Inflation-Based
Adjustments in Federal
Civil Monetary Penalties

James Ming Chen
Professor of Law, University of Louisville
November 21, 2012
This report was prepared for the consideration of the Administrative Conference of the United States.
The views expressed are those of the author and do not necessarily reflect those of the members of the
Conference or its committees.

ADMINISTRATIVE CONFERENCE
OF THE UNITED STATES

Contents
Inflation-Based Adjustments in Federal Civil Monetary Penalties.................................... 1
I. Introduction ................................................................................................................ 1
II. Adjusting civil penalties under the Inflation Adjustment Act ................................... 3
A. Senate Bill 2599 (1986) ......................................................................................... 7
B. Senate Bill 1014 (1987) ....................................................................................... 10
C. Senate Bill 535 (1989) ......................................................................................... 17
D. Legislative developments after 1990 ................................................................... 18
III. Problems created by the mechanics of the Inflation Adjustment Act .................... 20
A. The “inflation gap” ............................................................................................. 20
B. CPI lag................................................................................................................. 22
C. Rounding ............................................................................................................. 28
D. The Inflation Adjustment Act in practice ............................................................ 31
IV. Possible solutions................................................................................................... 36
V. Conclusion .............................................................................................................. 42
Mathematical Appendix .................................................................................................... 43
I. Observing, Reporting, and Forecasting Inflation ..................................................... 43
A. Inflation, over time and on average..................................................................... 43
B. Estimating annual inflation ................................................................................. 45
C. Table of actual annual inflation .......................................................................... 48
II.

The mechanics of the Inflation Adjustment Act ................................................... 49
A. The “inflation gap” ............................................................................................. 50
B. CPI lag................................................................................................................. 51
C. Rounding ............................................................................................................. 52
D. The effect of a 10 percent cap on annual inflation adjustments.......................... 54

Inflation-Based Adjustments in
Federal Civil Monetary Penalties
James Ming Chen1

I. Introduction
Civil monetary penalties play a vital role in federal law. The Federal Civil
Penalties Inflation Adjustment Act of 19902 acknowledges that “the power of
Federal agencies to impose civil monetary penalties … plays an important role in
deterring violations and furthering the policy goals embodied in … laws and
regulations.”3 Over time, however, inflation erodes “the impact of many civil
monetary penalties” and “weaken[s] the[ir] deterrent effect.”4
The law
represented Congress’s first effort to “maintain comprehensive, detailed
accounting of the efforts of Federal agencies to assess and collect civil monetary
penalties.”5 In prescribing “regular adjustment for inflation of civil monetary
penalties,” Congress hoped to “maintain the deterrent effect of civil monetary
penalties and promote compliance with the law” and to “improve the collection by
the Federal Government of civil monetary penalties.”6
In practice, and as amended, the Federal Civil Penalties Inflation
Adjustment Act (“the Act” or “the Inflation Adjustment Act”) has fallen far short

1

Professor of Law, University of Louisville. I thank Mathew Bisanz, Jennifer Hendricks, and L.
Joseph Tackett for very capable research assistance. Curtis Copeland, David Pritzker, and
Stephanie Tatham provided very helpful commentary and suggestions throughout the preparation
of this report. Special thanks to Heather Elaine Worland Chen.
2
Pub. L. 101-410, 104 Stat. 890 (1990), codified as amended at 28 U.S.C. § 2461 note.
3
Id. § 2(a).
4
Id.
5
Id.
6
Id. § 2(b).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 1

of these goals.7 Three statutory defects are especially salient. First, inflation
adjustments under the Act suffer from an “inflation gap.” The Act imposes a 10
percent cap on initial penalty adjustments. That cap creates an “inflation gap”
reflecting the sometimes considerable difference between penalties as adjusted
under the Act and the levels that such penalties would reach if they were set more
precisely according to an actual measure of changes in the cost of living. This
gap grows over time and can never be closed.
Second, the Act directs federal agencies to use Consumer Price Index data
in ways that are guaranteed to be out of sync with inflation. Agencies must use
CPI data that is at least six months old, and sometimes as much as 18 months old.
In effect, agencies lose a year of inflation every time they make an inflation-based
adjustment. This problem is known as “CPI lag.” As with the “inflation gap”
prescribed by the Act, errors forced by these adjustments create distortions
relative to actual inflation. Under the existing statutory scheme, these errors can
never be corrected.
Third, the Act’s rules on rounding, when taken together with the initial
adjustment cap of 10 percent, can effectively prevent a subsequent inflation
adjustment for some penalties until inflation increases at least 45 percent. At
inflation rates approximating 2.5 percent, refinements to initial penalty
adjustments may not be permitted for more than 15 years.
This report will examine the Federal Civil Penalties Inflation Adjustment
Act, as amended, in detail. Careful parsing of statutory language reveals how the
Act dictates each of these three sources of economic distortion in the inflationbased adjustment of federal civil monetary penalties. By recounting the
legislative history of the Act, I hope to show how Congress came to adopt these
provisions. I will then devote close attention to each of the three most salient
problems afflicting the Inflation Adjustment Act: the “inflation gap” attributable
to the Act’s 10 percent cap on initial cost-of-living adjustments, the “CPI lag” that
forces federal agencies to ignore between six and 18 months of Consumer Price
Index data in adjusting civil monetary penalties, and the Act’s unwieldy rounding
provisions. This report will provide formal mathematical descriptions of the
problems at hand, as well as concrete illustrations drawn from actual federal civil
penalties.
7

See generally United States General Accounting Office, Civil Penalties: Agencies Unable to
Fully Adjust Penalties for Inflation Under Current Law, GAO-03-409 (March 2003) [hereinafter
2003 GAO Report].

Inflation-Based Adjustments in Civil Monetary Penalties
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Proper adjustment of civil monetary penalties is central to the mission of
the federal government. Civil penalties proceed from the assumption that
economic loss deters private actors from engaging in socially destructive conduct.
That deterrent effect may be eroded, even perversely distorted, if agencies do not
receive appropriate statutory and administrative guidance for making accurate
downstream adjustments in the levels of those penalties as prices change within
the United States economy as a whole. The defects in the Federal Civil Penalties
Inflation Adjustment Act are profound and destructive. Because they arise from
the plain language of the Act, those defects transcend the corrective power of
federal regulatory agencies. Although some agencies have attempted to adjust
civil monetary penalties in common-sense ways that better reflect the real
economic impact of inflation, those efforts do not comply with the plain language
of the Inflation Adjustment Act. This report will therefore recommend specific
amendments to the Act.

II. Adjusting civil penalties under the Inflation Adjustment Act
The Federal Civil Penalties Inflation Adjustment Act addressed the
longstanding failure of federal law to prescribe inflation-based adjustments in
civil monetary penalties. In 19798 and in 1984,9 the Administrative Conference of
the United States (ACUS) studied, respectively, civil penalties and the
vulnerability of federal claims settlements to the effects of inflation. The 1984
ACUS recommendation in particular encouraged Congress “to systematically
raise ceilings on all agency authority to settle claims where inflation has rendered
obsolete the present levels.”10 The passage of the Inflation Adjustment Act in
1990 responded to similar concerns in the context of civil monetary penalties.
In section 2 of the Inflation Adjustment Act, Congress concluded that “the
power of Federal agencies to impose civil monetary penalties for violations of
8

See ACUS, Recommendation 79-3, Agency Assessment and Mitigation of Civil Monetary
Penalties, 44 Fed. Reg. 38,824 (July 3, 1979); see also Colin S. Diver, The Assessment and
Mitigation of Civil Money Penalties by Federal. Administrative Agencies, 79 COLUM. L. REV.
1435 (1979).
9
See ACUS, Recommendation 84-7, Administrative Settlement of Tort and Other Monetary
Claims Against the Government, 49 Fed. Reg. 49,840 (Dec. 24, 1984).
10
Id.

Inflation-Based Adjustments in Civil Monetary Penalties
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Federal law and regulations plays an important role in deterring violations and
furthering the policy goals embodied in such laws and regulations.”11 The impact
of many of these penalties, however, “has been and is diminished due to the effect
of inflation,” which “has weakened the deterrent effect of such penalties.”12
Congress also found that “the Federal Government does not maintain
comprehensive, detailed accounting of the efforts of Federal agencies to assess
and collect civil monetary penalties.”13 The Act thereupon set out “to establish a
mechanism” that would “(1) allow for regular adjustment for inflation of civil
monetary penalties; (2) maintain the deterrent effect of civil monetary penalties
and promote compliance with the law; and (3) improve the collection by the
Federal Government of civil monetary penalties.”14 As originally enacted in
1990, the Act did not authorize federal agencies to adjust penalties for inflation.
Instead, the 1990 version of this legislation required the President to report to
Congress every five years on the increase needed to bring civil monetary penalties
in line with inflation and every year on actual penalty assessments and
collections. In 1996, Congress amended the Civil Penalties Inflation Adjustment
Act to direct covered federal agencies to make their first inflation adjustments on
October 23, 1996, and make subsequent adjustments “at least once every 4 years
thereafter.”15
The legislative history of the Inflation Adjustment Act reflects primary
congressional concern over the deterrent, punitive, and retributive purposes of
federal civil monetary penalties. Congress also expressed a secondary interest in
these penalties as a source of revenue. In his opening statement to the Senate’s
1988 hearings on the bill that became the Act, Senator Carl Levin declared: “Civil
monetary penalties have been enacted into law to deter unwanted conduct. They
send the message that if you do the crime, you are going to pay.” 16 He also
lauded the bill’s goal of “establish[ing] accountability within the Executive
Branch for keeping track of the numbers and amounts of civil penalties imposed
11

Inflation Adjustment Act, supra note 2, § 2(a)(1).
Id. § 2(a)(2), (3).
13
Id. § 2(a)(4).
14
Id. § 2(b).
15
Debt Collection Improvement Act of 1996, Pub. L. No. 104-134, § 31001(s)(1)(A), 110 Stat.
1321, 1373.
16
Federal Civil Penalties Inflation Adjustment Act of 1987: Hearing Before the S. Subcomm. on
Oversight of Gov't Mgmt., 100th Cong. 2 (1988) (statement of Sen. Carl Levin).
12

Inflation-Based Adjustments in Civil Monetary Penalties
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and collected,” totaling “no small amount of money” that he estimated to be “over
$400 million a year.”17 Senator Levin’s house counterpart, John Conyers,
likewise testified in 1990: “At the heart of … regulatory statutes … are the
monetary fines intended to both penalize and deter practices prohibited by these
laws.”18 Because “the amount of fines associated with the enforcement of these
important statutes have remained unchanged,” however, Congressman Conyers
lamented that “inflation has eaten away at the value of these fines, effectively
reducing both the impact and the deterrent value of regulatory penalties.”19
Appropriate inflation-based adjustments in federal civil monetary
penalties enable federal agencies to fulfill their regulatory missions. By giving
agencies sufficient discretion to adjust downward from an adequately high
punitive ceiling, “[s]uitably severe maximum penalties allow agencies to punish
willful and egregious violators appropriately” and to establish “deterrent[s] to
future violations.”20 Proper adjustment for inflation enables agencies to keep pace
with the persons and business entities within their spheres of regulatory
responsibility.
Section 4 of the Federal Civil Penalties Inflation Adjustment Act, as
amended in 1996, directs “[t]he head of each agency … by regulation” to perform
an “inflation adjustment” for “each civil monetary penalty provided by law within
the jurisdiction of the Federal agency.”21 The Act then instructs each agency to
publish the resulting regulation in the Federal Register.22 Under the 1996
amendments to the Act, the first inflation adjustment was to have been performed
on October 23, 1996 — 180 days after the amendment’s enactment date of April
26, 1996.23 Subsequent adjustments must be performed “at least once every 4
years thereafter.”24
According to section 5 of the Inflation Adjustment Act, “[t]he inflation
adjustment under section 4 shall be determined by increasing the maximum civil
monetary penalty or the range of minimum and maximum civil monetary
17

Id.
Federal Civil Penalties Inflation Adjustment Act of 1989: Hearing Before the H. Subcomm. on
Legis. & Nat'l Sec., 101st Cong. 3 (1990) (statement of Rep. John Conyers).
19
Id.
20
2003 GAO Report, supra note 7, at 36.
21
Inflation Adjustment Act, supra note 2, § 4(1).
22
Id. § 4(2).
23
See Pub. L. No. 104-134, § 31001(s)(1)(A), 110 Stat. 1321, 1373 (1996).
24
Id.
18

Inflation-Based Adjustments in Civil Monetary Penalties
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penalties, as applicable, for each civil monetary penalty by the cost-of-living
adjustment.”25 In turn, “the term ‘cost-of-living adjustment’” is defined “as the
percentage (if any) for each civil monetary penalty by which — (1) the Consumer
Price index for the month of June of the calendar year preceding the adjustment,
exceeds (2) the Consumer Price Index for the month of June of the calendar year
in which the amount of such civil monetary penalty was last set or adjusted
pursuant to law.”26
Section 5 of the Act also prescribes an elaborate process for the rounding
of “[a]ny increase determined under” the statute’s inflation adjustment
mechanism:
Any increase determined under this subsection shall be rounded to the
nearest —
(1) multiple of $10 in the case of penalties less than or equal to $100;
(2) multiple of $100 in the case of penalties greater than $100 but less than
or equal to $1,000;
(3) multiple of $1,000 in the case of penalties greater than $1,000 but less
than or equal to $10,000;
(4) multiple of $5,000 in the case of penalties greater than $10,000 but less
than or equal to $100,000;
(5) multiple of $10,000 in the case of penalties greater than $100,000 but
less than or equal to $200,000;
(6) multiple of $25,000 in the case of penalties greater than $200,000.27
In its 1996 amendment to the Act, Congress imposed a new 10 percent cap
on the initial inflation adjustment of any civil monetary penalty required under
section 4 of the Act: “The first adjustment of a civil monetary penalty … may not
exceed 10 percent of such penalty.”28 Section 6 of the amended Act ensures that
inflation-adjusted increases are strictly prospective in application: “Any increase
under this Act in a civil monetary penalty shall apply only to violations which

25

Inflation Adjustment Act, supra note 2, § 5(a).
Id. § 5(b).
27
Id. § 5(a).
28
Pub. L. No. 104-134, § 31001(s)(1), 110 Stat. 1321, 1373 (1996).
26

Inflation-Based Adjustments in Civil Monetary Penalties
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occur after the date the increase takes effect.”29 Finally, the amended Act
exempts four statutes: the Internal Revenue Code of 1986, the Tariff Act of 1930,
the Occupational Safety and Health Act of 1970, and the Social Security Act.30

III. The legislative history and purposes of the Inflation Adjustment Act

A. Senate Bill 2599 (1986)
Senator Frank Lautenberg of New Jersey introduced the Federal Civil
Penalties Adjustment Act in 1986 as Senate Bill 2559.31 This bill prescribed a
two-step process for performing inflation adjustments of federal civil monetary
penalties according to increases in the cost of living. The first step consisted of an
initial historical cost-of-living adjustment based on “the percentage (if any) by
which (1) the average of the Consumer Price Index as of the close of the 12month period ending on September 30, 1986, exceeds (2) the average of the
Consumer Price Index as of the close of the 12-month period ending on
September 30 of the calendar year in which such penalty amount was last
determined under law.”32 “Any increase determined under” the original
Lautenberg bill’s historical cost-of-living adjustment would have been “rounded
to the nearest multiple of $10.”33 The initial cost-of-living adjustment would be
capped at “1000 percent of the original penalty amount.”34
S. 2599 also prescribed annual, prospective adjustments after 1987.35
After an initial round of historical adjustments in federal civil monetary penalties,
a prospective series of annual adjustments, carried out by “the head of each
Federal agency” and “publish[ed] in the Federal Register,” would apply “in lieu
of the schedule prescribed under” the bill’s historical cost-of-living adjustment
provision.36 Not later than December 15 of each year, this annual adjustment
29

Inflation Adjustment Act, supra note 2, § 6.
See id. § 4(1).
31
S. 2559, 99th Cong. (1986).
32
Id. §4(c).
33
Id. § 4(b).
34
Id. (“[I]n no event shall such increase exceed 1000 percent of the original penalty amount.”).
35
See id. § 5(c).
36
Id. § 5(a).
30

Inflation-Based Adjustments in Civil Monetary Penalties
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process would require each agency to “increase each base penalty amount” within
its jurisdiction “by the cost of living adjustment” for “the succeeding calendar
year.”37 The bill further contemplated that each agency would “add[] to [its]
schedule any civil monetary penalty within [its] jurisdiction … that was enacted
into law in the previous calendar year and increas[e] the base penalty amount by
the cost of living adjustment for the current calendar year.”38
S. 2599’s definition of its “cost-of-living adjustment” plays a critical role
in the legislative history of the Federal Civil Penalties Inflation Adjustment Act.
That definition warrants full elaboration here:
[T]he cost-of-living adjustment for any calendar year is —
(1) in the case of base penalties provided by law before December
15, 1986, the percentage (if any) by which —
(A) the Consumer Price Index for the preceding calendar
year, exceeds
(B) the Consumer Price Index for the calendar year 1986;
and
(2) in the case of base penalties provided by law on or after
December 15, 1986, the percentage (if any) by which —
(A) the Consumer Price Index for the preceding calendar
year, exceeds
(B) the Consumer Price Index for the calendar year in
which the base penalty was provided by law.39
S. 2559 further defined “the Consumer Price Index for any calendar year” as “the
average of the Consumer Price Index as of the close of the 12-month period
ending on September 30 of such calendar year.”40 Although S. 2599 provided
that any increases determined under its mechanism for annual, prospective cost37

Id. § 5(b); see also id. § 5(a) (directing “schedules of civil monetary penalties” to apply “in the
succeeding calendar year”).
38
Id. § 5(b).
39
Id. § 5(c).
40
Id. § 5(d).

Inflation-Based Adjustments in Civil Monetary Penalties
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of-living adjustments would “be rounded to the nearest multiple of $10,” those
adjustments were not subject to any cap.41
S. 2599’s references to “the preceding calendar year” in its discussion of
cost-of-living adjustments are ambiguous. One plausible reading of the bill’s
cost-of-living adjustment confirms that portion of the contemporary statute from
which the “CPI lag” arises. The corresponding section of the Inflation
Adjustment Act requires reference to “the Consumer Price Index for the month of
June of the calendar year preceding the adjustment.” But it is also plausible to
read this portion of Senate Bill 2599 as referring to CPI data for the nearly
complete year preceding the bill’s December 15 deadline for annual agency
action.
Three pieces of evidence support the latter reading. First, section 5 of S.
2599, titled “Annual Adjustments for Taxable Years Beginning After 1987,”
contemplated that annual adjustments beyond the bill’s historical cost-of-living
adjustment would take place “[n]ot later than December 15 of 1987 and each
subsequent calendar year.”42 “[I]n the case of base penalties provided by law
before December 15, 1986,” the bill prescribed an annual cost-of-living
adjustment based on “the percentage (if any) by which … the Consumer Price
Index for the preceding calendar year, exceeds … the Consumer Price Index for
the calendar year 1986.”43 For this initial adjustment (which had been scheduled
to take place no later than December 15, 1987) to make sense, the bill’s reference
to “the preceding calendar year” must refer to CPI data for 1987 rather than 1986.
Second, the bill defined “the Consumer Price Index for any calendar year” as “the
average of the Consumer Price Index as of the close of the 12-month period
ending on September 30 of such calendar year.”44 It is far more natural to expect
that an agency head, directed by law to calculate an annual cost-of-living
adjustment on December 15 “for the preceding year,” would use CPI data
reaching back from September 30 of that year to October 1 of the previous year.
Finally, given the prevalence of concerns that civil monetary penalties were losing
ground to inflation, a legislative purpose that found its way into the text of the
Inflation Adjustment Act,45 it seems unlikely that Congress would have
41

Id. § 5(b).
Id. § 5(a) (emphasis added).
43
Id. § 5(c).
44
Id. § 5(d).
45
See Inflation Adjustment Act, supra note 2, § 2(a)(2), (3) (“The Congress finds that … the
impact of many civil monetary penalties has been and is diminished due to the effect of inflation”
42

Inflation-Based Adjustments in Civil Monetary Penalties
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consciously considered an inflation adjustment mechanism that requires federal
agency heads to ignore an entire year of inflation data.

B. Senate Bill 1014 (1987)
Senator Lautenberg’s proposal to adjust federal civil monetary penalties
for inflation underwent considerable debate and revision in the subsequent
Congress. The Subcommittee on Oversight of Government Management of the
Senate Committee on Governmental Affairs conducted hearings on January 31,
1988, to consider what by then had become Senate Bill 1014, the proposed
Federal Civil Penalties Inflation Adjustment Act of 1987.46
S. 1014 retained the distinctive features of its predecessor, S. 2559. The
new bill preserved the two-step cost-of-living adjustment prescribed by S. 2559.
The first step prescribed a historical cost-of-living adjustment based on “the
percentage (if any) by which (1) the average of the Consumer Price Index as of
the close of the 12-month period ending on September 30, 1986 1987, exceeds …
(2) the average of the Consumer Price Index as of the close of the 12-month
period ending on September 30 of the calendar year in which such penalty amount
was last determined under law.”47 Beyond updating the year from 1986 to 1987,
S. 1014 made no changes to the baseline set by S. 2559. As in the original bill, S.
1014 directed that “[a]ny increase determined under” the new bill’s historical
cost-of-living adjustment “shall be rounded to the nearest multiple of $10.”48 S.
1014 made another material change to the first step of the two-step cost-of-living
adjustment. Whereas Senator Lautenberg’s original bill had provided that the
increase based on the historical cost-of-living adjustment “in no event shall …
exceed 1000 percent of the original penalty amount,”49 S. 1014 omitted any
mention of a cap on its initial inflation adjustment.
As a second step, S. 1014 prescribed annual, prospective adjustments for
taxable years after 1988.50 Beginning no later than December 15, 1988, S. 1014
and that “by reducing the impact of civil monetary penalties, inflation has weakened the deterrent
effect of such penalties.”).
46
S. 1014, 100th Cong. (1987).
47
Id. § 4(c) (annotations added).
48
Id. § 4(b).
49
S. 2559, supra note 31, § 4(b).
50
See S. 1014, supra note 46, § 5(c).

Inflation-Based Adjustments in Civil Monetary Penalties
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directed agency heads to make annual cost-of-living adjustments. “[I]n the case
of base penalties provided by law before December 15, 1986 1987,” agencies
would base these adjustments on “the percentage (if any) by which … (A) the
Consumer Price Index for the preceding calendar year, exceeds (B) the Consumer
Price Index for the calendar year 1986 1987.”51 “[I]n the case of base penalties
provided by law on or after December 15, 1986 1987,” agencies would make
annual cost-of-living adjustments according to “the percentage (if any) by which
… (A) the Consumer Price Index for the preceding calendar year, exceeds (B) the
Consumer Price Index for the calendar year in which the base penalty was
provided by law.”52 Consistent with the corresponding provision of S. 2559, S.
1014 defined “the Consumer Price Index for any calendar year” as “the average of
the Consumer Price Index as of the close of the 12-month period ending on
September 30 of such calendar year.”53 Finally, S. 1014 preserved other aspects
of annual adjustments under S. 2559: although any increases determined under the
annual, prospective adjustments prescribed by S. 1014 would not be subject to
any cap, they would “be rounded to the nearest multiple of $10.”54

1. Hearings on Senate Bill 1014 (1988)
In January 1988, the Senate Subcommittee on Oversight of Government
Management of the Committee on Governmental Affairs on held a hearing on
Senate Bill 1014.55 This hearing enabled a wide range of representatives — from
the White House’s Office of Management and Budget (OMB), the Department of
Health and Human Services (HHS), the Department of Justice (DOJ), Public
Citizen’s Congress Watch, and the American Federation of Labor and Congress
of Industrial Organizations (AFL-CIO) — to influence congressional
consideration of inflation-based adjustment of civil monetary penalties.
This hearing constituted a crucial turning point in the legislative process.
In virtually every meaningful respect, this hearing transformed Senator
Lautenberg’s original bills, S. 2559 and S. 1014, into the law that eventually
51

Id. § 5(c)(1) (annotations added).
Id. § 5(c)(1) (annotations added).
53
Id. § 5(d).
54
Id.
55
See generally Federal Civil Penalties Adjustment Act of 1987: Hearing on S.1014 Before the
Subcomm. on Oversight of Gov’t Mgmt., 100th Cong. (1988).
52

Inflation-Based Adjustments in Civil Monetary Penalties
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became the Federal Civil Penalties Inflation Adjustment Act of 1990. Many
witnesses testified that they deemed annual adjustments to be too frequent and too
burdensome. The subcommittee also fielded considerable amounts of criticism
suggesting that automatic adjustments reported solely in the Federal Register
would subject private parties to increased civil monetary penalties without
appropriate notice and due process. Finally, the subcommittee evidently heard
enough testimony to persuade Congress to adopt a more elaborate rounding
mechanism than the simple $10 provision originally proposed by Senator
Lautenberg.
During the Senate subcommittee hearing, members of Congress and
representatives of federal agencies put special emphasis on the frequency of
inflation-based adjustments to civil monetary penalties. Joseph R. Wright Jr.,
deputy director of the Office of Management and Budget, testified against annual
adjustments and instead proposed that adjustments should occur every three to
five years.56 He argued that the administrative burden might outweigh the value
of annual adjustments.57 He also argued that annual adjustments might not
properly deter private misconduct:
Very often, the statutory amount is a ceiling, i.e., a figure representing the
maximum sum the government could impose. But administrators, for one
reason or another, do not always seek or threaten to impose the maximum
amount. Thus increases by small, regular increments may serve no
purpose at all. In fact, if the [civil monetary penalty or] CMP is viewed as
a recovery device as well as a deterrent, we believe the cost of carrying
out an annual adjustment would outweigh the incremental revenues
collected as a result of the adjustment.58
William Love, acting director of the Interstate Commerce Commission, also
favored a five-year adjustment cycle:
Notwithstanding the fact that monetary penalties are less frequently
imposed today, developing cases based on small penalties often requires
56

Id. at 7 (statement of Joseph Wright Jr.).
Id. (“[Annual adjustments] may be a little bit too often in this area … . And in many cases, the
administrative burden of making these adjustments may not be worth it.”).
58
Id. at 43 (emphasis added).
57

Inflation-Based Adjustments in Civil Monetary Penalties
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agency staff to document large numbers of counts to support a penalty
which would realistically serve as a deterrent, and which would justify the
expenditures of government resources to collect the penalty. To provide
more realistic deterrents, the lower range of penalties could be statutorily
increased at the outset. Subsequently, a year-to-year inflation adjustment
would not appear necessary; a 5-year renew cycle might be an appropriate
alternative.59
By contrast, the sponsors of the bill expressed reluctance to conduct
periodic adjustments on a five-year cycle. Senator Lautenberg said, “I do not like
to see us at first blush extend the review period to five years. Because if we look
at one of the worst periods of inflation that we had in our history, a period ranging
from 1979–1981, I mean we would be looking at a substantial change in the value
of the penalty; and maybe three years.”60 His cosponsor, Senator Carl Levin,
added, “I have kind of a preference that it should be biannual [sic], every 2 years,
or every 3 years, because in 5 years, you could have inflation running strong.”61
Michael Waldman, legislative director of Public Citizen's Congress Watch, also
preferred more frequent adjustments:
[W]e would like to see it done as often as possible. We prefer 1 year. If it
has to be higher in the wisdom of the committee, that may be the case.
But I might want to point out that 5 years, when we get up to that level, is
really quite a long time. For instance, right now, inflation is running
between 4 and 5 percent. If inflation stayed the same rate, the difference
between a statute passed today and 5 years from now would be a
diminution in value of 20 to 25 percent. And that seems like a significant
reduction in deterrent value. So I would hope that it would remain at 1
year, but certainly not go as high as 5 years.62

59

Id. at 94 (letter from William Love to Sen. Carl Levin (Feb. 23, 1988)).
Id. at 16 (statement of Sen. Frank Lautenberg).
61
Id. at 31 (statement of Sen. Carl Levin). Inasmuch as he expressed a preference for Senator
Levin undoubtedly meant “biennial” rather than “biannual.” A biennial adjustment would take
place every second year. A biannual adjustment takes place every six months, or twice in a single
year. See BILL BRYSON, BRYSON’S DICTIONARY FOR WRITERS AND EDITORS 39 (3d ed. 2008).
62
Id. (statement of Michael Waldman).
60

Inflation-Based Adjustments in Civil Monetary Penalties
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S. 1014’s debate over the length of the inflation adjustment cycle should
be seen in historical context. In 1988, the galloping inflation of the 1970s
remained salient. The participants in the Senate hearing also had reason to fear
the considerable burden of identifying all civil monetary penalties and updating
them as often as once a year. Presumably, advances in computing power and
automation, as well as the greater ease with which government agencies and
members of the public may obtain inflation data, would allay those fears today.
And even though inflation since 1988 has never returned to the levels that it
reached during the 1970s, it is worth noting that an annual 2.5 percent increase in
inflation, compounded over five years, would require a 13 percent adjustment at
the end of that period. (1.025 ^ 5 ≈ 1.131.) A 13 percent increase is less than the
20 to 25 percent increase that Michael Waldman identified in his congressional
testimony. Thirteen percent nevertheless exceeds the 10 percent threshold that
Congress considered meaningful enough to adopt as the limit on the first
adjustment of a civil monetary penalty.
Participants in the Senate hearing on S. 1014 also expressed concerns that
an automatic adjustment mechanism would not provide private parties adequate
notice of increases in civil monetary penalties. Thomas M. Boyd, acting assistant
attorney general, emphasized this point:
Our principal concern with the proposed bill is one of notice. As a result
of this bill, eventually the language identifying the prohibited conduct will
be found in the statute, while the size of the penalty will be found
elsewhere in the Federal Register. There is obvious opportunity for
confusion and mistakes, particularly on the part of those to whom the law
is addressed, who seek to evaluate the consequences of certain conduct or
practices that may impinge upon the law.63
Stuart E. Schiffer, deputy assistant attorney general for the Civil Division
of the Department of Justice, likewise suggested that civil penalties might lack
deterrent power if penalties published “in the Federal Register each year” were at
odds with “the original dollar amount” stipulated in “statutes that contain the
terms themselves.”64 According to B. Wayne Vance, general counsel for the
Department of Transportation, the annual publication of inflation adjustments in
63
64

Id. at 136 (1989) (letter from Thomas M. Boyd to Sen. Carl Levin (Apr. 14, 1988)).
Id. at 14 (statement of Stuart E. Schiffer).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 14

the Federal Register could make it “difficult for those subject to our statutes to
understand what the current penalty is at a particular time, and whether the
applicable penalty was that in place at the time of the violation, or that in place at
the time enforcement is initiated.”65
One witness did express a contrary view. Kenneth R. Thomas, legislative
attorney for the Congressional Research Service, argued that the bill did not
present a notice problem:
[C]oncerns were expressed about whether proper notice would be
provided to the public of the new penalties, so as not to violate the due
process rights of persons upon whom the fines are imposed. Under the
Federal Register Act, publication serves as constructive notice to the
public of the content of the notice. As the bill provides that the heads of
the agencies will list specific schedules of penalties, and that enforcement
of such penalties will not occur until after publication, any individuals
who are later fined will have had constructive notice of the penalties
against them.66
Finally, the Senate hearing on S. 1014 addressed the rounding of inflationbased adjustments. S. 1014 and its predecessor bill, S. 2559, had both provided
that cost-of-living adjustments would be rounded to the nearest multiple of $10.
During the Senate hearing on S. 1014, Senator Lautenberg himself expressed
doubt over the rounding mechanism that he had proposed: “[T]he original bill
provides that all adjusted penalties are to be rounded off to the nearest 10 dollars.
I would suggest that larger penalties should be rounded off to larger numbers.
Maybe even the 10 dollars is too small, but that is something that we ought to
work on.”67 Lando W. Zech, Jr., chairman of the Nuclear Regulatory
Commission suggested that “penalty amounts should be rounded off to the nearest
increment of the original penalty to minimize calculation error.”68 In its report to
the Senate subcommittee, the President's Council on Integrity and Efficiency
(PCIE) concluded that the impact of inflation adjustments, together with Senator

65

Id. at 103 (letter from B. Wayne Vance, to Sen. Carl Levin (Feb. 23, 1988)).
Id. at 230–231 (letter from Kenneth R. Thomas to Sen. Carl Levin (Feb. 26, 1988)).
67
Id. at 4 (statement of Sen. Frank Lautenberg).
68
Id. at 116 (letter from Lando W. Zech, Jr., to Sen. Carl Levin (Mar. 4, 1988)).
66

Inflation-Based Adjustments in Civil Monetary Penalties
Page 15

Lautenberg’s proposed rounding mechanism, would be “very little” or even
“minimal” for “just over 40 percent of” affected penalties.69

2. Amendments to Senate Bill 1014
The Senate hearing on S. 1014 triggered substantial amendments to the
proposed Civil Penalties Inflation Adjustment Act. “In response to … concerns”
expressed at that hearing, the Subcommittee on Oversight of Government
Management “substantially revised the bill.”70 The subcommittee deleted Senator
Lautenberg’s automatic adjustment provision: “Instead of requiring an automatic
inflation adjustment published only in the Federal Register, the revised bill
provides for the President to report to Congress every five years as to which
penalties need to be adjusted, and by how much, to keep up with inflation….”71
In the absence of “automatic, across-the-board adjustment,” the revised bill
contemplated that “separate legislative action” would be “required to make each
adjustment.”72 The revision likewise addressed “[c]oncerns about the excessive
frequency of adjustments … by requiring that adjustments be calculated and
reported to Congress every five years, rather than every year.”73
Although the subcommittee ultimately approved the revision by
unanimous vote, and although the Justice Department expressed “no objection to
the bill as amended,” the full committee on governmental affairs “did not have
time to act on the bill before the end of the session.”74

69

Id. at 41 (report prepared by the President's Council on Integrity and Efficiency (July 1, 1988)).
Civil Penalties Adjustment Act of 1989: Report of the Comm. on Governmental Affairs to
Accompany S.535, to Increase Civil Monetary Penalties Based on the Effect of Inflation, 101st
Cong. 5 (1989).
71
Id.
72
Id.
73
Id.
74
Id.
70

Inflation-Based Adjustments in Civil Monetary Penalties
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C. Senate Bill 535 (1989)
Senators Lautenberg and Levin introduced Senate Bill 535 in the 101st
Congress on March 8, 1989.75 S. 535 was “identical to S. 1014, as amended” by
the Senate Subcommittee on Oversight of Government Management.76 In House
hearings on S. 535, Senator Lautenberg acknowledged that he and his colleagues
had “modified the legislation in response to concerns raised by the administration
and others.”77 The House concurred in the Senate’s approval of S. 535 and
recommended the bill’s passage.
Most of the features observed in the contemporary Civil Penalties Inflation
Adjustment Act can be traced to S. 535. This bill resolved the ambiguity in
previous versions’ reference to “the preceding calendar year” by unambiguously
defining “the term ‘cost-of-living adjustment’” as “the percentage (if any) for
each civil monetary penalty by which — (1) the Consumer Price Index for the
month of June of the calendar year preceding the adjustment, exceeds (2) the
Consumer Price Index for the month of June of the calendar year in which the
amount of such civil monetary penalty was last set or adjusted pursuant to law.”78
This definition codified the “CPI lag” anomaly of the Inflation Adjustment Act.
In addition, S. 535 replaced earlier bills’ simple $10 rounding provision
with an elaborate, six-tiered mechanism:
Any increase determined under this subsection shall be rounded to the
nearest —
(1) multiple of $10 in the case of penalties less than or equal to
$100;
(2) multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;

75

S. 535, 101st Cong. (1989).
Senate Report on S. 1014, supra note 55, at 5.
77
Federal Civil Penalties Adjustment Act of 1989: Hearing on S. 535 Before the Subcomm. on
Legis. & Nat’l Sec., 101st Cong. 15 (1989) (statement of Sen. Frank Lautenberg).
78
S. 535, supra note 75, § 5(b).
76

Inflation-Based Adjustments in Civil Monetary Penalties
Page 17

(4) multiple of $5,000 in the case of penalties greater than $10,000
but less than or equal to $100,000;
(5) multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000;
(6) multiple of $25,000 in the case of penalties greater than
$200,000.79
This mechanism is the source of contemporary concerns over the rounding of civil
monetary penalties under the Inflation Adjustment Act.
Congress enacted S. 535 into law as the Federal Civil Penalties
Adjustment Act of 1990.80

D. Legislative developments after 1990
In 1993 Congress defeated an effort to attempt to amend the Civil
Penalties Inflation Adjustment Act.81 One provision of this bill, H.R. 3400,
would have made cost-of-living adjustments automatic. In addition, H.R. 3400
would have imposed no percentage cap on initial adjustments. Had this provision
become law, it would have had the effect of making the first adjustment a
complete and automatic cost-of-living adjustment, subject to the one-year CPI lag
imposed by the definition of “cost-of-living adjustment” in § 5(b) of the Act.
Speaking in opposition to that proposal, Senator William Roth argued that it was
inappropriate to delegate that task to agency heads, which would have been the
practical effect of an automatic adjustment mechanism.82
Three years later, Congress did amend the Civil Penalties Inflation
Adjustment Act through a provision of the omnibus Debt Collection Improvement
Act of 1996.83 This amendment accomplished something that Senator Lautenberg
had originally proposed in 1986, but subsequent legislative consideration had
previously blocked—automatic adjustment of civil monetary penalties for
inflation by the heads of federal agencies.84 That adjustment would take place at
79

Id. § 5(a).
Pub. L. No. 101-410, 104 Stat. 890 (1990).
81
H.R. 3400, § 16010.
82
S. Rep. No. 103-281, 103d Cong. (1993).
83
Pub. L. No. 104-134, § 31001(s), 110 Stat. 1321, 1373.
84
Id. § 31001(s)(1)(A).
80

Inflation-Based Adjustments in Civil Monetary Penalties
Page 18

least every four years.85 The 1996 amendment also capped initial inflation
adjustments, without regard to the temporal gap between that adjustment and the
previous statutory designation of penalty amounts, to 10 percent. 86 The 1996
amendment thus introduced the 10 percent cap that serves as the source of the
contemporary Inflation Adjustment Act’s “inflation gap.” It also retained two
other distinctive (and ultimately unwieldy) features of the original 1990 statute:
the “CPI lag” introduced by the statute’s reliance on CPI figures for “for the
month of June of the calendar year preceding the adjustment,” as well as the
Act’s elaborate, six-tiered rounding mechanism.
The Debt Collection Improvement Act was an omnibus budget bill. The
legislative record consequently left no trace of any discussion in which Congress
might have debated the amendments to the Inflation Adjustment Act.87 It is
nevertheless striking that the 1996 amendment prescribed automatic cost-of-living
adjustments — a highly controversial mechanism that some advocates of this
legislation had championed and other interested parties had vehemently opposed
— and simultaneously adopted a 10 percent cap on initial adjustments. Even in
the absence of legislative history, it would not be unreasonable to speculate that
the 10 percent cap may have arisen as a compromise given in exchange for
acquiescence in the adoption of a controversial automatic adjustment mechanism,
one to be carried out by agency heads and published in the Federal Register, in
lieu of piecemeal congressional amendment.
A 1998 amendment to the Inflation Adjustment Act abolished the
President’s obligation to provide annual reports under the original statute.88

85

See id. (calling for the first adjustment to be performed October 23, 1996 —180 days after the
amending statute’s enactment date of April 26, 1996 — and directing subsequent adjustments to
be performed “at least once every 4 years thereafter”).
86
See id. § 31001(s)(2).
87
See 2003 GAO Report, supra note 7, at 22 (“The limited legislative history … regarding the
1996 amendment to the Inflation Adjustment Act does not explain why the 10 percent cap was
established.”). The 2003 GAO report, however, is not precisely correct in asserting that “[u]ntil
the 1996 amendment, no earlier executive branch or congressional initiative had called for any cap
on the amount of inflation adjustments.” Id. Senator Lautenberg’s original bills, S. 2559 and the
unamended version of S. 1014, both proposed to cap first-stage, “historical” cost-of-living
adjustments at 1000 percent.
88
Pub. L. 105-362, title XIII, § 1301(a), 112 Stat. 3293 (1998).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 19

III. Problems created by the mechanics of the Inflation Adjustment Act
This section of my report will address in detail the three most salient
concerns about the amended Civil Penalties Inflation Adjustment Act. First, I will
discuss the “inflation gap” arising from the statute’s 10 percent cap on initial
adjustments. I will then examine the “CPI lag” attributable to the statute’s
directive that federal agencies base their cost-of-living adjustments on CPI data
no fewer than six months old and possibly as old as 18 months. Finally, I will
describe how the Act’s rounding mechanism confounds the rational adjustment of
federal civil penalties to reflect the economic impact of inflation.

A. The “inflation gap”
The 10 percent cap imposed by the 1996 amendment, when coupled with
§ 5(b)(2)’s reference to the most recent inflation adjustment, creates a permanent
“inflation gap.” That gap is equivalent to the difference between (1) the actual
increase in inflation since the last adjustment in the penalty amount before the
Inflation Adjustment Act, and (2) 10 percent.
As time passes, the Inflation Adjustment Act prevents closure of the
inflation gap. The gap created by the 1996 amendment’s 10 percent cap,
expressed as the ratio of accumulated inflation to 10 percent, does remain
constant. But the absolute amount will grow:

where the variable
represents average annual inflation, p represents the original
penalty, t represents the number of years between the original penalty and the
initial adjustment, and g represents the number of subsequent years after the
initial adjustment over which inflation grows. For the sake of convenience,
inflation is assumed to increase at a constant rate of 2.5 percent.
The following worked example illustrates the effect of the inflation gap.
Let p represent the amount of the original, unadjusted penalty. Assume that 20
years (t) pass between the original penalty and its first adjustment. If the penalty
had been fully adjusted for inflation at the time of its first adjustment, it would

Inflation-Based Adjustments in Civil Monetary Penalties
Page 20

have been raised to (1.025 ^ 20) · p, or approximately 1.639 · p. But the Inflation
Adjustment Act’s 10 percent cap on initial increases would cap the increased
penalty at 1.1 · p. The ratio between an adjusted penalty that accurately reflected
inflation and a penalty adjusted according to the Act’s 10 percent gap is 1.639 to
1.1, or approximately 1.490.
Ten more years pass, at which point a second adjustment for inflation is
made. In other words, g = 10. Had the original penalty, p, been adjusted strictly
in accordance with inflation over the course of 30 years (20 + 10), it would be
approximately 2.098 · p: (1.025 ^ 20) · (1.025 ^ 10) · p = (1.025 ^ 30) · p ≈ 2.098
· p. The penalty now reflects a further increase of inflation of approximately 28
percent in the 10 years that have passed since the initial 20-year adjustment: 1.025
^ g = 1.025 ^ 10 ≈ 1.280. Adjusting for inflation in strict accordance with federal
law, however, yields a different answer. The Act’s 10 percent cap on initial
adjustments means that the inflation-adjusted penalty, after the passage of the full
30 years (20 after the original penalty, plus another 10) is now 1.1 · (1.025 ^ 10) ·
p, or approximately 1.408 · p. After t + g years, or 30 (20 + 10), the ratio between
an economically adjusted penalty and one adjusted according to the Act remains
approximately 1.490 (since 2.098 / 1.408 ≈ 1.490). The 1.408 multiplier
attributable to the 10 years of inflation that passed between the initial adjustment
and the later adjustment applies equally to an economically accurate penalty and
to a penalty subject to the Inflation Adjustment Act’s initial 10 percent cap.
Further details and formal analysis are provided in the Mathematical Appendix to
this report, at Section II.A.
In its 2003 study of the Inflation Act, the GAO provided a vivid example
of the inflation gap in action.89 In 1996 the Federal Aviation Administration
(FAA) adjusted a maximum $1,000 penalty for possession of a firearm discovered
at a baggage security checkpoint. That penalty had been set in 1958 and had gone
unadjusted until 1996. The CPI increase from June 1958 to June 1995 (which §
5(b) of the Inflation Adjustment Act required the FAA to apply, over the more
recent, more relevant, and more accurate CPI figure for June 1996) was 427.7
percent. A straightforward application of the cost-of-living adjustment described
above would have yielded an adjusted penalty of $5,277. The 1996 amendment
to the Inflation Adjustment Act, however, forced the FAA to cap this adjusted

89

See 2003 GAO Report, supra note 7, at 18-19.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 21

penalty at $1,100 — $4,177 less than a full adjustment for inflation between 1958
and 1995.
In a 1999 regulation that adjusted civil monetary penalties for inflation,
the National Highway Transportation Safety Administration (NHTSA) expressed
specific concern that the Inflation Adjustment Act’s 10 percent cap impaired the
agency’s effort “to enhance the deterrent effect of [its] penalties because of their
importance to [its] enforcement programs”:
Even with [inflation] increases, these penalties appear less than adequate
as a full deterrent to violations of the statutes that we enforce. For
example, the maximum penalty for a related series of violations under the
National Traffic and Motor Vehicle Safety Act of 1966 as amended in
1974 was $800,000. It would have increased more than threefold, to $2.45
million, in June 1996 if (fully) adjusted for inflation. However, the
adjustment was capped at $880,000. Further, under this aggregate penalty
ceiling, on a per vehicle basis the maximum penalty amounts to less than
one dollar per vehicle where a substantial fleet was in violation of the
Safety Act.90
These penalties redress serious violations of 49 U.S.C. § 301 and 49 U.S.C. § 325.
These statutes proscribe behavior such as odometer tampering, failing to provide
consumer information regarding vehicle crashworthiness, and violating safety and
bumper requirements.91
B. CPI lag
The Inflation Adjustment Act, as amended, requires agencies to set
inflation adjustments not according to the most recent available Consumer Price
Index data, or even CPI data for the most recent benchmark month. Rather,
section 5(b) defines “the term ‘cost-of-living adjustment’ as the percentage (if
any) for each civil monetary penalty by which — the Consumer Price Index for
the month of June of the calendar year preceding the adjustment, exceeds … the
Consumer Price Index for the month of June of the calendar year in which the
90

National Highway Transportation Safety Administration, Civil Penalties, 64 Fed. Reg. 37,876,
37,877 (July 14, 1999), quoted in 2003 GAO Report, supra note 7, at 22.
91
49 U.S.C. § 301; 49 U.S.C. § 325.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 22

amount of such civil monetary penalty was last set or adjusted pursuant to law.”92
The previous-June-to-distant-June methodology prescribed by § 5(b) creates an
intermittent CPI lag, or the potential loss of an entire year of inflation adjustment
each time an agency readjusts civil monetary penalties for intervening increases in
the cost of living. CPI lag exacerbates the gap between actual inflation (on one
hand) and legally dictated adjustments in civil monetary penalties under the
Inflation Adjustment Act. This distortion compounds any inflation gap that may
result from the 10 percent cap on an initial inflation adjustment under the Act.
Truly perversely, if an agency tries to adjust its penalties for inflation more
frequently, that attempt at regularity aggravates the effects of CPI lag and creates
an even wider gap between legally adjusted penalties and a hypothetical penalty
adjusted strictly in response to inflation.
Section 5(b)(1)’s requirement that agencies consult CPI “for the month of
June of the calendar year preceding [an inflation] adjustment” commits agencies
to ignore the most recent year of inflation every time they adjust a civil monetary
penalty for inflation. Each round of adjustments under the Act therefore
introduces an additional error, equivalent in magnitude to the most recent June-toJune change in CPI. Over multiple iterations, CPI lag compounds and can
become quite considerable.
Part II.B of the Mathematical Appendix formally predicts the effects of
CPI lag. For a prospective period of s years, subsequent to an initial adjustment,
during which an agency expects to adjust penalties for inflation at a frequency of
once every f years, the cumulative lag can be predicted with the following
equation:

where the double brackets indicate the floor, or “greatest integer,” function, which
is the largest integer which is less than or equal to s/f.93 For example, if an agency
chooses to adjust its penalties for inflation every three years (f = 3) over an 11year period (s = 11), then cumulative CPI lag can be predicted to be 1.025 ^
[[11/3]], or 1.025 ^ 3 – 1 ≈ 7.7 percent. The reason for this lag is that an agency
observing a three-year cycle between adjustments can be expected to make three
92
93

Inflation Adjustment Act, supra note 2, § 5(b).
See http://en.wikipedia.org/wiki/Floor_and_ceiling_functions.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 23

adjustments during an 11-year span. The compounded effect of three years’
inflation, if inflation is assumed to rise by a constant 2.5 percent every year, is
approximately 7.7 percent.
The GAO’s 2003 report on the Inflation Adjustment Act provides a vivid
illustration of CPI lag over time.94 In a 1999 adjustment, NHTSA expressed
concern that the Inflation Adjustment Act prevented the agency from tripling
penalties for violations of the National Traffic and Motor Vehicle Safety Act of
1966, as intervening inflation would prescribe, and instead capped NHTSA’s fine
at 10 percent over $800,000, or $880,000.95 One should recall NHTSA’s
expression of frustration at its inability, under the Inflation Adjustment Act, to
capture the full effect of inflation with a fine of $2.45 million rather than
$880,000. The same episode also illustrates the deleterious effects of CPI lag.
Thanks to CPI lag, multiple rounds of inflation adjustments, even if not
handicapped by the initial 10 percent cap, would fall even further behind actual
inflation. Perversely enough, the distortion attributable to CPI lag would have
been even greater if NHTSA had made two rather than one adjustments in a fouryear span:
1. Inflation from 1996 through 2000, with no lag: 10.0%
2. Inflation from 1996 through 1999: 6.1%. The amount of one year in CPI
lag would have been approximately (1.1/1.061) − 1, or approximately
3.7%
3. Inflation from 1996-97 and 1998-99: 4.3%. The amount of two years in
CPI lag would have been approximately (1.1/1.043) − 1, or approximately
5.5%
The foregoing figures are based on actual inflation numbers from 1996 through
2000. They are consistent with the amount of distortion that this report’s formula
for cumulative CPI lag would predict after two rounds of inflation adjustments:
1.100 / (1.025)[[4/2]] = 1.100 / (1.025)2 − 1 ≈ 4.7%.

94

See 2003 GAO Report, supra note 7, at 23-26 (especially figures 3, 4, and 5).
See National Highway Transportation Safety Administration, Civil Penalties, 64 Fed. Reg.
37,876 (July 14, 1999).
95

Inflation-Based Adjustments in Civil Monetary Penalties
Page 24

A parallel inflation adjustment provision in I.R.C. § 1(f)
CPI lag is an artifact of the Inflation Adjustment Act’s requirement that
agencies performing inflation-based adjustments in civil monetary penalties apply
CPI data for the “calendar year preceding the adjustment.” Parallel language in
the Internal Revenue Code, however, demonstrates that it is possible for a statute
to prescribe inflation-based adjustments based on CPI data from a “preceding
calendar year” without forcing each round of adjustments to ignore an entire year
of inflation. Section 1(f) of the Internal Revenue Code96 is the provision that
gives federal income taxation its generally progressive nature by prescribing
brackets of increasingly higher marginal rates.97 Generally speaking, the structure
of income tax rates is the place where inflation has its greatest impact on income
taxation.98 The Economic Recovery Tax Reform Act of 1981 amended section
1(f) in order to index tax brackets for inflation.99 In the absence of indexing,
progressive tax brackets “creep” on taxpayers as inflation shoves them into higher
brackets. Inflation creep had become especially acute in the years immediately
preceding the 1981 tax reform.100 Because many other aspects of federal income
taxation101 are based on section 1(f)’s definition of the cost of living, this
provision’s approach to inflation indexing has a profound impact on the entire
Internal Revenue Code.
As amended in 1981, section 1(f) adjusts federal income tax brackets for
increases in the cost of living. Subsections (3) and (4) prescribe a reference to
CPI data for a “preceding year”:
(3) Cost-of-living adjustment
For purposes of paragraph (2), the cost-of-living adjustment for
any calendar year is the percentage (if any) by which—
96

I.R.C. § 1(f).
See Jim Chen, Progressive Taxation: An Aesthetic and Moral Defense, 50 U. LOUISVILLE L.
REV. 659 (2012).
98
See Jim Chen, The Price of Macroeconomic Imprecision: How Should the Law Measure
Inflation?, 54 HASTINGS L.J. 1375, 1386-88 (2003).
99
See Economic Recovery Tax Act, of 1981, Pub. L. No. 97-34, tit. I, § 104(a), 95 Stat. 172, 188.
100
See, e.g., Emmanuel Saez, The Effect Of Marginal Tax Rates On Income: A Panel Study Of
“Bracket Creep," 87 J. PUB. ECON. 1231 (2003).
101
See, e.g., I.R.C. § 63(c)(4)(B) (standard deduction).
97

Inflation-Based Adjustments in Civil Monetary Penalties
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(A) the CPI for the preceding calendar year, exceeds
(B) the CPI for the calendar year 1992.
(4) CPI for any calendar year
For purposes of paragraph (3), the CPI for any calendar year is the
average of the Consumer Price Index as of the close of the 12-month
period ending on August 31 of such calendar year.102
On the surface, the language of section 1(f)(3) and (4) parallels that of section
5(b) of the Inflation Adjustment Act. Although the legislative history of the
Inflation Adjustment Act provides no evidence that the drafters of this statute
relied upon section 1(f) of the Internal Revenue Code, it is almost certain that
members of the 100th and 101st Congresses were aware of that provision. After
its introduction in 1981, inflation indexing of the Internal Revenue Code became
a distinctive feature of federal income taxation. At a minimum, even if the
architects of the Inflation Adjustment Act paid no direct heed to section 1(f) of the
Internal Revenue Code, section 5(b) of the Inflation Adjustment Act and section
1(f) of the Internal Revenue Code are statutes in pari materia.103 Interpretive
inferences drawn from one statute may therefore shed light on the other.
Section 1(f)’s reference to the CPI for a “preceding calendar year” refers
unambiguously to cost-of-living data from the year immediately prior to the year
in which a CPI inquiry is made. The current version of section 1(f) treats CPI for
1992 as the cost-of-living baseline for tax year 1993.104 If tax brackets for 1993
begin with the baseline of CPI as of August 1992, then inflation-adjusted tax
brackets for a subsequent year must track the growth in CPI from August 1992 to
August of the year prior to the targeted tax year. For instance, brackets for tax
year 2000 must have been based on CPI data for 1999.
The Internal Revenue Service’s application of CPI data confirms this
interpretation of section 1(f). As of 2000, federal income tax retained the basic
bracket structure that had been established in 1993. For single taxpayers who
were not heads of households, income above the zero-bracket level but below
$22,100 was taxed in 1993 at 15 percent.105 For tax year 2000, single taxpayers
102

I.R.C. § 1(f)(3), (4).
See, e.g., United States v. Stewart, 311 U.S. 60, 64-65 (1940); United States v. Freeman, 44
U.S. (3 How.) 556, 564-65 (1845).
104
I.R.C. § 1(f)(3)(B).
105
See id. § 1(c).
103

Inflation-Based Adjustments in Civil Monetary Penalties
Page 26

paid a marginal rate of 15 percent on all income between $0 and $26,250, net of
the personal exemption and of all deductions.106 The ratio of $26,250 to $22,100
is approximately 1.188.
Close examination of CPI data demonstrates that the Internal Revenue
Service, in readjusting income tax brackets in 2000, used CPI data for 1999. This
is precisely what section 1(f)(3) of the Code meant by the “preceding year.”
Historical tables for CPI reveal August figures for 1992, 1999, and 2000:107
1992: 140.5
1999: 166.7
2000: 172.8
The ratio between CPI for 1999 and CPI for 1992, vis-à-vis the ratio between CPI
for 2000 and CPI for 1992, makes it clear that the IRS applied the 1999 CPI
figure:
CPI1999/CPI1992:
CPI2000/CPI1992:

166.7/140.5 ≈ 1.186
172.8/140.5 ≈ 1.230

Use of CPI data for a “preceding year” makes affirmative sense in the
context of federal income taxation. To define tax brackets for 2000, the IRS
determined the CPI adjustment “not later than December 15” of 1999. 108 As of
December 15, 1999, the IRS obviously could not have projected CPI levels in
August 2000.109 The IRS continues to adjust bracket boundaries on this basis,
prescribing bracket boundaries for the coming tax year in the final months of the
“preceding year.”
By contrast, § 5(b) of the Inflation Adjustment Act incorporates an
iteratively compounding form of inflation lag that I.R.C. § 1(f) appropriately
avoids. The Inflation Adjustment Act directs federal agencies to calculate “the
106

See INTERNAL REVENUE SERVICE, 2000 TAX RATE SCHEDULES 71 (2000), available at
http://www.irs.gov/pub/irs-prior/i1040tt--2000.pdf.
107
Consumer Price Index: All Urban Consumers - (CPI-U), BUREAU OF LABOR STATISTICS (Oct.
16, 2012), ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt.
108
See I.R.C. § 1(f)(1).
109
See id. § 1(f)(4) (defining the CPI for any year by reference to the 12-month average ending in
August of that year).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 27

percentage (if any) for each civil monetary penalty by which — (1) the Consumer
Price index for the month of June of the calendar year preceding the adjustment,
exceeds (2) the Consumer Price Index for the month of June of the calendar year
in which the amount of such civil monetary penalty was last set or adjusted
pursuant to law.” If Congress had wanted to structure § 5(b) of the Inflation
Adjustment Act precisely in parallel with I.R.C. § 1(f), it would have been better
served to write, “the percentage (if any) for each civil monetary penalty by which
— (1) the Consumer Price index for the month of June of the calendar year
preceding the adjustment, exceeds (2) the Consumer Price Index for the month of
June of the calendar year preceding the calendar year in which the amount of
such civil monetary penalty was last set or adjusted pursuant to law” (altered
language in italics). The current version of section 1(f) of the Internal Revenue
Code effectively accomplishes this mission by starting with a baseline of 1993 tax
brackets based on 1992 CPI figures.
C. Rounding
From its origins in Senator Lautenberg’s original bills, S. 2599 and S.
1014, the Inflation Adjustment Act has always contemplated some form of
rounding. But the Act ultimately adopted a rounding mechanism that lacks the
simple elegance of a directive that all cost-of-living increases “be rounded to the
nearest multiple of $10.”110 Instead, section 5(a) of the Act prescribes an
elaborate six-tiered schedule for rounding. One of these directives will serve to
illustrate the set. Under the Act, any cost-of-living adjustment shall be “rounded
to the nearest … multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000.”111 The evident intent underlying this provision is to
prevent the use of awkward amounts in the adjustment of civil monetary
penalties. But the rounding rules, by using the size of the penalty as opposed to
the size of the increase as the trigger for rounding, create some absurd results.
Under this provision, some penalties (particularly smaller ones) may take
as long as 17 years to trigger an increase given the rounding, coupled with the 10
percent initial cap, since (1 + 0.025)17 ≈ 1.5. The details of this calculation are
laid out in Section II.C of the Mathematical Appendix. Over time, the rounding
mechanism prescribed by the Act has the effect of withholding increases for
110
111

S. 2599, supra note 31, §§ 4(b), 5(b); S. 1014, supra note 46, §§ 4(b), 5(b).
Inflation Adjustment Act, supra note 2, § 5(b)(2) (emphasis added).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 28

certain penalties, only to unleash startlingly large increases after a long latency
period. Delaying increases and then rounding them up to the nearest ten, hundred,
or thousand dollar amount can trigger penalty increases twice the scale of the
inflation that finally merits an increase under the Inflation Adjustment Act.
A little back-of-the-envelope mathematics provides a glance at the
problems created by the rounding rules. I shall begin at the lower end of one of
the six rounding categories defined by section 5(a) of the Inflation Adjustment
Act. The impact of the rounding rules is much more pronounced toward the
lower end of each rounding category.112 A $101 statutory penalty is, in the
language of section 5(a)(2), “greater than $100 but less than or equal to $1,000.”
Because a cost-of-living adjustment to this penalty must be “rounded to nearest …
multiple of $100,” there can be no such adjustment until inflation dictates an
increase of at least $50. If inflation increases, as I have presumed in the interest
of simplifying calculations, at a constant annual rate of 2.5 percent, then we can
calculate the number of years (represented by the variable t) that must transpire
before the agency can make an adjustment. The formula involves comparing
1.025 raised to the exponent t, with the sum of 1 and 50/101. The following
calculation shows how the agency must wait 17 years before performing a single
$100 adjustment:

where the inverted double brackets indicate the ceiling function, which is the
smallest integer that is greater than or equal to t.113
In that 17th year, by which time inflation is projected to have increased
52.16 percent, the $100 increase will represent a 99 percent increase over the
$101 base penalty. Although the Act’s congressional findings, stated purposes,
112
113

See 2003 GAO Report, supra note 7, at 29.
See http://en.wikipedia.org/wiki/Floor_and_ceiling_functions.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 29

and legislative history all focus on what had been the failure of federal civil
monetary penalties to keep pace with inflation, adjustments in excess of inflation
pose a distinct, significant problem in their own right. Every regulatory regime
strikes some balance between enforcement and deterrence, between socially
deleterious and privately beneficial behavior. Many acts subject to federal
regulation are, at least to some degree, essential to the proper functioning of a
market-based economy. Adjustments that are effectively the double the rate of
inflation elevate regulatory deterrence above levels that Congress originally
contemplated and may inhibit business activities of the sort and/or at a level that
Congress did intend to permit.
The 2003 GAO report provides a real-life example of these effects.114 The
Pension and Welfare Benefits Administration (PWBA) performed cost-of-living
adjustments for penalties that had originally been set by statute at $10, $100, and
$1,000. Section 6 of the Inflation Adjustment Act, as amended, capped initial
adjustments at 10 percent each. That 10 percent cap would result in new
penalties, respectively of $11, $110, and $1,100. Because the Act’s rounding
provisions would require the next adjustment to be rounded by a full $10, $100, or
$1,000, respectively, no increase could take place until CPI had risen by 45.5
percent from the level that prevailed when the PWBA first adjusted its $10, $100,
and $1,000 penalties, respectively to $11, $110, and $1,100. In other words, after
an initial adjustment of $10, $100, and $1,000 penalties to $11, $110, and $1,100,
the Act froze these new penalties in place until enough inflation had accumulated
to warrant a subsequent increase of $10, $100, and $1,000, respectively, in these
three penalties, respectively, to $21, $210, and $2,100. The triggering amount of
inflation in each scenario would be half of $10, $100, or $1,000 — namely, $5,
$50, and $500. For a further explanation of the impact of section 6’s rounding
provisions, see the Mathematical Appendix at Section II.C.
All of these practical irregularities in the statutory scheme for adjusting
federal civil monetary penalties for changes in inflation — an incurable inflation
gap traceable to the initial 10 percent cap, CPI lag that grows with each
adjustment, baroque and frequently absurd rounding provisions — have led or
misled federal administrative agencies into a variety of departures from the strict
letter of the Inflation Adjustment Act and its 1996 amendments. Anomalies
traceable to the Inflation Adjustment Act’s rounding provisions are so absurd that
114

See 2003 GAO Report, supra note 7, at 29-31 (especially table 3 and figure 6).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 30

some agencies have mistakenly interpreted the statute in a common-sense way
and performed rounding according to the size of the increase.115 Although this
sort of administrative self-help is understandable, it is contrary to the letter of the
Inflation Adjustment Act.
D. The Inflation Adjustment Act in practice
More routinely, agencies have failed to uphold the schedule for inflation
adjustments prescribed by the 1996 amendments.
The Debt Collection
Improvement Act of 1996 directed each covered agency to perform its first
inflation adjustments on October 23, 1996, and to perform subsequent
adjustments “at least once every 4 years thereafter.”116 Many failures to abide by
this schedule are nearly impossible to detect, inasmuch as agencies are not
required to provide step-by-step details of the inflation adjustment calculations.
Indeed, even the cost of publishing notices in the Federal Register provides a
disincentive against comprehensive methodological explanations.
Even when an agency does describe its inflation adjustment methodology
in detail, the simple act of complying with the 1996 amendments’ four-year
timetable often eludes the agency. For example, in 2010 the National Highway
Safety Transportation Administration (NHTSA) took pains to explain its inflation
adjustment methodology and to apply that methodology to a wide range of
maximum penalties.117 Without apology or other explanation, however, NHTSA
admitted that it had waited six years (from 2004 to 2010) to adjust penalties for “a
related series of violations of bumper standards and of consumer information
regarding crashworthiness and damage susceptibility.”118
Quite often, an agency’s failure to perform adjustments on the legally
prescribed timetable bars the agency from being able to capture all intervening
115

See GAO Reports, Compliance with the Inflation Adjustment Act, GAO-02-1084R (Sept. 24,
2002) (Farm Credit Administration); GAO-02-1085R (Sept. 30, 2002) (Department of
Commerce). Both agencies appear to have remedied their flirtation with self-help and to have
aligned their application of the Inflation Adjustment Act with the language of the statute. See
Farm Credit Administration, Adjusting Civil Monetary Penalties for Inflation, 74 Fed. Reg. 2340
(Jan. 15, 2009); Department of Commerce, Civil Monetary Penalties; Adjustment for Inflation, 73
Fed. Reg. 75,321 (Dec. 11, 2008).
116
Pub. L. No. 104-134, § 31001(s)(1)(A), 110 Stat. 1321, 1373 (1996).
117
See National Highway Transportation Safety Administration, Civil Penalties, 15 Fed. Reg.
5244, 5245-47 (Feb. 2, 2010).
118
Id. at 5245.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 31

inflation (net of the one-year CPI lag that accompanies any adjustment). For
instance, the Department of Education undertook in 2012 to adjust “a penalty of
up to $1,000 for an educational organization’s failure to disclose certain
information to minor students and their parents.”119 Because that penalty had not
been adjusted since its establishment in 1994, the Department was faced with the
prospect of adjusting the $1,000 ceiling to reflect inflation from 1994 to 2011.
Since this was the Department’s first adjustment of this penalty, however, the
Debt Collection Improvement Act’s 10 percent cap applied.120 Similarly, the
Department of Homeland Security admitted in 2011 that it had not adjusted a
penalty for noncompliance with section 231(g) of the Immigration and Nationality
Act (which imposes manifest requirements on commercial vessels and aircraft
arriving in or departing from the United States), which penalty had been “set by
legislation in 2002.”121 Again, any adjustment designed to capture all of the
intervening years of inflation fell victim to the 10 percent cap.
The interaction of missed deadlines, the 10 percent cap, and the Inflation
Adjustment Act’s rounding rules played special havoc with the Federal
Emergency Management Agency (FEMA). In 2009, FEMA admitted that its
$5,000 penalty for any knowing violation of the Robert T. Stafford Disaster Relief
and Emergency Assistance Act, which had been established in 1990,122 had never
been adjusted, notwithstanding the October 23, 1996, deadline for making initial
inflation adjustments.123 FEMA acknowledged that its default, coupled with the
Inflation Adjustment Act and its 1996 amendments, precluded the agency from
fully accounting for the dramatic increase in consumer prices during the
intervening decades: “Since the [1990] promulgation of 44 CFR 206.14(d), the
CPI has increased by nearly 80 percent. However, [since] this rule is FEMA’s
first adjustment of its civil penalty regulations since the passage of the
Adjustment Act … [t]he first increase may not exceed 10 percent of the original

119

Department of Education, Adjustment of Civil Monetary Penalties for Inflation, 77 Fed. Reg.
60,047, 60,048 (Oct. 2, 2012).
120
See id.
121
Department of Homeland Security, Civil Monetary Penalties Inflation Adjustment, 76 Fed.
Reg. 74,625, 74,626 (Dec. 1, 2011).
122
See 55 Fed. Reg. 2288 (Jan. 23, 1990) (codified at 44 C.F.R. § 206.14(d)).
123
See Federal Emergency Management Agency, Criminal and Civil Penalties Under the Robert
T. Stafford Disaster Relief and Emergency Assistance Act, 74 Fed. Reg. 58,849, 58,849 (Nov. 16,
2009).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 32

penalty amount.”124 Thereupon FEMA adjusted the penalty to $5,500. But even
that decision violated the strict letter of the Inflation Adjustment Act. Section
5(a)(3), one of the Act’s rounding provisions, commands that “[a]ny increase”
reflecting a risen cost of living “be rounded to the nearest … multiple of $1,000 in
the case of penalties greater than $1,000 but less than $10,000.”125 Depending on
its admittedly contestable interpretation of “the nearest multiple of $1,000,”
FEMA could either have adjusted this penalty to $6,000 (rounding up) or kept the
penalty unchanged at $5,000 (rounding down). The one unlawful outcome was a
penalty of $5,500, which could only be described as an attempt to round
according to the size of the increase rather than the size of the penalty.
The Department of Agriculture provides a study in contrast. In 2010,
USDA identified a $1,200 Perishable Agricultural Commodities Act penalty that
would have qualified for a 10 percent increase under the 10 percent cap imposed
by the Debt Collection Improvement Act of 1996.126 But the resulting $120
increase had to be rounded to zero under section 5(b)(3) of the Inflation
Adjustment Act, which requires that any cost-of-living increase “be rounded to
the nearest … multiple of $1,000 in the case of penalties greater than $1,000 but
less than or equal to $10,000.”127
Indeed, the Department of Agriculture has proved uniquely sensitive to the
effects of the Inflation Adjustment Act’s rounding rules. Compared to many
other agencies, USDA issued its initial round of inflation adjustments on July 31,
1997, merely nine months after the 1996 amendments’ original deadline.128
USDA announced that “[t]he rule contained in this notice reflects the initial
adjustment … required by the Act.”129 In subsequent inflation adjustment rules,
USDA has announced its position that the publication of a penalty amount in the
Federal Register, even if rounding rules preclude change in that amount,
constitutes the adjustment of a penalty for inflation in accordance with the Act:

124

Id.
Inflation Adjustment Act, supra note 2, § 5(b)(3).
126
See Department of Agriculture, Civil Monetary Penalties Adjustment, 75 Fed. Reg. 17,555,
17,555 (April 7, 2010).
127
Inflation Adjustment Act, supra note 2, § 5(b)(3).
128
See Department of Agriculture, Civil Monetary Penalties Adjustment, 62 Fed. Reg. 40,924
(July 31, 1997).
129
Id. at 40,924.
125

Inflation-Based Adjustments in Civil Monetary Penalties
Page 33

USDA continues to interpret the Act such that all listed civil monetary
penalties undergo the required adjustment whenever USDA adjusts those
civil monetary penalties by regulation pursuant to the Act and publishes
the regulation in the Federal Register. In other words, the civil monetary
penalty is considered to have been adjusted even though the dollar amount
of the penalty does not increase (a situation that arises due to application
of the rounding formulas in section 5(a) of the Act)… USDA believes that
this interpretation most accurately reflects the plain language of the
statutory text.130
Another dramatic example of all of these statutory anomalies in action can
be seen in the Department of Homeland Security’s (DHS) attempt to adjust a host
of penalties for violations of the Immigration and Nationality Act (INA).131
These penalties relate to a number of serious violations of the INA, including:
non-compliance with departure manifest requirements for vessels and aircraft,
non-compliance with landing requirements at entry points by aircraft transporting
aliens, failure to depart the U.S. voluntarily, failure to comply with removal
orders or to remove alien stowaways, failure to report an illegal landing or
desertion of an alien crewmen or passenger, use of an alien crewmen for
longshore work, employment of aliens with certain disabilities as crewman,
failure to control alien crewmen, bringing alien crewmen into the U.S. with the
intent to evade the INA, failure to prevent the unauthorized landing of aliens,
bringing aliens into the U.S. who are subject to denial on a health-related ground
or who lack required documents, as well as general penalties for failure to depart
or improper entry.132

130

Department of Agriculture, Civil Monetary Penalties Adjustment, 75 Fed. Reg. 17,555, 17,555
(April 7, 2010); Department of Agriculture, Civil Monetary Penalties Adjustment, 70 Fed. Reg.
29,573, 29,573 (May 24, 2005).
131
See Department of Homeland Security, Civil Monetary Penalties Inflation Adjustment, 76 Fed.
Reg. 74,625, 74,627-28 (Dec. 1, 2011).
132
Id.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 34

Department of Homeland Security, Immigration and Nationality Act
Civil Monetary Penalties Inflation Adjustment (2011)133
[A]
INA §
Statute

[B]
Current
penalty

INA §
231(g); 8
U.S.C.
1221(g)

$1,000.00

INA §
234; 8
U.S.C.
1224

$2,200.00

[C]
Year
last
adjusted

[D]
CPI
factor
(2011)
(%)

[E]
Raw
increase
(2011)
[B x D]

Enacted
2002

21.16

$211.60

1999

31.15

[F]
Rounder
[Inflation
Adjustment
Act
constraint]

[G]
Rounded
increase
[Inflation
Adjustmen
t Act
increase]

[H]
Raw
adjusted
penalty*
[B + E]

[I]
Adjusted
penalty
[per
IAA]
[B + G]

[J]
Inflation
Adjustmen
t Act
distortion*
[I – H]

10%
statutory cap

$100.00

$1,211.60

$1,100.00

–$111.60

$685.30

$1,000.00
[rounder]

$1,000.00

$2,885.30

$3,200.00

+$314.70

10%
statutory cap

$100.00
minimum/
$500.00
maximum

$1,391.00
minimum
/
$6,955.00
maximum

$1,100.00
minimum
/
$5,500.00
maximum

-$291.00
minimum/
$1,455.00
maximum

INA §
240B(d); 8
U.S.C.
1229
(c)(d)

$1000.00
minimum/
$5,000.00
max

Enacted
1996

39.10

$391.00
minimu
m/
$1,955.0
0
maximu
m

INA §
243(c)(1)(
A); 8
U.S.C.
1253(c)(1)
(A)

$2,000.00

Enacted
1996

39.10

$782.00

10%
statutory cap

$200.00

$2,782.00

$2,200.00

–$582.00

INA §
243(c)
(1)B); 8
U.S.C.
1253(c)
(1)(B)

$5,000.00

Enacted
1996

39.10

$1,955.0
0

10%
statutory cap

$500.00

$6,955.00

$5,500.00

–$1,455.00

INA §
251(d); 8
U.S.C.
1281(d)

$220 for
each alien
not
reported /
$5,5000
for use of
alien
crewman

31.15

$68.53
for each
alien not
reported/
$1,713.2
5 for use
of alien
crewman

$100.00 for
each alien
not reported/
$1,000.00
for use of
alien
crewman
[rounder]

$100.00 for
each alien
not
reported/
$2,000 for
use of alien
crewman

$288.53
for each
alien not
reported/
$7,213.25
for use of
alien
crewman

$320.00
for each
alien not
reported/
$7,500
for use of
alien
crewman

$31.47 for
each alien
not
reported/
$286.75 for
use of alien
crewman

1999

133 This table presents a subset of

four penalties from the table of penalty adjustments
contained in the 2011 Federal Register notice from the Department of Homeland Security, id.,
together with two additional columns ([H] and [J], denoted by a *).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 35

INA §
254(a); 8
U.S.C.
1284(a)

$550.00
minimum/
$3,300.00
max

1999

INA §
255; 8
U.S.C.
1284(a).

$1,100.00

1999

31.15

$171.33
minimu
m/
$1,027.9
5
maximu
m

$100.00
minimum/
$1,000.00
maximum
[rounder]

$200.00
minimum/
$1,000.00
maximum

$721.33
minimum
/
$4,327.95
maximum

$750.00
minimum
/
$4,300.00
maximum

$28.67
minimum / $27.95
maximum

31.15

$342.65

$1,000.00
[rounder]

$0.00

$1,442.65

$1,100.00

–$342.65

IV. Possible solutions
All three of the significant defects in the amended Inflation Adjustment
Act — the inflation gap, CPI lag, and rounding constraints — arise from the plain
language of the statute. Although some agencies have tried to work around this
statute’s most awkward provisions, those efforts are contrary to law. To be sure,
the norms of statutory construction instruct courts and agencies alike not to
interpret statutes so as to achieve absurd results.134 Congress, however, ultimately
chose unambiguous language to achieve dubious results. This report will
therefore recommend possible legislative solutions to the major problems
afflicting the Inflation Adjustment Act.
The simplest solution to the inflation gap rests in outright repeal of the 10
percent cap on initial inflation adjustments found in section 6. Until the 1996
amendment, no member of Congress or witness at a congressional hearing had
proposed any cap more stringent than 1000 percent. In fairness, the 10 percent
cap may be rationalized, especially in hindsight, as part of a larger legislative
package. The 1996 amendment introduced an automatic adjustment mechanism
that had proved quite controversial in the debates preceding passage of the
original Inflation Adjustment Act in 1990. Indeed, the original 1990 statute
reverted to a presidential reporting mechanism that left the actual legal work of
adjusting civil monetary penalties to Congress, in the form of full-blown
legislation. The 1996 amendment, seen in this light, may have conditioned
134

See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring
in the judgment); EINER ELHAUGE, STATUTORY DEFAULT RULES: HOW TO INTERPRET UNCLEAR
LEGISLATION 148 (2008).

Inflation-Based Adjustments in Civil Monetary Penalties
Page 36

congressional acquiescence in an automatic adjustment mechanism upon the
imposition of a restrictive cap on initial adjustments.
Respect for the broader purposes that may be imputed to the Inflation
Adjustment Act counsels consideration of an intermediate approach, of some kind
of compromise. Retaining the 10 percent limit solely as a cap on any single costof-living adjustment allows Congress to keep some limit on inflation-based
increases in civil monetary penalties. By the same token, allowing a 10 percent
increase in any given year does supply a slow cure for the inflation gap that
cripples the existing Inflation Adjustment Act. If we assume modest inflation,
somewhere in the neighborhood of the historical average of 2.5 percent, annual 10
percent increases would enable agencies eventually to align civil monetary
penalties with the inflation that has intervened since the original passage of the
statute imposing those penalties.
As demonstrated in Part II.D of the Mathematical Appendix, agencies
operating under a 10 percent cap on annual cost-of-living increases can close the
historical inflation gap within 0.35 times the number of years that a civil penalty
languished without an inflation adjustment. If Congress, in a future amendment
to the Inflation Adjustment Act, elects to retain a mechanism for softening the
initial implementation of inflation adjustments for civil monetary penalties that
have lain dormant for long periods of time, this ratio would facilitate a reasonably
informed estimate of the length of time that it will take for a phased-in set of
inflation adjustments, each observing a fixed cap on annual increases, to catch up
for lost intervening time and to take full effect.
Some danger does lurk if Congress chooses to limit annual inflation
adjustments to 10 percent, out of an interest in softening the transition from longneglected civil penalties. Contrary to the simplifying assumption adopted hitherto
by this report, this discussion, will no longer assume that inflation increases each
year by a constant 2.5 percent. Rather, it will use actual historical CPI data.
Since 1914, the Consumer Price Index has increased more than 10 percent in a
single year on ten occasions.135 This represents an incidence just over 10 percent
(10 occasions divided by 98 years ≈ 10.2 percent). The past two decades have
witnessed remarkable stability in consumer prices. The CPI has not increased by
more than 4 percent in any year since 1992. Of the ten years since 1914 that
witnessed annual inflation of 10 percent or more, seven (1917 through 1920, plus
135

CPI data since 1913 is reported at ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt.

Inflation-Based Adjustments in Civil Monetary Penalties
Page 37

1979 through 1981) took place in streaks of three or four years. Any meaningful
ceiling on initial or intermittent adjustments is therefore vulnerable to a mismatch
between statutory design and economic realities.
CPI lag is likely the product of poor legislative drafting. The Act’s
reference to “the Consumer Price Index for the month of June of the calendar year
preceding the adjustment” appears to have arisen from a linguistically decisive
but pragmatically troubling resolution of ambiguous language in Senator
Lautenberg’s original bills.136 The plain meaning of this provision systematically
directs federal agencies, as they make cost-of-living adjustments in civil monetary
penalties, to ignore six to eighteen months of CPI data. If Congress wishes to
retain current law’s reliance on CPI data for the month of June, it can do so by
rewriting section 5(b)(2) so that it refers to “the Consumer Price Index for the
most recent month of June.”
Rounding has confounded the Inflation Adjustment Act ever since Senator
Lautenberg invited his congressional colleagues to modify his original proposal of
rounding all increases to the nearest multiple of $10. Perhaps the time has come
to restore the original bill’s $10 rounding provision. Alternatively, as some
agencies and the GAO have suggested, Congress may wish to consider repealing
the rounding provision in its entirety.137
A less drastic alternative lies in amending the Inflation Adjustment Act so
that rounding is based solely on the size of the increase rather than the size of the
underlying penalty. Section 5(a) of the Act reads in part: “Any increase
determined under this subsection shall be rounded to the nearest — (1) multiple of
$10 in the case of penalties less than or equal to $100; (2) multiple of $100 in the
case of penalties greater than $100 but less than or equal to $1,000; ….”138
Substituting the word “increases” for the word “penalties” yields this alternative:
“Any increase determined under this subsection shall be rounded to the nearest —
(1) multiple of $10 in the case of penalties increases less than or equal to $100;
(2) multiple of $100 in the case of penalties increases greater than $100 but less
than or equal to $1,000; … .” Rounding adjustments according to the level of the
increases rather than the level of the penalties will ameliorate two of the
deleterious effects of the Inflation Adjustment Act. The Act’s rounding
provisions, as they stand, make adjustments less frequent (in partial contravention
136

Inflation Adjustment Act, supra note 2, § 5(b)(2).
See 2003 GAO Report, supra note 7, at 33, 38.
138
Inflation Adjustment Act, supra note 2, § 5(a).
137

Inflation-Based Adjustments in Civil Monetary Penalties
Page 38

of congressional intent) and more volatile when they do occur (in complete
frustration of Congress’s expectations and of any plausible legislative purpose
underlying a statutory directive to adjust monetary penalties for inflation).
Rounding according to increases rather than entire penalties will facilitate more
frequent (or at least more regular) adjustments, and with far less “whiplash” than
under existing law.
Rounding inflation-based adjustments under I.R.C. § 1(f)
Section 1(f) of the Internal Revenue Code, whose referral to CPI data from
a “preceding year” provides in pari materia evidence for interpreting parallel
language in section 5(b) of the Inflation Adjustment Act, offers a model for
amending the Inflation Adjustment Act’s rounding provisions. Under section
1(f)(6) of the Internal Revenue Code, cost-of-living adjustments are “rounded to
the next lowest multiple of $50” (or, in the case of married individuals filing
separate returns, “the next lowest multiple of $25”):139
(6) Rounding
(A) In general
If any increase determined under paragraph (2)(A), section 63
(c)(4), section 68(b)(2) or section 151 (d)(4) is not a multiple of $50, such
increase shall be rounded to the next lowest multiple of $50.
(B) Table for married individuals filing separately
In the case of a married individual filing a separate return,
subparagraph (A) (other than with respect to sections 63 (c)(4) and 151
(d)(4)(A)) shall be applied by substituting “$25” for “$50” each place it
appears.
Relative to the Inflation Adjustment Act’s debilitating methodology, the Internal
Revenue Code’s approach to rounding offers two virtues. First, it rounds
according to the size of an increase rather than the size of the penalty. Second,
the Code uses a simple, round number — $50 — for most rounding purposes,
with the legally and logically sound exception of splitting $50 into two halves of
$25 for married taxpayers filing separately.
139

I.R.C. § 1(f)(6).

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If Congress does reexamine the Inflation Adjustment Act, it should take
advantage of institutional diversity within the United States government. The
Inflation Adjustment Act exempted four statutes: the Internal Revenue Code of
1986, the Tariff Act of 1930, the Occupational Safety and Health Act of 1970,
and the Social Security Act.140 The agencies in charge of these statutes are not
strangers to the exercise of adjusting civil monetary penalties for changes in
inflation. Indeed, the Department of Labor, where OSHA resides, is responsible
for calculating and reporting the Consumer Price Index through its Bureau of
Labor Statistics. For their part, the Internal Revenue Service and the Social
Security Administration are among the federal government’s most voracious
“consumers” of CPI data.141 These agencies have extensive familiarity with the
CPI as the federal government’s preferred measure of inflation.
Agencies responsible for the statutes exempted from the Inflation
Adjustment Act have had their own experiences, positive and negative, in
implementing their own inflation adjustments free from the constraints of the
Inflation Adjustment Act. The record of the Internal Revenue Service is
especially instructive.142 Some tax penalties automatically adjust for inflation
because they are based on a percentage of the taxpayer’s overall liability. For
example, the penalty for failure to pay tax obligations is “0.5 percent of the
amount of such tax if the failure is for not more than 1 month, with an additional
0.5 percent for each additional month or fraction thereof during which such
failure continues, not exceeding 25 percent in the aggregate.”143 Penalties of this
sort automatically adjust in response to inflation. But the Internal Revenue Code
is also filled with civil penalties based on a fixed dollar amount. For instance, the
penalty for failure to file a partnership return “is the product of $195, multiplied
by the number of” partners.144 Like penalties covered by the Inflation Adjustment
Act, those penalties are vulnerable to erosion due to inflation over time.
If any federal agency is uniquely, appropriately equipped to adjust civil
monetary penalties to reflect inflation and to ensure that deterrent effects remain
140

See id. § 4(1).
See generally Jim Chen, The Price of Macroeconomic Imprecision: How Should the Law
Measure Inflation?, 54 HASTINGS L.J. 1375 (2003).
142
See generally United States General Accountability Office, Tax Compliance: Inflation Has
Significantly Decreased the Value of Some Penalties, GAO-07-1062 (Aug. 2007) [hereinafter
2007 GAO Report]; Michael C. Durst, Inflation and the Tax Code: Guidelines for Policymaking,
73 MINN. L. REV. 1217 (1989).
143
I.R.C. § 6651(a)(2).
144
I.R.C. § 6698(b).
141

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robust despite changes in consumer prices and the broader economy, that agency
is the Internal Revenue Service. The IRS is familiar with the use of CPI to adjust
many parts of the Internal Revenue Code.145 The Code uses the CPI to adjust tax
brackets,146 the standard deduction,147 the personal exemption,148 and itemized
deductions such as Hope and Lifetime Learning Credits.149
To be sure, the IRS’s institutional capacity should not be equated with
actual institutional performance. The IRS has not implemented inflation-based
adjustments to civil penalties within the Internal Revenue Code.150 The result is a
considerable loss of revenue to the Treasury and a corresponding dilution of the
effectiveness of fixed-amount civil monetary penalties in federal income tax law.
At first glance, this record of institutional performance hardly serves to
recommend the Internal Revenue Service as the agency of first resort if Congress
were to tap the latent expertise of the federal government in developing and
implementing effective inflation-based adjustments of civil monetary penalties.
The truth remains, though, that dollar-denominated penalties under the Internal
Revenue Code serve the same legislative purposes as their counterparts
throughout the rest of the federal government: to deter conduct targeted by civil
monetary penalties and, perhaps secondarily, to raise revenue for the United
States. The pervasiveness of statutory references to the CPI within the Internal
Revenue Code and the overall impact of inflation on income taxation should
enable the Internal Revenue Service, under appropriate congressional
authorization, to supply helpful guidance to other federal agencies.
Finally, if Congress does amend the Inflation Adjustment Act, it may wish
to consider designating a single agency to guide other agencies in applying the
Act or (in the case of exempt statutes) in fashioning inflation adjustments not
subject to the Act. The Bureau of Labor Statistics in the Department of Labor
develops and updates the CPI. The Internal Revenue Service in the Department
of Treasury has more experience applying the CPI than perhaps any other agency.
It bears remembering, however, that an earlier call for coordinated oversight of
145

See generally, e.g., In 2012, Many Tax Benefits Increase Due to Inflation Adjustments, IR2011-104,
Oct.
20,
2011,
available
at
http://www.irs.gov/newsroom/
article/0,,id=248485,00.html.
146
I.R.C. § 1(f)(3).
147
I.R.C. § 63(c)(4).
148
I.R.C. § 151(d)(4).
149
I.R.C. § 25A(h).
150
See 2007 GAO Report, supra note 142, at 3-4.

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inflation adjustments within the federal government garnered no acceptances of
this challenge. In response to the 2003 GAO report, both the Commissioner of
Financial Management Services within the Department of the Treasury and the
staff of the Office of Management and Budget took pains to emphasize that some
agency other than their own should undertake the “central oversight and guidance
function … needed to ensure consistency in” the interpretation and application of
the Inflation Adjustment Act.151

V. Conclusion
Adjusting civil monetary penalties is indisputably sound legal policy.
Neither Congress nor the executive branch has contested the goals of the Inflation
Adjustment Act. The language of that statute, however, has undermined the
attainment of those goals. The only cure lies in legislative amendment. Congress
should consider amending the Inflation Adjustment Act to eliminate the inflation
gap that arises from the initial 10 percent cap on initial adjustments, to eliminate
the CPI lag arising from the Act’s directive that agencies ignore six to 18 months
of CPI data when making adjustments, and to restore rationality to the statute’s
rounding provisions — if necessary, by repealing those rounding provisions in
their entirety.

151

2003 GAO Report, supra note 7, at 39-40.

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Mathematical Appendix
I. Observing, Reporting, and Forecasting Inflation

A. Inflation, over time and on average
Like interest on loans or savings, inflation compounds over time. As a
formal matter, inflation over a period of time can be expressed as a multiplicative
sequence of annual inflation rates:
n

   (1  k )
Total inflation over n years =

k 1

Consistent with conventional notation in the literature of macroeconomics, the
Greek letter π represents
inflation. This report does not use π in the more

commonplace sense as the ratio of a circle’s circumference to its diameter. πk
represents the inflation rate in the k-th year.
Throughout this report, the actual level of inflation that occurs during a
particular period of time is not disputed. The Inflation Adjustment Act measures
inflation according to the CPI. Since actual inflation is undisputed, one way to
simply analysis, especially in forecasting future inflation, is to assume a constant
rate of inflation that is consistent with historical levels and not overly optimistic
or otherwise misleading for purposes of projecting future inflation. This is very
similar to the familiar problem of calculating compound interest over a period of
time, on the assumption that interest remains fixed throughout the period. Total
inflation over the temporal interval defined by k=1 and k=n may be stated in terms
of average annual inflation, , a term that will be defined later:
Total inflation as the compounding of

over n years =   (1 )n



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The Inflation Adjustment Act uses annual changes in CPI as its measure of
inflation. In other words, πk = CPIk , and ∆πk = ∆CPIk:

The average annual inflation over any given period is the geometric mean
of this product, minus 1:

Equivalently:

If n, the total number of years, is defined as the difference between later year b
and earlier year a, the previous relationships can be restated thus:
n ba

 (1 )ba
n

  b a  (1 CPI k ) 1



k 1


The CPI is reported as a ratio of the price of a market basket of consumer
goods, relative to an index of 100 for a base year. Total inflation over that period
is the ratio of the later CPI value to the earlier CPI value:



Total Inflation   

CPI b
CPI a


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where CPIa refers to CPI in the earlier base year and CPIb refers to CPI in the
later target year. Average annual inflation is the (b − a)-th root of this ratio,
minus 1:

B. Estimating annual inflation
Computing a geometric mean is probably not the most intuitive
mathematical operation for the casual observer. Casual estimates of annual
inflation based on the ratio of CPI values for different years routinely make the
mistake of taking the ratio and dividing by the number of years between the
earlier and the later year. This is a valid method for computing an arithmetic
mean, but not for computing the geometric mean. But the natural logarithm of the
ratio of CPI values for different years, divided by the number of years, is a good
and useful approximation:





ln(CPIb /CPIa ) ln(CPIb )  ln(CPIa )

ba
ba

Why this is so warrants a brief mathematical excursion. Euler’s constant,
e (approximately 2.718), is the base of natural logarithms. It is defined as the
limit of (1 + 1/x)x as x increases toward infinity. Formally:

Moreover:

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Previous equations have established that inflation over an interval of
multiple years can be expressed in either of the following two ways:

The first of these equations expresses the effect of compounding an average
annual inflation rate,
, over b − a years. The second equation expresses
inflation as the ratio of a later CPI figure (CPIb) to CPI for an earlier, baseline
year (CPIa). The values of CPIa and CPIb are known. Those values facilitate a
solution for the value of :

For small values of

, the expression

is a good approximation of

itself. For example, if
is 0.01, the error [as defined by /
is
0.00497; if
is 0.10 the error is 0.0469. A table of all values from 0.01 to 0.10
follows:

A demonstration of this relationship between
and
begins with a
modest rearrangement of our original definition of average annual inflation:

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As (b − a) increases, this quantity approaches e raised to the quantity,

:

To determine the exact value of
, the previous exercise in algebraic
rearrangement merely needs to proceed to its logical conclusion:

where exp(x) is equivalent to e, Euler’s constant, raised to the power of x.
This definition of e permits the convenient division into two steps of the
admittedly awkward process of calculating average annual inflation: (1) taking the
natural logarithm of the ratio of target-year CPI to base-year CPI and (2) dividing
that result by the number of years that have passed:





ln(CPIb /CPIa ) ln(CPIb )  ln(CPIa )

ba
ba

This estimate may be readily converted to the exact geometric mean by raising e
to this power and then subtracting 1:

  exp(

ln(CPI b /CPI a )
CPI b
) 1  b a
1
ba
CPI a



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C. Table of actual annual inflation

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II.

The mechanics of the Inflation Adjustment Act
A. The “inflation gap”

Annually reported inflation data pose a formidable barrier to analysis.
Radical simplification in inflation analysis may be achieved through the expedient
of assuming a constant rate of inflation over time. In its 2003 study of the
Inflation Adjustment Act, the General Accounting Office estimated that CPI has
historically increased by an annual average of 2.5 percent. 152 This report adopts
that estimate. All instances of the variable
, representing average annual
inflation, that occur in this Mathematical Appendix and report may be interpreted
as the constant 0.025.
The magnitude of any initial inflation gap from year a to year b may be
expressed through the following equations:
Initial inflation gap (1) 1.1
n

where n equals (b − a), which value has represented the number of years that have
elapsed before adjustment.



Amount of the inflation gap for a particular penalty  p [(1)n 1.1]
where p represents the original, unadjusted civil monetary penalty.
As time passes, the Inflation Adjustment Act prevents closure of the

inflation gap. The gap created by the 1996 amendment’s 10 percent cap,
expressed as the ratio of accumulated inflation to 10 percent, does remain
constant. But the absolute amount will grow:
Absolute inflation gap over time  p [(1 )n 1.1] (1 )g
where g represents the number of subsequent years after the initial adjustment
over which inflation grows.


152

See 2003 GAO Report, supra note 7, at 10.

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Inasmuch as (1  ) n is an estimate, it may be more convenient in all
instances to express that variable as a power of Euler’s constant, e.
Approximately 2.718, e serves as the base of natural logarithms:

(1  ) n  e n



Taking the natural logarithm of both sides and dividing by n yields the following
approximation (which works better for smaller values of ):

For positive values of
I have proposed:

, the actual inflation rate falls between the two estimates

The foregoing formulas are estimates. In specific cases, the cost-of-living
adjustment prescribed by § 5(b) of the Inflation Adjustment Act may be formally
expressed by the following formulas:
Cost-of-living adjustment 

CPI b 1  CPI a CPI b 1

1
CPI a
CPI a

where b represents the later year and a represents the original year by which the

cost-of-living adjustment
is to be computed.

B. CPI lag
The CPI lag created by the Inflation Adjustment Act lends itself to formal
mathematical description. Recall the cost-of-living adjustment formula laid out in
connection with the discussion of the initial inflation gap:
Cost-of-living adjustment 

CPI b 1  CPI a CPI b 1

1
CPI a
CPI a


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Section 5(b)(1)’s requirement that agencies consult CPI “for the month of June of
the calendar year preceding [an inflation] adjustment” commits agencies to ignore
the most recent year of inflation every time they adjust a civil monetary penalty
for inflation. Each round of adjustments under the Act therefore introduces an
additional error, equivalent in magnitude to the most recent June-to-June change
in CPI:

Over multiple iterations, CPI lag compounds and can become quite
considerable. For a prospective period of s years, subsequent to an initial
adjustment, during which an agency expects to adjust penalties for inflation at a
frequency of once every f years, the cumulative lag can be predicted with the
following equation:

where the double brackets indicate the floor, or “greatest integer,” function, which
is the largest integer which is less than or equal to s/f.153

C. Rounding
The Inflation Adjustment Act’s rounding provisions follow a predictable
pattern. The relationship between (1) changes in inflation that would trigger an
increase and (2) the amounts by which an adjusted penalty must be adjusted may
be expressed as a constant ratio: five-elevenths, or approximately 45.5 percent.
The ratio between $5 and $11, between $50 and $110, and between $500 and
$1,100, in each instance, is 5/11, or approximately 45.5 percent. The foregoing
sentences express a simple mathematical relationship: 1.1 times 5/11 (roughly
45.5 percent) equals 0.5. The following inequality expresses this relationship in
formal fashion:
153

See http://en.wikipedia.org/wiki/Floor_and_ceiling_functions.

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Once this 45.5 percent increase in inflation triggers an adjustment, the
Act’s rounding provisions force what would have been an already substantial 45.5
percent increase to be implemented, in whiplash-like fashion, as a 90.9 percent
increase. As discussed in the main body of this report at Section IV.C, the
Pension and Welfare Benefits Administration (PWBA) faced this issue. The
PWBA, if faithfully complying with the Inflation Adjustment Act, would not raise
its penalties from $11, $110, and $1,100 by 45.5 percent to $16, $160, and
$1,600, but rather by 90.9 percent from $11, $110, and $1,100 to $21, $210, and
$2,100:

Having raised the penalty from 1.1p to 2.1p, the rounding provisions
dictate that the next round of PWBA adjustments take place when the cost-ofliving adjustment factor reaches 2.1+0.5, or 2.6. The number of years,
represented in the following equation by the variable t, that must elapse can be
calculated thus:

Inflation-Based Adjustments in Civil Monetary Penalties
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where, once again, the inverted double brackets indicate the ceiling function,
which is the smallest integer that is greater than or equal to t. The next integer
greater than 8.65 is 9. Therefore, the next PWBA adjustment must take place in 9
years.
The foregoing analysis presupposes that inflation adjustments are not
further distorted by the CPI lag feature of the Inflation Adjustment Act. If CPI
lag is taken into account, waiting periods (such as 17 or 9 years) should in all
events be increased by an additional year.

D. The effect of a 10 percent cap on annual inflation adjustments
Congress may wish to convert the Inflation Adjustment Act’s existing 10
percent cap on initial inflation adjustments (which is the source of the “inflation
gap”) into a 10 percent cap on annual adjustments. This expedient would enable
the federal government to harmonize long-dormant civil monetary penalties with
contemporary economic conditions, without exposing private parties to the
sudden shock of a massive increase. The effect of a 10 percent cap on annual
increases can be projected mathematically.
. Let x = past years that have already “expired,” y = years in transition
“yet” to come as we catch up with future inflation adjustments,
= average
inflation rate (which we have consistently stipulated to be 2.5 percent), and m =
maximum annual adjustment (presumably 10 percent):

Inflation-Based Adjustments in Civil Monetary Penalties
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Since we have stipulated values for

and m, respectively 2.5 percent and

10 percent, the unwieldy multiplier for x,
, may be
approximated as 0.3497, or even more simply as 0.35. ln (1.025) / [ln (1.1) − ln
(1.025)] ≈ 0.3497. Alternatively, substituting m for ln(1+m) and
for
— both reasonable maneuvers inasmuch as m and
are both modest numbers —
transforms the multiplier simply into 0.025 / (0.10 − 0.025), or ⅓ (approximately
0.3333). Formally:

In the end, these are gross estimates, and the difference between 0.3333 and
0.3497 should not be dispositive.
With either multiplier, a penalty that languished without adjustment for 11
years can be expected to catch up within 4 years, with no annual adjustment
exceeding 10 percent. If x = 11, then y ≈ 11 · 0.35 or 11 · 0.33. By either
multiplier, y < 4.

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