[Federal Register: December 11, 2003 (Volume 68, Number 238)]
[Rules and Regulations]               
[Page 69001-69003]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de03-2]                         

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DEPARTMENT OF COMMERCE

Office of the Secretary

15 CFR Part 6

[Docket No. 031205307-3307-01]
RIN 0690-AA34

 
Civil Monetary Penalties; Adjustments

AGENCY: Office of the Secretary, Commerce.

ACTION: Final rule.

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SUMMARY: This final rule is being issued to correct adjustments to 
civil monetary penalties (CMP) which appeared in a Final Rule published 
by the Department of Commerce (the Department) on January 29, 2003, 68 
FR 4380. As required by the Federal Civil Penalties Inflation 
Adjustment Act of 1990, as amended by the Debt Collection Improvement 
Act of 1996, the Secretary of Commerce adjusted civil monetary 
penalties within the jurisdiction of the Department on October 24, 
1996, and again on November 1, 2000. On September 30, 2002, the United 
States General Accounting Office (GAO) sent the Secretary of Commerce a 
letter indicating that the Department's November 1, 2000, adjustment 
was inconsistent with the requirements of the statute, and recommending 
corrective action. The Department's rule of January 29, 2003 sought to 
bring the Department into compliance with GAO's interpretation of the 
statute. This rule corrects certain penalty amounts and citations 
provided in that rule This rule is not retroactive. The Department will 
not adjust individual penalties that have already been imposed. The 
Department will not, as a matter of policy, seek penalties that are 
greater than the corrected amounts stated in this rule for violations 
occurring between November 1, 2000, and the December 11, 2003.

DATES: This rule is effective December 11, 2003.

ADDRESSES: Office of the General Counsel, Department of Commerce, 14th 
and Constitution Avenue, NW., MS 5876, Washington, DC 20230.

FOR FURTHER INFORMATION CONTACT: Peter Robbins, (202) 482-0846.

SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation 
Adjustment Act of 1990 (Pub. L. 101-410) provided for the regular 
evaluation of CMPs to ensure that they continued to maintain their 
deterrent value and that penalty amounts due to the Federal Government 
were properly accounted for and collected. On April 26, 1996, the 
Federal Civil Penalties Inflation Adjustment Act of 1990 was amended by 
the Debt Collection Improvement Act of 1996 (Pub. L. 104-134) to 
require each agency to issue regulations to adjust its CMPs for 
inflation at least every four years. The amendment further provides 
that any resulting increases in a CMP due to the inflation adjustment 
should apply only to the violations that occur after the date of the 
publication in the Federal Register of the increased amount of the CMP. 
Accordingly, the prior penalty amounts remain effective through the 
date of publication.
    In early 2002, GAO determined that in its 2000 adjustments, the 
Department had adjusted some of its civil penalties in a manner 
inconsistent with GAO's reading of the statute, and in particular 
questioned the Department's method of rounding.
    As stated in the January 29, 2003, rule, the Department believes 
that GAO's reading of the Federal Civil Penalties Inflation Adjustment 
Act of 1990 produces a result which is inconsistent with the stated 
purpose of the statute (i.e., to keep civil penalties in pace with 
inflation). Nevertheless, the Department sought to comply with GAO's 
request that the 2000 adjustments be revised. Accordingly, on January 
29, 2003, the Department published a rule listing adjusted CMPs. 
Unfortunately, there were several improper penalty amounts and 
citations in that rule. The purpose of this rule is to correct those 
mistakes.

[[Page 69002]]

    The changes to the CMPs made by the January 29, 2003, rule and by 
this rule are not retroactive. The Department will not adjust penalties 
that were imposed under the CMPs in the November 1, 2000, rule prior to 
their adjustment in either the January 29, 2003, rule or this rule. In 
cases in which penalties were not imposed prior to January 29, 2003, 
and which allege violations that occurred after November 1, 2000, the 
Department's policy will be not to seek penalties that exceed the 
amounts that are set by this rule.
    During the process of reviewing the above-stated CMPs, the 
Department has discovered that some CMPs listed in previous adjustment 
notices have been incorrectly stated. The previous incorrect CMPs were 
the result of an oversight that failed to properly apply the CMP for 
the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 
1851, et seq., to statutes that adopt its CMP by reference. The 
following statutes' CMPs have been listed to reflect the correct 
statutorily mandated penalty: 16 U.S.C. 971e(e), Atlantic Tunas 
Convention Act of 1975 (1995); 16 U.S.C. 3606(b)(1), Atlantic Salmon 
Convention Act of 1982 (1990); 16 U.S.C. 3637(b), Pacific Salmon Treaty 
Act of 1985 (1990); 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries 
Cooperative Management Act (1993); 16 U.S.C. 5154(c)(1), Atlantic 
Striped Bass Conservation Act (1990); and 16 U.S.C. 5606(b), Northwest 
Atlantic Fisheries Convention Act of 1995.

Rulemaking Requirements

    It has been determined that this rule is not significant for 
purposes of Executive Order 12866.
    The Department for good cause finds that notice and opportunity for 
comments required by 5 U.S.C. 553(b)(B) of the Administrative Procedure 
Act are unnecessary and contrary to the public interest for this 
rulemaking because the Debt Collection Improvement Act of 1996 requires 
the head of each agency to adjust its civil monetary penalties for 
inflation by regulation at least every four years, and the Federal 
Civil Monetary Penalty Inflation Adjustment Act of 1990, as amended by 
the Debt Collection Improvement Act of 1996, states how to calculate 
the inflation adjustment. This rule merely adjusts the Department's 
CMPs according to the statutory requirements, as interpreted by GAO. 
Because the Department adjusted the CMPs in 2000 in a manner that was 
not in compliance with GAO's reading of the law, and then readjusted 
the CMPs in a manner that did not always accurately reflect the 
appropriate penalties, the Department is adjusting the CMPs sooner than 
four years. The Department does not have any discretion in making the 
adjustments. Additionally, the public interest requires that the 
published maximums for CMPs be accurate. For the same reasons, and also 
because the published amounts of some penalties have now been in error 
between November 1, 2000, and January 29, 2003, as well as the period 
between January 29, 2003, and December 11, 2003, there also exists good 
cause to waive the thirty-day delay in effectiveness, pursuant to 5 
U.S.C. 553(d)(3).
    Because notice and opportunity for comment are not required by 5 
U.S.C. 553, or any other law, a Regulatory Flexibility Analysis is not 
required and was not prepared for the purposes of the Regulatory 
Flexibility Act.
    This rule does not contain information collection requirements for 
the purposes of the Paperwork Reduction Act.

List of Subjects in 15 CFR Part 6

    Law Enforcement, Penalties.

James L. Taylor,
Deputy Chief Financial Officer and Director for Financial Management.

0
For the reasons set forth in the preamble, subtitle A of title 15 of 
the Code of Federal Regulations is amended as follows:

PART 6--CIVIL MONETARY PENALTY INFLATION ADJUSTMENTS

0
1. The authority citation for part 6 continues to read as follows:

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


0
2. Section 6.4 is revised to read as follows:


Sec.  6.4  Ajustment to penalties.

    (a) Bureau of Industry and Security
    (1) 15 U.S.C. 5408(b)(1), Fastener Quality Act violation, from 
$27,500 to $27,500.
    (2) 22 U.S.C. 6761(a)(1)(A), Chemical Weapons Convention 
Implementation Act--Inspection Violation, from $25,500 to $25,000.
    (3) 22 U.S.C. 6761(a)(1)(B), Chemical Weapons Convention 
Implementation Act--Record Keeping Violation, from $5,100 to $5,000.
    (4) 50 U.S.C. 1705(a), International Emergency Economic Powers 
Act--Export Administration Regulation Violation, from $12,000 to 
$11,000.
    (5) 50 U.S.C. 1705(a), International Emergency Economic Powers 
Act--Chemical Weapons Convention Implementation Act, Import Restriction 
Violation, from $11,000 to $11,000.
    (6) 50 U.S.C. App. 2410(c), Export Administration Act--Other 
Violation, from $12,000 to $11,000.
    (7) 50 U.S.C. App. 2410(c), Export Administration Act and Section 
38 of the Arms Export Control Act--National Security Violation, from 
$120,000 to $120,000.
    (b) Economic Development Administration
    (1) 19 U.S.C. 2349, Trade Act of 1974--False Statements or 
Submissions with Applications for Assistance, from $6,000 to $5,500.
    (2) [Reserved]
    (c) Economics and Statistics Administration
    (1) 13 U.S.C. 304, Delinquency on Delayed Filing of Export 
Documentation, from $1,200 to $1,100.
    (2) 13 U.S.C. 305, Collection of Foreign Trade Statistics--
Violations, from $1,200 to $1,100.
    (3) 22 U.S.C. 3105(a), International Investment and Trade in 
Services Act--Failure to Furnish Information, from $30,000 to $27,500.
    (d) International Trade Administration
    (1) 19 U.S.C. 81s, Foreign Trade Zone--Violation, from $1,200 to 
$1,100.
    (2) 19 U.S.C. 1677(f)(4) U.S.-Canada FTA Protective Order--
Violation, from $120,000 to $120,000.
    (e) National Oceanic and Atmospheric Administration
    (1) 15 U.S.C. 5623(a)(3), Land Remote Sensing Policy Act of 1992, 
from $11,900 to $11,000.
    (2) 15 U.S.C. 5658(c), Land Remote Sensing Policy Act of 1992, from 
$11,900 to $11,000.
    (3) 16 U.S.C. 773f(a), Northern Pacific Halibut Act of 1982, from 
$30,000 to $27,500.
    (4) 16 U.S.C. 783, Sponge Act (1914), from $600 to $550.
    (5) 16 U.S.C. 957, Tuna Conventions Act of 1950 (1962);
    (i) Violation/Subsection a, from $30,000 to $27,500.
    (ii) Subsequent Violation/Subsection a, from $60,000 to $60,000.
    (iii) Violation/Subsection b, from $1,200 to $1,100.
    (iv) Subsequent Violation/Subsection b, from $6,000 to $5,500.
    (v) Violation/Subsection c, from $120,000 to $120,000.
    (6) 16 U.S.C. 971e(e), Atlantic Tunas Convention Act of 1975 
(1995), from $109,000 to $120,000.
    (7) 16 U.S.C. 972f(b), Eastern Pacific Tuna Licensing Act of 1984;
    (i) Violation/Subsections (a)(1)-(3), from $30,000 to $27,500.

[[Page 69003]]

    (ii) Subsequent Violation/Subsections (a)(1)-(3), from $60,000 to 
$60,000
    (iii) Violation/Subsections (a)(4)-(5), from $6,000 to $5,500.
    (iv) Subsequent Violation/Subsections (a)(4)-(5), from $6,000 to 
$5,500.
    (v) Violation/Subsection (a)(6), from $120,000 to $120,000.
    (8) 16 U.S.C. 973f(a), South Pacific Tuna Act of 1988, from 
$300,000 to $300,000.
    (9) 16 U.S.C. 1174(b), Fur Seal Act Amendments of 1983, from 
$11,000 to $11,000.
    (10) 16 U.S.C. 1375(a)(1), Marine Mammal Protection Act of 1972 
(1981), from $12,000 to $11,000.
    (11) 16 U.S.C. 1385(e), Dolphin Protection Consumer Information Act 
(1990), from $110,000 to $110,000.
    (12) 16 U.S.C. 1437(d)(1), National Marine Sanctuaries Act (1992), 
from $119,000 to $120,000.
    (13) 16 U.S.C. 1540(a)(1), Endangered Species Act of 1973;
    (i) Knowing Violations of Section 1538 (1988), from $30,000 to 
$27,500.
    (ii) Other Knowing Violations (1988), from $14,000 to $13,200.
    (iii) Otherwise Violations (1978), from $600 to $550.
    (14) 16 U.S.C. 1858(a), Magnuson-Stevens Fishery Conservation and 
Management Act (1990), from $120,000 to $120,000.
    (15) 16 U.S.C. 2437(a)(1), Antarctic Marine Living Resources 
Convention Act of 1984;
    (i) Knowing Violation, from $12,000 to $11,000.
    (ii) Violation, from $6,000 to $5,500.
    (16) 16 U.S.C. 2465(a), Antarctic Protection Act of 1990;
    (i) Knowing Violation, from $11,000 to $11,000.
    (ii) Violation, from $5,500 to $5,500.
    (17) 16 U.S.C. 3373(a), Lacey Act Amendments of 1981
    (i) Sale and Purchase Violation, from $12,000 to $11,000.
    (ii) Marking Violation, from $300 to $275.
    (iii) False Labeling Violation, from $12,000 to $11,000.
    (iv) Other than Marking Violation, from $12,000 to $11,000.
    (18) 16 U.S.C. 3606(b)(1), Atlantic Salmon Convention Act of 1982 
(1990), from $120,000 to $120,000.
    (19) 16 U.S.C. 3637(b), Pacific Salmon Treaty Act of 1985 (1990), 
from $120,000 to $120,000.
    (20) 16 U.S.C. 4016(b)(1)(B), Fish and Seafood Promotion Act of 
1986, from $5,500 to $5,500.
    (21) 16 U.S.C. 5010(a)(1), North Pacific Anadromous Stocks Act of 
1992, from $110,000 to $110,000.
    (22) 16 U.S.C. 5103(b)(2), Atlantic Coastal Fisheries Cooperative 
Management Act (1993), from $110,000 to $120,000.
    (23) 16 U.S.C. 5154(c)(1), Atlantic Striped Bass Conservation Act 
(1990), from $120,000 to $120,000.
    (24) 16 U.S.C. 5507(a)(1), High Seas Fishing Compliance Act of 
1995, from $109,000 to $110,000.
    (25) 16 U.S.C. 5606(b), Northwest Atlantic Fisheries Convention Act 
of 1995, from $109,000 to $120,000.
    (26) 22 U.S.C. 1978(e), Fishermen's Protective Act of 1967 (1971);
    (i) Violation, from $11,000 to $11,000.
    (ii) Subsequent Violation, from $27,500 to $27,500.
    (27) 30 U.S.C. 1462(a), Deep Seabed Hard Mineral Resources Act 
(1980), from $30,000 to $27,500.
    (28) 42 U.S.C. 9152(c)(1), Ocean Thermal Energy Conversion Act of 
1980, from $30,000 to $27,500.

0
3. Section 6.5 is revised to read as follows:
    Sec.  6.5 Effective date of adjustments.
    The adjustments made by Sec. 6.4 of this part, of the penalties 
there specified, are effective on December 11, 2003, and said 
penalties, as thus adjusted by the adjustments made by Sec. 6.4 of this 
part, shall apply only to violations occurring after December 11, 2003, 
and before the effective date of any future inflation adjustment 
thereto made subsequent to December 11, 2003 as provided in Sec. 6.6 of 
this part.

[FR Doc. 03-30621 Filed 12-10-03; 8:45 am]

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