SUPPLEMENTARY INFORMATION:

Table of Contents

I. Statutory and Regulatory Background

II. Overview of Final Rule

III. Adjustments by Component

A. Cybersecurity and Infrastructure Security Agency

B. U.S. Customs and Border Protection

C. U.S. Immigration and Customs Enforcement

D. U.S. Coast Guard

E. Transportation Security Administration

IV. Administrative Procedure Act

V. Regulatory Analyses

A. Executive Orders 12866 and 13563

B. Regulatory Flexibility Act

C. Unfunded Mandates Reform Act

D. Paperwork Reduction Act

I. Statutory and Regulatory Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, sec. 701 (Nov. 2, 2015)) (2015 Act).^[1] The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to further improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act required agencies to: (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through issuance of an interim final rule (IFR) and (2) make subsequent annual adjustments for inflation.^[2] Through the “catch-up” adjustment, agencies were required to adjust the amounts of civil monetary penalties to more accurately reflect inflation rates.^[3]

For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment.^[4] The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments.^[5] The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the Federal Register .^[6]

Pursuant to the 2015 Act, DHS undertook a review of the civil penalties that DHS and its components administer.^[7] On July 1, 2016, DHS published an IFR adjusting the maximum civil monetary penalties with an initial “catch-up” adjustment, as required by the 2015 Act.^[8] DHS calculated the adjusted penalties based upon nondiscretionary provisions in the 2015 Act and upon guidance that OMB issued to agencies on February 24, 2016.^[9] The adjusted penalties were effective for civil penalties assessed after August 1, 2016 (the effective date of the IFR), whose associated violations occurred after November 2, 2015 (the date of enactment of the 2015 Act).^[10] In 2017 and in every year since, DHS published a final rule making the annual inflation adjustment.^[11]

II. Overview of the Final Rule

This final rule makes the 2025 annual inflation adjustments to civil monetary penalties pursuant to the 2015 Act and pursuant to guidance OMB issued to agencies on December 17, 2024.^[12] The penalty amounts in this final rule will be effective for penalties assessed after January 2, 2025 where the associated violation occurred after November 2, 2015. Consistent with OMB guidance, the 2015 Act does not retrospectively change previously assessed penalties that the agency is actively collecting or has collected.

We discuss civil penalties by DHS component in Section III below. For each component identified in Section III, below, we briefly describe the relevant civil penalty (or penalties), and we provide a table showing the increase in the penalties for 2025. In the table for ( printed page 2) each component, we show (1) the penalty name, (2) the penalty statutory and or regulatory citation, (3) the penalty amount as adjusted in the 2024 final rule, (4) the cost-of-living adjustment multiplier for 2025 that OMB provided in its December 17, 2024, guidance, and (5) the new 2025 adjusted penalty. The 2015 Act instructs agencies to round penalties to the nearest multiple of $1.^[13] For a more complete discussion of the method used for calculating the initial “catch-up” inflation adjustments and a component-by-component breakdown to the nature of the civil penalties and relevant legal authorities, please see the IFR preamble at 81 FR 42987-43000.

Finally, in issuing this final rule, it is DHS's intention that the rule's penalty provisions be considered severable from one another to the greatest extent possible. For example, if a court of competent jurisdiction were to hold that a particular penalty amount could not be applied as adjusted for inflation to particular persons or in particular circumstances, DHS would intend for the court to leave the remainder of the rule in place with respect to all other penalties as adjusted for inflation and covered persons and circumstances.

III. Adjustments by Component

In the following sections, we briefly describe the civil penalties that DHS and its components, the Cybersecurity and Infrastructure Security Agency (CISA), the U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), the U.S. Coast Guard (USCG), and the Transportation Security Administration (TSA), assess. Other components not mentioned do not impose any civil monetary penalties for 2025. At the end of each section, we include tables that list the individual adjustments for each penalty.

A. Cybersecurity and Infrastructure Security Agency

The Cybersecurity and Infrastructure Security Agency (CISA) administers the Chemical Facility Anti-Terrorism Standards (CFATS). CFATS is a program that regulates the security of chemical facilities that, in the discretion of the Secretary, present high levels of security risk. DHS established the CFATS program in 2007 pursuant to section 550 of the Department of Homeland Security Appropriations Act of 2007 (Pub. L. 109-295).^[14] Pursuant to section 5 of the Protecting and Securing Chemical Facilities from Terrorist Attacks Act of 2014 (Pub. L. 113-254, as amended by Pub. L. 116-150; 6 U.S.C. 621 note), authorization had been granted for CFATS until July 27, 2023. Congress did not act to reauthorize the program in time and, as such, the authorization expired on July 28, 2023. Therefore, regulations written pursuant to CFATS authority are not currently active. While regulatory text for the CFATS regulation, including a civil penalty, is located in part 27 of title 6 of the Code of Federal Regulations (CFR), the text is inactive due to the lapse in authority. For that reason, we are not adjusting the maximum civil penalty amount that CISA may assess at this time.

B. U.S. Customs and Border Protection

The U.S. Customs and Border Protection (CBP) assesses civil monetary penalties under various titles of the United States Code (U.S.C.) and the CFR. These include penalties for certain violations of title 8 of the CFR regarding the Immigration and Nationality Act of 1952 (Pub. L. 82-414, as amended) (INA). The INA contains provisions that impose penalties on persons, including carriers and noncitizens, who violate specified provisions of the INA. The relevant penalty provisions appear in numerous sections of the INA; however, CBP has enumerated these penalties in regulation in one location—8 CFR 280.53. For a complete list of the INA sections for which penalties are assessed, in addition to a brief description of each violation, see the 2016 IFR preamble at 81 FR 42989-42990. For a complete list and brief description of the non-INA civil monetary penalties assessed by CBP subject to adjustment and a discussion of the history of the DHS and CBP adjustments to the non-INA penalties, see the 2019 annual inflation adjustment final rule preamble at 84 FR 13499, 13500 (April 5, 2019).

Table 1 shows the 2025 adjustment for the penalties that CBP administers.

C. U.S. Immigration and Customs Enforcement

U.S. Immigration and Customs Enforcement (ICE) assesses civil monetary penalties for certain employment-related violations arising from the INA. ICE's civil penalties are located in title 8 of the CFR.

There are three different sections in the INA that impose civil monetary penalties for violations of the laws that relate to employment actions: sections 274A, 274B, and 274C. ICE has primary enforcement responsibilities for two of these civil penalty provisions (sections 274A and 274C), and the Department of Justice (DOJ) has enforcement responsibilities for one of these civil penalty provisions (section 274B). The INA, in sections 274A and 274C, provides for imposition of civil penalties for various specified unlawful acts pertaining to the employment eligibility verification process (Form I-9, Employment Eligibility Verification), the employment of unauthorized noncitizens, and document fraud.

Because both DHS and DOJ implement the three employment-related penalty sections in the INA, both Departments' implementing regulations reflect the civil penalty amounts. For a complete description of the civil money penalties assessed and a discussion of DHS's and DOJ's efforts to update the penalties in years past, see the IFR preamble at 81 FR 42991. Table 2 shows the 2025 adjustment for the penalties that ICE administers.^[15]

( printed page 4)

D. U.S. Coast Guard

The Coast Guard is authorized to assess the following penalties involving maritime safety and security and environmental stewardship that are critical to the continued success of Coast Guard missions. Various statutes in titles 14, 16, 19, 33, 42, 46, and 49 of the U.S.C. authorize these penalties. Titles 33 and 46 authorize the vast majority of these penalties as these statutes deal with navigation, navigable waters, and shipping. For a more detailed discussion of the civil monetary penalties assessed by the Coast Guard, see the 2016 IFR preamble at 81 FR 42992.

The Coast Guard has identified the penalties it administers and adjusted those penalties for inflation in a table located in the CFR—specifically, Table 1 in 33 CFR 27.3. Table 1 in 33 CFR 27.3 identifies the statutes that provide the Coast Guard with civil monetary penalty authority and sets out the inflation-adjusted maximum penalty that the Coast Guard may impose pursuant to each statutory provision. Table 1 in 33 CFR 27.3 provides the current maximum penalty for violations that occurred after November 2, 2015. The applicable civil monetary penalty amounts for violations occurring on or before November 2, 2015, are set forth in previously published regulations amending 33 CFR part 27. To find the applicable penalty amount for a violation that occurred on or before November 2, 2015, look to the prior versions of the CFR that pertain to the date on which the violation occurred. Table 3 below shows the 2025 adjustment for the penalties that the Coast Guard administers.

E. Transportation Security Administration

The Transportation Security Administration (TSA) is updating its civil penalties regulation in accordance with the 2015 Act. Pursuant to its statutory authority in 49 U.S.C. 46301(a)(1), (4), (5), (6), 49 U.S.C. 46301(d)(2), (8), and 49 U.S.C. 114(u), TSA may impose penalties for violations of statutes that TSA administers, including penalties for violations of implementing regulations or orders. Note that pursuant to division K, title I, sec. 1904(b)(1)(I), of Public Law 115-254, 132 Stat. 3186, 3545 (Oct. 5, 2018), the TSA Modernization Act—part of the FAA Reauthorization Act of 2018—the former 49 U.S.C. 114(v), which relates to penalties, was re-designated as 49 U.S.C. 114(u).

TSA assesses these penalties for a wide variety of aviation and surface security requirements, including violations of TSA's requirements applicable to Transportation Worker Identification Credentials (TWIC),^[16] as well as violations of requirements described in chapter 449 of title 49 of ( printed page 8) the U.S.C. These penalties can apply to a wide variety of situations, as described in the statutory and regulatory provisions, as well as in guidance that TSA publishes. Table 4 shows the 2025 adjustment for the penalties that TSA administers.

IV. Administrative Procedure Act

The Administrative Procedure Act (“APA”) (5 U.S.C. 551 et seq.) require agencies, when conducting rulemaking, to provide advance public notice, seek public comment, and provide a thirty-day delayed effective date. An agency may issue a rule without first providing an opportunity for notice and comment if the agency makes a finding of good cause that notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Notice and comment procedures are unnecessary, for example, if Congress requires non-discretionary action of an agency, leaving the agency without discretion to vary its action in response to the views or suggestions of public commenters.

DHS finds that notice and comment procedures are not required for these annual inflation adjustments. The 2015 Act had instructed agencies to make the required annual adjustments “notwithstanding section 553 of title 5 of the U.S.C.” (See 28 U.S.C. 2461 note). Furthermore, DHS has good cause to forgo notice and comment procedures because such procedures would be unnecessary due to DHS's lack of discretion in updating the penalties. As required by the 2015 Act, DHS is updating the penalty amounts by applying the cost-of-living adjustment multiplier that OMB has provided to agencies. For the same reasons, DHS also finds that it has good cause to forgo a delayed effective date under section 553(d) of the APA.

V. Regulatory Analyses

A. Executive Orders 12866 and 13563

Executive Orders 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14094 (“Modernizing Regulatory Review”), and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

OMB has not designated this final rule a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, OMB has not reviewed this rule. This final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the 2015 Act and OMB guidance.^[17] DHS therefore did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this final rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act applies only to rules for which an agency publishes a notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice of proposed rulemaking was not required for the reasons stated above.

C. Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. This final rule will not result in such an expenditure. ( printed page 9)

D. 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 this final rule does not trigger any new or revised recordkeeping or reporting.

Amendments to the Regulations

Accordingly, for the reasons stated in the preamble, DHS is amending 8 CFR parts 270, 274a, and 280, 19 CFR part 4, 33 CFR part 27, and 49 CFR part 1503 as follows:

Title 8—Aliens and Nationality Title 19—Customs Duties Title 33—Navigation and Navigable Waters