83 FR 1173 - Civil Monetary Penalty Inflation Adjustment
MERIT SYSTEMS PROTECTION BOARD Federal Register Volume 83, Issue 7 (January 10, 2018)
Federal Register Volume 83, Issue 7 (January 10, 2018)
| Page Range | 1173-1174 | |
| FR Document | 2018-00290 |
[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)] [Rules and Regulations] [Pages 1173-1174] From the Federal Register Online [www.thefederalregister.org] [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
![1174 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations
B. Regulatory Impact Analysis: E.O. distribution of power and issuance of an emergency order under
12866 responsibilities among the various the Federal Power Act. The statute
The MSPB has determined that this is levels of government. authorizes the Secretary of Energy to
not a significant regulatory action under order emergency measures, following a
H. E.O. 12988, Civil Justice Reform
E.O. 12866. Therefore, no regulatory Presidential declaration of a grid
impact analysis is required. The MSPB has reviewed this rule in security emergency, to protect or restore
light of E.O. 12988 to eliminate the reliability of critical electric
C. Regulatory Flexibility Act ambiguity, minimize litigation, establish infrastructure or defense critical electric
The Regulatory Flexibility Act (RFA) clear legal standards, and reduce infrastructure during the emergency. A
requires an agency to prepare a burden. grid security emergency could result
regulatory flexibility analysis for rules from a physical attack, a cyber-attack
I. E.O. 13175, Consultation and
unless the agency certifies that the rule using electronic communication, an
Coordination With Indian Tribal
will not have a significant economic electromagnetic pulse (EMP), or a
Governments
impact on a substantial number of small geomagnetic storm event, damaging
entities. The RFA applies only to rules In accordance with E.O. 13175, the certain electricity infrastructure assets
for which an agency is required to first MSPB has evaluated this rule and and impairing the reliability of the
publish a proposed rule. See 5 U.S.C. determined that it has no tribal Nation’s power grid. The procedures
603(a) and 604(a). As discussed above, implications. established by this final rule will ensure
the 2015 Act does not require agencies J. Paperwork Reduction Act the expeditious issuance of emergency
to first publish a proposed rule when orders under the Federal Power Act.
adjusting CMPs within their This document does not contain DATES: These procedures are effective as
jurisdiction. Thus, the RFA does not information collection requirements of January 10, 2018.
apply to this final rule. subject to the Paperwork Reduction Act
FOR FURTHER INFORMATION CONTACT:
of 1995, Public Law 104–13 (44 U.S.C.
Jeffrey Baumgartner, (202) 586–1411;
D. Small Business Regulatory Chapter 35).
U.S. Department of Energy, Office of
Enforcement Fairness Act of 1996
List of Subjects in 5 CFR Part 1201 Electricity Delivery and Energy
This rule is not a major rule under the Reliability, Mailstop OE–20, Room 8G–
Small Business Regulatory Enforcement Administrative practice and
procedure, Civil rights, Government 017, 1000 Independence Avenue SW,
Fairness Act (5 U.S.C. 804(2)). This rule: Washington, DC 20585; or oeregs@
(a) Does not have an annual effect on employees.
hq.doe.gov.
the economy of $100 million or more; For the reasons set forth above, 5 CFR
(b) Will not cause a major increase in part 1201 is amended as follows: SUPPLEMENTARY INFORMATION:
costs or prices for consumers, I. Background
individual industries, Federal, State, or PART 1201—PRACTICES AND
PROCEDURES The Fixing America’s Surface
local government agencies, or
Transportation Act (FAST Act or the
geographic regions; and
(c) Does not have significant adverse ■ 1. The authority citation for part 1201 Act), Public Law 114–94, contains
effects on competition, employment, continues to read as follows: several provisions designed to protect
investment, productivity, innovation, or Authority: 5 U.S.C. 1204, 1305, and 7701,
and enhance the Nation’s electric power
the ability of United States-based and 38 U.S.C. 4331, unless otherwise noted. delivery infrastructure. Section 61003
enterprises to compete with foreign- adds a new section 215A, titled ‘‘Critical
based enterprises.
§ 1201.126 [Amended] Electric Infrastructure Security,’’ to Part
■ 2. Section 1201.126 is amended in II of the Federal Power Act (FPA),
E. Unfunded Mandates Reform Act of paragraph (a) by removing ‘‘$1,045’’ and codified at 16 U.S.C. 824o–1. New
1995 adding in its place ‘‘$1,066.’’ section 215A(a) defines, among other
This rule does not involve a Federal terms, a ‘‘grid security emergency,’’ and
Jennifer Everling, authorizes the Secretary of Energy to
mandate that may result in the
expenditure by State, local, and tribal Acting Clerk of the Board. order emergency measures after the
governments, in the aggregate, or by the [FR Doc. 2018–00290 Filed 1–9–18; 8:45 am] President declares a grid security
private sector, of $100 million or more BILLING CODE 7400–01–P emergency. A grid security emergency
and that such rulemaking will not could result from a physical attack, a
significantly or uniquely affect small cyber-attack using electronic
governments. Therefore, no actions were DEPARTMENT OF ENERGY communication, an electromagnetic
deemed necessary under the provisions pulse (EMP), or a geomagnetic storm
of the Unfunded Mandates Reform Act 10 CFR Part 205 event, damaging certain electricity
of 1995 (2 U.S.C. 1532). infrastructure assets and impairing the
RIN 1901–AB40
reliability of the Nation’s power grid.
F. E.O. 12630, Government Actions and Emergency orders responding to grid
Interference With Constitutionally Grid Security Emergency Orders:
Procedures for Issuance security emergencies would aim to
Protected Property Rights mitigate or eliminate threats to
This rule does not have takings AGENCY: Office of Electricity Delivery reliability as quickly and efficiently as
implications. and Energy Reliability, U.S. Department possible.
jstallworth on DSKBBY8HB2PROD with RULES
of Energy. The statute authorizes the Secretary of
G. E.O. 13132, Federalism Energy to issue orders for emergency
ACTION: Final rule.
This rule does not have Federalism measures as are necessary, in the
implications. The rule does not have SUMMARY: The U.S. Department of Secretary’s judgment, to protect or
substantial direct effects on the States, Energy (‘‘DOE’’) is issuing a final rule restore the reliability of critical electric
on the relationship between the national that establishes procedural regulations infrastructure or defense critical electric
government and the States, or on the concerning the Secretary of Energy’s infrastructure during the emergency.
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Document Created: 2018-10-26 09:33:11
Document Modified: 2018-10-26 09:33:11
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This final rule is effective on January 10, 2018. | |
| 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] | |
| FR Citation | 83 FR 1173 | |
| CFR Associated | Administrative Practice and Procedure; Civil Rights and Government Employees |
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