[Federal Register Volume 83, Number 142 (Tuesday, July 24, 2018)]
[Rules and Regulations]
[Pages 34933-34935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15764]
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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.
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Federal Register / Vol. 83, No. 142 / Tuesday, July 24, 2018 / Rules
and Regulations
[[Page 34933]]
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, with an
initial ``catch-up'' adjustment under the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 and Office of
Management and Budget guidance. It also makes subsequent annual catch
up adjustments.
DATES: Effective August 23, 2018.
FOR FURTHER INFORMATION CONTACT: Austin Fulk, 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.
On July 19, 2016, OPM made an initial adjustment to the following
civil monetary penalties to carry out the requirements of the 2015 Act,
based on instructions found in Office of Management and Budget
Memorandum M-16-06:
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Description of the Current Catchup Adjusted
CFR citation penalty penalty adjustment penalty
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5 CFR 185.103(a)...................... Civil Penalty for False $5,000 $5,781 $10,781
Claims.
5 CFR 185.103(f)(2)................... Civil Penalty for False 5,000 5,781 10,781
Statements.
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That rule took effect on August 1, 2016.
This rule takes into account adjustments for the year 2016 based on
inflation for that year. These calculations were made based on guidance
contained in Office of Management and Budget Memorandum M-17-11:
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2016 Inflation
CFR citation Description of the Adjusted 2016 Inflation adjusted
penalty penalty adjustment amount
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5 CFR 185.103(a)...................... Civil Penalty for False $10,781 $176 $10,957
Claims.
5 CFR 185.103(f)(2)................... Civil Penalty for False 10,781 176 10,957
Statements.
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This rule makes additional adjustments for the year 2017 based on
inflation for that year. These calculations were made based on guidance
contained in Office of Management and Budget Memorandum M-18-03:
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2016 Inflation
CFR citation Description of the Adjusted 2017 Inflation adjusted
penalty penalty adjustment amount
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5 CFR 185.103(a)...................... Civil Penalty for False $10,957 $223 $11,181
Claims.
5 CFR 185.103(f)(2)................... Civil Penalty for False 10,957 223 11,181
Statements.
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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
[[Page 34934]]
the Consumer Price Index for all Urban Consumers (CPI-U).
II. Calculation of Adjustment
The Office of Management and Budget (OMB) issued guidance on
calculating the initial catch-up adjustment. See February 24, 2016,
Memorandum for the Heads of Executive Departments and Agencies, from
Shaun Donovan, Director, Office of Management and Budget, re:
Implementation of the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015. 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 2015
and October of 2016, as well as between October of 2016 and 2017. See
December 16, 2016, Memorandum for the Heads of Executive Departments
and Agencies, from Shaun Donovan, Director, Office of Management and
Budget, re: Implementation of the 2017 annual adjustment pursuant to
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015; December 15, 2017 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 2018, 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. Although OPM published the initial interim final
rulemaking to adjust its relevant penalties in compliance with the 2015
Act, OPM has not yet issued the 2017 or 2018 adjustments. As a result,
the increases associated with the first two annual inflation
adjustments mandated under the 2015 Act after the original adjustment
are combined here.
III. Executive Order Requirements
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. This rule has been designated a not significant regulatory
action, under Executive Order 12866. E.O. 13771.
This final rule is not an E.O. 13771 regulatory action because this
rule is not significant under E.O. 12866.
A. Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities.
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.
B. 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.
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 that such
rulemaking 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
We have examined this rule in accordance with Executive Order
13132, Federalism, and have determined that this rule will not have any
negative impact on the rights, roles, and responsibilities of State,
local, or Tribal governments.
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 rule does not involve any collections of information 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.
Jeff T.H. Pon,
Director.
For the reasons set forth in the preamble, OPM amends part 185 of
title 5 of the Code of Federal Regulations as follows:
[[Page 34935]]
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 as follows:
0
a. In paragraph (a) introductory text, revise ``$10,781'' to read
``$11,181''.
0
b. In paragraph (f)(2), revise ``$10,781'' to read ``$11,181''.
[FR Doc. 2018-15764 Filed 7-23-18; 8:45 am]
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