[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
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 This section of the FEDERAL REGISTER contains regulatory documents 
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  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.

-----------------------------------------------------------------------

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