[Federal Register Volume 88, Number 9 (Friday, January 13, 2023)]
[Rules and Regulations]
[Pages 2239-2241]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00579]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 269

[Docket ID: DOD-2016-OS-0045]
RIN 0790-AL58


Civil Monetary Penalty Inflation Adjustment

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

ACTION: Final rule.

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SUMMARY: The DoD 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 January 13, 2023.

FOR FURTHER INFORMATION CONTACT: Dzenana Dzanic, 703-508-9277.

SUPPLEMENTARY INFORMATION:

Background Information

    The Federal Civil Penalties Inflation Adjustment Act of 1990, 
Public Law 101-410, codified at 28 U.S.C. 2461, 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 DoD'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 to maintain 
their deterrent effect. The DoD 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 2023 
of 1.07745 prescribed in OMB Memorandum M-23-05, ``Implementation of 
Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015.'' The 
DoD's 2023 adjustments for inflation to CMPs apply only to those CMPs, 
including those whose associated violation predated such adjustment, 
which are assessed by the DoD 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 5 U.S.C. 553. 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 
DoD 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 DoD, 
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 DoD 
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

[[Page 2240]]

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 Executive Orders.

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 OMB 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.

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 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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                                                                                                   New adjusted
                                                                                      Maximum         maximum
             United States Code               Civil monetary penalty description  penalty amount  penalty amount
                                                                                  as of 2022 ($)        ($)
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National Defense Authorization Act for FY    Unauthorized Activities Directed at         144,887         156,108
 2005, 10 U.S.C 113, note.                    or Possession of Sunken Military
                                              Craft.
10 U.S.C. 1094(c)(1).......................  Unlawful Provision of Health Care..          12,722          13,707
10 U.S.C. 1102(k)..........................  Wrongful Disclosure--Medical         ..............  ..............
                                              Records:.
                                             First Offense......................           7,523           8,106
                                             Subsequent Offense.................          50,152          54,036
10 U.S.C. 2674(c)(2).......................  Violation of the Pentagon                     2,073           2,234
                                              Reservation Operation and Parking
                                              of Motor Vehicles Rules and
                                              Regulations.
31 U.S.C. 3802(a)(1).......................  Violation Involving False Claim....          12,537          13,508
31 U.S.C. 3802(a)(2).......................  Violation Involving False Statement          12,537          13,508
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)  False claims.......................          22,426          24,163
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)  Claims submitted with a false                22,426          24,163
                                              certification of physician license.

[[Page 2241]]

 
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)  Claims presented by excluded party.          22,426          24,163
42 U.S.C. 1320a-7a(a); 32 CFR                Employing or contracting with an             22,426          24,163
 200.210(a)(2); (b)(2)(ii).                   excluded individual.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)  Pattern of claims for medically              22,426          24,163
                                              unnecessary services/supplies.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)  Ordering or prescribing while                22,426          24,163
                                              excluded.
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(5)  Known retention of an overpayment..          22,426          24,163
42 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(4)  Making or using a false record or           112,131         120,816
                                              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 to            33,640          36,245
                                              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, omissions,         112,131         120,816
                                              misrepresentations in an
                                              enrollment application.
42 U.S.C. 1320a-7a(a); 32 CFR 200.310(a)...  Unlawfully offering, paying,                112,131         120,816
                                              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: January 10, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-00579 Filed 1-12-23; 8:45 am]
BILLING CODE 5001-06-P