[Federal Register Volume 86, Number 158 (Thursday, August 19, 2021)]
[Rules and Regulations]
[Pages 46599-46601]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-17675]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 269

[Docket ID: DOD-2016-OS-0045]
RIN 0790-AL18


Civil Monetary Penalty Inflation Adjustment

AGENCY: Office of the Under Secretary of Defense (Comptroller), 
Department of Defense.

ACTION: Final rule.

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SUMMARY: The Department of Defense is issuing this final rule to adjust 
each of its statutory civil monetary penalties (CMP) to account for 
inflation. The Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended by the Debt Collection Improvement Act of 1996 and the 
Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015 (the 2015 Act), requires the head of each agency to adjust for 
inflation its CMP levels in effect as of November 2, 2015, under a 
revised methodology that was effective for 2016 and for each year 
thereafter.

DATES: This rule is effective August 19, 2021.

FOR FURTHER INFORMATION CONTACT: Kellie Allison, 703-614-0410.

SUPPLEMENTARY INFORMATION:

Background Information

    The Federal Civil Penalties Inflation Adjustment Act of 1990, 
Public Law 101-410, 104 Stat. 890 (28 U.S.C. 2461, note), as amended by 
the Debt Collection Improvement Act of 1996, Public Law 104-134, April 
26, 1996, and further amended by the Federal Civil Penalties Inflation 
Adjustment Act Improvements Act of 2015 (the 2015 Act), Public Law 114-
74, November 2, 2015, required agencies to annually adjust the level of 
CMPs for inflation to improve their effectiveness and maintain their 
deterrent effect. The 2015 Act required that not later than July 1, 
2016, and not later than January 15 of every year thereafter, the head 
of each agency must adjust each CMP within its jurisdiction by the 
inflation adjustment described in the 2015 Act. The inflation 
adjustment is determined by increasing the maximum CMP or the range of 
minimum and maximum CMPs, as applicable, for each CMP by the cost-of-
living adjustment, rounded to the nearest multiple of $1. The cost-of-
living adjustment is the percentage (if any) for each CMP by which the 
Consumer Price Index (CPI) for the month of October preceding the date 
of the adjustment, exceeds the CPI for the month of October in the 
previous calendar year.
    The initial catch up adjustments for inflation to the Department of 
Defense's CMPs were published as an interim final rule in the Federal 
Register on May 26, 2016 (81 FR 33389-33391) and became effective on 
that date. The interim final rule was published as a final rule without 
change on September 12, 2016 (81 FR 62629-62631), effective that date. 
The revised methodology for agencies for 2017 and each year thereafter 
provides for the improvement of the effectiveness of CMPs and to 
maintain their deterrent effect. The Department of Defense is adjusting 
the level of all civil monetary penalties under its jurisdiction by the 
Office of Management and Budget (OMB) directed cost-of-living 
adjustment multiplier for 2021 of 1.01182 prescribed in OMB Memorandum 
M-21-10, ``Implementation of Penalty Inflation Adjustments for 2021, 
Pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015,'' dated December 16, 2019. The Department of 
Defense's 2021 adjustments for inflation to CMPs apply only to those 
CMPs, including those whose associated violation predated such 
adjustment, which are assessed by the Department of Defense after the 
effective date of the new CMP level.

Statement of Authority and Costs and Benefits

    Pursuant to 5 U.S.C. 553(b)B, there is good cause to issue this 
rule without prior public notice or opportunity for public comment 
because it would be impracticable and unnecessary. The Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 
701(b)) requires agencies, effective 2017, to make annual adjustments 
for inflation to CMPs notwithstanding section 553 of title 5, United 
States Code. Additionally, the methodology used, effective 2017, for 
adjusting CMPs for inflation is established in statute, with no 
discretion provided to agencies regarding the substance of the 
adjustments for inflation to CMPs. The Department of Defense is charged 
only with performing ministerial computations to determine the dollar 
amount of adjustments for inflation to CMPs.
    Further, there are no significant costs associated with the 
regulatory revisions that would impose any mandates on the Department 
of Defense, Federal, State or local governments, or the private sector. 
Accordingly, prior public notice and an opportunity for public comment 
are not required for this rule. The benefit of this rule is the 
Department of Defense anticipates that civil monetary penalty 
collections may increase in the future due to new penalty authorities 
and other changes in this rule. However, it is difficult to accurately 
predict the extent of any increase, if any, due to a variety of 
factors, such as budget and staff resources, the number and quality of 
civil penalty referrals or leads, and the length of time needed to 
investigate and resolve a case.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and 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, distribute 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 is not a ``significant regulatory action,'' and 
was not reviewed by the Office of Management and Budget.

Unfunded Mandates Reform Act (2 U.S.C. Chapter 25)

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 
U.S.C. 1532) requires agencies to assess anticipated costs and benefits

[[Page 46600]]

before issuing any rule the mandates of which require spending in any 
year of $100 million in 1995 dollars, updated annually for inflation. 
In 2016, that threshold is approximately $146 million. This rule will 
not mandate any requirements for State, local, or tribal governments, 
nor will it affect private sector costs.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    Because notice of proposed rulemaking and opportunity for comment 
are not required pursuant to 5 U.S.C. 553, or any other law, the 
analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.) are inapplicable. Therefore, a regulatory flexibility 
analysis is not required and has not been prepared.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    The Department of Defense determined that provisions of the 
Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. Chapter 
35, and its implementing regulations, 5 CFR part 1320, do not apply to 
this rule because there are no new or revised recordkeeping or 
reporting requirements.

Executive Order 13132, ``Federalism''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has Federalism implications. This final rule will not 
have a substantial effect on State and local governments.

List of Subjects in 32 CFR Part 269

    Administrative practice and procedure, Penalties.

    Accordingly, 32 CFR part 269 is amended as follows.

PART 269--[AMENDED]

0
1. The authority citation for 32 CFR part 269 continues to read as 
follows:

    Authority: 28 U.S.C. 2461 note.


0
2. In Sec.  269.4, revise paragraph (d) to read as follows:


Sec.  269.4  Cost of living adjustments of civil monetary penalties.

* * * * *
    (d) Inflation adjustment. Maximum civil monetary penalties within 
the jurisdiction of the Department are adjusted for inflation as 
follows:

                                            Table 1 to Paragraph (d)
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                                                                                      Maximum      New adjusted
          United States code               Civil monetary penalty description     penalty amount      maximum
                                                                                  as of 02/21/20  penalty amount
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National Defense Authorization Act for  Unauthorized Activities Directed at or           134,807         136,400
 FY 2005, 10 U.S.C. 113, note.           Possession of Sunken Military Craft.
10 U.S.C. 1094(c)(1)..................  Unlawful Provision of Health Care.......          11,837          11,977
10 U.S.C. 1102(k).....................  Wrongful Disclosure--Medical Records:
                                        First Offense...........................           6,999           7,082
                                        Subsequent Offense......................          46,663          47,214
10 U.S.C. 2674(c)(2)..................  Violation of the Pentagon Reservation              1,928           1,951
                                         Operation and Parking of Motor Vehicles
                                         Rules and Regulations.
31 U.S.C. 3802(a)(1)..................  Violation Involving False Claim.........          11,665          11,803
31 U.S.C. 3802(a)(2)..................  Violation Involving False Statement.....          11,665          11,803
42 U.S.C. 1320a-7a(a); 32 CFR           False claims............................          20,866       21,112.64
 200.210(a)(1).
42 U.S.C. 1320a-7a(a); 32 CFR           Claims submitted with a false                     20,866       21,112.64
 200.210(a)(1).                          certification of physician license.
42 U.S.C. 1320a-7a(a); 32 CFR           Claims presented by excluded party......          20,866       21,112.64
 200.210(a)(2).
42 U.S.C. 1320a-7a(a); 32 CFR           Employing or contracting with an                  20,866       21,112.64
 200.210(a)(2); (b)(2)(ii).              excluded individual.
42 U.S.C. 1320a-7a(a); 32 CFR           Pattern of claims for medically                   20,866       21,112.64
 200.210(a)(1).                          unnecessary services/supplies.
42 U.S.C. 1320a-7a(a); 32 CFR           Ordering or prescribing while excluded..          20,866       21,112.64
 200.210(a)(2).
42 U.S.C. 1320a-7a(a); 32 CFR           Known retention of an overpayment.......          20,866       21,112.64
 200.210(a)(5).
42 U.S.C. 1320a-7a(a); 32 CFR           Making or using a false record or                104,330      105,563.18
 200.210(a)(4).                          statement that is material to a false
                                         or fraudulent claim.
42 U.S.C. 1320a-7a(a); 32 CFR           Failure to grant timely access to OIG             31,300       31,669.97
 200.210(a)(6).                          for audits, investigations,
                                         evaluations, or other statutory
                                         functions of OIG.
42 U.S.C. 1320a-7a(a); 32 CFR           Making false statements, omissions,              104,330      105,563.18
 200.210(a)(3).                          misrepresentations in an enrollment
                                         application.
42 U.S.C. 1320a-7a(a); 32 CFR           Unlawfully offering, paying, soliciting,         104,330      105,563.18
 200.310(a).                             or receiving remuneration to induce or
                                         in return for the referral of business
                                         in violation of 1128B(b) of the Social
                                         Security Act.
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[[Page 46601]]

    Dated: August 12, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-17675 Filed 8-18-21; 8:45 am]
BILLING CODE 5001-06-P