83 FR 38080 - Rules of Practice and Procedure
FEDERAL DEPOSIT INSURANCE CORPORATION Federal Register Volume 83, Issue 150 (August 3, 2018)
Federal Register Volume 83, Issue 150 (August 3, 2018)
| Page Range | 38080-38085 | |
| FR Document | 2018-16548 |
[Federal Register Volume 83, Number 150 (Friday, August 3, 2018)] [Proposed Rules] [Pages 38080-38085] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-16548] ======================================================================= ----------------------------------------------------------------------- FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 308 and 327 RIN 3064-AE75 Rules of Practice and Procedure AGENCY: Federal Deposit Insurance Corporation. ACTION: Notice of proposed rulemaking and request for comments. ----------------------------------------------------------------------- SUMMARY: The Federal Deposit Insurance Corporation (FDIC) proposes to amend its rules of practice and procedure to remove duplicative, descriptive regulatory language related to civil money penalty (CMP) amounts that restates existing statutory language regarding such CMPs, codify Congress's recent change to CMP inflation-adjustments in the FDIC's regulations, and direct readers to an annually published notice in the Federal Register--rather than the Code of Federal Regulations (CFR)--for information regarding the maximum CMP amounts that can be assessed after inflation adjustments. These revisions are intended to simplify the CFR by removing unnecessary and redundant text and to make it easier for readers to locate the current, inflation-adjusted maximum CMP amounts by presenting these amounts in an annually published chart. Additionally, the FDIC proposes to correct four errors and revise cross-references currently found in its rules of practice and procedure. DATES: Comments must be received by October 2, 2018. ADDRESSES: You may submit comments, identified by RIN 3064-AE75, by any of the following methods:Agency website: http://www.fdic.gov/regulations/laws/Federal/. Follow the instructions for submitting comments on the Agency website. Email: [email protected]. Include the RIN 3064-AE75 in the subject line of the message. Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429. Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. Public Inspection: All comments received must include the agency name and RIN for this rulemaking. All comments received will be posted without change to http://www.fdic.gov/regulations/laws/Federal/-- including any personal information provided--for public inspection. Paper copies of public comments may be ordered from the FDIC Public Information Center, 3501 North Fairfax Drive, Room E-1002, Arlington, VA 22226 by telephone at (877) 275-3342 or (703) 562-2200. FOR FURTHER INFORMATION CONTACT: Graham N. Rehrig, Senior Attorney, Legal Division, (202) 898-3829, [email protected], or Sydney Mayer, Attorney, Legal Division, (202) 898-3669. SUPPLEMENTARY INFORMATION: [[Page 38081]] I. Policy Objectives The policy objective of the Proposed Rule is to simplify the presentation of maximum CMP amounts within 12 CFR part 308 to support ease of reference and public understanding. The Proposed Rule will amend the presentation of maximum CMP limits to help ensure consistency with similar statutes of other Federal financial regulators.\1\ Additionally, the Proposed Rule will implement recent Office of Management and Budget (OMB) guidance on simplifying the publication of annual inflation adjustments. --------------------------------------------------------------------------- \1\ See 12 CFR 19.240 and 83 FR 1657 (Jan. 12, 2018) (table containing the CMP adjustments published by the Office of the Comptroller of Currency); 12 CFR 263.65 (table containing the CMP adjustments published by the Board of Governors of the Federal Reserve System); 12 CFR 747.1001 (table containing the CMP adjustments published by the National Credit Union Association). --------------------------------------------------------------------------- II. Background The FDIC assesses CMPs under section 8(i) of the Federal Deposit Insurance Act (FDIA) (12 U.S.C. 1818) and a variety of other statutes.\2\ Congress has established maximum penalties that can be assessed under these statutes. In many cases, these statutes contain multiple penalty tiers, permitting the assessment of penalties at various levels depending on the severity of the misconduct at issue.\3\ --------------------------------------------------------------------------- \2\ See, e.g., 12 U.S.C. 1972(2)(F) (authorizing the FDIC to impose CMPs for violations of the Bank Holding Company Act of 1970 related to prohibited tying arrangements); 15 U.S.C. 78u-2 (authorizing the FDIC to impose CMPs for violations of certain provisions of the Securities Exchange Act of 1934); 42 U.S.C. 4012a(f) (authorizing the FDIC to impose CMPs for pattern or practice violations of the Flood Disaster Protection Act). \3\ For example, 12 U.S.C. 1818(i)(2) provides for three tiers of CMPs, with the size of the CMP increasing with the gravity of the misconduct. --------------------------------------------------------------------------- Since 1990, Congress has required Federal agencies with authority to impose CMPs to periodically adjust the maximum CMP amounts these agencies are authorized to impose.\4\ These periodic updates have helped to ``maintain the deterrent effect of civil monetary penalties and promote compliance with the law.'' \5\ In 2015, Congress revised the process by which Federal agencies adjust applicable CMPs for inflation.\6\ Under the 2015 Adjustment Act, the FDIC is required to make annual adjustments to its maximum CMP amounts to account for inflation.\7\ These adjustments apply to all CMPs covered by the 2015 Adjustment Act.\8\ The 2015 Adjustment Act requires annual adjustments be made by January 15 of each year.\9\ The FDIC's 2018 adjustments were published on January 12, 2018.\10\ --------------------------------------------------------------------------- \4\ See The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410. \5\ See section 2 of the Federal Civil Penalties Inflation Adjustment Act of 1990. Public Law 101-410, 104 Stat. 890 (amended 2015) (codified as amended at 28 U.S.C. 2461 note). \6\ See The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701, 129 Stat. 584 (2015 Adjustment Act). Although the 2015 Adjustment Act increased the maximum penalty that may be assessed under each applicable statute, the FDIC still possesses discretion to impose CMP amounts below the maximum level in accordance with the severity of the misconduct at issue. When making a determination as to the appropriate level of any given penalty, the FDIC is guided by statutory factors set forth in 12 U.S.C. 1818(i)(2)(G) and those factors identified in the Interagency Policy Statement Regarding the Assessment of CMPs by the Federal Financial Institutions Regulatory Agencies. See 63 FR 30227 (June 3, 1998). Such factors include, but are not limited to, the gravity and duration of the misconduct and the intent related to the misconduct. \7\ See 2015 Adjustment Act at sec. 701(b). \8\ See Public Law 101-410, sec. 3(2), 104 Stat. 890 (amended 2015) (codified as amended at 28 U.S.C. 2461 note). \9\ Public Law 114-74, sec. 701(b), 129 Stat. 584. \10\ See 83 FR 1519, available at https://www.fdic.gov/news/board/2017/2017-12-19-notice-sum-b-fr.pdf. --------------------------------------------------------------------------- The 2015 Adjustment Act directs Federal agencies to follow guidance issued by the OMB by December 15 of each year when calculating new maximum penalty amounts.\11\ The OMB issued guidance for the 2018 CMP adjustments on December 15, 2017.\12\ The OMB Guidance noted, ``Some agencies have chosen to remove their specific penalty amounts from the CFR and have instead codified the statutory formula for inflation adjustments. Agencies must still calculate and publish their penalty adjustments in the Federal Register.'' \13\ --------------------------------------------------------------------------- \11\ See Public Law 114-74, sec. 701(b), 129 Stat. 584. \12\ OMB, Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, M-18-03 (OMB Guidance), available at https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf. \13\ OMB Guidance at 4 (citing 81 FR 41438 (June 27, 2016) (Social Security Administration) (codified at 29 CFR 498.103(g))). --------------------------------------------------------------------------- III. Description and Expected Effects of the Proposed Rule The FDIC proposes amending its rules of practice and procedure to remove from the CFR descriptive regulatory language related to maximum CMP amounts that duplicates statutory language, codify the statutory formula for inflation adjustments to the maximum CMP amounts, and direct readers to a table published annually in the Federal Register, containing the inflation-adjusted maximum CMP amounts. These proposed changes would be consistent with the OMB Guidance and the practices of other Federal regulators. Currently, 12 CFR 308.116(b) and 308.132(d) contain the maximum CMP amounts that may be assessed for violations of various statutes, along with lengthy descriptions of these statutes. Rather than providing any interpretation of these statutes or providing guidance regarding the assessment of CMPs for violations of these statutes, the descriptive language contained in Sec. Sec. 308.116(b) and 308.132(d) merely restates the enabling statutory language. The FDIC's current format for identifying inflation-adjusted CMP figures differs significantly from the formats published by other prudential regulators \14\ and makes it more difficult for readers to locate applicable maximum CMP amounts. Accordingly, the FDIC proposes removing descriptive language found in Sec. Sec. 308.116(b) and 308.132(d). The FDIC believes that these changes will remove unnecessary and redundant language from the CFR and improve readability. --------------------------------------------------------------------------- \14\ The OCC, the FRB, and the National Credit Union Association (NCUA) provide a simplified list in a tabular format, identifying each enabling statute and the associated maximum CMP amount, adjusted for inflation. See 12 CFR 19.240 and 83 FR 1657 (Jan. 12, 2018) (table containing the OCC's CMP adjustments); 12 CFR 263.65 (table containing the FRB's CMP adjustments); 12 CFR 747.1001 (table containing the NCUA's CMP adjustments). --------------------------------------------------------------------------- A sample annual table containing the current maximum CMP amounts-- effective as of January 15, 2018--appears at the end of this section, for reference. Under the Proposed Rule, the FDIC would calculate and publish a similar chart with inflation-adjusted figures in the Federal Register on or before January 15 of each calendar year. The FDIC, however, proposes to retain language in Sec. 308.116(a), (c), and (d) concerning violations of the Change in Bank Control Act. These regulations, which the FDIC implemented in 1991, address requests for a hearing, mitigating factors, and the consequences of a respondent's failure to answer.\15\ The language in current Sec. 308.116(b)(1) through (3), however, repeats the relevant statutory language of 12 U.S.C. 1817(j)(16)(A)-(D). Further, current Sec. 308.116(b)(4) merely contains inflation adjustments. Therefore, the FDIC proposes removing current Sec. 308.116(b) and instead directing readers to Sec. 308.132(d) to determine current maximum CMP amounts. --------------------------------------------------------------------------- \15\ See 56 FR 37968 (Aug. 9, 1991). --------------------------------------------------------------------------- The FDIC also proposes to keep language concerning the late filing of Call Reports at current Sec. 308.132(d)(1) and (d)(3). 12 U.S.C. 1817(a) provides the maximum CMP amounts for the late [[Page 38082]] filing of Call Reports. In 1991, however, the FDIC issued regulations that further subdivided these amounts based upon the size of the institution and the lateness of the filing.\16\ These regulations accordingly differ from other provisions found in Sec. 308.132(d) that simply restate relevant statutory language regarding maximum CMP amounts. The Proposed Rule would merge language from current Sec. 308.132(d)(1) and (3) into a new Sec. 308.132(e), since, aside from the differing penalty amounts, these two current subsections contain similar language. The new Sec. 308.132(e) would direct readers to the Federal Register to determine the applicable inflation-adjusted penalty amounts. --------------------------------------------------------------------------- \16\ See 56 FR 37968, 37992-93 (Aug. 9, 1991). --------------------------------------------------------------------------- The FDIC proposes correcting four errors currently located at Sec. 308.132(d)(1) and (3) concerning the maximum amount that generally will be assessed for violations of 12 U.S.C. 1464(v) and 1817(a) regarding the late filing of Call Reports by certain small institutions. The current text contains the inadvertent overstatement of four fractions of an institution's total assets that are paired with correctly stated basis-point figures. These corrections would align the listed fractions of an institution's total assets with the listed basis-point calculations, and these corrections would be reflected in the annual Federal Register CMP notice.\17\ --------------------------------------------------------------------------- \17\ For example, current section 308.132(d)(1)(i)(A) states, ``the amount assessed shall be the greater of [an inflation-adjusted daily penalty] or \1/1\,000th of the institution's total assets (1/ 10th of a basis point)'' when it should read, ``the amount assessed shall be the greater of [an inflation-adjusted daily penalty] or 1/ 100,000th of the institution's total assets (1/10th of a basis point).'' (Emphasis added). \18\ The maximum penalty amount is per day, unless otherwise indicated. \19\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \20\ 12 U.S.C. 1817(a) provides the maximum CMP amounts for the late filing of Call Reports. In 1991, however, the FDIC issued regulations that further subdivided these amounts based upon the size of the institution and the lateness of the filing. See 56 FR 37968, 37992-93 (Aug. 9, 1991), to be re-codified at 12 CFR 308.132(e)(1). These adjusted subdivided amounts are found at the end of this chart. \21\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \22\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \23\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \24\ These amounts also apply to CMPs in statutes that cross- reference 12 U.S.C. 1818, such as 12 U.S.C. 2601, 2804(b), 3108(b), 3349(b), 4009(a), 4309(a), 4717(b); 15 U.S.C. 1607(a), 1681s(b), 1691(b), 1691c(a), 1693o(a); 42 U.S.C. 3601. \25\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \26\ The $122-per-day maximum CMP under 12 U.S.C. 1828(h), for failure or refusal to pay any assessment, applies only when the assessment is less than $10,000. When the amount of the assessment is $10,000 or more, the maximum CMP under section 1828(h) is 1 percent of the amount of the assessment for each day that the failure or refusal continues. \27\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. \28\ The maximum penalty amount for an institution is the greater of this amount or 1/100,000th of the institution's total assets. \29\ The maximum penalty amount for an institution is the greater of this amount or 1/50,000th of the institution's total assets. \30\ The maximum penalty amount for an institution is the lesser of this amount or 1 percent of total assets. --------------------------------------------------------------------------- Lastly, the FDIC proposes to revise cross-references found at 12 CFR 308.502(a)(6), 12 CFR 308.502(b)(4), 12 CFR 308.530, and 12 CFR 327.3(c) to reflect the proposed revisions to 12 CFR 308.132(d). Since the Proposed Rule would amend the presentation of maximum CMP levels in the Federal Register, the FDIC believes the rule will not pose any regulatory costs to IDIs or cost to the public in general. Sample Civil Money Penalty Table ---------------------------------------------------------------------------------------------------------------- U.S. Code citation Adjusted Maximum CMP \18\ (Beginning January 15, 2018) ---------------------------------------------------------------------------------------------------------------- 12 U.S.C. 1464(v): Tier One CMP.................. $3,928 Tier Two CMP.................. $39,278 Tier Three CMP \19\........... $1,963,870 12 U.S.C. 1467(d)................. $9,819 12 U.S.C. 1817(a): Tier One CMP \20\............. $3,928 Tier Two CMP.................. $39,278 Tier Three CMP \21\........... $1,963,870 12 U.S.C. 1817(c): Tier One CMP.................. $3,591 Tier Two CMP.................. $35,904 Tier Three CMP \22\........... $1,795,216 12 U.S.C. 1817(j)(16): Tier One CMP.................. $9,819 Tier Two CMP.................. $49,096 Tier Three CMP \23\........... $1,963,870 12 U.S.C. 1818(i)(2) \24\ Tier One CMP.................. $9,819 Tier Two CMP.................. $49,096 Tier Three CMP \25\........... $1,963,870 12 U.S.C. 1820(e)(4).............. $8,977 12 U.S.C. 1820(k)(6).............. $323,027 12 U.S.C. 1828(a)(3).............. $122 12 U.S.C. 1828(h) \26\ For assessments < $10,000..... $122 12 U.S.C. 1829b(j)................ $20,521 12 U.S.C. 1832(c)................. $2,852 12 U.S.C. 1884.................... $285 12 U.S.C. 1972(2)(F): Tier One CMP.................. $9,819 Tier Two CMP.................. $49,096 [[Page 38083]] Tier Three CMP \27\........... $1,963,870 12 U.S.C. 3909(d) $2,443 15 U.S.C. 78u-2 Tier One CMP (individuals).... $9,239 Tier One CMP (others)......... $92,383 Tier Two CMP (individuals).... $92,383 Tier Two CMP (others)......... $461,916 Tier Three CMP (individuals).. $184,767 Tier Three penalty (others)... $923,831 15 U.S.C. 1639e(k): First violation............... $11,279 Subsequent violations......... $22,556 31 U.S.C. 3802 $11,181 42 U.S.C. 4012a(f) $2,133 ---------------------------------------------------------------------------------------------------------------- CFR Citation Adjusted Presumptive CMP 0(Beginning January 15, 2018) ---------------------------------------------------------------------------------------------------------------- 12 CFR 308.132(e)(1)(i): Institutions with $25 million or more in assets: 1 to 15 days late......... $538 16 or more days late...... $1,078 Institutions with less than $25 million in assets: 1 to 15 days late \28\.... $180 16 or more days late \29\. $359 12 CFR 308.132(e)(1)(ii): Institutions with $25 million or more in assets 1 to 15 days late......... $897 16 or more days late.............. $1,795 Institutions with less than $25 million in assets 1 to 15 days late............. 1/50,000th of the institution's total assets. 16 or more days late.......... 1/25,000th of the institution's total assets. 12 CFR 308.132(e)(2).............. $39,278 12 CFR 308.132(e)(3): Tier One CMP.................. $3,928 Tier Two CMP.................. $39,278 Tier Three CMP \30\........... $1,963,870 ---------------------------------------------------------------------------------------------------------------- IV. Alternatives Considered During preliminary discussions regarding the Proposed Rule, the FDIC considered possible alternatives to issuing the Proposed Rule. The primary alternative the FDIC considered was to maintain the current statutory language in the CFR and Federal Register as well as the CMP presentation format. This alternative (1) keeps the redundant statutory language in the CFR and Federal Register, (2) does not improve the clarity and readability of the maximum CMPs, and (3) does not address the fact that the CMP presentation format is inconsistent with the other prudential regulators. Therefore, the FDIC believes the Proposed Rule will support ease of reference and public understanding more so than the alternative. V. Request for Comment The FDIC believes that these changes to Part 308 are ministerial and technical and that, therefore, notice-and-comment rulemaking is unnecessary. Nonetheless, in the interest of transparency, the FDIC invites comments on all aspects of this Proposed Rule. Commenters are specifically encouraged to identify any technical issues raised by the Proposed Rule. VI. Regulatory Analysis Riegle Community Development and Regulatory Improvement Act Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 \31\ requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. In addition, in order to provide an adequate transition period, new regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. --------------------------------------------------------------------------- \31\ 12 U.S.C. 4802. --------------------------------------------------------------------------- The Proposed Rule would not impose any new or additional reporting, disclosures, or other requirements on insured depository institutions. Therefore, the Proposed Rule is not subject to the requirements of this statute. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) generally requires that, in connection with a rulemaking, an agency prepare and make available for public comment an initial regulatory flexibility analysis describing the impact of the Proposed Rule on small entities.\32\ A regulatory flexibility analysis is not required, [[Page 38084]] however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Small Business Administration has defined ``small entities'' to include banking organizations with total assets less than or equal to $550 million.\33\ The FDIC supervises 3,603 depository institutions,\34\ of which 2,885 are defined as small banking entities by the terms of the RFA. For the reasons described below and under section 605(b) of the RFA, the FDIC certifies that the Proposed Rule will not have a significant economic impact on a substantial number of small entities. --------------------------------------------------------------------------- \32\ 5 U.S.C. 601 et seq. \33\ [thinsp]13 CFR 121.201 (as amended, effective December 2, 2014). \34\ FDIC-supervised institutions are set forth in 12 U.S.C. 1813(q)(2). --------------------------------------------------------------------------- The FDIC believes the proposed amendments to 12 CFR part 308 will have a negligible impact on small entities. For a detailed description of the Proposed Rule and its expected effects, please review Section III above. The proposed revisions are intended to simplify the text of the CFR by removing unnecessary and redundant text in order to make it easier for readers to reference and understand the current maximum CMP amounts. The Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999: Assessment of Federal Regulations and Policies on Families The FDIC determined that the Proposed Rule will not affect family wellbeing within the meaning of section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.\35\ --------------------------------------------------------------------------- \35\ Public Law 105-277, 112 Stat. 2681 (1998). --------------------------------------------------------------------------- Paperwork Reduction Act The Proposed Rule does not create any new, or revise any existing, collections of information under section 3504(h) of the Paperwork Reduction Act of 1980.\36\ Consequently, no information collection request will be submitted to the OMB for review. --------------------------------------------------------------------------- \36\ 44 U.S.C. 3501 et seq. --------------------------------------------------------------------------- Plain Language Act Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000.\37\ Accordingly, the FDIC has attempted to write the Proposed Rule in clear and comprehensible language. --------------------------------------------------------------------------- \37\ Public Law 106-102, 113 Stat. 1338 (Nov. 12, 1999). --------------------------------------------------------------------------- List of Subjects 12 CFR Part 308 Administrative practice and procedure, Bank deposit insurance, Banks, Banking, Claims, Crime, Equal access to justice, Fraud, Investigations, Lawyers, Penalties. 12 CFR Part 327 Bank deposit insurance, Banks, Savings Associations. For the reasons set forth in the preamble, the FDIC proposes to amend 12 CFR parts 308 and 327 as follows: PART 308--RULES OF PRACTICE AND PROCEDURE 0 1. The authority citation for part 308 continues to read as follows: Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104-134, sec. 31001(s), 110 Stat. 1321; Pub. L. 109-351, 120 Stat. 1966; Pub. L. 111-203, 124 Stat. 1376; Pub. L. 114-74, sec. 701, 129 Stat. 584. 0 2. Amend Sec. 308.116 by revising paragraph (b) to read as follows: Sec. 308.116 Assessment of penalties. * * * * * (b) Maximum penalty amounts. Under 12 U.S.C. 1817(j)(16), a civil money penalty may be assessed for violations of change in control of insured depository institution provisions in the maximum amounts calculated and published in accordance with 12 CFR 308.132(d). * * * * * 0 3. Amend Sec. 308.132 by revising paragraph (d) and adding paragraph (e) to read as follows: Sec. 308.132 Assessment of penalties. * * * * * (d) Maximum civil money penalty amounts. Under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, the Board of Directors or its designee may assess civil money penalties in the maximum amounts using the following framework: (1) Statutory formula to calculate inflation adjustments. The FDIC is required by statute to annually adjust for inflation the maximum amount of each civil money penalty within its jurisdiction to administer. The inflation adjustment is calculated by multiplying the maximum dollar amount of the civil money penalty for the previous calendar year by the cost-of-living inflation adjustment multiplier provided annually by the Office of Management and Budget and rounding the total to the nearest dollar. (2) Notice of inflation adjustments. By January 15 of each calendar year, the FDIC will announce in the Federal Register the maximum penalties that may be assessed after each January 15, based on the formula in paragraph (d)(1) of this section, for conduct occurring on or after November 2, 2015. (e) Civil money penalties for violations of 12 U.S.C. 1464(v) and 12 U.S.C. 1817(a)--(1) Late Filing--Tier One penalties. Where an institution fails to make or publish its Report of Condition and Income (Call Report) within the appropriate time periods, but where the institution maintains procedures in place reasonably adapted to avoid inadvertent error and the late filing occurred unintentionally and as a result of such error, or where the institution inadvertently transmitted a Call Report that is minimally late, the Board of Directors or its designee may assess a Tier One civil money penalty. The amount of such a penalty shall not exceed the maximum amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. Such a penalty may be assessed for each day that the violation continues. (i) First offense. Generally, in such cases, the amount assessed shall be an amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. The Federal Register document will contain a presumptive penalty amount per day for each of the first 15 days for which the failure continues, and a presumptive amount per day for each subsequent days the failure continues, beginning on the 16th day. The annual Federal Register notice will also provide penalty amounts that generally may be assessed for institutions with less than $25,000,000 in assets. (ii) Subsequent offense. The FDIC will calculate and publish in the Federal Register a presumptive daily Tier One penalty to be imposed where an institution has been delinquent in making or publishing its Call Report within the preceding five quarters. The published penalty shall identify the amount that will generally be imposed per day for each of the first 15 days for which the failure continues, and the amount that will generally be imposed per day for each subsequent day the failure continues, beginning on the 16th day. The annual Federal Register [[Page 38085]] document will also provide penalty amounts that generally may be assessed for institutions with less than $25,000,000 in assets. (iii) Lengthy or repeated violations. The amounts set forth in this paragraph (e)(1) will be assessed on a case-by-case basis where the amount of time of the institution's delinquency is lengthy or the institution has been delinquent repeatedly in making or publishing its Call Reports. (iv) Waiver. Absent extraordinary circumstances outside the control of the institution, penalties assessed for late filing shall not be waived. (2) Late-filing--Tier Two penalties. Where an institution fails to make or publish its Call Report within the appropriate time period, the Board of Directors or its designee may assess a Tier Two civil money penalty for each day the failure continues. The amount of such a penalty will not exceed the maximum amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. (3) False or misleading reports or information--(i) Tier One penalties. In cases in which an institution submits or publishes any false or misleading Call Report or information, the Board of Directors or its designee may assess a Tier One civil money penalty for each day the information is not corrected, where the institution maintains procedures in place reasonably adapted to avoid inadvertent error and the violation occurred unintentionally and as a result of such error, or where the institution inadvertently transmits a Call Report or information that is false or misleading. The amount of such a penalty will not exceed the maximum amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. (ii) Tier Two penalties. Where an institution submits or publishes any false or misleading Call Report or other information, the Board of Directors or its designee may assess a Tier Two civil money penalty for each day the information is not corrected. The amount of such a penalty will not exceed the maximum amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. (iii) Tier Three penalties. Where an institution knowingly or with reckless disregard for the accuracy of any Call Report or information submits or publishes any false or misleading Call Report or other information, the Board of Directors or its designee may assess a Tier Three civil money penalty for each day the information is not corrected. The penalty shall not exceed the lesser of 1 percent of the institution's total assets per day or the amount calculated and published annually in the Federal Register under paragraph (d)(2) of this section. (4) Mitigating factors. The amounts set forth in paragraphs (e)(1) through (3) of this section may be reduced based upon the factors set forth in paragraph (b) of this section. 0 4. Amend Sec. 308.502 by revising paragraphs (a)(6) and (b)(4) to read as follows: Sec. 308.502 Basis for civil penalties and assessments. (a) * * * (6) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with section 308.132(d) of this part. * * * * * (b) * * * (4) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with section 308.132(d) of this part. * * * * * 0 5. Amend Sec. 308.530 by revising paragraph (d) to read as follows: Sec. 308.530 Determining the amount of penalties and assessments. * * * * * (d) Civil money penalties that are assessed under this subpart are subject to annual adjustments to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, sec. 701, 129 Stat. 584) (see also 12 CFR 308.132(d)). PART 327--ASSESSMENTS 0 6. The authority citation for part 327 continues to read as follows: Authority: 12 U.S.C. 1441, 1813, 1815, 1817-19, 1821. * * * * * 0 7. Amend Sec. 327.3 by revising paragraph (c) to read as follows: Sec. 327.3 Payment of assessments. * * * * * (c) Necessary action, sufficient funding by institution. Each insured depository institution shall take all actions necessary to allow the Corporation to debit assessments from the insured depository institution's designated deposit account. Each insured depository institution shall, prior to each payment date indicated in paragraph (b)(2) of this section, ensure that funds in an amount at least equal to the amount on the quarterly certified statement invoice are available in the designated account for direct debit by the Corporation. Failure to take any such action or to provide such funding of the account shall be deemed to constitute nonpayment of the assessment. Penalties for failure to timely pay assessments will be calculated and published in accordance with 12 CFR 308.132(d). * * * * * Dated at Washington, DC, on July 19, 2018. By order of the Board of Directors. Federal Deposit Insurance Corporation. Valerie Best, Assistant Executive Secretary. [FR Doc. 2018-16548 Filed 8-2-18; 8:45 am] BILLING CODE 6714-01-P
![38080 Federal Register / Vol. 83, No. 150 / Friday, August 3, 2018 / Proposed Rules
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tracking number that http:// information as confidential include (1) a descriptive regulatory language related
www.regulations.gov provides after you description of the items, (2) whether to civil money penalty (CMP) amounts
have successfully uploaded your and why such items are customarily that restates existing statutory language
comment. treated as confidential within the regarding such CMPs, codify Congress’s
Submitting comments via email, hand industry, (3) whether the information is recent change to CMP inflation-
delivery, or mail. Comments and generally known by or available from adjustments in the FDIC’s regulations,
documents submitted via email, hand other sources, (4) whether the and direct readers to an annually
delivery, or mail also will be posted to information has previously been made published notice in the Federal
http://www.regulations.gov. If you do available to others without obligation Register—rather than the Code of
not want your personal contact concerning its confidentiality, (5) an Federal Regulations (CFR)—for
information to be publicly viewable, do explanation of the competitive injury to information regarding the maximum
not include it in your comment or any the submitting person which would CMP amounts that can be assessed after
accompanying documents. Instead, result from public disclosure, (6) when inflation adjustments. These revisions
provide your contact information on a such information might lose its are intended to simplify the CFR by
cover letter. Include your first and last confidential character due to the removing unnecessary and redundant
names, email address, telephone passage of time, and (7) why disclosure text and to make it easier for readers to
number, and optional mailing address. of the information would be contrary to locate the current, inflation-adjusted
The cover letter will not be publicly the public interest. maximum CMP amounts by presenting
viewable as long as it does not include It is DOE’s policy that all comments these amounts in an annually published
any comments. may be included in the public docket, chart. Additionally, the FDIC proposes
Include contact information each time without change and as received, to correct four errors and revise cross-
you submit comments, data, documents, including any personal information references currently found in its rules of
and other information to DOE. If you provided in the comments (except practice and procedure.
submit via mail or hand delivery, please information deemed to be exempt from
public disclosure). DATES: Comments must be received by
provide all items on a CD, if feasible. It October 2, 2018.
DOE considers public participation to
is not necessary to submit printed
be a very important part of the process ADDRESSES: You may submit comments,
copies. No facsimiles (faxes) will be
for developing test procedures and identified by RIN 3064–AE75, by any of
accepted.
energy conservation standards. DOE the following methods:
Comments, data, and other actively encourages the participation
information submitted to DOE • Agency website: http://
and interaction of the public during the www.fdic.gov/regulations/laws/Federal/.
electronically should be provided in comment period in each stage of the
PDF (preferred), Microsoft Word or Follow the instructions for submitting
rulemaking process. Interactions with comments on the Agency website.
Excel, WordPerfect, or text (ASCII) file and between members of the public
format. Provide documents that are not • Email: Comments@fdic.gov. Include
provide a balanced discussion of the
secured, written in English and free of the RIN 3064–AE75 in the subject line
issues and assist DOE in the rulemaking
any defects or viruses. Documents of the message.
process. Anyone who wishes to be
should not contain special characters or added to the DOE mailing list to receive • Mail: Robert E. Feldman, Executive
any form of encryption and, if possible, future notices and information about Secretary, Attention: Comments, Federal
they should carry the electronic this process should contact Appliance Deposit Insurance Corporation, 550 17th
signature of the author. and Equipment Standards Program staff Street NW, Washington, DC 20429.
Campaign form letters. Please submit at (202) 287–1445 or via email at • Hand Delivery: Comments may be
campaign form letters by the originating Manufactured_Housing@ee.doe.gov. hand-delivered to the guard station at
organization in batches of between 50 to the rear of the 550 17th Street Building
Signed in Washington, DC, on July 31,
500 form letters per PDF or as one form (located on F Street) on business days
2018.
letter with a list of supporters’ names between 7 a.m. and 5 p.m.
Cathy Tripodi,
compiled into one or more PDFs. This Public Inspection: All comments
reduces comment processing and Acting Assistant Secretary, Energy Efficiency
and Renewable Energy. received must include the agency name
posting time. and RIN for this rulemaking. All
[FR Doc. 2018–16650 Filed 8–2–18; 8:45 am]
Confidential Business Information. comments received will be posted
BILLING CODE 6450–01–P
According to 10 CFR 1004.11, any without change to http://www.fdic.gov/
person submitting information that he regulations/laws/Federal/—including
or she believes to be confidential and any personal information provided—for
exempt by law from public disclosure FEDERAL DEPOSIT INSURANCE public inspection. Paper copies of
should submit via email, postal mail, or CORPORATION public comments may be ordered from
hand delivery two well-marked copies: the FDIC Public Information Center,
12 CFR Parts 308 and 327
One copy of the document marked 3501 North Fairfax Drive, Room E–1002,
confidential including all the RIN 3064–AE75 Arlington, VA 22226 by telephone at
information believed to be confidential, (877) 275–3342 or (703) 562–2200.
amozie on DSK3GDR082PROD with PROPOSALS1
and one copy of the document marked Rules of Practice and Procedure
FOR FURTHER INFORMATION CONTACT:
‘‘non-confidential’’ with the information AGENCY: Federal Deposit Insurance Graham N. Rehrig, Senior Attorney,
believed to be confidential deleted. Corporation. Legal Division, (202) 898–3829,
Submit these documents via email or on ACTION: Notice of proposed rulemaking grehrig@fdic.gov, or Sydney Mayer,
a CD, if feasible. DOE will make its own and request for comments. Attorney, Legal Division, (202) 898–
determination about the confidential
3669.
status of the information and treat it SUMMARY: The Federal Deposit
according to its determination. Insurance Corporation (FDIC) proposes SUPPLEMENTARY INFORMATION:
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![38082 Federal Register / Vol. 83, No. 150 / Friday, August 3, 2018 / Proposed Rules
filing of Call Reports. In 1991, however, direct readers to the Federal Register to institution’s total assets with the listed
the FDIC issued regulations that further determine the applicable inflation- basis-point calculations, and these
subdivided these amounts based upon adjusted penalty amounts. corrections would be reflected in the
the size of the institution and the The FDIC proposes correcting four annual Federal Register CMP notice.17
lateness of the filing.16 These errors currently located at Lastly, the FDIC proposes to revise
regulations accordingly differ from other § 308.132(d)(1) and (3) concerning the cross-references found at 12 CFR
provisions found in § 308.132(d) that maximum amount that generally will be 308.502(a)(6), 12 CFR 308.502(b)(4), 12
simply restate relevant statutory assessed for violations of 12 U.S.C. CFR 308.530, and 12 CFR 327.3(c) to
language regarding maximum CMP 1464(v) and 1817(a) regarding the late reflect the proposed revisions to 12 CFR
amounts. The Proposed Rule would filing of Call Reports by certain small 308.132(d).
merge language from current institutions. The current text contains Since the Proposed Rule would
§ 308.132(d)(1) and (3) into a new the inadvertent overstatement of four amend the presentation of maximum
§ 308.132(e), since, aside from the fractions of an institution’s total assets CMP levels in the Federal Register, the
differing penalty amounts, these two that are paired with correctly stated FDIC believes the rule will not pose any
current subsections contain similar basis-point figures. These corrections regulatory costs to IDIs or cost to the
language. The new § 308.132(e) would would align the listed fractions of an public in general.
SAMPLE CIVIL MONEY PENALTY TABLE
Adjusted Maximum CMP 18
U.S. Code citation (Beginning January 15, 2018)
12 U.S.C. 1464(v):
Tier One CMP ........................................................................................................ $3,928
Tier Two CMP ........................................................................................................ $39,278
Tier Three CMP 19 .................................................................................................. $1,963,870
12 U.S.C. 1467(d) ......................................................................................................... $9,819
12 U.S.C. 1817(a):
Tier One CMP 20 .................................................................................................... $3,928
Tier Two CMP ........................................................................................................ $39,278
Tier Three CMP 21 .................................................................................................. $1,963,870
12 U.S.C. 1817(c):
Tier One CMP ........................................................................................................ $3,591
Tier Two CMP ........................................................................................................ $35,904
Tier Three CMP 22 .................................................................................................. $1,795,216
12 U.S.C. 1817(j)(16):
Tier One CMP ........................................................................................................ $9,819
Tier Two CMP ........................................................................................................ $49,096
Tier Three CMP 23 .................................................................................................. $1,963,870
12 U.S.C. 1818(i)(2) 24
Tier One CMP ........................................................................................................ $9,819
Tier Two CMP ........................................................................................................ $49,096
Tier Three CMP 25 .................................................................................................. $1,963,870
12 U.S.C. 1820(e)(4) ..................................................................................................... $8,977
12 U.S.C. 1820(k)(6) ..................................................................................................... $323,027
12 U.S.C. 1828(a)(3) ..................................................................................................... $122
12 U.S.C. 1828(h) 26
For assessments < $10,000 .................................................................................. $122
12 U.S.C. 1829b(j) ........................................................................................................ $20,521
12 U.S.C. 1832(c) ......................................................................................................... $2,852
12 U.S.C. 1884 .............................................................................................................. $285
12 U.S.C. 1972(2)(F):
Tier One CMP ........................................................................................................ $9,819
Tier Two CMP ........................................................................................................ $49,096
16 See 56 FR 37968, 37992–93 (Aug. 9, 1991). codified at 12 CFR 308.132(e)(1). These adjusted 26 The $122-per-day maximum CMP under 12
17 For example, current section subdivided amounts are found at the end of this U.S.C. 1828(h), for failure or refusal to pay any
308.132(d)(1)(i)(A) states, ‘‘the amount assessed chart. assessment, applies only when the assessment is
shall be the greater of [an inflation-adjusted daily 21 The maximum penalty amount for an less than $10,000. When the amount of the
penalty] or 1⁄1,000th of the institution’s total assets institution is the lesser of this amount or 1 percent assessment is $10,000 or more, the maximum CMP
(1/10th of a basis point)’’ when it should read, ‘‘the of total assets. under section 1828(h) is 1 percent of the amount
amount assessed shall be the greater of [an 22 The maximum penalty amount for an of the assessment for each day that the failure or
inflation-adjusted daily penalty] or 1/100,000th of refusal continues.
institution is the lesser of this amount or 1 percent
the institution’s total assets (1/10th of a basis 27 The maximum penalty amount for an
of total assets.
point).’’ (Emphasis added).
18 The maximum penalty amount is per day,
23 The maximum penalty amount for an institution is the lesser of this amount or 1 percent
of total assets.
amozie on DSK3GDR082PROD with PROPOSALS1
unless otherwise indicated. institution is the lesser of this amount or 1 percent
28 The maximum penalty amount for an
19 The maximum penalty amount for an of total assets.
24 These amounts also apply to CMPs in statutes institution is the greater of this amount or 1/
institution is the lesser of this amount or 1 percent
of total assets. that cross-reference 12 U.S.C. 1818, such as 12 100,000th of the institution’s total assets.
29 The maximum penalty amount for an
20 12 U.S.C. 1817(a) provides the maximum CMP U.S.C. 2601, 2804(b), 3108(b), 3349(b), 4009(a),
amounts for the late filing of Call Reports. In 1991, 4309(a), 4717(b); 15 U.S.C. 1607(a), 1681s(b), institution is the greater of this amount or 1/
however, the FDIC issued regulations that further 1691(b), 1691c(a), 1693o(a); 42 U.S.C. 3601. 50,000th of the institution’s total assets.
25 The maximum penalty amount for an 30 The maximum penalty amount for an
subdivided these amounts based upon the size of
the institution and the lateness of the filing. See 56 institution is the lesser of this amount or 1 percent institution is the lesser of this amount or 1 percent
FR 37968, 37992–93 (Aug. 9, 1991), to be re- of total assets. of total assets.
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![Federal Register / Vol. 83, No. 150 / Friday, August 3, 2018 / Proposed Rules 38085
document will also provide penalty corrected. The penalty shall not exceed to the amount on the quarterly certified
amounts that generally may be assessed the lesser of 1 percent of the statement invoice are available in the
for institutions with less than institution’s total assets per day or the designated account for direct debit by
$25,000,000 in assets. amount calculated and published the Corporation. Failure to take any
(iii) Lengthy or repeated violations. annually in the Federal Register under such action or to provide such funding
The amounts set forth in this paragraph paragraph (d)(2) of this section. of the account shall be deemed to
(e)(1) will be assessed on a case-by-case (4) Mitigating factors. The amounts set constitute nonpayment of the
basis where the amount of time of the forth in paragraphs (e)(1) through (3) of assessment. Penalties for failure to
institution’s delinquency is lengthy or this section may be reduced based upon timely pay assessments will be
the institution has been delinquent the factors set forth in paragraph (b) of calculated and published in accordance
repeatedly in making or publishing its this section. with 12 CFR 308.132(d).
Call Reports. ■ 4. Amend § 308.502 by revising
* * * * *
(iv) Waiver. Absent extraordinary paragraphs (a)(6) and (b)(4) to read as
circumstances outside the control of the follows: Dated at Washington, DC, on July 19, 2018.
institution, penalties assessed for late By order of the Board of Directors.
filing shall not be waived. § 308.502 Basis for civil penalties and Federal Deposit Insurance Corporation.
(2) Late-filing—Tier Two penalties. assessments.
Valerie Best,
Where an institution fails to make or (a) * * * Assistant Executive Secretary.
publish its Call Report within the (6) The amount of any penalty
[FR Doc. 2018–16548 Filed 8–2–18; 8:45 am]
appropriate time period, the Board of assessed under paragraph (a)(1) of this
section will be adjusted for inflation in BILLING CODE 6714–01–P
Directors or its designee may assess a
Tier Two civil money penalty for each accordance with section 308.132(d) of
day the failure continues. The amount this part.
FEDERAL HOUSING FINANCE
of such a penalty will not exceed the * * * * * AGENCY
maximum amount calculated and (b) * * *
published annually in the Federal (4) The amount of any penalty 12 CFR Parts 1206 and 1240
Register under paragraph (d)(2) of this assessed under paragraph (a)(1) of this
section. section will be adjusted for inflation in DEPARTMENT OF HOUSING AND
(3) False or misleading reports or accordance with section 308.132(d) of URBAN DEVELOPMENT
information—(i) Tier One penalties. In this part.
cases in which an institution submits or * * * * * Office of Federal Housing Enterprise
publishes any false or misleading Call ■ 5. Amend § 308.530 by revising Oversight
Report or information, the Board of paragraph (d) to read as follows:
Directors or its designee may assess a 12 CFR Part 1750
Tier One civil money penalty for each § 308.530 Determining the amount of
day the information is not corrected, penalties and assessments. RIN 2590–AA95
where the institution maintains * * * * *
procedures in place reasonably adapted (d) Civil money penalties that are Enterprise Capital Requirements
to avoid inadvertent error and the assessed under this subpart are subject
AGENCY: Federal Housing Finance
violation occurred unintentionally and to annual adjustments to account for
Agency; Office of Federal Housing
as a result of such error, or where the inflation as required by the Federal Civil
Enterprise Oversight; Department of
institution inadvertently transmits a Penalties Inflation Adjustment Act
Housing and Urban Development.
Call Report or information that is false Improvements Act of 2015 (Pub. L. 114–
or misleading. The amount of such a 74, sec. 701, 129 Stat. 584) (see also 12 ACTION: Notice of proposed rulemaking;
penalty will not exceed the maximum CFR 308.132(d)). extension of comment period.
amount calculated and published SUMMARY: On July 17, 2018, the Federal
annually in the Federal Register under PART 327—ASSESSMENTS
Housing Finance Agency (FHFA)
paragraph (d)(2) of this section. ■ 6. The authority citation for part 327 published in the Federal Register a
(ii) Tier Two penalties. Where an
continues to read as follows: notice of proposed rulemaking for
institution submits or publishes any
public comment that proposes a new
false or misleading Call Report or other Authority: 12 U.S.C. 1441, 1813, 1815,
1817–19, 1821. regulatory capital framework for the
information, the Board of Directors or its
Federal National Mortgage Association
designee may assess a Tier Two civil * * * * *
(Fannie Mae) and the Federal Home
money penalty for each day the ■ 7. Amend § 327.3 by revising
Loan Mortgage Corporation (Freddie
information is not corrected. The paragraph (c) to read as follows:
Mac). The comment period was set to
amount of such a penalty will not
§ 327.3 Payment of assessments. expire on September 17, 2018. This
exceed the maximum amount calculated
notice extends the comment period by
and published annually in the Federal * * * * *
(c) Necessary action, sufficient an additional 60 days to allow the
Register under paragraph (d)(2) of this
funding by institution. Each insured public additional time to comment on
section.
(iii) Tier Three penalties. Where an depository institution shall take all the proposed rule.
amozie on DSK3GDR082PROD with PROPOSALS1
institution knowingly or with reckless actions necessary to allow the DATES: The comment period for the
disregard for the accuracy of any Call Corporation to debit assessments from proposed rule published at 83 FR 33312
Report or information submits or the insured depository institution’s (July 17, 2018) is extended. Written
publishes any false or misleading Call designated deposit account. Each comments must be received on or before
Report or other information, the Board insured depository institution shall, November 16, 2018.
of Directors or its designee may assess prior to each payment date indicated in ADDRESSES: You may submit your
a Tier Three civil money penalty for paragraph (b)(2) of this section, ensure comments on the proposed rule,
each day the information is not that funds in an amount at least equal identified by regulatory information
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Document Created: 2018-11-06 10:34:42
Document Modified: 2018-11-06 10:34:42
| 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 | Proposed Rules | |
| Action | Notice of proposed rulemaking and request for comments. | |
| Dates | Comments must be received by October 2, 2018. | |
| Contact | Graham N. Rehrig, Senior Attorney, Legal Division, (202) 898-3829, [email protected], or Sydney Mayer, Attorney, Legal Division, (202) 898-3669. | |
| FR Citation | 83 FR 38080 | |
| RIN Number | 3064-AE75 | |
| CFR Citation | 12
CFR
308 12 CFR 327 | |
| CFR Associated | Administrative Practice and Procedure; Bank Deposit Insurance; Banks; Banking; Claims; Crime; Equal Access to Justice; Fraud; Investigations; Lawyers; Penalties and Savings Associations |
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