[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Rules and Regulations]
[Pages 15100-15123]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05648]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 102

RIN 0991-AC33


Annual Civil Monetary Penalties Inflation Adjustment

AGENCY: Office of the Assistant Secretary for Financial Resources, 
Department of Health and Human Services (HHS).

ACTION: Final rule.

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SUMMARY: The Department of Health and Human Services is updating its 
regulations to reflect required annual inflation-related increases to 
the civil monetary penalty amounts in its regulations, under the 
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015; adding references to new penalty authorities; and making 
technical changes to correct errors in the regulation.

DATES: 
    Effective date: This final rule is effective March 17, 2022.
    Applicability date: The adjusted civil monetary penalty amounts 
apply to penalties assessed on March 17, 2022, r if the violation 
occurred on or after November 2, 2015.

FOR FURTHER INFORMATION CONTACT: Katrina Brisbon, Acting Deputy 
Assistant Secretary, Office of Acquisitions, Office of the Assistant 
Secretary for Financial Resources, Room 536-H, Hubert Humphrey 
Building, 200 Independence Avenue SW, Washington, DC 20201; (202) 260-
6677.

SUPPLEMENTARY INFORMATION:

I. Background

    The Federal Civil Penalties Inflation Adjustment Act Improvements 
Act of 2015 (section 701 of Pub. L. 114-74) (the ``2015 Act'') amended 
the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 
101-410, 104 Stat. 890 (1990)), which is intended to improve the 
effectiveness of civil monetary penalties (CMPs) and to maintain the 
deterrent effect of such penalties, requires agencies to adjust the 
CMPs for inflation annually.
    The Department of Health and Human Services (HHS) lists the CMP 
authorities and the amounts administered by all of its agencies in 
tabular form in 45 CFR 102.3, which was issued in an interim final rule 
published in the September 6, 2016, Federal Register (81 FR 61538). 
Annual adjustments were subsequently published on February 3, 2017 (82 
FR 9175), October 11, 2018 (83 FR 51369), November 5, 2019 (84 FR 
59549), January 17, 2020 (85 FR 2869), and November 15, 2021 (86 FR 
62928).

II. Calculation of Annual Inflation Adjustment

    The annual inflation adjustment for each applicable CMP is 
determined using the percent increase in the Consumer Price Index for 
all Urban Consumers (CPI-U) for the month of October of the year in 
which the amount of each CMP was most recently established or modified. 
In the December 15, 2021, Office of Management and Budget (OMB) 
Memorandum for the Heads of Executive Agencies and Departments, M-22-
07, ``Implementation of Penalty Inflation Adjustments for 2022, 
Pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015,'' OMB published the multiplier for the 
required annual adjustment. The cost-of-living adjustment multiplier 
for 2022, based on the CPI-U for the month of October 2021, not 
seasonally adjusted, is 1.06222. The multiplier is applied to each 
applicable penalty amount that was updated and published for fiscal 
year (FY) 2021 and is rounded to the nearest dollar.

III. Other Revisions

    In addition to the inflation adjustments for 2022, this final rule 
updates the table in 45 CFR 102.3 to add references to new, applicable 
civil money penalty authorities that were established or implemented 
since the publication of the November 15, 2021 update and that are 
being updated in this rule. The rule also corrects several technical 
errors to regulatory citations in the table and updates descriptions 
for clarification and accuracy. The following technical errors were 
identified and are corrected in the table at 45 CFR 102.3:
     The citation to, and description of, 42 U.S.C. 299c-3(d) 
are revised for accuracy.
     The regulatory reference of 42 CFR 1003.210(a)(5) 
implementing 42 U.S.C. 1395cc(g) which was inadvertently omitted from 
the regulation and is added.
     The description of the CMP at 42 U.S.C. 1320a-7a(o) is 
revised for accuracy.
     The regulatory reference to 45 CFR 155.206(i) \1\ 
implementing 42 U.S.C. 18041(c)(2) \2\ which was inadvertently omitted 
from the regulation is added. Additionally, the amount for this CMP was 
not included in the 2021 inflation adjustment rule. 86 FR 62928, 62943 
(Nov. 15, 2021). Thus, we are updating the inflation amount at this 
time.
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    \1\ The Department recently proposed a technical correction to 
45 CFR 155.206(i) to add language that would cross-reference to the 
authority to implement annual inflation-related increases to CMPs 
pursuant to the 2015 Act. See Patient Protection and Affordable Care 
Act; HHS Notice of Benefit and Payment Parameters for 2023; Proposed 
Rule, 87 FR 584 at 640-641, 721 (Jan. 5, 2022). To date, no CMPs 
have been imposed under this authority, but any that are would 
reflect the current inflationary adjusted amount as required by the 
2015 Act and would be calculated in accordance with applicable OMB 
guidance to all Executive Departments on the implementation of the 
2015 Act.
    \2\ See, e.g., the Patient Protection and Affordable Care Act; 
Exchange and Insurance Market Standards for 2015 and Beyond; Final 
Rule, 79 FR 30239 at 30262-30270 (May 27, 2014).
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     The first description tied to 42 U.S.C. 1395mm(i)(6)(B)(i) 
is revised from ``is such plan'' to ``if such plan''.
     The regulatory reference to 85 FR 71142 (Nov. 6, 2020) 
implementing CARES Act, Pub. L. 116-136, section 3202(b)(2), is revised 
to read 45 CFR 182.70.
    ++ The 2022 adjusted amount is calculated by applying the 2021 
multiplier to 1.06222 percent and this adjusted amount is reflected in 
the table of the regulation at 45 CFR 102.3.

[[Page 15101]]

IV. Statutory and Executive Order Reviews and Waiver of Proposed 
Rulemaking

    The 2015 Act requires Federal agencies to publish annual penalty 
inflation adjustments notwithstanding section 553 of the Administrative 
Procedure Act (APA). Section 4(a) of the 2015 Act directs Federal 
agencies to publish annual adjustments no later than January 15th of 
each year thereafter. In accordance with section 553 of the APA, most 
rules are subject to notice and comment and are effective no earlier 
than 30 days after publication in the Federal Register. However, 
section 4(b)(2) of the 2015 Act provides that each agency shall make 
the annual inflation adjustments ``notwithstanding section 553'' of the 
APA. According to OMB's Memorandum M-21-10, the phrase 
``notwithstanding section 553'' in section 4(b)(2) of the 2015 Act 
means that ``the public procedure the APA generally requires (that is, 
notice, an opportunity for comment, and a delay in effective date) is 
not required for agencies to issue regulations implementing the annual 
adjustment.''
    Consistent with the language of the 2015 Act and OMB's 
implementation guidance, the inflation adjustments set out in this rule 
are not subject to notice and an opportunity for public comment and 
will be effective immediately upon publication. Additionally, HHS finds 
that notice and comment procedures would be impracticable and 
unnecessary under the APA for making the statutorily required inflation 
updates to newly established penalty amounts and for the ministerial 
and technical changes in this rule. In addition, HHS is waiving notice 
and comment for the non-substantive technical corrections set out in 
this final rule. HHS finds good cause for issuing these changes as a 
final rule without prior notice and comment because these changes only 
update the regulation to add the new CMP authorities that will be 
adjusted in accordance with the 2015 Act which were implemented since 
the last update.
    Pursuant to OMB Memorandum M-21-10, HHS has determined that the 
annual inflation adjustment to the civil monetary penalties in its 
regulations does not trigger any requirements under procedural statutes 
and Executive Orders that govern rulemaking procedures.

V. Effective and Applicability Dates

    This rule is effective on the date specified in the DATES section 
of this final rule. The adjusted civil monetary penalty amounts apply 
to penalties assessed on or after date specified in the DATES section 
of this final rule, if the violation occurred on or after November 2, 
2015. If the violation occurred before November 2, 2015, or a penalty 
was assessed before September 6, 2016, the pre-adjustment civil penalty 
amounts in effect before September 6, 2016, will apply.

List of Subjects in 45 CFR Part 102

    Administrative practice and procedure, Penalties.

    Accordingly, the Department of Health and Human Services amends 45 
CFR part 102 as follows:

PART 102--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION

0
1. The authority citation for part 102 is revised to read as follows:

    Authority:  Pub. L. 101-410, Sec. 701 of Pub. L. 114-74, 31 
U.S.C. 3801-3812.


0
2. Amend Sec.  102.3 by revising table 1 to read as follows:


Sec.  102.3   Penalty adjustment and table.

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Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-05648 Filed 3-16-22; 8:45 am]
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