28 C.F.R. § 85.5

Current through September 30, 2024
Section 85.5 - Adjustments to penalties for violations occurring after November 2, 2015
(a) For civil penalties assessed after February 12, 2024, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are adjusted as set forth in the seventh column of table 1 to this section.
(b) For civil penalties assessed after January 30, 2023, and on or before February 12, 2024 whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the sixth column of table 1 to this section. For civil penalties assessed after May 9, 2022, and on or before January 30, 2023, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the fifth column of table 1 to this section. For civil penalties assessed after December 13, 2021, and on or before May 9, 2022, whose associated violations occurred after November 2, 2015, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in the fourth column of table 1 to this section.
(c) For civil penalties assessed on or before December 13, 2021, the civil monetary penalties provided by law within the jurisdiction of the Department are set forth in 28 CFR 85.5 (July 1, 2020).
(d) All figures set forth in table 1 to this section are maximum penalties, unless otherwise indicated.

Table 1 to § 85.5

U.S.C. citationName/descriptionCFR citationDOJ penalty
assessed
after
12/13/2021
($)
DOJ penalty
assessed
after
5/9/2022
($)
DOJ penalty
assessed after
1/30/2023 FN1
($)
DOJ penalty
assessed after
2/12/2024 FN2
($)
ATF
1 8 U.S.C. 922(t)(5) Brady Law-Nat'l Instant Criminal Check System (NICS); Transfer of firearm without checking NICS8,9359,49110,22610,557
1 8 U.S.C. 924(p) Child Safety Lock Act; Secure gun storage or safety device, violation3,2683,4713,7403,861
Civil Division
12 U.S.C. 1833a(b)(1) Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA) Violation28 CFR 85.3(a)(6) 2,073,1332,202,1232,372,6772,449,575
12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing) (per day)28 CFR 85.3(a)(7) 2,073,1332,202,1232,372,6772,449,575
12 U.S.C. 1833a(b)(2) FIRREA Violation (continuing)28 CFR 85.3(a)(7) 10,365,66811,010,62011,863,39312,247,886
22 U.S.C. 2399b(a)(3)(A) Foreign Assistance Act; Fraudulent Claim for Assistance (per act)28 CFR 85.3(a)(8) 6,0216,3966,8917,114
31 U.S.C. 3729(a) False Claims Act; FN3 Violations28 CFR 85.3(a)(9) Min 11,803,
Max 23,607
Min 12,537,
Max 25,076
Min 13,508,
Max 27,018
Min 13,946,
Max 27,894
31 U.S.C. 3802(a)(1) Program Fraud Civil Remedies Act; Violations Involving False Claim (per claim)28 CFR 71.3(a) 11,80312,53713,50813,946
31 U.S.C. 3802(a)(2) Program Fraud Civil Remedies Act; Violation Involving False Statement (per statement)28 CFR 71.3(f) 11,80312,53713,50813,946
40 U.S.C. 123(a)(1)(A) Federal Property and Administrative Services Act; Violation Involving Surplus Government Property (per act)28 CFR 85.3(a)(12) 6,0216,3966,8917,114
41 U.S.C. 8706(a)(1)(B) Anti-Kickback Act; Violation Involving Kickbacks FN4 (per occurrence)28 CFR 85.3(a)(13) 23,60725,07627,01827,894
1 8 U.S.C. 2723(b) Driver's Privacy Protection Act of 1994; Prohibition on Release and Use of Certain Personal Information from State Motor Vehicle Records-Substantial Non-compliance (per day)8,7089,2509,96610,289
1 8 U.S.C. 216(b) Ethics Reform Act of 1989; Penalties for Conflict of Interest Crimes FN5 (per violation)28 CFR 85.3(c) 103,657110,107118,635122,480
41 U.S.C. 2105(b)(1) Office of Federal Procurement Policy Act; FN6 Violation by an individual (per violation)108,315115,054123,965127,983
41 U.S.C. 2105(b)(2) Office of Federal Procurement Policy Act; FN6 Violation by an organization (per violation)1,083,1401,150,5331,239,6421,279,819
42 U.S.C. 5157(d) Disaster Relief Act of 1974; FN7 Violation (per violation)13,68514,53615,66216,170
Civil Rights Division (excluding immigration-related penalties)
1 8 U.S.C. 248(c)(2)(B)(i) Freedom of Access to Clinic Entrances Act of 1994 ("FACE Act"); Nonviolent physical obstruction, first violation28 CFR 85.3(b)(1)(i) 17,36418,44419,87220,516
1 8 U.S.C. 248(c)(2)(B)(ii) FACE Act; Nonviolent physical obstruction, subsequent violation28 CFR 85.3(b)(1)(ii) 26,12527,75029,89930,868
1 8 U.S.C. 248(c)(2)(B)(i) FACE Act; Violation other than a nonviolent physical obstruction, first violation28 CFR 85.3(b)(2)(i) 26,12527,75029,89930,868
1 8 U.S.C. 248(c)(2)(B)(ii) FACE Act; Violation other than a nonviolent physical violation)28 CFR 85.3(b)(2)(ii) 43,54346,25249,83451,449
42 U.S.C. 3614(d)(1)(C)(i) Fair Housing Act of 1968; first violation28 CFR 85.3(b)(3)(i) 108,315115,054123,965127,983
42 U.S.C. 3614(d)(1)(C)(ii) Fair Housing Act of 1968; subsequent violation28 CFR 85.3(b)(3)(ii) 216,628230,107247,929255,964
42 U.S.C. 12188(b)(2)(C)(i) Americans With Disabilities Act; Public accommodations for individuals with disabilities, first violation28 CFR 36.504(a)(3)(i) 97,523103,591111,614115,231
42 U.S.C. 12188(b)(2)(C)(ii) Americans With Disabilities Act; Public accommodations for individuals with disabilities subsequent violation28 CFR 36.504(a)(3)(ii) 195,047207,183223,229230,464
50 U.S.C. 4041(b)(3) Servicemembers Civil Relief Act of 2003; first violation28 CFR 85.3(b)(4)(i) 65,48069,55474,94177,370
50 U.S.C. 4041(b)(3) Servicemembers Civil Relief Act of 2003; subsequent violation28 CFR 85.3(b)(4)(ii) 130,961139,109149,883154,741
Criminal Division
1 8 U.S.C. 983(h)(1) Civil Asset Forfeiture Reform Act of 2000; Penalty for Frivolous Assertion of ClaimMin 374,
Max 7,482
Min 397,
Max 7,948
Min 428,
Max 8,564
Min 442,
Max 8,842
1 8 U.S.C. 1956(b) Money Laundering Control Act of 1986; Violation FN823,60725,07627,01827,894
DEA
21 U.S.C. 844a(a) Anti-Drug Abuse Act of 1988; Possession of small amounts of controlled substances (per violation)28 CFR 76.3(a) 21,66323,01124,79325,597
21 U.S.C. 961(1) Controlled Substance Import Export Act; Drug abuse, import or export28 CFR 85.3(d) 75,26779,95086,14288,934
21 U.S.C. 842(c)(1)(A) Controlled Substances Act ("CSA"); Violations of 842(a)-other than (5), (10), (16) and (17)-Prohibited acts re: controlled substances (per violation)68,42672,68378,31280,850
21 U.S.C. 842(c)(1)(B)(i) CSA; Violations of 842(a)(5), (10), and (17)-Prohibited acts re: controlled substances15,87616,86418,17018,759
21 U.S.C. 842(c)(1)(B)(ii) -SUPPORT for Patients and Communities Act; FN9 Violations of 842(b)(ii)-Failures re: opioids102,967109,374117,845121,664
21 U.S.C. 842(c)(1)(C) CSA; Violation of 825(e) by importer, exporter, manufacturer, or distributor-False labeling of anabolic steroids (per violation)548,339582,457627,568647,907
21 U.S.C. 842(c)(1)(D) CSA; Violation of 825(e) at the retail level-False labeling of anabolic steroids (per violation)1,0971,1651,2551,296
21 U.S.C. 842(c)(2)(C) CSA; Violation of 842(a)(11) by a business-Distribution of laboratory supply with reckless disregard FN10411,223436,809470,640485,893
21 U.S.C. 842(c)(2)(D) SUPPORT for Patients and Communities Act; FN9 Violations of 842(a)(5), (10) and (17) by a registered manufacture or distributor of opioids. Failures re: opioids514,834546,867589,222608,319
21 U.S.C. 856(d) Illicit Drug Anti-Proliferation Act of 2003; Maintaining drug-involved premises FN11379,193402,786433,982448,047
Immigration-Related Penalties FN12
8 U.S.C. 1324a(e)(4)(A)(i) Immigration Reform and Control Act of 1986 ("IRCA"); Unlawful employment of aliens, first order (per unauthorized alien)28 CFR 68.52(c)(1)(i) Min 590,
Max 4,722
Min 627,
Max 5,016
Min 676,
Max 5,404
Min 698,
Max 5,579
8 U.S.C. 1324a(e)(4)(A)(ii) IRCA; Unlawful employment of aliens, second order (per such alien)28 CFR 68.52(c)(1)(ii) Min 4,722,
Max 11,803
Min 5,016,
Max 12,537
Min 5,404,
Max 13,508
Min 5,579,
Max 13,946
8 U.S.C. 1324a(e)(4)(A)(iii) IRCA; Unlawful employment of aliens, subsequent order (per such alien)28 CFR 68.52(c)(1)(iii) Min 7,082,
Max 23,607
Min 7,523,
Max 25,076
Min 8,106,
Max 27,018
Min 8,369,
Max 27,894
8 U.S.C. 1324a(e)(5) IRCA; Paperwork violation (per relevant individual)28 CFR 68.52(c)(5) Min 237,
Max 2,360
Min 252,
Max 2,507
Min 272,
Max 2,701
Min 281,
Max 2,789
8 U.S.C. 1324a (note)IRCA; Violation relating to participating employer's failure to notify of final nonconfirmation of employee's employment eligibility (per relevant individual)28 CFR 68.52(c)(6) Min 823,
Max 1,644
Min 874,
Max 1,746
Min 942,
Max 1,881
Min 973,
Max 1,942
8 U.S.C. 1324a(g)(2) IRCA; Violation/prohibition of indemnity bonds (per violation)28 CFR 68.52(c)(7) 2,3602,5072,7012,789
8 U.S.C. 1324b(g)(2)(B)(iv)(I) IRCA; Unfair immigration-related employment practices, first order (per individual discriminated against)28 CFR 68.52(d)(1) (viii)Min 487,
Max 3,901
Min 517,
Max 4,144
Min 557,
Max 4,465
Min 575,
Max 4,610
8 U.S.C. 1324b(g)(2)(B)(iv)(II) IRCA; Unfair immigration-related employment practices, second order (per individual discriminated against)28 CFR 68.52(d)(1)(ix) Min 3,901,
Max 9,753
Min 4,144,
Max 10,360
Min 4,465,
Max 11,162
Min 4,610,
Max 11,524
8 U.S.C. 1324b(g)(2)(B)(iv)(III) IRCA; Unfair immigration-related employment practices, subsequent order (per individual discriminated against)28 CFR 68.52(d)(1)(x) Min 5,851,
Max 19,505
Min 6,215,
Max 20,719
Min 6,696,
Max 22,324
Min 6,913,
Max 23,048
8 U.S.C. 1324b(g)(2)(B)(iv) (I V)IRCA; Unfair immigration-related employment practices, unfair documentary practices (per individual discriminated against)28 CFR 68.52(d)(1)(xii) Min 195,
Max 1,951
Min 207,
Max 2,072
Min 223,
Max 2,232
Min 230,
Max 2,304
8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order-for violations described in U.S.C. 1324c(a)(1)-(4) (per document)28 CFR 68.52(e)(1)(i) Min 487,
Max 3,901
Min 517,
Max 4,144
Min 557,
Max 4,465
Min 575,
Max 4,610
8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order-for violations described in U.S.C. 1324c(a)(1)-(4) (per document)28 CFR 68.52(e)(1)(iii) Min 3,901,
Max 9,753
Min 4,144,
Max 10,360
Min 4,465,
Max 11,162
Min 4,610,
Max 11,524
8 U.S.C. 1324c(d)(3)(A) IRCA; Document fraud, first order-for violations described in U.S.C. 1324c(a)(5)-(6) (per document)28 CFR 68.52(e)(1)(ii) Min 412,
Max 3,289
Min 438,
Max 3,494
Min 472,
Max 3,765
Min 487,
Max 3,887
8 U.S.C. 1324c(d)(3)(B) IRCA; Document fraud, subsequent order-for violations described in U.S.C. 1324c(a)(5)-(6) (per document)28 CFR 68.52(e)(1)(iv) Min 3,289,
Max 8,224
Min 3,494,
Max 8,736
Min 3,765,
Max 9,413
Min 3,887,
Max 9,718
FBI
49 U.S.C. 30505(a) National Motor Vehicle Title Identification System; Violation (per violation)1,7421,8501,9932,058
Office of Justice Programs
34 U.S.C. 10231(d) Confidentiality of information; State and Local Criminal History Record Information Systems-Right to Privacy Violation28 CFR 20.25 30,10731,98034,45735,574

1 The figures set forth in this column represent the penalty as last adjusted by Department of Justice regulation on January 30, 2023.

2 All figures set forth in this table are maximum penalties, unless otherwise indicated.

3 Section 3729(a)(1) of Title 31 provides that any person who violates this section is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, as adjusted by the Federal Civil Penalties Inflation Adjustment Act of 1990, plus 3 times the amount of damages which the Government sustains because of the act of that person. 31 U.S.C. 3729(a)(1) (2015). Section 3729(a)(2) permits the court to reduce the damages under certain circumstances to not less than 2 times the amount of damages which the Government sustains because of the act of that person. Id. section 3729(a)(2). The adjustment made by this regulation is only applicable to the specific statutory penalty amounts stated in subsection (a)(1), which is only one component of the civil penalty imposed under section 3729(a)(1).

4 Section 8706(a)(1) of Title 41 provides that the Federal Government in a civil action may recover from a person that knowingly engages in conduct prohibited by section 8702 of Title 44 a civil penalty equal to twice the amount of each kickback involved in the violation and not more than $10,000 for each occurrence of prohibited conduct. 41 U.S.C. 8706(a)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (a)(1)(B), which is only one component of the civil penalty imposed under section 8706.

5 Section 216(b) of Title 18 provides that the civil penalty should be no more than $50,000 for each violation or the amount of compensation which the person received or offered for the prohibited conduct, whichever amount is greater. 1 8 U.S.C. 216(b) (2015). Therefore, the adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b), which is only one aspect of the possible civil penalty imposed under section 216(b).

6 Section 2105(b) of Title 41 provides that the Attorney General may bring a civil action in an appropriate district court of the United States against a person that engages in conduct that violates section 2102, 2103, or 2104 of Title 41. 41 U.S.C. 2105(b) (2015). Section 2105(b) further provides that on proof of that conduct by a preponderance of the evidence, an individual is liable to the Federal Government for a civil penalty of not more than $50,000 for each violation plus twice the amount of compensation that the individual received or offered for the prohibited conduct, and an organization is liable to the Federal Government for a civil penalty of not more than $500,000 for each violation plus twice the amount of compensation that the organization received or offered for the prohibited conduct. Id. section 2105(b). The adjustments made by this regulation are only applicable to the specific statutory penalty amounts stated in subsections (b)(1) and (b)(2), which are each only one component of the civil penalties imposed under sections 2105(b)(1) and (b)(2).

7 The Attorney General has authority to bring a civil action when a person has violated or is about to violate a provision under this statute. 42 U.S.C. 5157(b) (2015). The Federal Emergency Management Agency has promulgated regulations regarding this statute and has adjusted the penalty in its regulation. 44 CFR 206.14(d) (2015). The Department of Health and Human Services (HHS) has also promulgated a regulation regarding the penalty under this statute. 42 CFR 38.8 (2015).

8 Section 1956(b)(1) of Title 18 provides that whoever conducts or attempts to conduct a transaction described in subsection (a)(1) or (a)(3), or section 1957, or a transportation, transmission, or transfer described in subsection (a)(2), is liable to the United States for a civil penalty of not more than the greater of the value of the property, funds, or monetary instruments involved in the transaction; or $10,000. 1 8 U.S.C. 1956(b)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (b)(1)(B), which is only one aspect of the possible civil penalty imposed under section 1956(b).

9 The SUPPORT for Patients and Communities Act, Public Law 115-221 was enacted Oct. 24, 2018.

10 Section 842(c)(2)(C) of Title 21 provides that in addition to the penalties set forth elsewhere in the subchapter or subchapter II of the chapter, any business that violates paragraph (11) of subsection (a) of the section shall, with respect to the first such violation, be subject to a civil penalty of not more than $250,000, but shall not be subject to criminal penalties under the section, and shall, for any succeeding violation, be subject to a civil fine of not more than $250,000 or double the last previously imposed penalty, whichever is greater. 21 U.S.C. 842(c)(2)(C) (2015). The adjustment made by this regulation regarding the penalty for a succeeding violation is only applicable to the specific statutory penalty amount stated in subsection (c)(2)(C), which is only one aspect of the possible civil penalty for a succeeding violation imposed under section 842(c)(2)(C).

11 Section 856(d)(1) of Title 21 provides that any person who violates subsection (a) of the section shall be subject to a civil penalty of not more than the greater of $250,000; or 2 times the gross receipts, either known or estimated, that were derived from each violation that is attributable to the person. 21 U.S.C. 856(d)(1) (2015). The adjustment made by this regulation is only applicable to the specific statutory penalty amount stated in subsection (d)(1)(A), which is only one aspect of the possible civil penalty imposed under section 856(d)(1).

12 The date of assessment for purposes of calculating the minimum and maximum civil money penalties for violations of 8 U.S.C. 1324a under 28 CFR 85.5 is the date of the OCAHO final order, rather than the date of service of the Notice of Intent to Fine. United States v. Edgemont Group, LLC, 17 OCAHO no. 1470e (2023).

28 C.F.R. §85.5

89 FR 9766, Feb. 12, 2024
81 FR 42500, 8/1/2016; AG Order 3823-2017, 82 FR 9133, 2/3/2017; AG Order 4093-2018, 83 FR 3945, 1/29/2018; AG Order No. 4693-2020, 85 FR 37005, 6/19/2020; AG Order No. 5236-2021, 86 FR 70742, 12/13/2021; 87 FR 27515, 5/9/2022; 88 FR 5778, 1/30/2023; 89 FR 9766, 2/12/2024