Civil Monetary Penalties Inflation Adjustment, 74625-74630 [2011-30174]
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Rules and Regulations
Federal Register
Vol. 76, No. 231
Thursday, December 1, 2011
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
I. Background
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 280
[CBP Dec. No. 11–23]
RIN 1651–AA91
DEPARTMENT OF JUSTICE
Executive Office for Immigration
Review
8 CFR Part 1280
[EOIR Docket No. 172; AG Order No. 3309–
2011]
RIN 1125–AA69
Civil Monetary Penalties Inflation
Adjustment
U.S. Customs and Border
Protection, Department of Homeland
Security; Executive Office for
Immigration Review, Department of
Justice.
ACTION: Final rule.
AGENCIES:
This rule amends the
Department of Homeland Security
(DHS) regulations to adjust for inflation
certain civil monetary penalties
assessed under the Immigration and
Nationality Act (INA). The adjusted
penalties are calculated according to a
statutory formula, and will be effective
for violations occurring on or after the
effective date. This rule also amends the
Department of Justice (DOJ) regulations
to eliminate duplicative language and to
substitute cross-references to the
relevant regulations.
DATES: This rule will take effect on
January 3, 2012.
FOR FURTHER INFORMATION CONTACT:
Concerning amendments to 8 CFR
part 280: Joseph O’Donnell, U.S.
Customs and Border Protection, Office
of Field Operations, (202) 344–1691 (not
a toll-free call), r.odonnell@dhs.gov.
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SUMMARY:
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Concerning amendments to 8 CFR
part 1280: Robin M. Stutman, General
Counsel, Office of the General Counsel,
Executive Office for Immigration
Review, Department of Justice, 5107
Leesburg Pike, Suite 2600, Falls Church,
VA 22041. Contact Telephone Number:
(703) 305–0470 (not a-toll free call).
SUPPLEMENTARY INFORMATION:
The Homeland Security Act of 2002
transferred the functions of the
Immigration and Naturalization Service
(INS) to DHS. See Pub. L. 107–296, tit.
IV, subtits. D, E, F, 116 Stat. 2135, 2192.
DOJ and its administrative component,
the Executive Office for Immigration
Review (EOIR), retained the functions of
EOIR, see 6 U.S.C. 521, including
jurisdiction over regulations currently
codified in chapter V of title 8 of the
Code of Federal Regulations (CFR). On
February 28, 2003, the Attorney General
published a final rule in the Federal
Register that reflects the transfer of
authorities from the INS to DHS and the
current division of regulations between
DHS and EOIR. See 68 FR 9824–01 (Feb.
28, 2003). Pursuant to that rule, certain
parts of chapter I of title 8 of the CFR
(pertaining to DHS) were duplicated in
chapter V (pertaining to EOIR) to ensure
that all relevant authority relating to the
shared responsibilities was preserved.
See id. at 9825. Part of those duplicative
regulations pertain to civil monetary
penalties assessed under the INA.
The Federal Civil Penalties Inflation
Adjustment Act of 1990 (Adjustment
Act), Public Law 101–410, 104 Stat. 890,
28 U.S.C. 2461 note, provides for the
regular evaluation of civil monetary
penalties to ensure that the penalty
amounts continue to maintain their
deterrent effect and that the penalty
amounts owed to the Federal
Government are properly accounted for
and collected. The Debt Collection
Improvement Act of 1996 (Improvement
Act) amended 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.’’
Public Law 104–134, § 31001(s)(1), 110
Stat. 1321. The Improvement Act
requires inflation adjustments every
four years.
The penalties that may be assessed by
U.S. Customs and Border Protection
(CBP) upon carriers and persons who
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violate specified provisions of the INA
currently are enumerated in 8 CFR
280.53. This section is repeated in
chapter V of title 8 of the CFR at
§ 1280.53 in regulations relating to DOJ.
As discussed above, this duplication
was done in 2003 to ensure that all
relevant authority was preserved.
After the revisions in this final rule
take effect, the penalties for specified
violations of the INA will be
enumerated only in 8 CFR 280.53.
Those penalties will be for the following
violations of the INA:
• Section 231(g) of the INA, Penalties
for non-compliance with arrival and
departure manifest requirements for
passengers, crewmembers, or occupants
transported on commercial vessels or
aircraft arriving to or departing from the
United States.
• Section 234 of the INA, Penalties
for non-compliance with landing
requirements at designated ports of
entry for aircraft transporting aliens.
• Section 240B(d) of the INA,
Penalties for failure to depart
voluntarily.
• Section 243(c)(1) of the INA,
Penalties for violations of removal
orders relating to aliens transported on
vessels or aircraft under section 241(d)
of the INA or for costs associated with
removal under section 241(e) of the INA
and penalties for failure to remove alien
stowaways under section 241(d)(2) of
the INA.
• Section 251(d) of the INA, Penalties
for failure to report an illegal landing or
desertion of alien crewmen, and for
each alien not reported on arrival or
departure manifest and lists in
accordance with section 251 of the INA
and penalties for use of alien crewmen
for longshore work in violation of
section 251(d) of the INA.
• Section 254(a) of the INA, Penalties
for failure to control alien crewmen.
• Section 255 of the INA, Penalties
for employment on passenger vessels of
aliens afflicted with certain disabilities.
• Section 256 of the INA, Penalties
for discharge of alien crewmen.
• Section 257 of the INA, Penalties
for bringing into the United States alien
crewmen with intent to evade
immigration laws.
• Section 271(a) of the INA, Penalties
for failure to prevent the unauthorized
landing of aliens.
• Section 272(a) of the INA, Penalties
for bringing to the United States aliens
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subject to denial of admission on a
health-related ground.
• Section 273(b) of the INA, Penalties
for bringing to the United States aliens
without required documentation.
• Section 274D of the INA, Penalties
for failure to depart.
• Section 275(b) of the INA, Penalties
for improper entry.
The penalty amounts for the
violations of the INA enumerated in 8
CFR 280.53 were last adjusted for
inflation in 1999, when DOJ published
a final rule in the Federal Register, in
accordance with the Adjustment and
Improvement Acts. See 64 FR 47099
(Aug. 30, 1999). The final rule, however,
did not adjust the penalties for certain
violations of the INA that had only been
in effect since 1996. DOJ noted at that
time that the ‘‘[p]enalties not being
adjusted by this rule will be adjusted, if
appropriate, during the next adjustment
required by the Debt Collection
Improvement Act.’’ Id. at 47100. DOJ
listed those penalties under paragraph
(d) of 8 CFR 280.53, including for
violations of sections 240B(d),
243(c)(1)(A) and (B), 274D, and 275(b) of
the INA.
This final rule reflects compliance
with Congress’s mandate to adjust civil
penalties for inflation. Congress has
detailed the method for calculating
inflation adjustments. Section 5(a) of the
Adjustment Act provides that the
inflation adjustment shall be
determined by increasing the maximum
civil penalty or the range of minimum
and maximum civil monetary penalties,
as applicable, for each civil monetary
penalty by the cost-of-living adjustment,
as defined in section 5(b). See 5 U.S.C.
2461 note. The cost-of-living adjustment
is defined in section 5(b) as the
percentage (if any) by which—
(1) The Consumer Price Index for the
month of June of the calendar year
preceding the adjustment, exceeds
(2) The Consumer Price Index for the
month of June of the calendar year in
which the civil monetary penalty was
last set or adjusted pursuant to law.
Id. Section 3(3) of the Adjustment Act
defines ‘‘Consumer Price Index’’ to
mean the Consumer Price Index for allurban consumers [‘CPI–U’] published by
the Department of Labor. Id. The CPI–
U is accordingly used for all
calculations in this final rule.
Section 5(a) of the Adjustment Act
further provides that any increase
required by the cost-of-living
adjustment is subject to rounding
according to the following standards:
• For penalties less than or equal to
$100, increases are rounded to multiples
of $10;
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• For penalties greater than $100 but
less than or equal to $1,000, increases
are rounded to multiples of $100;
• For penalties greater than $1,000
but less than or equal to $10,000,
increases are rounded to multiples of
$1,000;
• For penalties greater than $10,000
but less than or equal to $100,000,
increases are rounded to multiples of
$5,000;
• For penalties greater than $100,000
but less than or equal to $200,000,
increases are rounded to multiples of
$10,000; and
• For penalties greater than $200,000,
increases are rounded to multiples of
$25,000.
See id.
In 2002, after the publication of DOJ’s
final rule, Congress redesignated 8
U.S.C. 1221(d) (section 231(d) of the
INA) as 8 U.S.C. 1221(g) (section 231(g)
of the INA) and increased the penalty
for noncompliance from $300 per
person to $1,000 per person. See Public
Law 107–173, tit. IV, § 402(c), 116 Stat.
559. For that reason, the penalty in
section 231(g) of the INA, which is
currently listed as corresponding to
section 231(d) in 8 CFR 280.53(c)(1) and
8 CFR 1280.53(c)(1) as $330 per person,
has been superseded by the subsequent
legislation and is currently $1,000 per
person.
II. Summary of the Calculations
In this final rule, DHS is adjusting the
civil monetary penalty amounts
specified in 8 CFR 280.53, as well as in
section 231(g) of the INA (8 U.S.C.
1221(g)), relating to penalties imposed
for various violations of the INA, in
accordance with the cost-of-living
adjustment formula and the rounding
provisions.
To explain how we calculated the
inflation increase adjustment for those
penalties that were previously adjusted
in 1999, as adjusted for cost-of-living,
we will use the current penalty in
section 234 of the INA (8 U.S.C. 1224),
listed in 8 CFR 280.53(c)(2), as an
example.
First, we must determine the CPI
factor. Because we are adjusting the
civil monetary penalty in 2011 and the
penalty was last adjusted in 1999, we
use the CPI–U for June of 2010 (217.965)
and the CPI–U for June of 1999 (166.2).
We calculate the CPI factor by
subtracting the CPI–U for June of 1999
(166.2) from the CPI–U for June of 2010
(217.965) and then dividing by the CPI–
U for June of 1999 (166.2). The result is
31.15%.
Second, to calculate the raw increase
for each civil penalty (before rounding),
we multiply the current penalty by the
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CPI factor. In our example, we multiply
$2,200 by 31.15%, which equals
$685.30.
In the third step, we round the raw
increase according to the rules in
section 5(a) of the Adjustment Act.
Under these rules, because the current
penalty ($2,200) is greater than $1,000,
but less than or equal to $10,000, we
round the raw increase ($685.30) to the
nearest multiple of $1,000. The result is
a rounded increase of $1,000.
In the fourth and final step, we add
the rounded increase ($1,000) to the
current penalty ($2,200). Therefore, in
our first example, the adjusted penalty
for section 234 of the INA is $3,200.
To explain how we calculated the
inflation increase adjustment for the
penalty in section 231(g) of the INA (8
U.S.C. 1221(g)), which was set by
legislation in 2002, we first must
determine the CPI factor. Because we
are adjusting the civil monetary penalty
in 2011 and the penalty in section
231(g) was set in 2002, we must use the
CPI–U for June of 2010 (217.965) and for
June of 2002 (179.9). We calculate the
CPI factor by subtracting the CPI–U for
June of 2002 (179.9) from the CPI–U for
June of 2010 (217.965) and then
dividing by the CPI–U for June of 2002
(179.9). The result is 21.16%.
Second, to calculate the raw increase
(before rounding), we multiply the
current penalty by the CPI factor. Here,
we multiply $1,000 by 21.16%, which
equals $211.60.
In the third step, we round the raw
increase according to the rules in
section 5(a) of the Adjustment Act.
Since the current penalty ($1,000) is
greater than $100, but less than or equal
to $1,000, we round to the nearest
multiple of $100, which makes the
rounded increase $200.
In the fourth and final step, we add
the rounded increase ($200) to the
current penalty ($1,000). Therefore,
here, the adjusted penalty for section
231(g) would increase to $1,200.
However, section 31001(s)(2) of the
Improvement Act provides that the
initial adjustment of a civil monetary
penalty may not exceed 10% of such
penalty. Because the penalty in section
231(g) was set by legislation in 2002, it
has not been previously adjusted;
therefore, the 10% statutory cap applies.
To apply the statutory cap, we must
calculate 10% of the penalty. To
calculate the statutory cap for the
penalty, we take 10% of $1,000, which
equals $100. We then add that result to
the current penalty, $1,000. The result
is $1,100. Because the adjusted penalty
is higher than the 10% statutory cap, the
10% statutory cap must be used.
Therefore, the adjusted civil monetary
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penalty for violations of section 231(g)
is $1,100.
Because DHS is also adjusting certain
other penalties for the first time
(namely, the penalties set forth in
sections 240B(d), 243(c)(1)(A) and (B),
274D, and 275(b) of the INA), those
increases are also subject to the 10%
statutory cap. Accordingly, we must
first apply the normal formula and then,
if necessary, apply the statutory cap.
To explain our calculations for
adjusting the civil monetary amounts for
those penalties that are being adjusted
for the first time, we will use section
240B(d) of the INA (8 U.S.C. 1229c(d))
as our example. Section 240B(d)
provides that each alien who fails to
depart the U.S. voluntarily after being
permitted to do so is liable for a $1,000
minimum and a $5,000 maximum
penalty.
First, we must determine the CPI
factor. The civil monetary penalty was
enacted in 1996, so we must use the
CPI–U for June of 1996 (156.7). We
calculate the CPI factor by subtracting
the CPI–U for June of 1996 (156.7) from
the CPI–U for June of 2010 (217.965)
and then dividing by the CPI–U for June
of 1996 (156.7). The result is 39.10%.
Second, to calculate the raw increase
(before rounding), we multiply the
current penalty by the CPI factor. For
the minimum penalty, the raw increase
is calculated by multiplying $1,000 by
39.10%, which is $391.00. For the
maximum penalty, we multiplied
$5,000 by 39.10%, which equals
$1,955.00.
In the third step, we round the raw
increase according to the rules in
section 5(a) of the Adjustment Act and
then add this rounded increase to the
current penalty. In this instance, the raw
increase for the minimum penalty
($391.00) rounds to $400, resulting in an
adjusted penalty of $1,400. For the
maximum penalty, the raw increase
($1,955.00) rounds to $2,000, resulting
in an adjusted penalty of $7,000.
However, as stated above, under section
31001(s)(2) of the Improvement Act, the
initial adjustment of a civil monetary
penalty may not exceed 10% of such
penalty.
To apply the statutory cap, we must
calculate 10% of the minimum and
maximum penalties. To calculate the
statutory cap for the minimum penalty,
we take 10% of $1,000, which equals
$100. We then add that result to the
current minimum, $1,000. The result is
$1,100. We follow the same steps to
calculate the maximum statutory
penalty: We take 10% of $5,000, which
equals $500. We then add that number
($500) to the current maximum, $5,000.
The result is $5,500. Because the
adjusted penalties are higher than the
10% statutory cap, the 10% statutory
cap must be used. Therefore, the
INA § Statute
Current
penalty
Year last
adjusted
INA § 231(g); 8 U.S.C.
1221(g).
INA § 234; 8 U.S.C.
1224.
INA § 240B(d); 8 U.S.C.
1229c(d).
$1,000 ..........
Enacted in
2002.
1999 .............
$1,000 minimum/5,000
maximum.
INA § 243(c)(1)(A); 8
U.S.C. 1253(c)(1)(A).
INA § 243(c)(1)(B); 8
U.S.C. 1253(c)(1)(B).
INA § 251(d); 8 U.S.C.
1281(d).
$2,000 ..........
INA § 254(a); 8 U.S.C.
1284(a).
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CPI factor
(2011)
(%)
INA § 255; 8 U.S.C.
1285.
INA § 256; 8 U.S.C.
1286.
INA § 257; 8 U.S.C.
1287.
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$2,200 ..........
$5,000 ..........
$220 for each
alien not
reported/
$5,500 for
use of alien
crewman.
$550 minimum/
$3,300
maximum.
$1,100 ..........
$1,500 minimum/
$3,300
maximum.
$11,000 ........
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minimum and maximum adjusted civil
monetary penalties for violations of
section 240B(d) of the INA are $1,100
and $5,500, respectively.
III. Adjustment of Civil Monetary
Penalties
As shown above in the first example,
application of the cost-of-living
adjustment formula results in an
inflation adjustment of 31.15%, based
on a CPI–U of 217.965 for June 2010 and
a CPI–U of 166.2 for June 1999 (when
the last adjustment was made). This
results in new civil monetary penalties
for violations of sections 234, 251(d),
254(a), 257, 271(a), 272(a), and 273(b) of
the INA and for the maximum penalty
for violations of section 256 of the INA.
There will be no inflation adjustment to
the civil monetary penalty for violations
of section 255 or the minimum penalty
for violations of section 256 of the INA
because, due to rounding, the
application of the cost-of-living
adjustment formula results in the same
adjusted penalty as the current penalty,
as demonstrated in the chart below.
Additionally, there will be an inflation
adjustment to the civil monetary penalty
for violations of section 231(g) of the
INA. DHS has also adjusted the civil
monetary penalties for violations of
sections 240B(d), 243(c)(1), 274D, and
275(b) of the INA. The adjustments are
shown in the chart below:
Raw increase
(2011)
Rounder
Rounded
increase
21.16
$211.60 ................
$100 .............
$1,100.
31.15
$685.30 ................
10% statutory
cap.
1,000 ............
$1,000 ..........
$3,200.
Enacted in
1996.
39.10
$391.00 minimum/
$1,955.00 maximum.
10% statutory
cap.
$100 minimum/$500
maximum.
Enacted in
1996.
Enacted in
1996.
1999 .............
39.10
$782.00 ................
$200 .............
39.10
$1,955.00 .............
$500 .............
$5,500.
31.15
1999 .............
31.15
$68.53 for each
alien not reported/
$1,713.25 for
use of alien
crewman.
$171.33 minimum/
$1,027.95 maximum.
10% statutory
cap.
10% statutory
cap.
100 for each
alien not
reported/
1,000 for
use of alien
crewman.
100 minimum/
1,000 maximum.
$1,100 minimum/
$5,500
maximum.
$2,200.
1999 .............
31.15
$342.65 ................
1,000 ............
$100 for each
alien not
reported/
$2,000 for
use of alien
crewman.
$200 minimum/
$1,000
maximum.
$0 .................
$320 for each
alien not
reported;
$7,500 for
use of alien
crewman.
$750 minimum/
$4,300
maximum.
$1,100.
1999 .............
31.15
$467.25 minimum/
$1,027.95 maximum.
1,000 minimum/1,000
maximum.
$0 minimum/
$1,000
maximum.
1999 .............
31.15
$3,426.50 .............
5,000 ............
$5,000 ..........
$1,500 minimum/
$4,300
maximum.
$16,000.
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Adjusted
penalty
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INA § Statute
INA § 271(a); 8 U.S.C.
1321(a).
INA § 272(a); 8 U.S.C.
1322(a).
INA § 273(b); 8 U.S.C.
1323(b).
INA § 274D; 8 U.S.C.
1324d.
INA § 275(b); 8 U.S.C.
1325(b).
Current
penalty
Year last
adjusted
$3,300 ..........
1999 .............
$3,300 ..........
Raw increase
(2011)
Rounder
Rounded
increase
31.15
$1,027.95 .............
1,000 ............
$1,000 ..........
$4,300.
1999 .............
31.15
$1,027.95 .............
1,000 ............
$1,000 ..........
$4,300.
$3,300 ..........
1999 .............
31.15
$1,027.95 .............
1,000 ............
$1,000 ..........
$4,300.
$500 .............
Enacted in
1996.
Enacted in
1996.
39.10
$195.50 ................
$50 ...............
$550.
39.10
$19.55 minimum/
$97.75 maximum.
10% statutory
cap.
10% statutory
cap.
$5 minimum/
$25 maximum.
$55 minimum/
$275 maximum.
$50 minimum/
$250 maximum.
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The increased penalty amounts will
apply only to violations that occur on or
after the effective date of this rule. For
violations that occurred before the
effective date, the current penalties
listed as the first amount in the
regulation (and shown in the chart
above) will apply.
DHS is amending 8 CFR 280.53(c) to
adjust the listed penalty amounts
pursuant to the statutory formula
discussed above. DHS is also amending
8 CFR 280.53(c) to add to the list those
civil monetary penalties that are being
adjusted for the first time. These include
the penalties prescribed in sections
240B(d), 243(c)(1), 274D, and 275(b) of
the INA. These penalties were
previously listed in § 280.53(d), entitled,
‘‘Identification of sections requiring no
adjustment to penalties.’’ Because these
penalties will be incorporated in 8 CFR
280.53(c) in the final rule, DHS is
removing 8 CFR 280.53(d).
IV. Conforming Changes to DHS
Regulations
As explained further in the following
section discussing changes to the DOJ
regulations, part 280 contains two
existing regulations (last amended in
1989), that have never been updated to
reflect subsequent changes in the
relevant regulatory provisions. DHS is
making two technical, conforming
amendments to provide revised
language referring to the correct, current
regulatory provisions. Sections
280.13(b) and 280.51(c) are being
revised to delete the phrase ‘‘an appeal
may be taken to the Board of
Immigration Appeals (Board) within 15
days after the mailing of the notification
of decision as provided in part 3 of this
chapter’’ and to substitute the phrase
‘‘an appeal may be taken to the Board
as provided in 8 CFR part 1003.’’
V. Changes to DOJ Regulations
DOJ has concluded that it is not
necessary to retain the provisions of 8
CFR 1280.53 to reflect the inflation
adjustments to the penalties imposed by
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(2011)
(%)
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DHS. Section 1280.53, which, as noted
above, simply reproduces the DHS
regulations at 8 CFR 280.53, was
promulgated in 2003 in connection with
the transfer of authority from the former
INS to DHS. See 68 FR 9824 (Feb. 28,
2003). To ensure that all relevant
authority relating to the shared
responsibilities of DHS and DOJ was
preserved, DOJ duplicated in their
entirety the regulations in 8 CFR 280
into new part 1280 so that these
provisions would also continue to be a
part of the DOJ regulations. See id. at
9827. Following the transfer of
authority, the Board retained appellate
authority to review DHS decisions
involving certain administrative fines
and penalties listed in 8 CFR 280.53.
See 8 CFR 1003.1(b)(4). Because the
Board’s appellate authority to review
DHS decisions involving the penalty
provisions set forth in 8 CFR 280.53 is
provided in 8 CFR part 1003 and
because the duplicative language in 8
CFR 1280.53 does not add anything to
the existing regulatory provisions, DOJ
is removing § 1280.53 to eliminate the
duplicative language.
Upon review of the remaining
provisions in part 1280 other than
§ 1280.53, DOJ has concluded that these
other provisions do not need to be
retained in the EOIR regulations either.
These other provisions in part 1280
duplicate regulatory provisions in 8 CFR
280 and almost all of them relate solely
to the authority of DHS to impose fines
and civil monetary penalties. It is
unnecessary to duplicate in the EOIR
regulations the text of provisions that
pertain to DHS’s internal authority.
There are two provisions in part 1280
relating directly to the authority of the
Board, §§ 1280.13(b) and 1280.51(c),
each of which provides that ‘‘an appeal
may be taken to the Board [from DHS’s
decision] within 15 days after the
mailing of the notification of decision as
provided in part 3 of this chapter.’’
These two provisions, and the
corresponding provisions in part 280
from which they were taken, have not
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Adjusted
penalty
been substantively revised since 1989
and have long been out-of-date. Sections
1280.13(b) and 1280.51(c) still refer to 8
CFR part 3, even though the relevant
provisions of that part were
redesignated as part 1003 in 2003, as
discussed above. More significantly, the
current language in §§ 1280.13(b) and
1280.51(c) (and the corresponding
language in §§ 280.13(b) and 280.51(c)
of the DHS regulations) refers to a 15day period for the filing of an appeal to
the Board. Those provisions have never
been revised to conform to the
regulatory amendments that were made
years ago to extend the period for filing
an appeal to the Board from a DHS
decision to 30 days, as is provided in
§ 1003.3(a)(2). See 67 FR 54878, 54904
(Aug. 26, 2002). These provisions
accordingly need to be removed from
part 1280 to avoid confusion given that
the controlling regulations relating to
the Board’s appellate review are set
forth in § 1003.3.
For these reasons, DOJ is removing all
of the current provisions in part 1280
and adding a new § 1280.1, which crossreferences the DHS regulations in 8 CFR
part 280 and the EOIR regulations in 8
CFR part 1003 governing the appellate
authority of the Board. The removal of
these duplicative regulatory provisions
does not affect the current legal regime
or the authority of the Board to
adjudicate appeals from DHS decisions
imposing fines and civil penalties under
8 CFR part 280.
DOJ has already made similar changes
to its regulations at 8 CFR part 1274a,
addressing control of employment of
aliens. See 76 FR 16525 (Mar. 24, 2011);
74 FR 2337, 2339 (Jan. 15, 2009). There,
DOJ removed duplicative regulations in
part 1274a, and replaced them with a
new § 1274a.1 that contains a crossreference to the DHS regulations at 8
CFR part 274a. A statement was added
indicating that these DHS regulations
apply, to the extent relevant, in
proceedings before EOIR. The changes
that DOJ is making to 8 CFR part 1280
in this final rule are modeled on the
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changes DOJ previously made to 8 CFR
part 1274a in an analogous context.
These changes to part 1280 do not alter
the current legal regime because the
regulations in part 1280, which have
been applicable to the Board, merely
duplicate the existing regulations in part
280.
VI. Regulatory Analyses
A. Administrative Procedure Act (APA),
5 U.S.C. 553
This final rule is being promulgated to
ensure that the amount of civil penalties
assessed or enforced by DHS reflect the
statutorily mandated ranges as adjusted
for inflation. Pursuant to 5 U.S.C.
553(b)(3)(B), the Secretary and the
Attorney General find that good cause
exists for immediate implementation of
this final rule without prior notice and
comment because it would be
unnecessary to delay publication of this
rule in final form, pending notice and
an opportunity for public comment.
This rule is a nondiscretionary
ministerial action as the calculations of
the adjustments follow the
mathematical formula set forth in
section 5 of the Adjustment Act, as
amended. In addition, the other changes
to part 1280 do not alter the current
legal requirements or the authority of
the Board to adjudicate appeals from
DHS decisions imposing fines and
penalties under 8 CFR part 280 because
the regulations in part 1280 merely
duplicate the existing regulations in part
280. For these reasons, notice and
comment would be unnecessary.
B. Executive Order 12866 and
Regulatory Flexibility Act
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This final rule does not meet the
criteria of a ‘‘significant regulatory
action’’ as specified 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.
Furthermore, the Regulatory Flexibility
Act applies only to rules for which an
agency publishes a general notice of
proposed rulemaking pursuant to 5
U.S.C. 553(b). See 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act does not
apply to this final rule because a notice
of proposed rulemaking is not required
for the reasons stated above.
C. Executive Order 13132: Federalism
This final 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 the government. Therefore, in
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accordance with Executive Order 13132,
it is determined that this final rule does
not have sufficient federalism
implications to warrant a preparation of
a Federalism Assessment.
D. Unfunded Mandates Reform Act of
1995
This final 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 will not
significantly or uniquely affect small
governments. Therefore, no actions are
necessary under the Unfunded
Mandates Reform Act of 1995.
E. Paperwork Reduction Act
The provisions of the Paperwork
Reduction Act of 1995, 44 U.S.C.
chapter 35, and its implementing
regulations, 5 CFR part 1320, do not
apply to this final rule because there are
no new or revised recordkeeping or
reporting requirements triggered by this
final rule.
F. Executive Order 12988: Civil Justice
Reform
This rule meets the applicable
standards set forth in sections 3(a) and
3(b)(2) of Executive Order 12988.
VII. Signing Authority
This amendment to the regulations is
being issued in accordance with 8
U.S.C. 1103 pertaining to the authority
of the Secretary of Homeland Security
(or his/her delegate) and the Attorney
General (or his/her delegate) to
prescribe regulations regarding
immigration and nationality.
List of Subjects
8 CFR Part 280
Administrative practice and
procedure, Immigration, and Penalties.
8 CFR Part 1280
Administrative practice and
procedure, Immigration, and Penalties.
Department of Homeland Security
8 CFR CHAPTER I
For the reasons stated in the
preamble, the Secretary amends part
280 of title 8 of the Code of Federal
Regulations as set forth below.
PART 280—IMPOSITION AND
COLLECTION OF FINES
1. The authority citation for part 280
is revised to read as follows:
■
Authority: 8 U.S.C. 1103, 1221, 1223,
1227, 1229, 1253, 1281, 1283, 1284, 1285,
1286, 1322, 1323, 1330; 66 Stat. 173, 195,
197, 201, 203, 212, 219, 221–223, 226, 227,
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Fmt 4700
Sfmt 4700
74629
230; Pub. L. 101–410, 104 Stat. 890, as
amended by Pub. L. 104–134, 110 Stat. 1321.
§ 280.13
[Amended]
2. In § 280.13, the last sentence of
paragraph (b) is amended by removing
the phrase ‘‘an appeal may be taken to
the Board within 15 days after the
mailing of the notification of decision as
provided in part 3 of this chapter’’ and
adding in its place the phrase ‘‘an
appeal may be taken to the Board as
provided in 8 CFR part 1003’’.
■
§ 280.51
[Amended]
3. In § 280.51, the last sentence of
paragraph (c) is amended by removing
the phrase ‘‘an appeal may be taken to
the Board within 15 days after the
mailing of the notification of decision as
provided in part 3 of this chapter’’ and
adding in its place the phrase ‘‘an
appeal may be taken to the Board as
provided in 8 CFR part 1003’’.
■ 4. Section 280.53 is revised to read as
follows:
■
§ 280.53 Civil monetary penalties inflation
adjustment.
(a) In general. In accordance with the
requirements of the Federal Civil
Penalties Inflation Adjustment Act of
1990, Public Law 101–410, 104 Stat.
890, as amended by the Debt Collection
Improvement Act of 1996, Public Law
104–34, 110 Stat. 1321, the civil
monetary penalties provided by law
within the jurisdiction of the
Department of Homeland Security
(DHS) and listed in paragraph (c) of this
section are adjusted as set forth in this
section, effective for violations
occurring on or after January 3, 2012.
(b) Calculation of adjustment. (1) The
inflation adjustments described in
paragraph (c) of this section were
determined by increasing the maximum
civil monetary penalty or the range of
minimum and maximum civil monetary
penalties, as applicable, for each civil
monetary penalty assessed or enforced
by DHS by the cost-of-living adjustment
as that term is defined by the Federal
Civil Penalties Inflation Adjustment Act
of 1990, Public Law 101–410. Any
increase so determined was rounded to
the nearest—
(i) Multiples of $10 in the case of
penalties less than or equal to $100;
(ii) Multiples of $100 in the case of
penalties greater than $100 but less than
or equal to $1,000;
(iii) Multiples of $1,000 in the case of
penalties greater than $1,000 but less
than or equal to $10,000;
(iv) Multiples of $5,000 in the case of
penalties greater than $10,000 but less
than or equal to $100,000;
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(v) Multiples of $10,000 in the case of
penalties greater than $100,000 but less
than or equal to $200,000; and
(vi) Multiples of $25,000 in the case
of penalties greater than $200,000.
(2) Notwithstanding the provisions of
paragraph (b)(1) of this section, the
initial adjustment for each penalty is
capped at 10%.
(c) Adjustment to penalties. The civil
monetary penalties provided by law
within the jurisdiction of DHS, as set
forth in this paragraph (c)(1) through
(14), are adjusted in accordance with the
inflation adjustment procedures
prescribed in section 5 of the Federal
Civil Penalties Inflation Adjustment Act
of 1990, Public Law 101–410, effective
for violations occurring on or after
January 3, 2012 as follows:
(1) Section 231(g) of the Act, Penalties
for non-compliance with arrival and
departure manifest requirements for
passengers, crewmembers, or occupants
transported on commercial vessels or
aircraft arriving to or departing from the
United States: From $1,000 to $1,100.
(2) Section 234 of the Act, Penalties
for non-compliance with landing
requirements at designated ports of
entry for aircraft transporting aliens:
From $2,200 to $3,200.
(3) Section 240B(d) of the Act,
Penalties for failure to depart
voluntarily: From $1,000 minimum/
$5,000 maximum to $1,100 minimum/
$5,500 maximum.
(4) Section 243(c)(1) of the Act,
Penalties for violations of removal
orders relating to aliens transported on
vessels or aircraft, under section 241(d)
of the Act, or for costs associated with
removal under section 241(e) of the Act,
from $2,000 to $2,200; and penalties for
failure to remove alien stowaways under
section 241(d)(2), from $5,000 to $5,500.
(5) Section 251(d) of the Act, Penalties
for failure to report an illegal landing or
desertion of alien crewmen, and for
each alien not reported on arrival or
departure manifest and lists in
accordance with section 251 of the Act:
From $220 to $320; and penalties for
use of alien crewmen for longshore
work in violation of section 251(d) of
the Act: From $5,500 to $7,500.
(6) Section 254(a) of the Act, Penalties
for failure to control alien crewmen:
From $550 minimum/$3,300 maximum
to $750 minimum/$4,300 maximum.
(7) Section 255 of the Act, Penalties
for employment on passenger vessels of
aliens afflicted with certain disabilities:
Remains at $1,100.
(8) Section 256 of the Act, Penalties
for discharge of alien crewmen: From
$1,500 minimum/$3,300 maximum to
$1,500 minimum/$4,300 maximum.
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17:21 Nov 30, 2011
Jkt 226001
(9) Section 257 of the Act, Penalties
for bringing into the United States alien
crewmen with intent to evade
immigration laws: From $11,000
maximum to $16,000 maximum.
(10) Section 271(a) of the Act,
Penalties for failure to prevent the
unauthorized landing of aliens: From
$3,300 to $4,300.
(11) Section 272(a) of the Act,
Penalties for bringing to the United
States aliens subject to denial of
admission on a health-related ground:
From $3,300 to $4,300.
(12) Section 273(b) of the Act,
Penalties for bringing to the United
States aliens without required
documentation: From $3,300 to $4,300.
(13) Section 274D of the Act, Penalties
for failure to depart: From $500 to $550,
for each day the alien is in violation.
(14) Section 275(b) of the Act,
Penalties for improper entry: From $50
minimum/$250 maximum to $55
minimum/$275 maximum, for each
entry or attempted entry.
280 governing the imposition of certain
fines and civil monetary penalties are
applicable in such proceedings before
the Board.
(c) Civil monetary penalties under
sections 274A, 274B, or 274C. For
regulations relating to civil monetary
penalties imposed under sections 274A,
274B, or 274C of the Act, see 8 CFR
parts 274a and 1274a and 28 CFR part
68.
■ 3. Sections 1280.2 through 1280.7 are
removed.
■ 4. Sections 1280.11 through 1280.15
are removed.
■ 5. Section 1280.21 is removed.
■ 6. Sections 1280.51 through 1280.53
are removed.
Janet Napolitano,
Secretary.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011–30174 Filed 11–30–11; 8:45 am]
BILLING CODE 4410–10–P
Department of Justice
8 CFR CHAPTER V
For the reasons stated in the
preamble, the Attorney General amends
part 1280 of title 8 of the Code of
Federal Regulations, as set forth below.
NUCLEAR REGULATORY
COMMISSION
PART 1280—IMPOSITION AND
COLLECTION OF FINES
[NRC–2008–0122]
1. The authority citation for part 1280
is revised to read as follows:
■
Authority: 8 U.S.C. 1103, 1221, 1223,
1227, 1229, 1253, 1281, 1283, 1284, 1285,
1286, 1322, 1323, 1330; 66 Stat. 173, 195,
197, 201, 203, 212, 219, 221–223, 226, 227,
230; Pub. L. 101–410, 104 Stat. 890, as
amended by Pub. L. 104–134, 110 Stat. 1321.
2. Section 1280.1 is revised to read as
follows:
■
§ 1280.1 Review of fines and civil
monetary penalties imposed by DHS.
(a) Applicable regulations. The
regulations of the Department of
Homeland Security (DHS) relating to the
imposition of certain fines and civil
monetary penalties under provisions of
the Immigration and Nationality Act,
including sections 231(g), 234, 240B(d),
241(d) and (e), 243(c)(1), 251(d), 254(a),
255, 256, 257, 271(a), 272(a), 273(b),
274D, and 275(b), are contained in 8
CFR part 280.
(b) Adjudication of civil monetary
penalty proceedings. The Board of
Immigration Appeals (Board) has
appellate authority to review DHS
decisions involving fines and civil
monetary penalties imposed under 8
CFR part 280, as provided under 8 CFR
part 1003. The regulations in 8 CFR part
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10 CFR Parts 50 and 52
RIN 3150–AI10
Making Changes to Emergency Plans
for Nuclear Power Reactors
Nuclear Regulatory
Commission.
ACTION: Regulatory guide; issuance.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing a new
regulatory guide (RG) 1.219, ‘‘Guidance
on Making Changes to Emergency Plans
for Nuclear Power Reactors.’’ This guide
describes a method that the NRC staff
considers acceptable to implement the
requirements that relate to emergency
preparedness and specifically to making
changes to emergency response plans.
DATES: December 1, 2011.
ADDRESSES: You can access publicly
available documents related to this
regulatory guide using the following
methods:
• NRC’s Public Document Room
(PDR): The public may examine and
have copied, for a fee, publicly available
documents at the NRC’s PDR, O1–F21,
One White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): Publicly available documents
created or received at the NRC are
available online in the NRC Library at
SUMMARY:
E:\FR\FM\01DER1.SGM
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]]>Agencies
[Federal Register Volume 76, Number 231 (Thursday, December 1, 2011)]
[Rules and Regulations]
[Pages 74625-74630]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-30174]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 76, No. 231 / Thursday, December 1, 2011 /
Rules and Regulations
[[Page 74625]]
DEPARTMENT OF HOMELAND SECURITY
8 CFR Part 280
[CBP Dec. No. 11-23]
RIN 1651-AA91
DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
8 CFR Part 1280
[EOIR Docket No. 172; AG Order No. 3309-2011]
RIN 1125-AA69
Civil Monetary Penalties Inflation Adjustment
AGENCIES: U.S. Customs and Border Protection, Department of Homeland
Security; Executive Office for Immigration Review, Department of
Justice.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Department of Homeland Security (DHS)
regulations to adjust for inflation certain civil monetary penalties
assessed under the Immigration and Nationality Act (INA). The adjusted
penalties are calculated according to a statutory formula, and will be
effective for violations occurring on or after the effective date. This
rule also amends the Department of Justice (DOJ) regulations to
eliminate duplicative language and to substitute cross-references to
the relevant regulations.
DATES: This rule will take effect on January 3, 2012.
FOR FURTHER INFORMATION CONTACT:
Concerning amendments to 8 CFR part 280: Joseph O'Donnell, U.S.
Customs and Border Protection, Office of Field Operations, (202) 344-
1691 (not a toll-free call), r.odonnell@dhs.gov.
Concerning amendments to 8 CFR part 1280: Robin M. Stutman, General
Counsel, Office of the General Counsel, Executive Office for
Immigration Review, Department of Justice, 5107 Leesburg Pike, Suite
2600, Falls Church, VA 22041. Contact Telephone Number: (703) 305-0470
(not a-toll free call).
SUPPLEMENTARY INFORMATION:
I. Background
The Homeland Security Act of 2002 transferred the functions of the
Immigration and Naturalization Service (INS) to DHS. See Pub. L. 107-
296, tit. IV, subtits. D, E, F, 116 Stat. 2135, 2192. DOJ and its
administrative component, the Executive Office for Immigration Review
(EOIR), retained the functions of EOIR, see 6 U.S.C. 521, including
jurisdiction over regulations currently codified in chapter V of title
8 of the Code of Federal Regulations (CFR). On February 28, 2003, the
Attorney General published a final rule in the Federal Register that
reflects the transfer of authorities from the INS to DHS and the
current division of regulations between DHS and EOIR. See 68 FR 9824-01
(Feb. 28, 2003). Pursuant to that rule, certain parts of chapter I of
title 8 of the CFR (pertaining to DHS) were duplicated in chapter V
(pertaining to EOIR) to ensure that all relevant authority relating to
the shared responsibilities was preserved. See id. at 9825. Part of
those duplicative regulations pertain to civil monetary penalties
assessed under the INA.
The Federal Civil Penalties Inflation Adjustment Act of 1990
(Adjustment Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461
note, provides for the regular evaluation of civil monetary penalties
to ensure that the penalty amounts continue to maintain their deterrent
effect and that the penalty amounts owed to the Federal Government are
properly accounted for and collected. The Debt Collection Improvement
Act of 1996 (Improvement Act) amended 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.'' Public Law 104-134, Sec. 31001(s)(1), 110 Stat. 1321. The
Improvement Act requires inflation adjustments every four years.
The penalties that may be assessed by U.S. Customs and Border
Protection (CBP) upon carriers and persons who violate specified
provisions of the INA currently are enumerated in 8 CFR 280.53. This
section is repeated in chapter V of title 8 of the CFR at Sec. 1280.53
in regulations relating to DOJ. As discussed above, this duplication
was done in 2003 to ensure that all relevant authority was preserved.
After the revisions in this final rule take effect, the penalties
for specified violations of the INA will be enumerated only in 8 CFR
280.53. Those penalties will be for the following violations of the
INA:
Section 231(g) of the INA, Penalties for non-compliance
with arrival and departure manifest requirements for passengers,
crewmembers, or occupants transported on commercial vessels or aircraft
arriving to or departing from the United States.
Section 234 of the INA, Penalties for non-compliance with
landing requirements at designated ports of entry for aircraft
transporting aliens.
Section 240B(d) of the INA, Penalties for failure to
depart voluntarily.
Section 243(c)(1) of the INA, Penalties for violations of
removal orders relating to aliens transported on vessels or aircraft
under section 241(d) of the INA or for costs associated with removal
under section 241(e) of the INA and penalties for failure to remove
alien stowaways under section 241(d)(2) of the INA.
Section 251(d) of the INA, Penalties for failure to report
an illegal landing or desertion of alien crewmen, and for each alien
not reported on arrival or departure manifest and lists in accordance
with section 251 of the INA and penalties for use of alien crewmen for
longshore work in violation of section 251(d) of the INA.
Section 254(a) of the INA, Penalties for failure to
control alien crewmen.
Section 255 of the INA, Penalties for employment on
passenger vessels of aliens afflicted with certain disabilities.
Section 256 of the INA, Penalties for discharge of alien
crewmen.
Section 257 of the INA, Penalties for bringing into the
United States alien crewmen with intent to evade immigration laws.
Section 271(a) of the INA, Penalties for failure to
prevent the unauthorized landing of aliens.
Section 272(a) of the INA, Penalties for bringing to the
United States aliens
[[Page 74626]]
subject to denial of admission on a health-related ground.
Section 273(b) of the INA, Penalties for bringing to the
United States aliens without required documentation.
Section 274D of the INA, Penalties for failure to depart.
Section 275(b) of the INA, Penalties for improper entry.
The penalty amounts for the violations of the INA enumerated in 8
CFR 280.53 were last adjusted for inflation in 1999, when DOJ published
a final rule in the Federal Register, in accordance with the Adjustment
and Improvement Acts. See 64 FR 47099 (Aug. 30, 1999). The final rule,
however, did not adjust the penalties for certain violations of the INA
that had only been in effect since 1996. DOJ noted at that time that
the ``[p]enalties not being adjusted by this rule will be adjusted, if
appropriate, during the next adjustment required by the Debt Collection
Improvement Act.'' Id. at 47100. DOJ listed those penalties under
paragraph (d) of 8 CFR 280.53, including for violations of sections
240B(d), 243(c)(1)(A) and (B), 274D, and 275(b) of the INA.
This final rule reflects compliance with Congress's mandate to
adjust civil penalties for inflation. Congress has detailed the method
for calculating inflation adjustments. Section 5(a) of the Adjustment
Act provides that the inflation adjustment shall be determined by
increasing the maximum civil penalty or the range of minimum and
maximum civil monetary penalties, as applicable, for each civil
monetary penalty by the cost-of-living adjustment, as defined in
section 5(b). See 5 U.S.C. 2461 note. The cost-of-living adjustment is
defined in section 5(b) as the percentage (if any) by which--
(1) The Consumer Price Index for the month of June of the calendar
year preceding the adjustment, exceeds
(2) The Consumer Price Index for the month of June of the calendar
year in which the civil monetary penalty was last set or adjusted
pursuant to law.
Id. Section 3(3) of the Adjustment Act defines ``Consumer Price
Index'' to mean the Consumer Price Index for all-urban consumers [`CPI-
U'] published by the Department of Labor. Id. The CPI-U is accordingly
used for all calculations in this final rule.
Section 5(a) of the Adjustment Act further provides that any
increase required by the cost-of-living adjustment is subject to
rounding according to the following standards:
For penalties less than or equal to $100, increases are
rounded to multiples of $10;
For penalties greater than $100 but less than or equal to
$1,000, increases are rounded to multiples of $100;
For penalties greater than $1,000 but less than or equal
to $10,000, increases are rounded to multiples of $1,000;
For penalties greater than $10,000 but less than or equal
to $100,000, increases are rounded to multiples of $5,000;
For penalties greater than $100,000 but less than or equal
to $200,000, increases are rounded to multiples of $10,000; and
For penalties greater than $200,000, increases are rounded
to multiples of $25,000.
See id.
In 2002, after the publication of DOJ's final rule, Congress
redesignated 8 U.S.C. 1221(d) (section 231(d) of the INA) as 8 U.S.C.
1221(g) (section 231(g) of the INA) and increased the penalty for
noncompliance from $300 per person to $1,000 per person. See Public Law
107-173, tit. IV, Sec. 402(c), 116 Stat. 559. For that reason, the
penalty in section 231(g) of the INA, which is currently listed as
corresponding to section 231(d) in 8 CFR 280.53(c)(1) and 8 CFR
1280.53(c)(1) as $330 per person, has been superseded by the subsequent
legislation and is currently $1,000 per person.
II. Summary of the Calculations
In this final rule, DHS is adjusting the civil monetary penalty
amounts specified in 8 CFR 280.53, as well as in section 231(g) of the
INA (8 U.S.C. 1221(g)), relating to penalties imposed for various
violations of the INA, in accordance with the cost-of-living adjustment
formula and the rounding provisions.
To explain how we calculated the inflation increase adjustment for
those penalties that were previously adjusted in 1999, as adjusted for
cost-of-living, we will use the current penalty in section 234 of the
INA (8 U.S.C. 1224), listed in 8 CFR 280.53(c)(2), as an example.
First, we must determine the CPI factor. Because we are adjusting
the civil monetary penalty in 2011 and the penalty was last adjusted in
1999, we use the CPI-U for June of 2010 (217.965) and the CPI-U for
June of 1999 (166.2). We calculate the CPI factor by subtracting the
CPI-U for June of 1999 (166.2) from the CPI-U for June of 2010
(217.965) and then dividing by the CPI-U for June of 1999 (166.2). The
result is 31.15%.
Second, to calculate the raw increase for each civil penalty
(before rounding), we multiply the current penalty by the CPI factor.
In our example, we multiply $2,200 by 31.15%, which equals $685.30.
In the third step, we round the raw increase according to the rules
in section 5(a) of the Adjustment Act. Under these rules, because the
current penalty ($2,200) is greater than $1,000, but less than or equal
to $10,000, we round the raw increase ($685.30) to the nearest multiple
of $1,000. The result is a rounded increase of $1,000.
In the fourth and final step, we add the rounded increase ($1,000)
to the current penalty ($2,200). Therefore, in our first example, the
adjusted penalty for section 234 of the INA is $3,200.
To explain how we calculated the inflation increase adjustment for
the penalty in section 231(g) of the INA (8 U.S.C. 1221(g)), which was
set by legislation in 2002, we first must determine the CPI factor.
Because we are adjusting the civil monetary penalty in 2011 and the
penalty in section 231(g) was set in 2002, we must use the CPI-U for
June of 2010 (217.965) and for June of 2002 (179.9). We calculate the
CPI factor by subtracting the CPI-U for June of 2002 (179.9) from the
CPI-U for June of 2010 (217.965) and then dividing by the CPI-U for
June of 2002 (179.9). The result is 21.16%.
Second, to calculate the raw increase (before rounding), we
multiply the current penalty by the CPI factor. Here, we multiply
$1,000 by 21.16%, which equals $211.60.
In the third step, we round the raw increase according to the rules
in section 5(a) of the Adjustment Act. Since the current penalty
($1,000) is greater than $100, but less than or equal to $1,000, we
round to the nearest multiple of $100, which makes the rounded increase
$200.
In the fourth and final step, we add the rounded increase ($200) to
the current penalty ($1,000). Therefore, here, the adjusted penalty for
section 231(g) would increase to $1,200. However, section 31001(s)(2)
of the Improvement Act provides that the initial adjustment of a civil
monetary penalty may not exceed 10% of such penalty. Because the
penalty in section 231(g) was set by legislation in 2002, it has not
been previously adjusted; therefore, the 10% statutory cap applies.
To apply the statutory cap, we must calculate 10% of the penalty.
To calculate the statutory cap for the penalty, we take 10% of $1,000,
which equals $100. We then add that result to the current penalty,
$1,000. The result is $1,100. Because the adjusted penalty is higher
than the 10% statutory cap, the 10% statutory cap must be used.
Therefore, the adjusted civil monetary
[[Page 74627]]
penalty for violations of section 231(g) is $1,100.
Because DHS is also adjusting certain other penalties for the first
time (namely, the penalties set forth in sections 240B(d), 243(c)(1)(A)
and (B), 274D, and 275(b) of the INA), those increases are also subject
to the 10% statutory cap. Accordingly, we must first apply the normal
formula and then, if necessary, apply the statutory cap.
To explain our calculations for adjusting the civil monetary
amounts for those penalties that are being adjusted for the first time,
we will use section 240B(d) of the INA (8 U.S.C. 1229c(d)) as our
example. Section 240B(d) provides that each alien who fails to depart
the U.S. voluntarily after being permitted to do so is liable for a
$1,000 minimum and a $5,000 maximum penalty.
First, we must determine the CPI factor. The civil monetary penalty
was enacted in 1996, so we must use the CPI-U for June of 1996 (156.7).
We calculate the CPI factor by subtracting the CPI-U for June of 1996
(156.7) from the CPI-U for June of 2010 (217.965) and then dividing by
the CPI-U for June of 1996 (156.7). The result is 39.10%.
Second, to calculate the raw increase (before rounding), we
multiply the current penalty by the CPI factor. For the minimum
penalty, the raw increase is calculated by multiplying $1,000 by
39.10%, which is $391.00. For the maximum penalty, we multiplied $5,000
by 39.10%, which equals $1,955.00.
In the third step, we round the raw increase according to the rules
in section 5(a) of the Adjustment Act and then add this rounded
increase to the current penalty. In this instance, the raw increase for
the minimum penalty ($391.00) rounds to $400, resulting in an adjusted
penalty of $1,400. For the maximum penalty, the raw increase
($1,955.00) rounds to $2,000, resulting in an adjusted penalty of
$7,000. However, as stated above, under section 31001(s)(2) of the
Improvement Act, the initial adjustment of a civil monetary penalty may
not exceed 10% of such penalty.
To apply the statutory cap, we must calculate 10% of the minimum
and maximum penalties. To calculate the statutory cap for the minimum
penalty, we take 10% of $1,000, which equals $100. We then add that
result to the current minimum, $1,000. The result is $1,100. We follow
the same steps to calculate the maximum statutory penalty: We take 10%
of $5,000, which equals $500. We then add that number ($500) to the
current maximum, $5,000. The result is $5,500. Because the adjusted
penalties are higher than the 10% statutory cap, the 10% statutory cap
must be used. Therefore, the minimum and maximum adjusted civil
monetary penalties for violations of section 240B(d) of the INA are
$1,100 and $5,500, respectively.
III. Adjustment of Civil Monetary Penalties
As shown above in the first example, application of the cost-of-
living adjustment formula results in an inflation adjustment of 31.15%,
based on a CPI-U of 217.965 for June 2010 and a CPI-U of 166.2 for June
1999 (when the last adjustment was made). This results in new civil
monetary penalties for violations of sections 234, 251(d), 254(a), 257,
271(a), 272(a), and 273(b) of the INA and for the maximum penalty for
violations of section 256 of the INA. There will be no inflation
adjustment to the civil monetary penalty for violations of section 255
or the minimum penalty for violations of section 256 of the INA
because, due to rounding, the application of the cost-of-living
adjustment formula results in the same adjusted penalty as the current
penalty, as demonstrated in the chart below. Additionally, there will
be an inflation adjustment to the civil monetary penalty for violations
of section 231(g) of the INA. DHS has also adjusted the civil monetary
penalties for violations of sections 240B(d), 243(c)(1), 274D, and
275(b) of the INA. The adjustments are shown in the chart below:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year last CPI factor Raw increase Rounded Adjusted
INA Sec. Statute Current penalty adjusted (2011) (%) (2011) Rounder increase penalty
--------------------------------------------------------------------------------------------------------------------------------------------------------
INA Sec. 231(g); 8 U.S.C. $1,000.......... Enacted in 2002. 21.16 $211.60......... 10% statutory $100............ $1,100.
1221(g). cap.
INA Sec. 234; 8 U.S.C. 1224 $2,200.......... 1999............ 31.15 $685.30......... 1,000........... $1,000.......... $3,200.
INA Sec. 240B(d); 8 U.S.C. $1,000 minimum/ Enacted in 1996. 39.10 $391.00 minimum/ 10% statutory $100 minimum/ $1,100 minimum/
1229c(d). 5,000 maximum. $1,955.00 cap. $500 maximum. $5,500
maximum. maximum.
INA Sec. 243(c)(1)(A); 8 $2,000.......... Enacted in 1996. 39.10 $782.00......... 10% statutory $200............ $2,200.
U.S.C. 1253(c)(1)(A). cap.
INA Sec. 243(c)(1)(B); 8 $5,000.......... Enacted in 1996. 39.10 $1,955.00....... 10% statutory $500............ $5,500.
U.S.C. 1253(c)(1)(B). cap.
INA Sec. 251(d); 8 U.S.C. $220 for each 1999............ 31.15 $68.53 for each 100 for each $100 for each $320 for each
1281(d). alien not alien not alien not alien not alien not
reported/$5,500 reported/ reported/1,000 reported/$2,000 reported;
for use of $1,713.25 for for use of for use of $7,500 for use
alien crewman. use of alien alien crewman. alien crewman. of alien
crewman. crewman.
INA Sec. 254(a); 8 U.S.C. $550 minimum/ 1999............ 31.15 $171.33 minimum/ 100 minimum/ $200 minimum/ $750 minimum/
1284(a). $3,300 maximum. $1,027.95 1,000 maximum. $1,000 maximum. $4,300
maximum. maximum.
INA Sec. 255; 8 U.S.C. 1285 $1,100.......... 1999............ 31.15 $342.65......... 1,000........... $0.............. $1,100.
INA Sec. 256; 8 U.S.C. 1286 $1,500 minimum/ 1999............ 31.15 $467.25 minimum/ 1,000 minimum/ $0 minimum/ $1,500 minimum/
$3,300 maximum. $1,027.95 1,000 maximum. $1,000 maximum. $4,300
maximum. maximum.
INA Sec. 257; 8 U.S.C. 1287 $11,000......... 1999............ 31.15 $3,426.50....... 5,000........... $5,000.......... $16,000.
[[Page 74628]]
INA Sec. 271(a); 8 U.S.C. $3,300.......... 1999............ 31.15 $1,027.95....... 1,000........... $1,000.......... $4,300.
1321(a).
INA Sec. 272(a); 8 U.S.C. $3,300.......... 1999............ 31.15 $1,027.95....... 1,000........... $1,000.......... $4,300.
1322(a).
INA Sec. 273(b); 8 U.S.C. $3,300.......... 1999............ 31.15 $1,027.95....... 1,000........... $1,000.......... $4,300.
1323(b).
INA Sec. 274D; 8 U.S.C. $500............ Enacted in 1996. 39.10 $195.50......... 10% statutory $50............. $550.
1324d. cap.
INA Sec. 275(b); 8 U.S.C. $50 minimum/$250 Enacted in 1996. 39.10 $19.55 minimum/ 10% statutory $5 minimum/$25 $55 minimum/
1325(b). maximum. $97.75 maximum. cap. maximum. $275 maximum.
--------------------------------------------------------------------------------------------------------------------------------------------------------
The increased penalty amounts will apply only to violations that
occur on or after the effective date of this rule. For violations that
occurred before the effective date, the current penalties listed as the
first amount in the regulation (and shown in the chart above) will
apply.
DHS is amending 8 CFR 280.53(c) to adjust the listed penalty
amounts pursuant to the statutory formula discussed above. DHS is also
amending 8 CFR 280.53(c) to add to the list those civil monetary
penalties that are being adjusted for the first time. These include the
penalties prescribed in sections 240B(d), 243(c)(1), 274D, and 275(b)
of the INA. These penalties were previously listed in Sec. 280.53(d),
entitled, ``Identification of sections requiring no adjustment to
penalties.'' Because these penalties will be incorporated in 8 CFR
280.53(c) in the final rule, DHS is removing 8 CFR 280.53(d).
IV. Conforming Changes to DHS Regulations
As explained further in the following section discussing changes to
the DOJ regulations, part 280 contains two existing regulations (last
amended in 1989), that have never been updated to reflect subsequent
changes in the relevant regulatory provisions. DHS is making two
technical, conforming amendments to provide revised language referring
to the correct, current regulatory provisions. Sections 280.13(b) and
280.51(c) are being revised to delete the phrase ``an appeal may be
taken to the Board of Immigration Appeals (Board) within 15 days after
the mailing of the notification of decision as provided in part 3 of
this chapter'' and to substitute the phrase ``an appeal may be taken to
the Board as provided in 8 CFR part 1003.''
V. Changes to DOJ Regulations
DOJ has concluded that it is not necessary to retain the provisions
of 8 CFR 1280.53 to reflect the inflation adjustments to the penalties
imposed by DHS. Section 1280.53, which, as noted above, simply
reproduces the DHS regulations at 8 CFR 280.53, was promulgated in 2003
in connection with the transfer of authority from the former INS to
DHS. See 68 FR 9824 (Feb. 28, 2003). To ensure that all relevant
authority relating to the shared responsibilities of DHS and DOJ was
preserved, DOJ duplicated in their entirety the regulations in 8 CFR
280 into new part 1280 so that these provisions would also continue to
be a part of the DOJ regulations. See id. at 9827. Following the
transfer of authority, the Board retained appellate authority to review
DHS decisions involving certain administrative fines and penalties
listed in 8 CFR 280.53. See 8 CFR 1003.1(b)(4). Because the Board's
appellate authority to review DHS decisions involving the penalty
provisions set forth in 8 CFR 280.53 is provided in 8 CFR part 1003 and
because the duplicative language in 8 CFR 1280.53 does not add anything
to the existing regulatory provisions, DOJ is removing Sec. 1280.53 to
eliminate the duplicative language.
Upon review of the remaining provisions in part 1280 other than
Sec. 1280.53, DOJ has concluded that these other provisions do not
need to be retained in the EOIR regulations either. These other
provisions in part 1280 duplicate regulatory provisions in 8 CFR 280
and almost all of them relate solely to the authority of DHS to impose
fines and civil monetary penalties. It is unnecessary to duplicate in
the EOIR regulations the text of provisions that pertain to DHS's
internal authority.
There are two provisions in part 1280 relating directly to the
authority of the Board, Sec. Sec. 1280.13(b) and 1280.51(c), each of
which provides that ``an appeal may be taken to the Board [from DHS's
decision] within 15 days after the mailing of the notification of
decision as provided in part 3 of this chapter.'' These two provisions,
and the corresponding provisions in part 280 from which they were
taken, have not been substantively revised since 1989 and have long
been out-of-date. Sections 1280.13(b) and 1280.51(c) still refer to 8
CFR part 3, even though the relevant provisions of that part were
redesignated as part 1003 in 2003, as discussed above. More
significantly, the current language in Sec. Sec. 1280.13(b) and
1280.51(c) (and the corresponding language in Sec. Sec. 280.13(b) and
280.51(c) of the DHS regulations) refers to a 15-day period for the
filing of an appeal to the Board. Those provisions have never been
revised to conform to the regulatory amendments that were made years
ago to extend the period for filing an appeal to the Board from a DHS
decision to 30 days, as is provided in Sec. 1003.3(a)(2). See 67 FR
54878, 54904 (Aug. 26, 2002). These provisions accordingly need to be
removed from part 1280 to avoid confusion given that the controlling
regulations relating to the Board's appellate review are set forth in
Sec. 1003.3.
For these reasons, DOJ is removing all of the current provisions in
part 1280 and adding a new Sec. 1280.1, which cross-references the DHS
regulations in 8 CFR part 280 and the EOIR regulations in 8 CFR part
1003 governing the appellate authority of the Board. The removal of
these duplicative regulatory provisions does not affect the current
legal regime or the authority of the Board to adjudicate appeals from
DHS decisions imposing fines and civil penalties under 8 CFR part 280.
DOJ has already made similar changes to its regulations at 8 CFR
part 1274a, addressing control of employment of aliens. See 76 FR 16525
(Mar. 24, 2011); 74 FR 2337, 2339 (Jan. 15, 2009). There, DOJ removed
duplicative regulations in part 1274a, and replaced them with a new
Sec. 1274a.1 that contains a cross-reference to the DHS regulations at
8 CFR part 274a. A statement was added indicating that these DHS
regulations apply, to the extent relevant, in proceedings before EOIR.
The changes that DOJ is making to 8 CFR part 1280 in this final rule
are modeled on the
[[Page 74629]]
changes DOJ previously made to 8 CFR part 1274a in an analogous
context. These changes to part 1280 do not alter the current legal
regime because the regulations in part 1280, which have been applicable
to the Board, merely duplicate the existing regulations in part 280.
VI. Regulatory Analyses
A. Administrative Procedure Act (APA), 5 U.S.C. 553
This final rule is being promulgated to ensure that the amount of
civil penalties assessed or enforced by DHS reflect the statutorily
mandated ranges as adjusted for inflation. Pursuant to 5 U.S.C.
553(b)(3)(B), the Secretary and the Attorney General find that good
cause exists for immediate implementation of this final rule without
prior notice and comment because it would be unnecessary to delay
publication of this rule in final form, pending notice and an
opportunity for public comment. This rule is a nondiscretionary
ministerial action as the calculations of the adjustments follow the
mathematical formula set forth in section 5 of the Adjustment Act, as
amended. In addition, the other changes to part 1280 do not alter the
current legal requirements or the authority of the Board to adjudicate
appeals from DHS decisions imposing fines and penalties under 8 CFR
part 280 because the regulations in part 1280 merely duplicate the
existing regulations in part 280. For these reasons, notice and comment
would be unnecessary.
B. Executive Order 12866 and Regulatory Flexibility Act
This final rule does not meet the criteria of a ``significant
regulatory action'' as specified 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. Furthermore, the
Regulatory Flexibility Act applies only to rules for which an agency
publishes a general notice of proposed rulemaking pursuant to 5 U.S.C.
553(b). See 5 U.S.C. 601 et seq. The Regulatory Flexibility Act does
not apply to this final rule because a notice of proposed rulemaking is
not required for the reasons stated above.
C. Executive Order 13132: Federalism
This final 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 the government. Therefore, in accordance with
Executive Order 13132, it is determined that this final rule does not
have sufficient federalism implications to warrant a preparation of a
Federalism Assessment.
D. Unfunded Mandates Reform Act of 1995
This final 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 will not significantly or
uniquely affect small governments. Therefore, no actions are necessary
under the Unfunded Mandates Reform Act of 1995.
E. Paperwork Reduction Act
The provisions of the Paperwork Reduction Act of 1995, 44 U.S.C.
chapter 35, and its implementing regulations, 5 CFR part 1320, do not
apply to this final rule because there are no new or revised
recordkeeping or reporting requirements triggered by this final rule.
F. Executive Order 12988: Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
VII. Signing Authority
This amendment to the regulations is being issued in accordance
with 8 U.S.C. 1103 pertaining to the authority of the Secretary of
Homeland Security (or his/her delegate) and the Attorney General (or
his/her delegate) to prescribe regulations regarding immigration and
nationality.
List of Subjects
8 CFR Part 280
Administrative practice and procedure, Immigration, and Penalties.
8 CFR Part 1280
Administrative practice and procedure, Immigration, and Penalties.
Department of Homeland Security
8 CFR CHAPTER I
For the reasons stated in the preamble, the Secretary amends part
280 of title 8 of the Code of Federal Regulations as set forth below.
PART 280--IMPOSITION AND COLLECTION OF FINES
0
1. The authority citation for part 280 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281,
1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197,
201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
Sec. 280.13 [Amended]
0
2. In Sec. 280.13, the last sentence of paragraph (b) is amended by
removing the phrase ``an appeal may be taken to the Board within 15
days after the mailing of the notification of decision as provided in
part 3 of this chapter'' and adding in its place the phrase ``an appeal
may be taken to the Board as provided in 8 CFR part 1003''.
Sec. 280.51 [Amended]
0
3. In Sec. 280.51, the last sentence of paragraph (c) is amended by
removing the phrase ``an appeal may be taken to the Board within 15
days after the mailing of the notification of decision as provided in
part 3 of this chapter'' and adding in its place the phrase ``an appeal
may be taken to the Board as provided in 8 CFR part 1003''.
0
4. Section 280.53 is revised to read as follows:
Sec. 280.53 Civil monetary penalties inflation adjustment.
(a) In general. In accordance with the requirements of the Federal
Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410,
104 Stat. 890, as amended by the Debt Collection Improvement Act of
1996, Public Law 104-34, 110 Stat. 1321, the civil monetary penalties
provided by law within the jurisdiction of the Department of Homeland
Security (DHS) and listed in paragraph (c) of this section are adjusted
as set forth in this section, effective for violations occurring on or
after January 3, 2012.
(b) Calculation of adjustment. (1) The inflation adjustments
described in paragraph (c) of this section were determined by
increasing the maximum civil monetary penalty or the range of minimum
and maximum civil monetary penalties, as applicable, for each civil
monetary penalty assessed or enforced by DHS by the cost-of-living
adjustment as that term is defined by the Federal Civil Penalties
Inflation Adjustment Act of 1990, Public Law 101-410. Any increase so
determined was rounded to the nearest--
(i) Multiples of $10 in the case of penalties less than or equal to
$100;
(ii) Multiples of $100 in the case of penalties greater than $100
but less than or equal to $1,000;
(iii) Multiples of $1,000 in the case of penalties greater than
$1,000 but less than or equal to $10,000;
(iv) Multiples of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
[[Page 74630]]
(v) Multiples of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
(vi) Multiples of $25,000 in the case of penalties greater than
$200,000.
(2) Notwithstanding the provisions of paragraph (b)(1) of this
section, the initial adjustment for each penalty is capped at 10%.
(c) Adjustment to penalties. The civil monetary penalties provided
by law within the jurisdiction of DHS, as set forth in this paragraph
(c)(1) through (14), are adjusted in accordance with the inflation
adjustment procedures prescribed in section 5 of the Federal Civil
Penalties Inflation Adjustment Act of 1990, Public Law 101-410,
effective for violations occurring on or after January 3, 2012 as
follows:
(1) Section 231(g) of the Act, Penalties for non-compliance with
arrival and departure manifest requirements for passengers,
crewmembers, or occupants transported on commercial vessels or aircraft
arriving to or departing from the United States: From $1,000 to $1,100.
(2) Section 234 of the Act, Penalties for non-compliance with
landing requirements at designated ports of entry for aircraft
transporting aliens: From $2,200 to $3,200.
(3) Section 240B(d) of the Act, Penalties for failure to depart
voluntarily: From $1,000 minimum/$5,000 maximum to $1,100 minimum/
$5,500 maximum.
(4) Section 243(c)(1) of the Act, Penalties for violations of
removal orders relating to aliens transported on vessels or aircraft,
under section 241(d) of the Act, or for costs associated with removal
under section 241(e) of the Act, from $2,000 to $2,200; and penalties
for failure to remove alien stowaways under section 241(d)(2), from
$5,000 to $5,500.
(5) Section 251(d) of the Act, Penalties for failure to report an
illegal landing or desertion of alien crewmen, and for each alien not
reported on arrival or departure manifest and lists in accordance with
section 251 of the Act: From $220 to $320; and penalties for use of
alien crewmen for longshore work in violation of section 251(d) of the
Act: From $5,500 to $7,500.
(6) Section 254(a) of the Act, Penalties for failure to control
alien crewmen: From $550 minimum/$3,300 maximum to $750 minimum/$4,300
maximum.
(7) Section 255 of the Act, Penalties for employment on passenger
vessels of aliens afflicted with certain disabilities: Remains at
$1,100.
(8) Section 256 of the Act, Penalties for discharge of alien
crewmen: From $1,500 minimum/$3,300 maximum to $1,500 minimum/$4,300
maximum.
(9) Section 257 of the Act, Penalties for bringing into the United
States alien crewmen with intent to evade immigration laws: From
$11,000 maximum to $16,000 maximum.
(10) Section 271(a) of the Act, Penalties for failure to prevent
the unauthorized landing of aliens: From $3,300 to $4,300.
(11) Section 272(a) of the Act, Penalties for bringing to the
United States aliens subject to denial of admission on a health-related
ground: From $3,300 to $4,300.
(12) Section 273(b) of the Act, Penalties for bringing to the
United States aliens without required documentation: From $3,300 to
$4,300.
(13) Section 274D of the Act, Penalties for failure to depart: From
$500 to $550, for each day the alien is in violation.
(14) Section 275(b) of the Act, Penalties for improper entry: From
$50 minimum/$250 maximum to $55 minimum/$275 maximum, for each entry or
attempted entry.
Department of Justice
8 CFR CHAPTER V
For the reasons stated in the preamble, the Attorney General amends
part 1280 of title 8 of the Code of Federal Regulations, as set forth
below.
PART 1280--IMPOSITION AND COLLECTION OF FINES
0
1. The authority citation for part 1280 is revised to read as follows:
Authority: 8 U.S.C. 1103, 1221, 1223, 1227, 1229, 1253, 1281,
1283, 1284, 1285, 1286, 1322, 1323, 1330; 66 Stat. 173, 195, 197,
201, 203, 212, 219, 221-223, 226, 227, 230; Pub. L. 101-410, 104
Stat. 890, as amended by Pub. L. 104-134, 110 Stat. 1321.
0
2. Section 1280.1 is revised to read as follows:
Sec. 1280.1 Review of fines and civil monetary penalties imposed by
DHS.
(a) Applicable regulations. The regulations of the Department of
Homeland Security (DHS) relating to the imposition of certain fines and
civil monetary penalties under provisions of the Immigration and
Nationality Act, including sections 231(g), 234, 240B(d), 241(d) and
(e), 243(c)(1), 251(d), 254(a), 255, 256, 257, 271(a), 272(a), 273(b),
274D, and 275(b), are contained in 8 CFR part 280.
(b) Adjudication of civil monetary penalty proceedings. The Board
of Immigration Appeals (Board) has appellate authority to review DHS
decisions involving fines and civil monetary penalties imposed under 8
CFR part 280, as provided under 8 CFR part 1003. The regulations in 8
CFR part 280 governing the imposition of certain fines and civil
monetary penalties are applicable in such proceedings before the Board.
(c) Civil monetary penalties under sections 274A, 274B, or 274C.
For regulations relating to civil monetary penalties imposed under
sections 274A, 274B, or 274C of the Act, see 8 CFR parts 274a and 1274a
and 28 CFR part 68.
0
3. Sections 1280.2 through 1280.7 are removed.
0
4. Sections 1280.11 through 1280.15 are removed.
0
5. Section 1280.21 is removed.
0
6. Sections 1280.51 through 1280.53 are removed.
Janet Napolitano,
Secretary.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2011-30174 Filed 11-30-11; 8:45 am]
BILLING CODE 4410-10-P
