[Federal Register Volume 65, Number 211 (Tuesday, October 31, 2000)]
[Rules and Regulations]
[Pages 64884-64887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27864]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 308
RIN 3064-AC45
Rules of Practice and Procedure
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Final rule.
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SUMMARY: The Federal Civil Monetary Penalty Inflation Adjustment Act of
1990 requires all federal agencies with statutory authority to impose
civil money penalties (CMPs) to evaluate and adjust those CMPs every
four years. The FDIC last adjusted its CMP statutes in 1996. The FDIC
is issuing this final rule to implement the required adjustments to its
CMP statutes.
EFFECTIVE DATE: October 31, 2000.
FOR FURTHER INFORMATION CONTACT: John T. Mahshie, Counsel, (202) 898-
3503, Compliance and Enforcement Section, Legal Division, 550 17th
Street, NW, Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
I. Background
The Debt Collection Improvement Act (DCIA) (Pub. L. 104-134)
amended section 4 of the Federal Civil Penalties Inflation Adjustment
Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note), to
require the head of each Federal agency to enact regulations within 180
days of the enactment of the DCIA and at least once every four years
thereafter, that adjust each CMP provided by law within the
jurisdiction of the agency (with the exception of certain specifically
listed statutes) by the inflation adjustment formula set forth in
section 5(b) of the Inflation Adjustment Act.
To satisfy the requirements of the DCIA, the FDIC is amending those
sections of part 308 of its regulations pertaining to its Rules of
Practice and Procedure which address CMPs. The amount of each CMP which
the FDIC has jurisdiction to impose has been increased according to the
prescribed formula. The penalties were last adjusted in 1996. (61 FR
57987). Any increase in penalty amounts under the DCIA shall apply only
to violations which occur after the effective date of the increase.
Summary of Calculation
The Inflation Adjustment Act requires that each CMP amount be
increased by the ``cost of living'' adjustment, which is defined as the
percentage by which the Consumer Price Index (CPI-U) \1\ for the month
of June of the calendar year preceding the adjustment exceeds the CPI
for the month of June of the calendar year in which the amount of the
CMP was last set or adjusted pursuant to law. Any increase is to be
rounded to the nearest multiple of $10 in the case of penalties less
than or equal to $100; multiple of $100 in the case of penalties
greater than $100 but less than or equal to $1,000; multiple of $1,000
in the case of penalties greater than $1,000 but less than or equal to
$10,000; multiple of $5,000 in the case of penalties greater than
$10,000 but less than or equal to $100,000; multiple of $10,000 in the
case of penalties greater than $100,000 but less than or equal to
$200,000; and multiple of $25,000 in the case of penalties greater than
$200,000. Under the DCIA, the first adjustment may not exceed ten
percent of the current penalty amount.
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\1\ The CPI-U is compiled by the Bureau of Statistics of the
Department of Labor. To calculate the adjustment, the FDIC used the
Department of Labor, Bureau of Labor Statistics B All Urban
Consumers tables to get the CPI-U values.
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Example
To explain the inflation adjustment calculation for CMP amounts
that were last adjusted in 1996, we will use the following example.
Under 12 U.S.C. 1818(i), as adjusted under 12 CFR 308.132(c), the FDIC
may impose a daily maximum Tier Three CMP not to exceed $1,100,000 for
violating certain laws.
We first determine the appropriate CPI-U. The statute requires the
FDIC to use the CPI-U for June of the calendar year preceding the year
of adjustment. Because we are adjusting CMPs in 2000, we use the CPI-U
for June 1999, which was 166.2. We must also determine the CPI-U for
June of the year the CMP was last set by law or adjusted for inflation.
Because the FDIC last adjusted the CMPs under 12 U.S.C. 1818 in 1996,
we use the CPI-U for June 1996, which was 156.7.
We next calculate the cost of living adjustment or inflation
factor. To do this, we divide the CPI-U for June 1999 (166.2) by the
CPI-U for June 1996 (156.7). The result is 1.061 (i.e., a 6.1 percent
increase).
Third, we calculate the raw inflation adjustment. To do this,
multiply the maximum penalty amounts by the inflation factor. In our
example, $1,100,000 multiplied by the inflation factor of 1.061 equals
$1,167,100.
Fourth, we round the raw inflation amounts according to the
rounding rules in section 5(a) of the Inflation Adjustment Act. Since
we round only the increased amount, we calculate the increased amount
by subtracting the current maximum penalty amounts from the raw maximum
inflation adjustments. Accordingly, the increased amount for the
maximum penalty in our example is $67,100 (i.e., $1,167,100 less
$1,100,000). Under the rounding rules, if the penalty is greater than
$200,000, we round the increase to the nearest multiple of $25,000.
Therefore, the maximum penalty increase for our example is $75,000.
Fifth, we add the rounded increase to the maximum penalty amount
last set or adjusted. In our example, $1,100,000 plus $75,000 yields a
maximum inflation adjusted penalty amount of $1,175,000.
Summary of Adjustments
Under the Inflation Adjustment Act, the FDIC must adjust for
inflation the civil monetary penalties in statutes that it administers.
The following chart displays the adjusted civil money penalty amounts
for the enumerated statues. The amounts in this chart apply to
violations that occur after October 31, 2000:
[[Page 64885]]
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U.S. Code citation Current maximum amount New maximum amount
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12 U.S.C. 1817(a):
Tier One penalties........................................ 2,000 2,200
Tier Two penalties........................................ 22,000 22,000
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 1817(c):
Tier One penalties........................................ 2,000 2,200
Tier Two penalties........................................ 22,000 22,000
Tier Three penalties 1,100,000 1,175,000..................
12 U.S.C. 1817(j):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 1818(i)(2):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 1820(e)(4) 5,500 5,500
12 U.S.C. 1828(a)(3) 110 110
12 U.S.C. 1828(h) 110 110
12 U.S.C. 1829b(j)............................................ 11,000 11,000
12 U.S.C. 1832(c)............................................. 1,100 1,100
12 U.S.C. 1884................................................ 110 110
12 U.S.C. 1972(2)(F):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 3108(b):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 3349(b):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
12 U.S.C. 3909(d)............................................. 1,100 1,100
12 U.S.C. 4717(b):
Tier One penalties........................................ 5,500 5,500
Tier Two penalties........................................ 27,500 27,500
Tier Three penalties...................................... 1,100,000 1,175,000
15 U.S.C. 78u-2............................................... 5,500 5,500
55,000 60,000
55,000 60,000
110,000 120,000
275,000 300,000
550,000 575,000
31 U.S.C. 3802................................................ 5,500 5,500
42 U.S.C. 4012a(f)............................................ 350/105,000 350/115,000
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II. Section-by-Section Analysis
Section 308.116(b)
Section 308.116(b) pertains to the amount of any CMP that may be
assessed for violations of the Change in Bank Control Act of 1978 (12
U.S.C. 1817(j)). This section has been amended by increasing the Tier
Three penalty amount from $1,100,000 for each day the violation
continues to $1,175,000 for each day the violation continues or, in the
case of a depository institution, increasing the penalty from an amount
not to exceed the lesser of $1,100,000 or one percent of the total
assets of the institution for each day the violation continues to the
lesser of $1,175,000 or one percent of the total assets of the
institution for each day the violation continues.
Section 308.132
Section 308.132 pertains to the manner in which the FDIC assesses
CMPs. Paragraph (c)(2) of that section pertains to the CMPs imposed
pursuant to section 7(a) of the Federal Deposit Insurance Act (FDIA)
(12 U.S.C. 1817(a)) for the late filing of a bank's Reports of
Condition and Income (Call Reports) or for the submission of false or
misleading Call Reports or information. Paragraph (c)(2)(i) has been
amended to reflect the increase in the Tier One penalty amount from a
maximum of $2,000 per day to $2,200 per day for each day the failure to
file continues. Paragraph (c)(ii)(3)(C) has been amended to increase
the Tier Three penalty amount from a maximum of the lesser of
$1,100,000 or one percent of the total assets of the institution for
each day the violation continues to a maximum of the lesser of
$1,175,000 or one percent of the total assets of the institution for
each day the violation continues.
Paragraph (c)(2)(iii) pertains to penalties for the submission of
false or misleading Call Reports or information. Paragraph
(c)(2)(iii)(A) of that section has been amended to reflect the increase
in Tier One penalty amounts from a maximum of $2,000 per day for each
day the information is not corrected to a maximum of $2,200 per day for
each day the information is not corrected. Paragraph (c)(2)(iii)(C) of
that section reflects the increase in Tier Three penalties from an
amount not to exceed the lesser of $1,100,000 or one percent of the
total assets of the institution for each day the information is not
[[Page 64886]]
corrected to an amount not to exceed the lesser of $1,175,000 or one
percent of the total assets of such institution for each day the
information is not corrected. No change has been made to Tier Two
penalty amounts by the DCIA.
Paragraph (c)(3)(i) sets forth the increases for CMPs assessed
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). A Tier
Three CMP which may be assessed pursuant to section 8(i)(2)(C) (12
U.S.C. 1818(i)(2)(C)) will increase from an amount not to exceed, in
the case of any person other than an insured depository institution
$1,100,000 or, in the case of any insured depository institution, the
amount will increase from an amount not to exceed the lesser of
$1,100,000 or one percent of the total assets of such institution for
each day during which the violation, practice, or breach continues to
an amount not to exceed the lesser of $1,175,000 or one percent of the
total assets of such institution for each day during which the
violation, practice, or breach continues.
Paragraph (c)(3)(i)( A) of Sec. 308.132 lists a number of statutes
which provide jurisdiction to the FDIC to assess CMPs under section
8(i)(2) of the FDIA for violation thereof, including, the Home Mortgage
Disclosure Act (12 U.S.C. 2804 et seq.) and implementing Regulation C
(12 CFR 203.6), the Expedited Funds Availability Act (12 U.S.C. 4001 et
seq.), the Truth in Savings Act (12 U.S.C. 4301 et seq.), the Real
Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) and
implementing Regulation X (24 CFR Part 3500), the Truth in Lending Act
(15 U.S.C. 1601 et seq.), the Fair Credit Reporting Act (15 U.S.C. 1681
et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.),
the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.), the
Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.), and the Fair
Housing Act (42 U.S.C. 3601 et seq.). Increases in the amount of any
CMP which the FDIC may assess for violations of those statutes are the
same as the increases for section 8(i)(2) penalties. Therefore, for the
foregoing statutes, as in section 8(i)(2), only the Tier Three penalty
amounts will increase.
Paragraph (c)(3)(ii) of Sec. 308.132 reflects the increases in CMP
amounts that may be assessed pursuant to section 7(c) of the FDIA for
late filing or the submission of false or misleading certified
statements. A Tier One CMP pursuant to section 7(c)(4)(A) of the FDIA
(12 U.S.C. 1817(c)(4)(A)) will increase from an amount not to exceed
$2,000 per day to an amount not to exceed $2,200 for each day during
which the failure to file continues or the false or misleading
information is not corrected. A Tier Three CMP which may be assessed
pursuant to section 7(c)(4)(C) of the FDIA (12 U.S.C. 1817(c)(4)(B))
will increase from an amount not to exceed the lesser of $1,100,000 or
one 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 to an amount not to exceed the lesser of
$1,175,000 or one 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. Tier Two penalties remain the
same.
Paragraph (c)(3)(ix) of Sec. 308.132 sets forth the increases in
the CMP amounts that may be assessed pursuant to the Bank Holding
Company Act of 1970 (12 U.S.C. 1841 et seq.) for prohibited tying
arrangements. A Tier Three CMP which may be assessed pursuant to 12
U.S.C. 1972(2)(F)(iii) will increase from an amount not to exceed, in
the case of any person other than an insured depository institution
$1,100,000 for each day during which the violation, practice, or breach
continues to an amount not to exceed $1,175,000 for each day during
which the violation, practice, or breach continues. In the case of any
insured depository institution, Tier Three penalties will increase from
an amount not to exceed the lesser of $1,100,000 or one percent of the
total assets of such institution for each day during which the
violation, practice, or breach continues to an amount not to exceed the
lesser of $1,175,000 or one percent of the total assets of such
institution for each day during which the violation, practice, or
breach continues. Tier One and Tier Two penalties remain the same.
Paragraph (c)(3)(x) of Sec. 308.132 indicates that pursuant to the
International Banking Act of 1978 (IBA) (12 U.S.C. 3108(b)), a CMP 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)). Such
CMP will increase in the amounts set forth in paragraph (c)(3)(i) of
Sec. 308.132 which contains the increases for section 8(i)(2).
Paragraph (c)(3)(xi) of Sec. 308.132 sets forth the increase in CMP
that may be assessed pursuant to section 8(i)(2) of the FDIA (12 U.S.C.
1818(i)(2)), as made applicable by 12 U.S.C. 3349(b), where a financial
institution seeks, obtains, or gives any other thing of value in
exchange for the performance of an appraisal by a person that the
institution knows is not a state certified or licensed appraiser in
connection with a federally related transaction. Such CMP amounts will
increase in the amounts set forth in paragraph (c)(3)(i) of
Sec. 308.132 which contains the increases for section 8(i)(2).
Paragraph (c)(3)(xiii) of Sec. 308.132 indicates that pursuant to
the Community Development Banking and Financial Institution Act
(Community Development Banking Act) (12 U.S.C. 4717(b)) a CMP 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)). Such
CMP amounts will increase in the amounts set forth in paragraph
(c)(3)(i) of Sec. 308.132 which contains the increases for section
8(i)(2).
Paragraph (c)(3)(xiv) of Sec. 308.132 sets forth that pursuant to
section 21B of the Securities Exchange Act of 1934 (Exchange Act) (15
U.S.C. 78u-2), CMPs may be assessed for violations of certain
provisions of the Exchange Act, where such penalties are in the public
interest. The Tier One CMP amounts which may be assessed pursuant to 15
U.S.C. 78u-2(b)(1) will increase from an amount not to exceed $5,500
for a natural person or $55,000 for any other person for violations set
forth in 15 U.S.C. 78u-2(a), to $5,500 for a natural person or $60,000
for any other person. The Tier Two CMP which may be assessed pursuant
to 15 U.S.C. 78u-2(b)(2) for each violation set forth in 15 U.S.C. 78u-
2(a) will increase from an amount not to exceed $55,000 for a natural
person to $275,000 for any other person to an amount not to exceed
$60,000 for a natural person or $300,000 for any other person if the
act or omission involved fraud, deceit, manipulation, or deliberate or
reckless disregard of a regulatory requirement. The Tier Three CMP
which 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
$110,000 for a natural person or $550,000 for any other person, if the
act or omission involved fraud, deceit, manipulation, or deliberate or
reckless disregard of a regulatory requirement; and such act or
omission directly or indirectly resulted in substantial losses, or
created a significant risk of substantial losses to other persons or
resulted in substantial pecuniary gain to the person who committed the
act or omission to an amount not to exceed $120,000 for a natural
person or $575,000 for any other person.
Paragraph (c)(3)(xvi) of Sec. 308.132 sets forth the CMP that may
be assessed pursuant to the Flood Disaster Protection Act (FDPA)(42
U.S.C. 4012a(f)) against any regulated lending institution that engages
in a pattern or practice of violations of the FDPA. The
[[Page 64887]]
amount of the penalty for each violation will remain at $350; however,
the annual amount which may be assessed will increase from an amount
not to exceed a total of $105,000 annually to an amount not to exceed a
total of $115,000 annually.
III. Exemption From Public Notice and Comment
Because the law requires the FDIC to amend its rules, provides the
specific adjustments to be made and leaves the FDIC no discretion in
calculating the amount of those adjustments, the changes are
ministerial, technical and noncontroversial, and the law requires that
the regulation implementing the adjustments be published in the Federal
Register within 180 days of enactment of the DCIA, the FDIC has
determined for good cause that public notice and comment is unnecessary
and impracticable under the APA (5 U.S.C. 553(b)(3)(B)), and that the
rule should be published in final form.
IV. Effective Date
For the same reasons that the FDIC for good cause has determined
that public notice and comment is unnecessary, impractical and contrary
to the public interest, the FDIC finds that it has good cause to adopt
an effective date that is less than 30 days after the date of
publication in the Federal Register pursuant to the APA (5 U.S.C.
553(d)), and therefore, the regulation is effective upon publication.
Moreover, section 302 of the Riegle Community Development and
Regulatory Improvement Act of 1994 \2\ states that a final rule
imposing new requirements must take effect on the first day of a
calendar quarter following its publication. That section provides,
however, that an agency may determine that the rule should take effect
earlier upon a finding of good cause.
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\2\ 12 U.S.C. 4802.
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Under the statute, agencies must make the required CMP inflation
adjustments: (1) According to the formula in the statute; and (2)
within four years of the last inflation adjustment, or by October 31,
2000. Agencies have no discretion as to the amount or timing of the
adjustment. The regulation is ministerial, technical, and
noncontroversial. Accordingly, the FDIC believes that notice and
comment are unnecessary. For these same reasons, the FDIC believes that
there is good cause to make this rule effective immediately upon
publication.
V. Regulatory Flexibility Act
An initial regulatory flexibility analysis under the Regulatory
Flexibility Act (RFA) is required only when an agency must publish a
general notice of proposed rulemaking.\3\ As already noted, the FDIC
has determined that publication of a notice of proposed rulemaking is
not necessary for this final rule. Accordingly, the RFA does not
require an initial regulatory flexibility analysis. Nevertheless, the
FDIC has considered the likely impact of the rule on small entities and
believes that the rule will not have a significant impact on a
substantial number of small entities.
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\3\ 5 U.S.C. 603.
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VI. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Public Law 104-121) provides generally for agencies to report
rules to Congress and for Congress to review such rules. The reporting
requirement is triggered in instances where the FDIC issues a final
rule as defined by the Administrative Procedures Act (APA) at 5 U.S.C.
551. Because the FDIC is issuing a final rule as defined by the APA,
the FDIC will file the reports required by the SBREFA.
The Office of Management and Budget has determined that this final
revision to part 308 does not constitute a ``major'' rule as defined by
the statute.
VII. The Treasury and General Government Appropriations Act, 1999
Assessment of Federal Regulations and Policies on Families
The FDIC has determined that this final rule will not affect family
well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat.
2681 (1998).
VIII. Paperwork Reduction Act
No collection of information pursuant to section 3504(h) of the
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) is contained
in this rule. Consequently, no information has been submitted to the
Office of Management and Budget for review.
IX. Authority for the Regulation
This regulation is authorized by the FDIC's general rulemaking
authority and pursuant to its fundamental responsibilities to ensure
the safety and soundness of insured depository institutions.
Specifically, 12 U.S.C. 1819(a) Tenth provides the FDIC with general
authority to issue such rules and regulations as it deems necessary to
carry out the statutory mandates of the Federal Deposit Insurance Act
and other laws that the FDIC is charged with administering or
enforcing.
List of Subjects in 12 CFR Part 308
Administrative practice and procedure, Banks, banking, Claims,
Crime, Equal access to justice, Ex parte communications, Fraud, Hearing
procedure, Lawyers, Penalties, State nonmember banks.
For the reasons set out in the preamble, part 308 of chapter III of
title 12 of the Code of Federal Regulations is amended as set forth
below.
PART 308--RULES OF PRACTICE AND PROCEDURE
1. The authority citation continues to read as follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831o, 1831p-1,
1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C.
78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3 and
78w; 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; sec.
31001(s), Pub. L. 104-134, 110 Stat. 1321-358.
Sec. 308.116 [Amended]
2. In Sec. 308.116, amend paragraphs (b)(4)(iii)(A) and
(b)(4)(iii)(B) by removing $1,100,000 and adding $1,175,000 in its
place.
Sec. 308.132 [Amended]
3. In Sec. 308.132, amend:
a. Paragraphs (c)(2)(i), (c)(2)(iii)(A), and (c)(3)(ii) by removing
$2,000 and adding $2,200 in its place.
b. Paragraphs (c)(2)(iii)(C), (c)(3)(i), and (c)(3)(ix) by removing
$1,100,000 and adding $1,175,000 in its place each time it appears.
c. Paragraph (c)(3)(xiv) by removing $55,000 and adding in its
place $60,000 each time it appears; by removing $110,000 and adding in
its place $120,000; by removing $275,000 and adding in its place
$300,000; and by removing $550,000 and adding in its place $575,000.
d. Paragraph (c)(3)(xvi) by removing $105,000 and adding in its
place $115,000.
Dated at Washington, D.C., this 17th day of October, 2000.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 00-27864 Filed 10-30-00; 8:45 am]
BILLING CODE 6714-01-P