Program Fraud Civil Remedies: Civil Monetary Penalty Inflation Adjustment

CourtPersonnel Management Office
Published date22 March 2022
Record Number2022-05700
Federal Register, Volume 87 Issue 55 (Tuesday, March 22, 2022)
[Federal Register Volume 87, Number 55 (Tuesday, March 22, 2022)]
                [Rules and Regulations]
                [Pages 16093-16094]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-05700]
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                Rules and Regulations
                 Federal Register
                ________________________________________________________________________
                This section of the FEDERAL REGISTER contains regulatory documents
                having general applicability and legal effect, most of which are keyed
                to and codified in the Code of Federal Regulations, which is published
                under 50 titles pursuant to 44 U.S.C. 1510.
                The Code of Federal Regulations is sold by the Superintendent of Documents.
                ========================================================================
                Federal Register / Vol. 87, No. 55 / Tuesday, March 22, 2022 / Rules
                and Regulations
                [[Page 16093]]
                OFFICE OF PERSONNEL MANAGEMENT
                5 CFR Part 185
                RIN 3206-AN39
                Program Fraud Civil Remedies: Civil Monetary Penalty Inflation
                Adjustment
                AGENCY: Office of Personnel Management (OPM).
                ACTION: Final rule.
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                SUMMARY: This rule adjusts the level of civil monetary penalties
                contained in U.S. Office of Personnel Management regulations
                implementing the Program Fraud Civil Remedies Act of 1986, in
                accordance with the Federal Civil Penalties Inflation Adjustment Act
                Improvements Act of 2015 and Office of Management and Budget guidance.
                DATES: Effective April 21, 2022.
                FOR FURTHER INFORMATION CONTACT: Valerie Dew, Office of the General
                Counsel, Office of Personnel Management, 1900 E St. NW, Washington, DC
                20415, [email protected], (202) 606-1700.
                SUPPLEMENTARY INFORMATION:
                I. Background
                 On November 2, 2015, the President signed into law the Federal
                Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec.
                701 of Pub. L. 114-74, 28 U.S.C. 2461 note) (``the Act''). The Act
                required agencies to: (1) Adjust the level of civil monetary penalties
                with an initial ``catch-up'' adjustment through an interim final
                rulemaking, and (2) make subsequent annual adjustments for inflation.
                The purpose of these adjustments is to maintain the deterrent effect of
                civil penalties. OPM has updated the agency's monetary penalties on
                four occasions since the passage of the 2015 Act.
                 This rule takes into account adjustment for the year 2021 based on
                inflation for that year. These calculations were made based on guidance
                contained in Office of Management and Budget Memorandum M-21-10:
                ----------------------------------------------------------------------------------------------------------------
                 2020 Adjusted 2021 Inflation
                 CFR citation Description of the penalty penalty adjustment
                ----------------------------------------------------------------------------------------------------------------
                5 CFR 185.103(a)........................... Civil Penalty for False Claims..... $11,665 $11,803
                5 CFR 185.103(f)(2)........................ Civil Penalty for False Statements. 11,665 11,803
                ----------------------------------------------------------------------------------------------------------------
                 Finally, this rule makes an additional adjustment for the year 2022
                based on inflation for that year. These calculations were made based on
                guidance contained in Office of Management and Budget Memorandum M-22-
                07:
                ----------------------------------------------------------------------------------------------------------------
                 2021 Adjusted 2022 Inflation
                 CFR citation Description of the penalty penalty adjustment
                ----------------------------------------------------------------------------------------------------------------
                5 CFR 185.103(a)........................... Civil Penalty for False Claims..... $11,803 $12,537
                5 CFR 185.103(f)(2)........................ Civil Penalty for False Statements. 11,803 12,537
                ----------------------------------------------------------------------------------------------------------------
                 This final rule is being issued without prior public notice or
                opportunity for public comments. The 2015 Act's amendments to the
                Inflation Adjustment Act required the agency to adjust penalties
                initially through an interim final rulemaking, which did not require
                the agency to complete a notice and comment process prior to
                promulgating the interim final rule. The amendments also explicitly
                required the agency to make subsequent annual adjustments
                notwithstanding 5 U.S.C. 553 (the section of the Administrative
                Procedure Act that normally requires agencies to engage in notice and
                comment). The formula used for adjusting the amount of civil penalties
                is given by statute, with no discretion provided to OPM regarding the
                computation of the adjustments. OPM is charged only with performing
                ministerial computations to determine the amount of adjustment to the
                civil penalties due to increases in the Consumer Price Index for all
                Urban Consumers (CPI-U).
                II. Calculation of Adjustment
                 The Office of Management and Budget (OMB) issues guidance annually
                on calculating adjustments. Under this guidance, OPM has identified
                applicable civil monetary penalties and calculated the annual
                adjustment. A civil monetary penalty is any assessment with a dollar
                amount that is levied for a violation of a Federal civil statute or
                regulation, and is assessed or enforceable through a civil action in
                Federal court or an administrative proceeding. A civil monetary penalty
                does not include a penalty levied for violation of a criminal statute,
                or fees for services, licenses, permits, or other regulatory review.
                 Office of Management and Budget Memorandum M-21-10 stated that the
                cost-of-living multiplier for calculating adjustments in 2021 was
                1.01182. OPM did not issue the final rule to implement the penalties
                for 2021. Therefore, the multiplier is to be applied to the 2020 level
                of civil monetary penalties for agencies. When OPM's 2020 penalties of
                $11,665 are multiplied by 1.01182, the resulting penalty amount for
                2021 is $11,803.
                 Finally, Office of Management and Budget Memorandum M-22-07 stated
                that the cost-of-living multiplier for
                [[Page 16094]]
                calculating adjustments in 2022 was 1.06222. This multiplier is to be
                applied to the 2021 level of civil monetary penalties for agencies.
                When OPM's 2021 penalties of $11,803 are multiplied by 1.06222, the
                resulting penalty amount is $12,537.
                III. Procedural Requirements
                A. Regulatory Impact Analysis: Executive Order 12866, as Supplemented
                by Executive Order 13563
                 OPM, with the concurrence of the Office of Management and Budget
                (OMB), has determined that this is not a significant regulatory action
                under Executive Order 12866, as supplemented by Executive Order 13563.
                Therefore, no regulatory impact analysis is required.
                B. Regulatory Flexibility Act
                 The Regulatory Flexibility Act (RFA) requires an agency to prepare
                a regulatory flexibility analysis for rules unless the agency certifies
                that the rule will not have a significant economic impact on a
                substantial number of small entities. The RFA applies only to rules for
                which an agency is required to first publish a proposed rule. See 5
                U.S.C. 603(a) and 604(a). The Federal Civil Penalties Inflation
                Adjustment Act Improvements Act of 2015 requires agencies to adjust
                civil penalties annually. No discretion is allowed. Thus, the RFA does
                not apply to this final rule.
                C. Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2))
                 This rule is not a major rule under the Small Business Regulatory
                Enforcement Fairness Act. This rule:
                 (a) Does not have an annual effect on the economy of $100 million
                or more.
                 (b) Will not cause a major increase in costs or prices for
                consumers, individual industries, Federal, State, or local government
                agencies, or geographic regions.
                 (c) Does not have significant adverse effects on competition,
                employment, investment, productivity, innovation, or the ability of
                United States-based enterprises to compete with foreign-based
                enterprises.
                D. Unfunded Mandate Reform Act of 1995 (2 U.S.C. 1532)
                 This rule does not involve a Federal mandate that may result in the
                expenditure by State, local and tribal governments, in the aggregate,
                or by the private sector, of $100 million or more and that such
                rulemaking will not significantly or uniquely affect small governments.
                E. E.O. 12630, Takings.
                 This rule does not have takings implications.
                F. E.O. 13132, Federalism
                 This rule does not have federalism implications. The rule does not
                have substantial direct effects on the States, on the relationship
                between the National Government and the States, or on the distribution
                of power and responsibilities among the various levels of government.
                G. E.O. 12988, Civil Justice Reform
                 This rule complies with the requirements of E.O. 12988.
                Specifically, this rule:
                 (a) Does not unduly burden the judicial system.
                 (b) Meets the criteria of section 3(a) requiring that all
                regulations be reviewed to eliminate errors and ambiguity and be
                written to minimize litigation; and
                 (c) Meets the criteria of section 3(b)(2) requiring that all
                regulations be written in clear language and contain clear legal
                standards.
                H. E.O. 13175, Consultation With Indian Tribes
                 In accordance with Executive Order 13175, OPM has evaluated this
                rule and determined that it has no tribal implications.
                I. Paperwork Reduction Act
                 This document does not contain proposed information collection
                requirements subject to the Paperwork Reduction Act of 1995, Public Law
                104-13.
                List of Subjects in 5 CFR Part 185
                 Program fraud civil remedies, Claims, Penalties, Basis for civil
                penalties and assessments.
                Office of Personnel Management.
                Alexys Stanley,
                Regulatory Affairs Analyst.
                 For the reasons set forth in the preamble, OPM amends part 185 of
                title 5 of the Code of Federal Regulations as follows:
                PART 185--PROGRAM FRAUD CIVIL REMEDIES: CIVIL MONETARY PENALTY
                INFLATION ADJUSTMENT
                0
                1. The authority citation for part 185 continues to read:
                 Authority: 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812.
                Sec. 185.103 [Amended]
                0
                2. Section 185.103 is amended in paragraphs (a) introductory text and
                (f)(2) by revising ``$11,665'' to read ``$12,537''.
                [FR Doc. 2022-05700 Filed 3-21-22; 8:45 am]
                BILLING CODE 6325-48-P
                

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