This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

74625 

Vol. 76, No. 231 

Thursday, December 1, 2011 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 280 

[CBP Dec. No. 11–23] 

RIN 1651–AA91 

DEPARTMENT OF JUSTICE 

Executive Office for Immigration 

Review 

8 CFR Part 1280 

[EOIR Docket No. 172; AG Order No. 3309– 

2011] 

RIN 1125–AA69 

Civil Monetary Penalties Inflation 

Adjustment 

AGENCIES: U.S. Customs and Border 

Protection, Department of Homeland 

Security; Executive Office for 

Immigration Review, Department of 

Justice. 

ACTION: Final rule. 

SUMMARY: This rule amends the 

Department of Homeland Security 

(DHS) regulations to adjust for inflation 

certain civil monetary penalties 

assessed under the Immigration and 

Nationality Act (INA). The adjusted 

penalties are calculated according to a 

statutory formula, and will be effective 

for violations occurring on or after the 

effective date. This rule also amends the 

Department of Justice (DOJ) regulations 

to eliminate duplicative language and to 

substitute cross-references to the 

relevant regulations. 

DATES: This rule will take effect on 

January 3, 2012. 

FOR FURTHER INFORMATION CONTACT:

Concerning amendments to 8 CFR 

part 280: Joseph O’Donnell, U.S. 

Customs and Border Protection, Office 

of Field Operations, (202) 344–1691 (not 

a toll-free call), r.odonnell@dhs.gov. 

Concerning amendments to 8 CFR 

part 1280: Robin M. Stutman, General 

Counsel, Office of the General Counsel, 

Executive Office for Immigration 

Review, Department of Justice, 5107 

Leesburg Pike, Suite 2600, Falls Church, 

VA 22041. Contact Telephone Number: 

(703) 305–0470 (not a-toll free call). 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Homeland Security Act of 2002 

transferred the functions of the 

Immigration and Naturalization Service 

(INS) to DHS. See Pub. L. 107–296, tit. 

IV, subtits. D, E, F, 116 Stat. 2135, 2192. 

DOJ and its administrative component, 

the Executive Office for Immigration 

Review (EOIR), retained the functions of 

EOIR, see 6 U.S.C. 521, including 

jurisdiction over regulations currently 

codified in chapter V of title 8 of the 

Code of Federal Regulations (CFR). On 

February 28, 2003, the Attorney General 

published a final rule in the Federal 

Register that reflects the transfer of 

authorities from the INS to DHS and the 

current division of regulations between 

DHS and EOIR. See 68 FR 9824–01 (Feb. 

28, 2003). Pursuant to that rule, certain 

parts of chapter I of title 8 of the CFR 

(pertaining to DHS) were duplicated in 

chapter V (pertaining to EOIR) to ensure 

that all relevant authority relating to the 

shared responsibilities was preserved. 

See id. at 9825. Part of those duplicative 

regulations pertain to civil monetary 

penalties assessed under the INA. 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Adjustment 

Act), Public Law 101–410, 104 Stat. 890, 

28 U.S.C. 2461 note, provides for the 

regular evaluation of civil monetary 

penalties to ensure that the penalty 

amounts continue to maintain their 

deterrent effect and that the penalty 

amounts owed to the Federal 

Government are properly accounted for 

and collected. The Debt Collection 

Improvement Act of 1996 (Improvement 

Act) amended the Adjustment Act to 

require the head of each agency to ‘‘by 

regulation adjust each civil monetary 

penalty provided by law within the 

jurisdiction of the Federal agency.’’ 

Public Law 104–134, § 31001(s)(1), 110 

Stat. 1321. The Improvement Act 

requires inflation adjustments every 

four years. 

The penalties that may be assessed by 

U.S. Customs and Border Protection 

(CBP) upon carriers and persons who 

violate specified provisions of the INA 

currently are enumerated in 8 CFR 

280.53. This section is repeated in 

chapter V of title 8 of the CFR at 

§ 1280.53 in regulations relating to DOJ. 

As discussed above, this duplication 

was done in 2003 to ensure that all 

relevant authority was preserved. 

After the revisions in this final rule 

take effect, the penalties for specified 

violations of the INA will be 

enumerated only in 8 CFR 280.53. 

Those penalties will be for the following 

violations of the INA: 

• Section 231(g) of the INA, Penalties 

for non-compliance with arrival and 

departure manifest requirements for 

passengers, crewmembers, or occupants 

transported on commercial vessels or 

aircraft arriving to or departing from the 

United States. 

• Section 234 of the INA, Penalties 

for non-compliance with landing 

requirements at designated ports of 

entry for aircraft transporting aliens. 

• Section 240B(d) of the INA, 

Penalties for failure to depart 

voluntarily. 

• Section 243(c)(1) of the INA, 

Penalties for violations of removal 

orders relating to aliens transported on 

vessels or aircraft under section 241(d) 

of the INA or for costs associated with 

removal under section 241(e) of the INA 

and penalties for failure to remove alien 

stowaways under section 241(d)(2) of 

the INA. 

• Section 251(d) of the INA, Penalties 

for failure to report an illegal landing or 

desertion of alien crewmen, and for 

each alien not reported on arrival or 

departure manifest and lists in 

accordance with section 251 of the INA 

and penalties for use of alien crewmen 

for longshore work in violation of 

section 251(d) of the INA. 

• Section 254(a) of the INA, Penalties 

for failure to control alien crewmen. 

• Section 255 of the INA, Penalties 

for employment on passenger vessels of 

aliens afflicted with certain disabilities. 

• Section 256 of the INA, Penalties 

for discharge of alien crewmen. 

• Section 257 of the INA, Penalties 

for bringing into the United States alien 

crewmen with intent to evade 

immigration laws. 

• Section 271(a) of the INA, Penalties 

for failure to prevent the unauthorized 

landing of aliens. 

• Section 272(a) of the INA, Penalties 

for bringing to the United States aliens 


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74626 Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations 

subject to denial of admission on a 

health-related ground. 

• Section 273(b) of the INA, Penalties 

for bringing to the United States aliens 

without required documentation. 

• Section 274D of the INA, Penalties 

for failure to depart. 

• Section 275(b) of the INA, Penalties 

for improper entry. 

The penalty amounts for the 

violations of the INA enumerated in 8 

CFR 280.53 were last adjusted for 

inflation in 1999, when DOJ published 

a final rule in the Federal Register, in 

accordance with the Adjustment and 

Improvement Acts. See 64 FR 47099 

(Aug. 30, 1999). The final rule, however, 

did not adjust the penalties for certain 

violations of the INA that had only been 

in effect since 1996. DOJ noted at that 

time that the ‘‘[p]enalties not being 

adjusted by this rule will be adjusted, if 

appropriate, during the next adjustment 

required by the Debt Collection 

Improvement Act.’’ Id. at 47100. DOJ 

listed those penalties under paragraph 

(d) of 8 CFR 280.53, including for 

violations of sections 240B(d), 

243(c)(1)(A) and (B), 274D, and 275(b) of 

the INA. 

This final rule reflects compliance 

with Congress’s mandate to adjust civil 

penalties for inflation. Congress has 

detailed the method for calculating 

inflation adjustments. Section 5(a) of the 

Adjustment Act provides that the 

inflation adjustment shall be 

determined by increasing the maximum 

civil penalty or the range of minimum 

and maximum civil monetary penalties, 

as applicable, for each civil monetary 

penalty by the cost-of-living adjustment, 

as defined in section 5(b). See 5 U.S.C. 

2461 note. The cost-of-living adjustment 

is defined in section 5(b) as the 

percentage (if any) by which— 

(1) The Consumer Price Index for the 

month of June of the calendar year 

preceding the adjustment, exceeds 

(2) The Consumer Price Index for the 

month of June of the calendar year in 

which the civil monetary penalty was 

last set or adjusted pursuant to law. 

Id. Section 3(3) of the Adjustment Act 

defines ‘‘Consumer Price Index’’ to 

mean the Consumer Price Index for allurban consumers [‘CPI–U’] published by 

the Department of Labor. Id. The CPI– 

U is accordingly used for all 

calculations in this final rule. 

Section 5(a) of the Adjustment Act 

further provides that any increase 

required by the cost-of-living 

adjustment is subject to rounding 

according to the following standards: 

• For penalties less than or equal to 

$100, increases are rounded to multiples 

of $10; 

• For penalties greater than $100 but 

less than or equal to $1,000, increases 

are rounded to multiples of $100; 

• For penalties greater than $1,000 

but less than or equal to $10,000, 

increases are rounded to multiples of 

$1,000; 

• For penalties greater than $10,000 

but less than or equal to $100,000, 

increases are rounded to multiples of 

$5,000; 

• For penalties greater than $100,000 

but less than or equal to $200,000, 

increases are rounded to multiples of 

$10,000; and 

• For penalties greater than $200,000, 

increases are rounded to multiples of 

$25,000. 

See id. 

In 2002, after the publication of DOJ’s 

final rule, Congress redesignated 8 

U.S.C. 1221(d) (section 231(d) of the 

INA) as 8 U.S.C. 1221(g) (section 231(g) 

of the INA) and increased the penalty 

for noncompliance from $300 per 

person to $1,000 per person. See Public 

Law 107–173, tit. IV, § 402(c), 116 Stat. 

559. For that reason, the penalty in 

section 231(g) of the INA, which is 

currently listed as corresponding to 

section 231(d) in 8 CFR 280.53(c)(1) and 

8 CFR 1280.53(c)(1) as $330 per person, 

has been superseded by the subsequent 

legislation and is currently $1,000 per 

person. 

II. Summary of the Calculations 

In this final rule, DHS is adjusting the 

civil monetary penalty amounts 

specified in 8 CFR 280.53, as well as in 

section 231(g) of the INA (8 U.S.C. 

1221(g)), relating to penalties imposed 

for various violations of the INA, in 

accordance with the cost-of-living 

adjustment formula and the rounding 

provisions. 

To explain how we calculated the 

inflation increase adjustment for those 

penalties that were previously adjusted 

in 1999, as adjusted for cost-of-living, 

we will use the current penalty in 

section 234 of the INA (8 U.S.C. 1224), 

listed in 8 CFR 280.53(c)(2), as an 

example. 

First, we must determine the CPI 

factor. Because we are adjusting the 

civil monetary penalty in 2011 and the 

penalty was last adjusted in 1999, we 

use the CPI–U for June of 2010 (217.965) 

and the CPI–U for June of 1999 (166.2). 

We calculate the CPI factor by 

subtracting the CPI–U for June of 1999 

(166.2) from the CPI–U for June of 2010 

(217.965) and then dividing by the CPI– 

U for June of 1999 (166.2). The result is 

31.15%. 

Second, to calculate the raw increase 

for each civil penalty (before rounding), 

we multiply the current penalty by the 

CPI factor. In our example, we multiply 

$2,200 by 31.15%, which equals 

$685.30. 

In the third step, we round the raw 

increase according to the rules in 

section 5(a) of the Adjustment Act. 

Under these rules, because the current 

penalty ($2,200) is greater than $1,000, 

but less than or equal to $10,000, we 

round the raw increase ($685.30) to the 

nearest multiple of $1,000. The result is 

a rounded increase of $1,000. 

In the fourth and final step, we add 

the rounded increase ($1,000) to the 

current penalty ($2,200). Therefore, in 

our first example, the adjusted penalty 

for section 234 of the INA is $3,200. 

To explain how we calculated the 

inflation increase adjustment for the 

penalty in section 231(g) of the INA (8 

U.S.C. 1221(g)), which was set by 

legislation in 2002, we first must 

determine the CPI factor. Because we 

are adjusting the civil monetary penalty 

in 2011 and the penalty in section 

231(g) was set in 2002, we must use the 

CPI–U for June of 2010 (217.965) and for 

June of 2002 (179.9). We calculate the 

CPI factor by subtracting the CPI–U for 

June of 2002 (179.9) from the CPI–U for 

June of 2010 (217.965) and then 

dividing by the CPI–U for June of 2002 

(179.9). The result is 21.16%. 

Second, to calculate the raw increase 

(before rounding), we multiply the 

current penalty by the CPI factor. Here, 

we multiply $1,000 by 21.16%, which 

equals $211.60. 

In the third step, we round the raw 

increase according to the rules in 

section 5(a) of the Adjustment Act. 

Since the current penalty ($1,000) is 

greater than $100, but less than or equal 

to $1,000, we round to the nearest 

multiple of $100, which makes the 

rounded increase $200. 

In the fourth and final step, we add 

the rounded increase ($200) to the 

current penalty ($1,000). Therefore, 

here, the adjusted penalty for section 

231(g) would increase to $1,200. 

However, section 31001(s)(2) of the 

Improvement Act provides that the 

initial adjustment of a civil monetary 

penalty may not exceed 10% of such 

penalty. Because the penalty in section 

231(g) was set by legislation in 2002, it 

has not been previously adjusted; 

therefore, the 10% statutory cap applies. 

To apply the statutory cap, we must 

calculate 10% of the penalty. To 

calculate the statutory cap for the 

penalty, we take 10% of $1,000, which 

equals $100. We then add that result to 

the current penalty, $1,000. The result 

is $1,100. Because the adjusted penalty 

is higher than the 10% statutory cap, the 

10% statutory cap must be used. 

Therefore, the adjusted civil monetary 


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Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations 74627 

penalty for violations of section 231(g) 

is $1,100. 

Because DHS is also adjusting certain 

other penalties for the first time 

(namely, the penalties set forth in 

sections 240B(d), 243(c)(1)(A) and (B), 

274D, and 275(b) of the INA), those 

increases are also subject to the 10% 

statutory cap. Accordingly, we must 

first apply the normal formula and then, 

if necessary, apply the statutory cap. 

To explain our calculations for 

adjusting the civil monetary amounts for 

those penalties that are being adjusted 

for the first time, we will use section 

240B(d) of the INA (8 U.S.C. 1229c(d)) 

as our example. Section 240B(d) 

provides that each alien who fails to 

depart the U.S. voluntarily after being 

permitted to do so is liable for a $1,000 

minimum and a $5,000 maximum 

penalty. 

First, we must determine the CPI 

factor. The civil monetary penalty was 

enacted in 1996, so we must use the 

CPI–U for June of 1996 (156.7). We 

calculate the CPI factor by subtracting 

the CPI–U for June of 1996 (156.7) from 

the CPI–U for June of 2010 (217.965) 

and then dividing by the CPI–U for June 

of 1996 (156.7). The result is 39.10%. 

Second, to calculate the raw increase 

(before rounding), we multiply the 

current penalty by the CPI factor. For 

the minimum penalty, the raw increase 

is calculated by multiplying $1,000 by 

39.10%, which is $391.00. For the 

maximum penalty, we multiplied 

$5,000 by 39.10%, which equals 

$1,955.00. 

In the third step, we round the raw 

increase according to the rules in 

section 5(a) of the Adjustment Act and 

then add this rounded increase to the 

current penalty. In this instance, the raw 

increase for the minimum penalty 

($391.00) rounds to $400, resulting in an 

adjusted penalty of $1,400. For the 

maximum penalty, the raw increase 

($1,955.00) rounds to $2,000, resulting 

in an adjusted penalty of $7,000. 

However, as stated above, under section 

31001(s)(2) of the Improvement Act, the 

initial adjustment of a civil monetary 

penalty may not exceed 10% of such 

penalty. 

To apply the statutory cap, we must 

calculate 10% of the minimum and 

maximum penalties. To calculate the 

statutory cap for the minimum penalty, 

we take 10% of $1,000, which equals 

$100. We then add that result to the 

current minimum, $1,000. The result is 

$1,100. We follow the same steps to 

calculate the maximum statutory 

penalty: We take 10% of $5,000, which 

equals $500. We then add that number 

($500) to the current maximum, $5,000. 

The result is $5,500. Because the 

adjusted penalties are higher than the 

10% statutory cap, the 10% statutory 

cap must be used. Therefore, the 

minimum and maximum adjusted civil 

monetary penalties for violations of 

section 240B(d) of the INA are $1,100 

and $5,500, respectively. 

III. Adjustment of Civil Monetary 

Penalties 

As shown above in the first example, 

application of the cost-of-living 

adjustment formula results in an 

inflation adjustment of 31.15%, based 

on a CPI–U of 217.965 for June 2010 and 

a CPI–U of 166.2 for June 1999 (when 

the last adjustment was made). This 

results in new civil monetary penalties 

for violations of sections 234, 251(d), 

254(a), 257, 271(a), 272(a), and 273(b) of 

the INA and for the maximum penalty 

for violations of section 256 of the INA. 

There will be no inflation adjustment to 

the civil monetary penalty for violations 

of section 255 or the minimum penalty 

for violations of section 256 of the INA 

because, due to rounding, the 

application of the cost-of-living 

adjustment formula results in the same 

adjusted penalty as the current penalty, 

as demonstrated in the chart below. 

Additionally, there will be an inflation 

adjustment to the civil monetary penalty 

for violations of section 231(g) of the 

INA. DHS has also adjusted the civil 

monetary penalties for violations of 

sections 240B(d), 243(c)(1), 274D, and 

275(b) of the INA. The adjustments are 

shown in the chart below: 

INA § Statute Current 

penalty 

Year last 

adjusted 

CPI factor 

(2011) 

(%) 

Raw increase 

(2011) Rounder Rounded increase 

Adjusted 

penalty 

INA § 231(g); 8 U.S.C. 

1221(g).

$1,000 .......... Enacted in 

2002.

21.16 $211.60 ................ 10% statutory 

cap.

$100 ............. $1,100. 

INA § 234; 8 U.S.C. 

1224.

$2,200 .......... 1999 ............. 31.15 $685.30 ................ 1,000 ............ $1,000 .......... $3,200. 

INA § 240B(d); 8 U.S.C. 

1229c(d).

$1,000 minimum/5,000 

maximum.

Enacted in 

1996.

39.10 $391.00 minimum/ 

$1,955.00 maximum.

10% statutory 

cap.

$100 minimum/$500 

maximum.

$1,100 minimum/ 

$5,500 

maximum. 

INA § 243(c)(1)(A); 8 

U.S.C. 1253(c)(1)(A).

$2,000 .......... Enacted in 

1996.

39.10 $782.00 ................ 10% statutory 

cap.

$200 ............. $2,200. 

INA § 243(c)(1)(B); 8 

U.S.C. 1253(c)(1)(B).

$5,000 .......... Enacted in 

1996.

39.10 $1,955.00 ............. 10% statutory 

cap.

$500 ............. $5,500. 

INA § 251(d); 8 U.S.C. 

1281(d).

$220 for each 

alien not 

reported/ 

$5,500 for 

use of alien 

crewman.

1999 ............. 31.15 $68.53 for each 

alien not reported/ 

$1,713.25 for 

use of alien 

crewman.

100 for each 

alien not 

reported/ 

1,000 for 

use of alien 

crewman.

$100 for each 

alien not 

reported/ 

$2,000 for 

use of alien 

crewman.

$320 for each 

alien not 

reported; 

$7,500 for 

use of alien 

crewman. 

INA § 254(a); 8 U.S.C. 

1284(a).

$550 minimum/ 

$3,300 

maximum.

1999 ............. 31.15 $171.33 minimum/ 

$1,027.95 maximum.

100 minimum/ 

1,000 maximum.

$200 minimum/ 

$1,000 

maximum.

$750 minimum/ 

$4,300 

maximum. 

INA § 255; 8 U.S.C. 

1285.

$1,100 .......... 1999 ............. 31.15 $342.65 ................ 1,000 ............ $0 ................. $1,100. 

INA § 256; 8 U.S.C. 

1286.

$1,500 minimum/ 

$3,300 

maximum.

1999 ............. 31.15 $467.25 minimum/ 

$1,027.95 maximum.

1,000 minimum/1,000 

maximum.

$0 minimum/ 

$1,000 

maximum.

$1,500 minimum/ 

$4,300 

maximum. 

INA § 257; 8 U.S.C. 

1287.

$11,000 ........ 1999 ............. 31.15 $3,426.50 ............. 5,000 ............ $5,000 .......... $16,000. 


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74628 Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations 

INA § Statute Current 

penalty 

Year last 

adjusted 

CPI factor 

(2011) 

(%) 

Raw increase 

(2011) Rounder Rounded increase 

Adjusted 

penalty 

INA § 271(a); 8 U.S.C. 

1321(a).

$3,300 .......... 1999 ............. 31.15 $1,027.95 ............. 1,000 ............ $1,000 .......... $4,300. 

INA § 272(a); 8 U.S.C. 

1322(a).

$3,300 .......... 1999 ............. 31.15 $1,027.95 ............. 1,000 ............ $1,000 .......... $4,300. 

INA § 273(b); 8 U.S.C. 

1323(b).

$3,300 .......... 1999 ............. 31.15 $1,027.95 ............. 1,000 ............ $1,000 .......... $4,300. 

INA § 274D; 8 U.S.C. 

1324d.

$500 ............. Enacted in 

1996.

39.10 $195.50 ................ 10% statutory 

cap.

$50 ............... $550. 

INA § 275(b); 8 U.S.C. 

1325(b).

$50 minimum/ 

$250 maximum.

Enacted in 

1996.

39.10 $19.55 minimum/ 

$97.75 maximum.

10% statutory 

cap.

$5 minimum/ 

$25 maximum.

$55 minimum/ 

$275 maximum. 

The increased penalty amounts will 

apply only to violations that occur on or 

after the effective date of this rule. For 

violations that occurred before the 

effective date, the current penalties 

listed as the first amount in the 

regulation (and shown in the chart 

above) will apply. 

DHS is amending 8 CFR 280.53(c) to 

adjust the listed penalty amounts 

pursuant to the statutory formula 

discussed above. DHS is also amending 

8 CFR 280.53(c) to add to the list those 

civil monetary penalties that are being 

adjusted for the first time. These include 

the penalties prescribed in sections 

240B(d), 243(c)(1), 274D, and 275(b) of 

the INA. These penalties were 

previously listed in § 280.53(d), entitled, 

‘‘Identification of sections requiring no 

adjustment to penalties.’’ Because these 

penalties will be incorporated in 8 CFR 

280.53(c) in the final rule, DHS is 

removing 8 CFR 280.53(d). 

IV. Conforming Changes to DHS 

Regulations 

As explained further in the following 

section discussing changes to the DOJ 

regulations, part 280 contains two 

existing regulations (last amended in 

1989), that have never been updated to 

reflect subsequent changes in the 

relevant regulatory provisions. DHS is 

making two technical, conforming 

amendments to provide revised 

language referring to the correct, current 

regulatory provisions. Sections 

280.13(b) and 280.51(c) are being 

revised to delete the phrase ‘‘an appeal 

may be taken to the Board of 

Immigration Appeals (Board) within 15 

days after the mailing of the notification 

of decision as provided in part 3 of this 

chapter’’ and to substitute the phrase 

‘‘an appeal may be taken to the Board 

as provided in 8 CFR part 1003.’’ 

V. Changes to DOJ Regulations 

DOJ has concluded that it is not 

necessary to retain the provisions of 8 

CFR 1280.53 to reflect the inflation 

adjustments to the penalties imposed by 

DHS. Section 1280.53, which, as noted 

above, simply reproduces the DHS 

regulations at 8 CFR 280.53, was 

promulgated in 2003 in connection with 

the transfer of authority from the former 

INS to DHS. See 68 FR 9824 (Feb. 28, 

2003). To ensure that all relevant 

authority relating to the shared 

responsibilities of DHS and DOJ was 

preserved, DOJ duplicated in their 

entirety the regulations in 8 CFR 280 

into new part 1280 so that these 

provisions would also continue to be a 

part of the DOJ regulations. See id. at 

9827. Following the transfer of 

authority, the Board retained appellate 

authority to review DHS decisions 

involving certain administrative fines 

and penalties listed in 8 CFR 280.53. 

See 8 CFR 1003.1(b)(4). Because the 

Board’s appellate authority to review 

DHS decisions involving the penalty 

provisions set forth in 8 CFR 280.53 is 

provided in 8 CFR part 1003 and 

because the duplicative language in 8 

CFR 1280.53 does not add anything to 

the existing regulatory provisions, DOJ 

is removing § 1280.53 to eliminate the 

duplicative language. 

Upon review of the remaining 

provisions in part 1280 other than 

§ 1280.53, DOJ has concluded that these 

other provisions do not need to be 

retained in the EOIR regulations either. 

These other provisions in part 1280 

duplicate regulatory provisions in 8 CFR 

280 and almost all of them relate solely 

to the authority of DHS to impose fines 

and civil monetary penalties. It is 

unnecessary to duplicate in the EOIR 

regulations the text of provisions that 

pertain to DHS’s internal authority. 

There are two provisions in part 1280 

relating directly to the authority of the 

Board, §§ 1280.13(b) and 1280.51(c), 

each of which provides that ‘‘an appeal 

may be taken to the Board [from DHS’s 

decision] within 15 days after the 

mailing of the notification of decision as 

provided in part 3 of this chapter.’’ 

These two provisions, and the 

corresponding provisions in part 280 

from which they were taken, have not 

been substantively revised since 1989 

and have long been out-of-date. Sections 

1280.13(b) and 1280.51(c) still refer to 8 

CFR part 3, even though the relevant 

provisions of that part were 

redesignated as part 1003 in 2003, as 

discussed above. More significantly, the 

current language in §§ 1280.13(b) and 

1280.51(c) (and the corresponding 

language in §§ 280.13(b) and 280.51(c) 

of the DHS regulations) refers to a 15- 

day period for the filing of an appeal to 

the Board. Those provisions have never 

been revised to conform to the 

regulatory amendments that were made 

years ago to extend the period for filing 

an appeal to the Board from a DHS 

decision to 30 days, as is provided in 

§ 1003.3(a)(2). See 67 FR 54878, 54904 

(Aug. 26, 2002). These provisions 

accordingly need to be removed from 

part 1280 to avoid confusion given that 

the controlling regulations relating to 

the Board’s appellate review are set 

forth in § 1003.3. 

For these reasons, DOJ is removing all 

of the current provisions in part 1280 

and adding a new § 1280.1, which crossreferences the DHS regulations in 8 CFR 

part 280 and the EOIR regulations in 8 

CFR part 1003 governing the appellate 

authority of the Board. The removal of 

these duplicative regulatory provisions 

does not affect the current legal regime 

or the authority of the Board to 

adjudicate appeals from DHS decisions 

imposing fines and civil penalties under 

8 CFR part 280. 

DOJ has already made similar changes 

to its regulations at 8 CFR part 1274a, 

addressing control of employment of 

aliens. See 76 FR 16525 (Mar. 24, 2011); 

74 FR 2337, 2339 (Jan. 15, 2009). There, 

DOJ removed duplicative regulations in 

part 1274a, and replaced them with a 

new § 1274a.1 that contains a crossreference to the DHS regulations at 8 

CFR part 274a. A statement was added 

indicating that these DHS regulations 

apply, to the extent relevant, in 

proceedings before EOIR. The changes 

that DOJ is making to 8 CFR part 1280 

in this final rule are modeled on the 


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Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations 74629 

changes DOJ previously made to 8 CFR 

part 1274a in an analogous context. 

These changes to part 1280 do not alter 

the current legal regime because the 

regulations in part 1280, which have 

been applicable to the Board, merely 

duplicate the existing regulations in part 

280. 

VI. Regulatory Analyses 

A. Administrative Procedure Act (APA), 

5 U.S.C. 553 

This final rule is being promulgated to 

ensure that the amount of civil penalties 

assessed or enforced by DHS reflect the 

statutorily mandated ranges as adjusted 

for inflation. Pursuant to 5 U.S.C. 

553(b)(3)(B), the Secretary and the 

Attorney General find that good cause 

exists for immediate implementation of 

this final rule without prior notice and 

comment because it would be 

unnecessary to delay publication of this 

rule in final form, pending notice and 

an opportunity for public comment. 

This rule is a nondiscretionary 

ministerial action as the calculations of 

the adjustments follow the 

mathematical formula set forth in 

section 5 of the Adjustment Act, as 

amended. In addition, the other changes 

to part 1280 do not alter the current 

legal requirements or the authority of 

the Board to adjudicate appeals from 

DHS decisions imposing fines and 

penalties under 8 CFR part 280 because 

the regulations in part 1280 merely 

duplicate the existing regulations in part 

280. For these reasons, notice and 

comment would be unnecessary. 

B. Executive Order 12866 and 

Regulatory Flexibility Act 

This final rule does not meet the 

criteria of a ‘‘significant regulatory 

action’’ as specified under Executive 

Order 12866, section 3(f), Regulatory 

Planning and Review, and accordingly 

this rule has not been reviewed by the 

Office of Management and Budget. 

Furthermore, the Regulatory Flexibility 

Act applies only to rules for which an 

agency publishes a general notice of 

proposed rulemaking pursuant to 5 

U.S.C. 553(b). See 5 U.S.C. 601 et seq. 

The Regulatory Flexibility Act does not 

apply to this final rule because a notice 

of proposed rulemaking is not required 

for the reasons stated above. 

C. Executive Order 13132: Federalism 

This final rule will 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 the government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this final rule does 

not have sufficient federalism 

implications to warrant a preparation of 

a Federalism Assessment. 

D. Unfunded Mandates Reform Act of 

1995 

This final rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the Unfunded 

Mandates Reform Act of 1995. 

E. Paperwork Reduction Act 

The provisions of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320, do not 

apply to this final rule because there are 

no new or revised recordkeeping or 

reporting requirements triggered by this 

final rule. 

F. Executive Order 12988: Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

VII. Signing Authority 

This amendment to the regulations is 

being issued in accordance with 8 

U.S.C. 1103 pertaining to the authority 

of the Secretary of Homeland Security 

(or his/her delegate) and the Attorney 

General (or his/her delegate) to 

prescribe regulations regarding 

immigration and nationality. 

List of Subjects 

8 CFR Part 280 

Administrative practice and 

procedure, Immigration, and Penalties. 

8 CFR Part 1280 

Administrative practice and 

procedure, Immigration, and Penalties. 

Department of Homeland Security 

8 CFR CHAPTER I 

For the reasons stated in the 

preamble, the Secretary amends part 

280 of title 8 of the Code of Federal 

Regulations as set forth below. 

PART 280—IMPOSITION AND 

COLLECTION OF FINES 

■ 1. The authority citation for part 280 

is revised to read as follows: 

Authority: 8 U.S.C. 1103, 1221, 1223, 

1227, 1229, 1253, 1281, 1283, 1284, 1285, 

1286, 1322, 1323, 1330; 66 Stat. 173, 195, 

197, 201, 203, 212, 219, 221–223, 226, 227, 

230; Pub. L. 101–410, 104 Stat. 890, as 

amended by Pub. L. 104–134, 110 Stat. 1321. 

§ 280.13 [Amended] 

■ 2. In § 280.13, the last sentence of 

paragraph (b) is amended by removing 

the phrase ‘‘an appeal may be taken to 

the Board within 15 days after the 

mailing of the notification of decision as 

provided in part 3 of this chapter’’ and 

adding in its place the phrase ‘‘an 

appeal may be taken to the Board as 

provided in 8 CFR part 1003’’. 

§ 280.51 [Amended] 

■ 3. In § 280.51, the last sentence of 

paragraph (c) is amended by removing 

the phrase ‘‘an appeal may be taken to 

the Board within 15 days after the 

mailing of the notification of decision as 

provided in part 3 of this chapter’’ and 

adding in its place the phrase ‘‘an 

appeal may be taken to the Board as 

provided in 8 CFR part 1003’’. 

■ 4. Section 280.53 is revised to read as 

follows: 

§ 280.53 Civil monetary penalties inflation 

adjustment. 

(a) In general. In accordance with the 

requirements of the Federal Civil 

Penalties Inflation Adjustment Act of 

1990, Public Law 101–410, 104 Stat. 

890, as amended by the Debt Collection 

Improvement Act of 1996, Public Law 

104–34, 110 Stat. 1321, the civil 

monetary penalties provided by law 

within the jurisdiction of the 

Department of Homeland Security 

(DHS) and listed in paragraph (c) of this 

section are adjusted as set forth in this 

section, effective for violations 

occurring on or after January 3, 2012. 

(b) Calculation of adjustment. (1) The 

inflation adjustments described in 

paragraph (c) of this section were 

determined by increasing the maximum 

civil monetary penalty or the range of 

minimum and maximum civil monetary 

penalties, as applicable, for each civil 

monetary penalty assessed or enforced 

by DHS by the cost-of-living adjustment 

as that term is defined by the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, Public Law 101–410. Any 

increase so determined was rounded to 

the nearest— 

(i) Multiples of $10 in the case of 

penalties less than or equal to $100; 

(ii) Multiples of $100 in the case of 

penalties greater than $100 but less than 

or equal to $1,000; 

(iii) Multiples of $1,000 in the case of 

penalties greater than $1,000 but less 

than or equal to $10,000; 

(iv) Multiples of $5,000 in the case of 

penalties greater than $10,000 but less 

than or equal to $100,000; 


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74630 Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 / Rules and Regulations 

(v) Multiples of $10,000 in the case of 

penalties greater than $100,000 but less 

than or equal to $200,000; and 

(vi) Multiples of $25,000 in the case 

of penalties greater than $200,000. 

(2) Notwithstanding the provisions of 

paragraph (b)(1) of this section, the 

initial adjustment for each penalty is 

capped at 10%. 

(c) Adjustment to penalties. The civil 

monetary penalties provided by law 

within the jurisdiction of DHS, as set 

forth in this paragraph (c)(1) through 

(14), are adjusted in accordance with the 

inflation adjustment procedures 

prescribed in section 5 of the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, Public Law 101–410, effective 

for violations occurring on or after 

January 3, 2012 as follows: 

(1) Section 231(g) of the Act, Penalties 

for non-compliance with arrival and 

departure manifest requirements for 

passengers, crewmembers, or occupants 

transported on commercial vessels or 

aircraft arriving to or departing from the 

United States: From $1,000 to $1,100. 

(2) Section 234 of the Act, Penalties 

for non-compliance with landing 

requirements at designated ports of 

entry for aircraft transporting aliens: 

From $2,200 to $3,200. 

(3) Section 240B(d) of the Act, 

Penalties for failure to depart 

voluntarily: From $1,000 minimum/ 

$5,000 maximum to $1,100 minimum/ 

$5,500 maximum. 

(4) Section 243(c)(1) of the Act, 

Penalties for violations of removal 

orders relating to aliens transported on 

vessels or aircraft, under section 241(d) 

of the Act, or for costs associated with 

removal under section 241(e) of the Act, 

from $2,000 to $2,200; and penalties for 

failure to remove alien stowaways under 

section 241(d)(2), from $5,000 to $5,500. 

(5) Section 251(d) of the Act, Penalties 

for failure to report an illegal landing or 

desertion of alien crewmen, and for 

each alien not reported on arrival or 

departure manifest and lists in 

accordance with section 251 of the Act: 

From $220 to $320; and penalties for 

use of alien crewmen for longshore 

work in violation of section 251(d) of 

the Act: From $5,500 to $7,500. 

(6) Section 254(a) of the Act, Penalties 

for failure to control alien crewmen: 

From $550 minimum/$3,300 maximum 

to $750 minimum/$4,300 maximum. 

(7) Section 255 of the Act, Penalties 

for employment on passenger vessels of 

aliens afflicted with certain disabilities: 

Remains at $1,100. 

(8) Section 256 of the Act, Penalties 

for discharge of alien crewmen: From 

$1,500 minimum/$3,300 maximum to 

$1,500 minimum/$4,300 maximum. 

(9) Section 257 of the Act, Penalties 

for bringing into the United States alien 

crewmen with intent to evade 

immigration laws: From $11,000 

maximum to $16,000 maximum. 

(10) Section 271(a) of the Act, 

Penalties for failure to prevent the 

unauthorized landing of aliens: From 

$3,300 to $4,300. 

(11) Section 272(a) of the Act, 

Penalties for bringing to the United 

States aliens subject to denial of 

admission on a health-related ground: 

From $3,300 to $4,300. 

(12) Section 273(b) of the Act, 

Penalties for bringing to the United 

States aliens without required 

documentation: From $3,300 to $4,300. 

(13) Section 274D of the Act, Penalties 

for failure to depart: From $500 to $550, 

for each day the alien is in violation. 

(14) Section 275(b) of the Act, 

Penalties for improper entry: From $50 

minimum/$250 maximum to $55 

minimum/$275 maximum, for each 

entry or attempted entry. 

Department of Justice 

8 CFR CHAPTER V 

For the reasons stated in the 

preamble, the Attorney General amends 

part 1280 of title 8 of the Code of 

Federal Regulations, as set forth below. 

PART 1280—IMPOSITION AND 

COLLECTION OF FINES 

■ 1. The authority citation for part 1280 

is revised to read as follows: 

Authority: 8 U.S.C. 1103, 1221, 1223, 

1227, 1229, 1253, 1281, 1283, 1284, 1285, 

1286, 1322, 1323, 1330; 66 Stat. 173, 195, 

197, 201, 203, 212, 219, 221–223, 226, 227, 

230; Pub. L. 101–410, 104 Stat. 890, as 

amended by Pub. L. 104–134, 110 Stat. 1321. 

■ 2. Section 1280.1 is revised to read as 

follows: 

§ 1280.1 Review of fines and civil 

monetary penalties imposed by DHS. 

(a) Applicable regulations. The 

regulations of the Department of 

Homeland Security (DHS) relating to the 

imposition of certain fines and civil 

monetary penalties under provisions of 

the Immigration and Nationality Act, 

including sections 231(g), 234, 240B(d), 

241(d) and (e), 243(c)(1), 251(d), 254(a), 

255, 256, 257, 271(a), 272(a), 273(b), 

274D, and 275(b), are contained in 8 

CFR part 280. 

(b) Adjudication of civil monetary 

penalty proceedings. The Board of 

Immigration Appeals (Board) has 

appellate authority to review DHS 

decisions involving fines and civil 

monetary penalties imposed under 8 

CFR part 280, as provided under 8 CFR 

part 1003. The regulations in 8 CFR part 

280 governing the imposition of certain 

fines and civil monetary penalties are 

applicable in such proceedings before 

the Board. 

(c) Civil monetary penalties under 

sections 274A, 274B, or 274C. For 

regulations relating to civil monetary 

penalties imposed under sections 274A, 

274B, or 274C of the Act, see 8 CFR 

parts 274a and 1274a and 28 CFR part 

68. 

■ 3. Sections 1280.2 through 1280.7 are 

removed. 

■ 4. Sections 1280.11 through 1280.15 

are removed. 

■ 5. Section 1280.21 is removed. 

■ 6. Sections 1280.51 through 1280.53 

are removed. 

Janet Napolitano, 

Secretary. 

Eric H. Holder, Jr., 

Attorney General. 

[FR Doc. 2011–30174 Filed 11–30–11; 8:45 am] 

BILLING CODE 4410–10–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Parts 50 and 52 

RIN 3150–AI10 

[NRC–2008–0122] 

Making Changes to Emergency Plans 

for Nuclear Power Reactors 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Regulatory guide; issuance. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is issuing a new 

regulatory guide (RG) 1.219, ‘‘Guidance 

on Making Changes to Emergency Plans 

for Nuclear Power Reactors.’’ This guide 

describes a method that the NRC staff 

considers acceptable to implement the 

requirements that relate to emergency 

preparedness and specifically to making 

changes to emergency response plans. 

DATES: December 1, 2011. 

ADDRESSES: You can access publicly 

available documents related to this 

regulatory guide using the following 

methods: 

• NRC’s Public Document Room 

(PDR): The public may examine and 

have copied, for a fee, publicly available 

documents at the NRC’s PDR, O1–F21, 

One White Flint North, 11555 Rockville 

Pike, Rockville, Maryland 20852. 

• NRC’s Agencywide Documents 

Access and Management System 

(ADAMS): Publicly available documents 

created or received at the NRC are 

available online in the NRC Library at 


emcdonald on DSK5VPTVN1PROD with RULES