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DEPARTMENT OF LABOR
Employment and Training Administration
20 CFR Part 655
Office of Workers' Compensation Programs
20 CFR Parts 702, 725, 726
Office of the Secretary
29 CFR Part 5
41 CFR Part 50-201
Wage and Hour Division
29 CFR Parts 500, 501, 503, 530, 570, 578, 579, 801, 825
Occupational Safety and Health Administration
29 CFR Parts 1902, 1903
Employee Benefits Security Administration
29 CFR Part 2560, 2575, 2590
Mine Safety and Health Administration
30 CFR Part 100
RIN 1290-AA33
Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2018
AGENCY: Employment and Training Administration, Office of Workers' Compensation Programs, Office of the Secretary, Wage and Hour Division, Occupational Safety and Health Administration, Employee Benefits Security Administration, and Mine Safety and Health Administration, Department of Labor.
ACTION: Final rule.
SUMMARY: The U.S. Department of Labor (Department) is publishing this final rule to adjust for inflation the civil monetary penalties assessed or enforced in its regulations, 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 requires the Department to annually adjust its civil money penalty levels for inflation no later than January 15 of each year. 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 Department's 2018 annual adjustments for inflation to its civil monetary penalties.
DATES: This final rule is effective on January 2, 2018. As provided by the Inflation Adjustment Act, the increased penalty levels apply to any penalties assessed after January 2, 2018.
FOR FURTHER INFORMATION CONTACT: Erin FitzGerald, Senior Policy Advisor, U.S. Department of Labor, Room S-2312, 200 Constitution Avenue NW, Washington, DC 20210; telephone: (202) 693-5076 (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:
Preamble Table of Contents
I. Background
II. Adjustment for 2018
III. Paperwork Reduction Act
IV. Administrative Procedure Act
V. Executive Order 12866: Regulatory Planning and Review, Executive Order 13563: Improving Regulation and Regulatory Review, and Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs
VI. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act
VII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
B. Executive Order 13132: Federalism
C. Executive Order 13175: Indian Tribal Governments
D. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families
E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
F. Environmental Impact Assessment
G. Executive Order 13211: Energy Supply
H. Executive Order 12630: Constitutionally Protected Property Rights
I. Executive Order 12988: Civil Justice Reform Analysis
I. Background
On November 2, 2015, Congress enacted the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (collectively, the “Prior Inflation Adjustment Act”), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. 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, no later than January 15 of each year.
On July 1, 2016, the Department published an IFR that established the initial catch-up adjustment for most civil penalties that the Department administers and requested comments. See 81 FR 43430 (DOL IFR). On January 18, 2017, the Department published the final rule establishing the 2017 Annual Adjustment for those civil monetary penalties adjusted in the DOL IFR. See 82 FR 5373 (DOL 2017 Annual Adjustment). On July 1, 2016, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) (collectively, “the Departments”) jointly published an IFR that 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 program. See 81 FR 42983 (Joint IFR). On March 17, 2017, the Departments jointly published the final rule establishing the 2017 Annual Adjustment for the H-2B civil monetary penalties. See 82 FR 14147 (Joint 2017 Annual Adjustment). The Joint 2017 Annual Adjustment also explained that DOL would 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 82 FR 14147-48.
This rule implements the 2018 annual inflation adjustments, as required by the Inflation Adjustment Act, for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. The Inflation Adjustment Act provides that the increased penalty levels apply to any penalties assessed after the effective date of the increase. Pursuant to the Inflation Adjustment Act, this final rule is published notwithstanding Section 553 of the APA.
II. Adjustment for 2018
The Department has undertaken a thorough review of civil penalties administered by its various components pursuant to the Inflation Adjustment Act and in accordance with guidance issued by the Office of Management and Budget.1 The Department first identified the most recent penalty amount, which is the amount established by the 2017 annual adjustment as set forth in the DOL 2017 Annual Adjustment published on January 18, 2017, and the Joint 2017 Annual Adjustment published on March 17, 2017.
1 M-18-03, Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 15, 2017).
The Department is 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 2017 CPI-U and the October 2016 CPI-U. The cost-of-living adjustment multiplier for 2018, based on the Consumer Price Index (CPI-U) for the month of October 2017, not seasonally adjusted, is 1.02041.2 In order to compute the 2018 annual adjustment, the Department multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.02041, and rounded to the nearest dollar.
2 OMB provided the year-over-year multiplier, rounded to 5 decimal points. Id. at 1.
As provided by the Inflation Adjustment Act, the increased penalty levels apply to any penalties assessed after the effective date of this rule.3 Accordingly, for penalties assessed after January 2, 2018, whose associated violations occurred after November 2, 2015, the higher penalty amounts outlined in this rule will apply. The tables below demonstrate the penalty amounts that apply:
3 Appendix 1 consists of a table that provides ready access to key information about each penalty.
Violations occurring | Penalty assessed | Which penalty level applies |
---|---|---|
On or before November 2, 2015 | On or before August 1, 2016 | Pre-August 1, 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, but on or before March 17, 2017 | August 1, 2016 levels. |
After November 2, 2015 | After March 17, 2017 but on or before January 2, 2018 | March 17, 2017 levels. |
After November 2, 2015 | After January 2, 2018 | January 2, 2018 levels. |
Violations occurring | Penalty assessed | Which penalty level applies |
---|---|---|
On or before November 2, 2015 | On or before August 1, 2016 | Pre-August 1, 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, but on or before January 13, 2017 | August 1, 2016 levels. |
After November 2, 2015 | After January 13, 2017 but on or before January 2, 2018 | January 13, 2017 levels. |
After November 2, 2015 | After January 2, 2018 | January 2, 2018 levels. |
III. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the Department consider the impact of paperwork and other information collection burdens imposed on the public. The Department has determined that this final rule does not require any collection of information.
IV. Administrative Procedure Act
The Inflation Adjustment Act provides that agencies shall annually adjust civil monetary penalties for inflation notwithstanding Section 553 of the APA. Additionally, the Inflation Adjustment Act provides a nondiscretionary cost-of-living 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 30 days after publication in the Federal Register, are inapplicable.
V. Executive Order 12866: Regulatory Planning and Review, Executive Order 13563: Improving Regulation and Regulatory Review, and Executive Order 13771: Reducing Regulation and Controlling Regulatory Costs
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 Department has 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 Department, and not allowing the incentive to be diminished by inflation. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.
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.
This final rule is exempt from the requirements of the APA because the Inflation Adjustment Act directed the Department to issue the annual adjustments without regard to Section 553 of the APA. In that context, 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 Executive Order 13563.
VI. 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 Department to issue the annual adjustments without regard to Section 553 of the APA. Therefore, the requirements of the RFA applicable to notices of proposed rulemaking, 5 U.S.C. 603, do not apply to this rule. Accordingly, the Department is 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.
VII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. This Final Rule will not result in such an expenditure. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
B. Executive Order 13132: Federalism
Section 18 of the OSH Act (29 U.S.C. 667) requires OSHA-approved State Plans to have standards and an enforcement program that are at least as effective as federal OSHA's standards and enforcement program. OSHA-approved State Plans must have maximum and minimum penalty levels that are at least as effective as federal OSHA's per section 18(c)(2) of the OSH Act; 29 CFR 1902.4(c)(2)(xi); 1902.37(b)(12). State Plans are required to increase their penalties in alignment with OSHA's penalty increases to maintain at least as effective penalty levels.
State Plans are not required to impose monetary penalties on state and local government employers. See § 1956.11(c)(2)(x). Five (5) states and one territory have State Plans that cover only state and local government employees: Connecticut, Illinois, New Jersey, New York, Maine, and the Virgin Islands. Therefore, the requirements to increase the penalty levels do not apply to these State Plans. Twenty-one (21) states and one U.S. territory have State Plans that cover both private sector employees and state and local government employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. These states must increase their penalties for private-sector employers.
Other than as listed above, this final rule does not have federalism implications because it does 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. Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.
C. Executive Order 13175: Indian Tribal Governments
This final rule does not have “tribal implications” because it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes. Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.
D. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families
This final rule will have no effect on family well-being or stability, marital commitment, parental rights or authority, or income or poverty of families and children. Accordingly, section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires no further agency action, analysis, or assessment.
E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This final rule will have no adverse impact on children. Accordingly, Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, requires no further agency action or analysis.
F. Environmental Impact Assessment
A review of this final rule in accordance with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.; the regulations of the Council on Environmental Quality, 40 CFR 1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11, indicates that the final rule will not have a significant impact on the quality of the human environment. As a result, there is no corresponding environmental assessment or an environmental impact statement.
G. Executive Order 13211: Energy Supply
This final rule has been reviewed for its impact on the supply, distribution, and use of energy because it applies, in part, to the coal mining and uranium industries. MSHA has concluded that the adjustment of civil monetary penalties to keep pace with inflation and thus maintain the incentive for operators to maintain safe and healthful workplaces is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
This final rule has not been identified to have other impacts on energy supply. Accordingly, Executive Order 13211 requires no further Agency action or analysis.
H. Executive Order 12630: Constitutionally Protected Property Rights
This final rule will not implement a policy with takings implications. Accordingly, Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, requires no further agency action or analysis.
I. Executive Order 12988: Civil Justice Reform Analysis
This final rule was drafted and reviewed in accordance with Executive Order 12988, Civil Justice Reform. This final rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. The Department has determined that this final rule meets the applicable standards provided in section 3 of Executive Order 12988.
List of Subjects
20 CFR Part 655
Immigration, Penalties, Labor.
20 CFR Part 702
Administrative practice and procedure, Longshore and harbor workers, Penalties, Reporting and recordkeeping requirements, Workers' compensation.
20 CFR Part 725
Administrative practice and procedure, Black lung benefits, Coal miners, Penalties, Reporting and recordkeeping requirements.
20 CFR Part 726
Administrative practice and procedure, Black lung benefits, Coal miners, Mines, Penalties.
29 CFR Part 5
Administrative practice and procedure, Construction industry, Employee benefit plans, Government contracts, Law enforcement, Minimum wages, Penalties, Reporting and recordkeeping requirements.
29 CFR Part 500
Administrative practice and procedure, Aliens, Housing, Insurance, Intergovernmental relations, Investigations, Migrant labor, Motor vehicle safety, Occupational safety and health, Penalties, Reporting and recordkeeping requirements, Wages, Whistleblowing.
29 CFR Part 501
Administrative practice and procedure, Agriculture, Aliens, Employment, Housing, Housing standards, Immigration, Labor, Migrant labor, Penalties, Transportation, Wages.
29 CFR Part 503
Administrative practice and procedure, Aliens, Employment, Housing, Immigration, Labor, Penalties, Transportation, Wages.
29 CFR Part 530
Administrative practice and procedure, Clothing, Homeworkers, Indians—arts and crafts, Penalties, Reporting and recordkeeping requirements, Surety bonds, Watches and jewelry.
29 CFR Part 570
Child labor, Law enforcement, Penalties.
29 CFR Part 578
Penalties, Wages.
29 CFR Part 579
Child labor, Penalties.
29 CFR Part 801
Administrative practice and procedure, Employment, Lie detector tests, Penalties, Reporting and recordkeeping requirements.
29 CFR Part 825
Administrative practice and procedure, Airmen, Employee benefit plans, Health, Health insurance, Labor management relations, Maternal and child health, Penalties, Reporting and recordkeeping requirements, Teachers.
29 CFR Parts 1902 and 1903
Intergovernmental relations, Law enforcement, Occupational Safety and Health, Penalties.
29 CFR Part 2560
Employee benefit plans, Law enforcement, Penalties, Pensions, Reporting and recordkeeping requirements.
29 CFR Part 2575
Administrative practice and procedure, Employee benefit plans, Health care, Penalties, Pensions.
29 CFR Part 2590
Employee benefit plans, Health care, Health insurance, Penalties, Pensions, Reporting and recordkeeping requirements.
30 CFR Part 100
Mine safety and health, Penalties.
41 CFR Part 50-201
Child labor, Government procurement, Minimum wages, Occupational safety and health, Reporting and recordkeeping requirements.
Signed at Washington, DC, this 22nd day of December, 2017.
R. Alexander Acosta,
Secretary, U.S. Department of Labor.
[FR Doc. 2017-28224 Filed 12-29-17; 8:45 am]
BILLING CODE 4510-HL-P