Rule2023-00212
Civil Monetary Penalty Inflation Adjustment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
January 10, 2023
Effective
January 10, 2023
Issuing agencies
National Credit Union Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 6 (Tuesday, January 10, 2023)</title>
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[Federal Register Volume 88, Number 6 (Tuesday, January 10, 2023)]
[Rules and Regulations]
[Pages 1323-1326]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-00212]
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Rules and Regulations
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 88 , No. 6 / Tuesday, January 10, 2023 /
Rules and Regulations
[[Page 1323]]
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 747
RIN 3133-AF54
Civil Monetary Penalty Inflation Adjustment
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
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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 10, 2023.
FOR FURTHER INFORMATION CONTACT: Gira Bose, Senior Staff Attorney, at
1775 Duke Street, Alexandria, VA 22314, or telephone: (703) 518-6562.
SUPPLEMENTARY INFORMATION:
I. Legal Background
II. 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\
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\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.
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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\
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\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).
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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 each of the
years 2018 through 2022, the NCUA issued a final rule to satisfy the
agency's annual requirements.\10\ This final rule satisfies the
agency's requirement for the 2023 annual adjustment.
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\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 2052 (Feb. 6, 2019); 85
FR 2009 (Jan. 14, 2020); 86 FR 933 (Jan. 7, 2021), 87 FR 377 (Jan.
5, 2022).
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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 2023, an agency must compare the
October 2021 and October 2022 CPI-U figures.
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\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: <a href="https://www.bls.gov/cpi/">https://www.bls.gov/cpi/</a>.
\13\ Public Law 114-74, Sec. 701(b)(2)(B), 129 Stat. 584, 600
(Nov. 2, 2015).
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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 all of the NCUA's CMPs pursuant to
the 2015 amendments.
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\14\ Public Law 114-74, Sec. 701(b)(1), 129 Stat. 584, 600 (Nov.
2, 2015).
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B. Application to the 2023 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 2023 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 2023 annual
adjustment, did so on December 15, 2022.\16\ For 2023, Federal agencies
must adjust the maximum amounts of their CMPs by the percentage by
which the October 2022
[[Page 1324]]
CPI-U (298.012) exceeds the October 2021 CPI-U (276.589). The resulting
increase can be expressed as an inflation multiplier (1.07745) 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\
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\15\ Public Law 114-74, Sec. 701(b)(4), 129 Stat. 584, 601 (Nov.
2, 2015).
\16\ See OMB Memorandum M-23-05, Implementation of Penalty
Inflation Adjustments for 2023, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015
(December 15, 2022).
\17\ Id.
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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 December 2021. 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\
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\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.
Table-Calculation of Maximum CMP Adjustments
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Adjusted maximum
($) (current
Description and tier Current maximum maximum x
Citation \19\ ($) Multiplier multiplier,
rounded to nearest
dollar)
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12 U.S.C. 1782(a)(3)........... Inadvertent failure to 4,404............. 1.07745 4,745.
submit a report or the
inadvertent submission
of a false or
misleading report.
12 U.S.C. 1782(a)(3)........... Non-inadvertent failure 44,043............ 1.07745 47,454.
to submit a report or
the non-inadvertent
submission of a false
or misleading report.
12 U.S.C. 1782(a)(3)........... Failure to submit a Lesser of 1.07745 Lesser of
report or the 2,202,123 or 1% 2,372,677 or 1%
submission of a false of total credit of total CU
or misleading report union (CU) assets. assets.
done knowingly or with
reckless disregard.
12 U.S.C. 1782(d)(2)(A)........ Tier 1 CMP for 4,027............. 1.07745 4,339.
inadvertent failure to
submit certified
statement of insured
shares and charges due
to the National Credit
Union Share Insurance
Fund (NCUSIF), or
inadvertent submission
of false or misleading
statement.
12 U.S.C. 1782(d)(2)(B)........ Tier 2 CMP for non- 40,259............ 1.07745 43,377.
inadvertent failure to
submit certified
statement or
submission of false or
misleading statement.
12 U.S.C. 1782(d)(2)(C)........ Tier 3 CMP for failure Lesser of 1.07745 Lesser of
to submit a certified 2,013,008 or 1% 2,168,915 or 1%
statement or the of total CU of total CU
submission of a false assets. assets.
or misleading
statement done
knowingly or with
reckless disregard.
12 U.S.C. 1785(a)(3)........... Non-compliance with 137............... 1.07745 148.
insurance logo
requirements.
12 U.S.C. 1785(e)(3)........... Non-compliance with 320............... 1.07745 345.
NCUA security
requirements.
12 U.S.C. 1786(k)(2)(A)........ Tier 1 CMP for 11,011............ 1.07745 11,864.
violations of law,
regulation, and other
orders or agreements.
12 U.S.C. 1786(k)(2)(B)........ Tier 2 CMP for 55,052............ 1.07745 59,316.
violations of law,
regulation, and other
orders or agreements
and for recklessly
engaging in unsafe or
unsound practices or
breaches of fiduciary
duty.
12 U.S.C. 1786(k)(2)(C)........ Tier 3 CMP for 2,202,123......... 1.07745 2,372,677.
knowingly committing
the violations under
Tier 1 or 2 (natural
person).
12 U.S.C. 1786(k)(2)(C)........ Tier 3 (same) (CU)..... Lesser of 1.07745 Lesser of
2,202,123 or 1% 2,372,677 or 1%
of total CU of total CU
assets. assets.
12 U.S.C. 1786(w)(5)(A)(ii).... Non-compliance with 362,217........... 1.07745 390,271.
senior examiner post-
employment
restrictions.
15 U.S.C. 1639e(k)............. Non-compliance with 12,647............ 1.07745 13,627.
appraisal independence
standards (first
violation).
15 U.S.C. 1639e(k)............. Subsequent violations 25,293............ 1.07745 27,252.
of the same.
42 U.S.C. 4012a(f)(5).......... Non-compliance with 2,392............. 1.07745 2,577.
flood insurance
requirements.
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II. 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
[[Page 1325]]
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 final 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.
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\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).
\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). For
the same reasons, this final rule does not include the usual 60-day
comment period under NCUA Interpretive Ruling and Policy Statement
(IRPS) 87-2, as amended by IRPS 03-2 and 15-1 (Sept. 24, 2015).
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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 federally insured credit unions (FICUs) with
assets less than $100 million to be small entities.\25\
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\23\ 5 U.S.C. 553(b).
\24\ 5 U.S.C. 603, 604.
\25\ NCUA IRPS 15-1.
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As discussed previously, consistent with the APA, 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.\26\ 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.
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\26\ 5 U.S.C. 553(b)(3)(B).
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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.
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\27\ 12 U.S.C. 1786(k)(2)(G)(i).
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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.
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\28\ 44 U.S.C. 3507(d); 5 CFR part 1320.
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C. 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.
D. 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\
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\29\ Public Law 105-277, 112 Stat. 2681 (Oct. 21, 1998).
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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 the 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. As required by the
Congressional Review Act, the Board submitted the final rule and other
appropriate reports to the OMB which determined that this rule is not a
``major rule.'' The Board will also be submitting this rule to Congress
and the Government Accountability Office for review.
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\30\ 5 U.S.C. 801-808.
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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\
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\31\ 5 U.S.C. 804(2).
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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 procedures thereon are impracticable, unnecessary, or contrary
to the public interest.\32\
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\32\ 5 U.S.C. 808.
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[[Page 1326]]
List of Subjects in 12 CFR Part 747
Civil monetary penalties, Credit unions.
By the National Credit Union Administration Board on January 4,
2023.
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
0
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.
0
2. Revise Sec. 747.1001 to read as follows:
Sec. 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 (Public Law 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:
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New maximum
U.S. Code citation CMP description amount
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(1) 12 U.S.C. 1782(a)(3)...... Inadvertent failure to $4,745.
submit a report or
the inadvertent
submission of a false
or misleading report.
(2) 12 U.S.C. 1782(a)(3)...... Non-inadvertent $47,454.
failure to submit a
report or the non-
inadvertent
submission of a false
or misleading report.
(3) 12 U.S.C. 1782(a)(3)...... Failure to submit a $2,372,677 or 1
report or the percent of the
submission of a false total assets of
or misleading report the credit
done knowingly or union,
with reckless whichever is
disregard. less.
(4) 12 U.S.C. 1782(d)(2)(A)... Tier 1 CMP for $4,339.
inadvertent failure
to submit certified
statement of insured
shares and charges
due to the National
Credit Union Share
Insurance Fund
(NCUSIF), or
inadvertent
submission of false
or misleading
statement.
(5) 12 U.S.C. 1782(d)(2)(B)... Tier 2 CMP for non- $43,377.
inadvertent failure
to submit certified
statement or
submission of false
or misleading
statement.
(6) 12 U.S.C. 1782(d)(2)(C)... Tier 3 CMP for failure $2,168,915 or 1
to submit a certified percent of the
statement or the total assets of
submission of a false the credit
or misleading union,
statement done whichever is
knowingly or with less.
reckless disregard.
(7) 12 U.S.C. 1785(a)(3)...... Non-compliance with $148.
insurance logo
requirements.
(8) 12 U.S.C. 1785(e)(3)...... Non-compliance with $345.
NCUA security
requirements.
(9) 12 U.S.C. 1786(k)(2)(A)... Tier 1 CMP for $11,864.
violations of law,
regulation, and other
orders or agreements.
(10) 12 U.S.C. 1786(k)(2)(B).. Tier 2 CMP for $59,316.
violations of law,
regulation, and other
orders or agreements
and for recklessly
engaging in unsafe or
unsound practices or
breaches of fiduciary
duty.
(11) 12 U.S.C. 1786(k)(2)(C).. Tier 3 CMP for $2,372,677.
knowingly committing
the violations under
Tier 1 or 2 (natural
person).
(12) 12 U.S.C. 1786(k)(2)(C).. Tier 3 CMP for $2,372,677 or 1
knowingly committing percent of the
the violations under total assets of
Tier 1 or 2 (insured the credit
credit union). union,
whichever is
less.
(13) 12 U.S.C. Non-compliance with $390,271.
1786(w)(5)(A)(ii). senior examiner post-
employment
restrictions.
(14) 15 U.S.C. 1639e(k)....... Non-compliance with First violation:
appraisal $13,627;
independence Subsequent
requirements. violations:
$27,252.
(15) 42 U.S.C. 4012a(f)(5).... Non-compliance with $2,577.
flood insurance
requirements.
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(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. 2023-00212 Filed 1-9-23; 8:45 am]
BILLING CODE 7535-01-P
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</html>Indexed from Federal Register on January 10, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.