Rule2022-05648
Annual Civil Monetary Penalties Inflation Adjustment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 17, 2022
Effective
March 17, 2022
Issuing agencies
Health and Human Services Department
Abstract
The Department of Health and Human Services is updating its regulations to reflect required annual inflation-related increases to the civil monetary penalty amounts in its regulations, under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015; adding references to new penalty authorities; and making technical changes to correct errors in the regulation.
Full Text
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<title>Federal Register, Volume 87 Issue 52 (Thursday, March 17, 2022)</title>
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[Federal Register Volume 87, Number 52 (Thursday, March 17, 2022)]
[Rules and Regulations]
[Pages 15100-15123]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05648]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
45 CFR Part 102
RIN 0991-AC33
Annual Civil Monetary Penalties Inflation Adjustment
AGENCY: Office of the Assistant Secretary for Financial Resources,
Department of Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: The Department of Health and Human Services is updating its
regulations to reflect required annual inflation-related increases to
the civil monetary penalty amounts in its regulations, under the
Federal Civil Penalties Inflation Adjustment Act Improvements Act of
2015; adding references to new penalty authorities; and making
technical changes to correct errors in the regulation.
DATES:
Effective date: This final rule is effective March 17, 2022.
Applicability date: The adjusted civil monetary penalty amounts
apply to penalties assessed on March 17, 2022, r if the violation
occurred on or after November 2, 2015.
FOR FURTHER INFORMATION CONTACT: Katrina Brisbon, Acting Deputy
Assistant Secretary, Office of Acquisitions, Office of the Assistant
Secretary for Financial Resources, Room 536-H, Hubert Humphrey
Building, 200 Independence Avenue SW, Washington, DC 20201; (202) 260-
6677.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (section 701 of Pub. L. 114-74) (the ``2015 Act'') amended
the Federal Civil Penalties Inflation Adjustment Act of 1990 (Pub. L.
101-410, 104 Stat. 890 (1990)), which is intended to improve the
effectiveness of civil monetary penalties (CMPs) and to maintain the
deterrent effect of such penalties, requires agencies to adjust the
CMPs for inflation annually.
The Department of Health and Human Services (HHS) lists the CMP
authorities and the amounts administered by all of its agencies in
tabular form in 45 CFR 102.3, which was issued in an interim final rule
published in the September 6, 2016, Federal Register (81 FR 61538).
Annual adjustments were subsequently published on February 3, 2017 (82
FR 9175), October 11, 2018 (83 FR 51369), November 5, 2019 (84 FR
59549), January 17, 2020 (85 FR 2869), and November 15, 2021 (86 FR
62928).
II. Calculation of Annual Inflation Adjustment
The annual inflation adjustment for each applicable CMP is
determined using the percent increase in the Consumer Price Index for
all Urban Consumers (CPI-U) for the month of October of the year in
which the amount of each CMP was most recently established or modified.
In the December 15, 2021, Office of Management and Budget (OMB)
Memorandum for the Heads of Executive Agencies and Departments, M-22-
07, ``Implementation of Penalty Inflation Adjustments for 2022,
Pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015,'' OMB published the multiplier for the
required annual adjustment. The cost-of-living adjustment multiplier
for 2022, based on the CPI-U for the month of October 2021, not
seasonally adjusted, is 1.06222. The multiplier is applied to each
applicable penalty amount that was updated and published for fiscal
year (FY) 2021 and is rounded to the nearest dollar.
III. Other Revisions
In addition to the inflation adjustments for 2022, this final rule
updates the table in 45 CFR 102.3 to add references to new, applicable
civil money penalty authorities that were established or implemented
since the publication of the November 15, 2021 update and that are
being updated in this rule. The rule also corrects several technical
errors to regulatory citations in the table and updates descriptions
for clarification and accuracy. The following technical errors were
identified and are corrected in the table at 45 CFR 102.3:
<bullet> The citation to, and description of, 42 U.S.C. 299c-3(d)
are revised for accuracy.
<bullet> The regulatory reference of 42 CFR 1003.210(a)(5)
implementing 42 U.S.C. 1395cc(g) which was inadvertently omitted from
the regulation and is added.
<bullet> The description of the CMP at 42 U.S.C. 1320a-7a(o) is
revised for accuracy.
<bullet> The regulatory reference to 45 CFR 155.206(i) \1\
implementing 42 U.S.C. 18041(c)(2) \2\ which was inadvertently omitted
from the regulation is added. Additionally, the amount for this CMP was
not included in the 2021 inflation adjustment rule. 86 FR 62928, 62943
(Nov. 15, 2021). Thus, we are updating the inflation amount at this
time.
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\1\ The Department recently proposed a technical correction to
45 CFR 155.206(i) to add language that would cross-reference to the
authority to implement annual inflation-related increases to CMPs
pursuant to the 2015 Act. See Patient Protection and Affordable Care
Act; HHS Notice of Benefit and Payment Parameters for 2023; Proposed
Rule, 87 FR 584 at 640-641, 721 (Jan. 5, 2022). To date, no CMPs
have been imposed under this authority, but any that are would
reflect the current inflationary adjusted amount as required by the
2015 Act and would be calculated in accordance with applicable OMB
guidance to all Executive Departments on the implementation of the
2015 Act.
\2\ See, e.g., the Patient Protection and Affordable Care Act;
Exchange and Insurance Market Standards for 2015 and Beyond; Final
Rule, 79 FR 30239 at 30262-30270 (May 27, 2014).
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<bullet> The first description tied to 42 U.S.C. 1395mm(i)(6)(B)(i)
is revised from ``is such plan'' to ``if such plan''.
<bullet> The regulatory reference to 85 FR 71142 (Nov. 6, 2020)
implementing CARES Act, Pub. L. 116-136, section 3202(b)(2), is revised
to read 45 CFR 182.70.
++ The 2022 adjusted amount is calculated by applying the 2021
multiplier to 1.06222 percent and this adjusted amount is reflected in
the table of the regulation at 45 CFR 102.3.
[[Page 15101]]
IV. Statutory and Executive Order Reviews and Waiver of Proposed
Rulemaking
The 2015 Act requires Federal agencies to publish annual penalty
inflation adjustments notwithstanding section 553 of the Administrative
Procedure Act (APA). Section 4(a) of the 2015 Act directs Federal
agencies to publish annual adjustments no later than January 15th of
each year thereafter. In accordance with section 553 of the APA, most
rules are subject to notice and comment and are effective no earlier
than 30 days after publication in the Federal Register. However,
section 4(b)(2) of the 2015 Act provides that each agency shall make
the annual inflation adjustments ``notwithstanding section 553'' of the
APA. According to OMB's Memorandum M-21-10, the phrase
``notwithstanding section 553'' in section 4(b)(2) of the 2015 Act
means that ``the public procedure the APA generally requires (that is,
notice, an opportunity for comment, and a delay in effective date) is
not required for agencies to issue regulations implementing the annual
adjustment.''
Consistent with the language of the 2015 Act and OMB's
implementation guidance, the inflation adjustments set out in this rule
are not subject to notice and an opportunity for public comment and
will be effective immediately upon publication. Additionally, HHS finds
that notice and comment procedures would be impracticable and
unnecessary under the APA for making the statutorily required inflation
updates to newly established penalty amounts and for the ministerial
and technical changes in this rule. In addition, HHS is waiving notice
and comment for the non-substantive technical corrections set out in
this final rule. HHS finds good cause for issuing these changes as a
final rule without prior notice and comment because these changes only
update the regulation to add the new CMP authorities that will be
adjusted in accordance with the 2015 Act which were implemented since
the last update.
Pursuant to OMB Memorandum M-21-10, HHS has determined that the
annual inflation adjustment to the civil monetary penalties in its
regulations does not trigger any requirements under procedural statutes
and Executive Orders that govern rulemaking procedures.
V. Effective and Applicability Dates
This rule is effective on the date specified in the DATES section
of this final rule. The adjusted civil monetary penalty amounts apply
to penalties assessed on or after date specified in the DATES section
of this final rule, if the violation occurred on or after November 2,
2015. If the violation occurred before November 2, 2015, or a penalty
was assessed before September 6, 2016, the pre-adjustment civil penalty
amounts in effect before September 6, 2016, will apply.
List of Subjects in 45 CFR Part 102
Administrative practice and procedure, Penalties.
Accordingly, the Department of Health and Human Services amends 45
CFR part 102 as follows:
PART 102--ADJUSTMENT OF CIVIL MONETARY PENALTIES FOR INFLATION
0
1. The authority citation for part 102 is revised to read as follows:
Authority: Pub. L. 101-410, Sec. 701 of Pub. L. 114-74, 31
U.S.C. 3801-3812.
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2. Amend Sec. 102.3 by revising table 1 to read as follows:
Sec. 102.3 Penalty adjustment and table.
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Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2022-05648 Filed 3-16-22; 8:45 am]
BILLING CODE 4150-24-C
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</html>Indexed from Federal Register on March 17, 2022.
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