Rules of Practice and Procedure, 74573-74579 [2012-30251]

Agencies

• FEDERAL DEPOSIT INSURANCE CORPORATION

[Federal Register Volume 77, Number 242 (Monday, December 17, 2012)]
[Rules and Regulations]
[Pages 74573-74579]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30251]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 308 and 390


Rules of Practice and Procedure

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Civil Penalties Inflation Adjustment Act of 1990, 
as amended, requires all Federal agencies that have statutory authority 
to impose civil money penalties (CMPs), every four years, to publish, 
as adjusted for inflation, the maximum authorized amount of those CMPs. 
The Federal Deposit Insurance Corporation (FDIC) last adjusted the 
maximum amounts of CMPs under its jurisdiction in 2008. The FDIC is 
issuing this final rule to publish the adjusted maximum CMPs.

DATES: This rule is effective on December 31, 2012.

FOR FURTHER INFORMATION CONTACT: Carl J. Gold, Counsel, Legal Division 
(202) 898-8702, or David Chapman, Chief Statistician, (703) 254-0227, 
Division of Insurance and Research.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Debt Collection Improvement Act of 1996 (DCIA) amended section 
4 of the Federal Civil Penalties Inflation Adjustment Act of 1990 
(Inflation Adjustment Act) (28 U.S.C. 2461 note), to require the head 
of each Federal agency, by regulation published within 180 days of the 
enactment of the DCIA, and at least once every four years thereafter, 
to adjust the maximum authorized amount of each CMP which the agency is 
authorized to assess. The agency is required to use the inflation 
adjustment formula set forth in section 5(b) of the Inflation 
Adjustment Act.
    To satisfy the requirements of the DCIA, the FDIC is amending part 
308 of its regulations (12 CFR part 308) of its regulations pertaining 
to its Rules of Practice and Procedure that address CMPs. The amount of 
each CMP that the FDIC has jurisdiction to impose has been increased 
according to the prescribed formula, or maintained at the previous 
level if warranted. The penalties specified in part 308 of the FDIC's 
regulations were last adjusted in 2008 (73 FR 73153, Dec. 2, 2008).
    In addition, the FDIC is amending Part 390 of its regulations (12 
CFR part 390) to adjust the maximum authorized CMP amounts it may 
assess against State savings associations under applicable laws. Title 
III of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 
2010 (Dodd-Frank Act) transferred the functions, powers, and duties of 
the Office of Thrift Supervision (OTS) relating to State savings 
associations to the FDIC effective one year after July 21, 2010, the 
date that the Dodd-Frank Act was enacted. The Dodd-Frank Act also 
amended section 3 of the Federal Deposit Insurance Act (FDI Act) to 
designate the FDIC as the ``appropriate Federal banking agency'' for 
State savings associations. The FDIC transferred 12 CFR 509.103, the 
OTS regulation that prescribed procedures regarding assessment of CMPs 
against State savings associations, and the maximum permissible CMP 
amounts, to new part 390 of the FDIC's regulations. See 76 FR 47652 
(Aug. 5, 2011). The amounts in the OTS regulation were last adjusted in 
2008, and therefore are also subject to review and adjustment as 
provided by the DCIA.
    Any increase in penalty amounts under the DCIA shall apply only to 
violations that occur after the effective date of the amended 
regulations.

Summary of Calculation

    The Inflation Adjustment Act requires that each CMP amount be 
increased by the ``cost of living'' adjustment, which is defined as the 
percentage by which the Consumer Price Index (CPI-U) \1\ 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 the 
CMP was last set or adjusted pursuant to law. Any increase is to be 
rounded to the nearest multiple of: (A) $10 in the case of penalties 
less than or equal to $100; (B) $100 in the case of penalties greater 
than $100, but less than or equal to $1,000; (C) $1,000 in the case of 
penalties greater than $1,000, but less than or equal to $10,000; (D) 
$5,000 in the case of penalties greater than $10,000, but less than or 
equal to $100,000; (E) $10,000 in the case of penalties greater than 
$100,000, but less than or equal to $200,000; and (F) $25,000 in the 
case of penalties greater than $200,000. Under the DCIA, the first time 
that a CMP was adjusted following implementation of the DCIA in 1996, 
the increase could not exceed ten percent of the then-current original 
penalty amount, even though the intervening cost-of-living exceeded ten 
percent. As a general matter, under the DCIA, a particular CMP will not 
be increased for inflation or cost-of-living when the ``rounding'' 
process fails to reach the level warranting adjustment, as shown in the 
Summary of Adjustments chart below. In those cases, a particular CMP 
might be increased at a subsequent future quadrennial adjustment, when 
the level of inflation for the years since the last prior adjustment is 
taken into account. An example of the computation steps is found at 73 
FR 73153 (Dec. 2, 2008), which published the FDIC's adjustments of CMPs 
in 2008.
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    \1\ The CPI-U is compiled by the Bureau of Statistics of the 
Department of Labor. To calculate the adjustment, the FDIC used the 
Department of Labor, Bureau of Labor Statistics B All Urban 
Consumers tables to arrive at the CPI-U values.
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Summary of Adjustments

    Under the Inflation Adjustment Act, the FDIC must adjust for 
inflation the maximum civil monetary penalties which it has authority 
to assess under the FDIA and other statutes. The

[[Page 74574]]

following chart displays the adjusted civil money penalty amounts for 
the enumerated statutes. The amounts in this chart apply to violations 
that occur after December 31, 2012:

------------------------------------------------------------------------
                                     Current maximum      New maximum
        U.S. Code citation                amount             amount
------------------------------------------------------------------------
12 U.S.C. 1464(v), 1817(a):
    Tier One CMP..................              2,200              3,200
    Tier Two CMP..................             32,000             32,000
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 1464(v), 1817(c):
    Tier One CMP..................              2,200              3,200
    Tier Two CMP..................             32,000             32,000
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 1817(j):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 1818(i)(2):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 1467(d), 1820(e)(4).....              7,500              7,500
12 U.S.C. 1820(k)(6)..............            275,000            275,000
12 U.S.C. 1828(a)(3)..............                110                110
12 U.S.C. 1828(h).................                100                100
12 U.S.C. 1829b(j)................             16,000             16,000
12 U.S.C. 1832(c).................              1,100              1,100
12 U.S.C. 1884....................                110                110
12 U.S.C. 1972(2)(F):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 3108(b):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
12 U.S.C. 3349(b):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
    12 U.S.C. 3909(d).............              1,100              1,100
12 U.S.C. 4717(b):
    Tier One CMP..................              7,500              7,500
    Tier Two CMP..................             37,500             37,500
    Tier Three CMP................          1,375,000          1,425,000
15 U.S.C. 78u-2:
    Tier One CMP (individuals)....              7,500              7,500
    Tier One CMP (others).........             70,000             70,000
    Tier Two CMP (individuals)....             70,000             70,000
    Tier Two CMP (others).........            140,000            140,000
    Tier Three CMP (individuals)..            350,000            350,000
    Tier Three penalty (others)...            675,000            700,000
    31 U.S.C. 3802................              7,500              7,500
42 U.S.C. 4012a(f):
    Maximum CMP per violation.....                385               2000
------------------------------------------------------------------------


------------------------------------------------------------------------
                                     Current maximum      New maximum
           CFR Citation                   amount             amount
------------------------------------------------------------------------
                        12 CFR 308.132(c)(2)(i):
 
       First Offense--Reports of Condition & Income (Call Reports)
------------------------------------------------------------------------
$25 million or more assets 1 to 15                330                330
 days late........................
$25 million or more assets 16 or                  660                660
 more days late...................
under $25 million assets 1 to 15                  110                110
 days late........................
under $25 million assets 16 or                    220                220
 more days late...................
------------------------------------------------------------------------
    Subsequent Offenses--Reports of Condition & Income (Call Reports)
------------------------------------------------------------------------
$25 million or more assets 1 to 15                550                550
 days late........................
$25 million or more assets 16 or                1,100              1,100
 more days late...................
------------------------------------------------------------------------


[[Page 74575]]

II. Summary of Key Amendments

    The following analysis discusses only those sections of the 
regulation where at least one of the maximum CMPs (e.g. Tier Three in 
the case of a multi-tiered CMP) is increasing or there is another 
pertinent change to the regulatory text. While there has been inflation 
as measured by the applicable index, many maximum CMPs are not 
increasing because of the rounding rules in the Inflation Adjustment 
Act. As noted, with the exception of flood insurance-related CMP 
amounts, which are already effective due to a recent statutory 
amendment, any increase in maximum CMP amounts will apply to violations 
and other acts and omissions covered by the various laws and 
regulations cited herein, that occur after December 31, 2012.

Section 308.116(b)

    Section 308.116(b)(4) pertains to the amount of CMPs that may be 
assessed for violations of the Change in Bank Control Act of 1978 (12 
U.S.C. 1817(j)). This section has been amended by increasing the Tier 
Three CMP amount from $1,375,000 to $1,425,000 for each day that the 
violation continues or, in the case of a depository institution, 
increasing the CMP from an amount not to exceed the lesser of 
$1,425,000 or one percent of the total assets of the institution for 
each day that the violation continues. No change has been made to the 
Tier One or Tier Two CMP amount.

Section 308.132

    Section 308.132 sets forth the procedure by which the FDIC assesses 
CMPs, and lists the maximum CMPs for violations other than those 
covered by Sec.  308.116. Paragraph (c) is being amended in various 
places to change the word ``bank'' to ``institution''. This reflects 
that, as noted above, the Dodd-Frank Act made the FDIC the appropriate 
Federal banking agency for State savings associations as well as State 
nonmember banks and other institutions. As of March 2012, savings 
associations have been required to file Call Reports instead of Thrift 
Financial Reports with their appropriate Federal banking agency. The 
changes in the provisions that are discussed in the following 
paragraphs reflect that change.
    Paragraph (c)(2) of Sec.  308.132 pertains to the CMPs imposed 
pursuant to section 7(a) of the FDIA (12 U.S.C. 1817(a)) or section 5 
of the Home Owners' Loan Act (12 U.S.C. 1464(v)) for the late filing of 
Reports of Condition and Income (Call Reports) or for the submission of 
false or misleading Call Reports or information. With respect to late 
filings of Call Reports, paragraph (c)(2)(i) of Sec.  308.132 has been 
amended to reflect the increase in the Tier One CMPs from $2,200 for 
each day the violation continues to $3,200 for each day the violation 
continues.
    Tier Two CMPs for failure to file call reports under paragraph 
(c)(2)(ii) of Sec.  308.132 have not been adjusted. Paragraph 
(c)(2)(iii) of Sec.  308.132 pertains to CMPs for the submission of 
false or misleading Call Reports or information. Paragraph 
(c)(2)(iii)(A) of that section has been amended to reflect the increase 
in the Tier One CMP amount from a maximum of $2,200 per day for each 
day that the information is not corrected to a maximum of $3,200 per 
day for each day that the information is not corrected. No change has 
been made to the Tier Two CMP amount.
    Paragraph (c)(2)(iii)(C) of Sec.  308.132 reflects the increase in 
Tier Three CMPs from an amount not to exceed the lesser of $1,375,000 
or one percent of the total assets of the institution for each day the 
information is not corrected, to an amount not to exceed the lesser of 
$1,425,000 or one percent of the total assets of such institution for 
each day the information is not corrected.
    Paragraph (c)(3)(i) of Sec.  308.132 sets forth the increases for 
CMPs assessed pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 
1818(i)(2)). A Tier Three CMP will increase from an amount not to 
exceed, in the case of any person other than an insured depository 
institution, $1,375,000 to a maximum of $1,425,000 or, in the case of 
any insured depository institution, the amount will increase from a 
maximum of $1,375,000 to $1,425,000 or an amount not to exceed the 
lesser of $1,425,000 or one percent of the total assets of such 
institution for each day during which the violation, practice, or 
breach continues. No change has been made to the Tier One or Tier Two 
CMP amount.
    Paragraph (c)(3)(i)(A) of Sec.  308.132 lists a number of statutes 
which grant jurisdiction to the FDIC to assess CMPs under section 
8(i)(2) of the FDIA, including the Home Mortgage Disclosure Act (12 
U.S.C. 2804 et seq. and 12 CFR 203.6), the Expedited Funds Availability 
Act (12 U.S.C. 4001 et seq.), the Truth in Savings Act (12 U.S.C. 4301 
et seq.), the Real Estate Settlement Procedures Act (12 U.S.C. 2601 et 
seq. and 12 CFR 3500), the Truth in Lending Act (15 U.S.C. 1601 et 
seq.), the Fair Credit Reporting Act (15 U.S.C. 1681 et seq.), the 
Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), the Fair Debt 
Collection Practices Act (15 U.S.C. 1692 et seq.), the Electronic Funds 
Transfer Act (15 U.S.C. 1693 et seq.), and the Fair Housing Act (42 
U.S.C. 3601 et seq.). Increases in the amount of any CMP that the FDIC 
may assess for violation of those statutes are the same as the 
increases for CMPs under section 8(i)(2) of the FDIA (12 U.S.C. 
1818(i)(2)) cited above. As in section 8(i)(2) of the FDIA, only the 
Tier Three CMP amount will increase accordingly.
    Paragraph (c)(3)(ii) of Sec.  308.132 reflects the increases in CMP 
amounts that may be assessed pursuant to section 7(c) of the FDIA (12 
U.S.C. 1817(c)) for late filing or the submission of false or 
misleading certified statements. A Tier One CMP pursuant to section 
7(c)(4)(A) of the FDIA (12 U.S.C. 1817(c)(4)(A)) will increase from an 
amount not to exceed $2,200 per day to an amount not to exceed $3,200 
for each day during which the failure to file continues or the false or 
misleading information is not corrected. A Tier Three CMP will increase 
from an amount not to exceed, in the case of any person other than an 
insured depository institution, $1,375,000 to a maximum of $1,425,000 
or, in the case of any insured depository institution, the amount will 
increase from a maximum of $1,375,000 to $1,425,000 or an amount not to 
exceed the lesser of $1,425,000 or one percent of the total assets of 
such institution for each day during which the violation, practice, or 
breach continues. No change has been made to the Tier Two CMP amount.
    Paragraph (c)(3)(ix) of Sec.  308.132 sets forth the increases in 
the CMP amounts that may be assessed pursuant to the Bank Holding 
Company Act of 1970 for prohibited tying arrangements. A Tier Three CMP 
which may be assessed pursuant to 12 U.S.C. 1972(2)(F)(iii) will 
increase from an amount not to exceed, in the case of any person other 
than an insured depository institution, $1,375,000 for each day during 
which the violation, practice, or breach continues, to an amount not to 
exceed $1,425,000 for each day during which the violation, practice, or 
breach continues. In the case of any insured depository institution, a 
Tier Three CMP will increase from an amount not to exceed the lesser of 
$1,375,000 or one percent of the total assets of such institution for 
each day during which the violation, practice, or breach continues, to 
an amount not to exceed the lesser of $1,425,000 or one percent of the 
total assets of such institution for each day during which the 
violation, practice, or breach continues. No change has been made to 
the Tier One or Tier Two CMP amount.

[[Page 74576]]

    Paragraph (c)(3)(x) of Sec.  308.132 pertains to the assessment of 
CMPs under the International Banking Act of 1978 (IBA) (12 U.S.C. 
3108(b)), for failure to comply with the requirements of the IBA, 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). For 
each day that a violation continues, the amount of a Tier Three CMP 
will increase from $1,375,000 to $1,425,000. No change has been made to 
the Tier One or Tier Two CMP amount.
    Paragraph (c)(3)(xi) of Sec.  308.132 sets forth the increase in 
CMP amounts that may be assessed pursuant to section 8(i)(2) of the 
FDIA (12 U.S.C. 1818(i)(2)), as made applicable by 12 U.S.C. 3349(b), 
where a financial institution seeks, obtains, or gives any other thing 
of value in exchange for the performance of an appraisal by a person 
that the institution knows is not a state certified or licensed 
appraiser in connection with a federally-related transaction. For each 
day that a violation continues, the amount of a Tier Three CMP will 
increase from $1,375,000 to $1,425,000. No change has been made to the 
Tier One or Tier Two CMP amount.
    Paragraph (c)(3)(xiii) of Sec.  308.132 states that pursuant to the 
Community Development Banking and Financial Institution Act (CDBA) (12 
U.S.C. 4717(b)) a CMP may be assessed for violation of the CDBA 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). For 
each day that a violation continues, the amount of a Tier Three CMP 
will increase from $1,375,000 to $1,425,000. No change has been made to 
the Tier One or Tier Two CMP amount.
    Paragraph (c)(3)(xiv) of Sec.  308.132 states that pursuant to 
section 21B of the Securities Exchange Act of 1934 (Exchange Act) (15 
U.S.C. 78u-2), CMPs may be assessed for violations of certain 
provisions of the Exchange Act, where such penalties are in the public 
interest. The Tier Three CMPs that may be assessed pursuant to 15 
U.S.C. 78u-2(b)(3) for each violation set forth in 15 U.S.C. 78u-2(a) 
are currently an amount not to exceed $350,000 for a natural person or 
$675,000 for any other person, if the act or omission involved fraud, 
deceit, manipulation, or deliberate or reckless disregard of a 
regulatory requirement, and such act or omission directly or indirectly 
resulted in substantial losses, or created a significant risk of 
substantial losses to other persons or resulted in substantial 
pecuniary gain to the person who committed the act or omission. The 
amount for a natural person will not be increased. The amount for any 
other person will increase to $700,000. No change has been made to the 
Tier One or Tier Two CMP amount.
    Paragraph (c)(3)(xvi) of Sec.  308.132 states that CMPs may be 
assessed pursuant to the Flood Disaster Protection Act (FDPA) (42 
U.S.C. 4012a(f)) against any regulated lending institution that engages 
in a pattern or practice of violations of the FDPA. In Sec.  100208 of 
the Biggert-Waters Flood Insurance Reform Act of 2012,\2\ Congress 
increased the maximum CMP prescribed in 42 U.S.C. 4012a(f)(5) per 
violation from $385 to $2,000, and eliminated the $135,000 cap on the 
total amount of penalties assessed against a single regulated lender in 
any calendar year. These amendments took effect on July 1, 2012. 
Accordingly, the maximum amount for violating 42 U.S.C. 4012a(f)(5) is 
$2,000 per violation.
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    \2\ Public Law 112-241, 126 Stat. 405 (July 6, 2012).
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Section 390.74

    The FDIC finds that it is unnecessary to maintain 12 CFR 390.74(c), 
which sets forth the maximum CMP amounts that may be assessed against 
State savings associations under various statutes, as a separate 
subsection. As noted above, the Dodd-Frank Act made the FDIC the 
appropriate Federal banking agency for State savings associations. As 
such, most of potential CMP amounts for which inflation-adjusted 
maximum CMP amounts are listed in subsection 390.74(c) are authorized 
by the same statutes that authorize the FDIC to assess CMPs against 
State nonmember banks and other entities that were already under the 
FDIC's supervision before the Dodd-Frank Act. In two cases, CMPs 
against State savings associations are authorized by statutes specific 
to savings associations (12 U.S.C. 1464, which authorizes CMPs for non-
filing or late filing of reports of condition, and 12 U.S.C. 1467, 
which authorizes CMPs for refusal of an affiliate to cooperate with an 
examination). All of the inflation adjustments being made under 
parallel statutes that apply to State nonmember banks are the same as 
those that need to be made for State savings associations. Accordingly, 
the maximum permissible CMP amounts for State savings associations 
following the effective date of this regulation will be found in Part 
308.

III. Exemption From Public Notice and Comment

    Since the law requires the FDIC to amend its rules, provides the 
specific adjustments to be made and leaves the FDIC no discretion in 
calculating the amount of those adjustments, the changes are 
ministerial, technical, and noncontroversial. The FDIC has thus 
determined for good cause that public notice and comment is unnecessary 
and impracticable under the Administrative Procedure Act (5 U.S.C. 
553(b)(3)(B)), and that the rule should be published in the Federal 
Register as a final rule.

IV. Effective Date

    For the same reasons that the FDIC for good cause has determined 
that public notice and comment is unnecessary and impractical, the FDIC 
also finds that it has good cause to adopt an effective date that would 
be less than 30 days after the date of publication in the Federal 
Register pursuant to the APA (5 U.S.C. 553(d)). In the interest of 
fairness, however, the increase in the maximum amount of civil money 
penalties in this regulation applies only to violations that occur 
after December 31, 2012, rather than to violations that occur 
immediately after the date of publication of this rule in the Federal 
Register. While section 302 of the Riegle Community Development and 
Regulatory Improvement Act of 1994 (12 U.S.C. 4802) states that a final 
rule imposing new requirements must take effect on the first day of a 
calendar quarter following its publication, this rule does not impose 
any additional compliance, reporting or other new substantive 
requirements. Therefore section 302 is inapplicable.

V. Regulatory Flexibility Act

    An initial regulatory flexibility analysis under the Regulatory 
Flexibility Act (RFA) (5 U.S.C. 603) is required only when an agency 
must publish a general notice of proposed rulemaking. As already noted, 
the FDIC has determined that publication of a notice of proposed 
rulemaking is not necessary for this final rule. Accordingly, the RFA 
does not require an initial regulatory flexibility analysis. 
Nevertheless, the FDIC has considered the likely impact of the rule on 
small entities and believes that the rule will not have a significant 
impact on a substantial number of small entities.

VI. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Pub. L. 104-121, 110 Stat. 857) provides generally for 
agencies to report rules to Congress and for Congress to review such 
rules. The reporting requirement is triggered in instances where the 
FDIC issues a final rule as defined by the APA (5 U.S.C. 551 et seq.). 
Because the FDIC is issuing a

[[Page 74577]]

final rule as defined by the APA, the FDIC will file the reports 
required by the SBREFA.
    The Office of Management and Budget has determined that this final 
revision to 12 CFR 308 does not constitute a ``major'' rule as defined 
by the statute.

VII. The Treasury and General Government Appropriations Act, 1999 
Assessment of Federal Regulations and Policies on Families

    The FDIC has determined that this final rule will not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999 (Pub. L. 105-277, 112 Stat. 
2681 (1998)).

VIII. Paperwork Reduction Act

    No collection of information pursuant to section 3504(h) of the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) is contained 
in this rule. Consequently, no information has been submitted to the 
Office of Management and Budget for review.

List of Subjects in 12 CFR Part 308

    Administrative practice and procedure, Banks, Banking, Claims, 
Crime, Equal access to justice, Ex parte communications, Hearing 
procedure, Lawyers, Penalties, State nonmember banks.

    For the reasons set out in the preamble, the FDIC amends 12 CFR 
part 308 as follows:

PART 308--RULES OF PRACTICE AND PROCEDURE

0
1. The authority for part 308 continues to read as follows:

    Authority:  5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1831i, 1831m(g)(4), 
1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 
4717; 15 U.S.C. 78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 
78u-2, 78u-3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 
U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104-134, 
110 Stat. 1321-358.


Sec.  308.116  [Amended]

0
2. In Sec.  308.116:
0
a. Paragraph (b)(4) introductory text is amended by removing ``December 
31, 2008'' and adding ``December 31, 2012'' in its place
0
b. Paragraph (b)(4)(iii)(A) is amended by removing ``$1,375,000'' and 
adding ``$1,425,000'' in its place; and
0
c. Paragraph (b)(4)(iii)(B) is amended by removing ``$1,375,000'' and 
adding ``$1,425,000'' in its place.
0
3. Revise Sec.  308.132 to read as follows:


Sec.  308.132  Assessment of penalties.

    (a) Scope. The rules and procedures of this subpart, subpart B of 
the Local Rules, and the Uniform Rules shall apply to proceedings to 
assess and collect civil money penalties.
    (b) Relevant considerations. In determining the amount of the civil 
penalty to be assessed, the Board of Directors or its designee shall 
consider the financial resources and good faith of the institution or 
official, the gravity of the violation, the history of previous 
violations, and any such other matters as justice may require.
    (c) Amount. (1) The Board of Directors or its designee may assess 
civil money penalties pursuant to section 8(i) of the FDIA (12 U.S.C. 
1818(i)), and Sec.  308.01(e)(1) of the Uniform Rules (this part).
    (2) The Board of Directors or its designee may assess civil money 
penalties pursuant to section 7(a) of the FDIA (12 U.S.C. 1817(a)) or 
section 5 of the Home Owners' Loan Act (12 U.S.C. 1464(v)) as follows:
    (i) Late filing--Tier One penalties. In cases in which an 
institution fails to make or publish its Report of Condition and Income 
(Call Report) within the appropriate time periods, a civil money 
penalty of not more than $3,200 per day may be assessed where the 
institution maintains procedures in place reasonably adapted to avoid 
inadvertent error and the late filing occurred unintentionally and as a 
result of such error; or the institution inadvertently transmitted a 
Call Report which is minimally late. Pursuant to the Debt Collection 
Improvement Act of 1996, for violations of this paragraph (c)(2)(i) 
which occur after December 31, 2012, the following maximum Tier One 
penalty amounts contained in paragraphs (c)(2)(i)(A) and (B) of this 
section shall apply for each day that the violation continues.
    (A) First offense. Generally, in such cases, the amount assessed 
shall be $330 per day for each of the first 15 days for which the 
failure continues, and $660 per day for each subsequent day the failure 
continues, beginning on the sixteenth day. For institutions with less 
than $25,000,000 in assets, the amount assessed shall be the greater of 
$110 per day or 1/1000th of the institution's total assets (1/10th of a 
basis point) for each of the first 15 days for which the failure 
continues, and $220 or 1/500th of the institution's total assets, \1/5\ 
of a basis point) for each subsequent day the failure continues, 
beginning on the sixteenth day.
    (B) Subsequent offense. Where the institution has been delinquent 
in making or publishing its Call Report within the preceding five 
quarters, the amount assessed for the most current failure shall 
generally be $550 per day for each of the first 15 days for which the 
failure continues, and $1,100 per day for each subsequent day the 
failure continues, beginning on the sixteenth day. For institutions 
with less than $25,000,000 in assets, those amounts, respectively, 
shall be 1/500th of the bank's total assets and 1/250th of the 
institution's total assets.
    (C) Mitigating factors. The amounts set forth in paragraph 
(c)(2)(i)(A) of this section may be reduced based upon the factors set 
forth in paragraph (b) of this section.
    (D) Lengthy or repeated violations. The amounts set forth in this 
paragraph (c)(2)(i) will be assessed on a case by case basis where the 
amount of time of the institution's delinquency is lengthy or the 
institution has been delinquent repeatedly in making or publishing its 
Call Reports.
    (E) Waiver. Absent extraordinary circumstances outside the control 
of the institution, penalties assessed for late filing shall not be 
waived.
    (ii) Late-filing--Tier Two penalties. Where an institution fails to 
make or publish its Call Report within the appropriate time period, the 
Board of Directors or its designee may assess a civil money penalty of 
not more than $32,000 per day for each day the failure continues.
    (iii) False or misleading reports or information. (A) Tier One 
penalties. In cases in which an institution submits or publishes any 
false or misleading Call Report or information, the Board of Directors 
or its designee may assess a civil money penalty of not more than 
$3,200 per day for each day the information is not corrected, where the 
institution maintains procedures in place reasonably adapted to avoid 
inadvertent error and the violation occurred unintentionally and as a 
result of such error; or the institution inadvertently transmits a Call 
Report or information which is false or misleading.
    (B) Tier Two penalties. Where an institution submits or publishes 
any false or misleading Call Report or other information, the Board of 
Directors or its designee may assess a civil money penalty of not more 
than $32,000 per day for each day the information is not corrected.
    (C) Tier Three penalties. Where an institution knowingly or with 
reckless disregard for the accuracy of any Call Report or information 
submits or publishes any false or misleading Call Report or other 
information, the Board of Directors or its designee may assess

[[Page 74578]]

a civil money penalty of not more than the lesser of $1,425,000 or 1 
percent of the institution's total assets per day for each day the 
information is not corrected.
    (D) Mitigating factors. The amounts set forth in this paragraph 
(c)(2) may be reduced based upon the factors set forth in paragraph (b) 
of this section.
    (3) Adjustment of civil money penalties by the rate of inflation 
pursuant to section 31001(s) of the Debt Collection Improvement Act. 
Pursuant to section 31001(s) of the Debt Collection Improvement Act, 
for violations which occur after December 31, 2012, the Board of 
Directors or its designee may assess civil money penalties in the 
maximum amounts as follows:
    (i) Civil money penalties assessed pursuant to section 8(i)(2) of 
the FDIA. Tier One civil money penalties may be assessed pursuant to 
section 8(i)(2)(A) of the FDIA (12 U.S.C. 1818(i)(2)(A)) in an amount 
not to exceed $7,500 for each day during which the violation continues. 
Tier Two civil money penalties may be assessed pursuant to section 
8(i)(2)(B) of the FDIA (12 U.S.C. 1818(i)(2)(B)) in an amount not to 
exceed $37,500 for each day during which the violation, practice or 
breach continues. Tier Three civil money penalties may be assessed 
pursuant to section 8(i)(2)(C) (12 U.S.C. 1818(i)(2)(C)) in an amount 
not to exceed, in the case of any person other than an insured 
depository institution $1,425,000 or, in the case of any insured 
depository institution, an amount not to exceed the lesser of 
$1,375,000 or 1 percent of the total assets of such institution for 
each day during which the violation, practice, or breach continues.
    (A) Civil money penalties may be assessed pursuant to section 
8(i)(2) of the FDIA in the amounts set forth in this paragraph 
(c)(3)(i) for violations of various consumer laws, including, the Home 
Mortgage Disclosure Act (12 U.S.C. 2804 et seq. and 12 CFR 203.6), the 
Expedited Funds Availability Act (12 U.S.C. 4001 et seq.), the Truth in 
Savings Act (12 U.S.C. 4301 et seq.), the Real Estate Settlement 
Procedures Act (12 U.S.C. 2601 et seq. and 12 CFR part 3500), the Truth 
in Lending Act (15 U.S.C. 1601 et seq.), the Fair Credit Reporting Act 
(15 U.S.C. 1681 et seq.), the Equal Credit Opportunity Act (15 U.S.C. 
1691 et seq.), the Fair Debt Collection Practices Act (15 U.S.C. 1692 
et seq.), the Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.) 
and the Fair Housing Act (42 U.S.C. 3601 et seq.) in the amounts set 
forth in paragraphs (c)(3)(i) through (iii) of this section.
    (B) [Reserved]
    (ii) Civil money penalties assessed pursuant to section 7(c) of the 
FDIA for late filing or the submission of false or misleading certified 
statements. Tier One civil money penalties may be assessed pursuant to 
section 7(c)(4)(A) of the FDIA (12 U.S.C. 1817(c)(4)(A)) or section 
5(v)(4) (12 U.S.C. 1464(v)(4) in an amount not to exceed $3,200 for 
each day during which the failure to file continues or the false or 
misleading information is not corrected. Tier Two civil money penalties 
may be assessed pursuant to section 7(c)(4)(B) of the FDIA (12 U.S.C. 
1817(c)(4)(B)) in an amount not to exceed $32,000 for each day during 
which the failure to file continues or the false or misleading 
information is not corrected. Tier Three civil money penalties may be 
assessed pursuant to section 7(c)(4)(C) in an amount not to exceed the 
lesser of $1,425,000 or 1 percent of the total assets of the 
institution for each day during which the failure to file continues or 
the false or misleading information is not corrected.
    (iii) Civil money penalties assessed pursuant to section 10(e)(4) 
of the FDIA for refusal to allow examination or to provide required 
information during an examination. Pursuant to section 10(e)(4) of the 
FDIA (12 U.S.C. 1820(e)(4)), civil money penalties may be assessed 
against any affiliate of an insured depository institution which 
refuses to permit a duly-appointed examiner to conduct an examination 
or to provide information during the course of an examination as set 
forth in section 20(b) of the FDIA (12 U.S.C. 1820(b)), in an amount 
not to exceed $7,500 for each day the refusal continues.
    (iv) Civil money penalties assessed pursuant to section 18(a)(3) of 
the FDIA, for incorrect display of insurance logo. Pursuant to section 
18(a)(3) of the FDIA (12 U.S.C. 1828(a)(3)), civil money penalties may 
be assessed against an insured depository institution which fails to 
correctly display its insurance logo pursuant to that section, in an 
amount not to exceed $110 for each day the violation continues.
    (v) Civil money penalties assessed pursuant to section 18(h) of the 
FDI Act for failure to timely pay assessment. (A) In General. Subject 
to paragraph (c)(3)(v)(C) of this section, any insured depository 
institution which fails or refuses to pay any assessment shall be 
subject to a penalty in an amount of not more than 1 percent of the 
amount of the assessment due for each day that such violation 
continues.
    (B) Exception in case of dispute. Paragraph (c)(3)(v)(A) of this 
section shall not apply if--
    (1) The failure to pay an assessment is due to a dispute between 
the insured depository institution and the Corporation over the amount 
of such assessment; and
    (2) The insured depository institution deposits security 
satisfactory to the Corporation for payment upon final determination of 
the issue.
    (C) Special rule for small assessment amounts. If the amount of the 
assessment which an insured depository institution fails or refuses to 
pay is less than $10,000 at the time of such failure or refusal, the 
amount of any penalty to which such institution is subject under 
paragraph (c)(3)(v)(A) of this section shall not exceed $100 for each 
day that such violation continues.
    (D) Authority to modify or remit penalty. The Corporation, in the 
sole discretion of the Corporation, may compromise, modify or remit any 
penalty which the Corporation may assess or has already assessed under 
paragraph (c)(3)(v)(A) of this section upon a finding that good cause 
prevented the timely payment of an assessment.
    (vi) Civil money penalties assessed pursuant to section 19b(j) of 
the FDIA for recordkeeping violations. Pursuant to section 19b(j) of 
the FDIA (12 U.S.C. 1829b(j)), civil money penalties may be assessed 
against an insured depository institution and any director, officer or 
employee thereof who willfully or through gross negligence violates or 
causes a violation of the recordkeeping requirements of that section or 
its implementing regulations in an amount not to exceed $16,000 per 
violation.
    (vii) Civil fine pursuant to 12 U.S.C. 1832(c) for violation of 
provisions forbidding interest-bearing demand deposit accounts. 
Pursuant to 12 U.S.C. 1832(c), any depository institution which 
violates the prohibition on deposit or withdrawal from interest-bearing 
accounts via negotiable or transferable instruments payable to third 
parties shall be subject to a fine of $1,100 per violation.
    (viii) Civil penalties for violations of security measure 
requirements under 12 U.S.C. 1884. Pursuant to 12 U.S.C. 1884, an 
institution which violates a rule establishing minimum security 
requirements as set forth in 12 U.S.C. 1882, shall be subject to a 
civil penalty not to exceed $110 for each day of the violation.
    (ix) Civil money penalties assessed pursuant to the Bank Holding 
Company Act of 1970 for prohibited tying arrangements. Pursuant to the 
Bank

[[Page 74579]]

Holding Company Act of 1970, Tier One civil money penalties may be 
assessed pursuant to 12 U.S.C. 1972(2)(F)(i) in an amount not to exceed 
$7,500 for each day during which the violation continues. Tier Two 
civil money penalties may be assessed pursuant to 12 U.S.C. 
1972(2)(F)(ii) in an amount not to exceed $37,500 for each day during 
which the violation, practice or breach continues. Tier Three civil 
money penalties may be assessed pursuant to 12 U.S.C. 1972(2)(F)(iii) 
in an amount not to exceed, in the case of any person other than an 
insured depository institution $1,375,000 for each day during which the 
violation, practice, or breach continues or, in the case of any insured 
depository institution, an amount not to exceed the lesser of 
$1,425,000 or 1 percent of the total assets of such institution for 
each day during which the violation, practice, or breach continues.
    (x) Civil money penalties assessed, pursuant to the International 
Banking Act of 1978. Pursuant to the International Banking Act of 1978 
(IBA) (12 U.S.C. 3108(b)), civil money penalties may be assessed for 
failure to comply with the requirements of the IBA pursuant to section 
8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)), in the amounts set forth in 
paragraph (c)(3)(i) of this section.
    (xi) Civil money penalties assessed for appraisal violations. 
Pursuant to 12 U.S.C. 3349(b), where a financial institution seeks, 
obtains, or gives any other thing of value in exchange for the 
performance of an appraisal by a person that the institution knows is 
not a state certified or licensed appraiser in connection with a 
federally related transaction, a civil money penalty may be assessed 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)) in the 
amounts set forth in paragraph (c)(3)(i) of this section.
    (xii) Civil money penalties assessed pursuant to International 
Lending Supervision Act. Pursuant to the International Lending 
Supervision Act (ILSA) (12 U.S.C. 3909(d)), the CMP that may be 
assessed against any institution or any officer, director, employee, 
agent or other person participating in the conduct of the affairs of 
such institution is an amount not to exceed $1,100 for each day a 
violation of the ILSA or any rule, regulation or order issued pursuant 
to ILSA continues.
    (xiii) Civil money penalties assessed for violations of the 
Community Development Banking and Financial Institution Act. Pursuant 
to the Community Development Banking and Financial Institution Act 
(Community Development Banking Act) (12 U.S.C. 4717(b)) a civil money 
penalty may be assessed for violations of the Community Development 
Banking Act pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 
1818(i)(2)), in the amount set forth in paragraph (c)(3)(i) of this 
section.
    (xiv) Civil money penalties assessed for violations of the 
Securities Exchange Act of 1934. Pursuant to section 21B of the 
Securities Exchange Act of 1934 (Exchange Act) (15 U.S.C. 78u-2), civil 
money penalties may be assessed for violations of certain provisions of 
the Exchange Act, where such penalties are in the public interest. Tier 
One civil money penalties may be assessed pursuant to 15 U.S.C. 78u-
2(b)(1) in an amount not to exceed $7,500 for a natural person or 
$70,000 for any other person for violations set forth in 15 U.S.C. 78u-
2(a). Tier Two civil money penalties may be assessed pursuant to 15 
U.S.C. 78u-2(b)(2) in an amount not to exceed--for each violation set 
forth in 15 U.S.C. 78u-2(a)--$70,000 for a natural person or $350,000 
for any other person if the act or omission involved fraud, deceit, 
manipulation, or deliberate or reckless disregard of a regulatory 
requirement. Tier Three civil money penalties may be assessed pursuant 
to 15 U.S.C. 78u-2(b)(3) for each violation set forth in 15 U.S.C. 78u-
2(a), in an amount not to exceed $140,000 for a natural person or 
$700,000 for any other person, if the act or omission involved fraud, 
deceit, manipulation, or deliberate or reckless disregard of a 
regulatory requirement; and such act or omission directly or indirectly 
resulted in substantial losses, or created a significant risk of 
substantial losses to other persons or resulted in substantial 
pecuniary gain to the person who committed the act or omission.
    (xv) Civil money penalties assessed for false claims and statements 
pursuant to the Program Fraud Civil Remedies Act. Pursuant to the 
Program Fraud Civil Remedies Act (31 U.S.C. 3802), civil money 
penalties of not more than $7,500 per claim or statement may be 
assessed for violations involving false claims and statements.
    (xvi) Civil money penalties assessed for violations of the Flood 
Disaster Protection Act. Pursuant to the Flood Disaster Protection Act 
(FDPA) (42 U.S.C. 4012a(f)), as of July 1, 2012, civil money penalties 
may be assessed against any regulated lending institution that engages 
in a pattern or practice of violations of the FDPA in an amount not to 
exceed $2,000 per violation.
    (xvii) Civil money penalties assessed for violation of one-year 
restriction on Federal examiners of financial institutions. Pursuant to 
section 10(k) of the Federal Deposit Insurance Act (12 U.S.C. 1820(k)), 
the Board of Directors or its designee may assess a civil money penalty 
of up to $275,000 against any covered former Federal examiner of a 
financial institution who, in violation of section 1820(k) and within 
the one-year period following termination of government service as an 
employee, serves as an officer, director, or consultant of a financial 
or depository institution, a holding company, or of any other entity 
listed in section 10(k), without the written waiver or permission by 
the appropriate Federal banking agency or authority under section 
1820(k)(5).

PART 390--REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT 
SUPERVISION

0
4. The general authority citation for part 390 continues to read as 
follows:

    Authority:  12 U.S.C. 1819.


Sec.  390.74  [Amended]

0
5. In Sec.  390.74, remove paragraph (c).

    By order of the Board of Directors.

    Washington, DC, this 11th day of December 2012.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2012-30251 Filed 12-14-12; 8:45 am]
BILLING CODE 6714-01-P