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 Department of Defense Office of the Secretary 32 CFR Part 269
[Docket ID: DOD-2016-OS-0045]
RIN 0790-AL18
 AGENCY: Office of the Under Secretary of Defense (Comptroller), Department of Defense.
 ACTION: Final rule.
 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 
                    ( print 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]
 1.The authority citation for 32 CFR part 269 continues to read as follows: Authority:
                        28 U.S.C. 2461 note. 2.In § 269.4, revise paragraph (d) to read as follows: § 269.4
  
 (d) 
                            *Inflation adjustment.*
                             Maximum civil monetary penalties within the jurisdiction of the Department are adjusted for inflation as follows: Table 1 to Paragraph 
                                (d)
United States code
Civil monetary penalty description
Maximum
                                     penalty 
                                     amount as 
                                     of 02/21/20
New
                                     adjusted 
                                     maximum 
                                     penalty 
                                     amountNational Defense Authorization Act for FY 2005, 10 U.S.C. 113, note
Unauthorized Activities Directed at or Possession of Sunken Military Craft
134,807
136,40010 U.S.C. 1094(c)(1)
Unlawful Provision of Health Care
11,837
11,97710 U.S.C. 1102(k)
Wrongful Disclosure—Medical Records:First Offense
6,999
7,082Subsequent Offense
46,663
47,21410 U.S.C. 2674(c)(2)
Violation of the Pentagon Reservation Operation and Parking of Motor Vehicles Rules and Regulations
1,928
1,95131 U.S.C. 3802(a)(1)
Violation Involving False Claim
11,665
11,80331 U.S.C. 3802(a)(2)
Violation Involving False Statement
11,665
11,80342 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)
False claims
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)
Claims submitted with a false certification of physician license
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)
Claims presented by excluded party
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2); (b)(2)(ii)
Employing or contracting with an excluded individual
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(1)
Pattern of claims for medically unnecessary services/supplies
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(2)
Ordering or prescribing while excluded
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(5)
Known retention of an overpayment
20,866
21,112.6442 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(4)
Making or using a false record or statement that is material to a false or fraudulent claim
104,330
105,563.1842 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(6)
Failure to grant timely access to OIG for audits, investigations, evaluations, or other statutory functions of OIG
31,300
31,669.9742 U.S.C. 1320a-7a(a); 32 CFR 200.210(a)(3)
Making false statements, omissions, misrepresentations in an enrollment application
104,330
105,563.1842 U.S.C. 1320a-7a(a); 32 CFR 200.310(a)
Unlawfully offering, paying, soliciting, or receiving remuneration to induce or in return for the referral of business in violation of 1128B(b) of the Social Security Act
104,330
105,563.18
 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