[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Notices]
[Pages 2479-2480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1415]
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Notices
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
and investigations, committee meetings, agency decisions and rulings,
delegations of authority, filing of petitions and applications and agency
statements of organization and functions are examples of documents
appearing in this section.
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Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 /
Notices
[[Page 2479]]
DEPARTMENT OF AGRICULTURE
Office of the Secretary of Agriculture
Waiver of Penalties for Small Business and Reducing the Frequency
of Reports
AGENCY: Office of the Secretary of Agriculture, USDA.
ACTION: Notice.
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SUMMARY: We are advising the public of the Department of Agriculture's
policy for the waiver of penalties for small businesses and the
reduction of the frequency of reports required to be made by the
public. In April 1995, the President directed heads of executive branch
agencies to use their discretion to waive, in appropriate
circumstances, the imposition of all or a portion of penalties on small
businesses and, where feasible and authorized by law, to cut by one-
half the frequency with which regularly scheduled reports are required,
by rule or policy, to be provided to the United States Government. The
Secretary of Agriculture issued Secretary's Memorandum 3031-1,
effective October 10, 1995, implementing the President's directive.
FOR FURTHER INFORMATION CONTACT:
William Jenson, Senior Counsel, Regulatory Division, Office of the
General Counsel, USDA, room 2402, South Building, 14th Street and
Independence Avenue SW., Washington, D.C. 20250; (202) 720-2453.
SUPPLEMENTARY INFORMATION: On April 21, 1995, the President issued a
memorandum to heads of executive branch agencies directing that each:
(1) use his or her discretion to waive penalties imposed on small
businesses where appropriate; (2) where feasible and authorized by law,
cut by one-half the frequency with which regularly scheduled reports
are required, by rule or policy, to be provided to the United States
Government; and (3) submit a plan to the Director of the Office of
Management and Budget describing the actions the agency will take to
implement the President's April 21, 1995, memorandum. The President's
memorandum was published in the Federal Register on April 26, 1995, at
60 FR 20621-20622.
The Department of Agriculture's plan to implement the President's
April 21, 1995, memorandum was approved by the Director of the Office
of Management and Budget, and the Secretary of Agriculture's memorandum
implementing the President's directive became effective on October 10,
1995.
This notice serves to notify small businesses and the public of the
Department of Agriculture's policy regarding the waiver of penalties
for small businesses, and the Department of Agriculture's policy
regarding reductions in the frequency with which regularly scheduled
reports are required, by rule or policy, to be provided to the
Department of Agriculture. These Department of Agriculture policies are
set forth in Secretary's Memorandum 3031-1 which reads as follows:
[Secretary's Memorandum 3031-1]
Waiver of Penalties for Small Business and Cutting Frequency of
Reports
1. Background
The Secretary administers a number of statutes that authorize
the Secretary to impose penalties for violations of those statutes,
of regulations issued under those statutes, and of contracts and
agreements executed under those statutes. The Secretary administers
a number of programs under which the public is required, by
regulation or policy, to provide USDA with regularly scheduled
reports. The President issued a memorandum on April 21, 1995, to the
heads of executive branch agencies directing that each:
a. use his or her discretion to waive the imposition of all or a
portion of penalties on small businesses;
b. cut by one-half the frequency with which regularly scheduled
reports are required, by rule or policy, to be provided to the
United States Government; and
c. submit a plan to the Director of the Office of Management and
Budget describing the actions the agency will take to implement the
penalty waiver policy and the reporting frequency policy described
in the President's April 21, 1995, memorandum.
2. Purpose
a. This Memorandum implements the President's policy to waive
penalties for small businesses and to reduce the frequency of
reports required to be made by the public.
b. Neither the President's policy to waive penalties for small
businesses and to reduce the frequency of reports required to be
made by the public nor this Memorandum applies to:
(1) matters related to law enforcement, national security, or
foreign affairs;
(2) the importation of exportation of prohibited or restricted
items;
(3) United States Government taxes, duties, fees, revenues, or
receipts; or
(4) USDA agencies whose principal purpose is the collection,
analysis, and dissemination of statistical information.
3. Definitions
For the purposes of this Memorandum, the following terms shall
have the meanings set forth in this paragraph.
a. Administering agency. The USDA agency that administers the
statute, regulation, contract, or agreement under which penalties
may be imposed.
b. Corrective action. Action taken by a small business to
correct a violation or to achieve compliance.
c. Covered penalty. Any penalty that may be imposed for a
violation of a statute, regulation, contract, or agreement for
which:
(1) the violator has made a good faith effort to comply with the
statute, regulation, contract, or agreement that has been violated;
(2) the violation does not constitute a violation of criminal
law;
(3) the violation did not result in a significant threat to
health, safety, or the environment;
(4) the violation can be corrected or the violator can achieve
compliance;
(5) an adjudicatory action has not been instituted; and
(6) the Secretary is permitted by law or has discretion under
applicable statutes, regulations, contracts, or agreements to waive
all or a portion of the penalty.
d. Good faith effort to comply with the statute, regulation,
contract, or agreement that has been violated. Conduct that results
in a violation of a statute, regulation, contract, or agreement, but
circumstances surrounding the violation indicate that (1) the
violator did not know that the conduct constituted a violation and
the violator did not intend to commit the violation; (2) the
violator made every reasonable effort to comply with the statute,
regulation, contract, or agreement; or (3) the violator knew that
the conduct constituted a violation, but due to circumstances beyond
the violator's control it was impossible for the violator to comply,
and the violator brought the violation to the attention of
appropriate USDA officials in an expeditious manner. (The term good
faith effort to comply with the statute, regulation, contract, or
agreement
[[Page 2480]]
that has been violated does not include any circumstance in which: the
violation was malicious; the violator had previously been found to
have violated the same statute, regulation, contract, or agreement;
or the violator had previously been informed that the conduct that
resulted in the violation is prohibited by statute, regulation,
contract, or agreement.)
e. Penalty. Any sanction that may be imposed directly by the
Secretary. (The term penalty does not include: liquidated damages;
any restitution for damages suffered by USDA; any action that either
permanently or temporarily excludes a small business from entering
into a transaction with USDA; or any sanction that may be imposed by
a USDA grantee or subgrantee even if the sanction may be imposed as
a result of conditions required by USDA for the grant.)
f. Penalty Modification Coordinator. The individual appointed by
a USDA agency in accordance with paragraph 5 of this Memorandum.
g. Secretary. The Secretary of the United States Department of
Agriculture or any individual to whom the Secretary delegates
authority.
h. Significant threat to health, safety, or the environment. Any
conduct that is likely to result in:
(1) death, injury, illness, or spread of diseases or pests to
any human, animal, or plant; or
(2) material harm to the environment.
i. Small business. Any sole proprietorship, joint venture,
partnership, corporation, association, or other legal entity that:
(1) employed 500 or fewer individuals at the time of the alleged
violation; or
(2) in the tax year immediately preceding the alleged violation,
had gross receipts of $1,000,000 or less.
j. USDA. The United States Department of Agriculture.
4. Waiver of Penalties
a. If a penalty may be imposed on the small business by the
Secretary, the administering agency shall determine whether the
penalty is a covered penalty. If the administering agency determines
the penalty to be a covered penalty, the administering agency shall:
(1) provide a copy of this Memorandum to the small business on
which the penalty may be imposed; and
(2) notify the small business that the imposition of all or a
portion of a penalty can be waived as agreed by the small business
and the agency, if corrective action can be achieved within the time
to be established in the sole discretion of the administering
agency. The penalty shall be waived, in whole or in part, if the
administering agency and the small business agree in writing as to
the waiver of the penalty, the administering agency establishes the
time within which correction action is to be taken, and the small
business takes corrective action within the time established by the
administering agency.
b. If the small business takes corrective action, but fails to
do so within the time established in accordance with paragraph 4a(2)
of this Memorandum by the administering agency, the administering
agency may reduce the amount of any monetary penalty that may be
imposed for the violation up to the amount spent by the small
business for corrective action. When determining whether to reduce a
monetary penalty in accordance with this subparagraph, the
administering agency shall take into account the time in which the
small business took corrective action and any difficulties the small
business encountered when doing so.
c. Any administering agency that waives a penalty in accordance
with paragraph 4a or 4b of this Memorandum shall issue a written
statement to the small business stating that corrective action has
been taken, that the imposition of all or a portion of the penalty
has been waived, the manner in which the penalty has been waived,
and the amount or type of any remaining penalty that may be imposed.
d. The use of appropriate alternative dispute resolution
techniques to assist in the determination whether a penalty will be
waived as authorized by this Memorandum is encouraged.
e. Each Under or Assistant Secretary shall submit a quarterly
report, starting January 1, 1996, to the Secretary of Agriculture
describing actions taken pursuant to this Memorandum. Each quarterly
report must include each penalty that has been waived during the
quarter, the manner in which each penalty has been waived, the
corrective action taken by the small business, and the amount or
type of any remaining penalty.
5. Penalty Modification Coordinator
Each administering agency that administers any program under
which the Secretary is permitted by law or has discretion to waive
the imposition of a penalty shall appoint a Penalty Modification
Coordinator who shall be responsible for the implementation of
paragraphs 4 and 6 of this Memorandum in the administering agency.
6. Notification
a. Each Penalty Modification Coordinator shall provide to each
employee of the administering agency who has authority to assess
penalties or to recommend the assessment of penalties:
(1) a copy of this Memorandum; and
(2) the name, address, and telephone number of the Penalty
Modification Coordinator, who shall be available to answer questions
concerning the implementation of this Memorandum posed by agency
employees.
b. Small businesses shall be notified of this Memorandum by
publication of this Memorandum in the Federal Register.
7. Reporting Frequency
a. Except as provided in paragraph 7c of this Memorandum, each
agency shall reduce by at least one-half the frequency with which
regularly scheduled reports required, by regulation or policy in
effect on April 21, 1995, must be provided to USDA.
b. Policy changes necessary to comply with paragraph 7a of this
Memorandum shall be implemented no later than November 1, 1995.
Regulatory changes necessary to comply with paragraph 7a of this
Memorandum shall be effective no later than January 1, 1996.
c. The frequency with which regularly scheduled reports shall be
provided to USDA shall not be reduced pursuant to paragraph 7a of
this Memorandum if:
(1) the frequency with which the report is provided to USDA is
required by statute;
(2) the report is required to be provided to USDA as a condition
of continued employment with USDA, execution of a contract with
USDA, or receipt of a loan, grant, guarantee, or benefit from USDA;
or
(3) the Secretary of Agriculture determines that the reduction
of the frequency with which the regularly scheduled report is
provided to USDA--is not legally permissible; would not adequately
protect health, safety, or the environment; would be inconsistent
with achieving regulatory flexibility or reducing regulatory
burdens; or would impede the effective administration of a USDA
program.
8. Effective Date
This Memorandum shall be effective on October 10, 1995.
9. Effect on Other Agency Penalty Waiver Policies
To the extent that any administering agency policy regarding the
waiver of covered penalties is inconsistent with this Memorandum,
the policy shall be revoked or modified to conform to this
Memorandum no later than November 1, 1995. To the extent that any
administering agency regulations regarding the waiver of covered
penalties is inconsistent with this Memorandum, the regulations
shall be revoked or modified to conform to this Memorandum no later
than January 1, 1996. This Memorandum does not affect any
administering agency policy to waive penalties that is not
inconsistent with this Memorandum.
10. Termination or Modification
This Memorandum may be terminated or modified by the Secretary
of Agriculture at any time.
11. Judicial Review
This Memorandum is intended only to improve the internal
management of USDA and does not create any right or benefit,
substantive or procedural, enforceable at law or equity by a party
against the United States, USDA, the officers or employees of the
United States or USDA, or any other person. Neither this Memorandum
nor the waiver of any penalty in accordance with this Memorandum
shall affect the date on which the imposition of a penalty shall be
considered to be final agency action for the purposes of judicial
review.
Done in Washington, D.C., this 22nd day of January, 1996.
Dan Glickman,
Secretary of Agriculture.
[FR Doc. 96-1415 Filed 1-25-96; 8:45 am]
BILLING CODE 3410-01-M