Civil Monetary Penalty Inflation Adjustment, 1173-1174 [2018-00290]

Download as PDF 1173 Rules and Regulations Federal Register Vol. 83, No. 7 Wednesday, January 10, 2018 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. MERIT SYSTEMS PROTECTION BOARD 5 CFR Part 1201 Civil Monetary Penalty Inflation Adjustment AGENCY: Merit Systems Protection Board. ACTION: Final rule. This final rule adjusts the level of civil monetary penalties (CMPs) in regulations maintained and enforced by the Merit Systems Protection Board (MSPB) with an annual adjustment under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) and Office of Management and Budget (OMB) guidance. DATES: This final rule is effective on January 10, 2018. FOR FURTHER INFORMATION CONTACT: Jennifer Everling, Acting Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 20419; Phone: (202) 653–7200; Fax: (202) 653–7130; or email: mspb@ mspb.gov. SUPPLEMENTARY INFORMATION: jstallworth on DSKBBY8HB2PROD with RULES SUMMARY: I. Background The Federal Civil Penalties Inflation Adjustment Act of 1990 (the 1990 Act), Public Law 101–410, provided for the regular evaluation of CMPs by Federal agencies. Periodic inflationary adjustments of CMPs ensure that the consequences of statutory violations adequately reflect the gravity of such offenses and that CMPs are properly accounted for and collected by the Federal Government. In April 1996, the 1990 Act was amended by the Debt Collection Improvement Act of 1996 (the 1996 Act), Public Law 104–134, which required Federal agencies to adjust their CMPs at least once every four years. However, because inflationary adjustments to CMPs were statutorily capped at ten percent of the VerDate Sep<11>2014 15:18 Jan 09, 2018 Jkt 244001 maximum penalty amount, but only required to be calculated every four years, CMPs in many cases did not correspond with the true measure of inflation over the preceding four-year period, leading to a decline in the real value of the penalty. To remedy this decline, the 2015 Act (section 701 of Pub. L. 114–74) requires agencies to adjust CMP amounts with annual inflationary adjustments through a rulemaking using a methodology mandated by the legislation. The purpose of these adjustments is to maintain the deterrent effect of civil penalties. A civil monetary penalty is ‘‘any penalty, fine, or other sanction’’ that: (1) ‘‘is for a specific amount’’ or ‘‘has a maximum amount’’ under Federal law; and (2) a Federal agency assesses or enforces ‘‘pursuant to an administrative proceeding or a civil action in the Federal courts.’’ The MSPB is authorized to assess CMPs pursuant to 5 U.S.C. 1215(a)(3) and 5 U.S.C. 7326 in disciplinary actions brought by the Special Counsel. The corresponding MSPB regulation for both CMPs is 5 CFR 1201.126(a). As required by the 2015 Act, and pursuant to guidance issued by the OMB, the MSPB is now making an annual adjustment for 2018, according to the prescribed formulas. II. Calculation of Adjustment The CMP listed in 5 U.S.C. 1215(a)(3) was established in 1978 with the enactment of the Civil Service Reform Act of 1978 (CSRA), Public Law 95–454, section 202(a), 92 Stat. 1121–30 (Oct. 13, 1978), and originally codified at 5 U.S.C. 1207(b). That CMP was last amended by section 106 of the Whistleblower Protection Enhancement Act of 2012, Public Law 112–199, 12 Stat. 1468 (Nov. 27, 2012), now codified at 5 U.S.C. 1215(a)(3), which provided for a CMP ‘‘not to exceed $1,000’’. The CMP authorized in 5 U.S.C. 7326 was established in 2012 by section 4 of the Hatch Act Modernization Act of 2012 (Hatch Act), Public Law 112–230, 126 Stat. 1617 (Dec. 28, 2012), which provided for a CMP ‘‘not to exceed $1,000.’’ On June 5, 2017, the MSPB issued a final rule which increased the maximum CMP allowed under both 5 U.S.C. 1215(a)(3) and 5 U.S.C. 7326 to $1,045 for the year 2017. See 82 FR 25715 (June 5, 2017). This increase PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 reflected both a catch-up adjustment and an annual increase for the year 2017, as mandated by the 2015 Act. On December 15, 2017, OMB issued guidance on calculating the annual inflationary adjustment for 2018. See Memorandum from Mick Mulvaney, Dir., OMB, to Heads of Executive Departments and Agencies re: Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, M–18–03 (Dec. 15, 2017). Therein, OMB notified agencies that the annual adjustment multiplier for 2018, based on the Consumer Price Index for All Urban Consumers (CPI–U), is 1.02041 and that the 2018 annual adjustment amount is obtained by multiplying the 2017 penalty amount by the 2018 annual adjustment multiplier, and rounding to the nearest dollar. Therefore, the new maximum penalty under the CSRA and the Hatch Act is $1,045 × 1.02041 = $1,066.32, which rounds to $1,066. III. Effective Date of Penalties The revised CMP amounts will go into effect on January 10, 2018. All violations for which CMPs are assessed after the effective date of this rule will be assessed at the adjusted penalty level regardless of whether the violation occurred before the effective date. IV. Procedural Requirements A. Administrative Procedure Act Pursuant to 5 U.S.C. 553(b), the MSPB has determined that good cause exists for waiving the general notice of proposed rulemaking and public comment procedures as to these technical amendments. The notice and comment procedures are being waived because Congress has specifically exempted agencies from these requirements when implementing the 2015 Act. The 2015 Act explicitly requires the agency to make subsequent annual adjustments notwithstanding 5 U.S.C. 553, the section of the Administrative Procedure Act that normally requires agencies to engage in notice and comment. It is also in the public interest that the adjusted rates for CMPs under the CSRA and the Hatch Act become effective as soon as possible to maintain their effective deterrent effect. E:\FR\FM\10JAR1.SGM 10JAR1 1174 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations B. Regulatory Impact Analysis: E.O. 12866 The MSPB has determined that this is not a significant regulatory action under E.O. 12866. Therefore, no regulatory impact analysis is required. C. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). As discussed above, the 2015 Act does not require agencies to first publish a proposed rule when adjusting CMPs within their jurisdiction. Thus, the RFA does not apply to this final rule. D. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule: (a) Does not have an annual effect on the economy of $100 million or more; (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreignbased enterprises. jstallworth on DSKBBY8HB2PROD with RULES E. Unfunded Mandates Reform Act of 1995 This rule does not involve a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that such rulemaking will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532). F. E.O. 12630, Government Actions and Interference With Constitutionally Protected Property Rights This rule does not have takings implications. G. E.O. 13132, Federalism This rule does not have Federalism implications. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or on the VerDate Sep<11>2014 15:18 Jan 09, 2018 Jkt 244001 distribution of power and responsibilities among the various levels of government. H. E.O. 12988, Civil Justice Reform The MSPB has reviewed this rule in light of E.O. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden. I. E.O. 13175, Consultation and Coordination With Indian Tribal Governments In accordance with E.O. 13175, the MSPB has evaluated this rule and determined that it has no tribal implications. J. Paperwork Reduction Act This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104–13 (44 U.S.C. Chapter 35). List of Subjects in 5 CFR Part 1201 Administrative practice and procedure, Civil rights, Government employees. For the reasons set forth above, 5 CFR part 1201 is amended as follows: PART 1201—PRACTICES AND PROCEDURES 1. The authority citation for part 1201 continues to read as follows: ■ Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted. § 1201.126 [Amended] 2. Section 1201.126 is amended in paragraph (a) by removing ‘‘$1,045’’ and adding in its place ‘‘$1,066.’’ ■ Jennifer Everling, Acting Clerk of the Board. [FR Doc. 2018–00290 Filed 1–9–18; 8:45 am] BILLING CODE 7400–01–P DEPARTMENT OF ENERGY 10 CFR Part 205 RIN 1901–AB40 Grid Security Emergency Orders: Procedures for Issuance Office of Electricity Delivery and Energy Reliability, U.S. Department of Energy. ACTION: Final rule. AGENCY: The U.S. Department of Energy (‘‘DOE’’) is issuing a final rule that establishes procedural regulations concerning the Secretary of Energy’s SUMMARY: PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 issuance of an emergency order under the Federal Power Act. The statute authorizes the Secretary of Energy to order emergency measures, following a Presidential declaration of a grid security emergency, to protect or restore the reliability of critical electric infrastructure or defense critical electric infrastructure during the emergency. A grid security emergency could result from a physical attack, a cyber-attack using electronic communication, an electromagnetic pulse (EMP), or a geomagnetic storm event, damaging certain electricity infrastructure assets and impairing the reliability of the Nation’s power grid. The procedures established by this final rule will ensure the expeditious issuance of emergency orders under the Federal Power Act. DATES: These procedures are effective as of January 10, 2018. FOR FURTHER INFORMATION CONTACT: Jeffrey Baumgartner, (202) 586–1411; U.S. Department of Energy, Office of Electricity Delivery and Energy Reliability, Mailstop OE–20, Room 8G– 017, 1000 Independence Avenue SW, Washington, DC 20585; or oeregs@ hq.doe.gov. SUPPLEMENTARY INFORMATION: I. Background The Fixing America’s Surface Transportation Act (FAST Act or the Act), Public Law 114–94, contains several provisions designed to protect and enhance the Nation’s electric power delivery infrastructure. Section 61003 adds a new section 215A, titled ‘‘Critical Electric Infrastructure Security,’’ to Part II of the Federal Power Act (FPA), codified at 16 U.S.C. 824o–1. New section 215A(a) defines, among other terms, a ‘‘grid security emergency,’’ and authorizes the Secretary of Energy to order emergency measures after the President declares a grid security emergency. A grid security emergency could result from a physical attack, a cyber-attack using electronic communication, an electromagnetic pulse (EMP), or a geomagnetic storm event, damaging certain electricity infrastructure assets and impairing the reliability of the Nation’s power grid. Emergency orders responding to grid security emergencies would aim to mitigate or eliminate threats to reliability as quickly and efficiently as possible. The statute authorizes the Secretary of Energy to issue orders for emergency measures as are necessary, in the Secretary’s judgment, to protect or restore the reliability of critical electric infrastructure or defense critical electric infrastructure during the emergency. E:\FR\FM\10JAR1.SGM 10JAR1

Agencies

[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)]
[Rules and Regulations]
[Pages 1173-1174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00290]



========================================================================
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. 

========================================================================


Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / 
Rules and Regulations

[[Page 1173]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Civil Monetary Penalty Inflation Adjustment

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule adjusts the level of civil monetary penalties 
(CMPs) in regulations maintained and enforced by the Merit Systems 
Protection Board (MSPB) with an annual adjustment under the Federal 
Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 
2015 Act) and Office of Management and Budget (OMB) guidance.

DATES: This final rule is effective on January 10, 2018.

FOR FURTHER INFORMATION CONTACT: Jennifer Everling, Acting Clerk of the 
Board, Merit Systems Protection Board, 1615 M Street NW, Washington, DC 
20419; Phone: (202) 653-7200; Fax: (202) 653-7130; or email: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal Civil Penalties Inflation Adjustment Act of 1990 (the 
1990 Act), Public Law 101-410, provided for the regular evaluation of 
CMPs by Federal agencies. Periodic inflationary adjustments of CMPs 
ensure that the consequences of statutory violations adequately reflect 
the gravity of such offenses and that CMPs are properly accounted for 
and collected by the Federal Government. In April 1996, the 1990 Act 
was amended by the Debt Collection Improvement Act of 1996 (the 1996 
Act), Public Law 104-134, which required Federal agencies to adjust 
their CMPs at least once every four years. However, because 
inflationary adjustments to CMPs were statutorily capped at ten percent 
of the maximum penalty amount, but only required to be calculated every 
four years, CMPs in many cases did not correspond with the true measure 
of inflation over the preceding four-year period, leading to a decline 
in the real value of the penalty. To remedy this decline, the 2015 Act 
(section 701 of Pub. L. 114-74) requires agencies to adjust CMP amounts 
with annual inflationary adjustments through a rulemaking using a 
methodology mandated by the legislation. The purpose of these 
adjustments is to maintain the deterrent effect of civil penalties.
    A civil monetary penalty is ``any penalty, fine, or other 
sanction'' that: (1) ``is for a specific amount'' or ``has a maximum 
amount'' under Federal law; and (2) a Federal agency assesses or 
enforces ``pursuant to an administrative proceeding or a civil action 
in the Federal courts.''
    The MSPB is authorized to assess CMPs pursuant to 5 U.S.C. 
1215(a)(3) and 5 U.S.C. 7326 in disciplinary actions brought by the 
Special Counsel. The corresponding MSPB regulation for both CMPs is 5 
CFR 1201.126(a). As required by the 2015 Act, and pursuant to guidance 
issued by the OMB, the MSPB is now making an annual adjustment for 
2018, according to the prescribed formulas.

II. Calculation of Adjustment

    The CMP listed in 5 U.S.C. 1215(a)(3) was established in 1978 with 
the enactment of the Civil Service Reform Act of 1978 (CSRA), Public 
Law 95-454, section 202(a), 92 Stat. 1121-30 (Oct. 13, 1978), and 
originally codified at 5 U.S.C. 1207(b). That CMP was last amended by 
section 106 of the Whistleblower Protection Enhancement Act of 2012, 
Public Law 112-199, 12 Stat. 1468 (Nov. 27, 2012), now codified at 5 
U.S.C. 1215(a)(3), which provided for a CMP ``not to exceed $1,000''. 
The CMP authorized in 5 U.S.C. 7326 was established in 2012 by section 
4 of the Hatch Act Modernization Act of 2012 (Hatch Act), Public Law 
112-230, 126 Stat. 1617 (Dec. 28, 2012), which provided for a CMP ``not 
to exceed $1,000.'' On June 5, 2017, the MSPB issued a final rule which 
increased the maximum CMP allowed under both 5 U.S.C. 1215(a)(3) and 5 
U.S.C. 7326 to $1,045 for the year 2017. See 82 FR 25715 (June 5, 
2017). This increase reflected both a catch-up adjustment and an annual 
increase for the year 2017, as mandated by the 2015 Act. On December 
15, 2017, OMB issued guidance on calculating the annual inflationary 
adjustment for 2018. See Memorandum from Mick Mulvaney, Dir., OMB, to 
Heads of Executive Departments and Agencies re: Implementation of 
Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015, M-18-03 
(Dec. 15, 2017). Therein, OMB notified agencies that the annual 
adjustment multiplier for 2018, based on the Consumer Price Index for 
All Urban Consumers (CPI-U), is 1.02041 and that the 2018 annual 
adjustment amount is obtained by multiplying the 2017 penalty amount by 
the 2018 annual adjustment multiplier, and rounding to the nearest 
dollar. Therefore, the new maximum penalty under the CSRA and the Hatch 
Act is $1,045 x 1.02041 = $1,066.32, which rounds to $1,066.

III. Effective Date of Penalties

    The revised CMP amounts will go into effect on January 10, 2018. 
All violations for which CMPs are assessed after the effective date of 
this rule will be assessed at the adjusted penalty level regardless of 
whether the violation occurred before the effective date.

IV. Procedural Requirements

A. Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b), the MSPB has determined that good 
cause exists for waiving the general notice of proposed rulemaking and 
public comment procedures as to these technical amendments. The notice 
and comment procedures are being waived because Congress has 
specifically exempted agencies from these requirements when 
implementing the 2015 Act. The 2015 Act explicitly requires the agency 
to make subsequent annual adjustments notwithstanding 5 U.S.C. 553, the 
section of the Administrative Procedure Act that normally requires 
agencies to engage in notice and comment. It is also in the public 
interest that the adjusted rates for CMPs under the CSRA and the Hatch 
Act become effective as soon as possible to maintain their effective 
deterrent effect.

[[Page 1174]]

B. Regulatory Impact Analysis: E.O. 12866

    The MSPB has determined that this is not a significant regulatory 
action under E.O. 12866. Therefore, no regulatory impact analysis is 
required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare 
a regulatory flexibility analysis for rules unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. The RFA applies only to rules for 
which an agency is required to first publish a proposed rule. See 5 
U.S.C. 603(a) and 604(a). As discussed above, the 2015 Act does not 
require agencies to first publish a proposed rule when adjusting CMPs 
within their jurisdiction. Thus, the RFA does not apply to this final 
rule.

D. Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule under the Small Business Regulatory 
Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more;
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions; and
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises.

E. Unfunded Mandates Reform Act of 1995

    This rule does not involve a Federal mandate that may result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more and that such 
rulemaking will not significantly or uniquely affect small governments. 
Therefore, no actions were deemed necessary under the provisions of the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532).

F. E.O. 12630, Government Actions and Interference With 
Constitutionally Protected Property Rights

    This rule does not have takings implications.

G. E.O. 13132, Federalism

    This rule does not have Federalism implications. The rule does not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

H. E.O. 12988, Civil Justice Reform

    The MSPB has reviewed this rule in light of E.O. 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

I. E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    In accordance with E.O. 13175, the MSPB has evaluated this rule and 
determined that it has no tribal implications.

J. Paperwork Reduction Act

    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 
U.S.C. Chapter 35).

List of Subjects in 5 CFR Part 1201

    Administrative practice and procedure, Civil rights, Government 
employees.

    For the reasons set forth above, 5 CFR part 1201 is amended as 
follows:

PART 1201--PRACTICES AND PROCEDURES

0
1. The authority citation for part 1201 continues to read as follows:

    Authority: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, 
unless otherwise noted.


Sec.  1201.126  [Amended]

0
2. Section 1201.126 is amended in paragraph (a) by removing ``$1,045'' 
and adding in its place ``$1,066.''

Jennifer Everling,
Acting Clerk of the Board.
[FR Doc. 2018-00290 Filed 1-9-18; 8:45 am]
BILLING CODE 7400-01-P