[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Rules and Regulations]
[Pages 51937-51938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21132]



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 Rules and Regulations
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 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 
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  Federal Register / Vol. 84, No. 190 / Tuesday, October 1, 2019 / 
Rules and Regulations  

[[Page 51937]]



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.

DATES: Effective: October 31, 2019.

FOR FURTHER INFORMATION CONTACT: R. Alan Miller, 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)(``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 annually since the 
passage of the 2015 Act.
    This rule takes into account adjustments for the year 2018 based on 
inflation for that year. These calculations were made based on guidance 
contained in Office of Management and Budget Memorandum M-17-11:

----------------------------------------------------------------------------------------------------------------
                                                                                      Current     2018 inflation
                 CFR citation                      Description of the penalty         penalty       adjustment
----------------------------------------------------------------------------------------------------------------
5 CFR 185.103(a)..............................  Civil Penalty for False Claims..         $11,181         $11,463
5 CFR 185.103(f)(2)...........................  Civil Penalty for False                   11,181          11,463
                                                 Statements.
----------------------------------------------------------------------------------------------------------------

    This rule makes additional adjustments for the year 2018 based on 
inflation for that year. These calculations were made based on guidance 
contained in Office of Management and Budget Memorandum M-19-04.
    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 catch-up 
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. 
The calculated catch-up adjustment is based on the percent change 
between the Consumer Price Index for all Urban Consumers (CPI-U) for 
the month of October in the year of the previous adjustment (or in the 
year of establishment, if no adjustment has been made) and the October 
2015 CPI-U.
    The Office of Management and Budget published guidance on adjusting 
penalties based on the increase in the CPI-U between October of 2017 
and October of 2018. See December 14, 2018, Memorandum for the Heads of 
Executive Departments and Agencies, from Mick Mulvaney, Director, 
Office of Management and Budget, re: Implementation of Penalty 
Inflation Adjustments for 2019, Pursuant to the Federal Civil Penalties 
Inflation Adjustment Act Improvements Act of 2015. This guidance 
provided OPM with the level to which civil penalties should be adjusted 
as annual inflation adjustments following the initial necessary update 
to comply with the 2015 Act.
    Office of Management and Budget Memorandum M-19-04 stated that the 
cost of living multiplier for calculating adjustments in 2018 was 
1.02522. This multiplier is to be applied to the current level of civil 
monetary penalties for agencies. When OPM's current penalties of 
$11,181 are multiplied by 1.02522, the resulting penalty amount is 
$11,463.

III. Procedural Requirements

A. Regulatory Impact Analysis: Executive Order 12866, as Supplemented 
by Executive Order 13563

    OPM has examined the impact of this rule as required by Executive 
Order 12866 and Executive Order 13563, which directs agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is

[[Page 51938]]

necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public, health, and 
safety effects, distributive impacts, and equity). A regulatory impact 
analysis must be prepared for major rules with economically significant 
effects of $100 million or more in any one year. This rule is not 
``significant regulatory action,'' under Executive Order 12866.

B. Reducing Regulation and Controlling Regulatory Costs

    This rule is not an E.O. 13771 regulatory action because it is not 
significant under E.O. 12866.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires an agency to prepare 
a regulatory flexibility analysis for rules unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. The RFA applies only to rules for 
which an agency is required to first publish a proposed rule. See 5 
U.S.C. 603(a) and 604(a). 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.

D. 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.

E. 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.

F. E.O. 12630, Takings

    This rule does not have takings implications.

G. E.O. 13132, Federalism

    This rule does not have federalism implications. The rule does not 
have substantial direct effects on the States, on the relationship 
between the National Government and the States, or on the distribution 
of power and responsibilities among the various levels of government.

H. E.O. 12988, Civil Justice Reform

    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.

I. 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.

J. 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.
Stephen Hickman,
Regulatory Affairs.

For the reasons set forth in the preamble, amend 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.


Sec.  185.103  [Amended]

0
2. Section 185.103 is amended in paragraphs (a) introductory text and 
(f)(2) by revising ``$11,181'' to read as ``$11,463''.

[FR Doc. 2019-21132 Filed 9-30-19; 8:45 am]
BILLING CODE 6325-48-P