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[Federal Register Volume 65, Number 211 (Tuesday, October 31, 2000)]
[Rules and Regulations]
[Pages 64884-64887]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-27864]

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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 308

RIN 3064-AC45

Rules of Practice and Procedure

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule.

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SUMMARY: The Federal Civil Monetary Penalty Inflation Adjustment Act of 
1990 requires all federal agencies with statutory authority to impose 
civil money penalties (CMPs) to evaluate and adjust those CMPs every 
four years. The FDIC last adjusted its CMP statutes in 1996. The FDIC 
is issuing this final rule to implement the required adjustments to its 
CMP statutes.

EFFECTIVE DATE: October 31, 2000.

FOR FURTHER INFORMATION CONTACT: John T. Mahshie, Counsel, (202) 898-
3503, Compliance and Enforcement Section, Legal Division, 550 17th 
Street, NW, Washington, DC 20429.

SUPPLEMENTARY INFORMATION:

I. Background

    The Debt Collection Improvement Act (DCIA) (Pub. L. 104-134) 
amended section 4 of the Federal Civil Penalties Inflation Adjustment 
Act of 1990 (Inflation Adjustment Act) (28 U.S.C. 2461 note), to 
require the head of each Federal agency to enact regulations within 180 
days of the enactment of the DCIA and at least once every four years 
thereafter, that adjust each CMP provided by law within the 
jurisdiction of the agency (with the exception of certain specifically 
listed statutes) by the inflation adjustment formula set forth in 
section 5(b) of the Inflation Adjustment Act.
    To satisfy the requirements of the DCIA, the FDIC is amending those 
sections of part 308 of its regulations pertaining to its Rules of 
Practice and Procedure which address CMPs. The amount of each CMP which 
the FDIC has jurisdiction to impose has been increased according to the 
prescribed formula. The penalties were last adjusted in 1996. (61 FR 
57987). Any increase in penalty amounts under the DCIA shall apply only 
to violations which occur after the effective date of the increase.

Summary of Calculation

    The Inflation Adjustment Act requires that each CMP amount be 
increased by the ``cost of living'' adjustment, which is defined as the 
percentage by which the Consumer Price Index (CPI-U) \1\ for the month 
of June of the calendar year preceding the adjustment exceeds the CPI 
for the month of June of the calendar year in which the amount of the 
CMP was last set or adjusted pursuant to law. Any increase is to be 
rounded to the nearest multiple of $10 in the case of penalties less 
than or equal to $100; multiple of $100 in the case of penalties 
greater than $100 but less than or equal to $1,000; multiple of $1,000 
in the case of penalties greater than $1,000 but less than or equal to 
$10,000; multiple of $5,000 in the case of penalties greater than 
$10,000 but less than or equal to $100,000; multiple of $10,000 in the 
case of penalties greater than $100,000 but less than or equal to 
$200,000; and multiple of $25,000 in the case of penalties greater than 
$200,000. Under the DCIA, the first adjustment may not exceed ten 
percent of the current penalty amount.
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    \1\ The CPI-U is compiled by the Bureau of Statistics of the 
Department of Labor. To calculate the adjustment, the FDIC used the 
Department of Labor, Bureau of Labor Statistics B All Urban 
Consumers tables to get the CPI-U values.
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Example

    To explain the inflation adjustment calculation for CMP amounts 
that were last adjusted in 1996, we will use the following example. 
Under 12 U.S.C. 1818(i), as adjusted under 12 CFR 308.132(c), the FDIC 
may impose a daily maximum Tier Three CMP not to exceed $1,100,000 for 
violating certain laws.
    We first determine the appropriate CPI-U. The statute requires the 
FDIC to use the CPI-U for June of the calendar year preceding the year 
of adjustment. Because we are adjusting CMPs in 2000, we use the CPI-U 
for June 1999, which was 166.2. We must also determine the CPI-U for 
June of the year the CMP was last set by law or adjusted for inflation. 
Because the FDIC last adjusted the CMPs under 12 U.S.C. 1818 in 1996, 
we use the CPI-U for June 1996, which was 156.7.
    We next calculate the cost of living adjustment or inflation 
factor. To do this, we divide the CPI-U for June 1999 (166.2) by the 
CPI-U for June 1996 (156.7). The result is 1.061 (i.e., a 6.1 percent 
increase).
    Third, we calculate the raw inflation adjustment. To do this, 
multiply the maximum penalty amounts by the inflation factor. In our 
example, $1,100,000 multiplied by the inflation factor of 1.061 equals 
$1,167,100.
    Fourth, we round the raw inflation amounts according to the 
rounding rules in section 5(a) of the Inflation Adjustment Act. Since 
we round only the increased amount, we calculate the increased amount 
by subtracting the current maximum penalty amounts from the raw maximum 
inflation adjustments. Accordingly, the increased amount for the 
maximum penalty in our example is $67,100 (i.e., $1,167,100 less 
$1,100,000). Under the rounding rules, if the penalty is greater than 
$200,000, we round the increase to the nearest multiple of $25,000. 
Therefore, the maximum penalty increase for our example is $75,000.
    Fifth, we add the rounded increase to the maximum penalty amount 
last set or adjusted. In our example, $1,100,000 plus $75,000 yields a 
maximum inflation adjusted penalty amount of $1,175,000.

Summary of Adjustments

    Under the Inflation Adjustment Act, the FDIC must adjust for 
inflation the civil monetary penalties in statutes that it administers. 
The following chart displays the adjusted civil money penalty amounts 
for the enumerated statues. The amounts in this chart apply to 
violations that occur after October 31, 2000:

[[Page 64885]]

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                      U.S. Code citation                         Current maximum amount     New maximum amount
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12 U.S.C. 1817(a):
    Tier One penalties........................................                    2,000                    2,200
    Tier Two penalties........................................                   22,000                   22,000
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 1817(c):
    Tier One penalties........................................                    2,000                    2,200
    Tier Two penalties........................................                   22,000                   22,000
    Tier Three penalties 1,100,000 1,175,000..................
12 U.S.C. 1817(j):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 1818(i)(2):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 1820(e)(4)                                                              5,500                    5,500
12 U.S.C. 1828(a)(3)                                                                110                      110
12 U.S.C. 1828(h)                                                                   110                      110
12 U.S.C. 1829b(j)............................................                   11,000                   11,000
12 U.S.C. 1832(c).............................................                    1,100                    1,100
12 U.S.C. 1884................................................                      110                      110
12 U.S.C. 1972(2)(F):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 3108(b):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 3349(b):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
12 U.S.C. 3909(d).............................................                    1,100                    1,100
12 U.S.C. 4717(b):
    Tier One penalties........................................                    5,500                    5,500
    Tier Two penalties........................................                   27,500                   27,500
    Tier Three penalties......................................                1,100,000                1,175,000
15 U.S.C. 78u-2...............................................                    5,500                    5,500
                                                                                 55,000                   60,000
                                                                                 55,000                   60,000
                                                                                110,000                  120,000
                                                                                275,000                  300,000
                                                                                550,000                  575,000
31 U.S.C. 3802................................................                    5,500                    5,500
42 U.S.C. 4012a(f)............................................              350/105,000              350/115,000
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II. Section-by-Section Analysis

Section 308.116(b)

    Section 308.116(b) pertains to the amount of any CMP that may be 
assessed for violations of the Change in Bank Control Act of 1978 (12 
U.S.C. 1817(j)). This section has been amended by increasing the Tier 
Three penalty amount from $1,100,000 for each day the violation 
continues to $1,175,000 for each day the violation continues or, in the 
case of a depository institution, increasing the penalty from an amount 
not to exceed the lesser of $1,100,000 or one percent of the total 
assets of the institution for each day the violation continues to the 
lesser of $1,175,000 or one percent of the total assets of the 
institution for each day the violation continues.

Section 308.132

    Section 308.132 pertains to the manner in which the FDIC assesses 
CMPs. Paragraph (c)(2) of that section pertains to the CMPs imposed 
pursuant to section 7(a) of the Federal Deposit Insurance Act (FDIA) 
(12 U.S.C. 1817(a)) for the late filing of a bank's Reports of 
Condition and Income (Call Reports) or for the submission of false or 
misleading Call Reports or information. Paragraph (c)(2)(i) has been 
amended to reflect the increase in the Tier One penalty amount from a 
maximum of $2,000 per day to $2,200 per day for each day the failure to 
file continues. Paragraph (c)(ii)(3)(C) has been amended to increase 
the Tier Three penalty amount from a maximum of the lesser of 
$1,100,000 or one percent of the total assets of the institution for 
each day the violation continues to a maximum of the lesser of 
$1,175,000 or one percent of the total assets of the institution for 
each day the violation continues.
    Paragraph (c)(2)(iii) pertains to penalties for the submission of 
false or misleading Call Reports or information. Paragraph 
(c)(2)(iii)(A) of that section has been amended to reflect the increase 
in Tier One penalty amounts from a maximum of $2,000 per day for each 
day the information is not corrected to a maximum of $2,200 per day for 
each day the information is not corrected. Paragraph (c)(2)(iii)(C) of 
that section reflects the increase in Tier Three penalties from an 
amount not to exceed the lesser of $1,100,000 or one percent of the 
total assets of the institution for each day the information is not

[[Page 64886]]

corrected to an amount not to exceed the lesser of $1,175,000 or one 
percent of the total assets of such institution for each day the 
information is not corrected. No change has been made to Tier Two 
penalty amounts by the DCIA.
    Paragraph (c)(3)(i) sets forth the increases for CMPs assessed 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). A Tier 
Three CMP which may be assessed pursuant to section 8(i)(2)(C) (12 
U.S.C. 1818(i)(2)(C)) will increase from an amount not to exceed, in 
the case of any person other than an insured depository institution 
$1,100,000 or, in the case of any insured depository institution, the 
amount will increase from an amount not to exceed the lesser of 
$1,100,000 or one percent of the total assets of such institution for 
each day during which the violation, practice, or breach continues to 
an amount not to exceed the lesser of $1,175,000 or one percent of the 
total assets of such institution for each day during which the 
violation, practice, or breach continues.
    Paragraph (c)(3)(i)( A) of Sec. 308.132 lists a number of statutes 
which provide jurisdiction to the FDIC to assess CMPs under section 
8(i)(2) of the FDIA for violation thereof, including, the Home Mortgage 
Disclosure Act (12 U.S.C. 2804 et seq.) and implementing Regulation C 
(12 CFR 203.6), the Expedited Funds Availability Act (12 U.S.C. 4001 et 
seq.), the Truth in Savings Act (12 U.S.C. 4301 et seq.), the Real 
Estate Settlement Procedures Act (12 U.S.C. 2601 et seq.) and 
implementing Regulation X (24 CFR Part 3500), the Truth in Lending Act 
(15 U.S.C. 1601 et seq.), the Fair Credit Reporting Act (15 U.S.C. 1681 
et seq.), the Equal Credit Opportunity Act (15 U.S.C. 1691 et seq.), 
the Fair Debt Collection Practices Act (15 U.S.C. 1692 et seq.), the 
Electronic Funds Transfer Act (15 U.S.C. 1693 et seq.), and the Fair 
Housing Act (42 U.S.C. 3601 et seq.). Increases in the amount of any 
CMP which the FDIC may assess for violations of those statutes are the 
same as the increases for section 8(i)(2) penalties. Therefore, for the 
foregoing statutes, as in section 8(i)(2), only the Tier Three penalty 
amounts will increase.
    Paragraph (c)(3)(ii) of Sec. 308.132 reflects the increases in CMP 
amounts that may be assessed pursuant to section 7(c) of the FDIA for 
late filing or the submission of false or misleading certified 
statements. A Tier One CMP pursuant to section 7(c)(4)(A) of the FDIA 
(12 U.S.C. 1817(c)(4)(A)) will increase from an amount not to exceed 
$2,000 per day to an amount not to exceed $2,200 for each day during 
which the failure to file continues or the false or misleading 
information is not corrected. A Tier Three CMP which may be assessed 
pursuant to section 7(c)(4)(C) of the FDIA (12 U.S.C. 1817(c)(4)(B)) 
will increase from an amount not to exceed the lesser of $1,100,000 or 
one percent of the total assets of the institution for each day during 
which the failure to file continues or the false or misleading 
information is not corrected to an amount not to exceed the lesser of 
$1,175,000 or one percent of the total assets of the institution for 
each day during which the failure to file continues or the false or 
misleading information is not corrected. Tier Two penalties remain the 
same.
    Paragraph (c)(3)(ix) of Sec. 308.132 sets forth the increases in 
the CMP amounts that may be assessed pursuant to the Bank Holding 
Company Act of 1970 (12 U.S.C. 1841 et seq.) for prohibited tying 
arrangements. A Tier Three CMP which may be assessed pursuant to 12 
U.S.C. 1972(2)(F)(iii) will increase from an amount not to exceed, in 
the case of any person other than an insured depository institution 
$1,100,000 for each day during which the violation, practice, or breach 
continues to an amount not to exceed $1,175,000 for each day during 
which the violation, practice, or breach continues. In the case of any 
insured depository institution, Tier Three penalties will increase from 
an amount not to exceed the lesser of $1,100,000 or one percent of the 
total assets of such institution for each day during which the 
violation, practice, or breach continues to an amount not to exceed the 
lesser of $1,175,000 or one percent of the total assets of such 
institution for each day during which the violation, practice, or 
breach continues. Tier One and Tier Two penalties remain the same.
    Paragraph (c)(3)(x) of Sec. 308.132 indicates that pursuant to the 
International Banking Act of 1978 (IBA) (12 U.S.C. 3108(b)), a CMP may 
be assessed for failure to comply with the requirements of the IBA 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). Such 
CMP will increase in the amounts set forth in paragraph (c)(3)(i) of 
Sec. 308.132 which contains the increases for section 8(i)(2).
    Paragraph (c)(3)(xi) of Sec. 308.132 sets forth the increase in CMP 
that may be assessed pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 
1818(i)(2)), as made applicable by 12 U.S.C. 3349(b), where a financial 
institution seeks, obtains, or gives any other thing of value in 
exchange for the performance of an appraisal by a person that the 
institution knows is not a state certified or licensed appraiser in 
connection with a federally related transaction. Such CMP amounts will 
increase in the amounts set forth in paragraph (c)(3)(i) of 
Sec. 308.132 which contains the increases for section 8(i)(2).
    Paragraph (c)(3)(xiii) of Sec. 308.132 indicates that pursuant to 
the Community Development Banking and Financial Institution Act 
(Community Development Banking Act) (12 U.S.C. 4717(b)) a CMP may be 
assessed for violations of the Community Development Banking Act 
pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)). Such 
CMP amounts will increase in the amounts set forth in paragraph 
(c)(3)(i) of Sec. 308.132 which contains the increases for section 
8(i)(2).
    Paragraph (c)(3)(xiv) of Sec. 308.132 sets forth that pursuant to 
section 21B of the Securities Exchange Act of 1934 (Exchange Act) (15 
U.S.C. 78u-2), CMPs may be assessed for violations of certain 
provisions of the Exchange Act, where such penalties are in the public 
interest. The Tier One CMP amounts which may be assessed pursuant to 15 
U.S.C. 78u-2(b)(1) will increase from an amount not to exceed $5,500 
for a natural person or $55,000 for any other person for violations set 
forth in 15 U.S.C. 78u-2(a), to $5,500 for a natural person or $60,000 
for any other person. The Tier Two CMP which may be assessed pursuant 
to 15 U.S.C. 78u-2(b)(2) for each violation set forth in 15 U.S.C. 78u-
2(a) will increase from an amount not to exceed $55,000 for a natural 
person to $275,000 for any other person to an amount not to exceed 
$60,000 for a natural person or $300,000 for any other person if the 
act or omission involved fraud, deceit, manipulation, or deliberate or 
reckless disregard of a regulatory requirement. The Tier Three CMP 
which may be assessed pursuant to 15 U.S.C. 78u-2(b)(3) for each 
violation set forth in 15 U.S.C. 78u-2(a), in an amount not to exceed 
$110,000 for a natural person or $550,000 for any other person, if the 
act or omission involved fraud, deceit, manipulation, or deliberate or 
reckless disregard of a regulatory requirement; and such act or 
omission directly or indirectly resulted in substantial losses, or 
created a significant risk of substantial losses to other persons or 
resulted in substantial pecuniary gain to the person who committed the 
act or omission to an amount not to exceed $120,000 for a natural 
person or $575,000 for any other person.
    Paragraph (c)(3)(xvi) of Sec. 308.132 sets forth the CMP that may 
be assessed pursuant to the Flood Disaster Protection Act (FDPA)(42 
U.S.C. 4012a(f)) against any regulated lending institution that engages 
in a pattern or practice of violations of the FDPA. The

[[Page 64887]]

amount of the penalty for each violation will remain at $350; however, 
the annual amount which may be assessed will increase from an amount 
not to exceed a total of $105,000 annually to an amount not to exceed a 
total of $115,000 annually.

III. Exemption From Public Notice and Comment

    Because the law requires the FDIC to amend its rules, provides the 
specific adjustments to be made and leaves the FDIC no discretion in 
calculating the amount of those adjustments, the changes are 
ministerial, technical and noncontroversial, and the law requires that 
the regulation implementing the adjustments be published in the Federal 
Register within 180 days of enactment of the DCIA, the FDIC has 
determined for good cause that public notice and comment is unnecessary 
and impracticable under the APA (5 U.S.C. 553(b)(3)(B)), and that the 
rule should be published in final form.

IV. Effective Date

    For the same reasons that the FDIC for good cause has determined 
that public notice and comment is unnecessary, impractical and contrary 
to the public interest, the FDIC finds that it has good cause to adopt 
an effective date that is less than 30 days after the date of 
publication in the Federal Register pursuant to the APA (5 U.S.C. 
553(d)), and therefore, the regulation is effective upon publication. 
Moreover, section 302 of the Riegle Community Development and 
Regulatory Improvement Act of 1994 \2\ states that a final rule 
imposing new requirements must take effect on the first day of a 
calendar quarter following its publication. That section provides, 
however, that an agency may determine that the rule should take effect 
earlier upon a finding of good cause.
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    \2\ 12 U.S.C. 4802.
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    Under the statute, agencies must make the required CMP inflation 
adjustments: (1) According to the formula in the statute; and (2) 
within four years of the last inflation adjustment, or by October 31, 
2000. Agencies have no discretion as to the amount or timing of the 
adjustment. The regulation is ministerial, technical, and 
noncontroversial. Accordingly, the FDIC believes that notice and 
comment are unnecessary. For these same reasons, the FDIC believes that 
there is good cause to make this rule effective immediately upon 
publication.

V. Regulatory Flexibility Act

    An initial regulatory flexibility analysis under the Regulatory 
Flexibility Act (RFA) is required only when an agency must publish a 
general notice of proposed rulemaking.\3\ As already noted, the FDIC 
has determined that publication of a notice of proposed rulemaking is 
not necessary for this final rule. Accordingly, the RFA does not 
require an initial regulatory flexibility analysis. Nevertheless, the 
FDIC has considered the likely impact of the rule on small entities and 
believes that the rule will not have a significant impact on a 
substantial number of small entities.
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    \3\ 5 U.S.C. 603.
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VI. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) (Public Law 104-121) provides generally for agencies to report 
rules to Congress and for Congress to review such rules. The reporting 
requirement is triggered in instances where the FDIC issues a final 
rule as defined by the Administrative Procedures Act (APA) at 5 U.S.C. 
551. Because the FDIC is issuing a final rule as defined by the APA, 
the FDIC will file the reports required by the SBREFA.
    The Office of Management and Budget has determined that this final 
revision to part 308 does not constitute a ``major'' rule as defined by 
the statute.

VII. The Treasury and General Government Appropriations Act, 1999 
Assessment of Federal Regulations and Policies on Families

    The FDIC has determined that this final rule will not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 
2681 (1998).

VIII. Paperwork Reduction Act

    No collection of information pursuant to section 3504(h) of the 
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) is contained 
in this rule. Consequently, no information has been submitted to the 
Office of Management and Budget for review.

IX. Authority for the Regulation

    This regulation is authorized by the FDIC's general rulemaking 
authority and pursuant to its fundamental responsibilities to ensure 
the safety and soundness of insured depository institutions. 
Specifically, 12 U.S.C. 1819(a) Tenth provides the FDIC with general 
authority to issue such rules and regulations as it deems necessary to 
carry out the statutory mandates of the Federal Deposit Insurance Act 
and other laws that the FDIC is charged with administering or 
enforcing.

List of Subjects in 12 CFR Part 308

    Administrative practice and procedure, Banks, banking, Claims, 
Crime, Equal access to justice, Ex parte communications, Fraud, Hearing 
procedure, Lawyers, Penalties, State nonmember banks.

    For the reasons set out in the preamble, part 308 of chapter III of 
title 12 of the Code of Federal Regulations is amended as set forth 
below.

PART 308--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation continues to read as follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831o, 1831p-1, 
1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 
78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3 and 
78w; 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; sec. 
31001(s), Pub. L. 104-134, 110 Stat. 1321-358.

Sec. 308.116  [Amended]

    2. In Sec. 308.116, amend paragraphs (b)(4)(iii)(A) and 
(b)(4)(iii)(B) by removing $1,100,000 and adding $1,175,000 in its 
place.

Sec. 308.132  [Amended]

    3. In Sec. 308.132, amend:
    a. Paragraphs (c)(2)(i), (c)(2)(iii)(A), and (c)(3)(ii) by removing 
$2,000 and adding $2,200 in its place.
    b. Paragraphs (c)(2)(iii)(C), (c)(3)(i), and (c)(3)(ix) by removing 
$1,100,000 and adding $1,175,000 in its place each time it appears.
    c. Paragraph (c)(3)(xiv) by removing $55,000 and adding in its 
place $60,000 each time it appears; by removing $110,000 and adding in 
its place $120,000; by removing $275,000 and adding in its place 
$300,000; and by removing $550,000 and adding in its place $575,000.
    d. Paragraph (c)(3)(xvi) by removing $105,000 and adding in its 
place $115,000.

    Dated at Washington, D.C., this 17th day of October, 2000.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 00-27864 Filed 10-30-00; 8:45 am]
BILLING CODE 6714-01-P
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