81 FR 46827 - Program Fraud Civil Remedies: Civil Monetary Penalty Inflation Adjustment

OFFICE OF PERSONNEL MANAGEMENT

Federal Register Volume 81, Issue 138 (July 19, 2016)

Page Range		46827-46828
FR Document		2016-17026
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.
Federal Register, Volume 81 Issue 138 (Tuesday, July 19, 2016)
[Federal Register Volume 81, Number 138 (Tuesday, July 19, 2016)]
[Rules and Regulations]
[Pages 46827-46828]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-17026]



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Federal Register / Vol. 81, No. 138 / Tuesday, July 19, 2016 / Rules 
and Regulations

[[Page 46827]]



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: Interim 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, 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.

DATES: Effective Date: August 1, 2016.
    Comment Date: Comments due on or before August 18, 2016.

ADDRESSES: You may submit comments, identified by RIN 3206-AN39, by any 
of the following methods:
    1. Internet--Send comments via email to [email protected].
    2. Fax--(202) 606-0082.
    3. Mail--Office of the General Counsel, ATTN: Katherine Pickar, 
Office of Personnel Management, 1900 E St. NW., Washington, DC 20415.
    Do not submit the same comments multiple times or by more than one 
method. Regardless of which method you choose, please state that your 
comments refer to RIN 3206-AN39.
    Caution: You should be careful to include in your comments only 
information that you wish to make publicly available as comments are 
posted without change, with any personal information provided. OPM 
strongly urges you not to include in your comments any personal 
information, such as Social Security numbers, Civil Service Annuity/
Final numbers, and/or medical information.

FOR FURTHER INFORMATION CONTACT: Katherine M. Pickar, 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 requires 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.
    This rule adjusts the following civil monetary penalties:

----------------------------------------------------------------------------------------------------------------
                                           Description of the         Current         Catchup        Adjusted
             CFR Citation                        penalty              penalty       adjustment        penalty
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

    This interim final rule is being issued without prior public notice 
or opportunity for public comments. The 2015 Act's amendments to the 
Inflation Adjustment Act require the agency to adjust penalties 
initially through an interim final rulemaking, which does not require 
the agency to complete a notice and comment process prior to 
promulgating the interim final rule. The amendments also explicitly 
require 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). Additionally, the formula used for adjusting the amount of 
civil penalties is given by statute, with no discretion provided to OPM 
regarding the substance 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) issued guidance on 
calculating the 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.
    For purposes of the initial adjustment under the 2015 Act, while 5 
CFR part 185 was not promulgated until 1995, the civil penalties listed 
in part 185 were established in 1986 with the enactment of the Program 
Fraud Civil Remedies Act of 1986, Public Law 99-509, Sec. Sec.  6101-
6104, 100 Stat. 1874 (October 21, 1986), codified at 31 U.S.C. 3801-
3812. The amount of the penalties have not been changed since 1986. The 
1986

[[Page 46828]]

establishment of the Program Fraud Civil Remedies Act of 1986 serves as 
the base figure for the inflation calculation. Between October 1986 and 
October 2015, the CPI-U has increased by 215.628 percent. The post-
adjustment penalty amount or range is obtained by multiplying the pre-
adjustment penalty amount or range by the percent change in the CPI-U 
over the relevant time period, and rounding to the nearest dollar. 
Therefore, the new, post-adjustment penalty under the PFCRA is $5,000 x 
2.15628 = $10,781.40, which rounds to $10,781. The new, post-adjustment 
penalties are less than 250 percent of the pre-adjustment penalties, so 
the limitation on the amount of the adjustment is not implicated.

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 with an initial catch-up adjustment through an interim 
final rule. An interim final rule does not include first publishing a 
proposed rule. 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 information collection requirements 
subject to the Paperwork Reduction Act of 1995, Public Law 104-13.

List of Subjects in 5 CFR Part 185

    Administrative practice and procedure, Claims, Fraud, Penalties.

U.S. Office of Personnel Management.
Beth F. Cobert,
Acting Director.

    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: CIVIL MONETARY PENALTY 
INFLATION ADJUSTMENT

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

    Authority:  28 U.S.C. 2461 note; 31 U.S.C. 3801-3812.


Sec.  185.103  [Amended]

0
2. Section 185.103 is amended as follows:
0
a. In paragraph (a) introductory text, remove ``$5,000'' and add in its 
place ``$10,781''.
0
b. In paragraph (f)(2), remove ``$5,000'' and add in its place 
``$10,781''.

[FR Doc. 2016-17026 Filed 7-18-16; 8:45 am]
 BILLING CODE 6325-48-P
46828 Federal Register / Vol. 81, No. 138 / Tuesday, July 19, 2016 / Rules and Regulations

establishment of the Program Fraud investment, productivity, innovation, or PART 185—PROGRAM FRAUD CIVIL
Civil Remedies Act of 1986 serves as the the ability of United States-based REMEDIES: CIVIL MONETARY
base figure for the inflation calculation. enterprises to compete with foreign- PENALTY INFLATION ADJUSTMENT
Between October 1986 and October based enterprises.
2015, the CPI–U has increased by ■ 1. The authority citation for part 185
D. Unfunded Mandate Reform Act of is revised to read as follows:
215.628 percent. The post-adjustment
1995 (2 U.S.C. 1532)
penalty amount or range is obtained by Authority: 28 U.S.C. 2461 note; 31 U.S.C.
multiplying the pre-adjustment penalty This rule does not involve a Federal 3801–3812.
amount or range by the percent change mandate that may result in the
in the CPI–U over the relevant time expenditure by State, local and tribal § 185.103 [Amended]
period, and rounding to the nearest governments, in the aggregate, or by the ■ 2. Section 185.103 is amended as
dollar. Therefore, the new, post- private sector, of $100 million or more follows:
adjustment penalty under the PFCRA is and that such rulemaking will not ■ a. In paragraph (a) introductory text,
$5,000 × 2.15628 = $10,781.40, which significantly or uniquely affect small remove ‘‘$5,000’’ and add in its place
rounds to $10,781. The new, post- governments. ‘‘$10,781’’.
adjustment penalties are less than 250 E. E.O. 12630, Takings ■ b. In paragraph (f)(2), remove
percent of the pre-adjustment penalties, ‘‘$5,000’’ and add in its place
so the limitation on the amount of the This rule does not have takings ‘‘$10,781’’.
adjustment is not implicated. implications.
[FR Doc. 2016–17026 Filed 7–18–16; 8:45 am]
III. Procedural Requirements F. E.O. 13132, Federalism BILLING CODE 6325–48–P

A. Regulatory Impact Analysis: This rule does not have federalism
Executive Order 12866, as implications. The rule does not have
Supplemented by Executive Order substantial direct effects on the States, DEPARTMENT OF HEALTH AND
13563 on the relationship between the HUMAN SERVICES
National Government and the States, or
OPM, with the concurrence of the on the distribution of power and Food and Drug Administration
Office of Management and Budget responsibilities among the various
(OMB), has determined that this is not levels of government. 21 CFR Part 108
a significant regulatory action under
Executive Order 12866, as G. E.O. 12988, Civil Justice Reform [Docket No. FDA–2015–N–2819]
supplemented by Executive Order This rule complies with the Emergency Permit Control
13563. Therefore, no regulatory impact requirements of E.O. 12988. Regulations; Technical Amendments
analysis is required. Specifically, this rule:
B. Regulatory Flexibility Act (a) Does not unduly burden the AGENCY: Food and Drug Administration,
judicial system. HHS.
The Regulatory Flexibility Act (RFA) (b) Meets the criteria of section 3(a) Final rule; technical
ACTION:
requires an agency to prepare a requiring that all regulations be amendments.
regulatory flexibility analysis for rules reviewed to eliminate errors and
unless the agency certifies that the rule ambiguity and be written to minimize SUMMARY: The Food and Drug
will not have a significant economic litigation; and Administration (FDA or we) is
impact on a substantial number of small (c) Meets the criteria of section 3(b)(2) amending certain regulations pertaining
entities. The RFA applies only to rules requiring that all regulations be written to registration and process filings
for which an agency is required to first in clear language and contain clear legal related to acidified foods and thermally
publish a proposed rule. See 5 U.S.C. standards. processed low-acid foods packaged in
603(a) and 604(a). The Federal Civil hermetically sealed containers
Penalties Inflation Adjustment Act H. E.O. 13175, Consultation With Indian
(historically referred to as ‘‘low-acid
Improvements Act of 2015 requires Tribes
canned foods’’ or ‘‘LACF’’). The
agencies to adjust civil penalties with an In accordance with Executive Order amendments reflect new FDA process
initial catch-up adjustment through an 13175, OPM has evaluated this rule and filing form numbers, make changes to
interim final rule. An interim final rule determined that it has no tribal addresses or locations where such forms
does not include first publishing a implications. can be found or must be sent, remove
proposed rule. Thus, the RFA does not obsolete references to the effective dates
apply to this final rule. I. Paperwork Reduction Act
that occurred years ago, and update a
This document does not contain reference to another Federal Agency.
C. Small Business Regulatory
information collection requirements
Enforcement Fairness Act (5 U.S.C. DATES: This rule is effective August 18,
subject to the Paperwork Reduction Act
804(2)) 2016. See section VI for further
of 1995, Public Law 104–13.
This rule is not a major rule under the information on the filing of objections.
Small Business Regulatory Enforcement List of Subjects in 5 CFR Part 185 Submit either electronic or written
Fairness Act. This rule: Administrative practice and objections and requests for a hearing by
(a) Does not have an annual effect on procedure, Claims, Fraud, Penalties. August 18, 2016.
the economy of $100 million or more. ADDRESSES: You may submit objections
U.S. Office of Personnel Management.
(b) Will not cause a major increase in and requests for a hearing as follows:
ehiers on DSK5VPTVN1PROD with RULES

Beth F. Cobert,
costs or prices for consumers,
Acting Director. Electronic Submissions
individual industries, Federal, State, or
local government agencies, or For the reasons set forth in the Submit electronic objections in the
geographic regions. preamble, amend part 185 of title 5 of following way:
(c) Does not have significant adverse the Code of Federal Regulations as • Federal eRulemaking Portal: http://
effects on competition, employment, follows: www.regulations.gov. Follow the

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Document Created: 2016-07-19 01:11:02
Document Modified: 2016-07-19 01:11:02
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Interim rule.
Contact		Katherine M. Pickar, Office of the General Counsel, Office of Personnel Management, 1900 E St. NW., Washington, DC 20415, [email protected], (202) 606-1700.
FR Citation		81 FR 46827
RIN Number		3206-AN39
CFR Associated		Administrative Practice and Procedure; Claims; Fraud and Penalties