Unknown. Final rule

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--- schema: federal-register doc_type: fedreg source_file: FR-2004-10-07.xml --- 69 194 Thursday, October 7, 2004 Contents Agency Agency for Healthcare Research and Quality NOTICES Meetings: Nursing Home Care Planning Technical Expert Panel, 60153-60154 04-22729 Agriculture Agriculture Department See Forest Service See Natural Resources Conservation Service Alcohol Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency information collection activities; proposals, submissions, and approvals, 60190 04-22548 Army Army Department NOTICES Senior Executive Service:

Performance Review Board; membership, 60146-60149 04-22572 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 60154-60157 04-22549 04-22550 04-22551 04-22552 Meetings: HIV and STD Prevention and Treatment Advisory Committee, 60157 04-22553 Centers Centers for Medicare & Medicaid Services RULES Medicare: Hospital inpatient prospective payment systems and 2005 FY rates Correction, 60241-60272 04-22389 NOTICES Medicare:

Inpatient rehabilitation facility prospective payment system (2005 FY); update; correction, 60157-60158 04-22400 Skilled nursing facilities prospective payment system and consolidated billing; update; correction, 60158-60159 04-22399 Citizenship Citizenship and Immigration Services Bureau NOTICES Temporary protected status program designations; terminations, extensions, etc.: Burundi, 60165-60168 04-22706 Sudan, 60168-60172 04-22707 Civil Civil Rights Commission NOTICES Meetings;

State advisory committees: New Jersey, 60141 04-22573 Commerce Commerce Department See Economics and Statistics Administration See International Trade Administration See National Oceanic and Atmospheric Administration Corporation Corporation for National and Community Service RULES Foster Grandparent, Retired and Senior Volunteer, and Senior Companion Programs; amendments Correction, 60094-60096 04-22534 NOTICES Agency information collection activities; proposals, submissions, and approvals, 60146 04-22535 Customs Customs and Border Protection Bureau RULES Drawback:

Merchandise processing fees; claim eligibility based on substitution of finished petroleum derivatives, 60082-60083 04-22599 Defense Defense Department See Army Department Economics Economics and Statistics Administration NOTICES Meetings: Economic Analysis Bureau Advisory Committee, 60142 04-22538 Energy Energy Department See Federal Energy Regulatory Commission EPA Environmental Protection Agency RULES Hazardous waste program authorizations: Delaware, 60091-60094 04-22592 PROPOSED RULES Hazardous waste program authorizations:

Delaware, 60110 04-22593 NOTICES Air pollution control: State operating permits programs— Tennessee, 60150 04-22589 Water pollution control: National Pollutant Discharge Elimination System— Gulf of Mexico OCS operations; western portion; oil and gas extraction category; general permit reissuance, 60150-60151 04-22594 Executive Executive Office of the President See Presidential Documents See Trade Representative, Office of United States FAA Federal Aviation Administration RULES Airworthiness directives:

Boeing; correction, 60081-60082 04-21815 Cessna; correction, 60081 04-21814 PROPOSED RULES Airworthiness directives: Airbus, 60098-60100 04-22565 GARMIN International Inc., 60100-60104 04-22586 LET a.s., 60106-60108 04-22581 Raytheon Aircraft Co., 60104-60106 04-22585 FCC Federal Communications Commission NOTICES Agency information collection activities; proposals, submissions, and approvals, 60151 04-22595 Federal Energy Federal Energy Regulatory Commission NOTICES Meetings;

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Hand-carried returns and other documents; place for filing; section 6091 update Correction, 60222 C4-19478 International International Trade Administration NOTICES Antidumping: Hot-rolled carbon steel flat products from— Brazil, 60142 E4-2532 Petroleum wax candles from— China, 60142-60143 E4-2531 Cheese quota; foreign government subsidies: Quarterly update, 60143-60144 04-22596 Meetings: Office of Manufacturing; 3Rs Initiative (reduce waste, reuse, and recycle), 60144 04-22702 International International Trade Commission NOTICES Import investigations:

Automotive measuring devices, products containing same, and bezels for such devices, 60185-60186 04-22602 Republication, 60186 R4-22033 Zero-mercury-added alkaline batteries, parts thereof, and products containing same, 60186-60187 04-22601 Justice Justice Department See Alcohol, Tobacco, Firearms, and Explosives Bureau See Justice Programs Office NOTICES Pollution control; consent judgments: Farmland Industries, Inc., et al., 60187 04-22525 Mirant Mid-Atlantic, LLC, et al., 60187-60188 04-22524 New York City et al., 60188-60189 04-22526 Upjohn Co. et al., 60189-60190 04-22527 Justice Justice Programs Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 60190-60191 04-22547 Labor Labor Department See Occupational Safety and Health Administration Land Land Management Bureau NOTICES Meetings:

California Desert District Advisory Council, 60179-60180 04-22536 Resource Advisory Councils— New Mexico, 60180 04-22555 Realty actions; sales, leases, etc.: Oregon, 60180-60181 04-22557 Survey plat filings: Idaho, 60181 04-22558 National Credit National Credit Union Administration RULES Civil monetary penalties; inflation adjustment, 60077-60081 04-22537 NOAA National Oceanic and Atmospheric Administration NOTICES Meetings: Gulf of Mexico Fishery Management Council, 60145 04-22597 Gulf of Mexico Fishery Management Council; correction, 60145-60146 E4-2526 National Park National Park Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 60181-60182 04-22570 Insignia:

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Indiana, 60141 04-22587 Nuclear Nuclear Regulatory Commission NOTICES Regulatory guides; issuance, availability, and withdrawal, 60192-60193 04-22545 Reports and guidance documents; availability, etc.: Generic letters— Steam generator tube integrity and associated technical specifications, 60193-60196 04-22546 Occupational Occupational Safety and Health Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 60191-60192 04-22600 Office of U.S.

Trade Office of United States Trade Representative See Trade Representative, Office of United States Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 60196-60197 04-22648 Personnel Personnel Management Office PROPOSED RULES Pay administration: Biweekly pay periods; pay computation, 60097-60098 04-22530 Postal Postal Service RULES Postage meters: Manufacture and distribution; authorization, 60090-60091 04-22234 Presidential Presidential Documents PROCLAMATIONS Israel; implementing the U.S.-Israel agreement on trade in agricultural products (Proc. 7826), 60279-60282 04-22759 *Special observances:* Child Health Day (Proc. 7825), 60277-60278 04-22758 Fire Prevention Week (Proc. 7824), 60273-60275 04-22757 Presidio Presidio Trust NOTICES Environmental statements; availability, etc.:

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Federal old age, survivors, and disability insurance, and aged, blind, and disabled— Social Security Act (Titles II, VIII, and XVI); representative payment, 60223-60240 04-22331 State State Department NOTICES Grants and cooperative agreements; availability, etc.: Educational Adviser Training and Support Services, 60209-60214 04-22583 Eurasia; educational advising and regional educational advising coordinating services, 60214-60219 04-22582 Surface Surface Transportation Board NOTICES Rail carriers:

Control exemption— Genesee & Wyoming, Inc., 60220-60221 04-22434 Railroad operation, acquisition, construction, etc.: Burlington Northern & Santa Fe Railway Co., 60221 04-22451 Thrift Thrift Supervision Office NOTICES Agency information collection activities; proposals, submissions, and approvals, 60221 04-22529 Trade Trade Representative, Office of United States NOTICES Trade Policy Staff Committee: World Trade Organization agreement on government procurement; market access negotiations, 60219-60220 04-22574 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Surface Transportation Board Treasury Treasury Department See Internal Revenue Service See Thrift Supervision Office RULES Drawback:

Merchandise processing fees; claim eligibility based on substitution of finished petroleum derivatives, 60082-60083 04-22599 Veterans Veterans Affairs Department RULES Adjudication; pensions, compensation, dependency, etc.: Presumptions of service connection for diseases associated with detention or prisoner of war internment, 60083-60090 04-22543 Separate Parts In This Issue Part II Social Security Administration, 60223-60240 04-22331 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 60241-60272 04-22389 Part IV Executive Office of the President, Presidential Documents, 60273-60282 04-22757 04-22758 04-22759 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 69 194 Thursday, October 7, 2004 Rules and Regulations NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 747 Civil Monetary Penalty Inflation Adjustment AGENCY: National Credit Union Administration (NCUA). ACTION: Final rule. SUMMARY:

Congress, in the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, required all federal agencies with the authority to impose civil monetary penalties

(CMPs)to regularly evaluate those CMPs to ensure that they continue to maintain their deterrent value. In order to comply with Congress' mandate to adjust CMPs for inflation at least every four years, NCUA is issuing this final rule to implement the required adjustments to the CMPs authorized by the Federal Credit Union Act and other relevant laws. DATES: Effective November 1, 2004. FOR FURTHER INFORMATION CONTACT: Allan Meltzer, Associate General Counsel, or Jon Canerday, Trial Attorney, Office of General Counsel, NCUA, 1775 Duke Street, Alexandria, Virginia 22314, or telephone

(703)518-6540. SUPPLEMENTARY INFORMATION: A. Background The Debt Collection Improvement Act of 1996 1

(DCIA)amended the Federal Civil Penalties Inflation Adjustment Act of 1990 2 (FCPIA Act) to require every Federal agency to enact regulations that adjust each civil monetary penalty

(CMP)3 provided by law under its jurisdiction by the rate of inflation pursuant to the inflation adjustment formula in section 5(b) of the FCPIA Act. Each Federal agency was required to issue these implementing regulations by October 23, 1996, and at least once every 4 years thereafter. Section 6 of the amended FCPIA Act specifies that inflation-adjusted CMPs will only apply 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). 4 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, each CMP that has been adjusted for inflation must be rounded to a number prescribed by section 5(a) of the FCPIA Act. 5 1 Pub. L. 104-134, 31001(s), 110 Stat. 1321-373, (Apr. 26, 1996). The Provision is codified at 28 U.S.C. 2461 note. 2 Pub. L. 101-410, 104 Stat. 890, (Oct. 5, 1990), also codified at 28 U.S.C. 2461 note. 3 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. 4 The CPI is published by the Department of Labor, Bureau of Statistics, and is available at its Web site: *http://data.bls.gov/cgi-bin/surveymost.* 5 In 2000, NCUA recognized that the rounding provision of the FCPIA Act was capable of differing interpretations. Since then, the Comptroller General has interpreted the rounding requirements of the FCPIA Act the same way as NCUA did in calculating the 2000 inflation adjustments. Comp. Gen. B-290021, 2002 U.S. Comp. Gen. LEXIS 266, July 15, 2002. The CMPs which NCUA is authorized to impose were last adjusted by NCUA in either 1996 or 2000. For those CMPs that were adjusted in 2000, the current adjustment will be the percentage by which the CPI for the month of June 2003 exceeds the CPI for the month of June 2000. According to the Bureau of Labor Statistics, the CPI for the month of June 2000 was 172.4 and the CPI for the month of June 2003 was 183.7. The percentage by which the 2003 figure exceeds the 2000 figure is 6.55 percent. Thus, the CMPs that were last adjusted in 2000 should be increased by 6.55 percent to arrive at the new adjusted amounts (before required rounding). For those CMPs that were adjusted in 1996, the current adjustment will be the percentage by which the CPI for the month of June 2003 exceeds the CPI for the month of June 1996. According to the Bureau of Labor Statistics, the CPI for the month of June 1996 was 156.7 and the CPI for the month of June 2003 was 183.7. The percentage by which the 2003 figure exceeds the 1996 figure is 17.23 percent. The CMPs that were last adjusted in 1996 should be increased by 17.23 percent to arrive at the new adjusted amounts (before required rounding). B. Mathematical Calculations of the Adjustments 1. 12 U.S.C. 1782a(a)(3) NCUA is authorized to require credit unions to periodically provide reports of condition. The failure to submit a required report or the submission of a false or misleading report subjects a credit union to three levels of CMPs, depending upon the reasons for noncompliance. Calculation of the Adjustment The CMPs authorized by 12 U.S.C. 1782a(a)(3) were last adjusted by NCUA in 2000. 6 Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding). 6 The previous inflation adjustments were made to 12 U.S.C. 1782. That provision has been redesignated as 1782a. The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for an inadvertent failure to submit a report or the inadvertent submission of a false or misleading report is $2,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $2,200 for each day. Multiplying the current penalty of $2,200 by 6.55 percent results in an increase of $144.10. When that number is rounded as required by the FCPIA Act, 7 the inflation-adjusted maximum remains $2,200. 7 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(3)multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000.” Section 5(a), FCPIA Act. Therefore, $144.10 is rounded to the nearest multiple of $1,000 or to $0. The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for a non-inadvertent failure to submit a report or the non-inadvertent submission of a false or misleading report is $20,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $22,000 for each day. Multiplying the current penalty of $22,000 by 6.55 percent results in an increase of $1,441. When that number is rounded as required by the FCPIA Act, 8 the inflation-adjusted maximum remains $22,000. 8 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(4)multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000.” Section 5(a), FCPIA Act. Therefore, $1,441 is rounded to the nearest multiple of $5,000 or to $0. The maximum CMP authorized by 12 U.S.C. 1782a(a)(3) for a failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard is $1,000,000 or 1 percent of the total assets of the credit union, whichever is less, for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $1,100,000 for each day. Multiplying the current penalty of $1,100,000 by 6.55 percent results in an increase of $72,050. When that number is rounded as required by the FCPIA Act, 9 the inflation-adjusted maximum becomes $1,175,000 or 1 percent of the total assets of the credit union, whichever is less, per day. 9 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(6)multiple of $25,000 in the case of penalties greater than $200,000.” Section 5(a), FCPIA Act. Therefore, $72,050 is rounded to the nearest multiple of $75,000 or to $75,000. 2. 12 U.S.C. 1782a(d)(2) In a provision similar to that discussed above, NCUA is authorized to require each credit union to provide periodic certified statements of the amount of insured shares in the credit union, as well as to pay required deposits into the National Credit Union Share Insurance Fund. The failure to submit a required certified statement or the submission of a false or misleading statement subjects a credit union to three levels or tiers of CMPs, depending upon the reasons for noncompliance. Calculation of the Adjustment The CMPs authorized by 12 U.S.C. 1782a(d)(2) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding). First Tier CMPs The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(A) for an inadvertent failure to timely submit a certified statement or an inadvertent submission of a false or misleading certified statement is $2,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $2,200 for each day. Multiplying the current penalty of $2,200 by 6.55 percent results in an increase of $144.10. When that number is rounded as required by the FCPIA Act, 10 the inflation-adjusted maximum remains $2,200. 10 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(3)multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000.” Section 5(a), FCPIA Act. Therefore, $144.10 is rounded to the nearest multiple of $1,000 or to $0. Second Tier CMPs The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(B) for a non-inadvertent failure to timely submit a certified statement, or a non-inadvertent submission of a false or misleading certified statement, or the failure or refusal to pay any required deposit or premium for insurance is $20,000 for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $22,000 for each day. Multiplying the current penalty of $22,000 by 6.55 percent results in an increase of $1,441. When that number is rounded as required by the FCPIA Act, 11 the inflation-adjusted maximum remains $22,000. 11 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(4)multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000.” Section 5(a), FCPIA Act. Therefore, $1,441 is rounded to the nearest multiple of $5,000 or to $0. Third Tier CMPs The maximum CMP authorized by 12 U.S.C. 1782a(d)(2)(C) for a failure to submit a report or the submission of a false or misleading report done knowingly or with reckless disregard is $1,000,000 or 1 percent of the total assets of the credit union, whichever is less, for each day the failure continues or such false or misleading information is not corrected. After the required adjustment for inflation in 2000, the maximum penalty was increased to $1,100,000 for each day. Multiplying the current penalty of $1,100,000 by 6.55 percent results in an increase of $72,050. When that number is rounded as required by the FCPIA Act, 12 the inflation-adjusted maximum becomes $1,175,000 or 1 percent of the total assets of the credit union, whichever is less, per day. 12 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(6)multiple of $25,000 in the case of penalties greater than $200,000.” Section 5(a), FCPIA Act. Therefore, $72,050 is rounded to the nearest multiple of $75,000 or to $75,000. 3. 12 U.S.C. 1785(e)(3) Pursuant to 12 U.S.C. 1785(e)(1), NCUA is authorized to promulgate regulations to provide minimum standards with which each insured credit union must comply with respect to security devices and procedures to discourage robberies, burglaries and larcenies and to assist in the identification and apprehension of persons who commit such acts. A credit union that violates such a regulation is subject to a CMP for each day the violation continues. Calculation of the Adjustment The CMPs authorized by 12 U.S.C. 1785(e)(3) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding). The maximum CMP authorized by 12 U.S.C. 1785(e)(3) for non-compliance with NCUA security regulations is $100 for each day the violation continues. After the required adjustment for inflation in 2000, the maximum penalty was increased to $110 for each day. Multiplying the current penalty of $110 by 6.55 percent results in an increase of $7.21. When that number is rounded as required by the FCPIA Act, 13 the inflation-adjusted maximum remains $110. 13 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(2)multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000.” Section 5(a), FCPIA Act. Therefore, $7.21 is rounded to the nearest multiple of $100 or to $0. 4. 12 U.S.C. 1786(k)(2) NCUA is authorized to impose three levels or tiers of CMPs upon insured credit unions or institution-affiliated parties for certain conduct. First and second tier CMPs were not increased for inflation in 2000 because the amount of the increase was not large enough as a result of the rounding rules. Because these CMPs were last adjusted for inflation in 1996, they should now be increased by 17.23 percent to arrive at the new adjusted amounts (before required rounding). Third tier CMPs were increased for inflation in 2000 and therefore, should now be increased by 6.55 percent (before required rounding). First Tier CMPs First tier CMPs, 12 U.S.C. 1786(k)(2)(A), may be imposed for the violation of any law or regulation, the violation of certain final orders or temporary orders, the violation of conditions imposed in writing by the NCUA Board, or the violation of any written agreement between the credit union and NCUA. The statute provides that first tier CMPs shall not be more than $5,000 for each day the violation continues. After the required adjustment for inflation in 1996, the maximum penalty was increased to $5,500 for each day. Multiplying the current penalty of $5,500 by 17.23 percent results in an increase of $947.65. When that number is rounded as required by the FCPIA Act, 14 the inflation-adjusted maximum for a first tier CMP becomes $6,500. 14 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(3)multiple of $1,000 in the case of penalties greater than $1,000 but less than or equal to $10,000.” Section 5(a), FCPIA Act. Therefore, $947.65 is rounded to the nearest multiple of $1,000 or to $1,000. Second Tier CMPs Second tier CMPs, 12 U.S.C. 1786(k)(2)(B), are authorized for violations described in first tier CMPs, the reckless engaging in an unsafe or unsound practice in conducting the affairs of a credit union, or the breach of any fiduciary duty, when the violation, practice or breach is part of a pattern of misconduct, or causes or is likely to cause more than a minimal loss to the credit union, or results in pecuniary gain or other benefit. The statute provides a maximum second tier CMP of $25,000 for each day the violation, practice or breach continues. After the required 1996 adjustment for inflation, the maximum penalty was increased to $27,500 per day. Multiplying the current penalty of $27,500 by 17.23 percent results in an increase of $4,738.25. When that number is rounded as required by the FCPIA Act, 15 the inflation-adjusted maximum for a second tier CMP becomes $32,500. 15 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(4)multiple of $5,000 in the case of penalties greater than $10,000 but less than or equal to $100,000.” Section 5(a), FCPIA Act. Therefore, $4,738.25 is rounded to the nearest multiple of $5,000 or to $5,000. Third Tier CMPs Third tier CMPs, 12 U.S.C. 1786(k)(2)(C), may be imposed for any of the acts described in second tier CMPs that cause a substantial loss to the credit union or a substantial pecuniary gain or other benefit. The amount of third tier CMPs depends upon the status of the respondent required to pay the CMP, 12 U.S.C. 1786(k)(2)(D). For a person other than an insured credit union, under the statute, the maximum third tier CMP is $1,000,000 for each day the violation, practice or breach continues. For an insured credit union, the statute provides a daily maximum CMP of the lesser of $1,000,000 or 1 percent of the total assets of the credit union. In 2000, the maximum CMP for a person other than an insured credit union was increased for inflation to $1,175,000 per day. At the same time, the maximum CMP for an insured credit union was increased to the lesser of $1,175,000 or 1 percent of the total assets of the credit union. Multiplying the current penalty of $1,175,000 by 6.55 percent results in an increase of $76,962.50. When that number is rounded as required by the FCPIA Act, 16 the new maximum inflation-adjusted third tier CMP becomes $1,250,000. 16 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(6)multiple of $25,000 in the case of penalties greater than $200,000.” Section 5(a), FCPIA Act. Therefore, $76,962.50 is rounded to the nearest multiple of $25,000 or to $75,000. 5. 42 U.S.C. 4012a(f) Pursuant to 42 U.S.C. 4012a(f), NCUA is authorized to impose CMPs against a credit union that is found to have a pattern or practice of committing certain specified actions in violation of the National Flood Insurance Program. Calculation of the Adjustment The CMPs authorized by 42 U.S.C. 4012a(f) were last adjusted by NCUA in 2000. Therefore, these CMPs should be multiplied by 6.55 percent to arrive at the new adjusted amounts (before required rounding). The maximum CMP authorized by 42 U.S.C. 4012a(f) is $350 for each violation, up to a maximum of $100,000 per calendar year. After the required adjustments for inflation in 2000, the maximum penalty was increased to $385 for each day, up to a maximum of $110,000 per calendar year. Multiplying the current penalty of $385 by 6.55 percent results in an increase of $25.22. When that number is rounded as required by the FCPIA Act, 17 the inflation-adjusted maximum remains $385. Multiplying the current annual maximum of $110,000 by 6.55 percent results in an increase of $7,205. When that number is rounded as required by the FCPIA Act, 18 the inflation-adjusted annual maximum penalty becomes $120,000 per calendar year. 17 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(2)multiple of $100 in the case of penalties greater than $100 but less than or equal to $1,000.” Section 5(a), FCPIA Act. Therefore, $25.22 is rounded to the nearest multiple of $100 or to $0. 18 “Any increase determined under this subsection shall be rounded to the nearest- * * *

(5)multiple of $10,000 in the case of penalties greater than $100,000 but less than or equal to $200,000.” Section 5(a), FCPIA Act. Therefore, $7,205 is rounded to the nearest multiple of $10,000 or to $10,000. The NCUA Board now adopts this final rule to adjust the forgoing CMPs for the rate of inflation, as required by the FCPIA Act. As provided in the final rule, the revised CMP amounts will only apply to violations that occur after the effective date of the final rule. C. Regulatory Procedures Final Rule Under the Administrative Procedures Act The FCPIA Act requires adjustments of CMPs for inflation to occur at least every four years. Additionally, the FCPIA Act provides federal agencies with no discretion in the adjustment of CMPs for inflation. Thus, NCUA is unable to vary the amount of the adjustments to reflect any views or suggestions provided by commenters. Further, the regulation is ministerial and technical. For all of these reasons, the NCUA Board finds good cause to determine that public notice and comment for this new regulation is unnecessary, impractical and contrary to the public interest, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B). Regulatory Flexibility Act The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a proposed rule may have on a substantial number of small credit unions (those under ten million dollars in assets). The proposed rule would not have a significant economic impact on a substantial number of small credit unions, and, therefore, a regulatory flexibility analysis is not required. Paperwork Reduction Act NCUA has determined that the proposed rule would not increase paperwork requirements under the Paperwork Reduction Act of 1995 and regulations of the Office of Management and Budget. Executive Order 13132 Executive Order 13132 encourages independent regulatory agencies to consider the impact of their regulatory actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive Order. This final rule will apply to all federally-insured credit unions, but it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined the final rule does not constitute a policy that has federalism implications for purposes of the Executive Order. The Treasury and General Government Appropriations Act, 1999—Assessment of Federal Regulations and Policies on Families NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 2681 (1998). Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-21) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedures Act. 5 U.S.C. 551. The Office of Management and Budget has reviewed this rule and has determined that for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996, it is not a major rule. List of Subjects in 12 CFR Part 747 Credit unions, Civil monetary penalties. By the National Credit Union Administration Board on September 27, 2004. Mary Rupp, Secretary of the Board. Accordingly, the NCUA amends 12 CFR part 747 as follows: PART 747—ADMINISTRATIVE ACTIONS, ADJUDICATIVE HEARINGS, RULES OF PRACTICE AND PROCEDURE, AND INVESTIGATIONS 1. The authority citation for part 747 continues to read as follows: Authority: 12 U.S.C. 1766, 1782, 1784, 1785, 1786, 1787; 42 U.S.C. 4012a; Pub. L. 101-410; Pub. L. 104-134. 2. Part 747, Subpart K is revised to read as follows: Subpart K—Inflation Adjustment of Civil Monetary Penalties § 747.1001 Adjustment of civil money penalties by the rate of inflation.

(a)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 money penalty within its jurisdiction by the rate of inflation. The following chart displays those adjustments, 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 $22,000.

(2)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 $22,000.

(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 $1,175,000 or 1 percent of the total assets of the credit union, whichever is less.

(4)12 U.S.C. 1782(d)(2)(A) First tier $2,200.

(5)12 U.S.C. 1782(d)(2)(B) Second tier $22,000.

(6)12 U.S.C. 1782(d)(2)(C) Third tier $1,175,000 or 1 percent of the total assets of the credit union, whichever is less.

(7)12 U.S.C. 1785(e)(3) Non-compliance with NCUA security regulations $110.

(8)12 U.S.C. 1786(k)(2)(A) First tier $6,500.

(9)12 U.S.C. 1786(k)(2)(B) Second tier $32,500.

(10)12 U.S.C. 1786(k)(2)(C) Third tier For a person other than an insured credit union: $1,250,000; For an insured credit union $1,250,000 or 1 percent of the total assets of the credit union, whichever is less.

(11)42 U.S.C. 4012a(f) Per violation $385 Per calendar year $120,000.

(b)The adjustments displayed in paragraph

(a)of this section apply to acts occurring beginning on November 1, 2004. [FR Doc. 04-22537 Filed 10-6-04; 8:45 am]

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