Implementing the Federal Civil Penalties Adjustment Act Improvements Act of 2015, 22025-22028 [2020-07761]
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Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations
Information Technology for Economic
and Clinical Health (HITECH) Act, to
protect the privacy and security of
protected health information, namely
the HIPAA Privacy, Security and Breach
Notification Rules (the HIPAA Rules).
During the COVID–19 national
emergency, which also constitutes a
nationwide public health emergency,
covered health care providers subject to
the HIPAA Rules may seek to
communicate with patients, and provide
telehealth services, through remote
communications technologies.
Some of these technologies, and the
manner in which they are used by
HIPAA covered health care providers,
may not fully comply with the
requirements of the HIPAA Rules. OCR
will exercise its enforcement discretion
and will not impose penalties for
noncompliance with the regulatory
requirements under the HIPAA Rules
against covered health care providers in
connection with the good faith
provision of telehealth during the
COVID–19 nationwide public health
emergency.
A covered health care provider that
wants to use audio or video
communication technology to provide
telehealth to patients during the
COVID–19 nationwide public health
emergency can use any non-public
facing remote communication product
that is available to communicate with
patients. OCR is exercising its
enforcement discretion to not impose
penalties for noncompliance with the
HIPAA Rules in connection with the
good faith provision of telehealth using
such non-public facing audio or video
communication products during the
COVID–19 nationwide public health
emergency. This exercise of discretion
applies to telehealth provided for any
reason, regardless of whether the
telehealth service is related to the
diagnosis and treatment of health
conditions related to COVID–19.
For example, a covered health care
provider in the exercise of their
professional judgement may request to
examine a patient exhibiting COVID–19
symptoms, using a video chat
application connecting the provider’s or
patient’s phone or desktop computer in
order to assess a greater number of
patients while limiting the risk of
infection of other persons who would be
exposed from an in-person consultation.
Likewise, a covered health care provider
may provide similar telehealth services
in the exercise of their professional
and comment for this guidance is impracticable,
and there is good cause to issue this guidance
without prior public comment and without a
delayed effective date. 5 U.S.C. 553(b)(3)(B) & (d)(3).
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judgment to assess or treat any other
medical condition, even if not related to
COVID–19, such as a sprained ankle,
dental consultation or psychological
evaluation, or other conditions.
Under this Notification, covered
health care providers may use popular
applications that allow for video chats,
including Apple FaceTime, Facebook
Messenger video chat, Google Hangouts
video, Zoom, or Skype, to provide
telehealth without risk that OCR might
seek to impose a penalty for
noncompliance with the HIPAA Rules
related to the good faith provision of
telehealth during the COVID–19
nationwide public health emergency.
Providers are encouraged to notify
patients that these third-party
applications potentially introduce
privacy risks, and providers should
enable all available encryption and
privacy modes when using such
applications.
Under this notification, however,
Facebook Live, Twitch, TikTok, and
similar video communication
applications are public facing, and
should not be used in the provision of
telehealth by covered health care
providers.
Covered health care providers that
seek additional privacy protections for
telehealth while using video
communication products should
provide such services through
technology vendors that are HIPAA
compliant and will enter into HIPAA
business associate agreements (BAAs) in
connection with the provision of their
video communication products. The list
below includes some vendors that
represent that they provide HIPAAcompliant video communication
products and that they will enter into a
HIPAA BAA.
• Skype for Business I Microsoft
Teams
• Updox
• VSee
• Zoom for Healthcare
• Doxy.me
• Google G Suite Hangouts Meet
• Cisco Webex Meetings I Webex
Teams
• Amazon Chime
• GoToMeeting
• Spruce Health Care Messenger
OCR has not reviewed the BAAs
offered by these vendors, and this list
does not constitute an endorsement,
certification, or recommendation of
specific technology, software,
applications, or products. There may be
other technology vendors that offer
HIPAA-compliant video communication
products that will enter into a HIPAA
BAA with a covered entity. Further,
OCR does not endorse any of the
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22025
applications that allow for video chats
listed above.
Under this noticfication, however,
OCR will not impose penalties against
covered health care providers for the
lack of a BAA with video
communication vendors or any other
noncompliance with the HIPAA Rules
that relates to the good faith provision
of telehealth services during the
COVID–19 nationwide public health
emergency.
III. Collection of Information
Requirements
This notice of enforcement discretion
creates no legal obligations and no legal
rights. Because this notice imposes no
information collection requirements, it
need not be reviewed by the Office of
Management and Budget under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Dated: April 2, 2020.
Roger T. Severino,
Director, Office for Civil Rights Department
of Health and Human Services.
[FR Doc. 2020–08416 Filed 4–20–20; 8:45 am]
BILLING CODE 4153–01–P
NATIONAL FOUNDATION ON THE
ARTS AND HUMANITIES
National Endowment for the
Humanities
45 CFR Part 1168
RIN 3136–AA39
Implementing the Federal Civil
Penalties Adjustment Act
Improvements Act of 2015
National Endowment for the
Humanities; National Foundation on the
Arts and the Humanities.
ACTION: Interim final rule; request for
comments.
AGENCY:
The National Endowment for
the Humanities (NEH) is adjusting the
civil monetary penalties it imposes for
violations of NEH’s New Restrictions on
Lobbying regulation, pursuant to the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (the 2015 Act). The 2015 Act,
which amended the Federal Civil
Penalties Inflation Adjustment Act of
1990 (the Inflation Adjustment Act),
requires such adjustments to improve
the effectiveness of civil monetary
penalties and to maintain their deterrent
effect.
DATES: Effective date: This interim final
rule is effective on April 21, 2020.
Comments must be submitted on or
SUMMARY:
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Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations
before May 21, 2020. Applicability date:
The adjusted penalty amounts will
apply to penalties assessed on or after
January 15, 2020, if the associated
violations occurred after November 2,
2015.
You may send comments by
email to gencounsel@neh.gov.
Instructions: Include ‘‘RIN 3136–
AA39’’ in the subject line of the email.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel,
National Endowment for the
Humanities, 400 7th Street SW, Room
4060, Washington, DC 20506; (202) 606–
8322; gencounsel@neh.gov.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
1. Background
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For each regulation that imposes a
civil monetary penalty, the 2015 Act
requires agencies to: (1) Adjust the level
of civil monetary penalties with an
initial ‘‘catch-up’’ inflation adjustment
through an interim final rulemaking;
and (2) make subsequent annual
adjustments for inflation.
The Inflation Adjustment Act defines
‘‘civil monetary penalty’’ as a penalty,
fine, or other sanction that is (1) for a
specific monetary amount provided by
Federal law, or has a maximum amount
provided by Federal law; (2) assessed or
enforced by an agency pursuant to
Federal law; and (3) assessed or
enforced pursuant to an administrative
proceeding or a civil action in the
Federal courts.
The formula for the amount of a civil
monetary penalty inflation adjustment
is prescribed by law—as explained in
Office of Management and Budget
(OMB) Memorandum M–16–06
(February 24, 2016)—and is based on
the percentage change in the Consumer
Price Index for All Urban Consumers
(CPI–U) published by the U.S.
Department of Labor for the month of
October preceding the date of the
adjustment, relative to the October CPI–
U in the year of the previous
adjustment. Additionally, the 2015 Act
eliminated the ten-percent cap on
adjustments imposed by the Debt
Collection Improvement Act of 1996.
Instead, the 2015 Act imposes a cap on
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the amount of the adjustment, such that
the amount of increase may not exceed
150 percent of the pre-adjustment
penalty amount. Therefore, the total
penalty amount resulting from
adjustments under the 2015 Act may not
exceed 250 percent of the preadjustment penalty amount.
NEH has only one regulation with
civil monetary penalty provisions which
requires adjustment under the 2015 Act:
Its New Restrictions on Lobbying (45
CFR 1168).
adjustment maximum penalty under
NEH’s New Restrictions on Lobbying
regulation is $100,000 × 1.89361 =
$189,361. These post-adjustment
penalties are less than 250 percent of
the pre-adjustment penalties, so they do
not implicate the post-adjustment
amount limitation in the 2015 Act.
Thus, the penalty range under NEH’s
New Restrictions on Lobbying
regulation, for the purposes of the initial
‘‘catch up’’ adjustment, is a minimum of
$18,936 and a maximum of $189,361.
2. Adjustments to Civil Monetary
Penalties in NEH’s New Restrictions on
Lobbying Regulation
B. 2020 Adjustment for Inflation
This interim final rule incorporates
the initial ‘‘catch up’’ adjustment and
the annual adjustment for 2020, and
applies those adjustments cumulatively
to the civil monetary penalties in 45
CFR 1168.400. The calculations for
these adjustments are in accordance
with the OMB memoranda providing
guidance on implementing the initial
‘‘catch up’’ adjustment 1 and the 2020
adjustment 2 under the 2015 Act.
A. Initial ‘‘Catch-Up’’ Adjustment for
Inflation
NEH determined the first ‘‘catch up’’
adjustment by calculating the percent
change between the CPI–U for October
of the last year in which Congress
adjusted the penalties (not including
any adjustment made pursuant to the
Inflation Adjustment Act before
November 2, 2015), and the CPI–U for
October 2015, and then rounding to the
nearest dollar.
Congress set the penalty amounts
found in 31 U.S.C. 1352(c) in 1989, and
has not adjusted them since. At that
time, the range of civil penalties was a
minimum of $10,000 and a maximum of
$100,000. Between October 1989 and
October 2015, the CPI–U increased by
189.361 percent.
Therefore, the post-adjustment
minimum penalty under NEH’s New
Restrictions on Lobbying regulation is
$10,000 × 1.89361 percent = $18,936.10,
which rounds to $18,936. The post1 OMB Memorandum M–16–06 (February 24,
2016).
2 OMB Memorandum M–20–05 (December 16,
2019).
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This interim final rule also
incorporates the required subsequent
annual adjustment for 2020. NEH
determined the 2020 adjustment by
calculating the percent increase between
the CPI–U for the month of October
preceding the date of the adjustment
(October 2019) and the CPI–U for the
October one year prior to the October
immediately preceding the date of the
adjustment (October 2018).
For 2019, the penalty range for
violations under NEH’s New
Restrictions on Lobbying regulation was
a minimum of $20,134 and a maximum
of $201,340.3 Between October 2018 and
October 2019, the CPI–U increased by
101.764 percent.
Therefore, the new, post-adjustment
minimum penalty for 2020 under NEH’s
New Restrictions on Lobbying
regulation is $20,134 × 1.01764 =
$20,489.16, which rounds to $20,489.
The new, post-adjustment maximum
penalty for 2020 under NEH’s New
Restrictions on Lobbying regulation is
$201,340 × 1.01764 = $204,891.64,
which rounds to $204,892. These postadjustment penalties are less than 250
percent of the pre-adjustment penalties,
so they do not implicate the postadjustment amount limitation in the
2015 Act. Thus, the range of penalties
under NEH’s New Restrictions on
Lobbying regulation, for the purposes of
the 2020 annual adjustment, is a
minimum of $20,489 and a maximum of
$204,892.
3 Table 1 details the annual adjustments to New
Restrictions on Lobbying Civil Monetary Penalties
for years 2016–2020.
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Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations
22027
TABLE 1—ANNUAL ADJUSTMENTS TO NEW RESTRICTIONS ON LOBBYING CIVIL MONETARY PENALTIES
[2016–2020]
Year
2016
2017
2018
2019
2020
Applicable
multiplier
based on
percent
increase in
CPI–U
Baseline penalty range
...............
...............
...............
...............
...............
$10,000–$100,000
$18,936–$189,361
$19,246–$192,459
$19,639–$196,387
$20,134–$201,340
........................................................
........................................................
........................................................
........................................................
........................................................
1.89361
4 1.01636
5 1.02041
6 1.02522
1.01764
New baseline penalty range
$18,936–$189,361
$19,246–$192,459
$19,639–$196,387
$20,134–$201,340
$20,489–$204,892
4 OMB
Memorandum M–17–11 (December 16, 2016).
5 OMB Memorandum M–18–03 (December 15, 2017).
6 OMB Memorandum M–19–04 (December 14, 2018).
3. Subsequent Annual Adjustments
The 2015 Act requires agencies to
make annual adjustments to civil
penalty amounts no later than January
15 of each year following the initial
adjustment. NEH will calculate the
subsequent annual adjustments using
the same method as the annual
adjustment previously described herein.
If the CPI–U does not increase, then the
civil penalties remain the same.
Therefore, if NEH adjusts penalties in
January 2021, NEH will determine the
adjustment by calculating the percent
change between the CPI–U for October
2020 (the October immediately
preceding the date of adjustment) and
October 2019 (the October one year
prior to October 2020).
NEH will publish a Notice in the
Federal Register containing the
amounts of these annual inflation
adjustments no later than January 15 of
each year.
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Administrative Procedure Act of 1946
NEH finds good cause to issue this
interim final rule without prior notice
and comment. The 2015 Act requires
agencies to adjust their civil monetary
penalties according to a statutory
formula, and NEH does not have any
discretion when determining the
amount of its adjustments; it merely
performs ministerial computations to
determine those amounts. As such, prior
notice and comment is unnecessary
because NEH would be unable to change
the substance of this rule in response to
suggestions from commenters. NEH is
accepting public comments up to thirty
(30) days after publication of this
interim final rule, and may address any
comments received when it publishes a
final rule adopting this interim final
rule.
15:57 Apr 20, 2020
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This action is not a significant
regulatory action and was therefore not
submitted to OMB for review.
Executive Order 13771, Reducing
Regulation and Controlling Regulatory
Costs
Regulatory Flexibility Act of 1980
This rulemaking will not have a
significant adverse impact on a
substantial number of small entities,
including small businesses, small
governmental jurisdictions, or certain
small not-for-profit organizations.
Paperwork Reduction Act of 1995
This action is not expected to be an
Executive Order 13771 regulatory action
because this action is not significant
under Executive Order 12866.
This rulemaking does not impose an
information collection burden under the
Paperwork Reduction Act. This action
contains no provisions constituting a
collection of information pursuant to
the Paperwork Reduction Act.
Executive Order 13132, Federalism
Unfunded Mandates Reform Act of 1995
This rulemaking does not have
federalism implications. It 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 government.
Executive Order 12988, Civil Justice
Reform
4. Compliance
VerDate Sep<11>2014
Executive Order 12866, Regulatory
Planning and Review, and Executive
Order 13563, Improving Regulation and
Regulatory Review
This rulemaking meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988.
Specifically, this interim final rule is
written in clear language designed to
help reduce litigation.
Executive Order 13175, Indian Tribal
Governments
Under the criteria in Executive Order
13175, NEH evaluated this interim final
rule and determined that it will not
have any potential effects on Federally
recognized Indian Tribes.
Executive Order 12630, Takings
Under the criteria in Executive Order
12630, this rulemaking does not have
significant takings implications.
Therefore, a takings implication
assessment is not required.
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This rulemaking does not contain a
Federal mandate that will 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.
National Environmental Policy Act of
1969
This interim final rule will not have
a significant effect on the human
environment.
Small Business Regulatory Enforcement
Fairness Act of 1996
This interim final rule will not be a
major rule as defined in section 804 of
the Small Business Regulatory
Enforcement Fairness Act of 1996. This
interim final rule will not result in an
annual effect on the economy of $100
million or more, a major increase in
costs or prices, significant adverse
effects on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
companies to compete with foreignbased companies in domestic and
export markets.
E-Government Act of 2002
All information about NEH required
to be published in the Federal Register
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22028
Federal Register / Vol. 85, No. 77 / Tuesday, April 21, 2020 / Rules and Regulations
may be accessed at www.neh.gov. The
website https://www.regulations.gov
contains electronic dockets for NEH’s
rulemakings under the Administrative
Procedure Act of 1946.
Dated: April 8, 2020.
Caitlin Cater,
Attorney-Advisor, National Endowment for
the Humanities.
Plain Writing Act of 2010
To ensure this final rule was written
in plain and clear language so that it can
be used and understood by the public,
NEH modeled the language of this final
rule on the Federal Plain Language
Guidelines.
BILLING CODE 7536–01–P
Lists of Subjects in 45 CFR 1168
Administrative practice and
procedure, Lobbying, Penalties.
For the reasons stated in the
preamble, the National Endowment for
the Humanities amends 45 CFR part
1168 as follows:
PART 1168—NEW RESTRICTIONS ON
LOBBYING
1. The authority citation for part 1168
is revised to read as follows:
■
Authority: 20 U.S.C. 959(a)(1); 28 U.S.C.
2461 note; 31 U.S.C. 1352.
2. Amend § 1168.400:
a. By removing ‘‘$10,000’’ and adding
in its place ‘‘$20,489’’ and by removing
‘‘$100,000’’ and adding in its place
‘‘$204,892’’, respectively, each place
they appear in paragraphs (a), (b), and
(e); and
■ b. By adding paragraph (g).
The addition reads as follows:
■
■
§ 1168.400
Penalties.
*
*
*
*
*
(g) The penalty amounts listed under
paragraphs (a), (b), and (e) of this
section shall be adjusted annually for
inflation. NEH will publish a document
in the Federal Register containing the
new penalty amounts no later than
January 15 of each year.
■ 3. Amend appendix A to part 1168:
■ a. By removing ‘‘$10,000’’ and adding
in its place ‘‘$20,489’’ and by removing
‘‘$100,000’’ and adding in its place
‘‘$204,892’’, respectively, each place
they appear; and
■ b. By adding a section entitled
‘‘Annual Adjustments for Inflation’’ at
the end.
The addition reads as follows:
Appendix A to Part 1168—Certification
Regarding Lobbying
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*
*
*
*
*
Annual Adjustments for Inflation
The penalty amounts listed in this
appendix will be adjusted annually for
inflation. NEH will publish a document in
the Federal Register containing the new
penalty amounts no later than January 15 of
each year.
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[FR Doc. 2020–07761 Filed 4–20–20; 8:45 am]
FEDERAL COMMUNICATIONS
COMMISSION
C. Congressional Review Act
47 CFR Part 1
[MD Docket No. 20–58; FCC 20–15; FRS
16594]
Closure of FCC Lockbox 979088 Used
To Collect Payment of Forfeiture
Penalties Imposed by the Commission
Federal Communications
Commission.
ACTION: Final rule.
AGENCY:
In this document, the Federal
Communications Commission (FCC or
Commission) adopts an Order that
closes Lockbox 979088 and modifies the
relevant rule provisions to require
electronic payment of forfeiture
penalties imposed by the Commission.
DATES: Effective May 21, 2020.
FOR FURTHER INFORMATION CONTACT:
Warren Firschein, Office of Managing
Director at (202) 418–2653 or Roland
Helvajian, Office of Managing Director
at (202) 418–0444.
SUPPLEMENTARY INFORMATION: This is a
summary of the Commission’s Order,
FCC 20–15, MD Docket No. 20–58,
adopted on February 26, 2020 and
released on February 28, 2020, which is
the subject of this rulemaking. The full
text of this document is available for
public inspection and copying during
normal business hours in the FCC
Reference Center (Room CY–A257), 445
12th Street SW, Washington, DC 20554,
or by downloading the text from the
Commission’s website at https://
www.fcc.gov/document/closurecommission-lockbox-used-collectforfeiture-payments.
SUMMARY:
I. Administrative Matters
A. Final Regulatory Flexibility Analysis
1. Section 603 of the Regulatory
Flexibility Act, as amended, requires a
regulatory flexibility analysis in notice
and comment rulemaking proceedings.
See 5 U.S.C. 603(a). As we are adopting
these rules without notice and
comment, no regulatory flexibility
analysis is required.
B. Final Paperwork Reduction Act of
1995 Analysis
2. This document does not contain
new or modified information collection
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requirements subject to the Paperwork
Reduction Act of 1995 (PRA), Public
Law 104–13. In addition, therefore, it
does not contain any new or modified
information collection burden for small
business concerns with fewer than 25
employees, pursuant to the Small
Business Paperwork Relief Act of 2002,
Public Law 107–198, see 44 U.S.C.
3506(c)(4).
Sfmt 4700
3. The Commission will not send a
copy of the Order pursuant to the
Congressional Review Act, see 5 U.S.C.
801(a)(1)(A), because the adopted rules
are rules of agency organization,
procedure, or practice that do not
‘‘substantially affect the rights or
obligations of non-agency parties. See 5
U.S.C. 804(3)(C).
II. Introduction
4. In the Order, we reduce
expenditures by the Commission and
modernize procedures by modifying
§ 1.80(h) of our rules, 47 CFR 1.80(h),
which sets forth the method for parties
to remit forfeiture penalties imposed by
the Commission. The rule amendment
reflects the closure of the P.O. Box 1
used to collect forfeiture payments. We
discontinue the option of manual fee
payments and instead require the use of
an electronic payment for forfeiture
penalties.
5. The Commission has begun to
reduce its reliance on P.O. Boxes for the
collection of fees, instead encouraging
the use of electronic payment systems
for all application and regulatory fees
and closing certain lockboxes. We find
that electronic payment of forfeiture
penalties imposed by the Commission
reduces the agency’s expenditures
(including eliminating the annual fee for
the bank’s services) and the cost of
manually processing each transaction,
with little or no inconvenience to the
Commission’s regulatees, applicants,
and the public.
6. As part of this effort, we are now
closing P.O. Box 979088 and modifying
the relevant rule provision that requires
payment of forfeiture penalties via the
closed P.O. Box. The rule change is
contained in the Appendix of the Order.
We make this change without notice
and comment because it is a rule of
agency organization, procedure, or
practice exempt from the general notice1 A P.O. Box used for the collection of fees is
referred to as a ‘‘lockbox’’ in our rules and other
Commission documents. The FCC collects
application processing fees using a series of P.O.
Boxes located at U.S. Bank in St. Louis, Missouri.
See 47 CFR 1.1101–1.1109 (setting forth the fee
schedule for each type of application remittable to
the Commission along with the correct lockbox).
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]]>Agencies
[Federal Register Volume 85, Number 77 (Tuesday, April 21, 2020)]
[Rules and Regulations]
[Pages 22025-22028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07761]
=======================================================================
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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Humanities
45 CFR Part 1168
RIN 3136-AA39
Implementing the Federal Civil Penalties Adjustment Act
Improvements Act of 2015
AGENCY: National Endowment for the Humanities; National Foundation on
the Arts and the Humanities.
ACTION: Interim final rule; request for comments.
-----------------------------------------------------------------------
SUMMARY: The National Endowment for the Humanities (NEH) is adjusting
the civil monetary penalties it imposes for violations of NEH's New
Restrictions on Lobbying regulation, pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015
Act). The 2015 Act, which amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 (the Inflation Adjustment Act), requires such
adjustments to improve the effectiveness of civil monetary penalties
and to maintain their deterrent effect.
DATES: Effective date: This interim final rule is effective on April
21, 2020. Comments must be submitted on or
[[Page 22026]]
before May 21, 2020. Applicability date: The adjusted penalty amounts
will apply to penalties assessed on or after January 15, 2020, if the
associated violations occurred after November 2, 2015.
ADDRESSES: You may send comments by email to [email protected].
Instructions: Include ``RIN 3136-AA39'' in the subject line of the
email.
FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel, National Endowment for the
Humanities, 400 7th Street SW, Room 4060, Washington, DC 20506; (202)
606-8322; [email protected].
SUPPLEMENTARY INFORMATION:
1. Background
For each regulation that imposes a civil monetary penalty, the 2015
Act requires agencies to: (1) Adjust the level of civil monetary
penalties with an initial ``catch-up'' inflation adjustment through an
interim final rulemaking; and (2) make subsequent annual adjustments
for inflation.
The Inflation Adjustment Act defines ``civil monetary penalty'' as
a penalty, fine, or other sanction that is (1) for a specific monetary
amount provided by Federal law, or has a maximum amount provided by
Federal law; (2) assessed or enforced by an agency pursuant to Federal
law; and (3) assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal courts.
The formula for the amount of a civil monetary penalty inflation
adjustment is prescribed by law--as explained in Office of Management
and Budget (OMB) Memorandum M-16-06 (February 24, 2016)--and is based
on the percentage change in the Consumer Price Index for All Urban
Consumers (CPI-U) published by the U.S. Department of Labor for the
month of October preceding the date of the adjustment, relative to the
October CPI-U in the year of the previous adjustment. Additionally, the
2015 Act eliminated the ten-percent cap on adjustments imposed by the
Debt Collection Improvement Act of 1996. Instead, the 2015 Act imposes
a cap on the amount of the adjustment, such that the amount of increase
may not exceed 150 percent of the pre-adjustment penalty amount.
Therefore, the total penalty amount resulting from adjustments under
the 2015 Act may not exceed 250 percent of the pre-adjustment penalty
amount.
NEH has only one regulation with civil monetary penalty provisions
which requires adjustment under the 2015 Act: Its New Restrictions on
Lobbying (45 CFR 1168).
2. Adjustments to Civil Monetary Penalties in NEH's New Restrictions on
Lobbying Regulation
This interim final rule incorporates the initial ``catch up''
adjustment and the annual adjustment for 2020, and applies those
adjustments cumulatively to the civil monetary penalties in 45 CFR
1168.400. The calculations for these adjustments are in accordance with
the OMB memoranda providing guidance on implementing the initial
``catch up'' adjustment \1\ and the 2020 adjustment \2\ under the 2015
Act.
---------------------------------------------------------------------------
\1\ OMB Memorandum M-16-06 (February 24, 2016).
\2\ OMB Memorandum M-20-05 (December 16, 2019).
---------------------------------------------------------------------------
A. Initial ``Catch-Up'' Adjustment for Inflation
NEH determined the first ``catch up'' adjustment by calculating the
percent change between the CPI-U for October of the last year in which
Congress adjusted the penalties (not including any adjustment made
pursuant to the Inflation Adjustment Act before November 2, 2015), and
the CPI-U for October 2015, and then rounding to the nearest dollar.
Congress set the penalty amounts found in 31 U.S.C. 1352(c) in
1989, and has not adjusted them since. At that time, the range of civil
penalties was a minimum of $10,000 and a maximum of $100,000. Between
October 1989 and October 2015, the CPI-U increased by 189.361 percent.
Therefore, the post-adjustment minimum penalty under NEH's New
Restrictions on Lobbying regulation is $10,000 x 1.89361 percent =
$18,936.10, which rounds to $18,936. The post-adjustment maximum
penalty under NEH's New Restrictions on Lobbying regulation is $100,000
x 1.89361 = $189,361. These post-adjustment penalties are less than 250
percent of the pre-adjustment penalties, so they do not implicate the
post-adjustment amount limitation in the 2015 Act. Thus, the penalty
range under NEH's New Restrictions on Lobbying regulation, for the
purposes of the initial ``catch up'' adjustment, is a minimum of
$18,936 and a maximum of $189,361.
B. 2020 Adjustment for Inflation
This interim final rule also incorporates the required subsequent
annual adjustment for 2020. NEH determined the 2020 adjustment by
calculating the percent increase between the CPI-U for the month of
October preceding the date of the adjustment (October 2019) and the
CPI-U for the October one year prior to the October immediately
preceding the date of the adjustment (October 2018).
For 2019, the penalty range for violations under NEH's New
Restrictions on Lobbying regulation was a minimum of $20,134 and a
maximum of $201,340.\3\ Between October 2018 and October 2019, the CPI-
U increased by 101.764 percent.
---------------------------------------------------------------------------
\3\ Table 1 details the annual adjustments to New Restrictions
on Lobbying Civil Monetary Penalties for years 2016-2020.
---------------------------------------------------------------------------
Therefore, the new, post-adjustment minimum penalty for 2020 under
NEH's New Restrictions on Lobbying regulation is $20,134 x 1.01764 =
$20,489.16, which rounds to $20,489. The new, post-adjustment maximum
penalty for 2020 under NEH's New Restrictions on Lobbying regulation is
$201,340 x 1.01764 = $204,891.64, which rounds to $204,892. These post-
adjustment penalties are less than 250 percent of the pre-adjustment
penalties, so they do not implicate the post-adjustment amount
limitation in the 2015 Act. Thus, the range of penalties under NEH's
New Restrictions on Lobbying regulation, for the purposes of the 2020
annual adjustment, is a minimum of $20,489 and a maximum of $204,892.
[[Page 22027]]
Table 1--Annual Adjustments to New Restrictions on Lobbying Civil Monetary Penalties
[2016-2020]
----------------------------------------------------------------------------------------------------------------
Applicable
multiplier
based on
Year Baseline penalty range percent New baseline penalty range
increase in
CPI-U
----------------------------------------------------------------------------------------------------------------
2016.................................... $10,000-$100,000.......... 1.89361 $18,936-$189,361
2017.................................... $18,936-$189,361.......... \4\ 1.01636 $19,246-$192,459
2018.................................... $19,246-$192,459.......... \5\ 1.02041 $19,639-$196,387
2019.................................... $19,639-$196,387.......... \6\ 1.02522 $20,134-$201,340
2020.................................... $20,134-$201,340.......... 1.01764 $20,489-$204,892
----------------------------------------------------------------------------------------------------------------
\4\ OMB Memorandum M-17-11 (December 16, 2016).
\5\ OMB Memorandum M-18-03 (December 15, 2017).
\6\ OMB Memorandum M-19-04 (December 14, 2018).
3. Subsequent Annual Adjustments
The 2015 Act requires agencies to make annual adjustments to civil
penalty amounts no later than January 15 of each year following the
initial adjustment. NEH will calculate the subsequent annual
adjustments using the same method as the annual adjustment previously
described herein. If the CPI-U does not increase, then the civil
penalties remain the same. Therefore, if NEH adjusts penalties in
January 2021, NEH will determine the adjustment by calculating the
percent change between the CPI-U for October 2020 (the October
immediately preceding the date of adjustment) and October 2019 (the
October one year prior to October 2020).
NEH will publish a Notice in the Federal Register containing the
amounts of these annual inflation adjustments no later than January 15
of each year.
4. Compliance
Administrative Procedure Act of 1946
NEH finds good cause to issue this interim final rule without prior
notice and comment. The 2015 Act requires agencies to adjust their
civil monetary penalties according to a statutory formula, and NEH does
not have any discretion when determining the amount of its adjustments;
it merely performs ministerial computations to determine those amounts.
As such, prior notice and comment is unnecessary because NEH would be
unable to change the substance of this rule in response to suggestions
from commenters. NEH is accepting public comments up to thirty (30)
days after publication of this interim final rule, and may address any
comments received when it publishes a final rule adopting this interim
final rule.
Executive Order 12866, Regulatory Planning and Review, and Executive
Order 13563, Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to OMB for review.
Executive Order 13771, Reducing Regulation and Controlling Regulatory
Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
Executive Order 13132, Federalism
This rulemaking does not have federalism implications. It 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 government.
Executive Order 12988, Civil Justice Reform
This rulemaking meets the applicable standards set forth in section
3(a) and 3(b)(2) of Executive Order 12988. Specifically, this interim
final rule is written in clear language designed to help reduce
litigation.
Executive Order 13175, Indian Tribal Governments
Under the criteria in Executive Order 13175, NEH evaluated this
interim final rule and determined that it will not have any potential
effects on Federally recognized Indian Tribes.
Executive Order 12630, Takings
Under the criteria in Executive Order 12630, this rulemaking does
not have significant takings implications. Therefore, a takings
implication assessment is not required.
Regulatory Flexibility Act of 1980
This rulemaking will not have a significant adverse impact on a
substantial number of small entities, including small businesses, small
governmental jurisdictions, or certain small not-for-profit
organizations.
Paperwork Reduction Act of 1995
This rulemaking does not impose an information collection burden
under the Paperwork Reduction Act. This action contains no provisions
constituting a collection of information pursuant to the Paperwork
Reduction Act.
Unfunded Mandates Reform Act of 1995
This rulemaking does not contain a Federal mandate that will 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.
National Environmental Policy Act of 1969
This interim final rule will not have a significant effect on the
human environment.
Small Business Regulatory Enforcement Fairness Act of 1996
This interim final rule will not be a major rule as defined in
section 804 of the Small Business Regulatory Enforcement Fairness Act
of 1996. This interim final rule will not result in an annual effect on
the economy of $100 million or more, a major increase in costs or
prices, significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based companies to compete with foreign-based companies in
domestic and export markets.
E-Government Act of 2002
All information about NEH required to be published in the Federal
Register
[[Page 22028]]
may be accessed at www.neh.gov. The website https://www.regulations.gov
contains electronic dockets for NEH's rulemakings under the
Administrative Procedure Act of 1946.
Plain Writing Act of 2010
To ensure this final rule was written in plain and clear language
so that it can be used and understood by the public, NEH modeled the
language of this final rule on the Federal Plain Language Guidelines.
Lists of Subjects in 45 CFR 1168
Administrative practice and procedure, Lobbying, Penalties.
For the reasons stated in the preamble, the National Endowment for
the Humanities amends 45 CFR part 1168 as follows:
PART 1168--NEW RESTRICTIONS ON LOBBYING
0
1. The authority citation for part 1168 is revised to read as follows:
Authority: 20 U.S.C. 959(a)(1); 28 U.S.C. 2461 note; 31 U.S.C.
1352.
0
2. Amend Sec. 1168.400:
0
a. By removing ``$10,000'' and adding in its place ``$20,489'' and by
removing ``$100,000'' and adding in its place ``$204,892'',
respectively, each place they appear in paragraphs (a), (b), and (e);
and
0
b. By adding paragraph (g).
The addition reads as follows:
Sec. 1168.400 Penalties.
* * * * *
(g) The penalty amounts listed under paragraphs (a), (b), and (e)
of this section shall be adjusted annually for inflation. NEH will
publish a document in the Federal Register containing the new penalty
amounts no later than January 15 of each year.
0
3. Amend appendix A to part 1168:
0
a. By removing ``$10,000'' and adding in its place ``$20,489'' and by
removing ``$100,000'' and adding in its place ``$204,892'',
respectively, each place they appear; and
0
b. By adding a section entitled ``Annual Adjustments for Inflation'' at
the end.
The addition reads as follows:
Appendix A to Part 1168--Certification Regarding Lobbying
* * * * *
Annual Adjustments for Inflation
The penalty amounts listed in this appendix will be adjusted
annually for inflation. NEH will publish a document in the Federal
Register containing the new penalty amounts no later than January 15
of each year.
Dated: April 8, 2020.
Caitlin Cater,
Attorney-Advisor, National Endowment for the Humanities.
[FR Doc. 2020-07761 Filed 4-20-20; 8:45 am]
BILLING CODE 7536-01-P
