DOCUMENT NUMBER: FR50-99

FEDERAL REGISTER CITE: 64 FR 47099

DATE OF PUBLICATION: August 30, 1999

BILLING CODE: 4410-19

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

8 CFR Parts 270, 274a, and 280

28 CFR Parts 20, 22, 36, 71, 76, and 85

[AG Order No. 2249-99]

RIN 1105-AA48

Civil Monetary Penalties Inflation Adjustment

AGENCY: Office of the Attorney General, Justice.

ACTION: Final rule.

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

DATES: This rule is effective September 29, 1999.

FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel, Office of Policy Development, Department of Justice, Room 4258, Main Building, 950 Pennsylvania Avenue, NW., Washington, DC. 20530,(202) 514-8059.

SUPPLEMENTARY INFORMATION:

Background

Why Is the Justice Department Revising Its Civil Monetary Penalties?

    The Federal Civil Monetary Penalties Inflation Adjustment Act of 1990, Pub. L. 101-410 (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, President Clinton signed into law the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104-134. Section 31001 of that Act, 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 one hundred eighty days after enactment of the Debt Collection Improvement Act of 1996. 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 this Act shall apply only to violations that occur after the date the increase takes effect.

Is There a Limit on the First Adjustment of These Penalties?

    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.

How Often Will These Penalties be Adjusted for Inflation?

    The adjustment for inflation required by the Adjustment Act must be done every four years. Pursuant to the Improvement Act, the first adjustment was required by October 23, 1996.

What Penalties Imposed Pursuant to the Immigration Reform and Control Act of 1986 Does This Rule Adjust and What Penalties Were Adjusted by a Recently Published EOIR Rule?

    This rule adjusts, among other things, penalties listed in 8 CFR part 274a that the Immigration and Naturalization Service (INS) imposes pursuant to 8 U.S.C. 1324a for various specified unlawful acts pertaining to the employment of unauthorized aliens. On January 12, 1999, the Executive Office for Immigration Review (EOIR) issued a rule adjusting civil monetary penalties within its area. 64 FR 7066. The adjustment of EOIR penalties included penalties at 28 CFR 68.52(d) that are imposed pursuant to 8 U.S.C . 1324b for unfair employment practices, including discrimination. The Office of Special Counsel for Immigration Related Unfair Employment Practices, Civil Rights Division, is authorized to seek these penalties at hearings presided over by EOIR Administrative Law Judges. The adjustment of these two sets of penalties by this rule and by the recent EOIR rule maintains parity among fines imposed for violating the employer sanctions and the anti-discrimination provisions of the Immigration Reform and Control A ct of 1986.

    This rule fulfills the Attorney General's obligations under the Improvement Act with respect to all civil monetary penalties, except those pertaining to EOIR.

Are There Any Related Regulations of Other Federal Agencies That Readers of This Rule Should Consult?

    The Office of Government Ethics (OGE) is publishing elsewhere in this issue of the Federal Register a rule adjusting for inflation certain Ethics Act and Ethics Reform Act civil monetary penalties that are codified at 5 CFR part 2634 and 5 CFR part 2636. Because the Department's Civil Division brings Ethics Act enforcement actions, the Department and OGE have coordinated the issuance of these regulations. For the convenience of the reader, the Department is including in this rule adjustments to the same Et hics Act and Ethics Reform Act penalties that OGE is making today, in the same amount and effective on the same day as the adjustments contained in the OGE rule. Further, as OGE notes in the preamble to its rule, the Department and OGE have determined that the $200 late filing fee for public financial disclosure reports that are more than 30 days overdue (see section 105(d) of the Ethics Act, 5 U.S.C. app. 105(d) and 5 CFR 2634.704) is not a civil monetary penalty as defined by the Federal Civil Penalties Inflation Adjustment Act, as amended. Therefore, that fee is not being adjusted.

    The Department's litigating components bring suit to collect various civil monetary penalties of other agencies as well. The reader should consult the regulations of those other agencies for any inflation adjustments of their penalties.

Are There Any Penalties That Are Not Being Adjusted?

    The Department notes that various civil penalties contained in Title 8, Title 21, and Title 28 are not being adjusted by this rule because they have been in effect for a short number of years or because the penalty scheme is new. Penalties not being adjusted by this rule will be adjusted, if appropriate, during the next adjustment required by the Debt Collection Improvement Act.

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

    The Department finds that good cause exists under 5 U.S.C. 553(b)(B) and (d)(3) 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. The calculation of these adjustments follows the 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 which 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.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with Executive Order 12866, section 1(b), 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), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

Executive Order 12612

    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 12612, 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 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 companies to compete with foreign-based companies in domestic and export markets.

Plain Language Instructions

    We try to write clearly. If you can suggest how to improve the clarity of these regulations, call or write Robert Hinchman, Senior Counsel, Office of Policy Development, Department of Justice, Room 4258, Main Building, 950 Pennsylvania Avenue, N.W., Washington, D.C. 20530, (202) 514-8059.