Civil Monetary Penalty Inflation Adjustment

Published date07 January 2021
Citation86 FR 933
Record Number2020-29181
SectionRules and Regulations
CourtNational Credit Union Administration
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
933
Vol. 86, No. 4
Thursday, January 7, 2021
1
Public Law 104–134, Sec. 31001(s), 110 Stat.
1321–373 (Apr. 26, 1996). The law is codified at 28
U.S.C. 2461 note.
2
Public Law 101–410, 104 Stat. 890 (Oct. 5,
1990), codified at 28 U.S.C. 2461 note.
3
Public Law 114–74, 129 Stat. 584 (Nov. 2, 2015).
4
129 Stat. 599.
5
Public Law 114–74, Sec. 701(b)(1), 129 Stat. 584,
599 (Nov. 2, 2015).
6
81 FR 40152 (June 21, 2016); 81 FR 78028 (Nov.
7, 2016).
7
Public Law 114–74, Sec. 701(b)(1), 129 Stat. 584,
599 (Nov. 2, 2015).
8
82 FR 7640 (Jan. 23, 2017).
9
82 FR 29710 (June 30, 2017).
10
83 FR 2029 (Jan. 16, 2018); 84 FR 2055 (Feb.
6, 2019); 85 FR 2009 (Jan. 14, 2020).
11
Public Law 114–74, Sec. 701(b)(1), 129 Stat.
584, 599 (Nov. 2, 2015).
12
This index is published by the Department of
Labor, Bureau of Labor Statistics, and is available
at its website: http://www.bls.gov/cpi/.
13
Public Law 114–74, Sec. 701(b)(2)(B), 129 Stat.
584, 600 (Nov. 2, 2015).
14
Public Law 114–74, Sec. 701(b)(1), 129 Stat.
584, 600 (Nov. 2, 2015).
15
Public Law 114–74, Sec. 701(b)(4), 129 Stat.
584, 601 (Nov. 2, 2015).
16
See OMB Memorandum M–21–10,
Implementation of Penalty Inflation Adjustments
for 2021, pursuant to the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015
(December 23, 2020).
NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Part 747
RIN 3133–AF34
Civil Monetary Penalty Inflation
Adjustment
AGENCY
: National Credit Union
Administration (NCUA).
ACTION
: Final rule.
SUMMARY
: The NCUA Board (Board) is
amending its regulations to adjust the
maximum amount of each civil
monetary penalty (CMP) within its
jurisdiction to account for inflation.
This action, including the amount of the
adjustments, is required under the
Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by
the Debt Collection Improvement Act of
1996 and the Federal Civil Penalties
Inflation Adjustment Act Improvements
Act of 2015.
DATES
: This final rule is effective
January 7, 2021.
FOR FURTHER INFORMATION CONTACT
: Gira
Bose, Staff Attorney, at 1775 Duke
Street, Alexandria, VA 22314, or
telephone: (703) 518–6562.
SUPPLEMENTARY INFORMATION
:
I. Legal Background
II. Calculation of Adjustments
III. Regulatory Procedures
I. Legal Background
A. Statutory Requirements
Every Federal agency, including the
NCUA, is required by law to adjust its
maximum CMP amounts each year to
account for inflation. Prior to this being
an annual requirement, agencies were
required to adjust their CMPs at least
once every four years. The previous
four-year requirement stemmed from the
Debt Collection Improvement Act of
1996,
1
which amended the Federal Civil
Penalties Inflation Adjustment Act of
1990.
2
The current annual requirement stems
from the Bipartisan Budget Act of 2015,
3
which contains the Federal Civil
Penalties Inflation Adjustment Act
Improvements Act of 2015 (the 2015
amendments).
4
This legislation
provided for an initial ‘‘catch-up’’
adjustment of CMPs in 2016, followed
by annual adjustments. The catch-up
adjustment reset CMP maximum
amounts by setting aside the inflation
adjustments that agencies made in prior
years and instead calculated inflation
with reference to the year when each
CMP was enacted or last modified by
Congress. Agencies were required to
publish their catch-up adjustments in an
interim final rule by July 1, 2016 and
make them effective by August 1, 2016.
5
The NCUA complied with these
requirements in a June 2016 interim
final rule, followed by a November 2016
final rule to confirm the adjustments as
final.
6
The 2015 amendments also specified
how agencies must conduct annual
inflation adjustments after the 2016
catch-up adjustment. Following the
catch-up adjustment, agencies must
make the required adjustments and
publish them in the Federal Register by
January 15 each year.
7
For 2017, the
NCUA issued an interim final rule on
January 6, 2017,
8
followed by a final
rule issued on June 23, 2017.
9
For 2018,
2019, and 2020, the NCUA issued a final
rule in each year to satisfy the agency’s
annual requirements.
10
This final rule
satisfies the agency’s requirement for
the 2021 annual adjustment.
The law provides that the adjustments
shall be made notwithstanding the
section of the Administrative Procedure
Act (APA) that requires prior notice and
public comment for agency
rulemaking.
11
The 2015 amendments
also specify that each CMP maximum
must be increased by the percentage by
which the consumer price index for
urban consumers (CPI–U)
12
for October
of the year immediately preceding the
year the adjustment is made exceeds the
CPI–U for October of the prior year.
13
Thus, for the adjustment to be made in
2021, an agency must compare the
October 2019 and October 2020 CPI–U
figures.
An annual adjustment under the 2015
amendments is not required if a CMP
has been amended in the preceding 12
months pursuant to other authority.
Specifically, the statute provides that an
agency is not required to make an
annual adjustment to a CMP if in the
preceding 12 months it has been
increased by an amount greater than the
annual adjustment required by the 2015
amendments.
14
The NCUA did not
make any adjustments in the preceding
12 months pursuant to other authority.
Therefore, this rulemaking adjusts the
NCUA’s CMPs pursuant to the 2015
amendments.
B. Application to the 2021 Adjustments
and Office of Management and Budget
Guidance
This section applies the statutory
requirements and the Office of
Management and Budget’s (OMB)
guidance to the NCUA’s CMPs and sets
forth the Board’s calculation of the 2021
adjustments.
The 2015 amendments directed OMB
to issue guidance to agencies on
implementing the inflation
adjustments.
15
OMB is required to issue
its guidance each December and, with
respect to the 2021 annual adjustment,
did so on December 23, 2020.
16
For
2021, Federal agencies must adjust the
maximum amounts of their CMPs by the
percentage by which the October 2020
CPI–U (260.388) exceeds the October
2019 CPI–U (257.346). The resulting
increase can be expressed as an inflation
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17
Id.
18
Public Law 114–74, 129 Stat. 600 (Nov. 2,
2015).
19
The table uses condensed descriptions of CMP
tiers. Refer to the U.S. Code citations for complete
descriptions.
20
Public Law 114–74, Sec. 701(b)(1), 129 Stat.
584, 599 (Nov. 2, 2015).
21
See 5 U.S.C. 559; Asiana Airlines v. Fed.
Aviation Admin., 134 F.3d 393, 396–99 (D.C. Cir.
1998).
multiplier (1.01182) to apply to each
current CMP maximum amount to
determine the adjusted maximum. The
OMB guidance also addresses
rulemaking procedures and agency
reporting and oversight requirements for
CMPs.
17
The table below presents the
adjustment calculations. The current
maximums are found at 12 CFR
747.1001, as adjusted by the final rule
that the Board approved in January
2020. This amount is multiplied by the
inflation multiplier to calculate the new
maximum in the far-right column. Only
these adjusted maximum amounts, and
not the calculations, will be codified at
12 CFR 747.1001 under this final rule.
The adjusted amounts will be effective
upon publication in the Federal
Register and can be applied to
violations that occurred on or after
November 2, 2015, the date the 2015
amendments were enacted.
18
T
ABLE
—C
ALCULATION OF
M
AXIMUM
CMP A
DJUSTMENTS
Citation Description and tier
19
Current maximum ($) Multiplier
Adjusted maximum ($)
(current maximum ×
Multiplier, rounded to
nearest dollar)
12 U.S.C. 1782(a)(3) .......... Inadvertent failure to submit a report or the in-
advertent submission of a false or mis-
leading report.
4,098 ........................... 1.01182 4,146.
12 U.S.C. 1782(a)(3) .......... Non-inadvertent failure to submit a report or
the non-inadvertent submission of a false or
misleading report.
40,979 ......................... 1.01182 41,463.
12 U.S.C. 1782(a)(3) .......... Failure to submit a report or the submission of
a false or misleading report done knowingly
or with reckless disregard.
Lesser of 2,048,915 or
1% of total CU as-
sets.
1.01182 Lesser of 2,073,133 or
1% of total CU as-
sets.
12 U.S.C. 1782(d)(2)(A) ..... Tier 1 CMP for inadvertent failure to submit
certified statement of insured shares and
charges due to the National Credit Union
Share Insurance Fund (NCUSIF), or inad-
vertent submission of false or misleading
statement.
3,747 ........................... 1.01182 3,791.
12 U.S.C. 1782(d)(2)(B) ..... Tier 2 CMP for non-inadvertent failure to sub-
mit certified statement or submission of
false or misleading statement.
37,458 ......................... 1.01182 37,901.
12 U.S.C. 1782(d)(2)(C) ..... Tier 3 CMP for failure to submit a certified
statement or the submission of a false or
misleading statement done knowingly or
with reckless disregard.
Lesser of 1,872,957 or
1% of total CU as-
sets.
1.01182 Lesser of 1,895,095 or
1% of total CU as-
sets.
12 U.S.C. 1785(a)(3) .......... Non-compliance with insurance logo require-
ments. 127 .............................. 1.01182 129.
12 U.S.C. 1785(e)(3) .......... Non-compliance with NCUA security require-
ments. 297 .............................. 1.01182 301.
12 U.S.C. 1786(k)(2)(A) ..... Tier 1 CMP for violations of law, regulation,
and other orders or agreements. 10,245 ......................... 1.01182 10,366.
12 U.S.C. 1786(k)(2)(B) ..... Tier 2 CMP for violations of law, regulation,
and other orders or agreements and for
recklessly engaging in unsafe or unsound
practices or breaches of fiduciary duty.
51,222 ......................... 1.01182 51,827.
12 U.S.C. 1786(k)(2)(C) ..... Tier 3 CMP for knowingly committing the vio-
lations under Tier 1 or 2 (natural person). 2,048,915 .................... 1.01182 2,073,133.
12 U.S.C. 1786(k)(2)(C) ..... Tier 3 (same) (CU) ........................................... Lesser of 2,048,915 or
1% of total CU as-
sets.
1.01182 Lesser of 2,073,133 or
1% of total CU as-
sets.
12 U.S.C. 1786(w)(5)(A)(ii) Non-compliance with senior examiner post-
employment restrictions. 337,016 ....................... 1.01182 341,000.
15 U.S.C. 1639e(k) ............. Non-compliance with appraisal independence
standards (first violation). 11,767 ......................... 1.01182 11,906.
15 U.S.C. 1639e(k) ............. Subsequent violations of the same ................. 23,533 ......................... 1.01182 23,811.
42 U.S.C. 4012a(f)(5) ......... Non-compliance with flood insurance require-
ments. 2,226 ........................... 1.01182 2,252.
III. Regulatory Procedures
A. Final Rule Under the APA
In the 2015 amendments, Congress
provided that agencies shall make the
required inflation adjustments in 2017
and subsequent years notwithstanding 5
U.S.C. 553,
20
which generally requires
agencies to follow notice-and-comment
procedures in rulemaking and to make
rules effective no sooner than 30 days
after publication in the Federal
Register. The 2015 amendments provide
a clear exception to these
requirements.
21
In addition, as an
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22
5 U.S.C. 553(b)(3)(B); see Mid-Tex Elec. Co-op.,
Inc. v. Fed. Energy Regulatory Comm’n, 822 F.2d
1123 (D.C. Cir. 1987).
23
5 U.S.C. 553(b).
24
5 U.S.C. 603, 604.
25
NCUA Interpretive Ruling and Policy
Statement 15–1. 80 FR 57512 (Sept. 24, 2015).
26
5 U.S.C. 553(b)(3)(B).
27
12 U.S.C. 1786(k)(2)(G)(i).
28
44 U.S.C. 3507(d); 5 CFR part 1320.
29
Public Law 105–277, 112 Stat. 2681 (Oct. 21,
1998).
30
5 U.S.C. 801–808.
31
5 U.S.C. 804(2).
32
5 U.S.C. 808.
independent basis, the Board finds that
notice-and-comment procedures would
be impracticable and unnecessary under
the APA because of the largely
ministerial and technical nature of the
rule, which affords agencies limited
discretion in promulgating the rule, and
the statutory deadline for making the
adjustments.
22
In these circumstances,
the Board finds good cause to issue a
final rule without issuing a notice of
proposed rulemaking or soliciting
public comments. The Board also finds
good cause to make the final rule
effective upon publication because of
the statutory deadline. Accordingly, this
final rule is issued without prior notice
and comment and will become effective
immediately upon publication.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires that when an agency
issues a proposed rule or a final rule
pursuant to the APA
23
or another law,
the agency must prepare a regulatory
flexibility analysis that meets the
requirements of the RFA and publish
such analysis in the Federal Register.
24
Specifically, the RFA normally requires
agencies to describe the impact of a
rulemaking on small entities by
providing a regulatory impact analysis.
For purposes of the RFA, the Board
considers FICUs with assets less than
$100 million to be small entities.
25
As discussed previously, consistent
with the APA,
26
the Board has
determined for good cause that general
notice and opportunity for public
comment is unnecessary, and therefore
the Board is not issuing a notice of
proposed rulemaking. Rules that are
exempt from notice and comment
procedures are also exempt from the
RFA requirements, including
conducting a regulatory flexibility
analysis, when among other things the
agency for good cause finds that notice
and public procedure are impracticable,
unnecessary, or contrary to the public
interest. Accordingly, the Board has
concluded that the RFA’s requirements
relating to initial and final regulatory
flexibility analysis do not apply.
Nevertheless, the Board notes that this
final rule will not have a significant
economic impact on a substantial
number of small credit unions because
it affects only the maximum amounts of
CMPs that may be assessed in
individual cases, which are not
numerous and generally do not involve
assessments at the maximum level. In
addition, several of the CMPs are
limited to a percentage of a credit
union’s assets. Finally, in assessing
CMPs, the Board generally must
consider a party’s financial resources.
27
Because this final rule will affect few, if
any, small credit unions, the Board
certifies that the final rule will not have
a significant economic impact on a
substantial number of small entities.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) applies to rulemakings in which
an agency creates a new paperwork
burden on regulated entities or modifies
an existing burden.
28
For purposes of
the PRA, a paperwork burden may take
the form of either a reporting or a
recordkeeping requirement, both
referred to as information collections.
This final rule adjusts the maximum
amounts of certain CMPs that the Board
may assess against individuals, entities,
or credit unions but does not require
any reporting or recordkeeping.
Therefore, this final rule will not create
new paperwork burdens or modify any
existing paperwork burdens.
D. Executive Order 13132
Executive Order 13132 encourages
independent regulatory agencies to
consider the impact of their actions on
state and local interests. In adherence to
fundamental federalism principles, the
NCUA, an independent regulatory
agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the Executive
order. This final rule adjusts the
maximum amounts of certain CMPs that
the Board may assess against
individuals, entities, and federally
insured credit unions, including state-
chartered credit unions. However, the
final rule does not create any new
authority or alter the underlying
statutory authorities that enable the
Board to assess CMPs. Accordingly, this
final rule will not have a substantial
direct effect on the States, on the
connection between the National
Government and the States, or on the
distribution of power and
responsibilities among the various
levels of government. The Board has
determined that this final rule does not
constitute a policy that has federalism
implications for purposes of the
Executive order.
E. Assessment of Federal Regulations
and Policies on Families
The Board 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.
29
F. Congressional Review Act
For purposes of the Congressional
Review Act,
30
the OMB makes a
determination as to whether a final rule
constitutes a ‘‘major’’ rule. If OMB
deems a rule to be a ‘‘major rule,’’ the
Congressional Review Act generally
provides that the rule may not take
effect until at least 60 days following its
publication.
The Congressional Review Act defines
a ‘‘major rule’’ as any rule that the
Administrator of the Office of
Information and Regulatory Affairs of
the OMB finds has resulted in or is
likely to result in (A) an annual effect
on the economy of $100,000,000 or
more; (B) a major increase in costs or
prices for consumers, individual
industries, Federal, State, or local
government agencies or geographic
regions, or (C) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreign-
based enterprises in domestic and
export markets.
31
For the same reasons set forth above,
the Board is adopting the final rule
without the delayed effective date
generally prescribed under the
Congressional Review Act. The delayed
effective date required by the
Congressional Review Act does not
apply to any rule for which an agency
for good cause finds (and incorporates
the finding and a brief statement of
reasons therefor in the rule issued) that
notice and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.
32
The Board believes this final rule is
not a major rule. As required by the
Congressional Review Act, the Board
will submit the final rule and other
appropriate reports to OMB, Congress,
and the Government Accountability
Office for review.
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List of Subjects in 12 CFR Part 747
Civil monetary penalties, Credit
unions.
Melane Conyers-Ausbrooks,
Secretary of the Board.
For the reasons stated in the
preamble, the Board amends 12 CFR
part 747 as follows:
PART 747—ADMINISTRATIVE
ACTIONS, ADJUDICATIVE HEARINGS,
RULES OF PRACTICE AND
PROCEDURE, AND INVESTIGATIONS
1. The authority for part 747
continues to read as follows:
Authority: 12 U.S.C. 1766, 1782, 1784,
1785, 1786, 1787, 1790a, 1790d; 15 U.S.C.
1639e; 42 U.S.C. 4012a; Pub. L. 101–410;
Pub. L. 104–134; Pub. L. 109–351; Pub. L.
114–74.
2. Revise § 747.1001 to read as
follows:
§ 747.1001 Adjustment of civil monetary
penalties by the rate of inflation.
(a) The NCUA is required by the
Federal Civil Penalties Inflation
Adjustment Act of 1990 (Pub. L. 101–
410, 104 Stat. 890, as amended (28
U.S.C. 2461 note)), to adjust the
maximum amount of each civil
monetary penalty (CMP) within its
jurisdiction by the rate of inflation. The
following chart displays those adjusted
amounts, as calculated pursuant to the
statute:
U.S. Code citation CMP description New maximum amount
(1) 12 U.S.C. 1782(a)(3) ................. Inadvertent failure to submit a report or the inadvertent submission of
a false or misleading report. $4,146.
(2) 12 U.S.C. 1782(a)(3) ................. Non-inadvertent failure to submit a report or the non-inadvertent sub-
mission of a false or misleading report. $41,463.
(3) 12 U.S.C. 1782(a)(3) ................. Failure to submit a report or the submission of a false or misleading
report done knowingly or with reckless disregard. $2,073,133 or 1 percent of the
total assets of the credit union,
whichever is less.
(4) 12 U.S.C. 1782(d)(2)(A) ............ Tier 1 CMP for inadvertent failure to submit certified statement of in-
sured shares and charges due to the National Credit Union Share
Insurance Fund (NCUSIF), or inadvertent submission of false or
misleading statement.
$3,791.
(5) 12 U.S.C. 1782(d)(2)(B) ............ Tier 2 CMP for non-inadvertent failure to submit certified statement or
submission of false or misleading statement. $37,901.
(6) 12 U.S.C. 1782(d)(2)(C) ............ Tier 3 CMP for failure to submit a certified statement or the submis-
sion of a false or misleading statement done knowingly or with
reckless disregard.
$1,895,095 or 1 percent of the
total assets of the credit union,
whichever is less.
(7) 12 U.S.C. 1785(a)(3) ................. Non-compliance with insurance logo requirements .............................. $129.
(8) 12 U.S.C. 1785(e)(3) ................. Non-compliance with NCUA security requirements .............................. $301.
(9) 12 U.S.C. 1786(k)(2)(A) ............ Tier 1 CMP for violations of law, regulation, and other orders or
agreements. $10,366.
(10) 12 U.S.C. 1786(k)(2)(B) .......... Tier 2 CMP for violations of law, regulation, and other orders or
agreements and for recklessly engaging in unsafe or unsound
practices or breaches of fiduciary duty.
$51,827.
(11) 12 U.S.C. 1786(k)(2)(C) .......... Tier 3 CMP for knowingly committing the violations under Tier 1 or 2
(natural person). $2,073,133.
(12) 12 U.S.C. 1786(k)(2)(C) .......... Tier 3 CMP for knowingly committing the violations under Tier 1 or 2
(insured credit union). $2,073,133 or 1 percent of the
total assets of the credit union,
whichever is less.
(13) 12 U.S.C. 1786(w)(5)(A)(ii) ...... Non-compliance with senior examiner post-employment restrictions ... $341,000.
(14) 15 U.S.C. 1639e(k) .................. Non-compliance with appraisal independence requirements ................ First violation: $11,906. Subse-
quent violations: $23,811.
(15) 42 U.S.C. 4012a(f)(5) .............. Non-compliance with flood insurance requirements ............................. $2,252.
(b) The adjusted amounts displayed in
paragraph (a) of this section apply to
civil monetary penalties that are
assessed after the date the increase takes
effect, including those whose associated
violation or violations pre-dated the
increase and occurred on or after
November 2, 2015.
[FR Doc. 2020–29181 Filed 1–6–21; 8:45 am]
BILLING CODE 7535–01–P
DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Parts 710, 712, and 745
[Docket No. 201211–0336]
RIN 0694–AH94
Chemical Weapons Convention
Regulations and the Export
Administration Regulations: Additions
to Schedule 1(A) of the Annex on
Chemicals to the Chemical Weapons
Convention
AGENCY
: Bureau of Industry and
Security, Commerce.
ACTION
: Final rule.
SUMMARY
: The Bureau of Industry and
Security (BIS) is publishing this final
rule to amend the Chemical Weapons
Convention Regulations (CWCR) and the
Export Administration Regulations
(EAR) to reflect recent additions to
Schedule 1(A) of the Annex on
Chemicals to the Convention on the
Prohibition of the Development,
Production, Stockpiling and Use of
Chemical Weapons and on Their
Destruction, also known as the
Chemical Weapons Convention (CWC).
This final rule also amends the
definition of ‘‘production’’ in the CWCR
to clarify the scope of this term as it
applies to declarations regarding the
production of ‘‘Schedule 1,’’ ‘‘Schedule
2,’’ or ‘‘Schedule 3’’ chemicals.
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