[Federal Register Volume 61, Number 249 (Thursday, December 26, 1996)]
[Rules and Regulations]
[Pages 67944-67946]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32564]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 269
Inflation Adjustment of Civil Monetary Penalties
AGENCY: Office of the Secretary, Department of Defense.
ACTION: Final rule.
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SUMMARY: This final rule adjusts the amount of each statutory civil
penalty subject to Department of Defense jurisdiction in accordance
with the requirements of the Federal Civil Penalties Inflation
Adjustment Act of 1990 as amended by the Debt Collection Improvement
Act of 1996.
EFFECTIVE DATE: January 27, 1997.
FOR FURTHER INFORMATION CONTACT: Mr. Tom Summers, Directorate for
Accounting Policy, Office of the Deputy Chief Financial Officer, Office
of the Under Secretary of Defense (Comptroller), 1100 Defense Pentagon,
Room 3A882, Washington, DC 20301-1100, (703) 697-0586 (e-mail address:
summerst@ousdc.osd.mil).
SUPPLEMENTARY INFORMATION: The Federal Civil Penalties Inflation
Adjustment Act of 1990 (FCPIAA), Public Law 101-410, 104 Stat. 890, 28
U.S.C. 2461, as amended by the Debt Collection Improvement Act of 1996
(DCIA), Public Law 104-134, April 26, 1996, requires the inflation
adjustment of Civil Monetary Penalties (CMP) to ensure that they
continue to maintain their deterrent value. The DCIA requires that not
later than 180 days after its enactment, and at least once every 4
years thereafter, the head of each agency shall, by regulation
published in the Federal Register, adjust each CMP within its
jurisdiction by the inflation adjustment described in the FCPIAA. The
inflation adjustment under the DCIA is to be determined by increasing
the maximum CMP by the cost-of-living adjustment, rounding to amounts
set forth in section 5(a) of the FCPIAA. The cost-of-living adjustment
is the percentage (if any) for each CMP by which the Consumer Price
Index (CPI) for the month of June of the calendar year preceding the
adjustment, exceeds the CPI for the month of June of the calendar year
in which the amount of such CMP was last set or adjusted pursuant to
law. The first adjustment to a CMP may not exceed 10 percent of such
penalty.
Any increased penalties shall apply only to violations which occur
after the date on which the increase takes effect.
A typical example of an inflation adjustment of a CMP is as
follows:
Title 10 U.S.C., section 1094(c)(1) imposes a maximum penalty of
$5,000 to a person who provides health care independently as a health-
care professional where that person does not have a current license to
provide such care. The term ``health care professional'' means
physician, dentist, clinical psychologist or nurse and any other person
providing direct patient care as may be designated by the
[[Page 67945]]
Secretary of Defense in regulations. The penalty was set in 1985. The
CPI for June 1985 and 322.3. The CPI for June 1995 is 456.7. The
inflation factor, therefore, is 456.7/322.3 or 1.42. The maximum
penalty amount after increase and statutory rounding would be $7,000
(1.42 x 5,000). The new maximum penalty amount after applying the 10
percent limit on an initial increase is $5,500.
A similar calculation was done with respect to each CMP subject to
the jurisdiction of the Department of Defense. In compliance with the
DCIA, the Department of Defense hereby is amending its religions by
creating this new part.
This final rule has been issued without prior public notice or
opportunity for public comment. The Administrative Procedure Act (5
U.S.C. 553(b)(B)) does not require that process ``when the agency for
good cause finds (and incorporates the finding and a brief statement of
reasons therefor in the rules issued) that notice and public procedure
thereon are impracticable, unnecessary, or contrary to the public
interest.'' In this instance, the Department of Defense finds for good
cause, that solicitation of public comment on this final rule is
unnecessary and impractical. The Congress has required that the agency
issue the amendments contained the rule, and provided no discretion to
the agency regarding the substance of the amendments. All that is
required of the Department of Defense for determination of the amount
of the inflation adjustment are ministerial computations.
It has been determined that 32 CFR part 269 is not a significant
rule as defined under section 3(f)(1) through 3(f)(4) of Executive
order 12866. The rule does not:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy; a sector of the
economy; productivity; competition; jobs; the environment; public
health or safety; or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandate, the President's priorities, or the principles set forth in
Executive Order 12866.
The Department of Defense certifies 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. This rule implements statutory authority
intended to protect the Department's programs from abusive practices,
but will have no adverse or disproportionate economic impact on small
businesses.
The Department of Defense certifies that this rule does not impose
any reporting or recordkeeping requirements under the Paperwork
Reduction Act of 1995.
List of Subjects in 32 CFR Part 269
Administrative practice and procedure, penalties.
Accordingly, Title 32, Chapter I, subchapter M of the Code of
Federal Regulations, is amended to add part 269 to read as follows:
PART 269--CIVIL MONETARY PENALTY INFLATION ADJUSTMENT
Sec.
269.1 Scope and purpose.
269.2 Definitions.
269.3 Civil monetary penalty inflation adjustment.
269.4 Cost of living adjustments of civil monetary penalties.
269.5 Application of increase to violations.
Authority: 28 U.S.C. 2461.
Sec. 269.1 Scope and purpose.
The purpose of this part is to establish a mechanism for the
regular adjustment for inflation of civil monetary penalties and to
adjust such penalties in conformity with the Federal Civil Penalties
Inflation Adjustment Act of 1990, 46 U.S.C. 2461, as amended by the
Debt Collection Improvement Act of 1996, Public Law 104-134, April 26,
1996, in order to maintain the deterrent effect of civil monetary
penalties and to promote compliance with the law.
Sec. 269.2 Definitions.
(a) Department. The Department of Defense.
(b) Civil monetary penalty. Any penalty, fine, or other sanction
that:
(1)(i) Is for a specific monetary amount as provided by Federal
law; or
(ii) Has a maximum amount provided by Federal law;
(2) Is assessed or enforced by the Department pursuant to Federal
law; and
(3) Is assessed or enforced pursuant to an administrative
proceeding or a civil action in the Federal Courts.
(c) Consumer Price Index. The index for all urban consumers
published by the Department of Labor.
Sec. 269.3 Civil monetary penalty inflation adjustment.
The Department shall, not later than 180 days after the enactment
of the Debt Collection Improvement Act on April 23, 1996, and at least
once every 4 years thereafter--
(a) By regulation adjustment each civil monetary penalty provided
by law within the jurisdiction of the Department of Defense by the
inflation adjustment described in Sec. 269.4; and
(b) Publish each such update in the Federal Register.
Sec. 269.4 Cost of living adjustments of civil monetary penalties.
(a) The inflation adjustment under Sec. 269.3 shall be determined
by increasing the maximum civil monetary penalty for each civil
monetary penalty by the cost-of-living adjustment. Any increase
determined under this paragraph shall be rounded to the nearest:
(1) Multiple of $10 in the case of penalties less than or equal to
$100;
(2) Multiple of $100 in the case of penalties greater than $100 but
less than or equal to $1,000;
(3) Multiple of $1,000 in the case of penalties greater than $1,000
but less than or equal to $10,000;
(4) Multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000;
(5) Multiple of $10,000 in the case of penalties greater than
$100,000 but less than or equal to $200,000; and
(6) Multiple of $25,000 in the case of penalties greater than
$200,000.
(b) For purposes of paragraph (a) of this section, the term ``cost-
of-living adjustment'' means the percentage (if any) for each civil
monetary penalty by which the Consumer Price Index for the month of
June of the calendar year preceding the adjustment, exceeds the
Consumer Price Index for the month of June of the calendar year in
which the amount of such civil monetary penalty was last set or
adjusted pursuant to law.
(c) Limitaiton on initial adjustment. The first adjustment of civil
monetary penalty pursuant to Sec. 269.3 may not exceed 10 percent of
such penalty.
(d) Inflation adjustment. Maximum civil monetary penalties within
the jurisdiction of the Department of Defense are adjusted for
inflation as follows:
[[Page 67946]]
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New
Maximum adjusted
United States Code citation Civil monetary penalty description penalty maximum
amount as penalty
of 10/23/96 amount
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10 U.S.C. 1094(c)(1).......................... Unlawful Provision of Health Care..... $5,000 $5,500
10 U.S.C. 1102(k)............................. Wrongful Disclosure--Medical Records:
First Offense......................... 3,000 3,300
Subsequent Offense.................... 20,000 22,000
31 U.S.C. 1352................................ Use of Appropriated Funds to Influence
Contract:
Minimum............................... 10,000 11,000
Maximum............................... 100,000 110,000
31 U.S.C. 3721(i)............................. Personal Property Loss Claims from 1,000 1,100
Government Personnel.
31 U.S.C. 3802(a)(1).......................... Program Fraud Civil Remedies Act/ 5,000 5,500
Violation Involving False Claim.
31 U.S.C. 3802(a)(2).......................... Program Fraud Civil Remedies Act/ 5,000 5,500
Violation Involving False Statement.
33 U.S.C. 1319(g)(2)(A)....................... Sec. 404 Permit Condition Violation, 10,000 11,000
Class I (per violation amount).
33 U.S.C. 1319(g)(2)(A)....................... Sec. 404 Permit Condition Violation, 25,000 27,500
Class I (maximum amount).
33 U.S.C. 1319(g)(2)(B)....................... Sec. 404 Permit Condition Violation, 10,000 11,000
Class II (per day amount).
33 U.S.C. 1319(g)(2)(B)....................... Sec. 404 Permit Condition Violation, 125,000 137,500
Class II (maximum amount).
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Sec. 269.5 Application of increase to violations.
Any increase in a civil monetary penalty under this part shall
apply only to violations which occur after the date the increase takes
effect.
Dated: December 18, 1996.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-32564 Filed 12-24-96; 8:45 am]
BILLING CODE 5000-04-M
