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.

Rules and Regulations Federal Register

1173 

Vol. 83, No. 7 

Wednesday, January 10, 2018 

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: mspb@

mspb.gov. 

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 × 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. 


jstallworth on DSKBBY8HB2PROD with RULES
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. 

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 

■ 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 

AGENCY: Office of Electricity Delivery 

and Energy Reliability, U.S. Department 

of Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’) is issuing a final rule 

that establishes procedural regulations 

concerning the Secretary of Energy’s 

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. 


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