[Federal Register Volume 88, Number 18 (Friday, January 27, 2023)]
[Rules and Regulations]
[Pages 5245-5246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-01612]



 ========================================================================
 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. 88, No. 18 / Friday, January 27, 2023 / Rules 
and Regulations  

[[Page 5245]]



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 date: February 27, 2023.

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 since 
the passage of the 2015 Act.
    This rule takes into account adjustments for the year 2023 based on 
inflation for that year. These calculations were made based on guidance 
contained in Office of Management and Budget Memorandum M-23-05:

----------------------------------------------------------------------------------------------------------------
                                                                                 2022 Inflation   2023 Inflation
                 CFR citation                     Description of the penalty       adjustment       adjustment
----------------------------------------------------------------------------------------------------------------
5 CFR 185.103(a).............................  Civil Penalty for False Claims.          $12,537          $13,508
5 CFR 185.103(f)(2)..........................  Civil Penalty for False                   12,537           13,508
                                                Statements.
----------------------------------------------------------------------------------------------------------------

    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. 
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.
    Office of Management and Budget Memorandum M-23-05 stated that the 
cost-of-living multiplier for calculating adjustments in 2023 was 
1.07745. This multiplier is to be applied to the current level of civil 
monetary penalties for agencies. When OPM's 2022 penalties of $12,537 
are multiplied by 1.07745, the resulting penalty amount is $13,508.

III. Procedural Requirements

A. Executive Orders 13563 and 12866, Regulatory Review

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. In accordance with the provisions of Executive Order 
12866, this rule is not a significant rule as was not reviewed by OMB.

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.

[[Page 5246]]

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

    Basis for civil penalties and assessments, Claims, Penalties, 
Program fraud civil remedies.

Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.

    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

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. In Sec.  185.103, amend paragraphs (a) introductory text and (f)(2) 
by removing ``$12,537'' and adding ``$13,508'' in its place.

[FR Doc. 2023-01612 Filed 1-26-23; 8:45 am]
BILLING CODE 6325-48-P