OFAC adjusts for inflation

After years of inaction, OFAC has finally gotten its act together regarding the Federal Civil Penalties Inflation Adjustment Act… today, they issued new regulations to implement the adjustments on an ongoing basis (not to actually do an adjustment). I guess that’s how they do this, since they have to adjust periodically.

Here are the interesting parts – the background section:

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (‘‘the Inflation Adjustment Act’’), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114–74) (‘‘the 2015 Act’’), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act requires agencies to adjust the level of CMPs with an initial ‘‘catch-up’’ adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. The Department’s initial catch-up adjustment interim final rules were published on June 30, 2016 (FinCEN) (81 FR 42503), July 1, 2016 (OFAC) (81 FR 43070), and December 7, 2016 (Departmental Offices) (81 FR 88600). The Department’s 2017 annual adjustment was published on February 10, 2017 (82 FR 10434). The 2015 Act provides that any increase in a CMP shall apply to CMPs that are assessed after the date the increase takes effect, regardless of whether the underlying violation predated such increase.1

How the calculation is made:

The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act and the Office of Management and Budget guidance required by the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (‘‘CPI–U’’) for the October preceding the date of the adjustment and the prior year’s October CPI–U. As set forth in Office of Management and Budget Memorandum M–18–03 of December 15, 2017, the adjustment multiplier for 2018 is 1.02041. In order to complete the 2018 annual adjustment, each current CMP is multiplied by the 2018 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

Why no prior notice is required for the adjustment:
 
The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 701(b)) requires agencies, beginning in 2017, to make annual adjustments for inflation to CMPs, without needing to provide notice and the opportunity for public comment required by 5 U.S.C. 553. Additionally, the methodology used, effective 2017, for adjusting CMPs for inflation is provided by statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The Department is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity for public comment and a delayed effective date are not required for this rule.

Links:

OFAC Notice

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