Federal Civil Penalties Inflation Adjustment Act2009 Implementation
Federal Register: December 23, 2009 (Volume 74, Number 245)
Rules and Regulations
Page 68150-68155
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DOCID:fr23de09-10
DEPARTMENT OF HOMELAND SECURITY
Coast Guard 33 CFR Part 27
Docket No. USCG-2009-0891
RIN 1625-AB40
Federal Civil Penalties Inflation Adjustment Act--2009
Implementation
AGENCY: Coast Guard, DHS.
ACTION: Final rule.
SUMMARY: The Coast Guard is adjusting fines and other civil monetary penalties to reflect the impact of inflation. These adjustments are made in accordance with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996.
DATES: This final rule is effective 30 days after December 23, 2009.
ADDRESSES: Comments and material received from the public, as well as documents mentioned in this preamble as being available in the docket, are part of docket USCG-2009-0891 and are available for inspection or copying at the Docket Management Facility (M-30), U.S. Department of
Transportation, West Building Ground Floor, Room W12-140, 1200 New
Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal holidays. You may also find this docket on the Internet by going to http://www.regulations.gov, inserting USCG-2009-0891 in the ``Keyword'' box, and then clicking
``Search.''
FOR FURTHER INFORMATION CONTACT: If you have questions on this rule, call or e-mail Heather Young, CG-5232, Coast Guard; telephone 202-372- 1022, e-mail Heather.l.young@uscg.mil. If you have questions on viewing the docket, call Renee V. Wright, Program Manager, Docket Operations, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Abbreviations
II. Background
III. Method of Calculation
IV. Regulatory Analyses
-
Regulatory Planning and Review
-
Small Entities
-
Assistance for Small Entities
-
Collection of Information
-
Federalism
-
Unfunded Mandates Reform Act
-
Taking of Private Property
-
Civil Justice Reform
I. Protection of Children
-
Indian Tribal Governments
-
Energy Effects
L. Technical Standards
-
Environment
I. Abbreviations
Abbreviation
Explanation
CFR............................... Code of Federal Regulations.
CMPs.............................. Civil Monetary Penalties.
CPI-U............................. Consumer Price Index for All Urban
Consumers, Not Seasonally Adjusted,
U.S. City Average.
RFA............................... Regulatory Flexibility Act.
U.S.C............................. United States Code.
II. Background
Congress has established fines or other civil monetary penalties
(CMPs) for those who violate Federal laws and regulations. However, the deterrent value of these fines and penalties diminishes over time from the effects of inflation. To address this problem, Congress enacted the
Federal Civil Penalties Inflation Adjustment Act, Public Law 101-410, 104 Stat. 890, Sec. Sec. 1-6, as amended by the Debt Collection
Improvement Act of 1996, Public Law 104-134, 110 Stat. 1321, Sec. 31001(s)(1); 28 U.S.C. 2461. These statutes require Federal agencies to adjust their CMPs for inflation at least once every four years, using a nondiscretionary statutory formula, thus making further direct involvement by Congress unnecessary.
This final rule is published without a prior notice of proposed rulemaking or public comment period. Pursuant to the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for dispensing with notice and comment in this rulemaking.
This rulemaking implements the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Debt Collection Improvement
Act of 1996. These statutes require certain actions with respect to adjusting CMPs for inflation and do not allow for discretion in implementation, so that prior notice and comment is unnecessary and contrary to the public interest.
III. Method of Calculation
The method for calculating the effects of inflation on fines and penalties is very specifically prescribed by statutes, which allow no discretion. The statutes specify the inflation measure to be used, the method for the calculation of the inflation adjustment, and the method for the numerical rounding of the results.
The statutes require the use of the change in the Consumer Price
Index for All Urban Consumers (CPI-U) as the inflation measure for these calculations. The CPI-U is calculated and published by the U.S.
Department of Labor, Bureau of Labor Statistics, and uses the period of 1982 to 1984 as the base level where the CPI-U = 100.
The inflation adjustment prescribed by the statutes is calculated as the difference between the CPI-U for the month of June of the calendar year preceding the adjustment and the CPI-U for the month of
June of the calendar year in which the amount of the civil monetary penalty was last set or adjusted pursuant to law. Since the last inflation adjustment was made in 2003 and the year preceding this adjustment is 2008, the current inflation adjustment equals the increase in the CPI-U (not seasonally adjusted) from June, 2003 to
June, 2008:
Page 68151
(CPI-U2008- CPI-U2003) / CPI-U2003=
(218.815 - 183.7) / (183.7) = .1912 = 19.12%
With certain exceptions, each of the approximately 140 civil fines and penalties were adjusted by multiplying their 2003 values by 1.1912.
The exceptions included: Two penalties of 19 U.S.C. 1581(d) that were enacted under the Tariff Act of 1930 and are exempt from inflation adjustments; four penalties applicable to bridge owners whose increases are defined within their respective statutes; and three penalties established in 2006 which are not eligible for inflation adjustment until 2010.
The final step is to round the inflation-adjusted fines and penalties according to the rounding rules prescribed by the statutes.
The statutes specify that numbers are rounded according to the nearest: 1. Multiple of $10 in the case of penalties less than or equal to
$100; 2. Multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000; 3. Multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000; 4. Multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000; 5. Multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and 6. Multiple of $25,000 in the case of penalties greater than
$200,000.
Because of the rounding rules, some fines and penalties may not increase from their 2003 values. For example, a fine of $1,000 in 2003 would increase to $1,191.20 with the 2008 adjustment. However, for fines and penalties greater than $1,000 but less than or equal to
$10,000, the inflation adjusted value is rounded to the nearest $1,000; so the penalty, with rounding, remains at $1,000.
IV. Regulatory Analyses
We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
-
Regulatory Planning and Review
This rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this rule to be so minimal that a full regulatory assessment is unnecessary. This rule concerns civil monetary penalties imposed for violating Federal law and regulations which have no impact on law-abiding persons. While the expense of a fine or penalty imposed for violations of civil statutes is borne by the violator, these expenses are completely avoidable by complying with the law.
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Small Entities
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider whether regulatory actions would have a significant economic impact on a substantial number of small entities.
The term ``small entities'' comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. An RFA analysis is not required when a rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b). The Coast Guard determined that this rule is exempt from notice and comment rulemaking pursuant to 5 U.S.C. 553(b)(B). Therefore, an
RFA analysis is not required for this rule. The Coast Guard, nonetheless, expects that this final rule will not have a significant economic impact on a substantial number of small entities.
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Assistance for Small Entities
Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offer to assist small entities in understanding the rule so that they can better evaluate its effects on them and participate in the rulemaking process.
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR
(1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
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Collection of Information
This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
-
Federalism
A rule has implications for federalism under Executive Order 13132,
Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this rule under that Order and have determined that it does not have implications for federalism.
-
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. This rule affects only those who violate Federal law or regulations, and involves no discretion on the part of the Coast Guard.
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Taking of Private Property
This rule will not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
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Civil Justice Reform
This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
I. Protection of Children
We have analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
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Indian Tribal Governments
This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect 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.
Page 68152
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Energy Effects
We have analyzed this rule under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant energy action'' under that order because it is not a ``significant regulatory action'' under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The Administrator of the Office of Information and Regulatory
Affairs has not designated it as a significant energy action.
Therefore, it does not require a Statement of Energy Effects under
Executive Order 13211.
L. Technical Standards
The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through the
Office of Management and Budget, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical.
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
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Environment
We have analyzed this rule under Department of Homeland Security
Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4370f), and have concluded that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is categorically excluded under section 2.B.2, figure 2-1, paragraph (34)(a) of the Instruction. This rule involves regulations which are editorial or procedural, such as those updating addresses or establishing application procedures. An environmental analysis checklist and a categorical exclusion determination are available in the docket where indicated under ADDRESSES.
List of Subjects in 33 CFR Part 27
Administrative practice and procedure, Penalties. 0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 27 as follows:
PART 27--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION 0 1. The the authority citation for part 27 continues to read:
Authority: Secs. 16, Public Law 101410, 104 Stat. 890, as amended by Sec. 31001(s)(1), Public Law 104134, 110 Stat. 1321 (28
U.S.C. 2461 note); Department of Homeland Security Delegation No. 0170.1, sec. 2 (106). 0 2. Revise Sec. 27.3 to read as follows:
Sec. 27.3 Penalty Adjustment Table.
Table 1 identifies the statutes administered by the Coast Guard that authorize a civil monetary penalty. The ``adjusted maximum penalty'' is the maximum penalty authorized by the Federal Civil
Penalties Inflation Adjustment Act of 1990, as amended, as determined by the Coast Guard.
Table 1--Civil Monetary Penalty Inflation Adjustments
Adjusted maximum
U.S. Code citation
Civil monetary penalty description penalty amount
($)
14 U.S.C. 88(c)............................................. Saving Life and Property..........
$8,000 14 U.S.C. 645(i)............................................ Confidentiality of Medical Quality
4,000
Assurance Records (first offense). 14 U.S.C. 645(i)............................................ Confidentiality of Medical Quality
30,000
Assurance Records (subsequent offenses). 16 U.S.C. 4711(g)(1)........................................ Aquatic Nuisance Species in Waters
35,000 of the United States. 19 U.S.C. 70................................................ Obstruction of Revenue Officers by
3,000
Masters of Vessels. 19 U.S.C. 70................................................ Obstruction of Revenue Officers by
700
Masters of Vessels--Minimum
Penalty. 19 U.S.C. 1581(d)........................................... Failure to Stop Vessel When
5,000
Directed; Master, Owner,
Operator, or Person in Charge (1). 19 U.S.C. 1581(d)........................................... Failure to Stop Vessel When
1,000
Directed; Master, Owner,
Operator, or Person in Charge--
Minimum Penalty (1). 33 U.S.C. 471............................................... Anchorage Ground/Harbor
110
Regulations General. 33 U.S.C. 474............................................... Anchorage Ground/Harbor
300
Regulations St. Mary's River. 33 U.S.C. 495(b)............................................ Bridges/Failure to Comply with
25,000
Regulations (2). 33 U.S.C. 499(c)............................................ Bridges/Drawbridges (2)...........
25,000 33 U.S.C. 502(c)............................................ Bridges/Failure to Alter Bridge
25,000
Obstructing Navigation (2). 33 U.S.C. 533(b)............................................ Bridges/Maintenance and Operation
25,000
(2). 33 U.S.C. 1208(a)........................................... Bridge to Bridge Communication;
800
Master, Person in Charge, or
Pilot. 33 U.S.C. 1208(b)........................................... Bridge to Bridge Communication;
800
Vessel. 33 U.S.C. 1232(a)........................................... PWSA Regulations..................
40,000 33 U.S.C. 1236(b)........................................... Vessel Navigation: Regattas or
8,000
Marine Parades; Unlicensed Person in Charge. 33 U.S.C. 1236(c)........................................... Vessel Navigation: Regattas or
8,000
Marine Parades; Owner Onboard
Vessel. 33 U.S.C. 1236(d)........................................... Vessel Navigation: Regattas or
3,000
Marine Parades; Other Persons. 33 U.S.C. 1319.............................................. Pollution Prevention..............
40,000 33 U.S.C. 1319(2)(A)........................................ Pollution Prevention (per
15,000 violation). 33 U.S.C. 1319(2)(A)........................................ Pollution Prevention (Maximum--
40,000 repeated violations). 33 U.S.C. 1319(2)(B)........................................ Pollution Prevention (per day of
15,000 violation). 33 U.S.C. 1319(2)(B)........................................ Pollution Prevention (Maximum--
190,000 repeated violations). 33 U.S.C. 1321(b)(6)(B)(i).................................. Oil/Hazardous Substances:
15,000
Discharges (Class I per violation). 33 U.S.C. 1321(b)(6)(B)(i).................................. Oil/Hazardous Substances:
40,000
Discharges (Class I total under paragraph). 33 U.S.C. 1321(b)(6)(B)(ii)................................. Oil/Hazardous Substances:
15,000
Discharges (Class II per day of violation). 33 U.S.C. 1321(b)(6)(B)(ii)................................. Oil/Hazardous Substances:
190,000
Discharges (Class II total under paragraph). 33 U.S.C. 1321(b)(7)(A)..................................... Oil/Hazardous Substances:
40,000
Discharges (per day of violation)
Judicial Assessment. 33 U.S.C. 1321(b)(7)(A)..................................... Oil/Hazardous Substances:
1,100
Discharges (per barrel of oil or unit discharged) Judicial
Assessment (3).
Page 68153
33 U.S.C. 1321(b)(7)(B)..................................... Oil/Hazardous Substances: Failure
40,000 to Carry Out Removal/Comply With
Order (Judicial Assessment). 33 U.S.C. 1321(b)(7)(C)..................................... Oil/Hazardous Substances: Failure
40,000 to Comply with Regulation Issued
Under 1321(j) (Judicial
Assessment). 33 U.S.C. 1321(b)(7)(D)..................................... Oil/Hazardous Substances:
4,000
Discharges, Gross Negligence (per barrel of oil or unit discharged)
Judicial Assessment. 33 U.S.C. 1321(b)(7)(D)..................................... Oil/Hazardous Substances:
130,000
Discharges, Gross Negligence--
Minimum Penalty (Judicial
Assessment). 33 U.S.C. 1322(j)........................................... Marine Sanitation Devices;
3,000
Operating. 33 U.S.C. 1322(j)........................................... Marine Sanitation Devices; Sale or
8,000
Manufacture. 33 U.S.C. 1608(a)........................................... International Navigation Rules;
8,000
Operator. 33 U.S.C. 1608(b)........................................... International Navigation Rules;
8,000
Vessel. 33 U.S.C. 1908(b)(1)........................................ Pollution from Ships; General.....
40,000 33 U.S.C. 1908(b)(2)........................................ Pollution from Ships; False
8,000
Statement. 33 U.S.C. 2072(a)........................................... Inland Navigation Rules; Operator.
8,000 33 U.S.C. 2072(b)........................................... Inland Navigation Rules; Vessel...
8,000 33 U.S.C. 2609(a)........................................... Shore Protection; General.........
40,000 33 U.S.C. 2609(b)........................................... Shore Protection; Operating
15,000
Without Permit. 33 U.S.C. 2716a(a).......................................... Oil Pollution Liability and
40,000
Compensation. 42 U.S.C. 9609(a)........................................... Hazardous Substances, Releases,
35,000
Liability, Compensation (Class I). 42 U.S.C. 9609(b)........................................... Hazardous Substances, Releases,
35,000
Liability, Compensation (Class
II). 42 U.S.C. 9609(b)........................................... Hazardous Substances, Releases,
100,000
Liability, Compensation (Class II subsequent offense). 42 U.S.C. 9609(c)........................................... Hazardous Substances, Releases,
35,000
Liability, Compensation (Judicial
Assessment). 42 U.S.C. 9609(c)........................................... Hazardous Substances, Releases,
100,000
Liability, Compensation (Judicial
Assessment subsequent offense). 46 U.S.C. App 1505(a)(2).................................... Safe Containers for International
8,000
Cargo. 46 U.S.C. App 1712(a)....................................... International Ocean Commerce
6,000
Transportation--Common Carrier
Agreements per violation. 46 U.S.C. App 1712(a)....................................... International Ocean Commerce
30,000
Transportation--Common Carrier
Agreements per violation--Willful violation. 46 U.S.C. App 1712(b)....................................... International Ocean Commerce
60,000
Transportation--Common Carrier
Agreements--Fine for tariff violation (per shipment). 46 U.S.C. App 1805(c)(2).................................... Suspension of Passenger Service...
70,000 46 U.S.C. 2110(e)........................................... Vessel Inspection or Examination
8,000
Fees. 46 U.S.C. 2115.............................................. Alcohol and Dangerous Drug Testing
7,000 46 U.S.C. 2302(a)........................................... Negligent Operations: Recreational
6,000
Vessels. 46 U.S.C. 2302(a)........................................... Negligent Operations: Other
30,000
Vessels. 46 U.S.C. 2302(c)(1)........................................ Operating a Vessel While Under the
7,000
Influence of Alcohol or a
Dangerous Drug. 46 U.S.C. 2306(a)(4)........................................ Vessel Reporting Requirements:
8,000
Owner, Charterer, Managing
Operator, or Agent. 46 U.S.C. 2306(b)(2)........................................ Vessel Reporting Requirements:
1,100
Master (3). 46 U.S.C. 3102(c)(1)........................................ Immersion Suits...................
8,000 46 U.S.C. 3302(i)(5)........................................ Inspection Permit (3).............
1,100 46 U.S.C. 3318(a)........................................... Vessel Inspection; General........
8,000 46 U.S.C. 3318(g)........................................... Vessel Inspection; Nautical School
8,000
Vessel. 46 U.S.C. 3318(h)........................................... Vessel Inspection; Failure to Give
1,100
Notice IAW 3304(b) (3). 46 U.S.C. 3318(i)........................................... Vessel Inspection; Failure to Give
1,100
Notice IAW 3309(c) (3). 46 U.S.C. 3318(j)(1)........................................ Vessel Inspection; Vessel >= 1600
15,000
Gross Tons. 46 U.S.C. 3318(j)(1)........................................ Vessel Inspection; Vessel
