[Federal Register Volume 87, Number 180 (Monday, September 19, 2022)]
[Rules and Regulations]
[Pages 57145-57147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-20154]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 269

[Docket ID: DOD-2016-OS-0045]
RIN 0790-AL50


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 September 19, 2022.

FOR FURTHER INFORMATION CONTACT: Dzenana Dzanic, 703-571-1652.

SUPPLEMENTARY INFORMATION: 

Background Information

    The Federal Civil Penalties Inflation Adjustment Act of 1990, 
Public Law 101-410, codified at 28 U.S.C. 2461,

[[Page 57146]]

note, as amended, requires agencies to annually adjust the level of 
CMPs for inflation to improve their effectiveness and maintain their 
deterrent effect. Section 2461 requires 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 set forth therein. 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 2022 of 1.06222 prescribed in OMB Memorandum 
M-22-07, ``Implementation of Penalty Inflation Adjustments for 2022, 
Pursuant to the Federal Civil Penalties Inflation Adjustment Act 
Improvements Act of 2015.'' The Department of Defense's 2022 
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 
2461) 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. Accordingly, prior public notice and 
an opportunity to comment are not required for this rule. For the same 
reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-
day delay in effective date.
    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''

    These Executive Orders 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). These Executive Orders also 
emphasize the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. 
This rule has been designated ``not significant'', under section 3(f) 
of Executive Order 12866. Accordingly, this rule has not been reviewed 
by the OMB under these requirements.

Congressional Review Act, 5 U.S.C. 804(2)

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. A major rule may take effect no earlier than 60 calendar 
days after Congress receives the rule report or the rule is published 
in the Federal Register, whichever is later. This rule is not a major 
rule, as defined by 5 U.S.C. 804(2).

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 
before issuing any rule the mandates of which require spending in any 
year of $100 million in 1995 dollars, updated annually for inflation. 
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)

    The Under Secretary of Defense (Comptroller) certified that this 
rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) 
because it would not, if promulgated, have a significant economic 
impact on a substantial number of small entities. Therefore, the 
Regulatory Flexibility Act, as amended, does not require DoD to prepare 
a regulatory flexibility analysis.

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

    The Paperwork Reduction Act was enacted to minimize the paperwork 
burden for individuals; small businesses; educational and nonprofit 
institutions; Federal contractors; State, local and tribal governments; 
and other persons resulting from the collection of information by or 
for the federal government. The Act requires agencies obtain approval 
from the Office of Management and Budget before using identical 
questions to collect information from ten or more persons. This rule 
does not impose reporting or recordkeeping requirements on the public.

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.

[[Page 57147]]

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    It has been determined that this rule will not have a substantial 
effect on Indian tribal governments. This rule does not impose 
substantial direct compliance costs on one or more Indian tribes, 
preempt tribal law, or effect the distribution of power and 
responsibilities between the federal government and Indian tribes.

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 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       penalty amount      maximum
                                                           description              as of 2021    penalty amount
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National Defense Authorization Act for FY       Unauthorized Activities Directed         136,400      144,887.01
 2005, 10 U.S.C. 113, note.                      at or Possession of Sunken
                                                 Military Craft.
10 U.S.C. 1094(c)(1)..........................  Unlawful Provision of Health              11,977       12,722.32
                                                 Care.
10 U.S.C. 1102(k).............................  Wrongful Disclosure--Medical
                                                 Records:
                                                First Offense...................           7,082        7,522.71
                                                Subsequent Offense..............          47,214       50,152.10
10 U.S.C. 2674(c)(2)..........................  Violation of the Pentagon                  1,951        2,072.63
                                                 Reservation Operation and
                                                 Parking of Motor Vehicles Rules
                                                 and Regulations.
31 U.S.C. 3802(a)(1)..........................  Violation Involving False Claim.          11,803       12,537.48
31 U.S.C. 3802(a)(2)..........................  Violation Involving False                 11,803       12,537.48
                                                 Statement.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  False claims....................       21,112.64       22,426.26
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  Claims submitted with a false          21,112.64       22,426.26
                                                 certification of physician
                                                 license.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)...  Claims presented by excluded           21,112.64       22,426.26
                                                 party.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2);    Employing or contracting with an       21,112.64       22,426.26
 (b)(2)(ii).                                     excluded individual.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)...  Pattern of claims for medically        21,112.64       22,426.26
                                                 unnecessary services/supplies.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)...  Ordering or prescribing while          21,112.64       22,426.26
                                                 excluded.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(5)...  Known retention of an                  21,112.64       22,426.26
                                                 overpayment.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(4)...  Making or using a false record        105,563.18      112,131.32
                                                 or statement that is material
                                                 to a false or fraudulent claim.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(6)...  Failure to grant timely access         31,669.97       33,640.47
                                                 to OIG for audits,
                                                 investigations, evaluations, or
                                                 other statutory functions of
                                                 OIG.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(3)...  Making false statements,              105,563.18      112,131.32
                                                 omissions, misrepresentations
                                                 in an enrollment application.
42 U.S.C. 1320a-7a(a); 32 CFR 200.310(a)......  Unlawfully offering, paying,          105,563.18      112,131.32
                                                 soliciting, 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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    Dated: September 13, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-20154 Filed 9-16-22; 8:45 am]
BILLING CODE 5001-06-P