[Federal Register Volume 81, Number 123 (Monday, June 27, 2016)]
[Rules and Regulations]
[Pages 41451-41452]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-14795]
[[Page 41451]]
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NATIONAL SCIENCE FOUNDATION
45 CFR Parts 672 and 681
RIN 3145-AA58
Implementation of the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015
AGENCY: National Science Foundation.
ACTION: Interim final rule.
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SUMMARY: The National Science Foundation (NSF or Foundation) is
adjusting the maximum civil monetary penalties that may be imposed for
violations of the Antarctic Conservation Act of 1978 (ACA), to reflect
the requirements of the Federal Civil Penalties Inflation Adjustment
Act Improvements Act of 2015 (the 2015 Act). The 2015 Act further
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(the Inflation Adjustment Act), to improve the effectiveness of civil
monetary penalties and to maintain their deterrent effect.
DATES: Effective August 1, 2016.
ADDRESSES: You may submit comments, identified by RIN 3145-AA58.
Comments should be submitted by any of the following methods:
1. Internet--Send comments via email to [email protected].
2. Fax--(703)292-9242.
FOR FURTHER INFORMATION CONTACT: Bijan Gilanshah, Assistant General
Counsel, Office of the General Counsel, at 703-292-8060, National
Science Foundation, 4201 Wilson Boulevard, Room 1265, Arlington,
Virginia 22230.
SUPPLEMENTARY INFORMATION: The 2015 Act requires agencies to: (1)
Adjust the level of civil monetary penalties with an initial ``catch-
up'' adjustment through an interim final rulemaking; and (2) make
subsequent annual adjustments for inflation. Inflation adjustments will
be based on the percent change in the Consumer Price Index for all
Urban Consumers (CPI-U) for the month of October preceding the date of
the adjustment, relative to the October CPI-U in the year of the
previous adjustment. The only civil monetary penalties within NSF's
jurisdiction are those authorized by the Antarctic Conservation Act of
1978 (ACA), 16 U.S.C. 2401, et seq., and the Program Fraud Civil
Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801, et seq.
Initial Adjustments Under the ACA and PFCRA
For the first adjustment made in accordance with the 2015 Act, the
amount of the adjustment is calculated based on the percent change
between the CPI-U for October of the last year in which penalties were
previously adjusted (not including any adjustment made pursuant to the
Inflation Adjustment Act before November 2, 2015), and the CPI-U for
October 2015. The 10 percent cap on adjustments imposed by the Debt
Collection Improvement Act of 1996 has been eliminated by the 2015 Act.
Instead, the 2015 Act imposes a cap on the amount of this initial
adjustment, such that the amount of the increase may not exceed 150
percent of the pre-adjustment penalty amount or range. As a result, the
total penalty amount or range after the initial adjustment under the
2015 Act may not exceed 250 percent of the pre-adjustment penalty
amount or range.
For purposes of the initial adjustment of the ACA's penalties under
the 2015 Act, Congress last set or adjusted the amount of civil
penalties in 1978. Between October 1978 and October 2015, the CPI-U has
increased by 354.453 percent. The post-adjustment penalty amount or
range is obtained by multiplying the pre-adjustment penalty amount or
range by the percent change in the CPI-U over the relevant time period,
and rounding to the nearest dollar. Therefore, the new, post-adjustment
maximum penalty under the ACA for violations is $5,000 x 3.54453 =
$17722.65, which rounds to $17723. The new, post-adjustment maximum
penalty for knowing violations is $10,000 x 3.54453= $35,445.30, which
rounds to $35,445. The new, post-adjustment penalties are greater than
250 percent of the pre-adjustment penalties, so the limitation on the
amount of the adjustment is implicated. Therefore, the maximum penalty
under the ACA after August 1, 2016 will be $16,250 ($6500 x 2.5) for
violations and $27,500 ($11,000 x 2.5) for knowing violations.
For purposes of the initial adjustment under the 2015 Act, Congress
last set or adjusted the amount of PFCRA civil penalties in 1986.
Between October 1986 and October 2015, the CPI-U has increased by
215.628 percent. The post-adjustment penalty amount or range is
obtained by multiplying the pre-adjustment penalty amount or range by
the percent change in the CPI-U over the relevant time period, and
rounding to the nearest dollar. Therefore, the new, post-adjustment
maximum penalty under the PFCRA is $5,000 x 2.15628 = $10,781.40, which
rounds to $10,781. The new, post-adjustment penalties are less than 250
percent of the pre-adjustment penalties, so the limitation on the
amount of the adjustment is not implicated. Therefore, the maximum
penalty under the PFCRA for claims or statements made after August 1,
2016 will be $10,781.
Subsequent Annual Adjustments
The 2015 Act also requires agencies to make annual adjustments to
civil penalty amounts no later than January 15 of each year following
the initial adjustment described above. For subsequent adjustments made
in accordance with the 2015 Act, the amount of the adjustment is based
on the percent increase between the CPI-U for the month of October
preceding the date of the adjustment and the CPI-U for the October one
year prior to the October immediately preceding the date of the
adjustment. If there is no increase, there is no adjustment of civil
penalties. Therefore, if NSF adjusts penalties in January 2017, the
adjustment will be calculated based on the percent change between the
CPI-U for October 2016 (the October immediately preceding the date of
adjustment) and October 2015 (the October one year prior to October
2016). NSF will publish the amount of these annual inflation
adjustments in the Federal Register no later than January 15 of each
year, starting in 2017.
Public Participation
This interim final rule is being issued without prior public notice
or opportunity for public comments. The 2015 Act's amendments to the
Inflation Adjustment Act require the agency to adjust penalties
initially through an interim final rulemaking, which does not require
the agency to complete a notice and comment process prior to
promulgating the interim final rule. The amendments also explicitly
require the agency to make subsequent annual adjustments
notwithstanding 5 U.S.C. 553 (the section of the Administrative
Procedure Act that normally requires agencies to engage in notice and
comment). Additionally, the formula used for adjusting the amount of
civil penalties is given by statute, with no discretion provided to the
NSF regarding the substance of the adjustments. NSF is charged only
with performing ministerial computations to determine the amount of
adjustment to the civil penalties due to increases in the Consumer
Price Index for all Urban Consumers (CPI-U).
[[Page 41452]]
Environmental Impact
This interim final rule only makes conforming changes to the
Foundation's regulations to reflect inflationary adjustments to its
civil monetary penalties required by the 2015 Act.
No Takings Implications
NSF has determined that this interim final rule will not involve
the taking of private property pursuant to E.O. 12630.
Civil Justice Reform
NSF has considered this interim final rule under E.O. 12988 on
civil justice reform and determined the principles underlying and
requirements of E.O. 12988 are not implicated.
Federalism and Consultation and Coordination With Indian Tribal
Governments
NSF has considered this interim final rule under the requirements
of E.O. 13132 on federalism and has determined that the interim final
rule conforms with the federalism principles set out in this E.O.; will
not impose any compliance costs on the States; and will not have
substantial direct effects on the States, the relationship between the
Federal government and the States, or the distribution of power and
responsibilities among the various levels of government. Therefore, the
Foundation has determined that no further assessment of federalism
implications is necessary.
Moreover, NSF has determined that promulgation of this interim
final rule does not require advance consultation with Indian Tribal
officials as set forth in E.O. 13175, Consultation and Coordination
with Indian Tribal Governments.
Energy Effects
NSF has reviewed this interim final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use and has determined that this final rule does not
constitute a significant energy action as defined in the E.O.
Regulatory Planning and Review
This interim final rule has not been designated a ``significant
regulatory action,'' under Executive Order 12866. The interim final
rule only makes inflation adjustments to NSF's civil monetary
penalties.
Unfunded Mandates
Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2
U.S.C. 1531-1538), NSF has assessed the effects of this interim final
rule on State, local, and Tribal governments and the private sector.
This interim final rule will not compel the expenditure of $100 million
or more by any State, local, or Tribal government or anyone in the
private sector. Therefore, a statement under section 202 of the act is
not required.
Controlling Paperwork Burdens on the Public
This interim final rule does not contain any recordkeeping or
reporting requirements or other information collection requirements as
defined in 5 CFR part 1320 that are not already required by law or not
already approved for use. Accordingly, the review provisions of the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and its
implementing regulations at 5 CFR part 1320 do not apply.
List of Subjects
45 CFR Part 672
Administrative practice and procedure, Antarctica.
45 CFR Part 681
Civil remedies; Program fraud.
For the reasons set out in the preamble, 45 CFR parts 672 and 681
are amended as follows:
PART 672--ENFORCEMENT AND HEARING PROCEDURES
0
1. The authority citation for part 672 continues to read as follows:
Authority: 16 U.S.C. 2401 et seq., 28 U.S.C. 2461 note.
0
2. Revise Sec. 672.24 to read as follows:
Sec. 672.24 Maximum civil monetary penalties for violations.
(a) For violations occurring prior to August 1, 2016, the maximum
civil penalty is $6500 for any violation and $11,000 for knowing
violations.
(b) For violations occurring after August 1, 2016, but before
January 1, 2017, the maximum civil penalty is adjusted to $16,250 for
any violation and $27,500 for knowing violations.
(c) For violations occurring on or after January 1, 2017, the
maximum penalty, which may be assessed under Part 672 of the title, is
the larger of:
(1) The amount for the previous calendar year, or
(2) An amount adjusted for inflation, calculated by multiplying the
amount for the previous calendar year by the percentage by which the
CPI-U for the month of October preceding the current calendar year
exceeds the CPI-U for the month of October of the calendar year two
years prior to the current calendar year, adding that amount to the
amount for the previous calendar year, and rounding the total to the
nearest dollar.
(d) Notice of the maximum penalty which may be assessed under Part
672 of this title for calendar years after 2016 will be published by
the NSF in the Federal Register on an annual basis on or before January
15 of each calendar year.
PART 681--PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS
0
3. The authority citation for part 681 continues to read as follows:
Authority: 31 U.S.C. 3801 et seq.
0
4. In Sec. 681.3, add paragraphs (f) and (g) to read as follows:
Sec. 681.3 What is the basis for the imposition of civil penalties
and assessments?
* * * * *
(f) For claims or statements made on or after August 1, 2016, but
before January 1, 2017, the maximum penalty which may be assessed under
Part 681 of the title is $10,781. For claims or statements made on or
after January 1, 2017, the maximum penalty which may be assessed under
Part 681 of the title is the larger of:
(1) The amount for the previous calendar year, or
(2) An amount adjusted for inflation, calculated by multiplying the
amount for the previous calendar year by the percentage by which the
CPI-U for the month of October preceding the current calendar year
exceeds the CPI-U for the month of October of the calendar year two
years prior to the current calendar year, adding that amount to the
amount for the previous calendar year, and rounding the total to the
nearest dollar.
(g) Notice of the maximum penalty, which may be assessed under Part
681 of this title for calendar years after 2016, will be published by
NSF in the Federal Register on an annual basis on or before January 15
of each calendar year.
National Science Foundation.
Dated: June 16, 2016.
Lawrence Rudolph,
General Counsel.
[FR Doc. 2016-14795 Filed 6-24-16; 8:45 am]
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