Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64249

1 28 U.S.C. 2461 note.

2Some of OTS’s CMPs are in a commonly 

administered statute, 12 U.S.C. 1818. Each agency 

that administers this statute is making identical 

adjustments.

test-eligible swine when conducted 

according to instructions approved by 

APHIS. FP assays are interpreted as 

either positive, negative, or suspect. A 

40-microliter sample is used. If a sample 

reads <10 millipolarization units (mP) 

above the mean negative control, the 

sample is considered negative. If a 

sample reads >20 mP above the mean 

negative control, the sample is 

considered positive. Samples that read 

between 10 and 20 mP above the 

negative control mean must be retested 

using 40 microliters of sample. If the 40-

microliter sample is >20 mP above the 

mean negative control, the sample is 

considered positive. If the 40-microliter 

sample is still in the 10 to 20 mP range 

above the mean negative control, the 

sample is considered suspect. If the 40-

microliter sample is <10 mP above the 

mean negative control, the sample is 

considered negative. Swine with 

negative FP assay results are classified 

as brucellosis negative. Swine with 

positive FP assay results are classified 

as brucellosis reactors, while swine with 

suspect FP assay results are classified as 

brucellosis suspects. 

(6) The evaluation of test results for 

all swine shall be the responsibility of 

a designated epidemiologist in each 

State. The designated epidemiologist 

shall consider the animal and herd 

history and other epidemiologic factors 

when determining the brucellosis 

classification of swine. Deviations from 

the brucellosis classification criteria as 

provided in this definition of official 

test are acceptable when made by the 

designated epidemiologist.

* * * * *

Done in Washington, DC, this 29th day of 

October 2004. 

Peter Fernandez, 

Acting Administrator, Animal and Plant 

Health Inspection Service.

[FR Doc. 04–24646 Filed 11–3–04; 8:45 am] 

BILLING CODE 3410–34–P

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 74

Material Control and Accounting of 

Special Nuclear Material

CFR Correction 

In Title 10 of the Code of Federal 

Regulations, Parts 51 to 199, revised as 

of January 1, 2004, in part 74, at the 

beginning of page 466, the following 

text is reinstated:

§ 74.7 Specific exemptions. 

The Commission may, upon 

application of any interested person or 

upon its own initiative, grant such 

exemptions from the requirements of 

the regulations in this part as it 

determines are authorized by law and 

will not endanger life or property or the 

common defense and security, and are 

otherwise in the public interest.

§ 74.8 Information collection 

requirements: OMB approval. 

(a) The Commission has submitted the 

information collection requirements 

contained in this part to the Office of 

Management and Budget (OMB) for 

approval as required by the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.). 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a collection of information if it does 

not display a currently valid OMB 

control number. OMB has approved the 

information collection requirements 

contained in this part under control 

number 3150–0123. 

(b) The approved information 

collection requirements contained in 

this part appear in §§ 74.11, 74.13, 

74.15, 74.17, 74.19, 74.31, 74.33, 74.41, 

74.43, 74.45, 74.51, 74.57, and 74.59. 

(c) This part contains information 

collection requirements in addition to 

those approved under the control 

number specified in paragraph (a) of 

this section. These information 

collection requirements and the control 

numbers under which they are 

approved are as follows: 

(1) In § 74.15, DOE/NRC Form–741 is 

approved under Control No. 3150–0003. 

(2) In § 74.13, DOE/NRC Form–742 is 

approved under Control No. 3150–0004. 

(3) In § 74.13, DOE/NRC Form–742C 

is approved under Control No. 3150–

0058. 

(4) In § 74.17, NRC Form 327 is 

approved under Control No. 3150–0139. 

[50 FR 7579, Feb. 25, 1985, as amended at 

52 FR 10040, Mar. 30, 1987; 52 FR 19305, 

May 22, 1987; 56 FR 55998, Oct. 31, 1991; 

62 FR 52189, Oct. 6, 1997; 67 FR 78144, Dec. 

23, 2002]

Subpart B—General Reporting and 

Recordkeeping Requirements

§ 74.11 Reports of loss or theft or 

attempted theft or unauthorized production 

of special nuclear material. 

(a) Each licensee who possesses one 

gram or more of contained uranium-235, 

uranium-233, or plutonium shall notify 

the NRC Operations Center within 1 

hour of discovery of any loss or theft or 

other unlawful diversion of special 

nuclear material which the licensee is 

licensed to possess, or any incident in 

which an attempt has been made to 

commit a theft or unlawful diversion of 

special nuclear material. The 

requirement to report within 1 hour of 

discovery does not pertain to measured 

quantities of special nuclear material 

disposed of as discards or inventory 

difference quantities. Each licensee who 

operates an uranium enrichment facility 

shall notify the NRC Operations Center 

within 1 hour of discovery of any 

unauthorized production of enriched 

uranium. For centrifuge enrichment 

facilities the requirement to report 

enrichment levels greater than

[FR Doc. 04–55523 Filed 11–3–04; 8:45 am] 

BILLING CODE 1505–01–D

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision 

12 CFR Part 509 

[No. 2004–51] 

RIN 1550–AB95 

Rules of Practice and Procedure in 

Adjudicatory Proceedings; Civil Money 

Penalty Inflation Adjustment

AGENCY: Office of Thrift Supervision, 

Treasury.

ACTION: Final rule.

SUMMARY: The Federal Civil Penalties 

Inflation Adjustment Act of 1990 

requires all federal agencies with 

statutory authority to impose civil 

money penalties (CMPs) to evaluate and 

adjust those CMPs every four years. The 

Office of Thrift Supervision (OTS) last 

adjusted its CMP statutes in 2000. 

Consequently, OTS is issuing this final 

rule to implement the required 

adjustments to OTS’s CMP statutes.

DATES: Effective November 4, 2004.

FOR FURTHER INFORMATION CONTACT:

Timothy P. Leary, Counsel (Banking & 

Finance), (202) 906–7170, Regulations 

and Legislation Division, Office of the 

Chief Counsel, Office of Thrift 

Supervision, 1700 G Street, NW., 

Washington, DC 20552.

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Civil Penalties Inflation 

Adjustment Act of 19901 (FCPIAA) 

requires each agency to make 

inflationary adjustments to the CMPs in 

statutes that it administers.2 Under the 

64250 Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 

3 12 CFR 509.103; 65 FR 61260 (Oct. 17, 2000).

4The rounding rules require that an increase be 

rounded to the nearest multiple of: $10 in the case 

of penalties less than or equal to $100; $100 in the 

case of penalties greater than $100 but less than or 

equal to $1,000; $1,000 in the case of penalties 

greater than $1,000 but less than or equal to 

$10,000; $5,000 in the case of penalties greater than 

$10,000 but less than or equal to $100,000; $10,000 

in the case of penalties greater than $100,000 but 

less than or equal to $200,000; and $25,000 in the 

case of penalties greater than $200,000. See 28 

U.S.C. 2461 note, sec. 5.

5Nine CMPs are subject to a slightly different 

treatment because the statutorily mandated 

computation and the rounding rules did not result 

in any adjustment in 2000. Eight of those penalties 

were last adjusted in 1996. For those eight penalties 

(12 U.S.C. 1464(v)(5), 12 U.S.C. 1467(d), 12 U.S.C. 

1467a(r)(2), 12 U.S.C. 1817(j)(16)(A) and (B), 12 

U.S.C. 1818(i)(2)(A) and (B), and 12 U.S.C. 3349(b) 

(first and second tier)), we compared the CPI–U for 

June 1996 (156.7) to the CPI–U for June 2003 

(183.7), resulting in an inflation increase of 17.2%. 

Moreover, because of application of the rounding 

rules, the $350 per violation penalty for failure to 

require flood insurance or notify the borrower of 

lack of coverage found in 42 U.S.C. 4012a(f) has 

never been adjusted for inflation. For that penalty, 

we compared the CPI–U for June of the year of 

enactment, 1994 (see Riegle Community 

Development and Regulatory Improvement Act of 

1994, Pub. L. 103–325, Title V, section 525, 108 

Stat. 2260) (148.0) with the CPI–U for June 2003 

(183.7). This resulted in an inflation increase of 

24.1%. Because this is the first time these CMPs 

have been adjusted pursuant to the statute, the 

adjustment cannot exceed 10%. The adjustment to 

the per violation penalty in 42 U.S.C. 4012a(f) 

therefore is capped at $35; the resulting penalty is 

$385.

6 5 U.S.C. 553(b).

7 Id.

8 12 U.S.C. 4802.

9 5 U.S.C. 603.

FCPIAA, agencies must make those 

adjustments at least once every four 

years. OTS last adjusted its CMPs in 

2000.3 OTS’s civil money penalty 

adjustment regulation is 12 CFR 

509.103. An increased CMP applies only 

to violations that occur after the 

increase takes effect.

While the CMP statutes of many 

agencies provide for minimum and 

maximum penalty amounts, all of OTS’s 

CMP statutes provide only for a daily 

maximum amount per violation. 

Today’s rule therefore refers only to 

maximum CMPs. Today’s increases in 

maximum CMPs may not necessarily 

affect the amount of any CMP that OTS 

may seek for a particular violation. OTS 

calculates each CMP on a case-by-case 

basis based upon a variety of factors 

(including the gravity of the violation, 

whether the violation was willful or 

recurring, and any harm to the 

depository institution). As a result, the 

maximums merely serve as caps. 

Under the statute, the agency 

determines the inflation adjustment by 

increasing the maximum CMP by a 

‘‘cost-of-living’’ adjustment. The ‘‘costof-living’’ adjustment is the percentage 

by which the Consumer Price Index 

(CPI) for the month of June of the 

calendar year preceding the adjustment 

exceeds the CPI for the month of June 

of the calendar year in which the 

amount of the CMP was last set or 

adjusted. Under Section 3 of the statute, 

the CPI is the Consumer Price Index for 

all urban consumers (CPI-U) published 

by the Department of Labor. 

The statute contains specific rules for 

rounding any increase.4 Agencies do not 

have discretion in choosing whether to 

adjust a maximum CMP, how much to 

adjust a maximum CMP, or the methods 

used to determine the adjustment.

II. Summary of Calculation 

To explain the inflation adjustment 

calculation, we will use the following 

example. Under 12 U.S.C. 1818(i), as 

adjusted in 2000 under 12 CFR 509.103, 

OTS may impose a daily maximum 

third-tier CMP not to exceed $1,175,000 

for violations of certain banking laws. 

First, we determine the appropriate 

CPI–Us. The statute requires OTS to use 

the CPI–U for June of the calendar year 

preceding the year of adjustment. Here, 

because we are adjusting CMPs in 2004, 

we use the CPI–U for June 2003, which 

was 183.7. We must also determine the 

CPI–U for June of the year the CMP was 

last set by law or adjusted for inflation. 

Because OTS last adjusted the CMPs 

under 12 U.S.C. 1818 in 2000, we use 

the CPI–U for June 2000, which was 

172.4. 

Second, we calculate the cost of living 

adjustment or inflation factor. To do 

this, we divide the CPI–U for June 2003 

(183.7) by the CPI–U for June 2000 

(172.4). Our result is 1.065 (i.e., a 6.6% 

increase). 

Third, we calculate the raw inflation 

adjustment. To do this, we multiply the 

maximum penalty amounts by the 

inflation factor. In our example, 

$1,175,000 multiplied by the inflation 

factor of 1.065 equals $1,251,375. 

Fourth, we round the raw inflation 

amounts according to the rounding rules 

in sec. 5(a) of the FCPIAA. Since we 

round only the increased amount, we 

calculate the increased amount by 

subtracting the current maximum 

penalty amounts from the raw 

maximum inflation adjustments. 

Accordingly, the increased amount for 

the maximum penalty in our example is 

$76,375 (i.e., $1,251,375 less 

$1,175,000). Under the rounding rules, 

if the penalty is greater than $200,000, 

we round the increase to the nearest 

multiple of $25,000. Therefore, the 

maximum penalty increase for our 

example is $75,000.

Fifth, we add the rounded increase to 

the maximum penalty amount last set or 

adjusted. In our example, $1,175,000 

plus $75,000 yields a maximum 

inflation adjusted penalty amount of 

$1,250,000. 5

III. Need for an Immediately Effective 

Final Rule 

To issue a final rule without public 

notice and comment, an agency must 

find good cause that notice and 

comment are impracticable, 

unnecessary, or contrary to the public 

interest.6 Similarly, to issue a rule that 

is immediately effective, the agency 

must find good cause for dispensing 

with the 30-day delay required by the 

Administrative Procedure Act.7

Moreover, sec. 302 of the Riegle 

Community Development and 

Regulatory Improvement Act of 19948

requires that a regulation that imposes 

new requirements take effect on the first 

day of the quarter following publication 

of the final rule. That section provides, 

however, that an agency may determine 

that the rule should take effect earlier 

upon a finding of good cause.

Under the statute, agencies must make 

the required CMP inflation adjustments: 

(1) According to the very specific 

formula in the statute; and (2) within 

four years of the last inflation 

adjustment, or by October 31, 2004. 

Agencies have no discretion as to the 

amount or timing of the adjustment. The 

regulation is ministerial, technical, and 

noncontroversial. OTS is unable to vary 

the amounts of the adjustments to 

reflect any views or suggestions 

provided by commenters. Accordingly, 

OTS believes that notice and comment 

are unnecessary. For these same 

reasons, OTS believes that there is good 

cause to make this rule effective 

immediately upon publication. 

IV. Regulatory Flexibility Act 

An initial regulatory flexibility 

analysis under the Regulatory 

Flexibility Act (RFA) is required only 

when an agency must publish a general 

notice of proposed rulemaking.9 As 

already noted, OTS has determined that 

publication of a notice of proposed 

rulemaking is not necessary for this 

final rule. Accordingly, the RFA does 

not require an initial regulatory 

flexibility analysis. Nevertheless, OTS 

has considered the likely impact of the 

rule on small entities and believes that 

the rule will not have a significant 

impact on a substantial number of small 

entities.

V. Executive Order 12866 

OTS has determined that this final 

rule does not constitute a ‘‘significant 

Federal Register / Vol. 69, No. 213 / Thursday, November 4, 2004 / Rules and Regulations 64251

regulatory action’’ for purposes of 

Executive Order 12866. 

VI. Unfunded Mandates Act of 1995 

OTS had determined that the final 

rule will not result in expenditures by 

state, local, or tribal governments or by 

the private sector of $100 million or 

more. Accordingly, this rulemaking is 

not subject to sec. 202 of the Unfunded 

Mandates Act.

List of Subjects in 12 CFR Part 509 

Administrative practice and 

procedure, Penalties.

■ Accordingly, for the reasons outlined 

in the preamble, OTS amends part 509 of 

chapter V, title 12, Code of Federal 

Regulations, as set forth below.

PART 509—RULES OF PRACTICE AND 

PROCEDURE IN ADJUDICATORY 

PROCEEDINGS

■ 1. The authority citation for part 509 

continues to read as follows:

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 1464, 1467, 1467a, 1468, 1817(j), 1818, 

3349, 4717; 15 U.S.C. 78(l), 78o–5, 78u–2; 28 

U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 

4012a.

■ 2. Revise § 509.103(c) to read as 

follows:

§ 509.103 Civil money penalties.

* * * * *

(c) Inflation adjustment. Under the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (28 U.S.C. 2461 

note), OTS must adjust for inflation the 

civil monetary penalties in statutes that 

it administers. The following chart 

displays the adjusted civil money 

penalties. The amounts in this chart 

apply to violations that occur after 

November 4, 2004:

U.S. code citation CMP description New maximum amount 

12 U.S.C. 1464(v)(4) .................... Reports of Condition—1st Tier ...................................................... $2,200. 

12 U.S.C. 1464(v)(5) .................... Reports of Condition—2nd Tier ..................................................... $27,500. 

12 U.S.C. 1464(v)(6) .................... Reports of Condition—3rd Tier ..................................................... $1,250,000. 

12 U.S.C. 1467(d) ........................ Refusal to Cooperate in Exam ...................................................... $6,500. 

12 U.S.C. 1467a(i)(2) ................... Holding Company Act Violation ..................................................... $27,500. 

12 U.S.C. 1467a(i)(3) ................... Holding Company Act Violation ..................................................... $27,500. 

12 U.S.C. 1467a(r)(1) .................. Late/Inaccurate Reports—1st Tier ................................................ $2,200. 

12 U.S.C. 1467a(r)(2) .................. Late/Inaccurate Reports—2nd Tier ............................................... $27,500. 

12 U.S.C. 1467a(r)(3) .................. Late/Inaccurate Reports—3rd Tier ................................................ $1,250,000. 

12 U.S.C. 1817(j)(16)(A) .............. Change in Control—1st Tier .......................................................... $6,500. 

12 U.S.C. 1817(j)(16)(B) .............. Change in Control—2nd Tier ........................................................ $32,500. 

12 U.S.C. 1817(j)(16)(C) .............. Change in Control—3rd Tier ......................................................... $1,250,000. 

12 U.S.C. 1818(i)(2)(A) ................ Violation of Law or Unsafe or Unsound Practice—1st Tier .......... $6,500. 

12 U.S.C. 1818(i)(2)(B) ................ Violation of Law or Unsafe or Unsound Practice—2nd Tier ......... $32,500. 

12 U.S.C. 1818(i)(2)(C) ................ Violation of Law or Unsafe or Unsound Practice—3rd Tier .......... $1,250,000. 

12 U.S.C. 1884 ............................ Violation of Security Rules ............................................................ $110. 

12 U.S.C. 3349(b) ........................ Appraisals Violation—1st Tier ....................................................... $6,500. 

12 U.S.C. 3349(b) ........................ Appraisals Violation—2nd Tier ...................................................... $32,500. 

12 U.S.C. 3349(b) ........................ Appraisals Violation—3rd Tier ....................................................... $1,250,000. 

42 U.S.C. 4012a(f) ....................... Flood Insurance ............................................................................. $385 (per 4012a(f) violation). 

$125,000 (per calendar year). 

Dated: October 29, 2004.

By the Office of Thrift Supervision. 

James E. Gilleran, 

Director.

[FR Doc. 04–24674 Filed 11–3–04; 8:45 am] 

BILLING CODE 6720–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2004–18030; Directorate 

Identifier 2004–CE–13–AD; Amendment 39–

13849; AD 2004–22–21] 

RIN 2120–AA64 

Airworthiness Directives; GROB–

WERKE Model G120A Airplanes

AGENCY: Federal Aviation 

Administration (FAA), DOT.

ACTION: Final rule.

SUMMARY: The FAA adopts a new 

airworthiness directive (AD) for all 

GROB–WERKE (GROB) Model G120A 

airplanes. This AD requires you to 

repetitively inspect visually the area 

between the vertical stabilizer main spar 

and the nearby vertical stabilizer skin 

for any disbonding/crack; repair any 

disbonding/crack found; and calculate 

weight and balance after any repair. 

This AD is the result of mandatory 

continuing airworthiness information 

(MCAI) issued by the airworthiness 

authority for Germany. We are issuing 

this AD to detect and correct any 

disbonding/crack in the area between 

the vertical stabilizer main spar and 

nearby stabilizer skin, which could 

result in possible structural failure. This 

failure could lead to difficulty in 

airplane flight control.

DATES: This AD becomes effective on 

December 27, 2004. 

As of December 27, 2004, the Director 

of the Federal Register approved the 

incorporation by reference of certain 

publications listed in the regulation.

ADDRESSES: To get the service 

information identified in this AD, 

contact GROB Luft-und Raumfahrt, 

Lettenbachstrasse 9, D–86874 

Tussenhausen-Mattsies, Federal 

Republic of Germany; telephone: 011 49 

8268 998139; facsimile: 011 49 8268 

998200. To review this service 

information, go to the National Archives 

and Records Administration (NARA). 

For information on the availability of 

this material at NARA, go to: http://

www.archives.gov/federal_register/

code_of_federal_regulations/

ibr_locations.html or call (202) 741–

6030. 

To view the AD docket, go to the 

Docket Management Facility; U.S. 

Department of Transportation, 400 

Seventh Street, SW., Nassif Building, 

Room PL–401, Washington, DC 20590–

001 or on the Internet at http://

dms.dot.gov. The docket number is 

FAA–2004–18030.

FOR FURTHER INFORMATION CONTACT: Karl 

Schletzbaum, Aerospace Engineer, FAA, 

Small Airplane Directorate, 901 Locust, 

Room 301, Kansas City, Missouri 64106; 

telephone: (816) 329–4146; facsimile: 

(816) 329–4090.

SUPPLEMENTARY INFORMATION:

Discussion 

What events have caused this AD?

The Luftfahrt-Bundesamt (LBA), which