Rules of Practice and Procedure; Rules of Practice and Procedure in Adjudicatory Proceedings; Civil Money Penalty Inflation Adjustments, 1517-1519 [2018-00536]
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Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations
U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR
parts 2 and 13:
PART 2—AGENCY RULES OF
PRACTICE AND PROCEDURE
1. The authority citation for part 2
continues to read as follows:
■
Authority: Atomic Energy Act of 1954,
secs. 29, 53, 62, 63, 81, 102, 103, 104, 105,
161, 181, 182, 183, 184, 186, 189, 191, 234
(42 U.S.C. 2039, 2073, 2092, 2093, 2111,
2132, 2133, 2134, 2135, 2201, 2231, 2232,
2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206
(42 U.S.C. 5841, 5846); Nuclear Waste Policy
Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161);
Administrative Procedure Act (5 U.S.C. 552,
553, 554, 557, 558); National Environmental
Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C.
3504 note.
Section 2.205(j) also issued under 28
U.S.C. 2461 note.
2. In § 2.205, revise paragraph (j) to
read as follows:
■
§ 2.205
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*
*
*
*
(j) Amount. A civil monetary penalty
imposed under Section 234 of the
Atomic Energy Act of 1954, as amended,
or any other statute within the
jurisdiction of the Commission that
provides for the imposition of a civil
penalty in an amount equal to the
amount set forth in Section 234, may
not exceed $290,875 for each violation.
If any violation is a continuing one,
each day of such violation shall
constitute a separate violation for the
purposes of computing the applicable
civil penalty.
PART 13—PROGRAM FRAUD CIVIL
REMEDIES
3. The authority citation for part 13
continues to read as follows:
■
Authority: 31 U.S.C. 3801 through 3812;
44 U.S.C. 3504 note.
Section 13.3 also issued under 28 U.S.C.
2461 note. Section 13.13 also issued under 31
U.S.C. 3730.
4. In § 13.3, revise paragraphs
(a)(1)(iv) and (b)(1)(ii) to read as follows:
■
sradovich on DSK3GMQ082PROD with RULES
§ 13.3 Basis for civil penalties and
assessments.
(a) * * *
(1) * * *
(iv) Is for payment for the provision
of property or services which the person
has not provided as claimed, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than $11,181 for
each such claim.
*
*
*
*
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15:52 Jan 11, 2018
Dated in Rockville, Maryland, this 28th
day of December, 2017.
For the Nuclear Regulatory Commission.
Frederick D. Brown,
Acting Executive Director for Operations.
[FR Doc. 2018–00368 Filed 1–11–18; 8:45 am]
BILLING CODE 7590–01–P
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the
Currency
12 CFR Parts 19 and 109
Civil penalties.
VerDate Sep<11>2014
(b) * * *
(1) * * *
(ii) Contains or is accompanied by an
express certification or affirmation of
the truthfulness and accuracy of the
contents of the statement, shall be
subject, in addition to any other remedy
that may be prescribed by law, to a civil
penalty of not more than $11,181 for
each such statement.
*
*
*
*
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Jkt 244001
[Docket ID OCC–2018–0001]
RIN 1557–AE14
Rules of Practice and Procedure;
Rules of Practice and Procedure in
Adjudicatory Proceedings; Civil Money
Penalty Inflation Adjustments
Office of the Comptroller of the
Currency, Treasury.
ACTION: Final rule.
AGENCY:
The Office of the Comptroller
of the Currency (OCC) is amending its
rules of practice and procedure for
national banks and its rules of practice
and procedure in adjudicatory
proceedings for Federal savings
associations to remove the chart listing
the maximum dollar amount of civil
money penalties the OCC has authority
to assess.
DATES: This rule is effective on January
12, 2018.
FOR FURTHER INFORMATION CONTACT:
Kevin Korzeniewski, Counsel,
Legislative and Regulatory Activities
Division, (202) 649–5490, or, for persons
who are deaf or hearing impaired, TTY,
(202) 649–5597.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
The Federal Civil Penalties Inflation
Adjustment Act of 1990 (the 1990
Adjustment Act),1 as amended by the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
1 Public Law 101–410, Oct. 5, 1990, 104 Stat. 890,
codified at 28 U.S.C. 2461 note.
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1517
2015 (the 2015 Adjustment Act),2
requires Federal agencies to adjust the
amount of their civil money penalties
(CMPs) 3 for inflation by January 15 of
each year, and requires the Office of
Management and Budget (OMB) to issue
guidance to Federal agencies not later
than December 15 of each year, on
implementing the required inflation
adjustments.
On January 27, 2017, the OCC
published a final rule amending its rules
of practice and procedure for national
banks and its rules of practice and
procedure in adjudicatory proceedings
for Federal savings associations to
adjust the maximum amount of each
CMP within its jurisdiction to
administer for inflation.4 The final rule
also changed the method for making
subsequent inflation adjustments,
consistent with the 2015 Adjustment
Act and OMB guidance.5 Specifically,
sections 19.240(a) and 109.103(c)(1) of
the rule codified the formula for making
inflation adjustments for national banks
and Federal savings associations,
respectively. Sections 19.240(b) and
109.103(c)(2) of the rule provided a
chart of penalties applicable during
2017. Sections 19.240(c) and
109.103(c)(3) also provided that notice
of the maximum penalties which may
be assessed for calendar years after 2017
will be published as a notice in the
Federal Register on an annual basis on
or before January 15 of each calendar
year.6
2 Public Law 114–74, Title VII, section 701(b),
Nov. 2, 2015, 129 Stat. 599, codified at 28 U.S.C.
2461 note.
3 The 2015 Adjustment Act defined a ‘‘civil
monetary penalty’’ to mean ‘‘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.’’ 28 U.S.C. 2461 note, section
3(2). Thus, a penalty based on another measure,
such as a percentage of total assets, need not be
adjusted.
4 82 FR 8584 (January 27, 2017).
5 See OMB Memorandum M–18–03,
‘‘Implementation of the 2018 annual adjustment
pursuant to the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015,’’ at 4,
which permits agencies that have codified the
formula to adjust CMPs for inflation to update the
penalties through a notice rather than a regulation.
6 To the extent an agency has codified a CMP
amount in its regulations, the agency would need
to update that amount by regulation. However, if an
agency has codified the formula for making the
CMP adjustments, then subsequent adjustments can
be made solely by notice. See OMB Memorandum
M–18–03, ‘‘Implementation of the 2018 annual
adjustment pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of
2015,’’ at 4.
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Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations
II. Description of the Final Rule
C. Regulatory Flexibility Act
12 CFR Part 109
Because the OCC will annually
publish the maximum amount of CMPs
the agency has authority to assess
through a notice in the Federal Register,
the CMP amounts listed in the charts at
12 CFR 19.240(b) and 109.103(c)(2) are
out of date. Therefore, in order to avoid
any confusion, the OCC is deleting the
charts in sections 19.240(b) and
109.103(c)(2). The OCC is also making
technical and conforming amendments
in sections 19.240 and 109.103(c) to
delete references to those charts, while
retaining a description of the formula
used to make the inflation adjustments
and information on how the OCC will
publish notice of the adjustments going
forward. A complete list of the
maximum amount of CMPs that can be
assessed by the OCC during the current
calendar year for violations that
occurred on or after November 2, 2015,
is also being published today in the
Federal Register.7
The Regulatory Flexibility Act (RFA)
requires that the agency determine the
rule’s impact on small entities and
consider options to reduce any
significant economic impact on a
substantial number of small entities.
The RFA applies only to rules for which
an agency publishes a general notice of
proposed rulemaking pursuant to 5
U.S.C. 553(b).9 Because the 2015
Adjustment Act specifically exempted
agencies’ annual adjustments from the
requirements of the APA,10 the OCC is
not issuing a general notice of proposed
rulemaking. Therefore, the RFA does
not apply to this final rule.
Administrative practice and
procedure, Federal savings associations,
Penalties.
III. Regulatory Analysis
A. Administrative Procedure Act
The Administrative Procedure Act
(APA) generally requires that an agency
publish a general notice of proposed
rulemaking in the Federal Register,
unless an exception applies. In this
case, the OCC finds an exception for
good cause that a general notice of
proposed rulemaking would be
unnecessary, as the only changes in this
final rule are technical amendments to
remove outdated information regarding
the OCC’s maximum CMP amounts and
update related cross-references.
sradovich on DSK3GMQ082PROD with RULES
B. Delayed Effective Date
Section 302 of the Riegle Community
Development and Regulatory
Improvement Act of 1994 8 (RCDRIA)
requires that the effective date of new
regulations and amendments to
regulations that impose additional
reporting, disclosures, or other new
requirements on insured depository
institutions shall be the first day of a
calendar quarter that begins on or after
the date the regulations are published in
final form. 12 U.S.C. 4802(b)(1). The
RCDRIA does not apply to this final rule
because the rule does not impose any
additional reporting, disclosures, or
other new requirements.
D. Unfunded Mandates Reform Act of
1995
Section 202 of the Unfunded
Mandates Reform Act of 1995 requires
that an agency prepare a budgetary
impact statement before promulgating
any rule likely to result in a Federal
mandate that may result in the
expenditure by State, local, and tribal
governments, in the aggregate, or by the
private sector of $100 million or more,
as adjusted for inflation, in any one
year.11 The Unfunded Mandates Reform
Act only applies when an agency issues
a general notice of proposed
rulemaking. Because the OCC is not
issuing a general notice of proposed
rulemaking, this final rule is not subject
to section 202 of the Unfunded
Mandates Reform Act.
E. Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA),12 the OCC may not
conduct or sponsor, and
notwithstanding any other provision of
law, a person is not required to respond
to, an information collection unless the
information collection displays a valid
OMB control number. The final rule
contains no information collection
requirements under the PRA.
List of Subjects
12 CFR Part 19
Administrative practice and
procedure, Crime, Equal access to
justice, Investigations, National banks,
Penalties, Securities.
95
7 Penalties
assessed for violations occurring prior
to November 2, 2015, will be subject to the
maximum amounts set forth in the OCC’s
regulations in effect prior to the enactment of the
2015 Adjustment Act.
8 12 U.S.C. 4802.
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15:52 Jan 11, 2018
Jkt 244001
U.S.C. 601(2).
U.S.C. 2461 note, section 4(b)(2) (‘‘the head
of an agency shall adjust civil money penalties and
shall make the adjustment notwithstanding section
553 of title 5, United States Code’’).
11 2 U.S.C. 1532.
12 44 U.S.C. 3501 et seq.
10 28
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Authority and Issuance
For the reasons set out in the
preamble, parts 19 and 109 of chapter I
of title 12 of the Code of Federal
Regulations are amended as follows:
PART 19—RULES OF PRACTICE AND
PROCEDURE
1. The authority citation for part 19 is
revised to read as follows:
■
Authority: 5 U.S.C. 504, 554–557; 12
U.S.C. 93(b), 93a, 164, 481, 504, 1817, 1818,
1820, 1831m, 1831o, 1832, 1884, 1972, 3102,
3108(a), 3110, 3909, and 4717; 15 U.S.C.
78(h) and (i), 78o–4(c), 78o–5, 78q–1, 78s,
78u, 78u–2, 78u–3, 78w, and 1639e; 28
U.S.C. 2461 note; 31 U.S.C. 330 and 5321;
and 42 U.S.C. 4012a.
2. Section 19.240 is revised to read as
follows:
■
§ 19.240
Inflation adjustments.
(a) Statutory formula to calculate
inflation adjustments. The OCC is
required by statute to annually adjust
for inflation the maximum amount of
each civil money penalty within its
jurisdiction to administer. The inflation
adjustment is calculated by multiplying
the maximum dollar amount of the civil
money penalty for the previous calendar
year by the cost-of-living inflation
adjustment multiplier provided
annually by the Office of Management
and Budget and rounding the total to the
nearest dollar.
(b) Notice of inflation adjustments.
The OCC will publish notice in the
Federal Register of the maximum
penalties which may be assessed on an
annual basis on or before January 15 of
each calendar year based on the formula
in paragraph (a) of this section, for
penalties assessed on, or after, the date
of publication of the most recent notice
related to conduct occurring on, or after,
November 2, 2015.
PART 109—RULES OF PRACTICE AND
PROCEDURE IN ADJUDICATORY
PROCEEDINGS
3. The authority citation for part 109
is revised to read as follows:
■
Authority: 5 U.S.C. 504, 554–557; 12
U.S.C. 1464, 1467, 1467a, 1468, 1817, 1818,
1820(k), 1829(e), 1832, 1884, 1972, 3349,
4717, 5412(b)(2)(B); 15 U.S.C. 78(l), 78o–5,
78u–2, 1639e; 28 U.S.C. 2461 note; 31 U.S.C.
5321; and 42 U.S.C. 4012a.
4. Section 109.103 is amended by
revising paragraph (c) to read as follows:
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Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations
§ 109.103
Civil money penalties.
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(c) Maximum amount of civil money
penalties—(1) Statutory formula. The
OCC is required by statute to annually
adjust for inflation the maximum
amount of each civil money penalty
within its jurisdiction to administer.
The inflation adjustment is calculated
by multiplying the maximum dollar
amount of the civil money penalty for
the previous calendar year by the costof-living inflation adjustment multiplier
provided annually by the Office of
Management and Budget and rounding
the total to the nearest dollar.
(2) Notice of inflation adjustments.
The OCC will publish notice in the
Federal Register of the maximum
penalties which may be assessed on an
annual basis on, or before, January 15 of
each calendar year based on the formula
in paragraph (a) of this section, for
penalties assessed on, or after, the date
of publication of the most recent notice
related to conduct occurring on or after
November 2, 2015.
Dated: January 9, 2018.
Karen Solomon,
Acting Senior Deputy Comptroller and Chief
Counsel, Office of the Comptroller of the
Currency.
[FR Doc. 2018–00536 Filed 1–11–18; 8:45 am]
BILLING CODE 4810–33–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 308
RIN 3064–AE71
Rules of Practice and Procedure
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
AGENCY:
The FDIC is adjusting 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 Adjustment Act Improvements
Act of 2015 (2015 Adjustment Act).
DATES: This rule is effective January 15,
2018.
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:
sradovich on DSK3GMQ082PROD with RULES
SUMMARY:
I. Policy Objectives
The Final Rule changes the maximum
limit for CMPs according to inflation as
mandated by Congress in the 2015
VerDate Sep<11>2014
17:21 Jan 11, 2018
Jkt 244001
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.
II. Background
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
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.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 make annual adjustments for
inflation.8 These adjustments apply to
all CMPs covered by the 2015
1 Public
Law 114–74, sec. 701, 129 Stat. 584.
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, e.g., 77 FR 74573 (Dec. 17, 2012).
7 See Public Law 114–74, sec. 701, 129 Stat. 584.
8 See id. at sec. 701(b).
2 See,
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1519
Adjustment Act.9 The 2015 Adjustment
Act requires annual adjustments to be
made by January 15 of each year.10
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. For
example, when making a determination
as to the appropriate level of a penalty
assessed under section 8(i)(2) of the
FDIA, 12 U.S.C. 1818(i)(2), 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.11 Such
factors include, but are not limited to,
the gravity and duration of the
misconduct, and the intent related to
the misconduct.
The 2015 Adjustment Act notes that
the FDIC ‘‘shall adjust [CMPs] and shall
make the adjustment notwithstanding
section 553 of title 5, United States
Code’’ (the Administrative Procedure
Act).12 The FDIC, therefore, is not
obligated to publish the adjustments
through notice-and-comment
rulemaking, and the FDIC is publishing
the adjustments through a final rule.
III. Description and Expected Effects of
the Final Rule
The Final Rule modifies the
maximum limit for CMPs according to
inflation as mandated by Congress in
the 2015 Adjustment Act. The 2015
Adjustment Act directs federal agencies
to follow guidance issued by the Office
of Management and Budget (OMB) on
December 15, 2017 (OMB Guidance),
when calculating new maximum
penalty levels.13 The adjustments are to
be based on the percent change between
the Consumer Price Index for all Urban
Consumers (CPI–U)14 for October 2016
and the October 2017 CPI–U.
9 See Public Law 101–410, sec. 3(2), 104 Stat. 890
(amended 2015) (codified as amended at 28 U.S.C.
2461 note).
10 Public Law 114–74, sec. 701(b), 129 Stat. 584.
11 63 FR 30227 (June 3, 1998).
12 Public Law 114–74, sec. 701(b), 129 Stat. 584
(emphasis added).
13 See OMB, Implementation of Penalty Inflation
Adjustments for 2018, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvements
Act of 2015, M–18–03 (Dec. 15, 2017), available at
https://www.whitehouse.gov/wp-content/uploads/
2017/11/M-18-03.pdf (noting that the applicable
2018 CMP-adjustment multiplier is 1.02041).
14 The CPI–U is compiled by the Bureau of Labor
Statistics of the Department of Labor.
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]]>Agencies
[Federal Register Volume 83, Number 9 (Friday, January 12, 2018)]
[Rules and Regulations]
[Pages 1517-1519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00536]
=======================================================================
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 19 and 109
[Docket ID OCC-2018-0001]
RIN 1557-AE14
Rules of Practice and Procedure; Rules of Practice and Procedure
in Adjudicatory Proceedings; Civil Money Penalty Inflation Adjustments
AGENCY: Office of the Comptroller of the Currency, Treasury.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
amending its rules of practice and procedure for national banks and its
rules of practice and procedure in adjudicatory proceedings for Federal
savings associations to remove the chart listing the maximum dollar
amount of civil money penalties the OCC has authority to assess.
DATES: This rule is effective on January 12, 2018.
FOR FURTHER INFORMATION CONTACT: Kevin Korzeniewski, Counsel,
Legislative and Regulatory Activities Division, (202) 649-5490, or, for
persons who are deaf or hearing impaired, TTY, (202) 649-5597.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act of 1990 (the
1990 Adjustment Act),\1\ as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (the 2015 Adjustment
Act),\2\ requires Federal agencies to adjust the amount of their civil
money penalties (CMPs) \3\ for inflation by January 15 of each year,
and requires the Office of Management and Budget (OMB) to issue
guidance to Federal agencies not later than December 15 of each year,
on implementing the required inflation adjustments.
---------------------------------------------------------------------------
\1\ Public Law 101-410, Oct. 5, 1990, 104 Stat. 890, codified at
28 U.S.C. 2461 note.
\2\ Public Law 114-74, Title VII, section 701(b), Nov. 2, 2015,
129 Stat. 599, codified at 28 U.S.C. 2461 note.
\3\ The 2015 Adjustment Act defined a ``civil monetary penalty''
to mean ``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.'' 28 U.S.C. 2461 note, section 3(2). Thus, a
penalty based on another measure, such as a percentage of total
assets, need not be adjusted.
---------------------------------------------------------------------------
On January 27, 2017, the OCC published a final rule amending its
rules of practice and procedure for national banks and its rules of
practice and procedure in adjudicatory proceedings for Federal savings
associations to adjust the maximum amount of each CMP within its
jurisdiction to administer for inflation.\4\ The final rule also
changed the method for making subsequent inflation adjustments,
consistent with the 2015 Adjustment Act and OMB guidance.\5\
Specifically, sections 19.240(a) and 109.103(c)(1) of the rule codified
the formula for making inflation adjustments for national banks and
Federal savings associations, respectively. Sections 19.240(b) and
109.103(c)(2) of the rule provided a chart of penalties applicable
during 2017. Sections 19.240(c) and 109.103(c)(3) also provided that
notice of the maximum penalties which may be assessed for calendar
years after 2017 will be published as a notice in the Federal Register
on an annual basis on or before January 15 of each calendar year.\6\
---------------------------------------------------------------------------
\4\ 82 FR 8584 (January 27, 2017).
\5\ See OMB Memorandum M-18-03, ``Implementation of the 2018
annual adjustment pursuant to the Federal Civil Penalties Inflation
Adjustment Act Improvements Act of 2015,'' at 4, which permits
agencies that have codified the formula to adjust CMPs for inflation
to update the penalties through a notice rather than a regulation.
\6\ To the extent an agency has codified a CMP amount in its
regulations, the agency would need to update that amount by
regulation. However, if an agency has codified the formula for
making the CMP adjustments, then subsequent adjustments can be made
solely by notice. See OMB Memorandum M-18-03, ``Implementation of
the 2018 annual adjustment pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015,'' at 4.
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[[Page 1518]]
II. Description of the Final Rule
Because the OCC will annually publish the maximum amount of CMPs
the agency has authority to assess through a notice in the Federal
Register, the CMP amounts listed in the charts at 12 CFR 19.240(b) and
109.103(c)(2) are out of date. Therefore, in order to avoid any
confusion, the OCC is deleting the charts in sections 19.240(b) and
109.103(c)(2). The OCC is also making technical and conforming
amendments in sections 19.240 and 109.103(c) to delete references to
those charts, while retaining a description of the formula used to make
the inflation adjustments and information on how the OCC will publish
notice of the adjustments going forward. A complete list of the maximum
amount of CMPs that can be assessed by the OCC during the current
calendar year for violations that occurred on or after November 2,
2015, is also being published today in the Federal Register.\7\
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\7\ Penalties assessed for violations occurring prior to
November 2, 2015, will be subject to the maximum amounts set forth
in the OCC's regulations in effect prior to the enactment of the
2015 Adjustment Act.
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III. Regulatory Analysis
A. Administrative Procedure Act
The Administrative Procedure Act (APA) generally requires that an
agency publish a general notice of proposed rulemaking in the Federal
Register, unless an exception applies. In this case, the OCC finds an
exception for good cause that a general notice of proposed rulemaking
would be unnecessary, as the only changes in this final rule are
technical amendments to remove outdated information regarding the OCC's
maximum CMP amounts and update related cross-references.
B. Delayed Effective Date
Section 302 of the Riegle Community Development and Regulatory
Improvement Act of 1994 \8\ (RCDRIA) requires that the effective date
of new regulations and amendments to regulations that impose additional
reporting, disclosures, or other new requirements on insured depository
institutions shall be the first day of a calendar quarter that begins
on or after the date the regulations are published in final form. 12
U.S.C. 4802(b)(1). The RCDRIA does not apply to this final rule because
the rule does not impose any additional reporting, disclosures, or
other new requirements.
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\8\ 12 U.S.C. 4802.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires that the agency
determine the rule's impact on small entities and consider options to
reduce any significant economic impact on a substantial number of small
entities. The RFA applies only to rules for which an agency publishes a
general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b).\9\
Because the 2015 Adjustment Act specifically exempted agencies' annual
adjustments from the requirements of the APA,\10\ the OCC is not
issuing a general notice of proposed rulemaking. Therefore, the RFA
does not apply to this final rule.
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\9\ 5 U.S.C. 601(2).
\10\ 28 U.S.C. 2461 note, section 4(b)(2) (``the head of an
agency shall adjust civil money penalties and shall make the
adjustment notwithstanding section 553 of title 5, United States
Code'').
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D. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 requires
that an agency prepare a budgetary impact statement before promulgating
any rule likely to result in a Federal mandate that may result in the
expenditure by State, local, and tribal governments, in the aggregate,
or by the private sector of $100 million or more, as adjusted for
inflation, in any one year.\11\ The Unfunded Mandates Reform Act only
applies when an agency issues a general notice of proposed rulemaking.
Because the OCC is not issuing a general notice of proposed rulemaking,
this final rule is not subject to section 202 of the Unfunded Mandates
Reform Act.
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\11\ 2 U.S.C. 1532.
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E. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA),\12\ the OCC may
not conduct or sponsor, and notwithstanding any other provision of law,
a person is not required to respond to, an information collection
unless the information collection displays a valid OMB control number.
The final rule contains no information collection requirements under
the PRA.
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\12\ 44 U.S.C. 3501 et seq.
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List of Subjects
12 CFR Part 19
Administrative practice and procedure, Crime, Equal access to
justice, Investigations, National banks, Penalties, Securities.
12 CFR Part 109
Administrative practice and procedure, Federal savings
associations, Penalties.
Authority and Issuance
For the reasons set out in the preamble, parts 19 and 109 of
chapter I of title 12 of the Code of Federal Regulations are amended as
follows:
PART 19--RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 19 is revised to read as follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 93a, 164,
481, 504, 1817, 1818, 1820, 1831m, 1831o, 1832, 1884, 1972, 3102,
3108(a), 3110, 3909, and 4717; 15 U.S.C. 78(h) and (i), 78o-4(c),
78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, 78w, and 1639e; 28 U.S.C. 2461
note; 31 U.S.C. 330 and 5321; and 42 U.S.C. 4012a.
0
2. Section 19.240 is revised to read as follows:
Sec. 19.240 Inflation adjustments.
(a) Statutory formula to calculate inflation adjustments. The OCC
is required by statute to annually adjust for inflation the maximum
amount of each civil money penalty within its jurisdiction to
administer. The inflation adjustment is calculated by multiplying the
maximum dollar amount of the civil money penalty for the previous
calendar year by the cost-of-living inflation adjustment multiplier
provided annually by the Office of Management and Budget and rounding
the total to the nearest dollar.
(b) Notice of inflation adjustments. The OCC will publish notice in
the Federal Register of the maximum penalties which may be assessed on
an annual basis on or before January 15 of each calendar year based on
the formula in paragraph (a) of this section, for penalties assessed
on, or after, the date of publication of the most recent notice related
to conduct occurring on, or after, November 2, 2015.
PART 109--RULES OF PRACTICE AND PROCEDURE IN ADJUDICATORY
PROCEEDINGS
0
3. The authority citation for part 109 is revised to read as follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 1464, 1467, 1467a,
1468, 1817, 1818, 1820(k), 1829(e), 1832, 1884, 1972, 3349, 4717,
5412(b)(2)(B); 15 U.S.C. 78(l), 78o-5, 78u-2, 1639e; 28 U.S.C. 2461
note; 31 U.S.C. 5321; and 42 U.S.C. 4012a.
0
4. Section 109.103 is amended by revising paragraph (c) to read as
follows:
[[Page 1519]]
Sec. 109.103 Civil money penalties.
* * * * *
(c) Maximum amount of civil money penalties--(1) Statutory formula.
The OCC is required by statute to annually adjust for inflation the
maximum amount of each civil money penalty within its jurisdiction to
administer. The inflation adjustment is calculated by multiplying the
maximum dollar amount of the civil money penalty for the previous
calendar year by the cost-of-living inflation adjustment multiplier
provided annually by the Office of Management and Budget and rounding
the total to the nearest dollar.
(2) Notice of inflation adjustments. The OCC will publish notice in
the Federal Register of the maximum penalties which may be assessed on
an annual basis on, or before, January 15 of each calendar year based
on the formula in paragraph (a) of this section, for penalties assessed
on, or after, the date of publication of the most recent notice related
to conduct occurring on or after November 2, 2015.
Dated: January 9, 2018.
Karen Solomon,
Acting Senior Deputy Comptroller and Chief Counsel, Office of the
Comptroller of the Currency.
[FR Doc. 2018-00536 Filed 1-11-18; 8:45 am]
BILLING CODE 4810-33-P
