FLSA contained in 29 CFR 578.1 is revised to reflect the passage of the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Pub. L. 114-74) and its requirement to make civil money penalty adjustments annually.
e. Section 579.1--Purpose and Scope
Section 16(e)(1)(A) of the FLSA and existing 29 CFR 579.1(a)(1)(i) provide for the imposition of civil money penalties for any violations of the provisions of sections 12 or 13(c) of the FLSA, relating to child labor, or any regulation issued pursuant to such sections. There are three levels of civil money penalties provided for by these authorities.
First, existing Sec. 579.1(a)(1)(i)(A) provides for a civil money penalty, not to exceed $11,000, for each employee who was the subject of a child labor violation. This penalty corresponds to the statutory provision at 29 U.S.C. 216(e)(1)(A)(i). The penalty amount last established by statute or regulation for this provision other than the Prior
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Inflation Adjustment Act was $11,000 in 2008. See Genetic Information Nondiscrimination Act of 2008 (GINA), Pub. L. 110-233, Sec. 302(a) (May 21, 2008).
To adjust the existing civil money penalty for this paragraph, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2008 of 1.09819, which resulted in a maximum penalty of $12,080. The amount of the increase from $11,000 to $12,080 is $1,080, which is less than the statutory cap of 150 percent of the existing $11,000 penalty, which is $16,500; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 579.1(a)(1)(i)(A) is revised to increase the maximum penalty for violations of the provisions of sections 12 or 13(c) of the FLSA, relating to child labor, or any regulation issued pursuant to such sections, from $11,000 to $12,080 for each employee who was the subject of such a violation.
Conforming changes to reflect the adjusted maximum civil money penalty amount were also made to 29 CFR 570.140(b)(1).
Second, existing Sec. 579.1(a)(1)(i)(B) provides for a civil money penalty, not to exceed $50,000, for each violation of section 12 or 13(c) of the FLSA, relating to child labor, or any regulation issued pursuant to those sections that causes the death or serious injury of any employee under the age of 18 years. This penalty corresponds to the statutory provision at 29 U.S.C. 216(e)(1)(A)(ii). That maximum amount was last established by statute or regulation other than the Prior Inflation Adjustment Act in 2008 and is the same as the existing maximum penalty amount. See GINA Sec. 302(a).
To adjust the existing civil money penalty for this paragraph, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 2008 of 1.09819, which resulted in a maximum penalty of $54,910. The amount of the increase from $50,000 to $54,910 is $4,910, which is less than the statutory cap of 150 percent of the existing $50,000 penalty, which is $75,000; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 579.1(a)(1)(i)(B) is revised to increase the maximum penalty for violations of that provision, from $50,000 to $54,910 for each such violation.
Section 579.5(a) has also been revised to remove superfluous language regarding the effective date of this civil money penalty. Conforming changes to reflect the adjusted maximum civil money penalty amount were also made to 29 CFR 570.140(b)(2).
Third, existing Sec. 579.1(a)(1)(i)(B) also provides that the maximum penalty for a violation of section 12 or 13(c) of the FLSA, relating to child labor, or any regulation issued pursuant to those sections that causes the death or serious injury of any employee under the age of 18 years may be doubled if the violation is repeated or willful. Therefore, under revised Sec. 579.1(a)(1)(i)(B), the maximum penalty amount for such a willful or repeated violation is calculated by doubling the adjusted penalty of $54,910 for a child labor violation resulting in serious injury or death (i.e., $109,820). No change to regulatory text is needed to make this adjustment.
In addition, existing Sec. 579.1(a) and (b) are revised to reflect the passage of the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Pub. L. 114-74) and its requirement to make civil money penalty adjustments annually, and to remove superseded information regarding the effective date of increased civil money penalties.
f. Section 801.42--Civil Money Penalties--Assessment
Section 6(a)(1) of the Employee Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. 2005(a)(1) and existing 29 CFR 801.42(a) impose a civil money penalty of not more than $10,000 for any violation of the EPPA or of part 801. The maximum penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was $10,000 in 1988 and is the same as the existing maximum penalty amount. See EPPA, Pub. L. 100-347 (June 27, 1988).
To adjust the existing civil money penalty for this section, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1988 of 1.97869, which resulted in a penalty of $19,787. The amount of the increase from $10,000 to $19,787 is $9,787, which is less than the statutory cap of 150 percent of the existing $10,000 penalty, which is $15,000; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 801.42(a) is revised to increase the maximum penalty for a violation of the EPPA from $10,000 to $19,787.
g. Section 825.300--Employer Notice Requirements
Section 109(b) of the Family and Medical Leave Act (FMLA), as amended, 29 U.S.C. 2619(b), and existing 29 CFR 825.300(a)(1) provide for the assessment of a civil money penalty for each willful violation of the posting requirement of the FMLA. Existing Sec. 825.300(a)(1) provides for a civil money penalty of up to $110 for each separate offense, and that level is the result of an inflation adjustment in 2008. See Final Rule, The Family and Medical Leave Act of 1993, 73 FR 67934 (Nov. 17, 2008). The penalty amount last established by statute or regulation other than the Prior Inflation Adjustment Act was $100 in 1993. See FMLA of 1993, Pub. L. 103-3, Sec. 109(b) (Feb. 5, 1993).
To adjust the existing civil money penalty for this paragraph, the Department multiplied that maximum penalty amount by the inflation adjustment factor for 1993 of 1.63238, which resulted in a maximum penalty of $163. The amount of the increase from $110 to $163 is $53, which is less than the statutory cap of 150 percent of the existing $110 penalty, which is $165; accordingly, the amount of the increase is not limited by the statutory cap. Consequently, Sec. 578.300(a)(1) is revised to increase the penalty for violations of the posting requirement of the FMLA from $110 to $163 for each separate offense.
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Occupational Safety and Health Administration (29 CFR Parts 1902, 1903)
1. General
This section E of the preamble addresses the civil monetary penalties administered by the Occupational Safety and Health Administration (OSHA) to enforce provisions of the Occupational Safety & Health Act of 1970 (OSH Act), as amended. Paragraph 2(a) explains conforming edits to the agency's State Plan regulations. Paragraph 2(b) explains revisions to each of the civil penalties administered and enforced by OSHA.
2. Specific Penalty Increases
a. Section 1902.4(c)(2)(xi)--Indices of Effectiveness
Section 18(c)(2) of the OSH Act provides that a State may assume responsibility for development and enforcement of its own occupational safety and health standards by submitting a State Plan. State Plan regulations at 29 CFR 1902.3(c)(1) and (d)(1) provide that State Plans must develop or adopt occupational safety and health standards and an enforcement program for those standards that are at least as effective as federal OSHA's standards and enforcement program. Existing Sec. 1902.4(c)(2)(xi) provides that in order to satisfy this requirement of
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effectiveness, State Plans must have effective sanctions, such as those prescribed in the OSH Act. This IFR amends Sec. 1902.4(c)(2)(xi) to clarify that State Plans must provide sanctions as effective as those set forth in the OSH Act and in Sec. 1903.15(d), against private-
sector employers who violate State standards and orders.
b. Section 1903.15--OSH Act Penalties
The penalty amounts set forth in section 17(a) to (d) and (i) of the OSH Act (29 U.S.C. 666(a) to (d) and (i)) were last updated by the Omnibus Budget Reconciliation Act of 1990 on November 5, 1990. Pub. L. 101-508. To adjust the civil penalties for Section 17(a) to (d) and (i), the Department multiplied the penalty amounts by the inflation adjustment factor for 1990 of 1.78156. None of the resulting penalty amounts exceeded the 150 percent statutory cap. Other references to penalty amounts in Part 1903 are also amended by the new penalty amounts set out in Sec. 1903.15(d).
i. Willful or Repeated Violation of the OSH Act, 29 U.S.C 666(a)
Section 17(a) of the OSH Act, 29 U.S.C 666(a), provides that employers who willfully or repeatedly violate the requirements of section 5 of the OSH Act, any standards, rules or orders promulgated under section 6 of the OSH Act, or applicable regulations may be assessed a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation. No minimum penalty is set forth in the OSH Act for repeated violations. To adjust the existing civil money penalty for this paragraph, the Department multiplied the penalty amounts by the inflation adjustment factor for 1990 of 1.78156, which resulted in a maximum penalty of $124,709 for willful and repeated violations, and a minimum penalty of $8,908 for willful violations. The updated civil monetary penalties for willful and repeated violations are set out in Sec. 1903.15(d)(1) and (2).
ii. Serious Violation of the OSH Act of 1970, 29 U.S.C 666(b)
Section 17(b) of the OSH Act, 29 U.S.C 666(b), provides that employers who have received a citation for a serious violation of the requirements of section 5 of the OSH Act, of any standard, rule, or order promulgated under section 6 of the OSH Act, or applicable regulations may be assessed a civil penalty up to $7,000 for each violation. After applying the inflation adjustment factor, the penalty amounts were rounded to the nearest dollar, which resulted in a maximum penalty of $12,471. The updated maximum civil monetary penalty for serious violations is set out in Sec. 1903.15(d)(3).
iii. Other-Than-Serious Violation of the OSH Act of 1970, 29 U.S.C 666(c)
Section 17(c) of the OSH Act, 29 U.S.C 666(c), provides that employers who have received a citation for a violation of the requirements of section 5 of the OSH Act, any standard, rule or order promulgated under section 6 of the OSH Act, or applicable regulations, and such violation is determined not to be of a serious nature, may be assessed a civil penalty of up to $7,000 for each violation. After applying the inflation adjustment factor, the penalty amounts were rounded to the nearest dollar, which resulted in a maximum penalty of $12,471 for each day during which such failure or violation continues. The updated maximum civil monetary penalty for other-than-serious violations is set out in Sec. 1903.15(d)(4).
iv. Failure To Correct a Violation of the OSH Act of 1970, 29 U.S.C 666(d)
Section 17(d), 29 U.S.C 666(d), provides that any employer who fails to correct a violation for which a citation has been issued under section 9(a) of the OSH Act within the period permitted for the correction may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues. After applying the inflation adjustment factor, the penalty amounts are rounded to the nearest dollar, which resulted in a maximum penalty of $12,471. The updated maximum civil monetary penalty for failing to correct a violation is set out in Sec. 1903.15(d)(5).
v. Violation of a Posting Requirement of the OSH Act of 1970, 29 U.S.C 666(i)
Section 17(i) of the OSH Act, 29 U.S.C. 666(i), provides that employers who violate any of the posting requirements, as prescribed under provisions of the OSH Act, shall be assessed a civil penalty of up to $7,000 for each violation. After applying the inflation adjustment factor, the penalty amounts are rounded to the nearest dollar, which resulted in a maximum penalty of $12,471. The updated maximum civil monetary penalty for violations of the posting requirements is set out in Sec. 1903.15(d)(6).
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Employee Benefits Security Administration (29 CFR Part 2560, 2575, 2590)
1. General
This section F of the preamble addresses the civil monetary penalties administered by EBSA to enforce title I of the Employee Retirement Income Security Act of 1974, as amended, (ERISA). Paragraph 2(a) explains how the Department determined the date each civil monetary penalty was last adjusted by law or regulation (other than the Prior Inflation Adjustment Act, as amended), and Paragraph 2(b) describes the calculation of the catch-up adjustment for each ERISA civil monetary penalty through the use of a table. Paragraph 2(c) addresses the restructuring of 29 CFR part 2575 and other technical changes to the Department's regulations needed to reflect the amendments made to the Prior Inflation Adjustment Act by the Inflation Adjustment Act.
2. Specific Penalty Increases
a. Determination of Date Civil Monetary Penalty was Last Adjusted by Law or Regulation (Other Than the Prior Inflation Adjustment Act)
Section 5(b)(2)(B) of the Inflation Adjustment Act states that the initial cost-of-living adjustment (i.e., catch-up adjustment) shall be applied to the ``amount of the civil monetary penalty as it was most recently established or adjusted under a provision of law other than the Prior Inflation Adjustment Act.'' OMB guidance clarifies that the definition of the term ``law'' includes regulations where the statute grants the agency authority to establish a penalty or the dollar amount of the penalty by regulation. The Department has determined that no ERISA penalty amount has been adjusted by regulation or statute (other than the Prior Inflation Adjustment Act) subsequent to the enactment of the statute that established the initial amount of the penalty.
Certain ERISA civil monetary penalties apply to violations of more than one ERISA provision. For example, new violations of ERISA were subsequently added to the civil penalty provisions of sections 502(c)(4), and 502(c)(7).\8\ The addition of a violation to an existing penalty statute neither establishes nor adjusts the ``amount of the civil monetary penalty'' within the meaning of section 5(b)(2)(B) of the Inflation Adjustment Act. Because no ERISA civil monetary penalty amount has been adjusted by law (other than the Prior Inflation Adjustment Act) subsequent to its establishment, the enactment date of an ERISA penalty statute rather than the date a violation first becomes subject to the penalty
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determines both the amount of and the date from which the penalty is adjusted. For example, a failure to furnish certain multiemployer plan financial and actuarial information upon request under section 101(k) of ERISA will be subject to a penalty under ERISA section 502(c)(4) adjusted for inflation from 1993 (the year of enactment of section 502(c)(4), even though section 101(k) violations did not become subject to section 502(c)(4) until 2008.\9\ This interpretation tracks the language of the statute and ensures that ERISA violations subject to the same penalty are adjusted for inflation in a consistent manner. The Department is of the view that this consistency will in turn reduce both confusion and, ultimately, the burden upon the regulated community.
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\8\ Section 502(c)(4) was enacted in 1993 by Pub. L. 103-66, 107 Stat.312. A new violation was added to section 502(c)(4) in 2006 by Pub. L. 109-280, 120 Stat. 780. Section 502(c)(7) was enacted in 2002 by Pub. L. 107-204, 116 Stat. 745. Section 502(c)(7) also was amended in 2006 by Pub. L. 109-208, 120 Stat. 780, to add a new violation.
\9\ Pub. L. 109-280, August 17, 2006, effective for failures occurring in plan years beginning after 2007.
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The enactment dates of the ERISA statutes establishing the amount of the civil monetary penalties follow in Table B:
Table B--Enactment Dates
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Law (other than prior Inflation Adjustment Act)
Penalty statute: U.S.C. and ERISA most recently establishing amount of ERISA civil Enactment date
citations monetary penalties
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29 U.S.C. Sec. 1059(b)/ERISA Sec. Section 209(b) of the Employee Retirement Income September 2, 1974.
209(b). Security Act of 1974, Pub. L. 93-406, 88 Stat.
829.
29 U.S.C. Sec. 1132(c)(2)/ERISA Section 9342(c)(2) of the Omnibus Reconciliation December 22, 1987.
Sec. 502(c)(2). Act of 1987, Pub. L. 100-203, 101 Stat. 1330.
29 U.S.C. Sec. 1132(c)(4)/ERISA Section 4301(c)(2) of the Omnibus Budget August 10, 1993.\10\
Sec. 502(c)(4). Reconciliation Act of 1993, Pub. L. 103-66, 107
Stat. 312.
29 U.S.C. Sec. 1132(c)(5)/ERISA Section 101(e)(2) of the Health Insurance and August 21, 1996.
Sec. 502(c)(5). Portability and Accountability Act of 1996,
Pub. L. 104-91, 110 Stat. 1936.
29 U.S.C. Sec. 1132(c)(6)/ERISA Section 1503(c)(2)(B) of the Taxpayer Relief Act August 5, 1997.
Sec. 502(c)(6). of 1997, Pub. L. 105-34, 111 Stat. 788.
29 U.S.C. Sec. 1132(c)(7)/ERISA Section 306(b)(3) of the Sarbanes-Oxley Act of July 30, 2002.
Sec. 502(c)(7). 2002, Pub. L. 107-204, 116 Stat. 745.
29 U.S.C. Sec. 1132(c)(8)/ERISA Section 202(b)(3) of the Pension Protection Act August 17, 2006.
Sec. 502(c)(8). of 2006 (PPA), Pub. L. 109-280, 120 Stat. 780.
29 U.S.C. Sec. 1132(c)(9)(A)/ERISA Section 311(b)(1)(E) of the Children's Health February 4, 2009.
Sec. 502(c)(9)(A). Insurance Program Reauthorization Act of 2009,
Pub .L. 111-3, 123 Stat. 8.
29 U.S.C. Sec. 1132(c)(9)(B)/ERISA Section 311(b)(1)(E) of the Children's Health February 4, 2009.
Sec. 502(c)(9)(B). Insurance Program Reauthorization Act of 2009,
Pub. L. 111-3, 123 Stat. 8.
29 U.S.C. Sec. 1132(c)(10)/ERISA Section 101(e) of the Genetic Information May 21, 2008.
Sec. Sec. 502(c)(10)(B)(i), Nondiscrimination Act of 2008, Pub. L. 110-233,
(C)(i), (C) (ii), and (D)(iii)(II). 122 Stat. 881.
29 U.S.C. Sec. 1132(c)(12)/ERISA Section 102(b)(6)(B) of the Cooperative and April 7, 2014.
Sec. 502(c)(12). Small Employer Charity Pension Flexibility Act,
Pub. L. 113-97, 128 Stat. 1101.
29 U.S.C. Sec. 1132(m)/ERISA Sec. Section 761(a)(9)(B)(ii) of the Uruguay Round December 8, 1994.
502(m). Agreements Act, Pub. L. 103-465, 108 Stat. 4809.
29 U.S.C. Sec. 1185d and 42 U.S.C. Sections 1001(5) and 1562(e) of the Patient March 23, 2010.
Sec. 300gg-15/ERISA Sec. 715. Protection and Affordable Care Act, Pub. L. 111-
148, 124 Stat. 119.
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b. Calculation of Catch-Up Inflation Adjustment
Table C shows the calculation of the catch-up adjustment. Column (1) contains the United States Code and ERISA citations for the penalty statute. Column (2) contains the dollar amount most recently established by law (other than the Prior Inflation Adjustment Act) for each ERISA civil monetary penalty along with a description of the violations subject to the penalty. Column (3) sets out the year the amount of the civil monetary penalty was most recently established by law (other than the Prior Inflation Adjustment Act) based on the date of enactment found in Table B. Column (4) sets out the factor determined by OMB to adjust for inflation from October of the corresponding year in column (3) to October 2015. Column (5) sets out the adjusted civil monetary penalty resulting from the product of the dollar amount of the civil monetary penalty set out in Column (2) multiplied by the inflation factor in column (4). Column (6) sets out the actual civil monetary penalty in effect on November 2, 2015. Column (7) sets out the maximum catch-up penalty, which is the sum of the penalty amount in Column (6) plus the maximum penalty increase of 150 percent for a total of 250 percent of the 2015 penalty.\11\ Column (8) reflects the actual catch-up penalty, effective August 1, 2016, which is the lesser of the adjusted civil monetary penalty in Column (5) or the maximum civil monetary penalty in Column (7).
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\10\ Initially, section 502(c)(4) applied to a failure of a group health plan administrator to furnish information to the Medicare Medicaid Coverage Data Bank under former section 101(f) of ERISA. This requirement was repealed effective October 2, 1996, by the Child Support Incentive Act of 1998, Pub. L. 105-200. The reference to section 101(f) in section 502(c)(4) was deleted and replaced with a reference to violation of the notice requirements of section 302(b)(7)(F)(vi) of ERISA by section 104(a)(2) of the Pension Funding Equity Act of 2004, Pub. L. 108-218. Sections 103(b)(2), 502(a)(2), 502(b)(2) and 902(f)(2) of the PPA deleted the reference to section 302(b)(7)(F)(vi) and replaced it with references to violations of sections 101(j), 101(k), 101(l) and section 514(e)(3) of ERISA.
\11\ Section 5(2)(b)(C) of the Inflation Adjustment Act states that increase in the penalty resulting from the initial or catch-up adjustment may not be greater than 150 percent of the penalty amount on November 2, 2015. Mathematically, a maximum increase of 150 percent equals 250 percent of the penalty. See Bipartisan Budget Act of 2015 Section by Section Summary at p. 6 available at http://docs.house.gov/meetings/RU/RU00/CPRT-114-RU00-D001.pdf.
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Table C--Calculation of Catch-Up Adjustment
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(1) (2) (3) (4) (5) (6) (7) (8)
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Year CMP
Civil monetary amount last
penalty (CMP) amount set by law Inflation
last established by other than factor for Adjusted CMP-- $ amount in Catch-Up CMP--lesser of
ERISA penalty statute law and description prior year in column (2) x factor in CMP Amount 11/02/2015 CMP Cap--2.5 x column (6) column (5) or (7)
of ERISA violations Inflation column (3) column (4)
subject to the CMP Adjustment
Act
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29 U.S.C. 1059(b)/ERISA Sec. $10 per employee for 1974 4.65436 $47....................... $11...................... $28...................... $28.
209(b). failure to furnish
reports (e.g.,
pension benefit
statements) to
certain former
participants and
beneficiaries or
maintain records.
29 U.S.C. 1132(c)(2)/ERISA Sec. Up to $1,000 per day 1987 2.06278 2,063..................... 1,100.................... 2,750.................... 2,063.
502(c)(2). for each:
Failure or
refusal to file
annual report (Form
5500) required by
ERISA Sec. 104;
and.
Failure of a
multiemployer plan
to certify
endangered or
critical status
under Sec.
305(b)(3)(C) treated
as failure to file
annual report.
29 U.S.C. 1132(c)(4)/ERISA Sec. Up to a $1000 per day 1993 1.63238 1,632..................... 1,000.................... 2,500.................... 1,632.
502(c)(4). for each:
Failure to
notify participants
under ERISA Sec.
101(j) of certain
benefit restrictions
and/or limitations
arising under
Internal Revenue
Code section 436;.
Failure to
furnish certain
multiemployer plan
financial and
actuarial reports
upon request under
ERISASec. 101(k).
Failure to
furnish estimate of
withdrawal liability
upon request under
ERISA Sec. 101(l);
and
Failure to
furnish automatic
contribution
arrangement notice
under ERISA Sec.
514(e)(3).
29 U.S.C. 1132(c)(5)/ERISA Sec. Up to $1,000 per day 1996 1.50245 1,502..................... 1,100.................... 2,750.................... 1,502.
502(c)(5). for each failure of
a multiple employer
welfare arrangement
to file report
required by
regulations issued
under ERISA Sec.
101(g).
29 U.S.C. 1132(c)(6)/ERISA Sec. Up to $100 per day 1997 1.47177 147 not to exceed 1,472... 110 not to exceed 1,100.. 275 not to exceed 2,750.. 147 not to exceed 1,472.
502(c)(6). for failure to
furnish information
requested by
Secretary of Labor
under ERISA Sec.
104(a)(6) but not
greater than $1,000
per request.
29 U.S.C. 1132(c)(7)/ERISA Sec. Up to $100 per day 2002 1.31185 131....................... 100...................... 250...................... 131.
502(c)(7). for each failure to
furnish a required
blackout notice
under section 101(i)
of ERISA and of
right to divest
employer securities
under section
101(m)-- each
statutory recipient
a separate
violation.
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29 U.S.C. 1132(c)(8)/ERISA Sec. Up to $1,100 per day 2006 1.17858 1,296..................... 1,100.................... 2,750.................... 1,296.
502(c)(8). for failure by a
plan sponsor of a
multiemployer plan
in endangered status
to adopt a funding
improvement plan or
a multiemployer plan
in critical status
to adopt a
rehabilitation plan.
Penalty also applies
to a plan sponsor of
an endangered status
plan (other than a
seriously endangered
plan) that fails to
meet its benchmark
by the end of the
funding improvement
period.
29 U.S.C. 1132(c)(9)(A)/ERISA Sec. Up to $100 per day 2009 1.10020 110....................... 100...................... 250...................... 110.
502(c)(9)(A). for each failure by
an employer to
inform employees of
CHIP coverage
opportunities under
ERISA Sec.
701(f)(3)(B)(i)(l)--
each employee a
separate violation.
29 U.S.C. 1132(c) (9)(B)/ERISA Up to $100 per day 2009 1.10020 110....................... 100...................... 250...................... 110.
Sec. 502(c)(9) (B). for each failure by
a plan administrator
to timely provide to
any State
information required
to be disclosed
under ERISA Sec.
701(f)(3)(B)(ii),
regarding coverage
coordination--each
participant/
beneficiary a
separate violation.
29 U.S.C. 1132(c)(10)/ERISA Sec. $100 per participant 2008 1.09819 110....................... 100...................... 250...................... 110.
502(c)(10). or beneficiary per
day during
noncompliance period
for failure by any
plan sponsor of
group health plan,
or any health
insurance issuer
offering health
insurance coverage
in connection with
the plan, to meet
the requirements of
ERISA Sec. Sec.
702(a)(1)(F),
(b)(3), (c) or (d);
or Sec. 701; or
Sec. 702(b)(1)
with respect to
genetic information.
See ERISA Sec.
502(c)(10)(B)(i).
Minimum penalty of 2008 1.09819 2,745..................... 2,500.................... 6,250.................... 2,745.
$2,500 per
participant or
beneficiary for de
minimis failures not
corrected prior to
notice from
Secretary of Labor.
See ERISA Sec.
502(c)(10)(C)(i).
Minimum penalty of 2008 1.09819 16,473.................... 15,000................... 37,500................... 16,473.
$15,000 per
participant or
beneficiary for
failures which are
not corrected prior
to notice from
Secretary of Labor
and are not de
minimis. See ERISA
Sec.
502(c)(10)(C)(ii).
$500,000 cap on 2008 1.09819 549,095................... 500,000.................. 1.25 million............. 549,095.
unintentional
failures. See ERISA
Sec.
502(c)(10)(D)(iii)(I
I).
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29 U.S.C. 1132(c)(12)/ERISA Sec. Up to $100 per day 2014 1.00171 100....................... 100...................... 250...................... 100.
502(c)(12). for failure of CSEC
plan sponsor to
establish or update
a funding
restoration plan.
29 U.S.C. 1132(m)/ERISA Sec. Up to $10,000 per 1994 1.59089 15,909.................... 10,000................... 25,000................... 15,909.
502(m). distribution
prohibited by ERISA
Sec. 206(e).
29 U.S.C. 1185d and 42 U.S.C. Up to $1000 per 2010 1.08745 1,087..................... 1,000.................... 2,500.................... 1,087.
300gg-15/ERISA Sec. 715. failure to provide
Summary of Benefits
Coverage under
Public Health
Services Act section
2715(f), as
incorporated in
ERISA section Sec.
715 and 29 CFR
2590.715-2715(e).
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c. Structure
Currently, subpart A of part 2575 (Adjustment of Civil Penalties under ERISA Title I) of title 29 of the Code of Federal Regulations contains 7 sections (one general section and a separate section for the six previously adjusted penalties). Due to the large number of title I penalties adjusted for inflation by this IFR, the Department has decided to simplify the structure of subpart A of part 2575. This IFR replaces Sec. Sec. 2575.100, 2575.209b-1, 2575.502c-2, 2575.502c-5, and 2575.502c-6 with new Sec. Sec. 2575.1, 2575.2, and 2575.3. Section 2575.1 In general contains the implementing language. Section 2575.2 Catch-up adjustments to civil monetary penalties sets out the inflation adjustments for each ERISA penalty from establishment of the penalty amount through August 1, 2016. Section 2575.3 Subsequent adjustments to civil monetary penalties addresses post-2016 non-regulatory inflation adjustments.
Also, as a result of the amendments made to the Prior Inflation Adjustment Act by the Inflation Adjustment Act, the IFR also makes minor technical changes to Sec. Sec. 2560.502c-2, 2560.502c-4, 2560.502c-5, 2560.502c-6, 2560.502c-7, and 2560.502c-8 of 29 CFR part 2560 and Sec. 2590.715-2715(e) of 29 CFR part 2950.
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Mine Safety and Health Administration (30 CFR Part 100)
1. General
This section G of the preamble addresses the civil monetary penalties administered by Mine Safety and Health Administration (MSHA) to enforce provisions of the Federal Mine Safety & Health Act of 1977 (Mine Act) (Pub. L. 91-173), as amended. Paragraphs 2(a) through (c) explain revisions to each of the civil penalties administered and enforced by MSHA.
2. Specific Penalty Adjustments
In accordance with the Inflation Adjustment Act, MSHA is adjusting its penalty amounts in Sec. Sec. 100.3, 100.4, and 100.5 by calculating the catch-up adjustments for these penalties from the date of the last statute or regulation (other than the Prior Inflation Adjustment Act) that set these penalties. All MSHA penalties were last set in 2007. See 72 FR 13592 (Mar. 22, 2007). Subsequently (after 2007), some but not all of MSHA's penalties also were adjusted for inflation. This rule uses the 2007 final rule as the base year in calculating all of MSHA's penalty inflation adjustments, rounded to the nearest dollar. While this has resulted in different relative impacts on particular penalty amounts depending on whether any inflation adjustments occurred for that penalty since 2007, the net effect of these adjustments is to increase MSHA's penalties.
a. Section 100.3--Determination of Penalty Amount; Regular Assessment
Regularly assessed penalties are established by a penalty conversion table in part 100 that sets penalties based on the number of points a citation has been assigned. MSHA assigns points using a number of factors described in part 100, including the negligence of the operator and the gravity of the violation, among other criteria. Currently, a range of points--from 60 or fewer to 144 or more--is available; more points result in higher penalties. Penalties can range anywhere at or between the minimum penalty and the maximum penalty, based on the number of points assigned. Thus, the effect of MSHA's penalty conversion table as a whole is a function of both the amount of the minimum and maximum penalties and the rate of the progression between those two outer points. In order to fully assess how to adjust for inflation as prescribed by the statute, it is necessary to look at the interaction of all three of these factors--minimum penalty, maximum penalty, and the rate of progression between the two. As described below, we have adjusted all three elements. The result is an upward adjustment for inflation equal to 13.6% for penalties assessed overall pursuant to the penalty table (calculated using MSHA's 2015 penalty data).
Existing Sec. 100.3(a)(1) provides that an operator of any mine in which a violation of a mandatory health or safety standard occurs or who violates any other provisions of the Mine Act shall be regularly assessed a civil penalty of not more than $70,000. To calculate the adjustment of this penalty under the Inflation Adjustment Act, MSHA multiplied $60,000, the maximum civil penalty last established by regulation (other than the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which results in a penalty amount of $68,300. The inflation-adjusted amount of $8,300 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $70,000 penalty in effect as of November 2, 2015, which is $105,000. Therefore, the maximum regular
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assessment for an operator of any mine in which a violation of a mandatory health or safety standard occurs or who violates any other provisions of the Mine Act is $68,300, a decrease of $1,700 from the existing penalty amount of $70,000. The new maximum penalty of $68,300 is also the maximum amount available under MSHA's penalty conversion table in Sec. 100.3(g).
Section 100.3(g) provides the penalty conversion table used to convert total penalty points to a dollar amount. As discussed above, the points are assigned to a violation based on the criteria listed in 30 CFR part 100. The existing penalty conversion table assigns dollar amounts to penalty points that range from 60 or fewer to 144 or more. For this final rule, MSHA is using the penalty point conversion table last established by regulation (other than the Prior Inflation Adjustment Act) in 2007 (72 FR 13592)--both for purposes of determining minimum and maximum penalties and the point range between those two points. The penalty point range in the 2007 regulation used a penalty point range from 60 points or fewer to 140 points or more. For this reason, MSHA is changing the existing penalty point maximum of 144 points or more back to the maximum of 140 points or more. As described below, the result is an upward adjustment for inflation equal to 13.6 percent for penalties assessed overall (using 2015 penalty data) pursuant to the penalty conversion table.
To adjust the existing minimum penalty for inflation, MSHA multiplied $112, the minimum civil penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $127. The $15 penalty increase is less than the statutory catch-up adjustment cap of a 150 percent increase of the $112 penalty in effect as of November 2, 2015, which is $168. Therefore, the minimum penalty in the penalty conversion table is $127.
The inflation adjusted penalty conversion table in Sec. 100.3(g) maintains the minimum penalty for 60 points or fewer at the new inflation-adjusted amount of $127. For each additional point above 60 up to 140, the existing penalty conversion table increased the dollar penalty by the same 2007 inflation adjustment factor of 1.13833 for each point. After calculating all values, MSHA rounded all values to the nearest dollar. Although the maximum penalty decreased from $70,000 to $68,3000, applying the new table to MSHA's 2015 assessment data results in a 13.6 percent increase (just slightly less than the 13.8 percent inflation adjustment for 2007).
b. Section 100.4--Unwarrantable Failure and Immediate Notification
Section 100.4(a) provides the minimum penalty for citations or orders issued under Sec. 104(d)(1) of the Mine Act at $2,000. To adjust the existing minimum penalty for inflation, MSHA multiplied $2,000, the minimum penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $2,277. The penalty increase of $277 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $2,000 penalty in effect as of November 2, 2015, which is $3,000. Therefore, the minimum penalty for any citation or order issued under section 104(d)(1) of the Mine Act is $2,277.
Section 100.4(b) states that the minimum penalty for any order issued under section 104(d)(2) of the Mine Act is $4,000. To adjust the existing minimum penalty for inflation, MSHA multiplied $4,000, the minimum penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $4,553. The penalty increase of $553 is less than the statutory catch-
up adjustment cap of a 150 percent increase of the $4,000 penalty in effect as of November 2, 2015, which is $6,000. Therefore, the minimum penalty for any citation or order issued under section 104(d)(2) of the Mine Act is $4,553.
Section 100.4(c) states that the penalty for failure to provide timely notification of a death or entrapment of a miner or miners at a mine to the Secretary of Labor under section 103(j) of the Mine Act, as amended, will not be less than a penalty of $5,000 and not more than a penalty of $65,000. To adjust the existing minimum penalty, MSHA multiplied $5,000, the minimum civil penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $5,692. The penalty increase of $692 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $5,000 penalty in effect as of November 2, 2015, which is $7,500. Therefore, the minimum penalty for failure to provide timely notification to the Secretary under section 103(j) of the Mine Act is $5,692. To adjust the existing maximum penalty, MSHA multiplied $60,000, the maximum penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $68,300. The penalty increase of $8,300 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $65,000 penalty in effect as of November 2, 2015, which is $97,500. Therefore, the maximum penalty for failure to provide timely notification to the Secretary under section 103(j) of the Mine Act is $68,300.
c. Section 100.5--Determination of Penalty Amount; Special Assessment
Section 100.5(c) addresses penalties that may be assessed daily to an operator who fails to correct a violation for which a citation or order has been issued under Section 104(a) of the Mine Act. The existing maximum daily penalty assessment is $7,500.
To adjust the penalty for inflation, MSHA multiplied $6,500, the penalty amount last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $7,399. The inflation-adjusted amount of $899 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $7,500 penalty in effect as of November 2, 2015, which is $11,250. Therefore, the daily penalty assessed an operator who fails to correct a violation for which a citation or order has been issued under Section sec. 104(a) of the Mine Act is $7,399, a decrease of $101 from the existing penalty amount of $7,500.
Section 100.5(d) addresses penalties for miners who violate mandatory safety standards relating to smoking and smoking materials underground. The existing maximum smoking penalty is $375. To adjust the penalty for inflation, MSHA multiplied the penalty $275, the maximum smoking penalty amount last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $313. The inflation-adjusted amount of $38 is less than the statutory catch-up adjustment cap of a 150 percent increase of the $375 penalty in effect as of November 2, 2015, which is $563. Therefore, the penalty assessed for a miner who violates mandatory safety standards relating to smoking and smoking materials underground is $313,
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a decrease of $62 from the existing penalty amount of $375.
Section 100.5(e) provides a maximum penalty for violations that are deemed to be flagrant under 110(b)(2) of the Mine Act. The existing maximum penalty is $242,000. To adjust the penalty for inflation, MSHA multiplied $220,000, the penalty last established by regulation (other than under the Prior Inflation Adjustment Act) in 2007 (72 FR 13592), by the inflation adjustment factor for 2007 of 1.13833, which resulted in a penalty of $250,433. The penalty increase of $8,433 is less than the statutory catch-up adjustment increase cap of a 150 percent increase of the $242,000 penalty in effect as of November 2, 2015, which is $363,000. Therefore, the maximum penalty for violations that are deemed flagrant under sec. 110(b) of the Mine Act is $250,433.
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the Department consider the impact of paperwork and other information collection burdens imposed on the public. The Department has determined that this final rule does not require any collection of information.
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Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review
Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of significant regulatory actions. Under the Executive Order, a ``significant regulatory action'' is one meeting any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more; creating a serious inconsistency or interfering with an action of another agency; materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. The IFR's increases in the maximum civil money penalties that agencies are authorized to assess for violations of laws they administer are required by the statutorily-mandated provisions of the Inflation Adjustment Act, which was enacted by Congress as part of the Bipartisan Budget Act of 2015. This IFR is a ``significant'' regulatory action because the Department's analysis shows that it could potentially have an annual effect on the economy of more than $100 million.
The Department considered two potential effects of the increased penalties mandated by the Inflation Adjustment Act: (1) Increased transfers from employers and others who violate the law (and therefore pay penalties) to the government; and (2) the benefits to workers, retirees, and responsible employers and others of increased penalties that will encourage greater compliance with the laws that the Department enforces. Each of these effects is discussed in turn.
Transfers to Government
The Department estimated the increased transfers from employers and others who violate the law to the government by conducting a provision-
by-provision analysis of each of the penalties affected by the Inflation Adjustment Act. The Department considered the total dollar amount of penalties collected under each affected penalty over the immediately preceding three complete fiscal years (2013, 2014, and 2015) to calculate the average total penalties collected under each statute.\12\ Then the Department projected how the amount collected under each statute would increase if it did so in proportion to the percentage increase of the maximum penalty for that statute.\13\ The result--approximately $140 million in additional transfers from the regulated community to the government each year--is enumerated by agency in Table D.
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\12\ The total penalties collected in fiscal years 2013 and 2014 were adjusted for inflation using the CPI-U to put them into fiscal year 2015 dollars previous to the calculation of three-year collection averages.
\13\ Exceptions were made to this method with respect to three provisions of the Mine Act. To calculate projected total penalty collections under sections 104(d)(1) and 104(d)(2), the three-year averages of penalties collected under each provision between fiscal years 2013 and 2015 were multiplied by the percentage increases in the minimum required penalties for each statute. To calculate projected total penalties collected using MSHA's penalty conversion table, MSHA used the detailed assessment data from fiscal years 2013, 2014, and 2015 to estimate total assessed dollar values for each year using both the existing and new conversion tables. The total dollar values produced using the new inflation-adjusted conversion table were then compared to the dollar values produced using the existing conversion table. The resulting annual percent changes for fiscal years 2013, 2014, and 2015 were 13.5 percent, 13.5 percent, and 13.6 percent respectively. These annual percentages were then multiplied by the annual dollar collection totals for each fiscal year to obtain projected collections by fiscal year, and a three-year average was then taken to produce a single projected collection total.
Table D--Projected Penalties
Inflation Adjustment Act: Total penalties by agency, 3-year average (2013-2015)
----------------------------------------------------------------------------------------------------------------
Dollar Amount Collected ($FY2015)
-----------------------------------------------
Agency Total
Total (current (projected Numeric change
penalties) penalties)
----------------------------------------------------------------------------------------------------------------
EBSA............................................................ $17,667,363 $33,134,336 $15,466,973
MSHA............................................................ 73,112,904 82,812,155 9,699,251
OSHA (federal).................................................. 141,969,042 252,927,499 110,958,457
OWCP............................................................ 19,674 45,470 25,797
WHD/ETA/OSEC.................................................... 6,894,835 10,541,217 3,646,383
-----------------------------------------------
Total....................................................... 239,663,817 379,460,677 139,796,860
----------------------------------------------------------------------------------------------------------------
The Department notes that this amount could be an overestimate of transfers given that its collections are likely to be lower than projected under the new penalties established by the Inflation Adjustment Act. First, it does not account for a key factor underpinning long-established deterrence principles: That rational actors are less likely to commit violations when faced with higher penalties.\14\ It is therefore conceivable
Page 43446
that the increase in penalties collected would not be proportional to the increase in penalties that might be assessed by an agency, but would instead be less.\15\ In addition, this estimate also assumes that the Department's collections will continue at approximately the same rate each year despite increased penalties. Together, these factors suggest that the amount of the transfers from the regulated community to the government is likely to be lower than the $140 million projected above.
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\14\ See generally Gary S. Becker, Essays in the Economics of Crime and Punishment, Ch. 1 (1974), available at http://www.nber.org/chapters/c3625.pdf. These concepts are also reflected in the Inflation Adjustment Act. 28 U.S.C. 2461 Note, Sec. 2(a)(1) (``The power of Federal agencies to impose civil monetary penalties for violations of Federal law and regulations plays an important role in deterring violations and furthering the policy goals embodied in such laws and regulations.''); 2(b)(2) (``The purpose of this Act is to establish a mechanism that shall . . . maintain the deterrent effect of civil monetary penalties and promote compliance with the law.''); S. 535: Hearing before Subcomm. Legis & Nat'l Sec. of the H. Comm. Gov't Ops., 101st Cong. 3 (1990) (hereinafter 1990 Hearing) (statement of Rep. Conyers) (``At the heart . . . of regulatory statutes . . . are the monetary fines intended to both penalize and deter practices prohibited by these laws.''); Id. at 70 (statement of HHS Inspector Gen. Kusserow) (``We have found that civil monetary penalties are a very effective enforcement tool and have also seen them become a very good deterrent against fraud.''). Research suggests that the same concepts apply in labor law violations as well. See, e.g., Orley Ashenfelter & Robert S. Smith, Compliance with the Minimum Wage Law, 87 Journal of Political Economy 333 (1979), available at http://www.jstor.org/stable/1832090?seq=1#page_scan_tab_contents.
\15\ In addition, it is important to note that the IFR does not revoke existing provisions of the laws above that provide the Department with discretion in determining the appropriate civil penalty amounts below any particular maximum penalty. Nor does the IFR amend any requirements in these laws that the Department consider mitigating factors in making such determinations, such as the severity of the violation, the number of workers affected by the violation, the entity's compliance history, or the size of the entity.
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OSHA's penalty increases under the Inflation Adjustment Act will necessitate an increase to the maximum and minimum penalty amounts required by states that administer their own occupational safety and health programs as well. Section 18 of the OSH Act (29 U.S.C. 667) requires states with OSHA-approved State Plans covering private-sector and state and local government employees to have standards and an enforcement program that are at least as effective as Federal OSHA's standards and enforcement program. Twenty-two (22) States and U.S. territories have State Plans that cover private sector employees and state and local government employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. The existing regulation at 29 CFR 1902.4(c)(2)(xi) provides that in order to satisfy this requirement of effectiveness, State Plans must have effective sanctions, such as those prescribed in the OSH Act. Similarly, 29 CFR 1902.37(b)(12) requires State Plans with final approval to propose penalties in a manner at least as effective as under the federal program. This IFR amends 29 CFR 1902.4(c)(2)(xi) to clarify that State Plans must provide sanctions as effective as those set forth in the OSH Act and in 29 CFR 1903.15(d).
OSHA will require State Plans to increase their penalties to reflect the federal penalties increases at the state levels in order to maintain this ``at least as effective'' status. If every State Plan state increases its own penalties in line with the federal increases, using the same methodology outlined above, the additional transfer from employers to OSHA State Plans would be $57.1 million, as enumerated in Table E.
Table E--Projected Penalties
Inflation Adjustment Act: OSHA state plans, 3-Year average (2013-2015)
----------------------------------------------------------------------------------------------------------------
Dollar amount collected ($FY2015)
--------------------------------------------------
Total
Total (current (projected Numeric change
penalties) penalties)
----------------------------------------------------------------------------------------------------------------
OSHA State Plans............................................. $73,121,821 $130,271,603 $57,149,782
----------------------------------------------------------------------------------------------------------------
Benefits to Workers, Retirees, and Responsible Employers
Meanwhile, the Inflation Adjustment Act's penalty increase will have significant benefits for workers, retirees, and responsible employers and others in the regulated community. While most employers play by the rules, there are too many cases where workers are cheated out of their hard-earned wages or retirement benefits or forced to endure an unsafe workplace. By deterring violations and promoting compliance, more workers and retirees will benefit from the core employment law protections that the Department administers and enforces. Furthermore, responsible employers and others who remain in compliance with the Department's laws will face less competition from the minority of employers who make a calculated decision to save money by eschewing compliance with these laws.\16\ Those who follow the law will essentially benefit from a more level playing field when competing with those who do not. The Department has been unable to quantify these significant benefits.
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\16\ Entities that violate the basic labor protections described above such that they are subject to civil penalties have often benefitted from their non-compliance with such requirements over a length of time before being investigated, assessed and required to pay penalties for their illegal activities. As noted above, the rule only adjusts the authorized levels of civil money penalties to account for inflation over time. Of course, to the extent that civil penalties increase, there will be increased revenues to the government from entities that have been found to have violated the law. See 1990 Hearing at 15 (discussing the importance of the government fully understanding how many civil monetary penalties are assessed and collected and discussing the benefit to taxpayers of increased revenue for government).
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-
Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes certain requirements on Federal agency rules that are subject to the notice and comment requirements of the Administrative Procedure Act (APA), 5 U.S.C. 553(b), and that are likely to have a significant economic impact on a substantial number of small entities. This IFR is exempt from the requirements of the APA because the Inflation Adjustment Act directed the Department to issue an interim final rule. Therefore, the requirements of the RFA applicable to notices of proposed rulemaking, 5 U.S.C. 603, do not apply to this IFR. Accordingly, the Department is not required to either certify that the IFR would not have a significant economic impact on a substantial number of small entities or conduct a regulatory flexibility analysis.
Page 43447
-
Other Regulatory Considerations
-
The Unfunded Mandates Reform Act of 1995
The Department estimates that the IFR may result in transfers of up to $140 million per year, and acknowledges that this IFR may yield effects that make it subject to UMRA requirements. Therefore, the Department carried out the requisite cost-benefit analysis in the section discussing Executive Orders 12866 and 13563 above.
-
Executive Order 13132: Federalism
As described above, Section 18 of the OSH Act (29 U.S.C. 667) requires OSHA-approved State Plans to have standards and an enforcement program that are at least as effective as federal OSHA's standards and enforcement program. The existing regulation at 29 CFR 1902.4(c)(2)(xi) provides that in order to satisfy this requirement of effectiveness, State Plans must have effective sanctions, such as those prescribed in the OSH Act. Similarly, 29 CFR 1902.37(b)(12) requires State Plans with final approval to propose penalties in a manner at least as effective as under the federal program. This IFR amends 29 CFR 1902.4(c)(2)(xi) to clarify that State Plans must provide sanctions as effective as those set forth in the OSH Act and in 29 CFR 1903.15(d).
In accordance with Part 1953, State Plans are required to adopt penalty changes that are at least as effective as federal OSHA, within six months after publication of the Department's IFR amending OSHA's penalties. Thereafter, OSHA penalties will be increased by the cost-of-
living adjustment for every subsequent year by January 15th. State Plans will also be required to increase their penalties regularly in the future to maintain at least as effective penalty levels.
State Plans are not required to impose monetary penalties on state and local government employers. See Sec. 1956.11(c)(2)(x). Five (5) states and one territory have State Plans that cover only state and local government employees: Connecticut, Illinois, New Jersey, New York, Maine, and the Virgin Islands. Therefore, the requirements to increase the penalty levels do not apply to these State Plans. Twenty-
one (21) states and one U.S. territory have State Plans that cover both private sector employees and state and local government employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. These states must increase their penalties for private-
sector employers.
Other than as listed above, this IFR does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.
-
Executive Order 13175: Indian Tribal Governments
This IFR does not have ``tribal implications'' because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.
-
The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families
This IFR will have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment.
-
Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This IFR will have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis.
-
Environmental Impact Assessment
A review of this Final Rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.; the regulations of the Council on Environmental Quality, 40 CFR 1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11, indicates that the Final Rule will not have a significant impact on the quality of the human environment. As a result, there is no corresponding environmental assessment or an environmental impact statement.
-
Executive Order 13211: Energy Supply
This IFR has been reviewed for its impact on the supply, distribution, and use of energy because it applies, in part, to the coal mining and uranium industries. MSHA has concluded that the adjustment of civil monetary penalties to keep pace with inflation and thus maintain the incentive for operators to maintain safe and healthful workplaces is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This IFR has not been identified to have other impacts on energy supply. Accordingly, Executive Order 13211 requires no further Agency action or analysis.
-
Executive Order 12630: Constitutionally Protected Property Rights
This IFR will not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis.
-
-
Executive Order 12988: Civil Justice Reform Analysis
This IFR was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. This IFR was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. The Department has determined that this IFR meets the applicable standards provided in section 3 of Executive Order 12988.
List of Subjects
20 CFR Part 655
Immigration, Penalties, Labor.
20 CFR Part 702
Administrative practice and procedure, Longshore and harbor workers, Penalties, Reporting and recordkeeping requirements, Workers' compensation.
Administrative practice and procedure, Black lung benefits, Coal miners, Penalties, Reporting and recordkeeping requirements.
Page 43448
20 CFR Part 726
Administrative practice and procedure, Black lung benefits, Coal miners, Mines, Penalties.
29 CFR Part 5
Administrative practice and procedure, Construction industry, Employee benefit plans, Government contracts, Law enforcement, Minimum wages, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Aliens, Housing, Insurance, Intergovernmental relations, Investigations, Migrant labor, Motor vehicle safety, Occupational safety and health, Penalties, Reporting and recordkeeping requirements, Wages, Whistleblowing.
Administrative practice and procedure, Agriculture, Aliens, Employment, Housing, Housing standards, Immigration, Labor, Migrant labor, Penalties, Transportation, Wages.
Administrative practice and procedure, Clothing, Homeworkers, Indians--arts and crafts, Penalties, Reporting and recordkeeping requirements, Surety bonds, Watches and jewelry.
Administrative practice and procedure, Agriculture, Child labor, Intergovernmental relations, Occupational safety and health, Reporting and recordkeeping requirements.
29 CFR Part 578
Penalties, Wages.
Child labor, Penalties.
Administrative practice and procedure, Employment, Lie detector tests, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Airmen, Employee benefit plans, Health, Health insurance, Labor management relations, Maternal and child health, Penalties, Reporting and recordkeeping requirements, Teachers.
29 CFR Parts 1902 and 1903
Intergovernmental relations, Law enforcement, Occupational Safety and Health, Penalties.
29 CFR Part 2560
Employee benefit plans, Employee Retirement Income Security Act, Law enforcement, Penalties, Pensions, Reporting and recordkeeping
29 CFR Part 2575
Administrative practice and procedure, Employee benefit plans, Employee Retirement Income Security Act, Health care, Penalties, Pensions
29 CFR Part 2590
Employee benefit plans, Employee Retirement Income Security Act, Health care, Health insurance, Penalties, Pensions, Reporting and recordkeeping
30 CFR Part 100
Mine safety and health, Penalties.
41 CFR Part 50-201
Child labor, Government procurement, Minimum wages, Occupational safety and health, Reporting and recordkeeping requirements.
Department of Labor
Employment and Training Administration
For the reasons stated in the preamble, 20 CFR part 655 is amended as follows:
Title 20--Employees' Benefits
PART 655--TEMPORARY EMPLOYMENT OF FOREIGN WORKERS IN THE UNITED STATES
0
1. Revise the general authority citation for part 655 to read as follows:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m), (n), and (t), 1184, 1188, and 1288(c) and (d); 29 U.S.C. 49 et seq.; sec. 3(c)(1), Pub. L. 101-
238, 103 Stat. 2099, 2102 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); sec. 323, Pub. L. 103-206, 107 Stat. 2149; Title IV, Pub. L. 105-277, 112 Stat. 2681; Pub. L. 106-95, 113 Stat. 1312 (8 U.S.C. 1182 note); and 8 CFR 213.2(h)(4)(i). Section 655.00 issued under 8 U.S.C. 1101(a)(15)(H)(ii), 1184, and 1188; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i). Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et seq.; and 8 CFR 214.2(h)(4)(i) ; and 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), Pub. L. 114-74 at Sec. 701. Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 U.S.C. 49 et seq; and 28 U.S.C. 2461 note, Pub. L. 114-
74 at Sec. 701. Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m), and 1184; 29 U.S.C. 49 et seq.; and sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note). Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 U.S.C. 49 et seq; and 28 U.S.C. 2461 note, Pub. L. 114-74 at Sec. 701. Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b) and (b1), 1182(n), 1182(t), and 1184; 29 U.S.C. 49 et seq.; sec 303(a)(8), Pub. L. 102-232, 105 Stat. 1733, 1748 (8 U.S.C. 1182 note); and Title IV, Pub. L. 105-277, 112 Stat. 2681; and 28 U.S.C. 2461 note, Pub. L. 114-74 at Sec. 701. Subparts J and K issued under 29 U.S.C. 49 et seq.; and sec. 221(a), Pub. L. 101-
649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note). Subparts L and M issued under 8 U.S.C. 1101(a)(15)(H)(i)(c), 1182(m), and 1184; and 29 U.S.C. 49 et seq.
0
2. Amend Sec. 655.620 by revising paragraph (a) to read as follows:
Sec. 655.620 Civil money penalties and other remedies.
(a) The Administrator may assess a civil money penalty not to exceed $8,908 for each alien crewmember with respect to whom there has been a violation of the attestation or subpart F or G of this part. The Administrator may also impose appropriate remedy(ies).
* * * * *
0
3. Amend Sec. 655.801 by revising paragraph (b) to read as follows:
Sec. 655.801 What protection do employees have from retaliation?
* * * * *
(b) It shall be a violation of this section for any employer to engage in the conduct described in paragraph (a) of this section. Such conduct shall be subject to the penalties prescribed by sections 212(n)(2)(C)(ii) or (t)(3)(C)(ii) of the INA and Sec. 655.810(b)(2), i.e., a fine of up to $7,251, disqualification from filing petitions under section 204 or section 214(c) of the INA for at least two years, and such further administrative remedies as the Administrator considers appropriate.
* * * * *
0
4. Amend Sec. 655.810 by revising paragraphs (b)(1), (2) and (3) introductory text, to read as follows:
Sec. 655.810 What remedies may be ordered if violations are found?
* * * * *
(b) * * *
(1) An amount not to exceed $1,782 per violation for:
* * * * *
(2) An amount not to exceed $7,251 per violation for:
* * * * *
(3) An amount not to exceed $50,758 per violation where an employer (whether or not the employer is an H-1B-dependent employer or willful violator) displaced a U.S. worker employed by the employer in the period beginning 90 days before and ending 90 days after the filing of an H-1B petition
Page 43449
in conjunction with any of the following violations:
* * * * *
Department of Labor
Office of Workers' Compensation Programs
For the reasons stated in the preamble, 20 CFR parts 702, 725, and 726 are amended as follows:
Title 20--Employees' Benefits
PART 702--ADMINISTRATION AND PROCEDURE
0
5. The authority citation for part 702 is revised to read as follows:
Authority: 5 U.S.C. 301, and 8171 et seq.; 33 U.S.C. 901 et seq.; 42 U.S.C. 1651 et seq.; 43 U.S.C. 1333; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec.701; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64 Stat. 1263; Secretary's Order 10-2009, 74 FR 58834.
0
6. Revise Sec. 702.204 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 $22,587 for each such failure, refusal, false statement, or misrepresentation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.
0
7. Revise Sec. 702.236 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 $275 for any violation for which penalties are assessed after August 1, 2016. The district director has the authority and responsibility for assessing a civil penalty under this section.
0
8. In Sec. 702.271, revise paragraph (a)(2) to read as follows:
Sec. 702.271 Discrimination; against employees who bring proceedings, prohibition and penalty.
(a)(1) * * *
(2) Any employer who violates this section, and has penalties assessed for such violation after August 1, 2016, shall be liable for a penalty of not less than $2,259 or more than $11,293 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.
* * * * *
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
0
9. The authority citation for part 725 is revised to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec. 701; Reorganization Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901 et seq., 902(f), 921, 932, 936; 33 U.S.C. 901 et seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.
0
10. In Sec. 725.621, revise paragraph (d) to read as follows:
Sec. 725.621 Reports.
* * * * *
(d) Any employer who fails or refuses to file any report required of such employer under this section, and has penalties assessed for such failure or refusal after August 1, 2016, shall be subject to a civil penalty not to exceed $1,375 for each failure or refusal, which penalty shall be determined in accordance with the procedures set forth in subpart D of part 726 of this subchapter, as appropriate.
* * * * *
PART 726--BLACK LUNG BENEFITS; REQUIREMENTS FOR COAL MINE OPERATOR'S INSURANCE
0
11. The authority citation for part 726 is revised to read as follows:
Authority: 5 U.S.C. 301; 33 U.S.C. 901 et seq., 902(f), 925, 932, 933, 934, 936; 33 U.S.C. 901 et seq.; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at sec. 701; Reorganization Plan No. 6 of 1950, 15 FR 3174; Secretary's Order 10-2009, 74 FR 58834.
0
12. Revise Sec. 726.300 to read as follows.
Sec. 726.300 Purpose and scope.
Any operator which is required to secure the payment of benefits under section 423 of the Act and Sec. 726.4 and which fails to secure such benefits, shall be subject to a civil penalty of not more than $1,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended, for each day during which such failure occurs. If the operator is a corporation, the president, secretary, and treasurer of the operator shall also be severally liable for the penalty based on the operator's failure to secure the payment of benefits. This subpart defines those terms necessary for administration of the civil money penalty provisions, describes the criteria for determining the amount of penalty to be assessed, and sets forth applicable procedures for the assessment and contest of penalties.
0
13. In Sec. 726.302, revise paragraphs (c)(2)(i), (4), and (5) and add (c)(6) to read as follows:
Sec. 726.302 Determination of penalty.
* * * * *
(c)(1) * * *
(2)(i) The daily base penalty amount shall be determined based on the number of persons employed in coal mine employment by the operator, or engaged in coal mine employment on behalf of the operator, on each day of the period defined by this section.
For penalties assessed after August 1, 2016, the daily base penalty amount shall be computed as follows:
------------------------------------------------------------------------
Penalty (per
Employees day)
------------------------------------------------------------------------
Less than 25............................................ $134
25-50................................................... 268
51-100.................................................. 402
More than 100........................................... 535
------------------------------------------------------------------------
* * * * *
(4) Commencing with the 11th day after the operator's receipt of the notification sent by the Director pursuant to Sec. 726.303, for penalties assessed after August 1, 2016, the daily base penalty amounts set forth in paragraph (c)(2)(i) shall be increased by $134.
(5) In any case in which the operator, or any of its principals, or an entity in which the operator's president, secretary, or treasurer were employed, has been the subject of a previous penalty assessment under this part, for penalties assessed after August 1, 2016, the daily base penalty amounts shall be increased by $402.
(6) The maximum daily base penalty amount applicable to any violation of Sec. 726.4 for which penalties are assessed after August 1, 2016, shall be $2,750.
* * * * *
Department of Labor
Office of the Secretary of Labor
For the reasons stated in the preamble, 29 CFR part 5 is amended as follows:
Page 43450
Title 29--Labor
PART 5--LABOR STANDARDS PROVISIONS APPLICABLE TO CONTRACTS COVERING FEDERALLY FINANCED AND ASSISTED CONSTRUCTION (ALSO LABOR STANDARDS PROVISIONS APPLICABLE TO NONCONSTRUCTION CONTRACTS SUBJECT TO THE CONTRACT WORK HOURS AND SAFETY STANDARDS ACT)
0
14. The authority citation for part 5 is revised to read as follows:
Authority: 5 U.S.C. 301; R.S. 161, 64 Stat. 1267; Reorganization Plan No. 14 of 1950, 5 U.S.C. appendix; 40 U.S.C. 3141 et seq.; 40 U.S.C. 3145; 40 U.S.C. 3148; 40 U.S.C. 3701 et seq.; and the laws listed in 5.1(a) of this part; Secretary's Order No. 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701, 129 Stat 584.
0
15. Amend Sec. 5.5 by revising the last sentence of paragraph (b)(2) to read as follows:
Sec. 5.5 Contract provisions and related matters.
* * * * *
(b) * * *
(2) * * * Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $25 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section.
* * * * *
0
16. Amend Sec. 5.8 by revising the second sentence in paragraph (a) to read as follows:
Sec. 5.8 Liquidated damages under the Contract Work Hours and Safety Standards Act.
(a) * * * In the event of violation of this provision, the contractor and any subcontractor shall be liable for the unpaid wages and in addition for liquidated damages, computed with respect to each laborer or mechanic employed in violation of the Act in the amount of $25 for each calendar day in the workweek on which such individual was required or permitted to work in excess of forty hours without payment of required overtime wages.
* * * * *
Department of Labor
Wage and Hour Division
For the reasons stated in the preamble, 29 CFR parts 500, 501, 530, 570, 578, 579, 801, and 825 are amended as follows:
Title 29--Labor
PART 500--MIGRANT AND SEASONAL AGRICULTURAL WORKER PROTECTION
0
17. The authority citation for part 500 is revised to read as follows:
Authority: Pub. L. 97-470, 96 Stat. 2583 (29 U.S.C. 1801-1872); Secretary's Order No. 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment Act of 1990); and Pub. L. 114-74, 129 Stat 584.
0
18. Amend Sec. 500.1 by revising the second sentence in paragraph (e) to read as follows:
Sec. 500.1 Purpose and scope.
* * * * *
(e) * * * As provided in the Act, the Secretary is empowered, among other things, to impose an assessment and to collect a civil money penalty of not more than $2,355 for each violation, to seek a temporary or permanent restraining order in a U.S. District Court, and to seek the imposition of criminal penalties on persons who willfully and knowingly violate the Act or any regulation under the Act.* * *
* * * * *
PART 501--ENFORCEMENT OF CONTRACTUAL OBLIGATIONS FOR TEMPORARY ALIEN AGRICULTURAL WORKERS ADMITTED UNDER SECTION 218 OF THE IMMIGRATION AND NATIONALITY ACT
0
19. Revise the authority citation for part 501 to read as follows:
Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184(c), and 1188; 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment Act of 1990); and Pub. L. 114-74 at Sec. 701.
0
20. Amend Sec. 501.19 by revising paragraphs (c) introductory text, (c)(1), (2), (4), (d), (e), and (f) to read as follows:
Sec. 501.19 Civil money penalty assessment.
* * * * *
(c) A civil money penalty for each violation of the work contract or a requirement of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part will not exceed $1,631 per violation, with the following exceptions:
(1) A civil money penalty for each willful violation of the work contract, or of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, or for each act of discrimination prohibited by Sec. 501.4 shall not exceed $5,491;
(2) A civil money penalty for a violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, that proximately causes the death or serious injury of any worker shall not exceed $54,373 per worker;
* * * * *
(4) A civil money penalty for a repeat or willful violation of a housing or transportation safety and health provision of the work contract, or any obligation under 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, that proximately causes the death or serious injury of any worker, shall not exceed $108,745 per worker.
(d) A civil money penalty for failure to cooperate with a WHD investigation shall not exceed $5,491 per investigation.
(e) A civil money penalty for laying off or displacing any U.S. worker employed in work or activities that are encompassed by the approved Application for Temporary Employment Certification for H-2A workers in the area of intended employment either within 60 days preceding the date of need or during the validity period of the job order, including any approved extension thereof, other than for a lawful, job-related reason, shall not exceed $16,312 per violation per worker.
(f) A civil money penalty for improperly rejecting a U.S. worker who is an applicant for employment, in violation of 8 U.S.C. 1188, 20 CFR part 655, subpart B, or the regulations in this part, shall not exceed $16,312 per violation per worker.
PART 530--EMPLOYMENT OF HOMEWORKERS IN CERTAIN INDUSTRIES
0
21. The authority citation for part 503 is revised to read as follows:
Authority: Sec. 11, 52 Stat. 1066 (29 U.S.C. 211) as amended by sec. 9, 63 Stat. 910 (29 U.S.C. 211(d)); Secretary's Order No. 01-
2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701, 129 Stat 584.
0
22. Revise Sec. 530.302 to read as follows:
Page 43451
Sec. 530.302 Amounts of civil money penalties.
(a) A civil money penalty, not to exceed $989 per affected homeworker for any one violation, may be assessed for any violation of the Act or of this part or of the assurances given in connection with the issuance of a certificate.
(b) The amount of civil money penalties shall be determined per affected homeworker within the limits set forth in the following schedule, except that no penalty shall be assessed in the case of violations which are deemed to be de minimis in nature:
----------------------------------------------------------------------------------------------------------------
Penalty per affected homeworker
-----------------------------------------------
Nature of violation Repeated,
Minor Substantial intentional or
knowing
----------------------------------------------------------------------------------------------------------------
Recordkeeping................................................... $20-198 $198-396 $396-989
Monetary violations............................................. 20-198 198-396
Employment of homeworkers without a certificate................. .............. 198-396 396-989
Other violations of statutes, regulations or employer assurances 20-198 198-396 396-989
----------------------------------------------------------------------------------------------------------------
PART 570--CHILD LABOR REGULATIONS, ORDERS AND STATEMENTS OF INTERPRETATION
0
23. The authority citation for Subpart G of part 570 is revised to read as follows:
Authority: 52 Stat. 1060-1069, as amended; 29 U.S.C. 201-219; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701.
0
24. Amend Sec. 570.140 by revising paragraphs (b)(1) and (2) to read as follows:
Sec. 570.140 General.
* * * * *
(b) * * *
(1) $12,080 for each employee who was the subject of such a violation; or
(2) $54,910 with regard to each such violation that causes the death or serious injury of any employee under the age of 18 years, which penalty may be doubled where the violation is repeated or willful.
* * * * *
PART 578--MINIMUM WAGE AND OVERTIME VIOLATIONS--CIVIL MONEY PENALTIES
0
25. The authority citation for part 578 is revised to read as follows:
Authority: Sec. 9, Pub. L. 101-157, 103 Stat. 938, sec. 3103, Pub. L. 101-508, 104 Stat. 1388-29 (29 U.S.C. 216(e)), Pub. L. 101-
410, 104 Stat. 890 (28 U.S.C. 2461 note), as amended by Pub. L. 104-
134, section 31001(s), 110 Stat. 1321-358, 1321-373, and Pub. L. 114-74, 129 Stat 584.
0
26. Amend Sec. 578.1 by revising the first two sentences to read as follows:
Sec. 578.1 What does this part cover?
Section 9 of the Fair Labor Standards Amendments of 1989 amended section 16(e) of the Act to provide that any person who repeatedly or willfully violates the minimum wage (section 6) or overtime provisions (section 7) of the Act shall be subject to a civil money penalty not to exceed $1,000 for each such violation. The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section 31001(s)) and the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Pub. L. 114-74, section 701), requires that inflationary adjustments be annually made in these civil money penalties according to a specified cost-of-living formula. * * *
0
27. Amend Sec. 578.3 by revising paragraph (a) to read as follows:
Sec. 578.3 What types of violations may result in a penalty being assessed?
(a) A penalty of up to $1,894 per violation may be assessed against any person who repeatedly or willfully violates section 6 (minimum wage) or section 7 (overtime) of the Act. The amount of the penalty will be determined by applying the criteria in Sec. 578.4.
* * * * *
PART 579--CHILD LABOR VIOLATIONS--CIVIL MONEY PENALTIES
0
28. The authority citation for part 579 is revised to read as follows:
Authority: 29 U.S.C. 203(l), 211, 212, 213(c), 216; Reorg. Plan No. 6 of 1950, 64 Stat. 1263, 5 U.S.C. App; secs. 25, 29, 88 Stat. 72, 76; Secretary of Labor's Order No. 01-2014 (Dec. 19, 2014), 79 FR 77527 (Dec. 24, 2014); 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment Act of 1990); and Pub. L. 114-7, 129 Stat 584.
0
29. Amend Sec. 579.1 by revising paragraphs (a)(1)(i)(A), (B), (2) and (b) to read as follows:
Sec. 579.1 Purpose and scope.
(a) * * *
(1)(i) * * *
(A) $12,080 for each employee who was the subject of such a violation; or
(B) $54,910 with regard to each such violation that causes the death or serious injury of any employee under the age of 18 years, which penalty may be doubled where the violation is a repeated or willful violation.
* * * * *
(2) Any person who repeatedly or willfully violates section 206 or 207 of the FLSA, relating to wages, shall be subject to a civil penalty not to exceed $1,894 for each such violation.
* * * * *
(b) The Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101-410), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-134, section 31001(s)) and the Federal Civil Penalties Inflation Adjustment Act Improvement Act of 2015 (Pub. L. 114-74, section 701), requires that Federal agencies annually adjust their civil money penalties for inflation according to a specified cost-of-living formula.
* * * * *
0
30. Amend Sec. 579.5 by revising paragraph (a) to read as follows:
Sec. 579.5 Determining the amount of the penalty and assessing the penalty.
(a) The administrative determination of the amount of the civil penalty for each employee who was the subject of a violation of section 12 or section 13(c) of the Act relating to child labor or of any regulation under those sections will be based on the available evidence of the violation or violations and will take into consideration the size of the business of the person charged and the gravity of the violations as provided in paragraphs (b) through (d) of this section.
* * * * *
Page 43452
PART 801--APPLICATION OF THE EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988
0
31. The authority citation for part 801 is revised to read as follows:
Authority: Pub. L. 100-347, 102 Stat. 646, 29 U.S.C. 2001-2009; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701, 129 Stat 584.
0
32. Amend Sec. 801.42 by revising paragraph (a) introductory text to read as follows:
Sec. 801.42 Civil money penalties--assessment.
(a) A civil money penalty in an amount not to exceed $19,787 for any violation may be assessed against any employer for:
* * * * *
PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993
0
33. The authority citation for part 825 is revised to read as follows:
Authority: 29 U.S.C. 2654; 28 U.S.C. 2461 Note (Federal Civil Penalties Inflation Adjustment Act of 1990); and Pub. L. 114-74 at Sec. 701.
0
34. Amend Sec. 825.300 by revising the last sentence in paragraph (a)(1) to read as follows:
Sec. 825.300 Employer notice requirements.
(a) * * *
(1) * * * An employer that willfully violates the posting requirement may be assessed a civil money penalty by the Wage and Hour Division not to exceed $163 for each separate offense.
* * * * *
Department of Labor
Public Contracts
For the reasons stated in the preamble 41 CFR part 50-201 is amended as follows:
Title 41--Public Contracts and Property Management
PART 50-201--GENERAL REGULATIONS
0
35. The authority citation for part 50-201 is revised to read as follows:
Authority: Sec. 4, 49 Stat. 2038; 41 U.S.C. 38. Interpret or apply sec. 6, 49 Stat. 2038, as amended; 41 U.S.C. 40; 108 Stat. 7201; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701, 129 Stat 584.
0
36. Amend Sec. 50-201.3 by revising the first sentence of paragraph (e) to read as follows:
Sec. 50-201.3 Insertion of stipulations.
* * * * *
(e) Any breach or violation of any of the foregoing representations and stipulations shall render the party responsible therefor liable to the United States of America for liquidated damages, in addition to damages for any other breach of the contract, in the sum of $25 per day for each person under 16 years of age, or each convict laborer knowingly employed in the performance of the contract, and a sum equal to the amount of any deductions, rebates, refunds, or underpayment of wages due to any employee engaged in the performance of the contract; and, in addition, the agency of the United States entering into the contract shall have the right to cancel same and to make open-market purchases or enter into other contracts for the completion of the original contract, charging any additional cost to the original contractor. * * *
* * * * *
Department of Labor
Occupational Safety and Health Administration
For the reasons set out in the preamble, 29 CFR parts 1902 and 1903 are amended as follows:
Title 29--Labor
PART 1902--STATE PLANS FOR THE DEVELOPMENT AND ENFORCEMENT OF STATE STANDARDS
0
37. The authority citation for part 1902 is revised to read as follows:
Authority: Secs. 8 and 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 667); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Section 701, Pub. L. 114-74; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
Subpart B--Criteria for State Plans
0
38. Amend Sec. 1902.4 by revising paragraph (c)(2)(xi) to read as follows:
Sec. 1902.4 Indices of effectiveness.
* * * * *
(c) * * *
(2) * * *
(xi) Provides effective sanctions against employers who violate State standards and orders, such as those set forth in the Act, and in 29 CFR 1903.15(d).
* * * * *
PART 1903--INSPECTIONS, CITATIONS, AND PROPOSED PENALTIES
0
39. The authority citation for part 1903 is revised to read as follows:
Authority: Secs. 8 and 9 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 658); 5 U.S.C. 553; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990), as amended by Section 701, Pub. L. 114-74; Secretary of Labor's Order No. 1-2012 (77 FR 3912, Jan. 25, 2012).
0
40. Amend Sec. 1903.2 by revising paragraph (d) to read as follows:
Sec. 1903.2 Posting of notice; availability of the Act, regulations and applicable standards.
* * * * *
(d) Any employer failing to comply with the provisions of this section shall be subject to citation and penalty in accordance with the provisions of Sec. 1903.15(d).
0
41. Amend Sec. 1903.6 by revising paragraph (b) to read as follows:
Sec. 1903.6 Advance notice of inspections.
* * * * *
(b) In the situations described in paragraph (a) of this section, advance notice of inspections may be given only if authorized by the Area Director, except that in cases of apparent imminent danger, advance notice may be given by the Compliance Safety and Health Officer without such authorization if the Area Director is not immediately available. When advance notice is given, it shall be the employer's responsibility promptly to notify the authorized representative of employees of the inspection, if the identity of such representative is known to the employer. (See Sec. 1903.8(b) as to situations where there is no authorized representative of employees.) Upon the request of the employer, the Compliance Safety and Health Officer will inform the authorized representative of employees of the inspection, provided that the employer furnishes the Compliance Safety and Health Officer with the identity of such representative and with such other information as is necessary to enable him promptly to inform such representative of the inspection. An employer who fails to comply with his obligation under this paragraph promptly to inform the authorized representative of employees of the inspection or to furnish such information as is necessary to enable the Compliance Safety and Health Officer promptly to inform such representative of the inspection, may be subject to citation and penalty in accordance with
Page 43453
Sec. 1903.15(d)(4). Advance notice in any of the situations described in paragraph (a) of this section shall not be given more than 24 hours before the inspection is scheduled to be conducted, except in apparent imminent danger situations and in other unusual circumstances.
* * * * *
0
42. Amend Sec. 1903.15 by revising paragraphs (a) and (b) and adding paragraph (d) to read as follows:
Sec. 1903.15 Proposed penalties.
(a) After, or concurrent with, the issuance of a citation, and within a reasonable time after the termination of the inspection, the Area Director shall notify the employer by certified mail or by personal service by the Compliance Safety and Health Officer of the proposed penalty in accordance with paragraph (d) of this section, or that no penalty is being proposed. Any notice of proposed penalty shall state that the proposed penalty shall be deemed to be the final order of the Review Commission and not subject to review by any court or agency unless, within 15 working days from the date of receipt of such notice, the employer notifies the Area Director in writing that he intends to contest the citation or the notification of proposed penalty before the Review Commission.
(b) The Area Director shall determine the amount of any proposed penalty, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations, in accordance with the provisions of section 17 of the Act and paragraph (d) of this section.
* * * * *
(d) Adjusted civil monetary penalties. The adjusted civil penalties for penalties proposed on or after August 1, 2016 are as follows:
(1) Willful violation. The penalty per willful violation under section 17(a) of the Act, 29 U.S.C. 666(a), shall not be less than $8,908 and shall not exceed $124,709.
(2) Repeated violation. The penalty per repeated violation under section 17(a) of the Act, 29 U.S.C. 666(a), shall not exceed $124,709.
(3) Serious violation. The penalty for a serious violation under section 17(b) of the Act, 29 U.S.C. 666(b), shall not exceed $12,471.
(4) Other-than-serious violation. The penalty for an other-than-
serious violation under section 17(c) of the Act, 29 U.S.C. 666(c), shall not exceed $12,471.
(5) Failure to correct violation. The penalty for a failure to correct a violation under section 17(d) of the Act, 29 U.S.C. 666(d), shall not exceed $12,471 per day.
(6) Posting requirement violation. The penalty for a posting requirement violation under section 17(i) of the Act, 29 U.S.C. 666(i), shall not exceed $12,471.
0
43. Amend Sec. 1903.16 by revising paragraph (d) to read as follows:
Sec. 1903.16 Posting of citations.
* * * * *
(d) Any employer failing to comply with the provisions of paragraphs (a) and (b) of this section shall be subject to citation and penalty in accordance with Sec. 1903.15(d).
0
44. Amend Sec. 1903.18 by revising paragraph (a) to read as follows:
Sec. 1903.18 Failure to correct a violation for which a citation has been issued.
(a) If an inspection discloses that an employer has failed to correct an alleged violation for which a citation has been issued within the period permitted for its correction, the Area Director shall, if appropriate, consult with the Regional Solicitor, and he shall notify the employer by certified mail or by personal service by the Compliance Safety and Health Officer of such failure and of the additional penalty proposed under Sec. 1903.15(d)(5) by reason of such failure. The period for the correction of a violation for which a citation has been issued shall not begin to run until the entry of a final order of the Review Commission in the case of any review proceedings initiated by the employer in good faith and not solely for delay or avoidance of penalties.
* * * * *
Department of Labor
Employee Benefits Security Administration
For the reasons stated in the preamble, 29 CFR parts 2560, 2575, 2590 are amended as follows:
Title 29--Labor
PART 2560--RULES AND REGULATIONS FOR ADMINISTRATION AND ENFORCEMENT
0
45. The authority citation for part 2560 is revised to read as follows:
Authority: 29 U.S.C. 1002, 1132, 1133, 1134, 1135, and Secretary of Labor's Order 1-2011, 77 FR 1088 (January 9, 2012). Pub. L. 101-
410, 104 Stat. 890 (28 U.S.C. 2461 note), as amended by section 31001(s) of Pub. L. 104-134, 110 Stat. 1321-373, and section 701 of Pub. L. 114-74, 129 Stat. 584.
Sec. 2560.502c-2 Amended
0
46. Amend Sec. 2560.502c-2(b)(1) by removing the parenthetical phrase ``(or such other maximum amount as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended)'' and adding in its place ``(adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended).''
Sec. 2560-502c-4 Amended
0
47. Amend Sec. 2560.502c-4(b)(1) by removing the parenthetical phrase ``(or such other maximum amount as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended)'' and adding in its place ``(adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended).''
0
48. Amend Sec. 2560.502c-5 by revising the second sentence of paragraph (b)(1) to read as follows:
Sec. 2560.502c-5 Civil penalties under section 502c-5.
* * * * *
(b) * * *
(1) * * * However, the amount assessed under section 502(c)(5) or the Act shall not exceed $1,000 a day (adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended), computed from the date of the administrator's failure or refusal to file the report and, except as provided in paragraph (b)(2) of this section, continuing up to the date on which a report meeting the requirements of section 101(g) of the Act and 29 CFR 2520.101-2, as determined by the Secretary, is filed.
* * * * *
Sec. 2560.502c-6 Amended
0
49. Amend Sec. 2560.502c-6(b)(1) by removing the parenthetical phrase ``(or such other maximum amounts as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended)'' and adding in its place ``(such amounts to be adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended).''
Sec. 2560.502c-7 Amended
0
50. Amend Sec. 2560.502c-7(b)(1) by removing the parenthetical phrase ``(or such other maximum amount as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended)'' and adding in its place ``(adjusted for
Page 43454
inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended).''
Sec. 2560.502c-8 Amended
0
51. Amend Sec. 2560.502c-8(b)(1) by removing the parenthetical phrase ``(or such other maximum amount as may be established by regulation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended)'' and adding in its place ``(adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended).''
PART 2575--ADJUSTMENT OF CIVIL PENALTIES UNDER ERISA TITLE I
0
52. The authority citation for subpart A of 29 CFR part 2575 is revised to read as follows:
Authority: Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note), as amended by section 31001(s) of Pub. L. 104-134, 110 Stat. 1321-
373, and section 701 of Pub. L. 114-74, 129 Stat. 584; 29 U.S.C 1059(b), 1132(c), 1135 and 1185d; and Secretary of Labor's Order 1-
2011, 77 FR 1088 (January 9, 2012).
0
53. Add Sec. Sec. 2575.1, 2575.2 and 2575.3 to read as follows:
Sec. 2575.1 In general.
In accordance with the requirements of the Federal Civil Penalties Inflation Adjustment Act of 1990, Pub. L. 104-410, 104 Stat. 890, as amended by the section 31001(s) of the Debt Collection Improvement Act of 1996, Pub. L. 104-34, 110 Stat. 1321-373, and section 701 of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Pub. L. 114-74, 129 Stat. 584, (collectively the Inflation Adjustment Act), the applicable civil monetary penalties of title I of the Employee Retirement Income Security Act of 1974, as amended (ERISA), under the jurisdiction of the U.S. Department of Labor (Department) and listed in 29 CFR 2575.2 are adjusted as set forth in this subpart, effective as of the relevant dates specified in Sec. 2575.2.
Sec. 2575.2 Catch-up adjustments to civil monetary penalties.
The civil monetary penalties set forth in paragraphs (a) through (m) of this section are adjusted for inflation as required by section 4(b)(1) of the Inflation Adjustment Act and 29 CFR 2575.1 as follows:
(a) The civil monetary penalty of $10 for each employee established by section 209(b) of ERISA, is adjusted to $11 for violations occurring after July 29, 1997, for which a penalty is assessed before August 1, 2016 and to $28 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(b) The civil monetary penalty of up to $1,000 established by Section 502(c)(2) of ERISA is adjusted to $1,100 for violations occurring after July 29, 1997, for which a penalty is assessed before August 1, 2016, and to $2,063 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(c) The civil monetary penalty of up to $1,000 established by section 502(c)(4) of ERISA is adjusted to $1,632 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(d) The civil monetary penalty of up to $1,000 established by Section 502(c)(5) of ERISA is adjusted to $1,100 for violations occurring after March 24, 2003, for which a penalty is assessed before August 1, 2016, and to $1,502 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(e) The civil monetary penalty of up to $100 not to exceed $1,000 per request, established by section 502(c)(6) of ERISA, is adjusted to $110 not to exceed $1,100 per request for violations occurring after March 24, 2003, for which a penalty is assessed before August 1, 2016, and to $147 not to exceed $1,472 per request for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(f) The civil monetary penalty of up to $100 established by section 502(c)(7) of ERISA is adjusted to $131 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(g) The civil monetary penalty of up to $1,100 established by section 502(c)(8) of ERISA is adjusted to $1,296 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(h) The civil monetary penalty of up to $100 established by section 502(c)(9)(A) of ERISA is adjusted to $110 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(i) The civil monetary penalty of up to $100 established by section 502(c)(9)(B) of ERISA is adjusted to $110 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(j) The civil monetary penalties established by section 502(c)(10) of ERISA are adjusted in accordance with paragraphs (j)(1) through (4) of this section:
(1) The $100 civil monetary penalty of section 502(c)(10)(B)(i) of ERISA is adjusted to $110 to for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3;
(2) The $2,500 minimum civil monetary penalty of section 502(c)(10)(C)(i) of ERISA for de minimis uncorrected violations is adjusted to $2,745 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3;
(3) The $15,000 minimum civil monetary penalty of section 502(c)(10)(C)(ii) of ERISA for uncorrected violations that are not de minimis is adjusted to $16,473 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3; and
(4) The $500,000 maximum civil monetary penalty for unintentional failures set in Section 502 (c)(10)(D)(iii)(II) of ERISA is adjusted to $549,095, for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(k) The civil monetary penalty of up to $100 established by section 502(c)(12) of ERISA remains at $100 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(l) The maximum civil monetary penalty of $10,000 established by section 502(m) of ERISA is adjusted to $15,909 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation
Page 43455
made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
(m) The civil monetary penalty of not more than $1,000, established by Public Health Services Act section 2715(f) and incorporated into ERISA by section 715 of ERISA, is adjusted to $1,087 for penalties assessed after August 1, 2016, and before the effective date of the next adjustment for inflation made by the Secretary in accordance with the Inflation Adjustment Act and Sec. 2575.3.
Sec. 2575.3 Subsequent adjustments to civil monetary penalties.
No later than January 15, starting in 2017, and each subsequent year, the Secretary shall adjust for inflation the civil monetary penalties described in Sec. 2575.2 and any future civil monetary penalties enforceable by the Secretary under title I of ERISA and publish such annual adjustments in the Federal Register notwithstanding section 553 of the Administrative Procedures Act. Future penalties or adjustments to the amount of the penalty that are enacted by statute or regulation will not be adjusted for inflation in the first year those penalty levels take effect. Annual inflation adjustments shall apply to penalties assessed after the later of January 15 or the date notice of the annual inflation adjustment is published in the Federal Register.
* * * * *
Sec. Sec. 2575.100, 2575.209b-1, 2575.502c-2, 2575.502c-5, and 2575.502c-6 Removed
0
54. Remove Sec. Sec. 2575.100, 2575.209b-1, 2575.502c-2, 2575.502c-5, and 2575.502c-6.
PART 2590--RULES AND REGULATIONS FOR GROUP HEALTH PLANS
0
55. The authority citation for part 2590 is revised to read as follows:
Authority: Secs. 29 U.S.C. 1027, 1059, 1135, 1161-1168, 1169, 1181-1183, 1181 note, 1185, 1185a, 1185b, 1191, 1191a, 1191b, and 1191c; sec. 101(g), Pub. L. 104-191, 110 Stat. 1936; sec. 401(b), Pub. L. 105-200, 112 Stat. 645 (42 U.S.C. 651 note); sec. 512(d), Pub. L. 110-343, 122 Stat. 3881; sec. 1001, 1201, and 1562(e), Pub. L. 111-148, 124 Stat. 119, as amended by Pub. L. 111-152, 124 Stat. 1029; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note), as amended by section 31001(s) of Pub. L. 104-134, 110 Stat. 1321-373, and section 701 of Pub. L. 114-74, 129 Stat. 584; Secretary of Labor's Order 1-2011, 77 FR 1088 (January 9, 2012).
0
56. Amend Sec. 2590.715-2715 by revising the first sentence of paragraph (e) to read as follows:
Sec. 2590.715-2715 Summary of benefits and coverage and uniform glossary.
* * * * *
(e) Failure to provide. A group health plan that willfully fails to provide information under this section to a participant or beneficiary is subject to a fine of not more than $1,000 (adjusted for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended) for each such failure. * * *
Department of Labor
Mine Safety and Health Administration
For the reasons stated in the preamble, 30 CFR part 100 is amended as follows:
Title 30--Mineral Resources
PART 100--CIVIL PENALTIES FOR VIOLATIONS OF THE FEDERAL MINE SAFETY AND HEALTH ACT OF 1977
0
57. The authority citation for part 100 is revised to read as follows:
Authority: 5 U.S.C. 301; 30 U.S.C. 815, 820, 957; 28 U.S.C. 2461 note (Federal Civil Penalties Inflation Adjustment Act of 1990); Pub. L. 114-74 at Sec. 701;
0
58. Amend Sec. 100.3 by:
0
a. Revising the first sentence of paragraph (a)(1); and
0
b. Revising Table XIV in paragraph (g).
The revisions read as follows:
Sec. 100.3 Determination of penalty amount; regular assessment.
(a) * * *
(1) Except as provided in Sec. 100.5(e), the operator of any mine in which a violation occurs of a mandatory health or safety standard or who violates any other provision of the Mine Act, as amended, shall be assessed a civil penalty of not more than $68,300. * * *
* * * * *
(g) * * *
Table XIV--Penalty Conversion Table
------------------------------------------------------------------------
Points Penalty ($)
------------------------------------------------------------------------
60 or fewer............................................. 127
61...................................................... 138
62...................................................... 149
63...................................................... 162
64...................................................... 175
65...................................................... 190
66...................................................... 206
67...................................................... 223
68...................................................... 241
69...................................................... 262
70...................................................... 283
71...................................................... 307
72...................................................... 334
73...................................................... 361
74...................................................... 390
75...................................................... 423
76...................................................... 459
77...................................................... 496
78...................................................... 538
79...................................................... 583
80...................................................... 632
81...................................................... 684
82...................................................... 741
83...................................................... 803
84...................................................... 870
85...................................................... 943
86...................................................... 1,021
87...................................................... 1,105
88...................................................... 1,198
89...................................................... 1,298
90...................................................... 1,406
91...................................................... 1,522
92...................................................... 1,649
93...................................................... 1,786
94...................................................... 1,935
95...................................................... 2,097
96...................................................... 2,271
97...................................................... 2,460
98...................................................... 2,665
99...................................................... 2,887
100..................................................... 3,128
101..................................................... 3,388
102..................................................... 3,670
103..................................................... 3,976
104..................................................... 4,307
105..................................................... 4,666
106..................................................... 5,054
107..................................................... 5,475
108..................................................... 5,932
109..................................................... 6,426
110..................................................... 6,961
111..................................................... 7,540
112..................................................... 8,169
113..................................................... 8,849
114..................................................... 9,586
115..................................................... 10,384
116..................................................... 11,249
117..................................................... 12,186
118..................................................... 13,201
119..................................................... 14,301
120..................................................... 15,492
121..................................................... 16,782
122..................................................... 18,180
123..................................................... 19,694
124..................................................... 21,335
125..................................................... 23,110
126..................................................... 25,035
127..................................................... 27,121
128..................................................... 29,380
129..................................................... 31,827
130..................................................... 34,478
131..................................................... 37,349
132..................................................... 40,460
133..................................................... 43,829
134..................................................... 47,325
135..................................................... 50,821
136..................................................... 54,317
137..................................................... 57,812
138..................................................... 61,308
139..................................................... 64,804
140 or more............................................. 68,300
------------------------------------------------------------------------
* * * * *
0
59. Amend Sec. 100.4 by:
Page 43456
0
a. Revising paragraphs (a) and (b); and
0
b. Revising introductory paragraph (c).
The revisions read as follows:
Sec. 100.4 Unwarrantable failure and immediate notification.
(a) The minimum penalty for any citation or order issued under section 104(d)(1) of the Mine Act shall be $2,277.
(b) The minimum penalty for any order issued under section 104(d)(2) of the Mine Act shall be $4,553.
(c) The penalty for failure to provide timely notification to the Secretary under section 103(j) of the Mine Act will be not less than $5,692 and not more than $68,300 for the following accidents:
* * * * *
0
60. Amend Sec. 100.5 by revising paragraphs (c), (d), and (e) to read as follows:
Sec. 100.5 Determination of penalty amount; special assessment.
* * * * *
(c) Any operator who fails to correct a violation for which a citation has been issued under Section 104(a) of the Mine Act within the period permitted for its correction may be assessed a civil penalty of not more than $7,399 for each day during which such failure or violation continues.
(d) Any miner who willfully violates the mandatory safety standards relating to smoking or the carrying of smoking materials, matches, or lighters shall be subject to a civil penalty of not more than $313 for each occurrence of such violation.
(e) Violations that are deemed to be flagrant under section 110(b)(2) of the Mine Act may be assessed a civil penalty of not more than $250,433. For purposes of this section, a flagrant violation means ``a reckless or repeated failure to make reasonable efforts to eliminate a known violation of a mandatory health or safety standard that substantially and proximately caused, or reasonably could have been expected to cause, death or serious bodily injury.''
Note: The following Appendix will not appear in the Code of Federal Regulations.
Page 43457
Appendix 1--Inflation Adjustment Act--Penalty Adjustments
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
New min
Last year Authority for Min (rounded New max (rounded
Agency Law Name/ Description CFR Citation adjusted last adjustment penalty Max penalty (non 11/15 Min 11/15 Max ($) to to nearest
(non IAA) (non IAA) (non IAA) IAA) ($) ($) nearest dollar)
($) dollar)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
MSHA........... Federal Mine Regular 30 CFR 100.3(A).. 2007 72 FR 13592...... ......... 60,000........... ......... 70,000........... ......... 68,300.
Safety & Health Assessment.
Act of 1977.
MSHA........... Federal Mine Penalty 30 CFR 100.3(G).. 2007 72 FR 13592...... 112 60,000........... 112 70,000........... 127 68,300.
Safety & Health Conversion Table.
Act of 1977.
MSHA........... Federal Mine Minimum Penalty 30 CFR 100.4(a).. 2007 72 FR 13592...... 2,000 ................. 2,000 ................. 2,277 .................
Safety & Health for any order
Act of 1977. issued under
104(d)(1) of the
Mine Act.
MSHA........... Federal Mine Minimum penalty 30 CFR 100.4(b).. 2007 72 FR 13592...... 4,000 ................. 4,000 ................. 4,553 .................
Safety & Health for any order
Act of 1977. issued under
104(d)(2) of the
Mine Act.
MSHA........... Federal Mine Penalty for 39 CFR 100.4(c).. 2007 72 FR 13592...... 5,000 60,000........... 5,000 65,000........... 5,692 68,300.
Safety & Health failure to
Act of 1977. provide timely
notification
under 103(j) of
the Mine Act.
MSHA........... Federal Mine Any operator who 30 CFR 100.5(C).. 2007 72 FR 13592...... ......... 6,500............ ......... 7,500............ ......... 7,399.
Safety & Health fails to correct
Act of 1977. a violation for
which a citation
or order was
issued under
104(a) of the
Mine Act.
MSHA........... Federal Mine Violation of 30 CFR 100.5(D).. 2007 72 FR 13592...... ......... 275.............. ......... 375.............. ......... 313.
Safety & Health mandatory safety
Act of 1977. standards
related to
smoking
standards.
MSHA........... Federal Mine Flagrant 30 CFR 100.5(e).. 2007 72 FR 13592...... ......... 220,000.......... ......... 242,000.......... ......... 250,433.
Safety & Health violations under
Act of 1977. 110(b)(2) of the
Mine Act.
EBSA........... Employee Section 209(b): 29 CFR 2575.2(a). 1974 Pub. L. 93-406... ......... 10............... ......... 11............... ......... 28.
Retirement Failure to
Income Security furnish reports
Act. (e.g., pension
benefit
statements) to
certain former
participants and
beneficiaries or
maintain records.
EBSA........... Employee Section 29 CFR 2575.2(b). 1987 Pub. L. 100-203.. ......... 1,000............ ......... 1,100............ ......... 2,063.
Retirement 502(c)(2)--Per
Income Security day for failure/
Act. refusal to
properly file
plan annual
report.
EBSA........... Employee Section 29 CFR 2575.2(c). 1993 Pub. L. 103-66... ......... 1,000............ ......... 1,000............ ......... 1,632.
Retirement 502(c)(4)--Per
Income Security day for failure
Act. to disclose
certain
documents upon
request under
ERISA 101(k) and
(l); failure to
furnish notices
under 101(j) and
514(e)(3)--each
statutory
recipient a
separate
violation.
EBSA........... Employee Section 29 CFR 2575.2(d). 1996 Pub. L. 104-91... ......... 1,000............ ......... 1,100............ ......... 1,502.
Retirement 502(c)(5)--Per
Income Security day for each
Act. failure to file
annual report
for Multiple
Employer Welfare
Arrangements
(MEWAs).
EBSA........... Employee Section 29 CFR 2575.2(e). 1997 Pub. L. 105-34... ......... 100 per day, not ......... 110 per day, not ......... 147 per day, not
Retirement 502(c)(6)--Per to exceed 1,000 to exceed 1,100 to exceed 1,472
Income Security day for each per request. per request. per request.
Act. failure to
provide
Secretary of
Labor requested
documentation
not to exceed a
per-request
maximum.
EBSA........... Employee Section 29 CFR 2575.2(f). 2002 Pub. L. 107-204.. ......... 100.............. ......... 100.............. ......... 131.
Retirement 502(c)(7)--Per
Income Security day for each
Act. failure to
provide notices
of blackout
periods and of
right to divest
employer
securities--each
statutory
recipient a
separate
violation.
Page 43458
EBSA........... Employee Section 29 CFR 2575.2(g). 2006 Pub. L. 109-280.. ......... 1,100............ ......... 1,100............ ......... 1,296.
Retirement 502(c)(8)--Per
Income Security each failure by
Act. an endangered
status
multiemployer
plan to adopt a
funding
improvement plan
or meet
benchmarks;
failure of a
critical status
multiemployer
plan to adopt a
rehabilitation
plan.
EBSA........... Employee Section 29 CFR 2575.2(h). 2009 Pub. L. 111-3.... ......... 100.............. ......... 100.............. ......... 110.
Retirement 502(c)(9)(A)--Pe
Income Security r day for each
Act. failure by an
employer to
inform employees
of CHIP coverage
opportunities
under Section
701(f)(3)(B)(i)(
l)--each
employee a
separate
violation.
EBSA........... Employee Section 29 CFR 2575.2(i). 2009 Pub. L. 111-3.... ......... 100.............. ......... 100.............. ......... 110.
Retirement 502(c)(9)(B)--Pe
Income Security r day for each
Act. failure by a
plan to timely
provide to any
State
information
required to be
disclosed under
Section
701(f)(3)(B)(ii)
, as added by
CHIP regarding
coverage
coordination--ea
ch participant/
beneficiary a
separate
violation.
EBSA........... Employee Section 29 CFR 2008 Pub. L. 110-233.. ......... 100.............. ......... 100.............. ......... 110.
Retirement 502(c)(10)--Fail 2575.2(j)(1).
Income Security ure by any plan
Act. sponsor of group
health plan, or
any health
insurance issuer
offering health
insurance
coverage in
connection with
the plan, to
meet the
requirements of
Sections
702(a)(1)(F),
(b)(3), (c) or
(d); or Section
701; or Section
702(b)(1) with
respect to
genetic
information--dai
ly per
participant and
beneficiary non-
compliance
period.
EBSA........... Employee Section 29 CFR 2008 Pub. L. 110-233.. 2,500 ................. 2,500 ................. 2,745 .................
Retirement 502(c)(10)--unco 2575.2(j)(2).
Income Security rrected de
Act. minimis
violation.
EBSA........... Employee Section 29 CFR 2008 Pub. L. 110-233.. 15,000 ................. 15,000 ................. 16,473 .................
Retirement 502(c)(10)--unco 2575.2(j)(3).
Income Security rrected
Act. violations that
are not de
minimis.
EBSA........... Employee Section 29 CFR 2008 Pub. L. 110-233.. ......... 500,000.......... ......... 500,000.......... ......... 549,095.
Retirement 502(c)(10)--unin 2575.2(j)(4).
Income Security tentional
Act. failure maximum
cap.
EBSA........... Employee Section 29 CFR 2575.2(k). 2014 Pub. L. 113-97... ......... 100.............. ......... 100.............. ......... 100.
Retirement 502(c)(12)--Per
Income Security day for each
Act. failure of a
CSEC plan in
restoration
status to adopt
a restoration
plan.
Page 43459
EBSA........... Employee Section 502(m)-- 29 CFR 2575.2(l). 1994 Pub. L. 103-465.. ......... 10,000........... ......... 10,000........... ......... 15,909.
Retirement Failure of
Income Security fiduciary to
Act. make a proper
distribution
from a defined
benefit plan
under section
206(e) of ERISA.
EBSA........... Employee Failure to 29 CFR 2575.2(m). 2010 Pub. L. 111-148.. ......... 1,000............ ......... 1,000............ ......... 1,087.
Retirement provide Summary
Income Security of Benefits
Act. Coverage under
PHS Act section
2715(f), as
incorporated in
ERISA section
715 and 29 CFR
2590.715-2715(e).
OSHA........... Occupational Serious Violation 29 CFR 1990 Pub. L. 101-508.. ......... 7,000............ ......... 7,000............ ......... 12,471.
Safety and 1903.15(d)(3).
Health Act.
OSHA........... Occupational Other-Than- 29 CFR 1990 Pub. L. 101-508.. ......... 7,000............ ......... 7,000............ ......... 12,471.
Safety and Serious. 1903.15(d)(4).
Health Act.
OSHA........... Occupational Willful or 29 CFR 1990 Pub. L. 101-508.. 5,000 70,000........... 5,000 70,000........... 8,908 124,709.
Safety and Repeated. 1903.15(d)(1)
Health Act. and 29 CFR
1903.15(d)(2).
OSHA........... Occupational Posting 29 CFR 1990 Pub. L. 101-508.. ......... 7,000............ ......... 7,000............ ......... 12,471.
Safety and Requirement. 1903.15(d)(6).
Health Act.
OSHA........... Occupational Failure to Abate. 29 CFR 1990 Pub. L. 101-508.. ......... 7,000............ ......... 7,000............ ......... 12,471.
Safety and 1903.15(d)(5).
Health Act.
WHD............ Family and FMLA............. 29 CFR 1993 Pub. L. 103-3.... ......... 100.............. ......... 110.............. ......... 163.
Medical Leave 825.300(a)(1).
Act.
WHD............ Fair Labor FLSA............. 29 CFR 578.3(a).. 1989 Pub. L. 101-157.. ......... 1,000............ ......... 1,100............ ......... 1,894.
Standards Act.
WHD............ Fair Labor Child Labor...... 29 CFR 2008 Pub. L. 110-233.. ......... 11,000........... ......... 11,000........... ......... 12,080.
Standards Act. 579.1(a)(1)(i)(A
).
WHD............ Fair Labor Child Labor 29 CFR 2008 Pub. L. 110-233.. ......... 50,000........... ......... 50,000........... ......... 54,910.
Standards Act. resulting in 579.1(a)(1)(i)(B
serious injury ).
or death.
WHD............ Fair Labor CL willful or 29 CFR 2008 Pub. L. 110-233.. ......... 100,000.......... ......... 100,000.......... ......... 109,820.
Standards Act. repeated 579.1(a)(1)(i)(B
resulting in ).
serious injury
or death.
WHD............ Migrant and MSPA............. 29 CFR 500.1(e).. 1983 Pub. L. 97-470... ......... 1,000............ ......... 1,000............ ......... 2,355.
Seasonal
Agricultural
Worker
Protection Act.
WHD............ Immigration & H1B.............. 20 CFR 1990 Pub. L. 101-649.. ......... 1,000............ ......... 1,000............ ......... 1,782.
Nationality Act. 655.810(b)(1).
WHD............ Immigration & H1B willful or 20 CFR 1998 Pub. L. 105-277.. ......... 5,000............ ......... 5,000............ ......... 7,251.
Nationality Act. discrimination. 655.810(b)(2).
WHD............ Immigration & H1B willful that 20 CFR 1998 Pub. L. 105-277.. ......... 35,000........... ......... 35,000........... ......... 50,758.
Nationality Act. resulted in 655.810(b)(3).
displacement of
a US worker.
WHD............ Immigration & H2B \17\......... 29 CFR 503.23.... 2005 Pub. L. 109-13... ......... 10,000........... ......... 10,000........... ......... 11,940.
Nationality Act.
WHD............ Immigration & D-1.............. 20 CFR 655.620... 1990 Pub. L. 101-649.. ......... 5,000............ ......... 5,000............ ......... 8,908.
Nationality Act.
WHD............ Contract Work CWHSSA........... 29 CFR 5.8(a).... 1962 Pub. L. 87-581... ......... 10............... ......... 10............... ......... 25.
Hours and Safety
Standards Act.
WHD............ Walsh-Healey Walsh-Healey..... 41 CFR 50- 1936 49 Stat. 2036.... ......... 10............... ......... 10............... ......... 25.
Public Contracts 201.3(e).
Act.
WHD............ Employee EPPA............. 29 CFR 801.42(a). 1988 Pub. L. 100-347.. ......... 10,000........... ......... 10,000........... ......... 19,787.
Polygraph
Protection Act.
WHD............ Immigration & H2A.............. 29 CFR 501.19(c). 2010 75 FR 6884....... ......... 1,500............ ......... 1,500............ ......... 1,631.
Nationality Act.
WHD............ Immigration & H2A willful or 29 CFR 2008 73 FR 77110...... ......... 5,000............ ......... 5,000............ ......... 5,491.
Nationality Act. discrimination. 501.19(c)(1).
WHD............ Immigration & H2A Safety or 29 CFR 2010 75 FR 6,884...... ......... 50,000........... ......... 50,000........... ......... 54,373.
Nationality Act. health resulting 501.19(c)(2).
in serious
injury or death.
WHD............ Immigration & H2A willful or 29 CFR 2010 75 FR 6884....... ......... 100,000.......... ......... 100,000.......... ......... 108,745.
Nationality Act. repeated safety 501.19(c)(4).
or health
resulting in
serious injury
or death.
WHD............ Immigration & H2A failing to 29 CFR 501.19(d). 2008 73 FR 77110...... ......... 5,000............ ......... 5,000............ ......... 5,491.
Nationality Act. cooperate in an
investigation.
WHD............ Immigration & H2A displacing a 29 CFR 501.19(e). 2010 75 FR 6,884...... ......... 15,000........... ......... 15,000........... ......... 16,312.
Nationality Act. US worker.
WHD............ Immigration & H2A improperly 29 CFR 501.19(f). 2010 75 FR 6,884...... ......... 15,000........... ......... 15,000........... ......... 16,312.
Nationality Act. rejecting a US
worker.
WHD............ Fair Labor Home Worker...... 29 CFR 530.302... 1988 53 FR 45706...... 10 500.............. 10 500.............. 20 989.
Standards Act.
OWCP........... Longshore and Failure to file 20 CFR 702.204... 1984 Pub. L. 98-426... ......... 10,000........... ......... 11,000........... ......... 22,587.
Harbor Workers' first report of
Compensation Act. injury or filing
a false
statement or
misrepresentatio
n in first
report.
Page 43460
OWCP........... Longshore and Failure to report 20 CFR 702.236... 1927 44 Stat. 1432.... ......... 100.............. ......... 110.............. ......... 275.
Harbor Workers' termination of
Compensation Act. payments.
OWCP........... Longshore and Discrimination 20 CFR 1984 Pub. L. 98-426... 1,000 5,000............ 1,100 5,500............ 2,259 11,293.
Harbor Workers' against 702.271(a)(2).
Compensation Act. employees who
claim
compensation or
testify in a
LHWCA proceeding.
OWCP........... Black Lung Failure to report 20 CFR 1978 Pub. L. 95-239... ......... 500.............. ......... 550.............. ......... 1,375.
Benefits Act. termination of 725.621(b), (d).
payments.
OWCP........... Black Lung Failure to file 20 CFR 725.621(d) 1978 Pub. L. 95-239... ......... 500.............. ......... 550.............. ......... 1,375.
Benefits Act. required reports.
OWCP........... Black Lung Failure to secure 20 CFR 726.300... 1978 Pub. L. 95-239... ......... 1,000............ ......... 1,000............ ......... 2,500.
Benefits Act. payment of
benefits.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 100 ................. 100 ................. 134 .................
Benefits Act. payment of 726.302(c)(2)(i).
benefits for
mines with fewer
than 25
employees.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 200 ................. 200 ................. 268 .................
Benefits Act. payment of 726.302(c)(2)(i).
benefits for
mines with 25-50
employees.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 300 ................. 300 ................. 402 .................
Benefits Act. payment of 726.302(c)(2)(i).
benefits for
mines with 51-
100 employees.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 400 ................. 400 ................. 535 .................
Benefits Act. payment of 726.302(c)(2)(i).
benefits for
mines with more
than 100
employees.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 100 ................. 100 ................. 134 .................
Benefits Act. payment of 726.302(c)(4).
benefits after
10th day of
notice.
OWCP........... Black Lung Failure to secure 20 CFR 2001 65 FR 79920...... 300 ................. 300 ................. 402 .................
Benefits Act. payment of 726.302(c)(5).
benefits for
repeat offenders.
OWCP........... Black Lung Failure to secure 20 CFR 1978 Pub. L. 95-239... ......... 1,100............ ......... 1,100............ ......... 2,750.
Benefits Act. payment of 726.302(c)(5).
benefits.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\17\ See supra note 6.
Page 43461
Signed at Washington, DC, this 24th day of June, 2016.
Thomas E. Perez,
Secretary, U.S. Department of Labor.
FR Doc. 2016-15378 Filed 6-30-16; 8:45 am
BILLING CODE 4510-HL-P
