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[Federal Register Volume 79, Number 60 (Friday, March 28, 2014)]
[Rules and Regulations]
[Pages 17434-17436]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-06979]

[[Page 17434]]

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DEPARTMENT OF JUSTICE

28 CFR Parts 36 and 85

[Docket No. CRT 127; AG Order No. 3324-2014]

Civil Monetary Penalties Inflation Adjustment--Civil Rights 
Division

AGENCY: Office of the Attorney General, Justice.

ACTION: Final rule.

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SUMMARY: In accordance with section 4 of the Federal Civil Penalties 
Inflation Adjustment Act of 1990, as amended by the Debt Collection 
Improvement Act of 1996, the Department of Justice is adjusting for 
inflation the civil monetary penalties assessed or enforced by the 
Civil Rights Division.

DATES: This rule is effective April 27, 2014.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, 
Office of Legal Policy, U.S. Department of Justice, Room 4252 RFK 
Building, 950 Pennsylvania Avenue NW., Washington, DC 20530, telephone 
(202) 514-8059 (not a toll-free number).

SUPPLEMENTARY INFORMATION: 

Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990, 
Public Law 101-410, 28 U.S.C. 2461 note (Adjustment Act), provides for 
the regular evaluation of civil monetary penalties to ensure that they 
continue to maintain their deterrent effect and that penalty amounts 
due the Federal Government are properly accounted for and collected. On 
April 26, 1996, section 31001 of the Omnibus Consolidated Rescissions 
and Appropriations Act of 1996, Public Law 104-134, also known as the 
Debt Collection Improvement Act of 1996 (Improvement Act), amended the 
Adjustment Act to provide for more effective tools for government-wide 
collection of delinquent debt. In particular, section 31001(s)(1) of 
the Improvement Act amended section 4 of 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'' 
and to ``publish each such regulation in the Federal Register'' not 
later than 180 days after enactment of the Debt Collection Improvement 
Act of 1996, and at least every four years thereafter. Subsection 
(s)(1) also added a new section 7 to the Adjustment Act providing that 
any increase in a civil monetary penalty made pursuant to that Act 
shall apply only to violations that occur after the date the increase 
takes effect. Subsection (s)(2) of the Improvement Act provides that 
the first adjustment of a civil monetary penalty made pursuant to the 
amendment in subsection (s)(1) may not exceed 10 percent of such 
penalty.
    In compliance with these statutory requirements, the Department of 
Justice published a rule on February 12, 1999 (64 FR 7066), adjusting 
the immigration-related civil monetary penalties, and a second rule on 
August 30, 1999 (64 FR 47099), adjusting the other civil monetary 
penalties assessed or enforced by the Department within its areas of 
responsibility (codified in 28 CFR parts 36 and 85).
    The amounts of the adjustments are determined according to a 
formula set forth in the Adjustment Act, Public Law 101-410. The 
statutory formulas for the inflation adjustment calculations are set 
forth in 28 CFR 85.2, including the applicable ``rounder'' (or 
increment) used for calculations based on the amount of the current 
penalty. For example, the applicable ``rounder'' for a current $15,000 
civil penalty amount is $5,000. This means that there would be no 
adjustment of the current amount if the raw inflation adjustment 
calculation shows an increase of less than $2,500, but the civil 
penalty amount would be increased by the full $5,000 increment if the 
raw inflation adjustment is above the rounding threshold.

Adjustments Made in This Rule for Civil Monetary Penalties Relating to 
Civil Rights

    By this rule, the Department of Justice is making adjustments for 
inflation in the civil monetary penalties assessed or enforced by the 
Civil Rights Division.\1\ The Department will separately publish a rule 
adjusting the other civil monetary penalties assessed or enforced by 
the Department.
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    \1\ In addition to the civil monetary penalties addressed in 
this rule, the Civil Rights Division's Office of Special Counsel for 
Immigration-Related Unfair Employment Practices also has enforcement 
authority with respect to violations of section 274B of the 
Immigration and Nationality Act (INA), 8 U.S.C. 1324b. The 
Department most recently made adjustments to penalties under section 
274B as part of a joint rule published with the Department of 
Homeland Security on February 26, 2008 (73 FR 10130). During the 
calculation of inflation adjustments for this rule, it was 
determined that neither the civil monetary penalty amounts under INA 
section 274B that were adjusted in 2008 nor the civil monetary 
penalty amounts under INA section 274B that were not eligible for 
adjustment in 2008 meet the threshold for adjustment at this time.
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    Several civil monetary penalties were previously adjusted in 1999: 
civil monetary penalties in the amounts of $55,000 and $110,000 under 
the Americans With Disabilities Act, 42 U.S.C. 12188(b)(2)(C); civil 
monetary penalties in the amounts of $11,000 and $27,500 under the 
Freedom of Access to Clinic Entrances Act of 1994, 18 U.S.C. 
248(c)(2)(B), and civil monetary penalties in the amounts of $55,000 
and $110,000 under the Fair Housing Act of 1968, 42 U.S.C. 
3614(d)(1)(C). However, this rule is also adjusting for the first time 
the civil monetary penalties under the Servicemembers Civil Relief Act, 
50 U.S.C. App. 597(b)(3), as amended in 2010, and two penalties imposed 
under the Freedom of Access to Clinic Entrances Act of 1994, 28 U.S.C. 
248(b), which had not previously been adjusted.
    The adjustments in the civil monetary penalties under this rule 
will take effect in 2014. In accordance with the Act, the adjustments 
made by this rule are based on the Bureau of Labor Statistics' Consumer 
Price Index for June of the calendar year preceding the year of 
adjustment, that is, the amount for June 2013. The inflation factor 
from June 1999 (166.2), the year of adjustment for the previously-
adjusted civil monetary penalties, to June 2013 (233.504) is 40.5%. 
Applying that factor, and the applicable ``rounders,'' this rule 
adjusts previously adjusted civil monetary penalty amounts as follows:

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                                                                                                                               Adjusted civil penalty
        Current amount           Raw inflation calculation               Rounder                  Inflation adjustment                 amount
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                   $11,000                         $4,455                         $5,000                         $5,000                       $16,000
                    27,500                         11,136                          5,000                         10,000                        37,500
                    55,000                         22,273                          5,000                         20,000                        75,000
                   110,000                         44,545                         10,000                         40,000                       150,000
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[[Page 17435]]

    Two civil monetary penalties in the amount of $15,000 imposed under 
the Freedom of Access to Clinic Entrances Act of 1994 were not adjusted 
in 1999 because they did not meet the threshold for adjustment at that 
time. The inflation factor from June 1994 (148.0), the year of 
enactment, to June 2013 (233.504) is 57.8%. Applying that factor for 
the current $15,000 civil penalty amounts, the raw inflation 
calculation is $8,666, above the applicable ``rounder'' of $5,000. 
However, as this is the first adjustment, the increase is subject to a 
10% cap as provided by statute for first adjustments. (Sec. (s)(2) of 
the Adjustment Act.) Accordingly, these civil penalty amounts are being 
increased from $15,000 to $16,500.
    Finally, in 2010 Congress amended the Servicemembers Civil Relief 
Act to add two civil monetary penalties, and the inflation factor from 
June 2010 (217.965) to June 2013 (233.504) is 7.1%. This rule adjusts 
these penalties for the first time. (Although these adjustments are 
subject to a 10% cap for a first-time adjustment, the actual inflation 
adjustment is less than 10%.)

 
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                                                                                                                               Adjusted Civil penalty
        Current amount           Raw inflation calculation               Rounder                  Inflation adjustment                 amount
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                   $55,000                         $3,921                         $5,000                         $5,000                       $60,000
                   110,000                          7,842                         10,000                         10,000                       120,000
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    In each case, the adjusted civil penalty amounts are applicable 
only to violations occurring after the date the increase takes effect. 
See 28 U.S.C. 2461 note. Therefore, violations occurring before April 
28, 2014, are subject to the civil monetary penalty amounts set forth 
in the Department's existing regulations in 28 CFR parts 36 and 85 (or 
as set by statute if the amount has not yet been adjusted by 
regulation).
    Other agencies are responsible for the inflation adjustments of 
certain other civil monetary penalties that the Department's litigating 
components bring suit to collect. The reader should consult the 
regulations of those other agencies for any inflation adjustments to 
those penalties.

Administrative Procedure Act, 5 U.S.C. 553

    The Attorney General finds that good cause exists under 5 U.S.C. 
553(b)(3)(B) for immediate implementation of this final rule without 
prior notice and comment. This rule is a nondiscretionary ministerial 
action to conform the amount of civil penalties assessed or enforced by 
the Department of Justice to the statutorily mandated ranges as 
adjusted for inflation. The Attorney General is under a legal 
obligation to adjust these civil penalties for inflation using a 
statutorily required formula. The calculation of these inflation 
adjustments follows the specific mathematical formula set forth in 
section 5 of the Adjustment Act.

Regulatory Flexibility Act

    The Attorney General, in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 605(b), has reviewed this rule and by approving it 
certifies that it will not have a significant economic impact on a 
substantial number of small entities. Only those entities that are 
determined to have violated Federal law and regulations would be 
affected by the increase in penalties made by this rule pursuant to the 
statutory requirement. Further, no Regulatory Flexibility Act analysis 
is required for this rule because publication of a notice of proposed 
rulemaking was not required for it.

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866 (``Regulatory Planning and Review''), section 
1(b) (``The Principles of Regulation''), and in accordance with 
Executive Order 13563 (``Improving Regulation and Regulatory Review''), 
section 1 (``General Principles of Regulation'').
    The Department of Justice has determined that this rule is not a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), and accordingly this rule has not been reviewed by the Office of 
Management and Budget.
    Both Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). This 
final rule, however, makes nondiscretionary adjustments to existing 
civil monetary penalties, and the Department is required to promulgate 
these adjustments in accordance with the formulas prescribed by 
statute. The Department therefore does not have the flexibility to 
alter the adjustments of the civil monetary penalty amounts as provided 
in this rule.

Executive Order 13132--Federalism

    This 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 government. Therefore, in accordance with Executive Order 
13132 it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This regulation meets the applicable standards set forth in 
sections 3(a) and 3(b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This 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 it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. It will not result in an annual effect on the economy of $100 
million or more; a major increase in costs or prices; or significant 
adverse effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign- based enterprises in domestic and export markets.

[[Page 17436]]

List of Subjects

28 CFR Part 36

    Administrative practice and procedure, Alcoholism, Americans with 
disabilities, Buildings, Business and industry, Civil rights, Consumer 
protection, Drug abuse, Handicapped, Historic preservation, Penalties, 
Reporting and recordkeeping requirements.

28 CFR Part 85

    Penalties.

    Accordingly, for the reasons set forth in the preamble, chapter I 
of Title 28 of the Code of Federal Regulations is amended as follows:

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC 
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

0
1. The authority citation for part 36 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 
12188(b); Pub. L. 101-410, 104 Stat. 890, as amended by Pub. L. 104-
134, 110 Stat. 1321.

0
2. Section 36.504 is amended by revising paragraphs (a)(3)(i) and (ii) 
to read as follows:

Sec.  36.504  Relief.

    (a) * * *
    (3) * * *
    (i) Not exceeding $50,000 for a first violation occurring before 
September 29, 1999, and not exceeding $55,000 for a first violation 
occurring on or after September 29, 1999, and before April 28, 2014, 
and not exceeding $75,000 for a first violation occurring on or after 
April 28, 2014.
    (ii) Not exceeding $100,000 for any subsequent violation occurring 
before September 29, 1999, and not exceeding $110,000 for any 
subsequent violation occurring on or after September 29, 1999, and 
before April 28, 2014, and not exceeding $150,000 for any subsequent 
violation occurring on or after April 28, 2014.
* * * * *

PART 85--CIVIL MONETARY PENALTIES INFLATION ADJUSTMENT

0
3. The authority citation for part 85 continues to read as follows:

    Authority:  5 U.S.C. 301, 28 U.S.C. 503; Pub. L. 101-410, 104 
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.

0
4. Section 85.3 is amended by revising the introductory text and 
paragraph (b) to read as follows:

Sec.  85.3  Adjustments to penalties.

    The civil monetary penalties provided by law within the 
jurisdiction of the respective components of the Department, as set 
forth in paragraphs (a) through (d) of this section, 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, as follows. The adjusted penalties set forth 
in paragraphs (a), (c), and (d) of this section are effective for 
violations occurring on or after September 29, 1999.
* * * * *
    (b) Civil Rights Division. (1) 18 U.S.C. 248(c)(2)(B), Freedom of 
Access to Clinic Entrances Act of 1994 (Nonviolent Physical 
Obstruction):
    (i) The civil monetary penalty amount for a first order for 
nonviolent physical obstruction, initially set at $10,000, is adjusted 
to $11,000 for a violation occurring on or after September 29, 1999, 
and before April 28, 2014, and is adjusted to $16,000 for a violation 
occurring on or after April 28, 2014.
    (ii) The civil monetary penalty amount for a subsequent order for 
nonviolent physical obstruction, initially set at $15,000, is adjusted 
to $16,500 for a violation occurring on or after April 28, 2014.
    (2) 18 U.S.C. 248(c)(2)(B), Freedom of Access to Clinic Entrances 
Act of 1994 (Other Violations):
    (i) The civil monetary penalty amount for a first order other than 
for nonviolent physical obstruction, initially set at $15,000, is 
adjusted to $16,500 for a violation occurring on or after April 28, 
2014.
    (ii) The civil monetary penalty amount for a subsequent order other 
than for nonviolent physical obstruction, initially set at $25,000, is 
adjusted to $27,500 for a violation occurring on or after September 29, 
1999, and before April 28, 2014, and is adjusted to $37,500 for a 
violation occurring on or after April 28, 2014.
    (3) 42 U.S.C. 3614(d)(1)(C), Fair Housing Act of 1968, as amended 
(Pattern or Practice Violation):
    (i) The civil monetary penalty amount for a first order, initially 
set at $50,000, is adjusted to $55,000 for a violation occurring on or 
after September 29, 1999, and before April 28, 2014, and is adjusted to 
$75,000 for a violation occurring on or after April 28, 2014.
    (ii) The civil monetary penalty amount for a subsequent order, 
initially set at $100,000, is adjusted to $110,000 for a violation 
occurring on or after September 29, 1999, and before April 28, 2014, 
and is adjusted to $150,000 for a violation occurring on or after April 
28, 2014.
    (4) 50 U.S.C. App. 597(b)(3), Servicemembers Civil Relief Act of 
2003, as amended:
    (i) The civil monetary penalty amount for a first violation, 
initially set at $55,000, is adjusted to $60,000 for a violation 
occurring on or after April 28, 2014.
    (ii) The civil monetary penalty amount for a subsequent violation, 
initially set at $110,000, is adjusted to $120,000 for a violation 
occurring on or after April 28, 2014.
* * * * *

    Dated: March 21, 2014.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2014-06979 Filed 3-27-14; 8:45 am]
BILLING CODE 4410-13-P
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