Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations 1517 

1Public Law 101–410, Oct. 5, 1990, 104 Stat. 890, 

codified at 28 U.S.C. 2461 note. 

2Public Law 114–74, Title VII, section 701(b), 

Nov. 2, 2015, 129 Stat. 599, codified at 28 U.S.C. 

2461 note. 

3The 2015 Adjustment Act defined a ‘‘civil 

monetary penalty’’ to mean ‘‘any penalty, fine, or 

other sanction that is for a specific monetary 

amount as provided by Federal law; or has a 

maximum amount provided for by Federal law; and 

is assessed or enforced by an agency pursuant to 

Federal law; and is assessed or enforced pursuant 

to an administrative proceeding or a civil action in 

the Federal courts.’’ 28 U.S.C. 2461 note, section 

3(2). Thus, a penalty based on another measure, 

such as a percentage of total assets, need not be 

adjusted. 

4 82 FR 8584 (January 27, 2017). 

5See OMB Memorandum M–18–03, 

‘‘Implementation of the 2018 annual adjustment 

pursuant to the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 2015,’’ at 4, 

which permits agencies that have codified the 

formula to adjust CMPs for inflation to update the 

penalties through a notice rather than a regulation. 

6To the extent an agency has codified a CMP 

amount in its regulations, the agency would need 

to update that amount by regulation. However, if an 

agency has codified the formula for making the 

CMP adjustments, then subsequent adjustments can 

be made solely by notice. See OMB Memorandum 

M–18–03, ‘‘Implementation of the 2018 annual 

adjustment pursuant to the Federal Civil Penalties 

Inflation Adjustment Act Improvements Act of 

2015,’’ at 4. 

U.S.C. 552 and 553, the NRC is adopting 

the following amendments to 10 CFR 

parts 2 and 13: 

PART 2—AGENCY RULES OF 

PRACTICE AND PROCEDURE 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: Atomic Energy Act of 1954, 

secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 

161, 181, 182, 183, 184, 186, 189, 191, 234 

(42 U.S.C. 2039, 2073, 2092, 2093, 2111, 

2132, 2133, 2134, 2135, 2201, 2231, 2232, 

2233, 2234, 2236, 2239, 2241, 2282); Energy 

Reorganization Act of 1974, secs. 201, 206 

(42 U.S.C. 5841, 5846); Nuclear Waste Policy 

Act of 1982, secs. 114(f), 134, 135, 141 (42 

U.S.C. 10134(f), 10154, 10155, 10161); 

Administrative Procedure Act (5 U.S.C. 552, 

553, 554, 557, 558); National Environmental 

Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 

3504 note. 

Section 2.205(j) also issued under 28 

U.S.C. 2461 note. 

■ 2. In § 2.205, revise paragraph (j) to 

read as follows: 

§ 2.205 Civil penalties. 

* * * * * 

(j) Amount. A civil monetary penalty 

imposed under Section 234 of the 

Atomic Energy Act of 1954, as amended, 

or any other statute within the 

jurisdiction of the Commission that 

provides for the imposition of a civil 

penalty in an amount equal to the 

amount set forth in Section 234, may 

not exceed $290,875 for each violation. 

If any violation is a continuing one, 

each day of such violation shall 

constitute a separate violation for the 

purposes of computing the applicable 

civil penalty. 

PART 13—PROGRAM FRAUD CIVIL 

REMEDIES 

■ 3. The authority citation for part 13 

continues to read as follows: 

Authority: 31 U.S.C. 3801 through 3812; 

44 U.S.C. 3504 note. 

Section 13.3 also issued under 28 U.S.C. 

2461 note. Section 13.13 also issued under 31 

U.S.C. 3730. 

■ 4. In § 13.3, revise paragraphs 

(a)(1)(iv) and (b)(1)(ii) to read as follows: 

§ 13.3 Basis for civil penalties and 

assessments. 

(a) * * * 

(1) * * * 

(iv) Is for payment for the provision 

of property or services which the person 

has not provided as claimed, shall be 

subject, in addition to any other remedy 

that may be prescribed by law, to a civil 

penalty of not more than $11,181 for 

each such claim. 

* * * * * 

(b) * * * 

(1) * * * 

(ii) Contains or is accompanied by an 

express certification or affirmation of 

the truthfulness and accuracy of the 

contents of the statement, shall be 

subject, in addition to any other remedy 

that may be prescribed by law, to a civil 

penalty of not more than $11,181 for 

each such statement. 

* * * * * 

Dated in Rockville, Maryland, this 28th 

day of December, 2017. 

For the Nuclear Regulatory Commission. 

Frederick D. Brown, 

Acting Executive Director for Operations. 

[FR Doc. 2018–00368 Filed 1–11–18; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Parts 19 and 109 

[Docket ID OCC–2018–0001] 

RIN 1557–AE14 

Rules of Practice and Procedure; 

Rules of Practice and Procedure in 

Adjudicatory Proceedings; Civil Money 

Penalty Inflation Adjustments 

AGENCY: Office of the Comptroller of the 

Currency, Treasury. 

ACTION: Final rule. 

SUMMARY: The Office of the Comptroller 

of the Currency (OCC) is amending its 

rules of practice and procedure for 

national banks and its rules of practice 

and procedure in adjudicatory 

proceedings for Federal savings 

associations to remove the chart listing 

the maximum dollar amount of civil 

money penalties the OCC has authority 

to assess. 

DATES: This rule is effective on January 

12, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Kevin Korzeniewski, Counsel, 

Legislative and Regulatory Activities 

Division, (202) 649–5490, or, for persons 

who are deaf or hearing impaired, TTY, 

(202) 649–5597. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990 (the 1990 

Adjustment Act),1 as amended by the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (the 2015 Adjustment Act),2

requires Federal agencies to adjust the 

amount of their civil money penalties 

(CMPs) 3 for inflation by January 15 of 

each year, and requires the Office of 

Management and Budget (OMB) to issue 

guidance to Federal agencies not later 

than December 15 of each year, on 

implementing the required inflation 

adjustments. 

On January 27, 2017, the OCC 

published a final rule amending its rules 

of practice and procedure for national 

banks and its rules of practice and 

procedure in adjudicatory proceedings 

for Federal savings associations to 

adjust the maximum amount of each 

CMP within its jurisdiction to 

administer for inflation.4 The final rule 

also changed the method for making 

subsequent inflation adjustments, 

consistent with the 2015 Adjustment 

Act and OMB guidance.5 Specifically, 

sections 19.240(a) and 109.103(c)(1) of 

the rule codified the formula for making 

inflation adjustments for national banks 

and Federal savings associations, 

respectively. Sections 19.240(b) and 

109.103(c)(2) of the rule provided a 

chart of penalties applicable during 

2017. Sections 19.240(c) and 

109.103(c)(3) also provided that notice 

of the maximum penalties which may 

be assessed for calendar years after 2017 

will be published as a notice in the 

Federal Register on an annual basis on 

or before January 15 of each calendar 

year.6


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1518 Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations 

7Penalties assessed for violations occurring prior 

to November 2, 2015, will be subject to the 

maximum amounts set forth in the OCC’s 

regulations in effect prior to the enactment of the 

2015 Adjustment Act. 

8 12 U.S.C. 4802. 

9 5 U.S.C. 601(2). 

10 28 U.S.C. 2461 note, section 4(b)(2) (‘‘the head 

of an agency shall adjust civil money penalties and 

shall make the adjustment notwithstanding section 

553 of title 5, United States Code’’). 

11 2 U.S.C. 1532. 

12 44 U.S.C. 3501 et seq. 

II. Description of the Final Rule 

Because the OCC will annually 

publish the maximum amount of CMPs 

the agency has authority to assess 

through a notice in the Federal Register, 

the CMP amounts listed in the charts at 

12 CFR 19.240(b) and 109.103(c)(2) are 

out of date. Therefore, in order to avoid 

any confusion, the OCC is deleting the 

charts in sections 19.240(b) and 

109.103(c)(2). The OCC is also making 

technical and conforming amendments 

in sections 19.240 and 109.103(c) to 

delete references to those charts, while 

retaining a description of the formula 

used to make the inflation adjustments 

and information on how the OCC will 

publish notice of the adjustments going 

forward. A complete list of the 

maximum amount of CMPs that can be 

assessed by the OCC during the current 

calendar year for violations that 

occurred on or after November 2, 2015, 

is also being published today in the 

Federal Register.7

III. Regulatory Analysis 

A. Administrative Procedure Act 

The Administrative Procedure Act 

(APA) generally requires that an agency 

publish a general notice of proposed 

rulemaking in the Federal Register, 

unless an exception applies. In this 

case, the OCC finds an exception for 

good cause that a general notice of 

proposed rulemaking would be 

unnecessary, as the only changes in this 

final rule are technical amendments to 

remove outdated information regarding 

the OCC’s maximum CMP amounts and 

update related cross-references. 

B. Delayed Effective Date 

Section 302 of the Riegle Community 

Development and Regulatory 

Improvement Act of 1994 8 (RCDRIA) 

requires that the effective date of new 

regulations and amendments to 

regulations that impose additional 

reporting, disclosures, or other new 

requirements on insured depository 

institutions shall be the first day of a 

calendar quarter that begins on or after 

the date the regulations are published in 

final form. 12 U.S.C. 4802(b)(1). The 

RCDRIA does not apply to this final rule 

because the rule does not impose any 

additional reporting, disclosures, or 

other new requirements. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

requires that the agency determine the 

rule’s impact on small entities and 

consider options to reduce any 

significant economic impact on a 

substantial number of small entities. 

The RFA applies only to rules for which 

an agency publishes a general notice of 

proposed rulemaking pursuant to 5 

U.S.C. 553(b).9 Because the 2015 

Adjustment Act specifically exempted 

agencies’ annual adjustments from the 

requirements of the APA,10 the OCC is 

not issuing a general notice of proposed 

rulemaking. Therefore, the RFA does 

not apply to this final rule. 

D. Unfunded Mandates Reform Act of 

1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that an agency prepare a budgetary 

impact statement before promulgating 

any rule likely to result in a Federal 

mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector of $100 million or more, 

as adjusted for inflation, in any one 

year.11 The Unfunded Mandates Reform 

Act only applies when an agency issues 

a general notice of proposed 

rulemaking. Because the OCC is not 

issuing a general notice of proposed 

rulemaking, this final rule is not subject 

to section 202 of the Unfunded 

Mandates Reform Act. 

E. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995 (PRA),12 the OCC may not 

conduct or sponsor, and 

notwithstanding any other provision of 

law, a person is not required to respond 

to, an information collection unless the 

information collection displays a valid 

OMB control number. The final rule 

contains no information collection 

requirements under the PRA. 

List of Subjects 

12 CFR Part 19 

Administrative practice and 

procedure, Crime, Equal access to 

justice, Investigations, National banks, 

Penalties, Securities. 

12 CFR Part 109 

Administrative practice and 

procedure, Federal savings associations, 

Penalties. 

Authority and Issuance 

For the reasons set out in the 

preamble, parts 19 and 109 of chapter I 

of title 12 of the Code of Federal 

Regulations are amended as follows: 

PART 19—RULES OF PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 19 is 

revised to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93(b), 93a, 164, 481, 504, 1817, 1818, 

1820, 1831m, 1831o, 1832, 1884, 1972, 3102, 

3108(a), 3110, 3909, and 4717; 15 U.S.C. 

78(h) and (i), 78o–4(c), 78o–5, 78q–1, 78s, 

78u, 78u–2, 78u–3, 78w, and 1639e; 28 

U.S.C. 2461 note; 31 U.S.C. 330 and 5321; 

and 42 U.S.C. 4012a. 

■ 2. Section 19.240 is revised to read as 

follows: 

§ 19.240 Inflation adjustments. 

(a) Statutory formula to calculate 

inflation adjustments. The OCC 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. 

(b) Notice of inflation adjustments. 

The OCC will publish notice in the 

Federal Register of the maximum 

penalties which may be assessed on an 

annual basis on or before January 15 of 

each calendar year based on the formula 

in paragraph (a) of this section, for 

penalties assessed on, or after, the date 

of publication of the most recent notice 

related to conduct occurring on, or after, 

November 2, 2015. 

PART 109—RULES OF PRACTICE AND 

PROCEDURE IN ADJUDICATORY 

PROCEEDINGS 

■ 3. The authority citation for part 109 

is revised to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 1464, 1467, 1467a, 1468, 1817, 1818, 

1820(k), 1829(e), 1832, 1884, 1972, 3349, 

4717, 5412(b)(2)(B); 15 U.S.C. 78(l), 78o–5, 

78u–2, 1639e; 28 U.S.C. 2461 note; 31 U.S.C. 

5321; and 42 U.S.C. 4012a. 

■ 4. Section 109.103 is amended by 

revising paragraph (c) to read as follows: 


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Federal Register / Vol. 83, No. 9 / Friday, January 12, 2018 / Rules and Regulations 1519 

1Public Law 114–74, sec. 701, 129 Stat. 584. 

2See, 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). 

3For example, Section 8(i)(2) of the FDIA, 12 

U.S.C. 1818(i)(2), provides for three tiers of CMPs, 

with the size of such CMPs increasing with the 

gravity of the misconduct. 

4Section 2 of the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (1990 Adjustment Act). 

Public Law 101–410, 104 Stat. 890 (amended 2015) 

(codified as amended at 28 U.S.C. 2461 note). 

5 Id. 

6See, e.g., 77 FR 74573 (Dec. 17, 2012). 

7See Public Law 114–74, sec. 701, 129 Stat. 584. 

8See id. at sec. 701(b). 

9See Public Law 101–410, sec. 3(2), 104 Stat. 890 

(amended 2015) (codified as amended at 28 U.S.C. 

2461 note). 

10Public Law 114–74, sec. 701(b), 129 Stat. 584. 

11 63 FR 30227 (June 3, 1998). 

12Public Law 114–74, sec. 701(b), 129 Stat. 584 

(emphasis added). 

13See OMB, Implementation of Penalty Inflation 

Adjustments for 2018, Pursuant to the Federal Civil 

Penalties Inflation Adjustment Act Improvements 

Act of 2015, M–18–03 (Dec. 15, 2017), available at 

https://www.whitehouse.gov/wp-content/uploads/ 

2017/11/M-18-03.pdf (noting that the applicable 

2018 CMP-adjustment multiplier is 1.02041). 

14The CPI–U is compiled by the Bureau of Labor 

Statistics of the Department of Labor. 

§ 109.103 Civil money penalties. 

* * * * * 

(c) Maximum amount of civil money 

penalties—(1) Statutory formula. The 

OCC 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 costof-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. 

The OCC will publish notice in the 

Federal Register of the maximum 

penalties which may be assessed on an 

annual basis on, or before, January 15 of 

each calendar year based on the formula 

in paragraph (a) of this section, for 

penalties assessed on, or after, the date 

of publication of the most recent notice 

related to conduct occurring on or after 

November 2, 2015. 

Dated: January 9, 2018. 

Karen Solomon, 

Acting Senior Deputy Comptroller and Chief 

Counsel, Office of the Comptroller of the 

Currency. 

[FR Doc. 2018–00536 Filed 1–11–18; 8:45 am] 

BILLING CODE 4810–33–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 308 

RIN 3064–AE71 

Rules of Practice and Procedure 

AGENCY: Federal Deposit Insurance 

Corporation (FDIC). 

ACTION: Final rule. 

SUMMARY: The FDIC is adjusting the 

maximum amount of each civil money 

penalty (CMP) within its jurisdiction to 

account for inflation. This action is 

required by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015 (2015 Adjustment Act). 

DATES: This rule is effective January 15, 

2018. 

FOR FURTHER INFORMATION CONTACT: Seth 

P. Rosebrock, Supervisory Counsel, 

Legal Division (202) 898–6609, or 

Graham N. Rehrig, Senior Attorney, 

Legal Division (202) 898–3829. 

SUPPLEMENTARY INFORMATION: 

I. Policy Objectives 

The Final Rule changes the maximum 

limit for CMPs according to inflation as 

mandated by Congress in the 2015 

Adjustment Act.1 The intended effect of 

annually adjusting maximum civil 

money penalties in accordance with 

changes in the Consumer Price Index is 

to minimize any distortion in the real 

value of those maximums due to 

inflation, thereby promoting a more 

consistent deterrent effect in the 

structure of CMPs. 

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 

established maximum penalties that 

could be assessed under these statutes. 

In many cases, these statutes contain 

multiple penalty tiers, permitting the 

assessment of penalties at various levels 

depending upon the severity of the 

misconduct at issue.3

In 1990, Congress determined that the 

assessment of CMPs plays ‘‘an 

important role in deterring violations 

and furthering the policy goals 

embodied in such laws and regulations’’ 

and concluded that ‘‘the impact of many 

civil monetary penalties has been and is 

diminished due to the effect of 

inflation.’’ 4 Consequently, Congress 

required federal agencies with authority 

to impose CMPs to periodically adjust 

by rulemaking the maximum CMPs 

which these agencies were authorized to 

impose in order to ‘‘maintain the 

deterrent effect of civil monetary 

penalties and promote compliance with 

the law.’’ 5 Under the 1990 Adjustment 

Act, the FDIC adjusted its CMP amounts 

every four years.6

In 2015, Congress revised the process 

by which federal agencies adjust 

applicable CMPs for inflation.7 Under 

the 2015 Adjustment Act, the FDIC is 

required to make annual adjustments for 

inflation.8 These adjustments apply to 

all CMPs covered by the 2015 

Adjustment Act.9 The 2015 Adjustment 

Act requires annual adjustments to be 

made by January 15 of each year.10

Although the 2015 Adjustment Act 

increases the maximum penalty that 

may be assessed under each applicable 

statute, the FDIC possesses discretion to 

impose CMP amounts below the 

maximum level in accordance with the 

severity of the misconduct at issue. For 

example, when making a determination 

as to the appropriate level of a penalty 

assessed under section 8(i)(2) of the 

FDIA, 12 U.S.C. 1818(i)(2), the FDIC is 

guided by statutory factors set forth in 

section 8(i)(2)(G) of the FDIA, 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.11 Such 

factors include, but are not limited to, 

the gravity and duration of the 

misconduct, and the intent related to 

the misconduct. 

The 2015 Adjustment Act notes that 

the FDIC ‘‘shall adjust [CMPs] and shall 

make the adjustment notwithstanding 

section 553 of title 5, United States 

Code’’ (the Administrative Procedure 

Act).12 The FDIC, therefore, is not 

obligated to publish the adjustments 

through notice-and-comment 

rulemaking, and the FDIC is publishing 

the adjustments through a final rule. 

III. Description and Expected Effects of 

the Final Rule 

The Final Rule modifies the 

maximum limit for CMPs according to 

inflation as mandated by Congress in 

the 2015 Adjustment Act. The 2015 

Adjustment Act directs federal agencies 

to follow guidance issued by the Office 

of Management and Budget (OMB) on 

December 15, 2017 (OMB Guidance), 

when calculating new maximum 

penalty levels.13 The adjustments are to 

be based on the percent change between 

the Consumer Price Index for all Urban 

Consumers (CPI–U)14 for October 2016 

and the October 2017 CPI–U. 


sradovich on DSK3GMQ082PROD with RULES