2340 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

1See 28 U.S.C. 2461 note. Section 3(2) of the 

amended FCPIA Act defines a CMP as any penalty, 

fine, or other sanction that: (1) Either is for a 

specific monetary amount as provided by Federal 

law or has a maximum amount provided for by 

Federal law; (2) is assessed or enforced by an 

agency pursuant to Federal law; and (3) is assessed 

or enforced pursuant to an administrative 

proceeding or a civil action in the Federal courts. 

2The CPI is published by the Department of 

Labor, Bureau of Statistics, and is available at its 

Web site: ftp://ftp.bls.gov/pub/special.requests/cpi/ 

cpiai.txt. 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, the Department of Justice 

has determined that this rule does not 

have sufficient federalism implications 

to warrant a federalism summary impact 

statement. 

Executive Order 12988 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

List of Subjects in Part 1274a 

Administrative practice and 

procedure, Immigration. 

■ Accordingly, for the foregoing 

reasons, part 1274a of chapter V of title 

8 of the Code of Federal Regulations is 

amended as follows: 

PART 1274a—CONTROL OF 

EMPLOYMENT OF ALIENS 

■ 1. The authority citation for part 

1274a continues to read as follows: 

Authority: 8 U.S.C. 1101, 1103, 1324a. 

■ 2. Revise § 1274a.1 to read as follows: 

§ 1274a.1 Employer requirements. 

(a) Applicable regulations. The 

regulations of the Department of 

Homeland Security (DHS) relating to the 

implementation of the employment 

eligibility and verification provisions of 

section 274A of the Immigration and 

Nationality Act (Act) are contained in 8 

CFR part 274a. 

(b) Adjudication of civil penalty 

proceedings. The procedures for 

hearings before an administrative law 

judge relating to civil penalties sought 

by DHS under section 274A of the Act 

are contained in 28 CFR part 68. The 

regulations governing employment 

eligibility and verification in 8 CFR part 

274a are applicable to hearings before 

an administrative law judge and, to the 

extent relevant, to cases before an 

immigration judge or the Board of 

Immigration Appeals. 

§§ 1274a.2, 1274a.3, 1274a.4, 1274a.5, 

1274a.6, 1274a.7 and 1274a.8 [Removed] 

■ 3. Remove sections 1274a.2 through 

1274a.8. 

■ 4. Section 1274a.9 is amended by: 

■ a. Removing and reserving paragraphs 

(a) through (d); 

■ b. Amending paragraph (e) by 

removing the terms ‘‘the INS’’ and ‘‘the 

Service’’ and adding in their place the 

term ‘‘DHS’’; and by 

■ c. Revising paragraph (f), to read as 

follows: 

§ 1274a.9 Enforcement procedures. 

* * * * * 

(f) Failure to file a request for a 

hearing. If the respondent does not file 

a request for a hearing in writing within 

thirty days of the date of service of a 

Notice of Intent to Fine (thirty-five days 

if served by ordinary mail), the final 

order issued by DHS shall not be subject 

to a hearing before an administrative 

law judge under 28 CFR part 68. 

Subpart B [Removed and reserved] 

■ 5. Remove and reserve subpart B. 

Dated: January 7, 2009. 

Michael B. Mukasey, 

Attorney General. 

[FR Doc. E9–526 Filed 1–14–09; 8:45 am] 

BILLING CODE 4410–30–P 

FARM CREDIT ADMINISTRATION 

12 CFR Part 622 

RIN 3052–AC47 

Rules of Practice and Procedure; 

Adjusting Civil Money Penalties for 

Inflation 

AGENCY: Farm Credit Administration. 

ACTION: Final rule. 

SUMMARY: This regulation implements 

cost-of-living adjustments to civil 

money penalties (CMPs) that the Farm 

Credit Administration (FCA) may 

impose under the Farm Credit Act of 

1971, as amended (Farm Credit Act), 

and under the National Flood Insurance 

Reform Act of 1994 (Reform Act). The 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Debt Collection Improvement Act of 

1996 (FCPIA Act), requires all Federal 

agencies with the authority to impose 

CMPs to evaluate those CMPs 

periodically to ensure that they 

continue to maintain their deterrent 

value. 

DATES: Effective Date: The regulation 

will become effective on January 16, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Michael T. Wilson, Policy Analyst, 

Office of Regulatory Policy, Farm 

Credit Administration, McLean, VA 

22102–5090, (703) 883–4124, TTY 

(703) 883–4434, 

or 

Howard I. Rubin, Senior Counsel, Office 

of General Counsel, Farm Credit 

Administration, McLean, VA 22102– 

5090, (703) 883–4029, TTY (703) 883– 

4020. 

SUPPLEMENTARY INFORMATION: 

I. Objective 

The objective of this regulation is to 

recalculate the CMP inflation 

adjustments consistent with the FCPIA 

Act. 

II. Background 

A. Federal Civil Penalties Inflation 

Adjustment Act of 1990, as Amended 

The FCPIA Act requires every Federal 

agency with authority to issue CMPs to 

enact regulations that adjust its CMPs 

pursuant to the inflation adjustment 

formula in section 5(b) of the FCPIA 

Act.1 Each Federal agency was required 

to issue these regulations by October 23, 

1996, and adjust them when necessary 

at least once every 4 years thereafter. 

Section 6 of the amended FCPIA Act 

specifies that inflation-adjusted CMPs 

will apply only to violations that occur 

after the effective date of the 

adjustment. The inflation adjustment is 

based on the percentage increase in the 

Consumer Price Index (CPI).2

Specifically, section 5(b) of the FCPIA 

Act defines the term ‘‘cost-of-living 

adjustment’’ as ‘‘the percentage (if any) 

for each civil monetary penalty by 

which (1) the Consumer Price Index for 

the month of June of the calendar year 

preceding the adjustment, exceeds (2) 

the Consumer Price Index for the month 

of June of the calendar year in which the 

amount of such civil monetary penalty 

was last set or adjusted pursuant to 

law.’’ Furthermore, the increase for each 

CMP that is adjusted for inflation must 

be rounded using a method prescribed 

by section 5(a) of the FCPIA Act. 

B. CMPs Issued Under the Farm Credit 

Act 

Section 5.32(a) of the Farm Credit Act 

provides that any FCS institution or any 

officer, director, employee, agent, or 

other person participating in the 

conduct of the affairs of an FCS 

institution who violates the terms of a 

final order issued under section 5.25 or 

5.26 of the Farm Credit Act must pay up 

to $1,000 per day for each day during 

which such violation continues. Orders 

issued by FCA under section 5.25 or 

5.26 of the Farm Credit Act include 

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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2341 

3See 70 FR 12583 (March 15, 2005). 

4As a result of the mathematical calculation for 

the year 2005 and the required rounding 

application, the penalty amount remained the same 

and did not reset. Therefore, in accordance with the 

FCPIA Act, the calculation for the 2009 adjustment 

was determined by using the June 1996 CPI of 156.7 

and the June 2008 CPI of 218.815 resulting in a 

percentage change of 39.64 percent. 

5See 42 U.S.C. 4012a. 

6 42 U.S.C. 4012a(f). 

temporary and permanent cease-anddesist orders. In addition, section 

5.32(h) provides that any directive 

issued under sections 4.3(b)(2), 4.3A(e), 

or 4.14A(i) of the Farm Credit Act ‘‘shall 

be treated’’ as a final order issued under 

section 5.25 for purposes of assessing a 

CMP. Section 5.32(a) also states that 

‘‘[a]ny such institution or person who 

violates any provision of the [Farm 

Credit] Act or any regulation issued 

under this Act shall forfeit and pay a 

civil penalty of not more that $500 per 

day for each day during which such 

violation continues.’’ 

1. Mathematical Calculation 

In general, the adjustment calculation 

is based on the percentage by which the 

CPI for June 2008 exceeds the CPI for 

June of the calendar year the CMP was 

last adjusted. The CMP for violation of 

the terms of a final order issued under 

section 5.25 or 5.26 of the Farm Credit 

Act was last adjusted in 1996. The CMP 

for a violation of the Farm Credit Act, 

or a regulation issued under the Farm 

Credit Act, was last adjusted in 2005. 

According to the Bureau of Labor 

Statistics, the CPI for June 1996 and 

June 2005 was 156.7 and 194.5, 

respectively. The CPI for June 2008 was 

218.815, resulting in a percentage 

change of 39.64 percent from June 1996 

and 12.50 percent from June 2005. 

2. Penalty Amount Remains the Same in 

§ 622.61(a)(1) 

The maximum CMP in § 622.61(a) for 

a violation of a final order issued under 

section 5.25 or 5.26 of the Farm Credit 

Act is currently $1,100.3

Multiplying $1,100 by 39.64 4 percent 

results in an increase of $436.04. When 

that number is rounded as required by 

section 5(a) of the FCPIA Act, the 

inflation-adjusted maximum remains 

$1,100. 

3. New Penalty Amount in § 622.61(a)(2) 

The maximum CMP in existing 

§ 622.61(a)(2) for a violation of the Farm 

Credit Act or regulations issued under 

the Farm Credit Act is $650. When 

multiplying the existing CMP amount 

by 12.50 percent, this results in an 

increase of $81.25. This increase is 

rounded to $100 as required by section 

5(a) of the FCPIA Act, and the inflationadjusted maximum increases to $750. 

C. CMPs Issued Under the Reform Act 

The Flood Disaster Protection Act of 

1973, as amended by the Reform Act, 

requires that FCA assess a CMP for a 

pattern or practice of committing certain 

specific actions in violation of the 

National Flood Insurance Program.5

Under the Reform Act, which became 

law in 1994, these CMPs were not to 

exceed $350 for each violation, and the 

total amount of penalties assessed for 

certain violations of the program against 

any single regulated entity during any 

calendar year was not to exceed 

$100,000.6

1. Mathematical Calculation 

The adjustment calculation for these 

CMPs is based on the percentage by 

which the CPI for June 2008 exceeds the 

CPI for June 2005, the calendar the 

CMPs were last adjusted. As stated 

above, the CPI for June 2005 was 194.5, 

and the CPI for June 2008 was 218.815, 

resulting in a percentage change of 

12.50. 

2. New Penalty Amounts in § 622.61(b) 

Multiplying $385 by 12.50 percent 

yields a $48.13 increase. This amount is 

rounded downward to $0.00 under the 

FCPIA rounding formula. Accordingly, 

the CMP maximum for each violation 

will remain $385. Similarly, multiplying 

the $110,000 total cap by 12.50 percent 

yields a $13,750 increase. This increase 

is rounded to $10,000 under the FCPIA 

rounding formula, bringing the new cap 

to $120,000 in total penalties that may 

be assessed under the Reform Act 

against any single regulated entity 

during any calendar year. 

III. Notice and Comment Not Required 

by Administrative Procedure Act 

The FCPIA Act gives Federal agencies 

no discretion in the adjustment of CMPs 

for the rate of inflation. Further, these 

revisions are ministerial, technical, and 

noncontroversial. For these reasons, the 

FCA finds good cause to determine that 

public notice and an opportunity to 

comment are impracticable, 

unnecessary, and contrary to the public 

interest pursuant to the Administrative 

Procedure Act, 5 U.S.C. 553(b)(B), and 

adopts this rule in final form. For all of 

the foregoing reasons, the FCA also 

finds good cause to determine that this 

regulation should become effective 

immediately, pursuant to the 

Administrative Procedure Act, 5 U.S.C. 

553(d). 

IV. Regulatory Flexibility Act 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.), the FCA hereby certifies that the 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. Each of the 

banks in the System, considered 

together with its affiliated associations, 

has assets and annual income in excess 

of the amounts that would qualify them 

as small entities. Therefore, System 

institutions are not ‘‘small entities’’ as 

defined in the Regulatory Flexibility 

Act. 

List of Subjects 12 CFR Part 622 

Administrative practice and 

procedure, Crime, Investigations, 

Penalties. 

■ For the reasons stated in the preamble, 

part 622 of chapter VI, title 12 of the 

Code of Federal Regulations is amended 

to read as follows: 

PART 622—RULES OF PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 622 

continues to read as follows: 

Authority: Secs. 5.9, 5.10, 5.17, 5.25–5.37 

of the Farm Credit Act (12 U.S.C. 2243, 2244, 

2252, 2261–2273); 28 U.S.C. 2461 note; and 

42 U.S.C. 4012a(f). 

Subpart B—Rules and Procedures for 

Assessment and Collection of Civil 

Money Penalties 

■ 2. Revise § 622.61 to read as follows: 

§ 622.61 Adjustment of civil money 

penalties by the rate of inflation under the 

Federal Civil Penalties Inflation Adjustment 

Act of 1990, as amended. 

(a) The maximum amount of each 

civil money penalty within FCA’s 

jurisdiction is adjusted in accordance 

with the Federal Civil Penalties 

Inflation Adjustment Act of 1990, as 

amended (28 U.S.C. 2461 note), as 

follows: 

(1) Amount of civil money penalty 

imposed under section 5.32 of the Act 

for violation of a final order issued 

under section 5.25 or 5.26 of the Act: 

The maximum daily amount is $1,100. 

(2) Amount of civil money penalty for 

violation of the Act or regulations: The 

maximum daily amount is $550 for each 

violation that occurs before March 16, 

2005, $650 for each violation that occurs 

on or after March 16, 2005, but before 

January 16, 2009, and $750 for each 

violation that occurs on or after January 

16, 2009. 

(b) The maximum civil money penalty 

amount assessed under 42 U.S.C. 

4012a(f) is $350 for each violation that 

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2342 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

occurs before March 16, 2005, with total 

penalties under such statute not to 

exceed $110,000 for any single 

institution during any calendar year. For 

violations that occur on or after March 

16, 2005, but before January 16, 2009, 

the maximum civil money penalty is 

$385 for each violation, with total 

penalties under such statute not to 

exceed $110,000 for any single 

institution during any calendar year. For 

violations that occur on or after January 

16, 2009, the maximum civil money 

penalty is $385 for each violation, with 

total penalties under such statute not to 

exceed $120,000 for any single 

institution during any calendar year. 

Date: January 9, 2009. 

Roland E. Smith, 

Secretary, Farm Credit Administration Board. 

[FR Doc. E9–656 Filed 1–14–09; 8:45 am] 

BILLING CODE 6705–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1202 

RIN 2590–AA05 

Freedom of Information Act 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Final rule. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) issues this regulation 

hereby implementing the Freedom of 

Information Act (FOIA) (U.S.C. 552), 

establishing procedures for public 

disclosure of information required to be 

disclosed under the FOIA and 

procedures to protect from disclosure 

business confidential and trade secret 

information, as appropriate. 

DATES: This final regulation is effective 

January 15, 2009. For additional 

information, see SUPPLEMENTARY

INFORMATION. 

ADDRESSES: The complete file for this 

rule is available for public inspection, 

by appointment, during normal business 

hours at the Federal Housing Finance 

Agency, 1700 G Street, NW., 

Washington, DC 20552. 

FOR FURTHER INFORMATION CONTACT: 

Mark D. Laponsky, Deputy General 

Counsel, telephone (202) 414–3832, (not 

a toll free number), Federal Housing 

Finance Agency, Fourth Floor, 1700 G 

Street, NW., Washington, DC 20552. The 

telephone number for the 

Telecommunications Device for the Deaf 

is (800) 877–8339. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Housing Finance 

Regulatory Reform Act of 2008 (Act) 

(Pub. L. 110–289), established FHFA as 

an independent agency of the Federal 

Government to ensure that the Federal 

National Mortgage Association (Fannie 

Mae), the Federal Home Loan Mortgage 

Corporation (Freddie Mac) and the 

Federal Home Loan Banks (collectively, 

the Regulated Entities) are capitalized 

adequately and operate safely and 

soundly and in compliance with 

applicable laws, rules and regulations. 

On October 10, 2008, the Federal 

Housing Finance Agency (FHFA) 

published a proposed rule 

implementing the Freedom of 

Information Act (FOIA) (U.S.C. 552) in 

the Federal Register, establishing 

procedures for public disclosure of 

information required to be disclosed 

under the FOIA and procedures to 

protect from disclosure business 

confidential and trade secret 

information, as appropriate. See 73 FR 

60192, October 10, 2008. Interested 

persons were afforded an opportunity to 

participate in the rulemaking through 

submission of written comments on the 

proposed rule. The comment period 

closed on November 10, 2008. Though 

the FHFA received one comment during 

the 30-day comment period, a 

modification to the proposed regulation 

is not necessary. The FHFA’s final 

regulations in this part are identical to 

those in the proposed rule. This final 

rule addresses electronically available 

documents, procedures for making 

requests, agency handling of requests, 

records not disclosed, fees, and public 

reading rooms as well as other related 

provisions. 

II. Analysis of Comment Received and 

Final Rule 

In response to the proposed rule, the 

FHFA received one comment from a 

Bank. The Bank suggested modifying 

section 1202.7 to shorten FHFA’s 

response time from 20 working days for 

standard track requests to 10 working 

days, further stating, 10 days will best 

satisfy the twin objectives of providing 

needed information within a reasonable 

timeframe while allowing ample time to 

the FHFA to respond to routine 

requests. 

Due consideration has been given to 

the comment received. The 20 working 

days period is a statutory maximum 

limit in 5 U.S.C. 552. The FHFA 

anticipates that many standard track 

requests will be processed within 10 

working days. The full statutory period 

accounts for unforeseen complications 

that can arise during request review and 

analysis. Therefore, to provide for the 

efficient operation of the rule, the FHFA 

is not adopting the modification 

suggested by the commenter. 

Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires that a 

regulation that has a significant 

economic impact on a substantial 

number of small entities, small 

businesses, or small organizations must 

include an initial regulatory flexibility 

analysis describing the regulation’s 

impact on small entities. Such an 

analysis need not be undertaken if the 

agency has certified that the regulation 

does not have a significant economic 

impact on a substantial number of small 

entities 5 U.S.C. 605(b). The FHFA has 

considered the impact of the final 

regulations of this part under the 

Regulatory Flexibility Act and certifies 

they are not likely to have a significant 

economic impact on a substantial 

number of small business entities 

because the regulation is applicable 

only to the internal operations and legal 

obligations of the FHFA. 

Paperwork Reduction Act 

The final regulations in this part do 

not contain any information collection 

requirement that requires the approval 

of OMB under the Paperwork Reduction 

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

List of Subjects in 12 CFR Part 1202 

Appeals, Confidential commercial 

information, Disclosure, Exemptions, 

Fees, Final action, Freedom of 

Information Act, Judicial review, 

Records, Requests. 

■ For the reasons stated in the preamble, 

the FHFA amends 12 CFR chapter XII 

by adding part 1202 to subchapter A. 

PART 1202—FREEDOM OF 

INFORMATION ACT 

Sec. 

1202.1 Why did FHFA issue this part? 

1202.2 What do the terms in this part 

mean? 

1202.3 What information can I obtain 

through FOIA? 

1202.4 What information is exempt from 

disclosure? 

1202.5 How do I request information from 

FHFA under FOIA? 

1202.6 What if my request does not have all 

the information FHFA requires? 

1202.7 How will FHFA respond to my 

FOIA request? 

1202.8 If the records I request contain 

confidential commercial information, 

what procedures will FHFA follow? 

1202.9 How do I appeal a response denying 

my FOIA request? 

1202.10 Will FHFA expedite my request or 

appeal? 

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