Rules of Practice and Procedure, 42235-42243 [2016-15027]
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Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations
PART 590—INSPECTION OF EGGS
AND EGG PRODUCTS (EGG
PRODUCTS INSPECTION ACT)
14. The authority citation for part 590
continues to read as follows:
■
Authority: 21 U.S.C. 1031–1056.
■
15. Add § 590.407 to read as follows:
§ 590.407 Export certification and marking
of containers with export inspection mark.
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(a) Exporters must apply for export
certification of inspected and passed
products shipped to any foreign
country. Exporters may apply for an
export certificate using a paper or
electronic application. FSIS will assess
exporters that submit an electronic
application the charge in § 592.500(d) of
this chapter.
(b) FSIS will issue only one certificate
for each consignment, except in the case
of error in the certificate or loss of the
certificate originally issued. A request
for a replacement certificate, except in
the case of a lost certificate, must be
accompanied by the original certificate.
The new certificate will carry the
following statement: ‘‘Issued in
replacement of lll’’, with the
numbers of the certificates that have
been superseded.
(c) FSIS will deliver a copy of the
export certificate to the person who
requested such certificate or his agent.
Such persons may duplicate the
certificate as required in connection
with the exportation of the product.
(d) FSIS will retain a copy of the
certificate.
(e)(1) When authorized by inspection
personnel, establishments must mark
the outside container of any inspected
and passed egg products destined for
export, the securely enclosed pallet
within the consignment, or closed
means of conveyance transporting the
consignment, with a mark that contains
a unique identifier that links the
consignment to the export certificate or
an official mark with the following
form: 1
(2) Ship stores, small quantities
exclusively for the personal use of the
consignee and not for sale or
1 The number ‘‘1234567’’ is given as an example
only. The number on the export certificate will
correspond to the printed number on the export
certificate.
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distribution, and shipments by and for
the U.S. Armed Forces, are exempt from
the requirements of this section.
(f) Exporters may request inspection
personnel to issue certificates for export
consignments of product of official
establishments not under their
supervision, provided the consignments
are first identified as having been ‘‘U.S.
inspected and passed,’’ are found to be
neither adulterated nor misbranded, and
are marked as required by paragraph (e)
of this section.
PART 592—VOLUNTARY INSPECTION
OF EGG PRODUCTS
(f) FSIS will publish notice of the
electronic export certificate application
fee annually in the Federal Register.
Done at Washington, DC, on June 17, 2016.
Alfred V. Almanza,
Acting Administrator.
[FR Doc. 2016–14812 Filed 6–28–16; 8:45 am]
BILLING CODE 3410–DM–P
DEPARTMENT OF ENERGY
10 CFR Parts 429 and 430
[Docket No. EERE–2014–BT–TP–0044]
RIN 1904–AD45
16. The authority citation for part 592
continues to read as follows:
■
Authority: 7 U.S.C. 1621–1627.
17. In § 592.20, add paragraph (d) to
read as follows:
■
§ 592.20
Kinds of services available.
*
*
*
*
*
(d) Export certification. Upon
application, by any person intending to
export any egg product, inspectors may
make certifications regarding products
for human food purposes, to be
exported, as meeting conditions or
standards that are not imposed or are in
addition to those imposed by the
regulations in the part and the laws
under which such regulations were
issued.
■ 18. In § 592.500, revise paragraph (a)
and add paragraphs (d), (e), and (f) to
read as follows:
§ 592.500
Payment of fees and charges.
(a) Fees and charges for voluntary
base time rate, overtime inspection
service, holiday inspection service, and
electronic export applications shall be
paid by the interested party making the
application for such service, in
accordance with the applicable
provisions of this section and § 592.510
through § 592.530, both inclusive. If so
required by the inspection personnel,
such fees and charges shall be paid in
advance.
*
*
*
*
*
(d) Exporters that submit electronic
export certificate applications will be
charged a fee per application submitted.
(e) For each calendar year, FSIS will
calculate the electronic export
certificate application fee, using the
following formula: Labor Costs
(Technical Support Cost + Export
Library Maintenance Cost) +
Information Technology Costs (On-going
operations Cost + Maintenance Cost +
eAuthentication Cost), divided by the
number of export applications.
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Energy Conservation Program: Test
Procedure for Battery Chargers
Correction
In rule document 2016–11486,
beginning on page 31827 in the issue of
Friday, May 20, 2016, make the
following corrections:
Appendix Y to Subpart B of Part 430
[Corrected]
1. On page 31844, in Appendix Y to
Subpart B of Part 430, in Table 5.3,
under the ‘‘Product Class’’ column head,
in the ‘‘Rated Battery Energy (Ebatt) **
column, in the third row, the entry
should read ‘‘<100 Wh’’.
2. On the same page, in the same
table, beneath the same column head, in
the same column, in the fourth row, the
entry should read ‘‘<100 Wh’’.
3. On the same page, in the same
table, beneath the same column head, in
the same column, in the sixth row, the
entry should read ‘‘100–3000 Wh’’.
[FR Doc. C1–2016–11486 Filed 6–28–16; 8:45 am]
BILLING CODE 1505–05–D
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Parts 308 and 327
RIN 3064–AE43
Rules of Practice and Procedure
Federal Deposit Insurance
Corporation.
ACTION: Interim final rule and request
for comment.
AGENCY:
The Federal Deposit
Insurance Corporation (FDIC) is
amending its rules of practice and
procedure under to adjust the maximum
amount of each civil money penalty
(CMP) within its jurisdiction to account
for inflation. This action is required by
the Federal Civil Penalties Inflation
SUMMARY:
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neither adulterated nor misbranded, and
are marked as required by § 381.105.
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Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations
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Adjustment Act Improvements Act of
2015 (2015 Adjustment Act).
DATES: This rule is effective on August
1, 2016. Comments must be received by
September 1, 2016.
ADDRESSES: You may submit comments,
identified by RIN 3064–AE43, by any of
the following methods:
• Agency Web site: https://
www.fdic.gov/regulations/laws/federal/.
Follow instructions for submitting
comments on the Agency Web site.
• Email: Comments@fdic.gov. Include
the RIN 3064–AE43 on the subject line
of the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street NW., Washington, DC 20429.
• Hand Delivery: Comments may be
hand-delivered to the guard station at
the rear of the 550 17th Street Building
(located on F Street) on business days
between 7:00 a.m. and 5:00 p.m.
Public Inspection: All comments
received must include the agency name
and RIN for this rulemaking. All
comments received will be posted
without change to https://www.fdic.gov/
regulations/laws/federal/, including any
personal information provided. Paper
copies of public comments may be
ordered from the FDIC Public
Information Center, 3501 North Fairfax
Drive, Room E–1002, Arlington, VA
22226 by telephone at (877) 275–3342 or
(703) 562–2200.
FOR FURTHER INFORMATION CONTACT: Seth
P. Rosebrock, Supervisory Counsel,
Legal Division (202) 898–6609, or
Graham N. Rehrig, Senior Attorney,
Legal Division (202) 898–3829.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
This interim final rule adjusts the
maximum limit for CMPs according to
inflation as mandated by Congress in
the 2015 Adjustment Act.1 The intended
effect of annually adjusting maximum
civil money penalties in accordance
with changes in the Consumer Price
Index is to minimize any distortion in
the real value of those maximums due
to inflation, thereby promoting a more
consistent deterrent effect in the
structure of CMPs. Other technical
changes to 12 CFR part 308 are intended
to improve the transparency of the
regulation and to assist readers in
quickly identifying the applicable CMP
amounts.
II. Background: Current Regulatory
Approach
The FDIC assesses CMPs under
section 8(i) of the Federal Deposit
1 Public
Law 114–74, sec. 701, 129 Stat. 584.
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Insurance Act (FDIA), 12 U.S.C. 1818,
and a variety of other statutes.2 Congress
established maximum penalties that
could be assessed under these statutes.
In many cases, these statutes contain
multiple penalty tiers, permitting the
assessment of penalties at various levels
depending upon the severity of the
misconduct at issue.3
In 1990, Congress determined that the
assessment of CMPs plays ‘‘an
important role in deterring violations
and furthering the policy goals
embodied in such laws and regulations’’
and concluded that ‘‘the impact of many
civil monetary penalties has been and is
diminished due to the effect of
inflation.’’ 4 Consequently, Congress
required federal agencies with authority
to impose CMPs to periodically adjust
by rulemaking the maximum CMPs
which these agencies were authorized to
impose in order to ‘‘maintain the
deterrent effect of civil monetary
penalties and promote compliance with
the law.’’ 5 Under the 1990 Adjustment
Act, the FDIC adjusted its CMP amounts
every four years, most recently in 2012.6
In 2015, Congress revised the process
by which federal agencies adjust
applicable CMPs for inflation.7 Under
the 2015 Adjustment Act, the FDIC is
required to (1) adjust the CMP levels
with an initial catch-up adjustment
through an interim final rulemaking and
(2) make subsequent annual adjustments
for inflation. The FDIC must publish an
interim final rule with initial penalty
adjustment amounts by July 1, 2016,
and the new maximum penalty levels
must take effect no later than August 1,
2016. These adjustments will apply to
all CMPs covered by the 2015
Adjustment Act.8
2 See, e.g., 12 U.S.C. 1972(2)(F) (authorizing the
FDIC to impose CMPs for violations of the Bank
Holding Company Act of 1970 related to prohibited
tying arrangements); 15 U.S.C. 78u–2 (authorizing
the FDIC to impose CMPs for violations of certain
provisions of the Securities Exchange Act of 1934);
42 U.S.C. 4012a(f) (authorizing the FDIC to impose
CMPs for pattern or practice violations of the Flood
Disaster Protection Act).
3 For example, Section 8(i)(2) of the FDIA, 12
U.S.C. 1818(i)(2), provides for three tiers of CMPs,
with the size of such CMPs increasing with the
gravity of the misconduct.
4 Section 2 of the Federal Civil Penalties Inflation
Adjustment Act of 1990 (1990 Adjustment Act).
Public Law 101–410, 104 Stat. 890 (amended 2015)
(codified as amended at 28 U.S.C. 2461 note).
5 Id.
6 See 77 FR 74,573 (Dec. 17, 2012).
7 Public Law 114–74, 129 Stat. 584.
8 The 2015 Adjustment Act defines ‘‘civil
monetary penalty’’ as ‘‘any penalty, fine, or other
sanction that is for a specific monetary amount as
provided by Federal law; or has a maximum
amount provided for by Federal law; and is
assessed or enforced by an agency pursuant to
Federal law; and is assessed or enforced pursuant
to an administrative proceeding or a civil action in
the Federal courts[.]’’ Public Law 101–410, sec. 3(2),
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Although the 2015 Adjustment Act
increases the maximum penalty that
may be assessed under each applicable
statute, the FDIC possesses discretion to
impose CMP amounts below the
maximum level in accordance with the
severity of the misconduct at issue.
When making a determination as to the
appropriate level of any given penalty,
the FDIC is guided by statutory factors
set forth in section 8(i)(2)(G) of the
FDIA, 12 U.S.C. 1818(i)(2)(G), and those
factors identified in the Interagency
Policy Statement Regarding the
Assessment of CMPs by the Federal
Financial Institutions Regulatory
Agencies.9 Such factors include, but are
not limited to, the gravity and duration
of the misconduct, and the intent
related to the misconduct.
III. Description of the Rule
This interim final rule adjusts the
maximum limit for CMPs according to
inflation as mandated by Congress in
the 2015 Adjustment Act. Additionally,
other technical changes to 12 CFR part
308 are being made to correct
typographical errors, to supplement 12
CFR 308.132 to include references to
previously omitted CMPs, and to
reorder the provisions of 12 CFR
308.132 to assist readers in quickly
identifying applicable CMP amounts.
The New CMP-Adjustment System
The 2015 Adjustment Act directs
federal agencies to follow guidance
issued by the Office of Management and
Budget (OMB) on February 24, 2016
(OMB Guidance) when calculating new
maximum penalty levels.10 Initial catchup adjustments are to be based on the
percent change between the Consumer
Price Index for all Urban Consumers
(CPI–U) 11 for the month of October in
the year for which the CMP was
established by Congress or last adjusted
for inflation (other than through the
1990 Adjustment Act), and the October
2015 CPI–U.12 In addition, the OMB
104 Stat. 890 (amended 2015) (codified as amended
at 28 U.S.C. 2461 note).
9 63 FR 30227 (June 3, 1998).
10 See OMB, Implementation of the Federal Civil
Penalties Inflation Adjustment Act Improvements
Act of 2015, M–16–06 available at https://
www.whitehouse.gov/sites/default/files/omb/
memoranda/2016/m-16-06.pdf.
11 The CPI–U is compiled by the Bureau of
Statistics of the Department of Labor.
12 The OMB Guidance directs agencies to identify,
for each CMP, the year and corresponding
amount(s) for which the maximum penalty level or
range of minimum and maximum penalties was
established (i.e., as originally enacted by Congress),
or last adjusted (i.e., by Congress in statute, or by
the agency through regulation), whichever is later,
other than under the Inflation Adjustment Act.
OMB Guidance at 3.
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Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations
Guidance provides a table of CMPadjustment multipliers for each year.13
Summary of the FDIC’s Calculations
In keeping with the OMB Guidance,
the FDIC multiplied each of its CMP
amounts by the relevant inflation
factor.14 After applying the multiplier,
the FDIC rounded each penalty level to
the nearest dollar. In accordance with
the 2015 Adjustment Act, the FDIC did
not increase penalty levels by more than
150 percent of the corresponding levels
in effect on November 2, 2015. In
making these calculations, the FDIC
consulted with staff from the Office of
the Comptroller of the Currency, the
Board of Governors for the Federal
Reserve System, the National Credit
Union Administration, and the Bureau
of Consumer Financial Protection to
ensure that the FDIC’s calculations and
adjustments are consistent with those
being proposed by other federal
financial regulators for the same
statutes.
Summary of Adjustments
The following chart displays the
adjusted CMP amounts for each CMP
identified in 12 CFR part 308.15 The
following chart reflects the maximum
CMPs that may be assessed through July
31, 2016, and the maximum CMPs that
may be assessed on or after August 1,
2016, after the required inflation
adjustment:
Current maximum CMP
(through July 31, 2016)
U.S. Code citation
12 U.S.C. 1464(v):
Tier One CMP ..............................................................................................
Tier Two CMP ..............................................................................................
Tier Three CMP ............................................................................................
12 U.S.C. 1467(d) ................................................................................................
12 U.S.C. 1817(a):
Tier One CMP ..............................................................................................
Tier Two CMP ..............................................................................................
Tier Three CMP ............................................................................................
12 U.S.C. 1817(c):
Tier One CMP ..............................................................................................
Tier Two CMP ..............................................................................................
Tier Three CMP ............................................................................................
12 U.S.C. 1818(i)(2):
Tier One CMP ..............................................................................................
Tier Two CMP ..............................................................................................
Tier Three CMP ............................................................................................
12 U.S.C. 1820(e)(4) ...........................................................................................
12 U.S.C. 1820(k)(6) ...........................................................................................
12 U.S.C. 1828(a)(3) ...........................................................................................
12 U.S.C. 1828(h):
For assessments <$10,000 ..........................................................................
12 U.S.C. 1829b(j) ...............................................................................................
12 U.S.C. 1832(c) ................................................................................................
12 U.S.C. 1884 ....................................................................................................
12 U.S.C. 1972(2)(F):
Tier One CMP ..............................................................................................
Tier Two CMP ..............................................................................................
Tier Three CMP ............................................................................................
12 U.S.C. 3909(d) ................................................................................................
15 U.S.C. 78u–2:
Tier One CMP (individuals) ..........................................................................
Tier One CMP (others) .................................................................................
Tier Two CMP (individuals) ..........................................................................
Tier Two CMP (others) .................................................................................
Tier Three CMP (individuals) .......................................................................
Tier Three penalty (others) ...........................................................................
15 U.S.C. 1639e(k):
First violation ................................................................................................
Subsequent violations ..................................................................................
31 U.S.C. 3802 ....................................................................................................
42 U.S.C. 4012a(f) ...............................................................................................
$3,200
32,000
1,425,000
7,500
$3,787
37,872
1,893,610
9,468
3,200
32,000
1,425,000
3,787
37,872
1,893,610
3,200
32,000
1,425,000
3,462
34,620
1,730,990
7,500
37,500
1,425,000
7,500
275,000
100
9,468
47,340
1,893,610
8,655
311,470
118
100
16,000
1,100
110
118
19,787
2,750
275
7,500
37,500
1,425,000
1,100
9,468
47,340
1,893,610
2,355
7,500
70,000
70,000
350,000
140,000
700,000
8,908
89,078
89,078
445,390
178,156
890,780
10,000
20,000
7,500
2,000
10,875
21,749
10,781
2,056
Current maximum amount
(through July 31, 2016)
CFR Citation
Adjusted maximum CMP
(beginning August 1, 2016)
New maximum amount
(beginning August 1, 2016)
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12 CFR 308.132(c)—Late or Misleading Reports of Condition and Income (Call Reports)
First Offense:
$25 million or more assets:
1 to 15 days late ...................................................................................
16 or more days late .............................................................................
Less than $25 million assets:
13 OMB
Guidance at 6.
the 1990 Adjustment Act, adjustments
have been made only to CMPs that are for specific
14 Under
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$330
660
dollar amounts or maximums. CMPs that are
assessed based upon a fixed percentage of an
institution’s total assets are not subject to
adjustment.
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$519
1,039
15 As noted previously, the FDIC retains
discretion to impose CMPs in amounts below the
referenced maximums.
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Current maximum amount
(through July 31, 2016)
CFR Citation
1 to 15 days late ...................................................................................
16 or more days late .............................................................................
Subsequent Offenses
$25 million or more assets:
1 to 15 days late ...................................................................................
16 or more days late .............................................................................
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Addition to Part 308 of CMPs Previously
Omitted
This interim final rule incorporates
adjustments to two categories of CMPs
previously inadvertently omitted from
the FDIC’s last inflation-adjustment
rulemaking in 2012. The Dodd-Frank
Act 16 amended the Truth in Lending
Act to establish independence standards
for property appraisals and authorized
the FDIC and other federal agencies to
assess specified CMPs against persons
who violate these provisions (Appraisal
Independence CMP).17 Title III of the
Dodd-Frank Act also transferred the
functions, powers, and duties of the
Office of Thrift Supervision relating to
State savings associations to the FDIC
and amended section 3 of the Federal
Deposit Insurance Act to designate the
FDIC as the ‘‘appropriate Federal
banking agency’’ for State savings
associations. Among the transferred
authorities was the authority to impose
CMPs against any State savings
association under section 9(d) of the
Home Owners’ Loan Act (HOLA) (12
U.S.C. 1467(d)) if an affiliate of such an
institution refuses to permit a dulyappointed examiner to conduct an
examination or refuses to provide
information during the course of an
examination (Savings Association CMP).
Neither the Appraisal Independence
CMP nor the Savings Association CMP
was previously included in part 308.
Nonetheless, the FDIC is required by the
2015 Adjustment Act to adjust all CMPs
under the FDIC’s jurisdiction in the
agency’s inflation-adjustment
rulemaking. Consequently, the present
amendment to part 308 specifically
incorporates provisions in 12 CFR
308.132 related to the Appraisal
Independence CMP and Savings
Association CMP in 12 CFR 308.132,
applying the adjustments required
under the 2015 Adjustment Act and the
OMB Guidance to these penalties.
Other Technical Changes to 12 CFR Part
308
The FDIC corrected a typographical
error in 12 CFR 308.132(c) by indicating
16 Public Law 111–203, tit. XIV, sec. 1472(a), 124
Stat. 2187.
17 15 U.S.C. 1639e(k).
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110
220
IV. Expected Effects of the Rule
The interim final rule is expected to
more precisely adjust CMP maximums
relative to inflation. These adjustments
are expected to minimize any year-toyear distortions in the real value of the
CMP maximums. These adjustments
will promote a more consistent
deterrent effect in the structure of CMPs.
As previously noted, the FDIC retains
discretion to impose CMP amounts
below the maximum level. The actual
number and size of CMPs assessed in
the future will depend on the
propensity and severity of the violations
committed by banks and institutionaffiliated parties, as well as the
particular statute that is at issue. Such
future violations cannot be reliably
forecast. It is expected that the FDIC
will continue to exercise its discretion
to impose CMPs that are appropriate to
their severity.
The 2015 Adjustment Act will likely
result in a minimal increase in
administrative costs for the FDIC in
order to establish new inflation-adjusted
maximum CMPs each year. Because
these calculations are relatively simple,
the number of labor hours necessary to
perform this task is likely to be
insignificant relative to total
enforcement labor hours for the
Corporation.
V. Alternatives Considered
The 2015 Act mandates the frequency
of the inflation adjustment and the
measure of inflation to be used in
making these adjustments; accordingly,
the FDIC is not statutorily authorized to
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173
346
550
1,100
that the FDIC’s Board of Directors or its
designee may assess CMPs under 12
CFR 308.1(e) rather than the incorrect
‘‘308.01(e)(1).’’
The FDIC reorganized 12 CFR
308.132, listing all statutes cited that
give rise to CMPs in ascending alphanumeric order by title and section to
assist readers in quickly identifying the
applicable CMP amounts.
Finally, the FDIC revised existing
cross-references to 12 CFR 308.132 that
are found in Chapter III of Title 12 of the
Code of Federal Regulations to reflect
the resultant reorganization of 12 CFR
308.132.
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New maximum amount
(beginning August 1, 2016)
865
1,731
consider or pursue alternative
approaches. The other technical changes
to 12 CFR part 308 were relatively
minor and designed to improve the
transparency and readability of the CFR,
and therefore the FDIC did not actively
consider alternative approaches to these
changes.
VI. Request for Comment
The 2015 Adjustment Act requires the
FDIC to amend its rules through an
interim final rulemaking and provides
the specific adjustments to be made.
These changes are ministerial and
technical. Under the OMB Guidance,
the FDIC is not required to complete a
notice-and-comment process prior to
publication of this interim final rule in
the Federal Register.18 Nonetheless,
although notice and comment
rulemaking procedures are not required,
the FDIC invites comments on all
aspects of this interim final rule.
Commenters are specifically encouraged
to identify any technical issues raised
by the rule, including identifying any
potential CMPs that may have been
unintentionally omitted from this
adjustment rulemaking.
VII. Regulatory Analysis
Riegle Community Development and
Regulatory Improvement Act
Section 302 of the Riegle Community
Development and Regulatory
Improvement Act 19 generally requires
that regulations prescribed by federal
banking agencies which impose
additional reporting, disclosures, or
other new requirements on insured
depository institutions take effect on the
first day of a calendar quarter unless the
regulation is required to take effect on
another date pursuant to another act of
Congress or the agency determines for
good cause that the regulation should
become effective on an earlier date.
This interim final rule merely adjusts
the maximum CMPs which the FDIC
may assess. It does not impose any new
or additional reporting, disclosures, or
other requirements on insured
depository institutions. Additionally, as
previously noted, the 2015 Adjustment
18 OMB
19 12
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Guidance at 3.
U.S.C. 4802.
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Act requires the interim final rule to
take effect no later than August 1,
2016.20 Accordingly, this interim final
rule will be effective August 1, 2016.
Regulatory Flexibility Act
An initial regulatory flexibility
analysis under the Regulatory
Flexibility Act 21 (RFA) is required only
when an agency must publish a general
notice of proposed rulemaking. As
noted above, the FDIC determined that
publication of a notice of proposed
rulemaking is not necessary for this
interim final rule. Accordingly, the RFA
does not require an initial regulatory
flexibility analysis. Nevertheless, the
FDIC considered the likely impact of the
rule on small entities. From 2011
through 2015, on average, only 1.6
percent of FDIC-supervised institutions
were ordered to pay a CMP each year.
Accordingly, the FDIC believes that the
rule will not have a significant impact
on a substantial number of small
entities.
Small Business Regulatory Enforcement
Fairness Act
The OMB has determined that the
interim final rule is not a ‘‘major rule’’
within the meaning of the relevant
sections of the Small Business
Regulatory Enforcement Act of 1996
(SBREFA).22 As required by SBREFA,
the FDIC will submit the interim final
rule and other appropriate reports to
Congress and the Government
Accountability Office for review.
The Omnibus Consolidated and
Emergency Supplemental
Appropriations Act, 1999: Assessment
of Federal Regulations and Policies on
Families
The FDIC determined that this final
rule will not affect family wellbeing
within the meaning of section 654 of the
Omnibus Consolidated and Emergency
Supplemental Appropriations Act,
1999.23
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Paperwork Reduction Act
The interim rule will implement
statutory changes to the FDIC’s CMP
regulations. It does not create any new,
or revise any existing, collections of
information under section 3504(h) of the
Paperwork Reduction Act of 1980.24
Consequently, no information collection
request will be submitted to the OMB
for review.
20 Public
Law 114–74, 129 Stat. 584.
U.S.C. 603.
22 5 U.S.C. 801 et seq.
23 Public Law 105–277, 112 Stat. 2681 (1998).
24 44 U.S.C. 3501 et seq.
21 5
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§ 308.116
Plain Language Act
Section 722 of the Gramm-LeachBliley Act requires the FDIC to use plain
language in all proposed and final rules
published after January 1, 2000.25 The
FDIC invites comment on how to make
this rule easier to understand. For
example:
• Has the FDIC organized the material to
suit your needs? If not, how could the FDIC
present the rule more clearly?
• Are the requirements in the rule clearly
stated? If not, how could the rule be more
clearly stated?
• Do the regulations contain technical
language or jargon that is not clear? If so,
which language requires clarification?
• Would a different format (grouping and
order of sections, use of headings,
paragraphing) make the regulation easier to
understand? If so, what changes would
achieve that?
• Is this section format adequate? If not,
which of the sections should be changed and
how?
• What other changes can the FDIC
incorporate to make the regulation easier to
understand?
List of Subjects
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.
12 CFR Part 327
Bank deposit insurance, Banks,
banking, Savings associations.
For the reasons set forth in the
preamble, the FDIC amends 12 CFR
parts 308 and 327 to read as follows:
PART 308—RULES OF PRACTICE AND
PROCEDURE
1. Revise the authority citation for 12
CFR part 308 to read as follows:
■
Authority: 5 U.S.C. 504, 554–557; 12
U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a,
1468, 1815(e), 1817, 1818, 1819, 1820, 1828,
1829, 1829(b), 1831i, 1831m(g)(4), 1831o,
1831p–1, 1832(c), 1884(b), 1972, 3102,
3108(a), 3349, 3909, 4717, 5412(b)(2)(C),
5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4),
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; Pub. L. 104–134, sec. 31001(s), 110
Stat. 1321; Pub. L. 109–351, 120 Stat. 1966;
Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114–
74, sec. 701, 129 Stat. 584.
2. Revise § 308.116(b)(4) to read as
follows:
■
25 Public Law 106–102, 113 Stat. 1338 (Nov. 12,
1999).
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42239
Assessment of penalties.
*
*
*
*
*
(b) * * *
(4) Adjustment of civil money
penalties by the rate of inflation
pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015. On or after August 1, 2016:
(i) Any person who has engaged in a
violation as set forth in paragraph (b)(1)
of this section shall forfeit and pay a
civil money penalty of not more than
$9,468 for each day the violation
continued.
(ii) Any person who has engaged in a
violation, unsafe or unsound practice or
breach of fiduciary duty, as set forth in
paragraph (b)(2) of this section, shall
forfeit and pay a civil money penalty of
not more than $47,340 for each day such
violation, practice or breach continued.
(iii) Any person who has knowingly
engaged in a violation, unsafe or
unsound practice or breach of fiduciary
duty, as set forth in paragraph (b)(3) of
this section, shall forfeit and pay a civil
money penalty not to exceed:
(A) In the case of a person other than
a depository institution—$1,893,610 per
day for each day the violation, practice
or breach continued; or
(B) In the case of a depository
institution—an amount not to exceed
the lesser of $1,893,610 or one percent
of the total assets of such institution for
each day the violation, practice or
breach continued.
*
*
*
*
*
■ 3. Amend § 308.132 by revising
paragraph (c)(1) and adding paragraph
(d) to read as follows:
§ 308.132
*
Assessment of penalties.
*
*
*
(c)
(1) Authority of the Board of
Directors. 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 § 308.1(e)
of the Uniform Rules (this part).
*
*
*
*
*
(d) Maximum civil money penalty
amounts. Pursuant to the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015, on or after
August 1, 2016, the Board of Directors
or its designee may assess civil money
penalties in the maximum amounts as
follows:
(1) Civil money penalties assessed
pursuant to 12 U.S.C. 1464(v) for late
filing or the submission of false or
misleading certified statements by State
savings associations. Pursuant to section
5(v) of the Home Owners’ Loan Act (12
U.S.C. 1464(v)), the Board of Directors
or its designee may assess civil money
penalties as follows:
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(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 $3,787 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 that is
minimally late. For penalties assessed
on or after August 1, 2016, for violations
of this paragraph (d)(1)(i), the following
maximum Tier One penalty amounts
contained in paragraphs (d)(1)(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 $519
per day for each of the first 15 days for
which the failure continues, and $1,039
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 $173 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 $346 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 $865 per day
for each of the first 15 days for which
the failure continues, and $1,731 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) Lengthy or repeated violations.
The amounts set forth in this paragraph
(d)(1)(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.
(D) 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
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civil money penalty of not more than
$37,872 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
$3,787 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 that 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 $37,872 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
a civil money penalty of not more than
the lesser of $1,893,610 or 1 percent of
the institution’s total assets per day for
each day the information is not
corrected.
(iv) Mitigating factors. The amounts
set forth in this paragraph (d)(1) may be
reduced based upon the factors set forth
in paragraph (b) of this section.
(2) Civil money penalties assessed
pursuant to 12 U.S.C. 1467(d) for refusal
by an affiliate of a State savings
association to allow examination or to
provide required information during an
examination. Pursuant to section 9(d) of
the Home Owners’ Loan Act (12 U.S.C.
1467(d)), civil money penalties may be
assessed against any State savings
association if an affiliate of such an
institution refuses to permit a dulyappointed examiner to conduct an
examination or refuses to provide
information during the course of an
examination as set forth 12 U.S.C.
1467(d), in an amount not to exceed
$9,486 for each day the refusal
continues.
(3) Civil money penalties assessed
pursuant to 12 U.S.C. 1817(a) for late
filings or the submission of false or
misleading reports of condition.
Pursuant to section 7(a) of the FDIA (12
U.S.C. 1817(a)), the Board of Directors
or its designee may assess civil money
penalties as follows:
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Fmt 4700
Sfmt 4700
(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 $3,787 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 that is
minimally late. For penalties assessed
on or after August 1, 2016, for violations
of this paragraph (d)(3)(i), the following
maximum Tier One penalty amounts
contained in paragraphs (d)(3)(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 $519
per day for each of the first 15 days for
which the failure continues, and $1,039
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 $173 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 $346 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 $865 per day
for each of the first 15 days for which
the failure continues, and $1,731 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) Lengthy or repeated violations.
The amounts set forth in this paragraph
(d)(3)(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.
(D) 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
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civil money penalty of not more than
$34,620 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
$3,787 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 that 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 $37,872 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
a civil money penalty of not more than
the lesser of $1,893,610 or 1 percent of
the institution’s total assets per day for
each day the information is not
corrected.
(iv) Mitigating factors. The amounts
set forth in this paragraph (d)(3) may be
reduced based upon the factors set forth
in paragraph (b) of this section.
(4) Civil money penalties assessed
pursuant to 12 U.S.C. 1817(c) 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)) in
an amount not to exceed $3,462 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 $34,620 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
$1,730,990 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.
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(5) 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 $9,468 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 $47,340 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
$1,893,610 or, in the case of any insured
depository institution, an amount not to
exceed the lesser of $1,893,610 or 1
percent of the total assets of such
institution for each day during which
the violation, practice, or breach
continues.
(i) Pursuant to 7(j)(16) of the FDIA (12
U.S.C. 1817(j)(16)), a civil money
penalty may be assessed for violations
of change in control of insured
depository institution provisions
pursuant to section 8(i)(2) of the FDIA
(12 U.S.C. 1818(i)(2)) in the amounts set
forth in paragraph (d)(5) of this section.
(ii) 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 (d)(5).
(iii) Pursuant to section 1120(b) of the
Financial Institutions Recovery, Reform,
and Enforcement Act of 1989 (FIRREA)
(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 (d)(5) of
this section.
(iv) 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 (d)(5) of this section.
(v) Civil money penalties may be
assessed pursuant to section 8(i)(2) of
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Fmt 4700
Sfmt 4700
42241
the FDIA in the amounts set forth in this
paragraph (d)(5) for violations of various
consumer laws, including, but not
limited to, 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.),
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.).
(6) Civil money penalties assessed
pursuant to 12 U.S.C. 1820(e) 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 that
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
$8,655 for each day the refusal
continues.
(7) Civil money penalties assessed
pursuant to 12 U.S.C. 1820(k) for
violation of one-year restriction on
Federal examiners of financial
institutions. Pursuant to section 10(k) of
the FDIA (12 U.S.C. 1820(k)), the Board
of Directors or its designee may assess
a civil money penalty of up to $311,470
against any covered former Federal
examiner of a financial institution who,
in violation of section 10(k) of the FDIA
(12 U.S.C. 1820(k)) and within the oneyear 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)
of the FDIA (12 U.S.C. 1820(k)), without
the written waiver or permission by the
appropriate Federal banking agency or
authority under section 10(k)(5) of the
FDIA (12 U.S.C. 1820(k)(5)).
(8) Civil money penalties assessed
pursuant to 12 U.S.C. 1828(a) 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 that fails
to correctly display its insurance logo
pursuant to that section, in an amount
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not to exceed $118 for each day the
violation continues.
(9) Civil money penalties assessed
pursuant to 12 U.S.C. 1828(h) for failure
to timely pay assessment.
(i) In general. Subject to paragraph
(d)(9)(iii) of this section, any insured
depository institution that 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.
(ii) Exception in case of dispute.
Paragraph (d)(9)(i) of this section shall
not apply if—
(A) 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
(B) The insured depository institution
deposits security satisfactory to the
Corporation for payment upon final
determination of the issue.
(iii) Special rule for small assessment
amounts. If the amount of the
assessment that 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 (d)(9)(i) of this section shall
not exceed $118 for each day that such
violation continues.
(iv) Authority to modify or remit
penalty. The Corporation, in the sole
discretion of the Corporation, may
compromise, modify, or remit any
penalty that the Corporation may assess
or has already assessed under paragraph
(d)(9)(i) of this section upon a finding
that good cause prevented the timely
payment of an assessment.
(10) Civil money penalties assessed
pursuant to 12 U.S.C. 1829b(j) 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 $19,787 per violation.
(11) Civil money penalties pursuant to
12 U.S.C. 1832(c) for violation of
provisions regarding interest-bearing
demand deposit accounts. Pursuant to
12 U.S.C. 1832(c), any depository
institution that violates the prohibition
regarding interest-bearing demand
deposit accounts shall be subject to a
fine of $2,750 per violation.
(12) Civil penalties for violations of
security measure requirements under 12
U.S.C. 1884. Pursuant to 12 U.S.C. 1884,
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an institution that 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 $275 for each day of the
violation.
(13) Civil money penalties assessed
pursuant to 12 U.S.C. 1972(2)(F) for
prohibited tying arrangements. Pursuant
to the Bank 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
$9,468 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 $47,340 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 $1,893,610 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 $1,893,610 or 1 percent of the
total assets of such institution for each
day during which the violation,
practice, or breach continues.
(14) Civil money penalties assessed
pursuant to 12 U.S.C. 3909(d). Pursuant
to the International Lending
Supervision Act (ILSA) (12 U.S.C.
3909(d)), civil money penalties 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 $2,355 for
each day a violation of the ILSA or any
rule, regulation or order issued pursuant
to ILSA continues.
(15) Civil money penalties assessed
for violations of 15 U.S.C. 78u–2.
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
$8,908 for a natural person or $89,078
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)—$89,078 for a natural person or
$445,390 for any other person if the act
or omission involved fraud, deceit,
manipulation, or deliberate or reckless
disregard of a regulatory requirement.
PO 00000
Frm 00018
Fmt 4700
Sfmt 4700
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 $178,156 for a natural person or
$890,780 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.
(16) Civil money penalties assessed
pursuant to 15 U.S.C. 1639e(k) for
appraisal independence violations.
Pursuant to section 1472(a) of the DoddFrank Wall Street Reform and Consumer
Protection Act (Appraisal Independence
Rule) (15 U.S.C. 1639e(k)), civil money
penalties may be assessed for an initial
violation of the Appraisal Independence
Rule in an amount not to exceed
$10,875 for each day during which the
violation continues and, for subsequent
violations, $21,749 for each day during
which the violation continues.
(17) Civil money penalties assessed
for false claims and statements
pursuant to 31 U.S.C. 3802. Pursuant to
the Program Fraud Civil Remedies Act
(31 U.S.C. 3802), civil money penalties
of not more than $10,781 per claim or
statement may be assessed for violations
involving false claims and statements.
(18) Civil money penalties assessed
for violations of 42 U.S.C. 4012a(f).
Pursuant to the Flood Disaster
Protection Act (FDPA) (42 U.S.C.
4012a(f)), 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 $2,056 per
violation.
■ 3. Revise 12 CFR 308.502(a)(6), (b)(4),
and (d) to read as follows:
§ 308.502 Basis for civil penalties and
assessments.
*
*
*
*
*
(a) * * *
(6) The amount of any penalty
assessed under paragraph (a)(1) of this
section will be adjusted for inflation in
accordance with § 308.132(d)(17) of this
part.
*
*
*
*
*
(b) * * *
(4) The amount of any penalty
assessed under paragraph (a)(1) of this
section will be adjusted for inflation in
accordance with § 308.132(d)(17) of this
part.
*
*
*
*
*
E:\FR\FM\29JNR1.SGM
29JNR1
Federal Register / Vol. 81, No. 125 / Wednesday, June 29, 2016 / Rules and Regulations
(d) Civil money penalties that are
assessed under this subpart are subject
to annual adjustments to account for
inflation as required by the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (Pub. L. 114–
74, sec. 701, 129 Stat. 584) (see also 12
CFR 308.132(d)(17)).
*
*
*
*
*
PART 327—ASSESSMENTS
4. The authority citation for part 327
continues to read as follows:
■
Authority: 12 U.S.C. 1441, 1813, 1815,
1817–19, 1821.
■
5. Revise § 327.3(c) to read as follows:
§ 327.3
Payment of assessments.
*
*
*
*
*
(c) Necessary action, sufficient
funding by institution. Each insured
depository institution shall take all
actions necessary to allow the
Corporation to debit assessments from
the insured depository institution’s
designated deposit account. Each
insured depository institution shall,
prior to each payment date indicated in
paragraph (b)(2) of this section, ensure
that funds in an amount at least equal
to the amount on the quarterly certified
statement invoice are available in the
designated account for direct debit by
the Corporation. Failure to take any
such action or to provide such funding
of the account shall be deemed to
constitute nonpayment of the
assessment. Penalties for failure to
timely pay assessments are provided for
at 12 CFR 308.132(d)(9).
*
*
*
*
*
Dated at Washington, DC, this 21st day of
June, 2016.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2016–15027 Filed 6–28–16; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 878
mstockstill on DSK3G9T082PROD with RULES
[Docket No. FDA–2016–N–1618]
Medical Devices; General and Plastic
Surgery Devices; Classification of the
Electrosurgical Device for Over-theCounter Aesthetic Use
AGENCY:
Food and Drug Administration,
HHS.
VerDate Sep<11>2014
16:45 Jun 28, 2016
Jkt 238001
ACTION:
Final order.
The Food and Drug
Administration (FDA) is classifying the
electrosurgical device for over-thecounter aesthetic use into class II
(special controls). The special controls
that will apply to the device are
identified in this order and will be part
of the codified language for the
electrosurgical device for over-thecounter aesthetic use’s classification.
The Agency is classifying the device
into class II (special controls) in order
to provide a reasonable assurance of
safety and effectiveness of the device.
DATES: This order is effective June 29,
2016. The classification was applicable
on December 18, 2015.
FOR FURTHER INFORMATION CONTACT:
Long Chen, Center for Devices and
Radiological Health, Food and Drug
Administration, 10903 New Hampshire
Ave., Bldg. 66, Rm. G472, Silver Spring,
MD 20993–0002, 301–796–6389,
Long.Chen@fda.hhs.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
In accordance with section 513(f)(1) of
the Federal Food, Drug, and Cosmetic
Act (the FD&C Act) (21 U.S.C.
360c(f)(1)), devices that were not in
commercial distribution before May 28,
1976 (the date of enactment of the
Medical Device Amendments of 1976),
generally referred to as postamendments
devices, are classified automatically by
statute into class III without any FDA
rulemaking process. These devices
remain in class III and require
premarket approval, unless and until
the device is classified or reclassified
into class I or II, or FDA issues an order
finding the device to be substantially
equivalent, in accordance with section
513(i) of the FD&C Act, to a predicate
device that does not require premarket
approval. The Agency determines
whether new devices are substantially
equivalent to predicate devices by
means of premarket notification
procedures in section 510(k) of the
FD&C Act (21 U.S.C. 360(k)) and part
807 (21 CFR part 807) of the regulations.
Section 513(f)(2) of the FD&C Act as
amended by section 607 of the Food and
Drug Administration Safety and
Innovation Act (Pub. L. 112–144),
provides two procedures by which a
person may request FDA to classify a
device under the criteria set forth in
section 513(a)(1) of the FD&C Act.
Under the first procedure, the person
submits a premarket notification under
section 510(k) of the FD&C Act for a
device that has not previously been
classified and, within 30 days of
PO 00000
Frm 00019
Fmt 4700
Sfmt 4700
42243
receiving an order classifying the device
into class III under section 513(f)(1) of
the FD&C Act, the person requests a
classification under section 513(f)(2).
Under the second procedure, rather than
first submitting a premarket notification
under section 510(k) of the FD&C Act
and then a request for classification
under the first procedure, the person
determines that there is no legally
marketed device upon which to base a
determination of substantial
equivalence and requests a classification
under section 513(f)(2) of the FD&C Act.
If the person submits a request to
classify the device under this second
procedure, FDA may decline to
undertake the classification request if
FDA identifies a legally marketed device
that could provide a reasonable basis for
review of substantial equivalence with
the device or if FDA determines that the
device submitted is not of ‘‘lowmoderate risk’’ or that general controls
would be inadequate to control the risks
and special controls to mitigate the risks
cannot be developed.
In response to a request to classify a
device under either procedure provided
by section 513(f)(2) of the FD&C Act,
FDA will classify the device by written
order within 120 days. This
classification will be the initial
classification of the device.
On January 13, 2015, EndyMed
Medical Ltd., submitted a request for
classification of the NewaTM device
under section 513(f)(2) of the FD&C Act.
The manufacturer recommended that
the device be classified into class II (Ref.
1).
In accordance with section 513(f)(2) of
the FD&C Act, FDA reviewed the
request in order to classify the device
under the criteria for classification set
forth in section 513(a)(1) of the FD&C
Act. FDA classifies devices into class II
if general controls by themselves are
insufficient to provide reasonable
assurance of safety and effectiveness,
but there is sufficient information to
establish special controls to provide
reasonable assurance of the safety and
effectiveness of the device for its
intended use. After review of the
information submitted in the request,
FDA determined that the device can be
classified into class II with the
establishment of special controls. FDA
believes these special controls, in
addition to general controls, will
provide reasonable assurance of the
safety and effectiveness of the device.
Therefore, on December 18, 2015,
FDA issued an order to the requestor
classifying the device into class II. FDA
is codifying the classification of the
device by adding 21 CFR 878.4420.
E:\FR\FM\29JNR1.SGM
29JNR1
]]>Agencies
[Federal Register Volume 81, Number 125 (Wednesday, June 29, 2016)]
[Rules and Regulations]
[Pages 42235-42243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-15027]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Parts 308 and 327
RIN 3064-AE43
Rules of Practice and Procedure
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Interim final rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: The Federal Deposit Insurance Corporation (FDIC) is amending
its rules of practice and procedure under to adjust the maximum amount
of each civil money penalty (CMP) within its jurisdiction to account
for inflation. This action is required by the Federal Civil Penalties
Inflation
[[Page 42236]]
Adjustment Act Improvements Act of 2015 (2015 Adjustment Act).
DATES: This rule is effective on August 1, 2016. Comments must be
received by September 1, 2016.
ADDRESSES: You may submit comments, identified by RIN 3064-AE43, by any
of the following methods:
Agency Web site: https://www.fdic.gov/regulations/laws/federal/. Follow instructions for submitting comments on the Agency Web
site.
Email: Comments@fdic.gov. Include the RIN 3064-AE43 on the
subject line of the message.
Mail: Robert E. Feldman, Executive Secretary, Attention:
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW.,
Washington, DC 20429.
Hand Delivery: Comments may be hand-delivered to the guard
station at the rear of the 550 17th Street Building (located on F
Street) on business days between 7:00 a.m. and 5:00 p.m.
Public Inspection: All comments received must include the agency
name and RIN for this rulemaking. All comments received will be posted
without change to https://www.fdic.gov/regulations/laws/federal/,
including any personal information provided. Paper copies of public
comments may be ordered from the FDIC Public Information Center, 3501
North Fairfax Drive, Room E-1002, Arlington, VA 22226 by telephone at
(877) 275-3342 or (703) 562-2200.
FOR FURTHER INFORMATION CONTACT: Seth P. Rosebrock, Supervisory
Counsel, Legal Division (202) 898-6609, or Graham N. Rehrig, Senior
Attorney, Legal Division (202) 898-3829.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
This interim final rule adjusts the maximum limit for CMPs
according to inflation as mandated by Congress in the 2015 Adjustment
Act.\1\ The intended effect of annually adjusting maximum civil money
penalties in accordance with changes in the Consumer Price Index is to
minimize any distortion in the real value of those maximums due to
inflation, thereby promoting a more consistent deterrent effect in the
structure of CMPs. Other technical changes to 12 CFR part 308 are
intended to improve the transparency of the regulation and to assist
readers in quickly identifying the applicable CMP amounts.
---------------------------------------------------------------------------
\1\ Public Law 114-74, sec. 701, 129 Stat. 584.
---------------------------------------------------------------------------
II. Background: Current Regulatory Approach
The FDIC assesses CMPs under section 8(i) of the Federal Deposit
Insurance Act (FDIA), 12 U.S.C. 1818, and a variety of other
statutes.\2\ Congress established maximum penalties that could be
assessed under these statutes. In many cases, these statutes contain
multiple penalty tiers, permitting the assessment of penalties at
various levels depending upon the severity of the misconduct at
issue.\3\
---------------------------------------------------------------------------
\2\ See, e.g., 12 U.S.C. 1972(2)(F) (authorizing the FDIC to
impose CMPs for violations of the Bank Holding Company Act of 1970
related to prohibited tying arrangements); 15 U.S.C. 78u-2
(authorizing the FDIC to impose CMPs for violations of certain
provisions of the Securities Exchange Act of 1934); 42 U.S.C.
4012a(f) (authorizing the FDIC to impose CMPs for pattern or
practice violations of the Flood Disaster Protection Act).
\3\ For example, Section 8(i)(2) of the FDIA, 12 U.S.C.
1818(i)(2), provides for three tiers of CMPs, with the size of such
CMPs increasing with the gravity of the misconduct.
---------------------------------------------------------------------------
In 1990, Congress determined that the assessment of CMPs plays ``an
important role in deterring violations and furthering the policy goals
embodied in such laws and regulations'' and concluded that ``the impact
of many civil monetary penalties has been and is diminished due to the
effect of inflation.'' \4\ Consequently, Congress required federal
agencies with authority to impose CMPs to periodically adjust by
rulemaking the maximum CMPs which these agencies were authorized to
impose in order to ``maintain the deterrent effect of civil monetary
penalties and promote compliance with the law.'' \5\ Under the 1990
Adjustment Act, the FDIC adjusted its CMP amounts every four years,
most recently in 2012.\6\
---------------------------------------------------------------------------
\4\ Section 2 of the Federal Civil Penalties Inflation
Adjustment Act of 1990 (1990 Adjustment Act). Public Law 101-410,
104 Stat. 890 (amended 2015) (codified as amended at 28 U.S.C. 2461
note).
\5\ Id.
\6\ See 77 FR 74,573 (Dec. 17, 2012).
---------------------------------------------------------------------------
In 2015, Congress revised the process by which federal agencies
adjust applicable CMPs for inflation.\7\ Under the 2015 Adjustment Act,
the FDIC is required to (1) adjust the CMP levels with an initial
catch-up adjustment through an interim final rulemaking and (2) make
subsequent annual adjustments for inflation. The FDIC must publish an
interim final rule with initial penalty adjustment amounts by July 1,
2016, and the new maximum penalty levels must take effect no later than
August 1, 2016. These adjustments will apply to all CMPs covered by the
2015 Adjustment Act.\8\
---------------------------------------------------------------------------
\7\ Public Law 114-74, 129 Stat. 584.
\8\ The 2015 Adjustment Act defines ``civil monetary penalty''
as ``any penalty, fine, or other sanction that is for a specific
monetary amount as provided by Federal law; or has a maximum amount
provided for by Federal law; and is assessed or enforced by an
agency pursuant to Federal law; and is assessed or enforced pursuant
to an administrative proceeding or a civil action in the Federal
courts[.]'' Public Law 101-410, sec. 3(2), 104 Stat. 890 (amended
2015) (codified as amended at 28 U.S.C. 2461 note).
---------------------------------------------------------------------------
Although the 2015 Adjustment Act increases the maximum penalty that
may be assessed under each applicable statute, the FDIC possesses
discretion to impose CMP amounts below the maximum level in accordance
with the severity of the misconduct at issue. When making a
determination as to the appropriate level of any given penalty, the
FDIC is guided by statutory factors set forth in section 8(i)(2)(G) of
the FDIA, 12 U.S.C. 1818(i)(2)(G), and those factors identified in the
Interagency Policy Statement Regarding the Assessment of CMPs by the
Federal Financial Institutions Regulatory Agencies.\9\ Such factors
include, but are not limited to, the gravity and duration of the
misconduct, and the intent related to the misconduct.
---------------------------------------------------------------------------
\9\ 63 FR 30227 (June 3, 1998).
---------------------------------------------------------------------------
III. Description of the Rule
This interim final rule adjusts the maximum limit for CMPs
according to inflation as mandated by Congress in the 2015 Adjustment
Act. Additionally, other technical changes to 12 CFR part 308 are being
made to correct typographical errors, to supplement 12 CFR 308.132 to
include references to previously omitted CMPs, and to reorder the
provisions of 12 CFR 308.132 to assist readers in quickly identifying
applicable CMP amounts.
The New CMP-Adjustment System
The 2015 Adjustment Act directs federal agencies to follow guidance
issued by the Office of Management and Budget (OMB) on February 24,
2016 (OMB Guidance) when calculating new maximum penalty levels.\10\
Initial catch-up adjustments are to be based on the percent change
between the Consumer Price Index for all Urban Consumers (CPI-U) \11\
for the month of October in the year for which the CMP was established
by Congress or last adjusted for inflation (other than through the 1990
Adjustment Act), and the October 2015 CPI-U.\12\ In addition, the OMB
[[Page 42237]]
Guidance provides a table of CMP-adjustment multipliers for each
year.\13\
---------------------------------------------------------------------------
\10\ See OMB, Implementation of the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015, M-16-06 available
at https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.
\11\ The CPI-U is compiled by the Bureau of Statistics of the
Department of Labor.
\12\ The OMB Guidance directs agencies to identify, for each
CMP, the year and corresponding amount(s) for which the maximum
penalty level or range of minimum and maximum penalties was
established (i.e., as originally enacted by Congress), or last
adjusted (i.e., by Congress in statute, or by the agency through
regulation), whichever is later, other than under the Inflation
Adjustment Act. OMB Guidance at 3.
\13\ OMB Guidance at 6.
---------------------------------------------------------------------------
Summary of the FDIC's Calculations
In keeping with the OMB Guidance, the FDIC multiplied each of its
CMP amounts by the relevant inflation factor.\14\ After applying the
multiplier, the FDIC rounded each penalty level to the nearest dollar.
In accordance with the 2015 Adjustment Act, the FDIC did not increase
penalty levels by more than 150 percent of the corresponding levels in
effect on November 2, 2015. In making these calculations, the FDIC
consulted with staff from the Office of the Comptroller of the
Currency, the Board of Governors for the Federal Reserve System, the
National Credit Union Administration, and the Bureau of Consumer
Financial Protection to ensure that the FDIC's calculations and
adjustments are consistent with those being proposed by other federal
financial regulators for the same statutes.
---------------------------------------------------------------------------
\14\ Under the 1990 Adjustment Act, adjustments have been made
only to CMPs that are for specific dollar amounts or maximums. CMPs
that are assessed based upon a fixed percentage of an institution's
total assets are not subject to adjustment.
---------------------------------------------------------------------------
Summary of Adjustments
The following chart displays the adjusted CMP amounts for each CMP
identified in 12 CFR part 308.\15\ The following chart reflects the
maximum CMPs that may be assessed through July 31, 2016, and the
maximum CMPs that may be assessed on or after August 1, 2016, after the
required inflation adjustment:
---------------------------------------------------------------------------
\15\ As noted previously, the FDIC retains discretion to impose
CMPs in amounts below the referenced maximums.
----------------------------------------------------------------------------------------------------------------
Current maximum CMP Adjusted maximum CMP
U.S. Code citation (through July 31, 2016) (beginning August 1, 2016)
----------------------------------------------------------------------------------------------------------------
12 U.S.C. 1464(v):
Tier One CMP.................................... $3,200 $3,787
Tier Two CMP.................................... 32,000 37,872
Tier Three CMP.................................. 1,425,000 1,893,610
12 U.S.C. 1467(d)................................... 7,500 9,468
12 U.S.C. 1817(a):
Tier One CMP.................................... 3,200 3,787
Tier Two CMP.................................... 32,000 37,872
Tier Three CMP.................................. 1,425,000 1,893,610
12 U.S.C. 1817(c):
Tier One CMP.................................... 3,200 3,462
Tier Two CMP.................................... 32,000 34,620
Tier Three CMP.................................. 1,425,000 1,730,990
12 U.S.C. 1818(i)(2):
Tier One CMP.................................... 7,500 9,468
Tier Two CMP.................................... 37,500 47,340
Tier Three CMP.................................. 1,425,000 1,893,610
12 U.S.C. 1820(e)(4)................................ 7,500 8,655
12 U.S.C. 1820(k)(6)................................ 275,000 311,470
12 U.S.C. 1828(a)(3)................................ 100 118
12 U.S.C. 1828(h):
For assessments <$10,000........................ 100 118
12 U.S.C. 1829b(j).................................. 16,000 19,787
12 U.S.C. 1832(c)................................... 1,100 2,750
12 U.S.C. 1884...................................... 110 275
12 U.S.C. 1972(2)(F):
Tier One CMP.................................... 7,500 9,468
Tier Two CMP.................................... 37,500 47,340
Tier Three CMP.................................. 1,425,000 1,893,610
12 U.S.C. 3909(d)................................... 1,100 2,355
15 U.S.C. 78u-2:
Tier One CMP (individuals)...................... 7,500 8,908
Tier One CMP (others)........................... 70,000 89,078
Tier Two CMP (individuals)...................... 70,000 89,078
Tier Two CMP (others)........................... 350,000 445,390
Tier Three CMP (individuals).................... 140,000 178,156
Tier Three penalty (others)..................... 700,000 890,780
15 U.S.C. 1639e(k):
First violation................................. 10,000 10,875
Subsequent violations........................... 20,000 21,749
31 U.S.C. 3802...................................... 7,500 10,781
42 U.S.C. 4012a(f).................................. 2,000 2,056
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Current maximum amount New maximum amount
CFR Citation (through July 31, 2016) (beginning August 1, 2016)
----------------------------------------------------------------------------------------------------------------
12 CFR 308.132(c)--Late or Misleading Reports of Condition and Income (Call Reports)
----------------------------------------------------------------------------------------------------------------
First Offense:
$25 million or more assets:
1 to 15 days late........................... $330 $519
16 or more days late........................ 660 1,039
Less than $25 million assets:
[[Page 42238]]
1 to 15 days late........................... 110 173
16 or more days late........................ 220 346
Subsequent Offenses
$25 million or more assets:
1 to 15 days late........................... 550 865
16 or more days late........................ 1,100 1,731
----------------------------------------------------------------------------------------------------------------
Addition to Part 308 of CMPs Previously Omitted
This interim final rule incorporates adjustments to two categories
of CMPs previously inadvertently omitted from the FDIC's last
inflation-adjustment rulemaking in 2012. The Dodd-Frank Act \16\
amended the Truth in Lending Act to establish independence standards
for property appraisals and authorized the FDIC and other federal
agencies to assess specified CMPs against persons who violate these
provisions (Appraisal Independence CMP).\17\ Title III of the Dodd-
Frank Act also transferred the functions, powers, and duties of the
Office of Thrift Supervision relating to State savings associations to
the FDIC and amended section 3 of the Federal Deposit Insurance Act to
designate the FDIC as the ``appropriate Federal banking agency'' for
State savings associations. Among the transferred authorities was the
authority to impose CMPs against any State savings association under
section 9(d) of the Home Owners' Loan Act (HOLA) (12 U.S.C. 1467(d)) if
an affiliate of such an institution refuses to permit a duly-appointed
examiner to conduct an examination or refuses to provide information
during the course of an examination (Savings Association CMP).
---------------------------------------------------------------------------
\16\ Public Law 111-203, tit. XIV, sec. 1472(a), 124 Stat. 2187.
\17\ 15 U.S.C. 1639e(k).
---------------------------------------------------------------------------
Neither the Appraisal Independence CMP nor the Savings Association
CMP was previously included in part 308. Nonetheless, the FDIC is
required by the 2015 Adjustment Act to adjust all CMPs under the FDIC's
jurisdiction in the agency's inflation-adjustment rulemaking.
Consequently, the present amendment to part 308 specifically
incorporates provisions in 12 CFR 308.132 related to the Appraisal
Independence CMP and Savings Association CMP in 12 CFR 308.132,
applying the adjustments required under the 2015 Adjustment Act and the
OMB Guidance to these penalties.
Other Technical Changes to 12 CFR Part 308
The FDIC corrected a typographical error in 12 CFR 308.132(c) by
indicating that the FDIC's Board of Directors or its designee may
assess CMPs under 12 CFR 308.1(e) rather than the incorrect
``308.01(e)(1).''
The FDIC reorganized 12 CFR 308.132, listing all statutes cited
that give rise to CMPs in ascending alpha-numeric order by title and
section to assist readers in quickly identifying the applicable CMP
amounts.
Finally, the FDIC revised existing cross-references to 12 CFR
308.132 that are found in Chapter III of Title 12 of the Code of
Federal Regulations to reflect the resultant reorganization of 12 CFR
308.132.
IV. Expected Effects of the Rule
The interim final rule is expected to more precisely adjust CMP
maximums relative to inflation. These adjustments are expected to
minimize any year-to-year distortions in the real value of the CMP
maximums. These adjustments will promote a more consistent deterrent
effect in the structure of CMPs. As previously noted, the FDIC retains
discretion to impose CMP amounts below the maximum level. The actual
number and size of CMPs assessed in the future will depend on the
propensity and severity of the violations committed by banks and
institution-affiliated parties, as well as the particular statute that
is at issue. Such future violations cannot be reliably forecast. It is
expected that the FDIC will continue to exercise its discretion to
impose CMPs that are appropriate to their severity.
The 2015 Adjustment Act will likely result in a minimal increase in
administrative costs for the FDIC in order to establish new inflation-
adjusted maximum CMPs each year. Because these calculations are
relatively simple, the number of labor hours necessary to perform this
task is likely to be insignificant relative to total enforcement labor
hours for the Corporation.
V. Alternatives Considered
The 2015 Act mandates the frequency of the inflation adjustment and
the measure of inflation to be used in making these adjustments;
accordingly, the FDIC is not statutorily authorized to consider or
pursue alternative approaches. The other technical changes to 12 CFR
part 308 were relatively minor and designed to improve the transparency
and readability of the CFR, and therefore the FDIC did not actively
consider alternative approaches to these changes.
VI. Request for Comment
The 2015 Adjustment Act requires the FDIC to amend its rules
through an interim final rulemaking and provides the specific
adjustments to be made. These changes are ministerial and technical.
Under the OMB Guidance, the FDIC is not required to complete a notice-
and-comment process prior to publication of this interim final rule in
the Federal Register.\18\ Nonetheless, although notice and comment
rulemaking procedures are not required, the FDIC invites comments on
all aspects of this interim final rule. Commenters are specifically
encouraged to identify any technical issues raised by the rule,
including identifying any potential CMPs that may have been
unintentionally omitted from this adjustment rulemaking.
---------------------------------------------------------------------------
\18\ OMB Guidance at 3.
---------------------------------------------------------------------------
VII. Regulatory Analysis
Riegle Community Development and Regulatory Improvement Act
Section 302 of the Riegle Community Development and Regulatory
Improvement Act \19\ generally requires that regulations prescribed by
federal banking agencies which impose additional reporting,
disclosures, or other new requirements on insured depository
institutions take effect on the first day of a calendar quarter unless
the regulation is required to take effect on another date pursuant to
another act of Congress or the agency determines for good cause that
the regulation should become effective on an earlier date.
---------------------------------------------------------------------------
\19\ 12 U.S.C. 4802.
---------------------------------------------------------------------------
This interim final rule merely adjusts the maximum CMPs which the
FDIC may assess. It does not impose any new or additional reporting,
disclosures, or other requirements on insured depository institutions.
Additionally, as previously noted, the 2015 Adjustment
[[Page 42239]]
Act requires the interim final rule to take effect no later than August
1, 2016.\20\ Accordingly, this interim final rule will be effective
August 1, 2016.
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\20\ Public Law 114-74, 129 Stat. 584.
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Regulatory Flexibility Act
An initial regulatory flexibility analysis under the Regulatory
Flexibility Act \21\ (RFA) is required only when an agency must publish
a general notice of proposed rulemaking. As noted above, the FDIC
determined that publication of a notice of proposed rulemaking is not
necessary for this interim final rule. Accordingly, the RFA does not
require an initial regulatory flexibility analysis. Nevertheless, the
FDIC considered the likely impact of the rule on small entities. From
2011 through 2015, on average, only 1.6 percent of FDIC-supervised
institutions were ordered to pay a CMP each year. Accordingly, the FDIC
believes that the rule will not have a significant impact on a
substantial number of small entities.
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\21\ 5 U.S.C. 603.
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Small Business Regulatory Enforcement Fairness Act
The OMB has determined that the interim final rule is not a ``major
rule'' within the meaning of the relevant sections of the Small
Business Regulatory Enforcement Act of 1996 (SBREFA).\22\ As required
by SBREFA, the FDIC will submit the interim final rule and other
appropriate reports to Congress and the Government Accountability
Office for review.
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\22\ 5 U.S.C. 801 et seq.
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The Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1999: Assessment of Federal Regulations and Policies on Families
The FDIC determined that this final rule will not affect family
wellbeing within the meaning of section 654 of the Omnibus Consolidated
and Emergency Supplemental Appropriations Act, 1999.\23\
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\23\ Public Law 105-277, 112 Stat. 2681 (1998).
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Paperwork Reduction Act
The interim rule will implement statutory changes to the FDIC's CMP
regulations. It does not create any new, or revise any existing,
collections of information under section 3504(h) of the Paperwork
Reduction Act of 1980.\24\ Consequently, no information collection
request will be submitted to the OMB for review.
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\24\ 44 U.S.C. 3501 et seq.
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Plain Language Act
Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use
plain language in all proposed and final rules published after January
1, 2000.\25\ The FDIC invites comment on how to make this rule easier
to understand. For example:
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\25\ Public Law 106-102, 113 Stat. 1338 (Nov. 12, 1999).
Has the FDIC organized the material to suit your needs?
If not, how could the FDIC present the rule more clearly?
Are the requirements in the rule clearly stated? If
not, how could the rule be more clearly stated?
Do the regulations contain technical language or jargon
that is not clear? If so, which language requires clarification?
Would a different format (grouping and order of
sections, use of headings, paragraphing) make the regulation easier
to understand? If so, what changes would achieve that?
Is this section format adequate? If not, which of the
sections should be changed and how?
What other changes can the FDIC incorporate to make the
regulation easier to understand?
List of Subjects
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.
12 CFR Part 327
Bank deposit insurance, Banks, banking, Savings associations.
For the reasons set forth in the preamble, the FDIC amends 12 CFR
parts 308 and 327 to read as follows:
PART 308--RULES OF PRACTICE AND PROCEDURE
0
1. Revise the authority citation for 12 CFR part 308 to read as
follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828,
1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b),
1972, 3102, 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 5414(b)(3); 15
U.S.C. 78(h) and (i), 78o(c)(4), 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; Pub. L. 104-134, sec. 31001(s),
110 Stat. 1321; Pub. L. 109-351, 120 Stat. 1966; Pub. L. 111-203,
124 Stat. 1376; Pub. L. 114-74, sec. 701, 129 Stat. 584.
0
2. Revise Sec. 308.116(b)(4) to read as follows:
Sec. 308.116 Assessment of penalties.
* * * * *
(b) * * *
(4) Adjustment of civil money penalties by the rate of inflation
pursuant to the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015. On or after August 1, 2016:
(i) Any person who has engaged in a violation as set forth in
paragraph (b)(1) of this section shall forfeit and pay a civil money
penalty of not more than $9,468 for each day the violation continued.
(ii) Any person who has engaged in a violation, unsafe or unsound
practice or breach of fiduciary duty, as set forth in paragraph (b)(2)
of this section, shall forfeit and pay a civil money penalty of not
more than $47,340 for each day such violation, practice or breach
continued.
(iii) Any person who has knowingly engaged in a violation, unsafe
or unsound practice or breach of fiduciary duty, as set forth in
paragraph (b)(3) of this section, shall forfeit and pay a civil money
penalty not to exceed:
(A) In the case of a person other than a depository institution--
$1,893,610 per day for each day the violation, practice or breach
continued; or
(B) In the case of a depository institution--an amount not to
exceed the lesser of $1,893,610 or one percent of the total assets of
such institution for each day the violation, practice or breach
continued.
* * * * *
0
3. Amend Sec. 308.132 by revising paragraph (c)(1) and adding
paragraph (d) to read as follows:
Sec. 308.132 Assessment of penalties.
* * * * *
(c)
(1) Authority of the Board of Directors. 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. 308.1(e) of the Uniform
Rules (this part).
* * * * *
(d) Maximum civil money penalty amounts. Pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015, on
or after August 1, 2016, the Board of Directors or its designee may
assess civil money penalties in the maximum amounts as follows:
(1) Civil money penalties assessed pursuant to 12 U.S.C. 1464(v)
for late filing or the submission of false or misleading certified
statements by State savings associations. Pursuant to section 5(v) of
the Home Owners' Loan Act (12 U.S.C. 1464(v)), the Board of Directors
or its designee may assess civil money penalties as follows:
[[Page 42240]]
(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 $3,787 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 that is minimally late. For penalties assessed on or after
August 1, 2016, for violations of this paragraph (d)(1)(i), the
following maximum Tier One penalty amounts contained in paragraphs
(d)(1)(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 $519 per day for each of the first 15 days for which the
failure continues, and $1,039 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 $173 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 $346 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 $865 per day for each of the first 15 days for which the
failure continues, and $1,731 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) Lengthy or repeated violations. The amounts set forth in this
paragraph (d)(1)(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.
(D) 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 $37,872 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
$3,787 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 that 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 $37,872 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 a civil
money penalty of not more than the lesser of $1,893,610 or 1 percent of
the institution's total assets per day for each day the information is
not corrected.
(iv) Mitigating factors. The amounts set forth in this paragraph
(d)(1) may be reduced based upon the factors set forth in paragraph (b)
of this section.
(2) Civil money penalties assessed pursuant to 12 U.S.C. 1467(d)
for refusal by an affiliate of a State savings association to allow
examination or to provide required information during an examination.
Pursuant to section 9(d) of the Home Owners' Loan Act (12 U.S.C.
1467(d)), civil money penalties may be assessed against any State
savings association if an affiliate of such an institution refuses to
permit a duly-appointed examiner to conduct an examination or refuses
to provide information during the course of an examination as set forth
12 U.S.C. 1467(d), in an amount not to exceed $9,486 for each day the
refusal continues.
(3) Civil money penalties assessed pursuant to 12 U.S.C. 1817(a)
for late filings or the submission of false or misleading reports of
condition. Pursuant to section 7(a) of the FDIA (12 U.S.C. 1817(a)),
the Board of Directors or its designee may assess civil money penalties
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 $3,787 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 that is minimally late. For penalties assessed on or after
August 1, 2016, for violations of this paragraph (d)(3)(i), the
following maximum Tier One penalty amounts contained in paragraphs
(d)(3)(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 $519 per day for each of the first 15 days for which the
failure continues, and $1,039 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 $173 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 $346 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 $865 per day for each of the first 15 days for which the
failure continues, and $1,731 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) Lengthy or repeated violations. The amounts set forth in this
paragraph (d)(3)(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.
(D) 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
[[Page 42241]]
civil money penalty of not more than $34,620 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
$3,787 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 that 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 $37,872 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 a civil
money penalty of not more than the lesser of $1,893,610 or 1 percent of
the institution's total assets per day for each day the information is
not corrected.
(iv) Mitigating factors. The amounts set forth in this paragraph
(d)(3) may be reduced based upon the factors set forth in paragraph (b)
of this section.
(4) Civil money penalties assessed pursuant to 12 U.S.C. 1817(c)
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)) in an amount
not to exceed $3,462 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 $34,620 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 $1,730,990 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.
(5) 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 $9,468 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 $47,340 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 $1,893,610 or, in the case of any insured
depository institution, an amount not to exceed the lesser of
$1,893,610 or 1 percent of the total assets of such institution for
each day during which the violation, practice, or breach continues.
(i) Pursuant to 7(j)(16) of the FDIA (12 U.S.C. 1817(j)(16)), a
civil money penalty may be assessed for violations of change in control
of insured depository institution provisions pursuant to section
8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)) in the amounts set forth in
paragraph (d)(5) of this section.
(ii) 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
(d)(5).
(iii) Pursuant to section 1120(b) of the Financial Institutions
Recovery, Reform, and Enforcement Act of 1989 (FIRREA) (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
(d)(5) of this section.
(iv) 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 (d)(5) of this
section.
(v) Civil money penalties may be assessed pursuant to section
8(i)(2) of the FDIA in the amounts set forth in this paragraph (d)(5)
for violations of various consumer laws, including, but not limited to,
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.), 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.).
(6) Civil money penalties assessed pursuant to 12 U.S.C. 1820(e)
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 that 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
$8,655 for each day the refusal continues.
(7) Civil money penalties assessed pursuant to 12 U.S.C. 1820(k)
for violation of one-year restriction on Federal examiners of financial
institutions. Pursuant to section 10(k) of the FDIA (12 U.S.C.
1820(k)), the Board of Directors or its designee may assess a civil
money penalty of up to $311,470 against any covered former Federal
examiner of a financial institution who, in violation of section 10(k)
of the FDIA (12 U.S.C. 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) of the FDIA (12 U.S.C. 1820(k)), without the written
waiver or permission by the appropriate Federal banking agency or
authority under section 10(k)(5) of the FDIA (12 U.S.C. 1820(k)(5)).
(8) Civil money penalties assessed pursuant to 12 U.S.C. 1828(a)
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 that fails to
correctly display its insurance logo pursuant to that section, in an
amount
[[Page 42242]]
not to exceed $118 for each day the violation continues.
(9) Civil money penalties assessed pursuant to 12 U.S.C. 1828(h)
for failure to timely pay assessment.
(i) In general. Subject to paragraph (d)(9)(iii) of this section,
any insured depository institution that 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.
(ii) Exception in case of dispute. Paragraph (d)(9)(i) of this
section shall not apply if--
(A) 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
(B) The insured depository institution deposits security
satisfactory to the Corporation for payment upon final determination of
the issue.
(iii) Special rule for small assessment amounts. If the amount of
the assessment that 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 (d)(9)(i) of this section shall not exceed $118 for each day
that such violation continues.
(iv) Authority to modify or remit penalty. The Corporation, in the
sole discretion of the Corporation, may compromise, modify, or remit
any penalty that the Corporation may assess or has already assessed
under paragraph (d)(9)(i) of this section upon a finding that good
cause prevented the timely payment of an assessment.
(10) Civil money penalties assessed pursuant to 12 U.S.C. 1829b(j)
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 $19,787 per
violation.
(11) Civil money penalties pursuant to 12 U.S.C. 1832(c) for
violation of provisions regarding interest-bearing demand deposit
accounts. Pursuant to 12 U.S.C. 1832(c), any depository institution
that violates the prohibition regarding interest-bearing demand deposit
accounts shall be subject to a fine of $2,750 per violation.
(12) Civil penalties for violations of security measure
requirements under 12 U.S.C. 1884. Pursuant to 12 U.S.C. 1884, an
institution that 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 $275 for each day of the violation.
(13) Civil money penalties assessed pursuant to 12 U.S.C.
1972(2)(F) for prohibited tying arrangements. Pursuant to the Bank
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
$9,468 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 $47,340 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 $1,893,610 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
$1,893,610 or 1 percent of the total assets of such institution for
each day during which the violation, practice, or breach continues.
(14) Civil money penalties assessed pursuant to 12 U.S.C. 3909(d).
Pursuant to the International Lending Supervision Act (ILSA) (12 U.S.C.
3909(d)), civil money penalties 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 $2,355 for each day a violation of the ILSA or any rule,
regulation or order issued pursuant to ILSA continues.
(15) Civil money penalties assessed for violations of 15 U.S.C.
78u-2. 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 $8,908 for a natural person or $89,078 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)--$89,078 for a natural person or $445,390 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 $178,156 for a natural person or $890,780 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.
(16) Civil money penalties assessed pursuant to 15 U.S.C. 1639e(k)
for appraisal independence violations. Pursuant to section 1472(a) of
the Dodd-Frank Wall Street Reform and Consumer Protection Act
(Appraisal Independence Rule) (15 U.S.C. 1639e(k)), civil money
penalties may be assessed for an initial violation of the Appraisal
Independence Rule in an amount not to exceed $10,875 for each day
during which the violation continues and, for subsequent violations,
$21,749 for each day during which the violation continues.
(17) Civil money penalties assessed for false claims and statements
pursuant to 31 U.S.C. 3802. Pursuant to the Program Fraud Civil
Remedies Act (31 U.S.C. 3802), civil money penalties of not more than
$10,781 per claim or statement may be assessed for violations involving
false claims and statements.
(18) Civil money penalties assessed for violations of 42 U.S.C.
4012a(f). Pursuant to the Flood Disaster Protection Act (FDPA) (42
U.S.C. 4012a(f)), 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 $2,056 per violation.
0
3. Revise 12 CFR 308.502(a)(6), (b)(4), and (d) to read as follows:
Sec. 308.502 Basis for civil penalties and assessments.
* * * * *
(a) * * *
(6) The amount of any penalty assessed under paragraph (a)(1) of
this section will be adjusted for inflation in accordance with Sec.
308.132(d)(17) of this part.
* * * * *
(b) * * *
(4) The amount of any penalty assessed under paragraph (a)(1) of
this section will be adjusted for inflation in accordance with Sec.
308.132(d)(17) of this part.
* * * * *
[[Page 42243]]
(d) Civil money penalties that are assessed under this subpart are
subject to annual adjustments to account for inflation as required by
the Federal Civil Penalties Inflation Adjustment Act Improvements Act
of 2015 (Pub. L. 114-74, sec. 701, 129 Stat. 584) (see also 12 CFR
308.132(d)(17)).
* * * * *
PART 327--ASSESSMENTS
0
4. The authority citation for part 327 continues to read as follows:
Authority: 12 U.S.C. 1441, 1813, 1815, 1817-19, 1821.
0
5. Revise Sec. 327.3(c) to read as follows:
Sec. 327.3 Payment of assessments.
* * * * *
(c) Necessary action, sufficient funding by institution. Each
insured depository institution shall take all actions necessary to
allow the Corporation to debit assessments from the insured depository
institution's designated deposit account. Each insured depository
institution shall, prior to each payment date indicated in paragraph
(b)(2) of this section, ensure that funds in an amount at least equal
to the amount on the quarterly certified statement invoice are
available in the designated account for direct debit by the
Corporation. Failure to take any such action or to provide such funding
of the account shall be deemed to constitute nonpayment of the
assessment. Penalties for failure to timely pay assessments are
provided for at 12 CFR 308.132(d)(9).
* * * * *
Dated at Washington, DC, this 21st day of June, 2016.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2016-15027 Filed 6-28-16; 8:45 am]
BILLING CODE 6714-01-P
