UNITED STATES OF AMERICA
OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
                                		       


SECRETARY OF LABOR, 
                                       
                                   Complainant,
              
                           v.    

MEZNER LUMBER AND SUPPLY COMPANY, dba Mezner Hardwoods  
                                        
                                   Respondent.

 
      
     DOCKET NO. 	17-0121
			17-0122
		     		
		





ORDER  DENYING  RESPONDENT’S   PARTIAL  MOTION  FOR  SUMMARY   JUDGMENT  ON  THE
CONSTITUTIONALITY OF INCREASED PENALTIES
        The Court  has reviewed and  considered Respondent’s Motion  for Partial
Summary  Judgment  and  Complainant’s Response  in  Opposition  to  Respondent’s
Motion  for  Partial Summary  Judgment.  Respondent  argues  it is  entitled  to
Partial  Summary  Judgment  on  two  issues.    First,  Respondent  alleges  the
increased penalties  instituted by Complainant  are unconstitutional.1   Second,
Respondent  argues the  repeat  citation based  on  29  C.F.R. §  1910.213(r)(4)
(“Repeat  Citation”)  is  unconstitutionally vague.  Complainant  disputes  both
arguments  stating the  increased penalties  are constitutional  and the  Repeat
Citation is  not unconstitutionally  vague. Based  on a  thorough review  of the
parties’ respective filings,  the Court, pursuant to Commission  Rule 10, severs
the two issues.   In this Order, the  Court only addresses the  arguments of the
Parties as  to the constitutionality  of the  increased penalties to  permit any
interlocutory appeal  on this issue.   See 29 C.F.R.  § 2200.10 and 29  C.F.R. §
2200.73.2
      Summary Judgment Standard
         Summary judgment  is appropriate  if the  pleadings, the  discovery and
disclosure  materials  on file,  and  any  affidavits,  show  that there  is  no
genuine  issue as  to any  material  fact and  that  the movant  is entitled  to
judgment as a  matter of law.   See Fed. R. Civ.  P. 56.  The  Supreme Court has
held  that   a  party  seeking   summary  judgment  always  bears   the  initial
responsibility  of  informing  the  court  of the  basis  for  its  motion,  and
demonstrating  the absence  of  a  genuine  issue of  material  fact as  to  the
issue(s) raised.   Celotex Corp. v. Catrett, 477  U.S. 317, 323 (1986).   A fact
is  material  only  if it  might  affect  the  outcome  of the  case,  and  thus
precludes the entry  of summary judgment.  Anderson v.  Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
        In  deciding a  motion for  summary judgment, the  Court is  required to
resolve  all  ambiguities,   and  credit  all  factual   inferences  that  could
rationally be  drawn, in favor of  the nonmoving party.   Id. at 255.   If there
is any  evidence in  the record from  which a reasonable  inference in  favor of
the nonmoving  party can be drawn, summary  judgment is improper.   Celotex, 477
U.S. at  324.  Conversely,  if a review  of the entire  record could not  lead a
rational  trier of  fact to  find  for the  nonmoving  party, then  there is  no
genuine  issue for  trial,  and summary  judgment  is  appropriate.   Matsushita
Elec.  Ind. Co. Ltd.  v.  Zenith Radio Corp.,  475  U.S. 574, 586  (1986).   The
judge’s function  in summary judgment  cases is  to determine whether  there are
genuine,  material,  disputed  issues  for  trial;   it  is  not  to  weigh  the
evidence.  Anderson,  477 U.S. at 249.    In addition, the  Commission has often
stated  that   it  prefers  to   decide  cases   on  their  merits   after  full
consideration at  a hearing of all relevant  evidence.    Elmer Constr.Corp., 12
BNA OSHC 1002  (No. 83-40, 1984); Duquesne Light  Co., 8 BNA OSHC  1218 (No. 78-
5034, 1980).
      
      
      Legislative History
           Respondent’s  Motion for  Partial  Summary  Judgment focuses  on  the
statutory  maximum penalty  allowed for  violations of  the Occupational  Safety
and  Health Act  of 1970  (“OSH Act”)3.   An  examination of  the Federal  Civil
Penalties  Inflation Adjustment  Act  of 1990  (“FCPIAA”)4,  and its  subsequent
amendments, reveals the intent of Congress in enacting FCPIAA.5
      a.  The FCPIAA  
       Most of the features in the FCPIAA can be  traced to S. 535 introduced by
Senators Lautenberg and  Levin in the 101st Congress  on March 8, 1989.   S. 535
unambiguously   defined  the   “term   ‘cost-of-living   adjustment’”  as   “the
percentage  (if  any) for  each  civil  monetary  penalty  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  amount of the civil  monetary penalty was  last set
or  adjusted pursuant  to law.”6  In addition,  S. 535  replaced earlier  bills’
provisions for  a simple  $10 rounding provision  with an  elaborate, six-tiered
mechanism.7 
        In section  2 of  the FCPIAA, Congress  concluded “the power  of Federal
agencies to  impose civil monetary  penalties for  violation of Federal  law and
regulations plays an  important role in deterring violations  and furthering the
policy goals embodied in  such law and regulations.”8 The impact  of many of the
civil monetary  penalties “has been diminished  due to the effect  of inflation”
which in turn  has “weakened the deterrent effect of  such penalties.”9 Congress
also  determined  the government  did  not  maintain a  comprehensive,  detailed
accounting  of the efforts  of  agencies to assess  civil  monetary penalties.10
FCPIAA  addressed  this  problem  by requiring  the  administration  to  provide
Congress with  a complete  list of  civil monetary  penalties, a  calculation of
the adjustment  required for  each penalty  to keep pace  with inflation,  and a
list of statutory changes necessary to make these adjustments.
        FCPIAA  set out  “to establish  a mechanism” that  would: (1)  allow for
regular  adjustment of  civil  monetary penalties;  (2)  maintain the  deterrent
effect of  civil monetary  penalties; and  (3) improve  the collection  of civil
monetary  penalties.11    Therefore,  as  originally  enacted,  FCPIAA  did  not
authorize federal  agencies to  adjust for  inflation.   FCPIAA did  not provide
for any  automatic adjustment  of civil  monetary penalties  covered, as  it was
acknowledged   separate   legislation   would   be   required   for   changes.12
       In his remarks  to the Senate, Senator Levin stated  why a mechanism that
would  allow  for  adjustment  of  civil monetary  penalties  to  keep  up  with
inflation was needed.  Senator Levin stated:
We learned  that CMPs are  so numerous that  it is  difficult even to  list them
all.   It appears  that many CMPs  are redundant or  obsolete. Others  have been
eroded  by  inflation  that  they  no  longer  have  any  significant  deterrent
effect.13

         Senator  Lautenberg, a  co-sponsor of  FCPIAA, recognized  the need  to
implement  a  mechanism  where  civil   monetary  penalties  could  be  adjusted
periodically. Senator Lauttenberg stated as follows:
Mr.  President, when I  introduced  similar legislation in  the  100th Congress,
the  bill  called for  automatic  annual  increases  in penalty  levels  through
notices  in  the  Federal  Register.  In response  to  concerns  raised  by  the
administration,  the  bill   was  significantly  revised.     As  modified,  the
legislation  requires  periodic reports  designed  to  enable Congress  to  pass
separate legislation enacting the need for penalty increases.14

         Representative  Conyers  echoed the  statements of  Senators Levin  and
Lautenberg when S.  535 was brought before the  House for a vote.  See 136 Cong.
Rec.  H7908  (daily  ed.  September  24,  1990)  (statement  of  Rep.  Conyers).
      b.  1996 FCPIAA Amendments.
       In 1996, Congress  amended the FCPIAA to direct  covered federal agencies
to make  their  first inflation adjustments  on  October 23, 1996,  and  to make
subsequent  adjustments   “at  least  once   every  four   years  thereafter.”15
        Section 4  of FCPIAA, as  amended in 1996,  directs “[t]he head  of each
agency...by  regulation” to  perform  an “inflation  adjustment”  for each  “civil
monetary  penalty  provided  by  law  within the  jurisdiction  of  the  Federal
agency.”16  FCPIAA  then  instructed  each   agency  to  publish  the  resulting
regulation in the Federal Register.17
       According to section  5 of the FCPIAA, “[t}he  inflation adjustment under
section 4 shall  be 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 by the cost-of-living  adjustment.”18 Section 5
also prescribed an  elaborate six tier process for the  rounding of any increase
determined under the  inflation adjustment provision.19  The  1996 amendments to
FCPIAA also  imposed a new ten percent  cap on the  initial inflation adjustment
of  any   civil  monetary  penalty   required  under  section  4   of  FCPIAA.20
        Section 6  of FCPIAA  ensures inflation-adjusted increases  are strictly
prospective in application.21  Finally, the 1996 amendments  to FCPIAA, exempted
four statutes from  the inflation adjustment provisions of  FCPIAA: the Internal
Revenue  Code of 1986,  the  Tariff Act of  1930,  the OSH Act,  and  the Social
Security Act.22 
      c. 1998 FCPIAA Amendment 
       The FCPIAA,  again amended in 1998, abolished  the President’s obligation
to provide annual reports under the original statute.23
            d.     Federal  Civil  Penalty  Inflation  Adjustment  Act  of  2015
        This leads  us to the  most recent amendments  to the FCPIAA  which were
enacted in  2015. (“2015 Amendments”).24   Prior  to the 2015  Amendments, civil
monetary penalties assessed  under the OSH Act were not  subject to the consumer
price  index  adjustment  that  other agencies  civil  monetary  penalties  were
permitted.   Section 701  of the  2015 Amendments  removed that  restriction and
permitted  civil   monetary  penalties  assessed   under  the  OSH  Act   to  be
increased.    In  addition,  section 701  contained  provisions  for  “catch-up”
adjustments, and  set forth  procedures for  subsequent adjustments.   Congress,
through   this   action,   permitted  the   Occupational   Safety   and   Health
Administration   (“OSHA”)    to   increase   its   civil    monetary   penalties
notwithstanding the fact  the OSH Act was never amended  to increase the maximum
penalty amounts contained in statute.  
       The 2015 Amendments also added a new section 7  to FCPIAA to: (1) require
the Office  of Management and  Budget to issue  guidance to Federal  agencies on
implementing  the  inflationary  adjustments   permitted;  (2)  require  Federal
agencies  to  include  information  about  civil  monetary  penalties  assessed,
collected and  adjusted in  OMB Circular  A-135 which  agencies are  required to
complete; and (3)  directed  the General Accounting Office  to annually submit a
report   to   Congress   on   Federal   agencies   compliance   with   FCPIAA.25
      Analysis and Legal Precedent 
       Thus,  at issue in this  case, is removal of  the OSH Act from  a list of
statutes exempted from  inflationary civil monetary penalty  increases which, in
effect, permitted  OSHA to  now adjust  the civil  monetary penalties  under the
OSH  Act  according to  the  inflationary  provisions  of FCPIAA.  A  “catch-up”
adjustment was  also authorized for the  initial penalty changes.   Accordingly,
pursuant to the  2015 Amendments, OSHA increased the maximum  penalty for a: (1)
serious  violation  from $7,000.00  to  $12,471.00;  (2) repeat  violation  from
$70,000.00  to  $124,709.00;  and  (3)  willful  violation  from  $70,000.00  to
$124,709.00.26   
        Respondent  argues, due  to “flawed legislation”  contained in  the 2015
Amendments, the statutory  limits, as identified above for  serious, repeat, and
willful  violations were  left  in the  statute.   Respondent  is  correct.   29
U.S.C. §  666.  Respondent argues  until these long-standing  statutory maximums
are  deleted from  the OSH  Act,  or amended,  tangential legislation  generally
authorizing OSHA  to increase  its civil monetary  penalties based  on inflation
cannot   be  implemented.   In   addition,  Respondent   argues  that   proposed
legislation  in the  115th  Congress27 to  amend the  OSH  Act demonstrates  the
intent  of  Congress  that  the  OSH  Act  must  be  amended  before  tangential
legislation  generally authorizing  OSHA  to increase  civil monetary  penalties
based on inflation can be implemented.
          Complainant  responds in  opposition by  arguing  the 2015  Amendments
expressly required  OSHA to adjust the  maximum penalty for violations  based on
a specific, mandated, mathematical formula.  
      	1.  Case law. 
       Our analysis begins  with whether the Supreme Court  has squarely decided
the issue  presented.  Complainant identified  a Supreme Court case  which seems
to  recognize, though  not explicitly  analyzing  the issue,  that Congress  can
authorize  civil   monetary  penalty  increases  through   inflation  adjustment
legislation, despite  leaving  contradictory language in  the  original statute.
Sackett  v. E.P.A.,  566 U.S.  120,  at 123  fn. 1  (2012)(noting the  “original
statute set a  penalty cap of $25,000  per violation per day”  and the Inflation
Adjustment Act  of 1990 authorized  “the EPA to  adjust the maximum  penalty for
inflation.”)  
       However,  since there does not  exist a Supreme Court  squarely on point,
the  Court  notes the  next  analysis  focuses  on  whether the  Commission  has
addressed  the issue.    The parties  cited  no Commission  case  law which  has
addressed this issue.
         In general, “[w]here it  is highly probable that  a Commission decision
would be  appealed to  a particular circuit,  the Commission has  . .  . applied
the precedent  of that circuit  in deciding the  case—even though it  may differ
from the  Commission’s precedent.”  Kerns Bros.  Tree Serv.,  18 BNA  OSHC 2064,
2067  (No.  96-1719,  2000)  (citation  omitted).      These  cases  invoke  the
jurisdiction  of the  Seventh  Circuit Court  of  Appeals  since the  Respondent
resides in  that circuit, and  the inspection took place  in that circuit.   The
Seventh  Circuit,  as well  as  the  D.C.  Circuit  Court  of Appeals,  has  not
addressed this issue.
        However, three  circuits have addressed the ability  of Federal agencies
to  increase their  civil monetary  penalties under  the FCPIAA  notwithstanding
Congress never amending  the agency statute which authorized  the civil monetary
penalties in  the first  instance.   While none of  the circuits  have addressed
the issue  in the  content of  OSHA’s authority under  the 2015  Amendments, the
Court finds these  opinions persuasive as they examine the  overall authority of
Federal agencies  to adjust civil  monetary penalties  under FCPIAA.   See Knapp
v. U. S. Dep’t  of Agric., 796 F.3d 445, 464-65  (5th Cir. 2015)(recognizing the
Inflation  Adjustment  Act  increased  the penalty  amount  above  the  original
statutory maximum  for the Animal Welfare Act);  United States v.  EME Home City
Gener.,  L.P.,  727  F.3d  274,  284   n.12  (3rd  Cir.  2013)(noting  that  the
Environmental  Protection  Act  had  a  statutory  maximum,  but  the  Inflation
Adjustment Act  mandated that the penalty  amount increase above  this maximum);
McCloy v. U.S.  Dep’t of Agric., 351  F.3d 447, 448 (10th  Cir. 2003)(noting the
maximum penalty  under the Horse Protection  Act was increased by  the Inflation
Adjustment  Act.)    Respondent  directed the  Court to  no case  law which  has
stated civil  monetary penalties could  not be  adjusted under FCPIAA  until the
Federal  agency  statute was  amended.28    This  Court  finds the  above  legal
precedent establishes OSHA’s  authority to increase the penalties  under the OSH
Act  notwithstanding  that  the  OSH  Act  was  never  amended  by  Congress  to
recognize the inflation adjustment.  
      
      
      	2.  Congressional Intent. 
        The  resolution of a  potential conflict between  federal statutes  – in
this case, the  statutory penalty maximums still contained in  Section 17 of the
OSH Act,  and  the 2015 Amendments  –  depends on an  analysis  of Congressional
intent.  N.  Y. Tele. v. N. Y. State  Dept. of Labor, 440 U.S. 519  (1979).  The
2015 Amendments  clearly expressed Congressional intent  to: (1) remove  the OSH
Act  from  those  statutes  previously  exempted  from  civil  monetary  penalty
adjustments;  and  (2)  to  permit  OSHA to  implement  a  one  time  “catch-up”
increase.    The  2015  Amendments clearly  expressed  Congressional  intent  to
authorize OSHA to  modify penalty maximums pursuant  to inflationary information
and a  prescribed formula  in the  future.   When read  in conjunction  with one
another, this Court  finds that Congress intended, through  the 2015 Amendments,
to allow  OSHA to  increase the maximum  penalty for violations  at the  time of
these  alleged  violations29,  despite  leaving the  previous  maximums  in  the
language of section 17(b) of the OSH Act.  
           It is  clear from the  remarks of  Senator Levin that  civil monetary
penalties were  numerous and the  scope totally unknown  to Congress.   It would
be a daunting  task to require Congress every  time it desires an  increase in a
civil monetary  penalty to amend  the statute  that contains the  civil monetary
penalty  maximum.  Instead,  Congress  devised a mechanism  where  it authorized
Federal agency heads  to adjust their civil monetary penalties  by following the
formula set  forth  in the FCPIAA  and  publish those increases  in  the Federal
Register.  It is  clear the intent of Congress was  this mechanism would empower
a Federal  agency head to  adjust their  civil monetary penalties  for inflation
without  the  need  of  Congress  to also  pass  an  amendment  to  the  statute
containing  the civil  monetary  penalty.   To  require  Congress  to amend  the
Federal agency  statute every  time a  civil money penalty  was adjusted  by the
Federal agency  head under the  FCPIAA would be to  render the mechanism  of the
FCPIAA superfluous. 
		3.  Reconciliation of Two Statutes. 
          Finally, the  Court must read the two  statutes (here the  OSH Act and
the 2015  Amendments) to give effect  to each if  it can do so  while preserving
their sense  and purpose.  Morton v.  Mancari, 417  U.S. 535,  551 (1974).   The
Court declines  to read the statutes as  being in irreconcilable  conflict.  The
two statutes  can be reconciled by  examining the legislative history.   Senator
Lautenberg  recognized Congress  would need  to pass  “separate legislation”  in
order to enact  penalty increases. Congress, in enacting FCPIAA  in 1996, passed
the subsequent  legislation referred  to by Senator  Lautenberg to  permit civil
monetary penalty  increases.  Congress  enacted subsequent legislation  to allow
civil monetary penalties  to be increased irrespective of  Congress not amending
the  Federal  agency statute  to  reflect  the inflationary  penalty  adjustment
increase.
         An examination of the definition of  “civil monetary penalty” set forth
in  FCPIAA is  also  helpful to  reconcile  the FCPIAA  and the  OSH  Act.   The
definition reads as follows:
             (2) “civil  monetary penalty”  means  any penalty,  fine, or  other
sanction that –
        (A)(1) is for  a specific monetary amount as provided by Federal law; or
              (ii)  has  a  maximum amount  provided  for  by Federal  law;  and
         (B) is  assessed or enforced by an agency pursuant  to Federal law; and
          (C) is assessed  or enforced pursuant to  an administrative proceeding
or in a civil action in the Federal courts; and
           (3) “Consumer Price  Index” means the  Consumer Price Index  for all-
urban consumers published by the Department of Labor. 

See FCPIAA, § 3(2) and (3).
 
          Thus, by  its definition a civil  monetary penalty that has  a maximum
amount under  Federal law  (like the  OSH Act)  is subject  to a  Consumer Price
Index adjustment as defined in § 3(3) of FCPIAA.   
          Congress sent a message  loud and clear –  statutes establishing civil
monetary penalties  were numerous and  many unknown.   Congress, even  though it
did not  know the  exact universe  of civil monetary  penalties, made  a finding
that the  deterrent effect of  civil monetary  penalties was being  eroded since
Federal agency  statutes had not been  amended to increase penalties.   Congress
passed  subsequent  legislation which  established  a mechanism  which  required
civil  monetary  penalties  to  be   increased  under  an  inflation  adjustment
formula.  Congress  did not make the actions of  Federal agencies permissive; it
required the  Federal agencies to  periodically adjust civil  monetary penalties
to maintain deterrence.  	
           Congress  exercises its  oversight by  requiring Federal  agencies to
publish in the  Federal Register and requiring the General  Accounting Office to
report to  it annually  on Federal  agency compliance.   To the  extent Congress
determines the Federal agency  had acted ultra vires, or did not  act at all, it
could amend FCPIAA  to prohibit the Federal agency from  exercising it powers in
the future  or it could pass overriding  legislation.  Thus,  when reviewing the
legislative history, it  is clear the two statutes can  be read as complimentary
to one another as opposed to being irreconcilable.          
           The legislative history, legislative  amendments, and case  law leads
the Court to conclude  OSHA acted as required under the  FCPIAA in adjusting its
civil  monetary  penalties and  the  penalties established  are  constitutional.
The Court finds  Respondent failed to establish that it  is entitled to judgment
as a  matter of law.   Respondent’s Motion for  Partial Summary Judgment  on the
issue of  the constitutionality  of OSHAs  increased penalties  enacted pursuant
to the 2015 Amendments is DENIED.

      SO ORDERED.
                                                       s/ Patrick   B. Augustine
Date:     September 6,  2017                        Judge  Patrick B.  Augustine
Denver, Colorado			Judge - OSHRC 
 
1 Respondent  does not argue Complainant  miscalculated the penalties  under the
inflation  adjustment  formula  or  did  not  adequately  publish  the  proposed
increases in the Federal Register.
.  
2  The  Court will  issue  under  separate  Order  its  decision on  the  second
argument  raised by  Respondent,  i.e. whether  29  C.F.R.  § 1910.213(r)(4)  is
unconstitutionally vague.
3 29 U.S.C. § 651 et seq.
4 Pub.  L. 101-410, 104  Stat. 890 (1990),  codified as  amended at 28  U.S.C. §
2461 note. 
5 Neither  party examined  the legislative  history of  FCPIAA in  their briefs.
6 FCPIAA, supra note 3, § 5(b). 
7 Id. at § 5(a). 
8 Id. § 2(a)(1). 
9 Id. at § 2(a)(2), (3). 
10  Id. at § 2(a)(4). 
11  Id. at § 2(b).  
12 S. Rep. 101-240 (1990) and H. R. Rep. 101-697 (1990). 
13 136 Cong. Rec.  S1494 (daily ed. Feb. 22, 1990)  (statement of Senator Levin)
14  136 Cong.  Rec. S1493  (Feb. 22,  1990) (statement  of Senator  Lautenberg).
15  Debt   Collection  Improvement  Act  of   1996,  Pub.  L.  No.   104-134,  §
31001(s)(1)(A), 110  Stat. 1321,  1373.   This Act was  an omnibus  budget bill;
therefore, the legislative  record consequently left no trace  of any discussion
in which Congress might have debated the 1996 amendments.
16 FCPIAA, § 4(1). 
17 Id. at § 4(2).
18 Id. at § 5(a).
19 Id.  
20  Pub.   L.  No.  104-134,  §   31001(s)(1),  110  Stat  1321,   1373  (1996).
21 FCPIAA, § 6.
22 Id. at § 4(1).
23  Pub.   L.  105-362,  title   XIII,  §   1301(a),  112  Stat.   3293  (1998).
24 Federal  Civil Penalties Inflation Adjustment Act  of 2015,   Pub. L. 114-74,
Title VII, §  701 et. seq., Nov. 2,  2015, 129 Stat. 599 which  enacted the note
and provisions set out as a note under 28 U.S.C.A. § 1.    
25 Id. 
26 The  violation in  the actions  before the Court  occurred after  November 2,
2015, and was  assessed between August 1,  2016 and January 13,  2017; thus, the
amounts  identified   apply.  Department  of   Labor  Federal   Civil  Penalties
Adjustment  Act  Clean  Up  Amendments,  81 Fed.  Reg.  43430  (July  1,  2016).
27 H.R. 914  and S. 1000, 115th Cong.  (2017).  Neither of these  bills has been
enacted into  law.  Therefore, Respondent’s  argument these bills  demonstrate a
congressional  intent  the OSH  Act  must  be  amended  to allow  the  inflation
adjustments permitted  under FCPIAA to  take effect  is not persuasive.   Simple
introduction of  a bill  in Congress  demonstrates no intent  of Congress.   The
bills merely  express the  position of the  individual sponsors.  Therefore, the
Court  gives  no  weight  to  Respondent’s  argument  in  this  regard.    Also,
Respondent cannot point  to any legislation passed by Congress  between 1996 and
2015 which  amended any Federal agency statute  to reflect an  increase in civil
monetary penalties  when the  Federal Agency  head has  acted under  the FCPIAA.
(Emphasis added).    
28  Federal agencies,  other than  OSHA, since  1996 have  adjusted their  civil
monetary penalties under the  FCPIAA. Respondent can cite to no  case law over a
20  year  period  which  states  Federal  agencies  cannot  adjust  their  civil
monetary  penalties  where  the  maximum  amount set  forth  in  their  enabling
legislation has remained unchanged.
29  OSHA  penalty maximums  were  modified  again  in  January 2017,  after  the
factual events relevant to this case. 
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