2023-00327. Rules of Practice for Hearings

AGENCY:

Board of Governors of the Federal Reserve System.

ACTION:

Final rule.

SUMMARY:

The Board of Governors of the Federal Reserve System (the “Board”) is issuing a final rule amending its rules of practice and procedure to adjust the amount of each civil money penalty (“CMP”) provided by law within its jurisdiction to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.

DATES:

This final rule is effective on January 11, 2023.

FOR FURTHER INFORMATION CONTACT:

Thomas O. Kelly, Senior Counsel (202/974-7059), Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Ave. NW, Washington, DC 20551. For users of Telecommunication Device for the Deaf (TDD) only, contact 202/263-4869.

SUPPLEMENTARY INFORMATION:

Federal Civil Penalties Inflation Adjustment Act

The Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“FCPIA Act”), requires Federal agencies to adjust, by regulation, the CMPs within their jurisdiction to account for inflation. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “2015 Act”) ^[1] amended the FCPIA Act to require Federal agencies to make annual adjustments not later than January 15 of every year.^[2] The Board is now issuing a new final rule to set the CMP levels pursuant to the required annual adjustment for 2023. The Board will apply these adjusted maximum penalty levels to any penalties assessed on or after January 11, 2023, whose associated violations occurred on or after November 2, 2015. Penalties assessed for violations occurring prior to November 2, 2015, will be subject to the amounts set in the Board's 2012 adjustment pursuant to the FCPIA Act.^[3]

Under the 2015 Act, the annual adjustment to be made for 2023 is the percentage by which the Consumer Price Index for the month of October 2022 exceeds the Consumer Price Index for the month of October 2021. On December 15, 2022, as directed by the 2015 Act, the Office of Management and Budget (OMB) issued guidance to affected agencies on implementing the required annual adjustment which included the relevant inflation multiplier.^[4] Using OMB's multiplier, the Board calculated the adjusted penalties for its CMPs, rounding the penalties to the nearest dollar.^[5]

Administrative Procedure Act

The 2015 Act states that agencies shall make the annual adjustment “notwithstanding section 553 of title 5, United States Code.” Therefore, this rule is not subject to the provisions of the Administrative Procedure Act (the “APA”), 5 U.S.C. 553, requiring notice, public participation, and deferred effective date.

Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires a regulatory flexibility analysis only for rules for which an agency is required to publish a general notice of proposed rulemaking. Because the 2015 Act states that agencies' annual adjustments are to be made notwithstanding section 553 of title 5 of United States Code—the APA section requiring notice of proposed rulemaking—the Board is not publishing a notice of proposed rulemaking. Therefore, the Regulatory Flexibility Act does not apply.

Paperwork Reduction Act

There is no collection of information required by this final rule that would be subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

List of Subjects in 12 CFR Part 263

• Administrative practice and procedure
• Claims
• Crime
• Equal access to justice
• Lawyers
• Penalties

Authority and Issuance

For the reasons set forth in the preamble, the Board amends 12 CFR part 263 to read as follows:

PART 263—RULES OF PRACTICE FOR HEARINGS

1. The authority citation for part 263 continues to read as follows:

Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 334, 347a, 504, 505, 1464, 1467, 1467a, 1817(j), 1818, 1820(k), 1829, 1831o, 1831p-1, 1832(c), 1847(b), 1847(d), 1884, 1972(2)(F), 3105, 3108, 3110, 3349, 3907, 3909(d), 4717; 15 U.S.C. 21, 78l(i), 78o-4, 78o-5, 78u-2; 1639e(k); 28 U.S.C. 2461 note; 31 U.S.C. 5321; and 42 U.S.C. 4012a.

2. Section 263.65 is revised to read as follows:

§ 263.65

Civil money penalty inflation adjustments.

(a) Inflation adjustments. In accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990, the Board has set forth in paragraph (b) of this section the adjusted maximum amounts for each civil money penalty provided by law within the Board's jurisdiction. The authorizing statutes contain the complete provisions under which the Board may seek a civil money penalty. The adjusted civil money penalties apply only to penalties assessed on or after January 11, 2023, whose associated violations occurred on or after November 2, 2015.

(b) Maximum civil money penalties. The maximum (or, in the cases of 12 U.S.C. 334 and 1832(c), fixed) civil money penalties as set forth in the referenced statutory sections are set forth in the table in this paragraph (b).

Table 1 to Paragraph ( b )

Statute		Adjusted civil money penalty
12 U.S.C. 324
	Inadvertently late or misleading reports, inter alia	$4,745
	Other late or misleading reports, inter alia	47,454
	Knowingly or reckless false or misleading reports, inter alia	2,372,677
12 U.S.C. 334		345
12 U.S.C. 374a		345
12 U.S.C. 504
	First Tier	11,864
	Second Tier	59,316
	Third Tier	2,372,677
12 U.S.C. 505
	First Tier	11,864
	Second Tier	59,316
	Third Tier	2,372,677
12 U.S.C. 1464(v)(4)		4,745
12 U.S.C. 1464(v)(5)		47,454
12 U.S.C. 1464(v)(6)		2,372,677
12 U.S.C. 1467a(i)(2)		59,316
12 U.S.C. 1467a(i)(3)		59,316
12 U.S.C. 1467a(r)
	First Tier	4,745
	Second Tier	47,454
	Third Tier	2,372,677
12 U.S.C. 1817(j)(16)
	First Tier	11,864
	Second Tier	59,316
	Third Tier	2,372,677
12 U.S.C. 1818(i)(2)
	First Tier	11,864
	Second Tier	59,316
	Third Tier	2,372,677
12 U.S.C. 1820(k)(6)(A)(ii)		390,271
12 U.S.C. 1832(c)		3,446
12 U.S.C. 1847(b)		59,316
12 U.S.C. 1847(d)
	First Tier	4,745
	Second Tier	47,454
	Third Tier	2,372,677
12 U.S.C. 1884		345
12 U.S.C. 1972(2)(F)
	First Tier	11,864
	Second Tier	59,316
	Third Tier	2,372,677
12 U.S.C. 3110(a)		54,224
12 U.S.C. 3110(c)
	First Tier	4,339
	Second Tier	43,377
	Third Tier	2,168,915
12 U.S.C. 3909(d)		2,951
15 U.S.C. 78u-2(b)(1)
	For a natural person	11,162
	For any other person	111,614
15 U.S.C. 78u-2(b)(2)
	For a natural person	111,614
	For any other person	558,071
15 U.S.C. 78u-2(b)(3)
	For a natural person	223,229
	For any other person	1,116,140
15 U.S.C. 1639e(k)(1)		13,627
15 U.S.C. 1639e(k)(2)		27,252
42 U.S.C. 4012a(f)(5)		2,577

By order of the Board of Governors of the Federal Reserve System, acting through the Secretary of the Board under delegated authority.

Michele Taylor Fennell,

Deputy Associate Secretary of the Board.

Footnotes

1.  Public Law 114-74, 129 Stat. 599 (2015) (codified at 28 U.S.C. 2461 note).

2.  28 U.S.C. 2461 note, sec. 4(b)(1).

3.  77 FR 68680 (Nov. 16, 2012).

4.  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 (Dec. 15, 2022).

5.  Under the 2015 Act and implementing OMB guidance, agencies are not required to make an adjustment to a CMP if, during the 12 months preceding the required adjustment, such penalty increased due to a law other than the 2015 Act by an amount greater than the amount of the required adjustment. No other laws have adjusted the CMPs within the Board's jurisdiction during the preceding 12 months.