[Federal Register Volume 89, Number 14 (Monday, January 22, 2024)]
[Rules and Regulations]
[Pages 3877-3878]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01085]



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 Rules and Regulations
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  Federal Register / Vol. 89, No. 14 / Monday, January 22, 2024 / Rules 
and Regulations  

[[Page 3877]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 185

RIN 3206-AO65


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 January 22, 2024.

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 rule, 
and (2) make subsequent annual adjustments for inflation not later than 
January 15 of each year. 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 2024 based on 
inflation since the last adjustment. These calculations were made based 
on guidance contained in Office of Management and Budget Memorandum M-
24-07:

----------------------------------------------------------------------------------------------------------------
                                                                               2023 Inflation    2024 Inflation
                CFR citation                    Description of the penalty       adjustment        adjustment
----------------------------------------------------------------------------------------------------------------
5 CFR 185.103(a)............................  Civil Penalty for False Claims           $13,508           $13,946
5 CFR 185.103(f)(2).........................  Civil Penalty for False                   13,508            13,946
                                               Statements.
----------------------------------------------------------------------------------------------------------------

    This final rule is being issued without prior public notice or 
opportunity for public comments and is effective upon publication in 
the Federal Register. 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 and to delay the effective 
date). 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 described how 
to identify 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 24-07 stated that the 
cost-of-living multiplier for calculating adjustments in 2024 was 
1.03241. This multiplier is to be applied to the current level of civil 
monetary penalties for agencies. When OPM's 2023 penalties of $13,508 
are multiplied by 1.03241 and rounded to the nearest dollar, the 
resulting penalty amount is $13,946.

III. Procedural Requirements

A. Regulatory Review

    OPM has examined the impact of this rule as required by Executive 
Orders 12866, 13563, and 14094, which 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). OMB has 
determined that this rule is not a ``significant regulatory action'' 
under section 3(f) of Executive Order 12866, as amended by Executive 
Order 14094.

B. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)), 
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

[[Page 3878]]

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. 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 will not 
significantly or uniquely affect small governments.

D. E.O. 12630, Takings

    This rule does not have takings implications.

E. 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.

F. 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.

G. 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.

H. Paperwork Reduction Act

    This document does not contain information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

List of Subjects in 5 CFR Part 185

    Claims, Fraud, Penalties.

Office of Personnel Management.
Kayyonne Marston,
Federal Register Liaison.

    For the reasons set forth in the preamble, OPM amends 5 CFR part 
185 as follows:

PART 185--PROGRAM FRAUD CIVIL REMEDIES

0
1. The authority citation for part 185 continues to read as follows:

    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 ``$13,508'' and adding ``$13,946'' in its place.

[FR Doc. 2024-01085 Filed 1-19-24; 8:45 am]
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