[Federal Register Volume 88, Number 15 (Tuesday, January 24, 2023)]
[Rules and Regulations]
[Pages 4079-4080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01287]



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 Rules and Regulations
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  Federal Register / Vol. 88 , No. 15 / Tuesday, January 24, 2023 / 
Rules and Regulations  

[[Page 4079]]



MERIT SYSTEMS PROTECTION BOARD

5 CFR Part 1201


Civil Monetary Penalty Inflation Adjustment

AGENCY: Merit Systems Protection Board.

ACTION: Final rule.

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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 24, 2023.

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, requiring 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.'' 28 U.S.C. 2461 note.
    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 OMB, MSPB is now making an annual adjustment for 2023, 
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 January 21, 2022, 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 $1,195 for the year 2022. See 87 FR 3175 (January 21, 
2022). This increase reflected the annual increase for the year 2022 
mandated by the 2015 Act.
    On December 15, 2022, OMB issued guidance on calculating the annual 
inflationary adjustment for 2023. See Memorandum from Shalanda D. 
Young, Director, OMB, to Heads of Executive Departments and Agencies 
re: Implementation of Penalty Inflation Adjustments for 2023, Pursuant 
to the Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015, M-23-05 (Dec. 15, 2022). Therein, OMB notified agencies 
that the annual adjustment multiplier for 2023, based on the Consumer 
Price Index for All Urban Consumers (CPI-U), is 1.07745 and that the 
2023 annual adjustment amount is obtained by multiplying the 2022 
penalty amount by the 2023 annual adjustment multiplier, and rounding 
to the nearest dollar. Therefore, the new maximum penalty under the 
CSRA and the Hatch Act is $1,195 x 1.07745 = $1,288.00.

III. Effective Date of Penalties

    The revised CMP amounts will go into effect on January 24, 2023. 
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), 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.

B. Regulatory Impact Analysis: Executive Order 12866

    The MSPB has determined that this is not a significant regulatory 
action under

[[Page 4080]]

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. 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).

E. Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule'' as defined by 5 U.S.C. 804(2).

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 ``$1,195'' 
and adding in its place ``$1,288.''

Jennifer Everling,
Acting Clerk of the Board.
[FR Doc. 2023-01287 Filed 1-23-23; 8:45 am]
BILLING CODE 7400-01-P