81 FR 78028 - Civil Monetary Penalty Inflation Adjustment
NATIONAL CREDIT UNION ADMINISTRATION Federal Register Volume 81, Issue 215 (November 7, 2016)
Federal Register Volume 81, Issue 215 (November 7, 2016)
| Page Range | 78028-78029 | |
| FR Document | 2016-26712 |
[Federal Register Volume 81, Number 215 (Monday, November 7, 2016)] [Rules and Regulations] [Pages 78028-78029] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-26712] ======================================================================= ----------------------------------------------------------------------- NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 747 RIN 3133-AE59 Civil Monetary Penalty Inflation Adjustment AGENCY: National Credit Union Administration (NCUA). ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: On June 21, 2016, the NCUA Board (Board) published an interim final rule amending its regulations to adjust the maximum amount of each civil monetary penalty (CMP) within its jurisdiction to account for inflation. This action, including the amount of the adjustments, is required under the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. This final rule confirms those amendments while making a clarification regarding the prospective effect of the 2015 legislation. DATES: Effective date: November 7, 2016. FOR FURTHER INFORMATION CONTACT: Ian Marenna, Senior Trial Attorney, at 1775 Duke Street, Alexandria, VA 22314, or telephone: (703) 518-6540. SUPPLEMENTARY INFORMATION: I. Background II. Regulatory Procedures I. Background A. June 2016 Interim Final Rule The Debt Collection Improvement Act of 1996 \1\ (DCIA) amended the Federal Civil Penalties Inflation Adjustment Act of 1990 \2\ (FCPIA Act) to require every federal agency to enact regulations that adjust each CMP provided by law under its jurisdiction by the rate of inflation at least once every four years. In November 2015, Congress further amended the CMP inflation requirements in the Bipartisan Budget Act of 2015,\3\ which contains the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 amendments).\4\ This legislation provides for an initial ``catch-up'' adjustment of CMPs in 2016, followed by annual adjustments. The catch-up adjustment re-sets CMP maximum amounts by setting aside the inflation adjustments that agencies made in prior years and instead calculating inflation with reference to the year when each CMP was enacted or last modified by Congress. For 2017 and subsequent years, the Board will be required to adjust maximum levels to account for annual inflation.\5\ --------------------------------------------------------------------------- \1\ Public Law 104-134, sec. 31001(s), 110 Stat. 1321-373 (Apr. 26, 1996). The law is codified at 28 U.S.C. 2461 note. \2\ Public Law 101-410, 104 Stat. 890 (Oct. 5, 1990), also codified at 28 U.S.C. 2461 note. \3\ Public Law 114-74, 129 Stat. 584 (Nov. 2, 2015). \4\ 129 Stat. 599. \5\ Public Law 114-74, 129 Stat. 584 (Nov. 2, 2015). --------------------------------------------------------------------------- On June 21, 2016, in compliance with the 2015 amendments, the Board published an interim final rule with a request for comments in the Federal Register.\6\ In calculating the adjustments, the Board reviewed and applied government-wide guidance issued by the Office of Management and Budget (OMB).\7\ In accordance with the [[Page 78029]] procedures and calculations prescribed by the 2015 amendments and OMB's guidance, the Board adjusted the maximum level of each of the CMPs that NCUA has authority to assess. NCUA is not, however, required to assess at the new maximum levels and retains discretion to assess at lower levels, as it has done historically.\8\ --------------------------------------------------------------------------- \6\ 81 FR 40152 (June 21, 2016). \7\ Office of Mgmt. & Budget, Exec. Office of the President, OMB Memorandum No. M-16-06, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2016). \8\ 81 FR 40152, 40156 (June 21, 2016). --------------------------------------------------------------------------- The interim final rule became effective on July 21, 2016. The Board received no comments on the rule. B. Prospective Effect of Adjustments Although the Board received no comments on the interim final rule, it wishes to clarify its intended use of adjusted maximums for violations that occurred prior to the adjustment. As described in the interim final rule, the 2015 amendments provide that increased maximum CMP amounts apply to penalties assessed after the adjustments take effect, including those for which the associated violation occurred before the adjustment became effective.\9\ The Board adopted this provision in the interim final rule consistent with the statute.\10\ --------------------------------------------------------------------------- \9\ Public Law 114-74, 129 Stat. 600 (Nov. 2, 2015), codified at 28 U.S.C. 2461 note. \10\ 81 FR 40152, 40156 (June 21, 2016). --------------------------------------------------------------------------- The Board has observed that agencies have appeared to vary in their adoption of this provision. Some agencies' interim final rules provide that the adjusted maximums apply only to violations occurring after November 2, 2015, when the 2015 amendments became law.\11\ Other agencies' rules, like the NCUA's interim final rule, do not specify whether the adjusted maximums would apply to violations that occurred before the 2015 amendments were enacted.\12\ To avoid confusion, the Board clarifies that it interprets the 2015 amendments as applying only prospectively. If NCUA assesses CMPs at the maximum level, it would not apply the new maximums to violations that occurred before the statute was amended on November 2, 2015. As noted above, nothing in the 2015 amendments or the final rule requires application of maximum-level CMPs. Further, as explained in the interim final rule, NCUA generally must consider mitigating factors, including financial resources, in assessing a CMP.\13\ --------------------------------------------------------------------------- \11\ See, e.g., Dep't of Justice, Civil Monetary Penalties Inflation Adjustment, 81 FR 42491, 42499 June 30, 2106). \12\ See, e.g., Dep't of Defense, Civil Monetary Penalty Inflation Adjustment, 81 FR 33389, 33390 (May 26, 2016). \13\ 81 FR 40152, 40156 (June 21, 2016). --------------------------------------------------------------------------- Apart from this clarification, the Board adopts the interim final rule as final without changes. II. Regulatory Procedures Section III of the Supplementary Information in the June 2016 interim final rule sets forth the Board's analyses under the Administrative Procedure Act, the Regulatory Flexibility Act, the Paperwork Reduction Act of 1995, the Small Business Enforcement Fairness Act, Executive Order 13132, and the Treasury and General Government Appropriations Act. See 81 FR 40156-40157. Because the final rule confirms the interim final rule and does not alter the substance of the analyses and determinations accompanying the interim final rule, the Board continues to rely on those analyses and determinations for purposes of this rulemaking. The Board notes that OMB determined that the interim final rule is not a ``major rule'' within the meaning of the Small Business Enforcement Fairness Act. List of Subjects in 12 CFR Part 747 Credit unions, Civil monetary penalties. By the National Credit Union Administration Board on October 27, 2016. Gerard S. Poliquin, Secretary of the Board. For the reasons stated above, the interim final rule amending 12 CFR part 747, published at 81 FR 40152 (June 21, 2016), is adopted as a final rule without change. [FR Doc. 2016-26712 Filed 11-4-16; 8:45 am] BILLING CODE 7535-01-P
![78028 Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations
of NRC requirements (i.e., information has a material impact on 1996 and the Federal Civil Penalties
nonenforcement-related Orders.) safety or licensed activities; or Inflation Adjustment Act Improvements
b. Page 9: The NRC reviews each case i. Page 59: 6.7.d.3 ‘‘A radiation dose Act of 2015. This final rule confirms
being considered for enforcement action rate in an unrestricted or controlled area those amendments while making a
on its own merits to ensure that the exceeds 0.002 rem (0.02 millisieverts) in clarification regarding the prospective
severity of a violation is characterized at any 1 hour (2 mrem/hour) or 50 mrem effect of the 2015 legislation.
the level appropriate to the safety or (0.5 mSv) in a year;’’ DATES: Effective date: November 7,
security significance of the particular III. Procedural Requirements 2016.
violation.
Paperwork Reduction Act Statement FOR FURTHER INFORMATION CONTACT: Ian
Whenever possible, the NRC uses risk
Marenna, Senior Trial Attorney, at 1775
information in assessing the safety or This policy statement does not Duke Street, Alexandria, VA 22314, or
security significance of violations and contain new or amended information telephone: (703) 518–6540.
assigning severity levels. A higher collection requirements subject to the
severity level may be warranted for SUPPLEMENTARY INFORMATION:
Paperwork Reduction Act of 1995 (44
violations that have greater risk, safety, U.S.C. 3501 et seq.). Existing I. Background
or security significance, while a lower requirements were approved by the II. Regulatory Procedures
severity level may be appropriate for Office of Management and Budget I. Background
issues that have lower risk, safety, or (OMB), approval number 3150–0136.
security significance. A. June 2016 Interim Final Rule
c. Page 15: a. Licensees and Public Protection Notification
The Debt Collection Improvement Act
Nonlicensees with a credited Corrective The NRC may not conduct or sponsor, of 1996 1 (DCIA) amended the Federal
Action Program and a person is not required to respond Civil Penalties Inflation Adjustment Act
d. Page 19: The flow chart (Figure 2) to, a request for information or an of 1990 2 (FCPIA Act) to require every
is a graphic representation of the civil information collection requirement federal agency to enact regulations that
penalty assessment process and should unless the requesting document adjust each CMP provided by law under
be used in conjunction with the displays a currently valid OMB control its jurisdiction by the rate of inflation at
narrative in this section. number. least once every four years. In November
e. Page 33: The NRC may refrain from Congressional Review Act 2015, Congress further amended the
issuing an NOV for a SL II, III, or IV CMP inflation requirements in the
violation that meets the above criteria, This policy is a rule as defined in the Bipartisan Budget Act of 2015,3 which
provided that the violation was caused Congressional Review Act (5 U.S.C 801– contains the Federal Civil Penalties
by conduct that is not reasonably linked 808). However, the Office of Inflation Adjustment Act Improvements
to the licensee’s present performance Management and Budget has not found Act of 2015 (the 2015 amendments).4
(normally, violations that are at least 3 it to be a major rule as defined in the This legislation provides for an initial
years old or violations occurring during Congressional Review Act. ‘‘catch-up’’ adjustment of CMPs in 2016,
plant construction) and that there had Dated at Rockville, Maryland, this 1st day followed by annual adjustments. The
not been prior notice so that the licensee of November, 2016. catch-up adjustment re-sets CMP
could not have reasonably identified the For the Nuclear Regulatory Commission. maximum amounts by setting aside the
violation earlier. Annette L. Vietti-Cook, inflation adjustments that agencies
f. Page 34: In addition, the NRC may Secretary of the Commission. made in prior years and instead
refrain from issuing enforcement action calculating inflation with reference to
[FR Doc. 2016–26762 Filed 11–4–16; 8:45 am]
for violations resulting from matters not the year when each CMP was enacted or
BILLING CODE 7590–01–P
within a licensee’s control, such as last modified by Congress. For 2017 and
equipment failures that were not subsequent years, the Board will be
avoidable by reasonable licensee QA required to adjust maximum levels to
measures or management controls (e.g., NATIONAL CREDIT UNION account for annual inflation.5
reactor coolant system leakage that was ADMINISTRATION On June 21, 2016, in compliance with
not within the licensee’s ability to the 2015 amendments, the Board
12 CFR Part 747
detect during operation, but was published an interim final rule with a
identified at the first available RIN 3133–AE59 request for comments in the Federal
opportunity or outage). Register.6 In calculating the
g. Page 43: 6.1.c.2 A system that is Civil Monetary Penalty Inflation adjustments, the Board reviewed and
part of the primary success path and Adjustment applied government-wide guidance
which functions or actuates to mitigate AGENCY: National Credit Union issued by the Office of Management and
a DBA or transient that either assumes Administration (NCUA). Budget (OMB).7 In accordance with the
the failure of or presents a challenge to ACTION: Final rule.
the integrity of the fission product 1 Public Law 104–134, sec. 31001(s), 110 Stat.
barrier not being able to perform its SUMMARY: On June 21, 2016, the NCUA 1321–373 (Apr. 26, 1996). The law is codified at 28
U.S.C. 2461 note.
licensing basis safety function because it Board (Board) published an interim 2 Public Law 101–410, 104 Stat. 890 (Oct. 5,
is not fully qualified (per the IMC 0326, final rule amending its regulations to 1990), also codified at 28 U.S.C. 2461 note.
‘‘Operability Determinations & adjust the maximum amount of each 3 Public Law 114–74, 129 Stat. 584 (Nov. 2, 2015).
Functional Assessment for Conditions civil monetary penalty (CMP) within its 4 129 Stat. 599.
ehiers on DSK5VPTVN1PROD with RULES
Adverse to Quality or Safety’’) (e.g., jurisdiction to account for inflation. 5 Public Law 114–74, 129 Stat. 584 (Nov. 2, 2015).
materials or components not This action, including the amount of the 6 81 FR 40152 (June 21, 2016).
7 Office of Mgmt. & Budget, Exec. Office of the
environmentally qualified); adjustments, is required under the
President, OMB Memorandum No. M–16–06,
h. Page 43: 6.1.d.3 A licensee fails to Federal Civil Penalties Inflation Implementation of the Federal Civil Penalties
update the FSAR as required by 10 CFR Adjustment Act of 1990, as amended by Inflation Adjustment Act Improvements Act of 2015
50.71(e) and the lack of up-to-date the Debt Collection Improvement Act of (2016).
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![Federal Register / Vol. 81, No. 215 / Monday, November 7, 2016 / Rules and Regulations 78029
procedures and calculations prescribed Apart from this clarification, the new restricted areas, designated R–
by the 2015 amendments and OMB’s Board adopts the interim final rule as 6604C, R–6604D, and R–6604E.
guidance, the Board adjusted the final without changes. Additionally, a minor change is made to
maximum level of each of the CMPs that 2 points in the boundary of existing area
II. Regulatory Procedures
NCUA has authority to assess. NCUA is R–6604A to match the updated 3-
not, however, required to assess at the Section III of the Supplementary nautical mile (NM) line from the
new maximum levels and retains Information in the June 2016 interim shoreline of the United States (U.S.) as
discretion to assess at lower levels, as it final rule sets forth the Board’s analyses provided by the National Oceanic and
has done historically.8 under the Administrative Procedure Atmospheric Administration (NOAA).
The interim final rule became Act, the Regulatory Flexibility Act, the DATES: Effective date 0901 UTC, January
effective on July 21, 2016. The Board Paperwork Reduction Act of 1995, the 5, 2017.
received no comments on the rule. Small Business Enforcement Fairness FOR FURTHER INFORMATION CONTACT: Paul
Act, Executive Order 13132, and the Gallant, Airspace Policy Group, Office
B. Prospective Effect of Adjustments Treasury and General Government of Airspace Services, Federal Aviation
Appropriations Act. See 81 FR 40156– Administration, 800 Independence
Although the Board received no
40157. Because the final rule confirms Avenue SW., Washington, DC 20591;
comments on the interim final rule, it
the interim final rule and does not alter telephone: (202) 267–8783.
wishes to clarify its intended use of
the substance of the analyses and SUPPLEMENTARY INFORMATION:
adjusted maximums for violations that
determinations accompanying the
occurred prior to the adjustment. As Authority for This Rulemaking
interim final rule, the Board continues
described in the interim final rule, the
to rely on those analyses and The FAA’s authority to issue rules
2015 amendments provide that
determinations for purposes of this regarding aviation safety is found in
increased maximum CMP amounts
rulemaking. The Board notes that OMB Title 49 of the United States Code.
apply to penalties assessed after the
determined that the interim final rule is Subtitle I, Section 106 describes the
adjustments take effect, including those
not a ‘‘major rule’’ within the meaning authority of the FAA Administrator.
for which the associated violation
of the Small Business Enforcement Subtitle VII, Aviation Programs,
occurred before the adjustment became
Fairness Act. describes in more detail the scope of the
effective.9 The Board adopted this
provision in the interim final rule List of Subjects in 12 CFR Part 747 agency’s authority.
This rulemaking is promulgated
consistent with the statute.10 Credit unions, Civil monetary under the authority described in
The Board has observed that agencies penalties. Subtitle VII, Part A, Subpart I, Section
have appeared to vary in their adoption 40103. Under that section, the FAA is
By the National Credit Union
of this provision. Some agencies’ Administration Board on October 27, 2016. charged with prescribing regulations to
interim final rules provide that the assign the use of the airspace necessary
Gerard S. Poliquin,
adjusted maximums apply only to to ensure the safety of aircraft and the
violations occurring after November 2, Secretary of the Board.
efficient use of airspace. This regulation
2015, when the 2015 amendments For the reasons stated above, the is within the scope of that authority as
became law.11 Other agencies’ rules, like interim final rule amending 12 CFR part it restructures the restricted airspace at
the NCUA’s interim final rule, do not 747, published at 81 FR 40152 (June 21, Chincoteague Inlet, VA to enhance
specify whether the adjusted maximums 2016), is adopted as a final rule without aviation safety and accommodate
would apply to violations that occurred change. essential NASA testing programs.
before the 2015 amendments were [FR Doc. 2016–26712 Filed 11–4–16; 8:45 am]
enacted.12 To avoid confusion, the History
BILLING CODE 7535–01–P
Board clarifies that it interprets the 2015 On September 10, 2015, the FAA
amendments as applying only published in the Federal Register a
prospectively. If NCUA assesses CMPs notice proposing to expand the
at the maximum level, it would not DEPARTMENT OF TRANSPORTATION restricted airspace at Chincoteague Inlet,
apply the new maximums to violations Federal Aviation Administration VA, to support NASA’s WFF test
that occurred before the statute was requirements (80 FR 54444), Docket No.
amended on November 2, 2015. As FAA–2015–2776. Interested parties
14 CFR Part 73
noted above, nothing in the 2015 were invited to participate in this
amendments or the final rule requires [Docket No. FAA–2015–2776; Airspace rulemaking effort by submitting written
application of maximum-level CMPs. Docket No. 15–AEA–5] comments on the proposal. Due to an
Further, as explained in the interim RIN 2120–AA66
error, a chart depicting the proposed
final rule, NCUA generally must areas was not posted to the
consider mitigating factors, including Amendment and Establishment of regulations.gov Web site for public
financial resources, in assessing a Restricted Areas; Chincoteague Inlet, viewing until November 5, 2015 (10
CMP.13 VA days after the close of the comment
period). Consequently, on January 21,
8 81 FR 40152, 40156 (June 21, 2016).
AGENCY: Federal Aviation 2016, the FAA published a notice
9 Public Law 114–74, 129 Stat. 600 (Nov. 2, 2015), Administration (FAA), DOT. reopening the comment period for 30
codified at 28 U.S.C. 2461 note. ACTION: Final rule. additional days (81 FR 3353), Docket
10 81 FR 40152, 40156 (June 21, 2016).
No. FAA–2015–2776, to provide the
ehiers on DSK5VPTVN1PROD with RULES
11 See, e.g., Dep’t of Justice, Civil Monetary SUMMARY: This action expands the public the opportunity to view the chart
Penalties Inflation Adjustment, 81 FR 42491, 42499 restricted airspace at Chincoteague Inlet,
June 30, 2106).
and submit comments.
12 See, e.g., Dep’t of Defense, Civil Monetary
VA, to support the National Aeronautics
and Space Administration’s (NASA) Discussion of Comments
Penalty Inflation Adjustment, 81 FR 33389, 33390
(May 26, 2016). Wallops Island Flight Facility (WFF) A total of 17 comments were received,
13 81 FR 40152, 40156 (June 21, 2016). test requirements. This action adds 3 including 2 duplicate submissions.
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Document Created: 2018-02-14 08:21:20
Document Modified: 2018-02-14 08:21:20
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective date: November 7, 2016. | |
| Contact | Ian Marenna, Senior Trial Attorney, at 1775 Duke Street, Alexandria, VA 22314, or telephone: (703) 518-6540. | |
| FR Citation | 81 FR 78028 | |
| RIN Number | 3133-AE59 | |
| CFR Associated | Credit Unions and Civil Monetary Penalties |
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