81_FR_32733 81 FR 32633 - Rules of Practice and Procedure; Adjusting Civil Money Penalties for Inflation

81 FR 32633 - Rules of Practice and Procedure; Adjusting Civil Money Penalties for Inflation

FARM CREDIT ADMINISTRATION

Federal Register Volume 81, Issue 100 (May 24, 2016)

Page Range32633-32635
FR Document2016-11862

This regulation implements inflation adjustments to civil money penalties (CMPs) that the Farm Credit Administration (FCA) may impose or enforce pursuant to the Farm Credit Act of 1971, as amended (Farm Credit Act), and pursuant to the Flood Disaster Protection Act of 1973, as amended by the National Flood Insurance Reform Act of 1994 (Reform Act), and further amended by the Biggert-Waters Flood Insurance Reform Act of 2012 (Biggert-Waters Act). The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 (1996 Act) and the Federal Civil Penalties Inflation Adjustment Act of 2015 (2015 Act) (collectively, 1990 Act, as amended), requires all Federal agencies with the authority to enforce CMPs to evaluate those CMPs each year to ensure that they continue to maintain their deterrent value and promote compliance with the law.

Federal Register, Volume 81 Issue 100 (Tuesday, May 24, 2016)
[Federal Register Volume 81, Number 100 (Tuesday, May 24, 2016)]
[Rules and Regulations]
[Pages 32633-32635]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-11862]


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FARM CREDIT ADMINISTRATION

12 CFR Part 622

RIN 3052-AD16


Rules of Practice and Procedure; Adjusting Civil Money Penalties 
for Inflation

AGENCY: Farm Credit Administration.

ACTION: Final rule.

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SUMMARY: This regulation implements inflation adjustments to civil 
money penalties (CMPs) that the Farm Credit Administration (FCA) may 
impose or enforce pursuant to the Farm Credit Act of 1971, as amended 
(Farm Credit Act), and pursuant to the Flood Disaster Protection Act of 
1973, as amended by the National Flood Insurance Reform Act of 1994 
(Reform Act), and further amended by the Biggert-Waters Flood Insurance 
Reform Act of 2012 (Biggert-Waters Act). The Federal Civil Penalties 
Inflation Adjustment Act of 1990, as amended by the Debt Collection 
Improvement Act of 1996 (1996 Act) and the Federal Civil Penalties 
Inflation Adjustment Act of 2015 (2015 Act) (collectively, 1990 Act, as 
amended), requires all Federal agencies with the authority to enforce 
CMPs to evaluate those CMPs each year to ensure that they continue to 
maintain their deterrent value and promote compliance with the law.

EFFECTIVE DATE: This regulation is effective on August 1, 2016.

FOR FURTHER INFORMATION CONTACT:
Michael T. Wilson, Policy Analyst, Office of Regulatory Policy, Farm 
Credit Administration, McLean, VA 22102-5090, (703) 883-4124, TTY (703) 
883-4056,
Or
Autumn Agans, Attorney-Advisor, Office of General Counsel, Farm Credit 
Administration, McLean, VA 22102-5090, (703) 883-4082, TTY (703) 883-
4056.

SUPPLEMENTARY INFORMATION:

I. Objective

    The objective of this regulation is to adjust the maximum CMPs for 
inflation with an initial ``catch-up'' adjustment through an interim 
final rulemaking (IFR) to retain the deterrent effect of such 
penalties.

II. Background

A. Introduction

    Section 3(2) of the 1990 Act, as amended, defines a civil monetary 
penalty \1\ as any penalty, fine, or other sanction that: (1) Either is 
for a specific monetary amount as provided by Federal law or has a 
maximum amount provided for by Federal law; (2) is assessed or enforced 
by an agency pursuant to Federal law; and (3) is assessed or enforced 
pursuant to an administrative proceeding or a civil action in the 
Federal courts.\2\
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    \1\ While the 1990 Act, as amended by 1996 and 2015 Acts, uses 
the term ``civil monetary penalties'' for these penalties or other 
sanctions, the Farm Credit Act and the FCA Regulations use the term 
``civil money penalties.'' Both terms have the same meaning. 
Accordingly, this rule uses the term ``civil money penalty'', and 
both terms may be used interchangeably.
    \2\ See 28 U.S.C. 2461 note.
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    The FCA imposes and enforces CMPs through the Farm Credit Act and 
the Flood Disaster Protection Act of 1973, as amended. FCA's 
regulations governing CMPs are found in 12 CFR parts 622 and 623. Part 
622 establishes rules of practice and procedure applicable to formal 
and informal hearings held before the FCA, and to formal investigations 
conducted under the Farm Credit Act. Part 623 prescribes rules with 
regard to persons who may practice before the FCA and the circumstances 
under which such persons may be suspended or debarred from practice 
before the FCA.

B. CMPs Issued Under the Farm Credit Act

    The Farm Credit Act provides that any Farm Credit System (System) 
institution or any officer, director, employee, agent, or other person 
participating in the conduct of the affairs of a System institution who 
violates the terms of a cease-and-desist order that has become final 
pursuant to section 5.25 or 5.26 of the Farm Credit Act must pay up to 
a maximum daily amount of $1,000 \3\ during which such violation 
continues. This CMP maximum was set by the Farm Credit Amendments Act 
of 1985, which amended the Farm Credit Act. Orders issued by the FCA 
under section 5.25 or 5.26 of the Farm Credit Act include temporary and 
permanent cease-and-desist orders. In addition, section 5.32(h) of the 
Farm Credit Act provides that any directive issued under sections 
4.3(b)(2), 4.3A(e), or section 4.14A(i) of the Farm Credit Act ``shall 
be treated'' as a final order issued under section 5.25 of the Farm 
Credit Act for purposes of assessing a CMP.
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    \3\ The inflation-adjusted CMP in effect on November 2, 2015, 
for a violation of a final order is $1,100 per day, as set forth in 
Sec.  622.61(a)(1) of FCA regulations.
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    Section 5.32(a) of the Farm Credit Act also states that ``[a]ny 
such institution or person who violates any provision of the [Farm 
Credit] Act or any regulation issued under this Act shall forfeit and 
pay a civil penalty of not more than $500 \4\ per day for each day 
during which such violation continues.'' This CMP maximum was set by 
the Agricultural Credit Act of 1987, which was enacted in 1988, and 
amends the Farm Credit Act. Current, inflation-adjusted CMP maximums 
are set forth in existing Sec.  622.61 of FCA regulations.\5\
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    \4\ The inflation-adjusted CMP in effect on November 2, 2015, 
for a violation of the Farm Credit Act or a regulation issued under 
the Farm Credit Act is $750 per day, as set forth in Sec.  
622.61(a)(2) of FCA regulations.
    \5\ Prior adjustments were made under the 1990 Act.
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    The FCA also enforces the Flood Disaster Protection Act of 1973,\6\ 
as amended by the National Flood Insurance Reform Act of 1994,\7\ which 
requires FCA to assess CMPs for a pattern or practice of committing 
certain specific actions in violation of the National Flood Insurance 
Program. The existing maximum CMP for a violation under the Flood 
Disaster Protection Act of 1973 is $2,000.\8\
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    \6\ 42 U.S.C. 4012a.
    \7\ Pub. L. 103-325, title V, 108 Stat. 2160, 2255-87 (September 
23, 1994).
    \8\ Pub. L. 112-141, 126 Stat. 405 (July 6, 2012).

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[[Page 32634]]

C. Federal Civil Penalties Inflation Adjustment Act Improvements Act of 
2015

1. In General
    The 2015 Act requires all Federal agencies with authority to issue 
CMPs to make inflation-based adjustments to all CMPs within their 
jurisdictions no later than July 1, 2016. The 2015 Act also requires 
every Federal agency to adjust the CMPs yearly, starting January 15, 
2017.
    Under Section 4(b) of the 1990 Act, as amended, for the first 
adjustment made in accordance with the 2015 Act amendments, Federal 
agencies are to make a ``catch up'' adjustment to the civil monetary 
penalties through an IFR, with the adjustment taking effect no later 
than August 1, 2016.\9\ Subsequent adjustments are to be made yearly 
thereafter, no later than January 15. Section 6 of the 1990 Act, as 
amended, states that any increase to a civil monetary penalty under 
this Act applies only to civil monetary penalties, including those 
whose associated violation predated such increase, which are assessed 
after the date the increase takes effect.
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    \9\ Pub. L. 114-74, sec. 701(b)(1).
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    Section 5(b) of the 1990 Act, as amended, defines the term ``cost-
of-living adjustment'' as the percentage (if any) for each civil 
monetary penalty by which (1) the Consumer Price Index (CPI) for the 
month of October of the calendar year preceding the adjustment, exceeds 
(2) the CPI for the month of October 1 year before the month of October 
referred to in (1) of the calendar year in which the amount of such 
civil monetary penalty was last set or adjusted pursuant to law.\10\
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    \10\ The CPI is published by the Department of Labor, Bureau of 
Statistics, and is available at its Web site: ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt.
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    The ``catch-up'' adjustment under the 2015 Act amendments requires 
Federal agencies to use the cost-of-living adjustment calculated by 
determining the percentage change (if any) for each civil monetary 
penalty by which the CPI for the month of October 2015 exceeds the CPI 
for the month of October during the calendar year in which the CMP was 
created or last adjusted for any reason other than pursuant to the 1996 
Act. Several adjustments have been made since the Farm Credit Act 
established the CMP maximums. Those maximums are to be disregarded for 
purposes of the 2015 Act amendment initial ``catch-up'' adjustment 
calculation. However, agencies are limited to a 150-percent increase in 
CMPs, based upon the CMP in effect on November 2, 2015. The 150-percent 
limitation is on the amount of the increase; therefore, the adjusted 
penalty level(s) will be up to 250 percent of the level(s) in effect on 
November 2, 2015.\11\
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    \11\ OMB Circular M-16-06, Implementation of the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015.
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    The increase for each CMP adjusted for inflation must be rounded 
using a method prescribed by section 5(a) of the 1990 Act, as amended, 
by the 2015 Act.\12\
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    \12\ Per section 5(a)(3) of the 2015 Act, any increase 
determined under the subsection shall be rounded to the nearest $1.
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2. Other Adjustments
    If a civil monetary penalty is subject to a cost-of-living 
adjustment under the 1990 Act, as amended, but is adjusted to an amount 
greater than the amount of the adjustment required under the Act within 
the 12 months preceding a required cost-of-living adjustment, the 
agency is not required to make the cost-of-living adjustment to that 
CMP in that calendar year.\13\
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    \13\ Per section 4(d) of the 1990 Act, as amended.
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III. Catch-Up Adjustments

A. Mathematical Calculations of Catch-Up Adjustments

    The adjustment requirement affects two provisions of section 
5.32(a) of the Farm Credit Act. For the ``catch-up'' adjustments to the 
CMPs set forth by the Farm Credit Act, the calculation required by the 
2015 Act is based on the percentage by which the CPI for October 2015 
exceeds the CPIs for October 1985 and October 1988, respectively. The 
maximum CMPs for violations under section 5.32(a) were established in 
1985 and 1988. The White House Office of Management and Budget (OMB) 
set forth guidance, as required by the 2015 Act,\14\ with a grid of 
multipliers for calculating the new CMP values.\15\ The OMB multiplier 
for the 1985 CMPs is 2.18802. The OMB multiplier for the 1988 CMPs is 
1.97869.
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    \14\ 28 U.S.C. 2461 note, section 7(a).
    \15\ OMB Circular M-16-06, Implementation of the Federal Civil 
Penalties Inflation Adjustment Act Improvements Act of 2015.
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    The adjustment also affects the CMPs set by the Flood Disaster 
Protection Act of 1973, as amended. For the ``catch-up'' adjustments to 
the CMP set forth by the Flood Disaster Protection Act of 1973, as 
amended, the calculation required by the 2015 Act is based on the 
percentage by which the CPI for October 2012 exceeds the CPI for 
October 2015. The maximum CMPs for violations were created in 2012 by 
the Biggert-Waters Act, which amended the Flood Disaster Protection Act 
of 1973. The multiplier for the 2012 CMPs is 1.02819.
    If any of the CMP increases exceed 150 percent of the maximums in 
effect as of November 2, 2015, the new maximum CMPs will reflect a 
simple 150-percent increase over the November 2, 2015, CMP 
maximums.\16\
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    \16\ The 150-percent limitation is on the amount of the 
increase; therefore, the adjusted penalty level(s) will be up to 250 
percent of the level(s) in effect on November 2, 2015. OMB Circular, 
M-16-06.
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1. New Penalty Amount in Sec.  622.61(a)(1)
    While the inflation-adjusted CMP currently in effect for violations 
of a final order occurring on or after November 2, 2015, is a maximum 
daily amount of $1,100,\17\ the 2015 Act amendments require FCA to use 
the maximum daily amount of $1,000 to compute the catch-up adjustment 
as this was the amount in effect in 1985. Multiplying the $1,000 CMP by 
the 1985 OMB multiplier, 2.18802, yields a total of $2,188.02. When 
that number is rounded as required by section 5(a) of the 1990 Act, as 
amended the inflation-adjusted maximum increases to $2,188. The CMP in 
effect on November 2, 2015 was $1,100. Increasing the 2015 CMP maximum 
of $1,100 by 150 percent yields a CMP of $2,750. Since the new CMP 
maximum calculated with the 1985 OMB multiplier is less than the 150-
percent maximum increase established by the 2015 Act amendments, the 
new CMP maximum is $2,188.
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    \17\ 12 CFR 622.61(a)(1).
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2. New Penalty Amount in Sec.  622.61(a)(2)
    While the inflation-adjusted CMP currently in effect for violations 
of the Farm Credit Act or regulations issued under the Farm Credit Act 
occurring on or after November 2, 2015, is a maximum daily amount of 
$750,\18\ the 2015 Act amendments require FCA to use the maximum daily 
amount of $500 to compute the catch-up adjustment as this was the 
amount in effect in 1988. Multiplying the $500 CMP maximum by the 1988 
OMB multiplier, 1.97869, yields a total of $989.35. When that number is 
rounded as required by section 5(a) of the 1990 Act, as amended the 
inflation-adjusted maximum increases to $989. The CMP in effect on 
November 2, 2015 was $750. Increasing the 2015 CMP of $750 by 150 
percent yields a total of $1,875. Since the new CMP maximum calculated 
with the 1988 OMB multiplier is less than the 150-percent maximum 
increase established by the 2015 Act

[[Page 32635]]

amendments, the new CMP maximum is $989.
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    \18\ 12 CFR 622.61(a)(2).
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3. New Penalty Amounts for Flood Insurance Violations Under Sec.  
622.61(b)
    The existing maximum CMP for a pattern or practice of flood 
insurance violations pursuant to 42 U.S.C. 4012a(f)(5) is $2,000. 
Multiplying $2,000 by the 2012 OMB multiplier, 1.02819, yields a total 
of $2,056.38. When that number is rounded as required by section 5(a) 
of the 1990 Act, as amended, the new maximum assessment of the CMP for 
violating 42 U.S.C. 4012a(f)(5) is $2,056. The CMP in effect on 
November 2, 2015 was $2,000. Increasing the 2015 CMP of $2,000 by 150 
percent yields $5,000. Since the new CMP maximum calculated with the 
OMB multiplier is lower than the 150-percent maximum increase 
established by the 2015 Act amendments, the new CMP maximum is $2,056.

IV. Notice and Comment Not Required by Administrative Procedure Act

    The 1990 Act, as amended, gives Federal agencies no discretion in 
the adjustment of CMPs for the rate of inflation. Further, these 
revisions are ministerial, technical, and noncontroversial. For these 
reasons, the FCA finds good cause to determine that public notice and 
an opportunity to comment are impracticable, unnecessary, and contrary 
to the public interest pursuant to the Administrative Procedure Act, 5 
U.S.C. 553(b)(B), and adopts this rule in final form.

V. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the FCA hereby certifies that this final rule will 
not have a significant economic impact on a substantial number of small 
entities. Each of the banks in the System, considered together with its 
affiliated associations, has assets and annual income in excess of the 
amounts that would qualify them as small entities. Therefore, System 
institutions are not ``small entities'' as defined in the Regulatory 
Flexibility Act.

List of Subjects in 12 CFR Part 622

    Administrative practice and procedure, Crime, Investigations, 
Penalties.

    For the reasons stated in the preamble, part 622 of chapter VI, 
title 12 of the Code of Federal Regulations is amended to read as 
follows:

PART 622--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 622 continues to read as follows:

    Authority: Secs. 5.9, 5.10, 5.17, 5.25-5.37 of the Farm Credit 
Act (12 U.S.C. 2243, 2244, 2252, 2261-2273); 28 U.S.C. 2461 note; 
and 42 U.S.C. 4012a(f).

0
2. Revise Sec.  622.61 to read as follows:


Sec.  622.61  Adjustment of civil money penalties by the rate of 
inflation under the Federal Civil Penalties Inflation Adjustment Act of 
1990, as amended.

    (a) The maximum amount of each civil money penalty within FCA's 
jurisdiction is adjusted in accordance with the Federal Civil Penalties 
Inflation Adjustment Act of 1990, as amended (28 U.S.C. 2461 note), as 
follows:
    (1) Amount of civil money penalty imposed under section 5.32 of the 
Act for violation of a final order issued under section 5.25 or 5.26 of 
the Act: The maximum daily amount is $2,188 for violations that occur 
on or after August 1, 2016.
    (2) Amount of civil money penalty for violation of the Act or 
regulations: The maximum daily amount is $989 for each violation that 
occurs on or after August 1, 2016.
    (b) The maximum civil money penalty amount assessed under 42 U.S.C. 
4012a(f) is: $385 for each violation that occurs on or after January 
16, 2009, but before July 1, 2013, with total penalties under such 
statute not to exceed $120,000 for any single institution during any 
calendar year; $2,000 for each violation that occurs on or after July 
1, 2013, but before August 1, 2016, with no cap on the total amount of 
penalties that can be assessed against any single institution during 
any calendar year; and $2,056 for each violation that occurs on or 
after August 1, 2016, with no cap on the total amount of penalties that 
can be assessed against any single institution during any calendar 
year.

    Dated: May 16, 2016.
Dale L. Aultman,
Secretary, Farm Credit Administration Board.
[FR Doc. 2016-11862 Filed 5-23-16; 8:45 am]
 BILLING CODE 6705-01-P



                                                                   Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Rules and Regulations                                                    32633

                                                the Energy Policy and Conservation Act, as              authority to enforce CMPs to evaluate                   B. CMPs Issued Under the Farm Credit
                                                amended (ECPA), 42 U.S.C.                               those CMPs each year to ensure that                     Act
                                                6295(o)(2)(B)(i)(V), which requires the                 they continue to maintain their
                                                Attorney General to make a determination of             deterrent value and promote compliance                     The Farm Credit Act provides that
                                                the impact of any lessening of competition                                                                      any Farm Credit System (System)
                                                that is likely to result from the imposition of
                                                                                                        with the law.
                                                                                                        EFFECTIVE DATE: This regulation is
                                                                                                                                                                institution or any officer, director,
                                                proposed energy conservation standards. The
                                                Attorney General’s responsibility for                   effective on August 1, 2016.                            employee, agent, or other person
                                                responding to requests from other                                                                               participating in the conduct of the
                                                                                                        FOR FURTHER INFORMATION CONTACT:
                                                departments about the effect of a program on                                                                    affairs of a System institution who
                                                                                                        Michael T. Wilson, Policy Analyst,                      violates the terms of a cease-and-desist
                                                competition has been delegated to the
                                                                                                          Office of Regulatory Policy, Farm                     order that has become final pursuant to
                                                Assistant Attorney General for the Antitrust
                                                Division in 28 CFR 0.40(g).                               Credit Administration, McLean, VA                     section 5.25 or 5.26 of the Farm Credit
                                                  In conducting its analysis, the Antitrust               22102–5090, (703) 883–4124, TTY                       Act must pay up to a maximum daily
                                                Division examines whether a proposed                      (703) 883–4056,                                       amount of $1,000 3 during which such
                                                standard may lessen competition, for                    Or                                                      violation continues. This CMP
                                                example, by substantially limiting consumer             Autumn Agans, Attorney-Advisor,
                                                choice or increasing industry concentration.
                                                                                                                                                                maximum was set by the Farm Credit
                                                                                                          Office of General Counsel, Farm
                                                A lessening of competition could result in                                                                      Amendments Act of 1985, which
                                                                                                          Credit Administration, McLean, VA
                                                higher prices to manufacturers and                                                                              amended the Farm Credit Act. Orders
                                                                                                          22102–5090, (703) 883–4082, TTY
                                                consumers.                                                                                                      issued by the FCA under section 5.25 or
                                                                                                          (703) 883–4056.
                                                  We have reviewed the proposed standards                                                                       5.26 of the Farm Credit Act include
                                                contained in the Supplemental Notice of                 SUPPLEMENTARY INFORMATION:                              temporary and permanent cease-and-
                                                Proposed Rulemaking (81 FR 2111 & 2420,                 I. Objective                                            desist orders. In addition, section
                                                January 15, 2016) and the related Technical                                                                     5.32(h) of the Farm Credit Act provides
                                                Support Documents.                                         The objective of this regulation is to               that any directive issued under sections
                                                  Based on this review, our conclusion is               adjust the maximum CMPs for inflation                   4.3(b)(2), 4.3A(e), or section 4.14A(i) of
                                                that the proposed energy conservation                   with an initial ‘‘catch-up’’ adjustment
                                                standards for commercial warm air furnace                                                                       the Farm Credit Act ‘‘shall be treated’’
                                                                                                        through an interim final rulemaking                     as a final order issued under section
                                                equipment, commercial air-conditioning                  (IFR) to retain the deterrent effect of
                                                equipment, and commercial heat pump                                                                             5.25 of the Farm Credit Act for purposes
                                                equipment are unlikely to have a significant
                                                                                                        such penalties.                                         of assessing a CMP.
                                                adverse impact on competition.                          II. Background                                             Section 5.32(a) of the Farm Credit Act
                                                Sincerely,                                              A. Introduction                                         also states that ‘‘[a]ny such institution or
                                                William J. Baer                                                                                                 person who violates any provision of
                                                                                                          Section 3(2) of the 1990 Act, as                      the [Farm Credit] Act or any regulation
                                                [FR Doc. 2016–12279 Filed 5–23–16; 8:45 am]
                                                                                                        amended, defines a civil monetary                       issued under this Act shall forfeit and
                                                BILLING CODE 6450–01–P
                                                                                                        penalty 1 as any penalty, fine, or other                pay a civil penalty of not more than
                                                                                                        sanction that: (1) Either is for a specific             $500 4 per day for each day during
                                                                                                        monetary amount as provided by                          which such violation continues.’’ This
                                                FARM CREDIT ADMINISTRATION                              Federal law or has a maximum amount                     CMP maximum was set by the
                                                                                                        provided for by Federal law; (2) is                     Agricultural Credit Act of 1987, which
                                                12 CFR Part 622                                         assessed or enforced by an agency                       was enacted in 1988, and amends the
                                                RIN 3052–AD16                                           pursuant to Federal law; and (3) is                     Farm Credit Act. Current, inflation-
                                                                                                        assessed or enforced pursuant to an                     adjusted CMP maximums are set forth
                                                Rules of Practice and Procedure;                        administrative proceeding or a civil                    in existing § 622.61 of FCA regulations.5
                                                Adjusting Civil Money Penalties for                     action in the Federal courts.2
                                                Inflation                                                 The FCA imposes and enforces CMPs                        The FCA also enforces the Flood
                                                                                                        through the Farm Credit Act and the                     Disaster Protection Act of 1973,6 as
                                                AGENCY:    Farm Credit Administration.                                                                          amended by the National Flood
                                                                                                        Flood Disaster Protection Act of 1973, as
                                                ACTION:   Final rule.                                   amended. FCA’s regulations governing                    Insurance Reform Act of 1994,7 which
                                                                                                        CMPs are found in 12 CFR parts 622 and                  requires FCA to assess CMPs for a
                                                SUMMARY:   This regulation implements                                                                           pattern or practice of committing certain
                                                                                                        623. Part 622 establishes rules of
                                                inflation adjustments to civil money                                                                            specific actions in violation of the
                                                                                                        practice and procedure applicable to
                                                penalties (CMPs) that the Farm Credit                                                                           National Flood Insurance Program. The
                                                                                                        formal and informal hearings held
                                                Administration (FCA) may impose or                                                                              existing maximum CMP for a violation
                                                                                                        before the FCA, and to formal
                                                enforce pursuant to the Farm Credit Act                                                                         under the Flood Disaster Protection Act
                                                                                                        investigations conducted under the
                                                of 1971, as amended (Farm Credit Act),                                                                          of 1973 is $2,000.8
                                                                                                        Farm Credit Act. Part 623 prescribes
                                                and pursuant to the Flood Disaster
                                                                                                        rules with regard to persons who may
                                                Protection Act of 1973, as amended by                                                                              3 The inflation-adjusted CMP in effect on
                                                                                                        practice before the FCA and the
                                                the National Flood Insurance Reform                                                                             November 2, 2015, for a violation of a final order
                                                                                                        circumstances under which such
                                                Act of 1994 (Reform Act), and further                                                                           is $1,100 per day, as set forth in § 622.61(a)(1) of
                                                                                                        persons may be suspended or debarred                    FCA regulations.
                                                amended by the Biggert-Waters Flood
                                                                                                        from practice before the FCA.                              4 The inflation-adjusted CMP in effect on
                                                Insurance Reform Act of 2012 (Biggert-                                                                          November 2, 2015, for a violation of the Farm Credit
                                                Waters Act). The Federal Civil Penalties                                                                        Act or a regulation issued under the Farm Credit
mstockstill on DSK3G9T082PROD with RULES




                                                                                                           1 While the 1990 Act, as amended by 1996 and
                                                Inflation Adjustment Act of 1990, as                    2015 Acts, uses the term ‘‘civil monetary penalties’’   Act is $750 per day, as set forth in § 622.61(a)(2)
                                                amended by the Debt Collection                          for these penalties or other sanctions, the Farm        of FCA regulations.
                                                                                                                                                                   5 Prior adjustments were made under the 1990
                                                Improvement Act of 1996 (1996 Act)                      Credit Act and the FCA Regulations use the term
                                                                                                        ‘‘civil money penalties.’’ Both terms have the same     Act.
                                                and the Federal Civil Penalties Inflation                                                                          6 42 U.S.C. 4012a.
                                                                                                        meaning. Accordingly, this rule uses the term ‘‘civil
                                                Adjustment Act of 2015 (2015 Act)                       money penalty’’, and both terms may be used                7 Pub. L. 103–325, title V, 108 Stat. 2160, 2255–
                                                (collectively, 1990 Act, as amended),                   interchangeably.                                        87 (September 23, 1994).
                                                requires all Federal agencies with the                     2 See 28 U.S.C. 2461 note.                              8 Pub. L. 112–141, 126 Stat. 405 (July 6, 2012).




                                           VerDate Sep<11>2014   17:11 May 23, 2016   Jkt 238001   PO 00000   Frm 00017   Fmt 4700   Sfmt 4700   E:\FR\FM\24MYR1.SGM    24MYR1


                                                32634               Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Rules and Regulations

                                                C. Federal Civil Penalties Inflation                    percent limitation is on the amount of                   Protection Act of 1973. The multiplier
                                                Adjustment Act Improvements Act of                      the increase; therefore, the adjusted                    for the 2012 CMPs is 1.02819.
                                                2015                                                    penalty level(s) will be up to 250                          If any of the CMP increases exceed
                                                                                                        percent of the level(s) in effect on                     150 percent of the maximums in effect
                                                1. In General
                                                                                                        November 2, 2015.11                                      as of November 2, 2015, the new
                                                   The 2015 Act requires all Federal                      The increase for each CMP adjusted                     maximum CMPs will reflect a simple
                                                agencies with authority to issue CMPs to                for inflation must be rounded using a
                                                make inflation-based adjustments to all                                                                          150-percent increase over the November
                                                                                                        method prescribed by section 5(a) of the                 2, 2015, CMP maximums.16
                                                CMPs within their jurisdictions no later                1990 Act, as amended, by the 2015
                                                than July 1, 2016. The 2015 Act also                    Act.12                                                   1. New Penalty Amount in § 622.61(a)(1)
                                                requires every Federal agency to adjust
                                                the CMPs yearly, starting January 15,                   2. Other Adjustments                                        While the inflation-adjusted CMP
                                                2017.                                                                                                            currently in effect for violations of a
                                                                                                          If a civil monetary penalty is subject
                                                   Under Section 4(b) of the 1990 Act, as                                                                        final order occurring on or after
                                                                                                        to a cost-of-living adjustment under the
                                                amended, for the first adjustment made                                                                           November 2, 2015, is a maximum daily
                                                                                                        1990 Act, as amended, but is adjusted
                                                in accordance with the 2015 Act                                                                                  amount of $1,100,17 the 2015 Act
                                                                                                        to an amount greater than the amount of
                                                amendments, Federal agencies are to                                                                              amendments require FCA to use the
                                                                                                        the adjustment required under the Act
                                                make a ‘‘catch up’’ adjustment to the                                                                            maximum daily amount of $1,000 to
                                                                                                        within the 12 months preceding a
                                                civil monetary penalties through an IFR,                                                                         compute the catch-up adjustment as this
                                                                                                        required cost-of-living adjustment, the
                                                with the adjustment taking effect no                                                                             was the amount in effect in 1985.
                                                                                                        agency is not required to make the cost-
                                                later than August 1, 2016.9 Subsequent                                                                           Multiplying the $1,000 CMP by the 1985
                                                                                                        of-living adjustment to that CMP in that
                                                adjustments are to be made yearly                                                                                OMB multiplier, 2.18802, yields a total
                                                thereafter, no later than January 15.                   calendar year.13
                                                                                                                                                                 of $2,188.02. When that number is
                                                Section 6 of the 1990 Act, as amended,                  III. Catch-Up Adjustments                                rounded as required by section 5(a) of
                                                states that any increase to a civil                                                                              the 1990 Act, as amended the inflation-
                                                monetary penalty under this Act applies                 A. Mathematical Calculations of Catch-
                                                                                                                                                                 adjusted maximum increases to $2,188.
                                                only to civil monetary penalties,                       Up Adjustments
                                                                                                                                                                 The CMP in effect on November 2, 2015
                                                including those whose associated                          The adjustment requirement affects                     was $1,100. Increasing the 2015 CMP
                                                violation predated such increase, which                 two provisions of section 5.32(a) of the                 maximum of $1,100 by 150 percent
                                                are assessed after the date the increase                Farm Credit Act. For the ‘‘catch-up’’                    yields a CMP of $2,750. Since the new
                                                takes effect.                                           adjustments to the CMPs set forth by the                 CMP maximum calculated with the
                                                   Section 5(b) of the 1990 Act, as                     Farm Credit Act, the calculation                         1985 OMB multiplier is less than the
                                                amended, defines the term ‘‘cost-of-                    required by the 2015 Act is based on the                 150-percent maximum increase
                                                living adjustment’’ as the percentage (if               percentage by which the CPI for October                  established by the 2015 Act
                                                any) for each civil monetary penalty by                 2015 exceeds the CPIs for October 1985                   amendments, the new CMP maximum is
                                                which (1) the Consumer Price Index                      and October 1988, respectively. The                      $2,188.
                                                (CPI) for the month of October of the                   maximum CMPs for violations under
                                                calendar year preceding the adjustment,                 section 5.32(a) were established in 1985                 2. New Penalty Amount in § 622.61(a)(2)
                                                exceeds (2) the CPI for the month of                    and 1988. The White House Office of
                                                October 1 year before the month of                                                                                 While the inflation-adjusted CMP
                                                                                                        Management and Budget (OMB) set                          currently in effect for violations of the
                                                October referred to in (1) of the calendar              forth guidance, as required by the 2015
                                                year in which the amount of such civil                                                                           Farm Credit Act or regulations issued
                                                                                                        Act,14 with a grid of multipliers for                    under the Farm Credit Act occurring on
                                                monetary penalty was last set or                        calculating the new CMP values.15 The
                                                adjusted pursuant to law.10                                                                                      or after November 2, 2015, is a
                                                                                                        OMB multiplier for the 1985 CMPs is                      maximum daily amount of $750,18 the
                                                   The ‘‘catch-up’’ adjustment under the                2.18802. The OMB multiplier for the
                                                2015 Act amendments requires Federal                                                                             2015 Act amendments require FCA to
                                                                                                        1988 CMPs is 1.97869.                                    use the maximum daily amount of $500
                                                agencies to use the cost-of-living
                                                                                                          The adjustment also affects the CMPs                   to compute the catch-up adjustment as
                                                adjustment calculated by determining
                                                the percentage change (if any) for each                 set by the Flood Disaster Protection Act                 this was the amount in effect in 1988.
                                                civil monetary penalty by which the CPI                 of 1973, as amended. For the ‘‘catch-up’’                Multiplying the $500 CMP maximum by
                                                for the month of October 2015 exceeds                   adjustments to the CMP set forth by the                  the 1988 OMB multiplier, 1.97869,
                                                the CPI for the month of October during                 Flood Disaster Protection Act of 1973, as                yields a total of $989.35. When that
                                                the calendar year in which the CMP was                  amended, the calculation required by                     number is rounded as required by
                                                created or last adjusted for any reason                 the 2015 Act is based on the percentage                  section 5(a) of the 1990 Act, as amended
                                                other than pursuant to the 1996 Act.                    by which the CPI for October 2012                        the inflation-adjusted maximum
                                                Several adjustments have been made                      exceeds the CPI for October 2015. The                    increases to $989. The CMP in effect on
                                                since the Farm Credit Act established                   maximum CMPs for violations were                         November 2, 2015 was $750. Increasing
                                                the CMP maximums. Those maximums                        created in 2012 by the Biggert-Waters                    the 2015 CMP of $750 by 150 percent
                                                are to be disregarded for purposes of the               Act, which amended the Flood Disaster                    yields a total of $1,875. Since the new
                                                2015 Act amendment initial ‘‘catch-up’’                                                                          CMP maximum calculated with the
                                                adjustment calculation. However,                          11 OMB Circular M–16–06, Implementation of the
                                                                                                                                                                 1988 OMB multiplier is less than the
                                                                                                        Federal Civil Penalties Inflation Adjustment Act         150-percent maximum increase
                                                agencies are limited to a 150-percent                   Improvements Act of 2015.
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                                                increase in CMPs, based upon the CMP                      12 Per section 5(a)(3) of the 2015 Act, any increase   established by the 2015 Act
                                                in effect on November 2, 2015. The 150-                 determined under the subsection shall be rounded
                                                                                                        to the nearest $1.                                         16 The 150-percent limitation is on the amount of

                                                  9 Pub.                                                  13 Per section 4(d) of the 1990 Act, as amended.       the increase; therefore, the adjusted penalty level(s)
                                                         L. 114–74, sec. 701(b)(1).
                                                  10 The CPI is published by the Department of            14 28 U.S.C. 2461 note, section 7(a).                  will be up to 250 percent of the level(s) in effect
                                                Labor, Bureau of Statistics, and is available at its      15 OMB Circular M–16–06, Implementation of the         on November 2, 2015. OMB Circular, M–16–06.
                                                                                                                                                                   17 12 CFR 622.61(a)(1).
                                                Web site: ftp://ftp.bls.gov/pub/special.requests/cpi/   Federal Civil Penalties Inflation Adjustment Act
                                                cpiai.txt.                                              Improvements Act of 2015.                                  18 12 CFR 622.61(a)(2).




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                                                                   Federal Register / Vol. 81, No. 100 / Tuesday, May 24, 2016 / Rules and Regulations                                          32635

                                                amendments, the new CMP maximum is                      PART 622—RULES OF PRACTICE AND                        ACTION:Statement of General Policy,
                                                $989.                                                   PROCEDURE                                             SBA Size Policy Statement No. 3.
                                                3. New Penalty Amounts for Flood                        ■ 1. The authority citation for part 622              SUMMARY:    The Small Business
                                                Insurance Violations Under § 622.61(b)                  continues to read as follows:                         Administration (SBA) hereby gives
                                                                                                          Authority: Secs. 5.9, 5.10, 5.17, 5.25–5.37         notice of its intended application and
                                                   The existing maximum CMP for a                                                                             interpretation of the interaffiliate
                                                                                                        of the Farm Credit Act (12 U.S.C. 2243, 2244,
                                                pattern or practice of flood insurance                                                                        transactions exclusion from annual
                                                                                                        2252, 2261–2273); 28 U.S.C. 2461 note; and
                                                violations pursuant to 42 U.S.C.                        42 U.S.C. 4012a(f).                                   receipts set forth in its Small Business
                                                4012a(f)(5) is $2,000. Multiplying                      ■   2. Revise § 622.61 to read as follows:            Size Regulations. Effective at the
                                                $2,000 by the 2012 OMB multiplier,                                                                            issuance of this notice, SBA will apply
                                                1.02819, yields a total of $2,056.38.                   § 622.61 Adjustment of civil money                    the exclusion to properly documented
                                                When that number is rounded as                          penalties by the rate of inflation under the          transactions between a concern and its
                                                required by section 5(a) of the 1990 Act,               Federal Civil Penalties Inflation Adjustment
                                                                                                        Act of 1990, as amended.
                                                                                                                                                              domestic or foreign affiliates, regardless
                                                as amended, the new maximum                                                                                   of the type of relationship that resulted
                                                assessment of the CMP for violating 42                     (a) The maximum amount of each
                                                                                                                                                              in the finding of affiliation.
                                                U.S.C. 4012a(f)(5) is $2,056. The CMP in                civil money penalty within FCA’s
                                                                                                        jurisdiction is adjusted in accordance                DATES:
                                                effect on November 2, 2015 was $2,000.                                                                           Effective Date: This Policy Statement
                                                                                                        with the Federal Civil Penalties
                                                Increasing the 2015 CMP of $2,000 by                                                                          is effective May 24, 2016.
                                                                                                        Inflation Adjustment Act of 1990, as
                                                150 percent yields $5,000. Since the                                                                             Comment Date: Comments must be
                                                                                                        amended (28 U.S.C. 2461 note), as
                                                new CMP maximum calculated with the                                                                           received on or before July 25, 2016.
                                                                                                        follows:
                                                OMB multiplier is lower than the 150-                      (1) Amount of civil money penalty                  ADDRESSES: You may submit comments,
                                                percent maximum increase established                    imposed under section 5.32 of the Act                 identified by Docket No. SBA–2016–
                                                by the 2015 Act amendments, the new                     for violation of a final order issued                 0004 by any of the following methods:
                                                CMP maximum is $2,056.                                  under section 5.25 or 5.26 of the Act:                   • Federal Rulemaking Portal: http://
                                                                                                        The maximum daily amount is $2,188                    www.regulations.gov. Follow the
                                                IV. Notice and Comment Not Required
                                                                                                        for violations that occur on or after                 instructions for submitting comments.
                                                by Administrative Procedure Act
                                                                                                        August 1, 2016.                                          • Mail or Hand Delivery/Courier:
                                                  The 1990 Act, as amended, gives                          (2) Amount of civil money penalty for              Brenda Fernandez, U.S. Small Business
                                                Federal agencies no discretion in the                   violation of the Act or regulations: The              Administration, Office of Government
                                                adjustment of CMPs for the rate of                      maximum daily amount is $989 for each                 Contracting, 409 3rd Street SW., 8th
                                                inflation. Further, these revisions are                 violation that occurs on or after August              Floor, Washington, DC 20416.
                                                ministerial, technical, and                             1, 2016.                                                 SBA will post all comments on http://
                                                noncontroversial. For these reasons, the                   (b) The maximum civil money penalty                www.Regulations.gov. If you wish to
                                                FCA finds good cause to determine that                  amount assessed under 42 U.S.C.                       submit confidential business
                                                                                                        4012a(f) is: $385 for each violation that             information (CBI) as defined in the User
                                                public notice and an opportunity to
                                                                                                        occurs on or after January 16, 2009, but              Notice at http://www.Regulations.gov,
                                                comment are impracticable,
                                                                                                        before July 1, 2013, with total penalties             please submit the information to Brenda
                                                unnecessary, and contrary to the public
                                                                                                        under such statute not to exceed                      Fernandez, U.S. Small Business
                                                interest pursuant to the Administrative                                                                       Administration, Office of Government
                                                                                                        $120,000 for any single institution
                                                Procedure Act, 5 U.S.C. 553(b)(B), and                  during any calendar year; $2,000 for                  Contracting, 409 3rd Street SW., 8th
                                                adopts this rule in final form.                         each violation that occurs on or after                Floor, Washington, DC 20416, and
                                                V. Regulatory Flexibility Act                           July 1, 2013, but before August 1, 2016,              highlight the information that you
                                                                                                        with no cap on the total amount of                    consider to be CBI and explain why you
                                                   Pursuant to section 605(b) of the                    penalties that can be assessed against                believe this information should be held
                                                Regulatory Flexibility Act (5 U.S.C. 601                any single institution during any                     confidential. SBA will review the
                                                et seq.), the FCA hereby certifies that                 calendar year; and $2,056 for each                    information and make a final
                                                this final rule will not have a significant             violation that occurs on or after August              determination of whether the
                                                economic impact on a substantial                        1, 2016, with no cap on the total amount              information will be published or not.
                                                number of small entities. Each of the                   of penalties that can be assessed against             FOR FURTHER INFORMATION CONTACT:
                                                banks in the System, considered                         any single institution during any                     Brenda Fernandez, U.S. Small Business
                                                together with its affiliated associations,              calendar year.                                        Administration, Office of Government
                                                has assets and annual income in excess                    Dated: May 16, 2016.                                Contracting, 409 3rd Street SW., 8th
                                                of the amounts that would qualify them                  Dale L. Aultman,                                      Floor, Washington, DC 20416; (202)
                                                as small entities. Therefore, System                    Secretary, Farm Credit Administration Board.          205–7337; brenda.fernandez@sba.gov.
                                                institutions are not ‘‘small entities’’ as              [FR Doc. 2016–11862 Filed 5–23–16; 8:45 am]           SUPPLEMENTARY INFORMATION:
                                                defined in the Regulatory Flexibility
                                                Act.
                                                                                                        BILLING CODE 6705–01–P                                Background
                                                                                                                                                                 Under 13 CFR 121.104(d), the average
                                                List of Subjects in 12 CFR Part 622                                                                           annual receipts size of a business
                                                                                                        SMALL BUSINESS ADMINISTRATION
                                                  Administrative practice and                                                                                 concern with affiliates is calculated by
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                                                procedure, Crime, Investigations,                       13 CFR Part 121                                       adding the average annual receipts of
                                                Penalties.                                                                                                    the business concern with the average
                                                                                                        [Docket No. SBA–2016–0004]                            annual receipts of each affiliate.
                                                  For the reasons stated in the                                                                               However, in adding the receipts of a
                                                                                                        Small Business Size Standards
                                                preamble, part 622 of chapter VI, title 12                                                                    concern with its affiliate, SBA excludes
                                                of the Code of Federal Regulations is                   AGENCY:U.S. Small Business                            ‘‘proceeds from transactions between a
                                                amended to read as follows:                             Administration.                                       concern and its domestic or foreign


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Document Created: 2016-05-24 05:21:15
Document Modified: 2016-05-24 05:21:15
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis regulation is effective on August 1, 2016.
ContactMichael T. Wilson, Policy Analyst, Office of Regulatory Policy, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4124, TTY (703) 883-4056, Or Autumn Agans, Attorney-Advisor, Office of General Counsel, Farm Credit Administration, McLean, VA 22102-5090, (703) 883-4082, TTY (703) 883- 4056.
FR Citation81 FR 32633 
RIN Number3052-AD16
CFR AssociatedAdministrative Practice and Procedure; Crime; Investigations and Penalties

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