[Federal Register Volume 82, Number 51 (Friday, March 17, 2017)]
[Rules and Regulations]
[Pages 14147-14149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05178]


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DEPARTMENT OF HOMELAND SECURITY

[CIS No. 2585-16]
RIN 1615-AC10

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 503

RIN 1235-AA16


Department of Homeland Security and Department of Labor Federal 
Civil Penalties Inflation Adjustment Act Annual Adjustments for the H-
2B Temporary Non-agricultural Worker Program

AGENCY: Department of Homeland Security; Wage and Hour Division, 
Department of Labor.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Homeland Security (DHS) and the U.S. 
Department of Labor (DOL) (collectively, ``the Departments'') are 
jointly issuing this final rule to adjust for inflation the civil 
monetary penalties assessed or enforced in connection with the 
employment of temporary nonimmigrant workers under the H-2B program, 
pursuant to the Federal Civil Penalties Inflation Adjustment Act of 
1990 as amended by the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015 (Inflation Adjustment Act). The Inflation 
Adjustment Act provides that agencies shall adjust civil monetary 
penalties notwithstanding Section 553 of the Administrative Procedure 
Act (APA). Additionally, the Inflation Adjustment Act provides a cost-
of-living formula for adjustment of the civil penalties. Accordingly, 
this final rule sets forth the Departments' 2017 annual adjustments for 
inflation to the H-2B civil monetary penalties, effective March 17, 
2017.

DATES: This final rule is effective March 17, 2017. As provided by the 
Inflation Adjustment Act, the increased penalty levels apply to any 
penalties assessed after March 17, 2017.

FOR FURTHER INFORMATION CONTACT: Pamela Peters, Program Analyst, U.S. 
Department of Labor, Room S-2312, 200 Constitution Avenue NW., 
Washington, DC 20210; telephone: (202) 693-5959 (this is not a toll-
free number). Copies of this final rule may be obtained in alternative 
formats (large print, Braille, audio tape or disc), upon request, by 
calling (202) 693-5959 (this is not a toll-free number). TTY/TDD 
callers may dial toll-free 1-877-889-5627 to obtain information or 
request materials in alternative formats.

SUPPLEMENTARY INFORMATION:

I. Regulatory Information

    The Inflation Adjustment Act required agencies to: (1) Adjust the 
level of civil monetary penalties with an initial ``catch-up'' 
adjustment through an interim final rule (IFR); and (2) make subsequent 
annual adjustments for inflation. Agencies are required to publish an 
annual inflation adjustment no later than January 15, 2017, and by 
January 15 of each subsequent year.
    On July 1, 2016, the Departments established the initial catch-up 
adjustment for civil monetary penalties assessed or enforced in 
connection with the employment of temporary nonimmigrant workers under 
the H-2B

[[Page 14148]]

program. See 81 FR 42983 (IFR).\1\ This final rule reflects that the 
Departments did not receive any public comments on the jointly-issued 
IFR and so did not make any changes to the civil monetary penalty 
amounts established in the IFR based on comments received. For that 
reason, this rule is being issued jointly by DOL and DHS. As explained 
in the IFR, DOL will make future adjustments to the H-2B civil monetary 
penalties consistent with DOL's delegated authority under 8 U.S.C. 
1184(c)(14), Immigration and Nationality Act section 214(c)(14), and 
the Inflation Adjustment Act. See 81 FR 42985 n.2. DOL will make the 
first such adjustment in 2018.
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    \1\ The Departments incorporate by reference the preamble to the 
July 2016 IFR. See 81 FR 42983-42986.
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    Agencies are required to calculate the annual adjustment based on 
the Consumer Price Index for all Urban Consumers (CPI-U). Annual 
inflation adjustments are based on the percent change between the 
October CPI-U preceding the date of the adjustment, and the prior 
year's October CPI-U; in this case, the percent change between the 
October 2016 CPI-U and the October 2015 CPI-U. The cost-of-living 
adjustment multiplier for 2017, based on the Consumer Price Index (CPI-
U) for the month of October 2016, not seasonally adjusted, is 
1.01636.\2\ In order to complete the 2017 annual adjustment, the 
Departments multiplied the most recent H-2B maximum civil monetary 
penalty amounts by the multiplier, 1.01636, and rounded to the nearest 
dollar.
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    \2\ OMB provided the year-over-year multiplier, rounded to 5 
decimal points. See M-17-11, Implementation of the 2017 annual 
adjustment pursuant to the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (Dec 16, 2016).
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    As provided by the Inflation Adjustment Act, the increased penalty 
levels apply to any penalties assessed after the effective date of this 
rule. Accordingly, for penalties assessed after March 17, 2017, whose 
associated violations occurred after November 2, 2015, the higher 
penalty amounts outlined in this rule will apply. The chart below 
demonstrates the penalty amounts that apply:

------------------------------------------------------------------------
                                                          Which penalty
     Violations occurring          Penalty assessed       level applies
------------------------------------------------------------------------
On or before November 2, 2015  On or before August 1,   Pre-August 1,
                                2016.                    2016 levels.
On or before November 2, 2015  After August 1, 2016...  Pre-August 1,
                                                         2016 levels.
After November 2, 2015.......  After August 1, 2016,    August 1, 2016
                                but on or before March   levels.
                                17, 2017.
After November 2, 2015.......  After March 17, 2017...  March 17, 2017
                                                         levels.
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II. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that the Departments consider the impact of paperwork and other 
information collection burdens imposed on the public. The Departments 
have determined that this final rule does not require any collection of 
information.

III. Administrative Procedure Act

    The Inflation Adjustment Act provides that agencies shall annually 
adjust civil monetary penalties for inflation notwithstanding Section 
553 of the Administrative Procedure Act (APA). Additionally, the 
Inflation Adjustment Act provides a nondiscretionary clear formula for 
annual adjustment of the civil monetary penalties. For these reasons, 
the requirements in sections 553(b), (c), and (d) of the APA, relating 
to notice and comment and requiring that a rule be effective at least 
30 days after publication in the Federal Register, are inapplicable.

IV. Executive Orders 12866: Regulatory Planning and Review; and 
Executive Order 13563: Improving Regulation and Regulatory Review

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of significant regulatory actions. Under the 
Executive Order, a ``significant regulatory action'' is one meeting any 
of a number of specified conditions, including the following: Having an 
annual effect on the economy of $100 million or more; creating a 
serious inconsistency or interfering with an action of another agency; 
materially altering the budgetary impact of entitlements or the rights 
of entitlement recipients, or raising novel legal or policy issues.
    The Departments have determined that this final rule is not a 
``significant'' regulatory action and a cost-benefit and economic 
analysis is not required. This regulation merely adjusts civil monetary 
penalties in accordance with inflation as required by the Inflation 
Adjustment Act, and has no impact on disclosure or compliance costs. 
The benefit provided by the inflationary adjustment to the maximum 
civil monetary penalties is that of maintaining the incentive for the 
regulated community to comply with the laws enforced by the 
Departments, and not allowing the incentive to be diminished by 
inflation. To the extent this Final Rule increases civil monetary 
penalties, it would result in an increase in transfers from persons or 
entities assessed a civil monetary penalty to the government.
    Executive Order 13563 directs 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). Executive Order 13563 
emphasizes the importance of quantifying both costs and benefits, 
reducing costs, harmonizing rules, and promoting flexibility to 
minimize burden.
    By mandating inflation adjustments consistent with a non-
discretionary, clear formula, Congress has already determined that any 
possible increase in costs is justified by the overall benefits of such 
adjustments. This final rule makes only the statutory changes outlined 
herein; thus there are no alternatives or further analysis required by 
E.O. 13563.

V. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes 
certain requirements on Federal agency rules that are subject to the 
notice and comment requirements of the APA, 5 U.S.C. 553(b). This final 
rule is exempt from the requirements of the APA because the Inflation 
Adjustment Act directed the Departments to issue the annual adjustments 
without regard to Section 553 of the APA. Therefore, the requirements 
of the RFA applicable to final rules, 5 U.S.C. 604, do not apply to 
this final rule. Accordingly, the Departments are not required to 
either certify that the final rule would not have a significant 
economic impact on a substantial number of small entities or conduct a 
regulatory flexibility analysis.

[[Page 14149]]

VI. Environmental Impact Assessment

    This action is one of a category of actions that do not 
individually or cumulatively have a significant effect on the human 
environment. This action is therefore categorically excluded from 
further review under the National Environmental Policy Act of 1969 
(NEPA), 42 U.S.C. 4321-4375.

List of Subjects in 29 CFR Part 503

    Administrative practice and procedure, Aliens, Employment, Housing, 
Immigration, Labor, Penalties, Transportation, Wages.

    Accordingly, for the reasons set out in the preamble, 29 CFR part 
503 is amended as follows:

Title 29--Labor

PART 503--ENFORCEMENT OF OBLIGATIONS FOR TEMPORARY NONIMMIGRANT 
NON-AGRICULTURAL WORKERS DESCRIBED IN THE IMMIGRATION AND 
NATIONALITY ACT

0
1. The authority citation for part 503 continues to read as follows:

    Authority: 8 U.S.C. 1101(a)(15)(H)(ii)(b); 8 U.S.C. 1184; 8 CFR 
214.2(h); 28 U.S.C. 2461 note (Federal Civil Penalties Inflation 
Adjustment Act of 1990); Pub. L. 114-74 at Sec.  701.


Sec.  503.23  [Amended]

0
2. In the table below for Sec.  503.23, for each paragraph indicated in 
the left column, remove the dollar amount indicated in the middle 
column from wherever it appears in the paragraph, and add in its place 
the dollar amount indicated in the right column:

------------------------------------------------------------------------
                     Paragraph                        Remove      Add
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(b)...............................................    $11,940    $12,135
(c)...............................................     11,940     12,135
(d)...............................................     11,940     12,135
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John F. Kelly,
Secretary of Homeland Security.
Edward C. Hugler,
Acting Secretary of Labor.
[FR Doc. 2017-05178 Filed 3-16-17; 8:45 am]
BILLING CODE 4510-27-P; 9111-97-P