Annual Adjustment of Civil Monetary Penalties to Reflect Inflation-2018

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 143

RIN 3038-AE58

Annual Adjustment of Civil Monetary Penalties to Reflect Inflation—2018

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

SUMMARY: The Commodity Futures Trading Commission (Commission) is amending Rule 143.8, its rule that governs the maximum amount of civil monetary penalties, to adjust for inflation. This rule sets forth the maximum, inflation-adjusted dollar amount for civil monetary penalties (CMPs) assessable for violations of the Commodity Exchange Act (CEA) and Commission rules, regulations and orders thereunder. The rule, as amended, implements the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended.

DATES: This rule is effective on March 6, 2018 and is applicable to penalties assessed after March 6, 2018.

FOR FURTHER INFORMATION CONTACT: Edward J. Riccobene, Associate Chief Counsel, Division of Enforcement, at (202) 418-5327 or ericcobene@cftc.gov, Commodity Futures Trading Commission, 1155 21st Street NW, Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

The Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA) [1] requires the head of each Federal agency to periodically adjust for inflation the minimum and maximum amount of CMPs provided by law within the jurisdiction of that agency.[2] A 2015 amendment to the FCPIAA [3] required agencies to make an initial “catch-up” adjustment to its civil monetary penalties effective no later than August 1, 2016.[4] For every year thereafter effective not later than January 15, the FCPIAA, as amended, requires agencies to make annual adjustments for inflation, with guidance from the Director of the Office of Management and Budget.[5]

[1] The FCPIAA, Public Law 101-410 (1990), as amended, is codified at 28 U.S.C. 2461 note. The FCPIAA states that the purpose of the FCPIAA is to establish a mechanism that (1) allows for regular adjustment for inflation of civil monetary penalties; (2) maintains the deterrent effect of civil monetary penalties and promote compliance with the law; and (3) improves the collection by the Federal Government of civil monetary penalties.

[2] For the relevant CMPs within the Commission's jurisdiction, the Act provides only for maximum amounts that can be assessed for each violation of the Act or the rules, regulations and orders promulgated thereunder; the Act does not set forth any minimum penalties. Therefore, the remainder of this release will refer only to CMP maximums.

[3] Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, 129 Stat. 584 (2015) (2015 Act), title VII, Section 701.

[4] FCPIAA Sections 4 and 5. See also, Adjustment of Civil Monetary Penalties for Inflation, 81 FR 41435 (June 27, 2016).

[5] FCPIAA Sections 4 and 5. See also, Executive Office of the President, Office of Management and Budget Memorandum, M-18-03, Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Dec. 15, 2017) (2017 OMB Guidance) (https://www.whitehouse.gov/wp-content/uploads/2017/11/M-18-03.pdf).

II. Commodity Exchange Act Civil Monetary Penalties

The following sections of the CEA provide for CMPs that meet the FCPIAA definition [6] and these CMPs are, therefore, subject to the inflation adjustment: Sections 6(c), 6b, and 6c of the CEA.[7]

[6] FCPIAA Section 3(2).

[7] 7 U.S.C. 9, 13a-1, 13b. Criminal authorities may also seek fines for criminal violations of the CEA (see 7 U.S.C. 13, 13(c), 13(d), 13(e), and 13b). The FCPIAA does not affect the amounts of these criminal penalties.

III. Annual Inflation Adjustment for Commodity Exchange Act Civil Monetary Penalties

A. Methodology

The FCPIAA annual inflation adjustment, in the context of the CFTC's CMPs, is determined by increasing the maximum penalty by a “cost-of-living adjustment”, rounded to the nearest multiple of one dollar.[8] Annual inflation adjustments are based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI- U) preceding the date of the adjustment, and the prior year's October CPI-U.[9] In this case, October 2017 CPI-U (246.663)/October 2015 CPI-U (241.729) = 1.02041.[10] In order to

complete the 2018 annual adjustment, the CFTC must multiply each of its most recent CMP amounts by the multiplier, 1.02041, and round to the nearest dollar.[11]

[8] FCPIAA Sections 4 and 5.

[9] FCPIAA Section 5(b)(1).

[10] The CPI-U is published by the Department of Labor. Interested parties may find the relevant Consumer Price Index on the internet. To access this information, go to the Consumer Price Index Home Page at: http://www.bls.gov/cpi/. Click the “CPI Data/ Databases” heading, and select “All Urban Consumers (Current Series)”, “Top Picks.” Then check the box for “U.S. All items, 1982-84=100—CUUR0000SA0”, and click the “Retrieve data” button.

[11] 2017 OMB Guidance at 3.

B. Civil Monetary Penalty Adjustments

Applying the FCPIAA annual inflation adjustment methodology results in the following amended CMPs:

U.S. Code citation Civil monetary penalty

description

Violations occurring on or after 11/02/2015

                                                                      Penalty          CPI-U            New
                                                                       amount in      multiplier        adjusted
                                                                    January 2017                         penalty
                                                                      Final Rule                          amount
                                                                            \12\
----------------------------------------------------------------------------------------------------------------
                  Civil Monetary Penalty Imposed by the Commission in an Administrative Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 9 (Section 6(c) of    For any person    Non-                   $157,892         1.02041        $161,115
 the Commodity Exchange Act).   other than a      Manipulation
                                registered        or Attempted
                                entity *.         Manipulation.
                               For any person    Manipulation or       1,138,937         1.02041       1,162,183
                                other than a      Attempted
                                registered        Manipulation.
                                entity *.
7 U.S.C. 13a (Section 6b of    For a registered  Non-                    869,757         1.02041         887,509
 the Commodity Exchange Act).   entity * or any   Manipulation
                                of its            or Attempted
                                directors,        Manipulation.
                                officers or
                                employees.
                               For a registered  Manipulation or       1,138,937         1.02041       1,162,183
                                entity * or any   Attempted
                                of its            Manipulation.
                                directors,
                                officers or
                                employees.
----------------------------------------------------------------------------------------------------------------
             Civil Monetary Penalty Imposed by a Federal District Court in a Civil Injunctive Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 13a-1 (Section 6c of  Any Person......  Non-                    173,951         1.02041         177,501
 the Commodity Exchange Act).                     Manipulation
                                                  or Attempted
                                                  Manipulation.
                               Any Person......  Manipulation or       1,138,937         1.02041       1,162,183
                                                  Attempted
                                                  Manipulation.
----------------------------------------------------------------------------------------------------------------

• The term “registered entity” is defined in 7 U.S.C. 1a (Section 1a of the Commodity Exchange Act).

The FCPIAA provides that any increase under the FCPIAA in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.[13] Thus, the new CMP amounts established by this rulemaking shall apply to penalties assessed after March 6, 2018, for violations that occurred on or after November 2, 2015, the effective date of the FCPIAA amendment requiring annual adjustments, the 2015 Act.[14]

[12] 82 FR 7643.

[13] FCPIAA Section 6.

[14] Prior Commission rulemakings to affect the required inflation adjustments referenced the date the enforcement action was filed without regard to the date of the corresponding violation. This rulemaking specifically references the date of the violation, thereby the Commission clarifies its determination that these adjusted penalties apply only with respect to violations occurring on or after November 2, 2015, the effective date of the 2015 Act.

IV. Administrative Compliance

A. Notice Requirement

The FCPIAA specifically exempted from the Administrative Procedure Act (APA) the rulemakings required to implement annual inflation adjustments.[15] “This means that the public procedure the APA generally requires—notice, an opportunity for comment, and a delay in effective date—is not required for agencies to issue regulations implementing the annual adjustment.” [16] The Commission further notes that the notice and comment procedures of the APA do not apply to this rulemaking because the Commission is acting herein pursuant to statutory language that mandates that the Commission act in a nondiscretionary matter.[17]

[15] FCPIAA Section 4(b)(2).

[16] 2017 OMB Guidance at 4.

[17] Lake Carriers' Ass'n v. EPA, 652 F.3d 1, 10 (DC Cir. 2011).

B. Regulatory Flexibility Act

The Regulatory Flexibility Act [18] requires agencies with rulemaking authority to consider the impact of certain of their rules on small businesses. A regulatory flexibility analysis is only required for rules for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) or any other law.[19] Because, as discussed above, the Commission is not obligated by section 553(b) or any other law to publish a general notice of proposed rulemaking with respect to the revisions being made to regulation 143.8, the Commission additionally is not obligated to conduct a regulatory flexibility analysis.

[18] 5 U.S.C. 601-612.

[19] 5 U.S.C. 603(a).

C. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA),[20] which imposes certain requirements on Federal agencies, including the Commission, in connection with their conducting or sponsoring any collection of information as defined by the PRA, does not apply to this rule. This rule amendment does not contain information collection requirements that require the approval of the Office of Management and Budget.

[20] 44 U.S.C. 3507(d).

D. Consideration of Costs and Benefits

Section 15(a) of the CEA [21] requires the Commission to consider the costs and benefits of its action before issuing a new regulation. Section 15(a) further specifies that costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency,

competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations.

[21] 7 U.S.C. 19(a).

The Commission believes that benefits of this rulemaking greatly outweigh the costs, if any. As the Commission understands, the statutory provisions by which it is making cost-of-living adjustments to the CMPs in regulation 143.8 were enacted to ensure that CMPs do not lose their deterrence value because of inflation. An analysis of the costs and benefits of these adjustments were made before enactment of the statutory provisions under which the Commission is operating, and limit the discretion of the Commission to the extent that there are no regulatory choices the Commission could make that would supersede the pre-enactment analysis with respect to the five factors enumerated in section 15(a), or any other factors.

List of Subjects in 17 CFR Part 143

Civil monetary penalties, Claims.

For the reasons set forth in the preamble, the Commodity Futures Trading Commission amends part 143 of title 17 of the Code of Federal Regulations as follows:

PART 143—COLLECTION OF CLAIMS OWED THE UNITED STATES ARISING FROM

ACTIVITIES UNDER THE COMMISSION'S JURISDICTION

0 1. The authority citation for part 143 continues to read as follows:

Authority: 7 U.S.C. 9, 15, 9a, 12a(5), 13a, 13a-1(d), 13(a), 13b; 31 U.S.C. 3701-3720E; 28 U.S.C. 2461 note.

0 2. Revise Sec. 143.8 to read as follows:

Sec. 143.8 Inflation-adjusted civil monetary penalties.

(a) Statutory inflation adjustment of civil monetary penalties. The Inflation Adjustment Act of 1990, as amended, requires annual inflation adjustments to the civil monetary penalties imposed under the Commodity Exchange Act for violations that occurred on or after November 2, 2015. The Commission will publish notice of these adjusted penalty amounts in the Federal Register. The inflation adjustment is calculated by multiplying the maximum dollar amount of the civil monetary penalty for the previous calendar year by the cost-of-living inflation adjustment multiplier provided by the Office Management and Budget, which is based on the change in the Consumer Price Index, and rounding the total to the nearest dollar. Set forth in the charts in paragraph (b) of this section are the inflation adjusted penalty amounts for violations occurring on or after November 2, 2015 and the penalty amounts for violations that occurred prior to November 2, 2015. These penalty charts are also available on the Commission's website at: http://www.cftc.gov/LawRegulation/Enforcement/InflationAdjustedCivilMonetaryPenalties/index.htm.

(b) 2018 inflation adjustment. The maximum amount of each civil monetary penalty in the following charts applies to penalties assessed after March 6, 2018:

(1) For Non-Manipulation or Attempted Manipulation Violations:

Table 1 to Paragraph (b)(1)

Date of violation and corresponding penalty

Civil monetary -——————————————————————————————--

      U.S. Code citation             penalty        10/23/2004      10/23/2008      10/23/2012
                                   description    through  10/22/ through  10/22/ through  11/01/ 11/02/2015  to
                                                       2008            2012            2015           present
----------------------------------------------------------------------------------------------------------------
                  Civil Monetary Penalty Imposed by the Commission in an Administrative Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 9 (Section 6(c) of     For any person          $130,000        $130,000        $140,000        $161,115
 the Commodity Exchange Act).    other than a
                                 registered
                                 entity \1\.
7 U.S.C. 13a (Section 6b of     For a registered         625,000         675,000         700,000         887,509
 the Commodity Exchange Act).    entity \1\ or
                                 any of its
                                 directors,
                                 officers or
                                 employees.
----------------------------------------------------------------------------------------------------------------
             Civil Monetary Penalty Imposed by a Federal District Court in a Civil Injunctive Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 13a-1 (Section 6c of   Any Person......         130,000         140,000         140,000         177,501

the Commodity Exchange Act).

[1] The term “registered entity” is defined in 7 U.S.C. 1a (Section 1a of the Commodity Exchange Act).

(2) For Manipulation or Attempted Manipulation Violations:

Table 1 to Paragraph (b)(2)

Date of violation and corresponding penalty

Civil monetary -——————————————————————————————--

      U.S. Code citation             penalty        10/23/2004      05/22/2008      08/15/2011
                                   description    through  05/21/ through  08/14/ through  11/01/ 11/02/2015  to
                                                       2008            2011            2015           present
----------------------------------------------------------------------------------------------------------------
                  Civil Monetary Penalty Imposed by the Commission in an Administrative Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 9 (Section 6(c) of     For any person          $130,000      $1,000,000      $1,025,000      $1,162,183
 the Commodity Exchange Act).    other than a
                                 registered
                                 entity \1\.
7 U.S.C. 13a (Section 6b of     For a registered         625,000       1,000,000       1,025,000       1,162,183
 the Commodity Exchange Act).    entity \1\ or
                                 any of its
                                 directors,
                                 officers or
                                 employees.
----------------------------------------------------------------------------------------------------------------




             Civil Monetary Penalty Imposed by a Federal District Court In a Civil Injunctive Action
----------------------------------------------------------------------------------------------------------------
7 U.S.C. 13a-1 (Section 6c of   Any Person......         130,000       1,000,000       1,025,000       1,162,183

the Commodity Exchange Act).

[1] The term “registered entity” is defined in 7 U.S.C. 1a (Section 1a of the Commodity Exchange Act).

Issued in Washington, DC, on February 28, 2018, by the Commission. Robert N. Sidman, Deputy Secretary of the Commission.

Note: The following appendix will not appear in the Code of Federal Regulations.

Appendix to Adjustment of Civil Monetary Penalties for Inflation-- 2018—Commission Voting Summary

On this matter, Chairman Giancarlo and Commissioners Quintenz and Behnam voted in the affirmative. No Commissioner voted in the negative.

[FR Doc. 2018-04480 Filed 3-5-18; 8:45 am]

BILLING CODE 6351-01-P