[Federal Register Volume 87, Number 80 (Tuesday, April 26, 2022)]
[Rules and Regulations]
[Pages 24418-24421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-08768]
[[Page 24418]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 28, 30, 87, 180, and 3282
[Docket No. FR-6309-F-01]
Adjustment of Civil Monetary Penalty Amounts for 2022
AGENCY: Office of the General Counsel, HUD.
ACTION: Final rule.
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SUMMARY: This rule provides for 2022 inflation adjustments of civil
monetary penalty amounts required by the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended by the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015. This rule
also makes a technical amendment to the penalty provision related to
false claims by updating a cross reference.
DATES: This rule is effective May 26, 2022.
FOR FURTHER INFORMATION CONTACT: Aaron Santa Anna, Associate General
Counsel for Legislation and Regulations, Office of the General Counsel,
Department of Housing and Urban Development, 451 7th Street SW, Room
10276, Washington, DC 20024; telephone number 202-402-5138 (this is not
a toll-free number). Hearing- or speech-impaired individuals may access
this number via TTY by calling the Federal Relay Service at 800-877-
8339 (this is a toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (the 2015 Act) (Pub. L. 114-74, Sec. 701), which further
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(Pub. L. 101-410), requires agencies to make annual adjustments to
civil monetary penalty (CMP) amounts for inflation ``notwithstanding
section 553 of title 5, United States Code.'' Section 553 refers to the
Administrative Procedure Act, which provides for advance notice and
public comment during the rulemaking process. However, as explained in
Section III below, HUD has determined that advance notice and public
comment on this final rule is unnecessary.
This annual adjustment is for 2022. The annual adjustment is based
on the percent change between the U.S. Department of Labor's Consumer
Price Index for All Urban Consumers (``CPI-U'') for the month of
October preceding the date of the adjustment, and the CPI-U for October
of the prior year (28 U.S.C. 2461 note, section (5)(b)(1)). Based on
that formula, the cost-of-living adjustment multiplier for 2022 is
1.06222.\1\ Pursuant to the 2015 Act, adjustments are rounded to the
nearest dollar.\2\
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\1\ Office of Management and Budget, M-22-07-, Memorandum for
the Heads of Executive Departments and Agencies, Implementation of
Penalty Inflation Adjustments for 2022, Pursuant to the Federal
Civil Penalties Inflation Adjustment Act Improvements Act of 2015.
(https://www.whitehouse.gov/wp-content/uploads/2021/12/M-22-07.pdf).
(October 2021 CPI-U (276.589)/October 2020 CPI-U (260.388) =
1.06222.)
\2\ 28 U.S.C. 2461 note.
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II. This Final Rule
This final rule makes the required 2022 inflation adjustment of
HUD's civil money penalty amounts. Since HUD is not applying these
adjustments retroactively, the 2022 increases apply to violations
occurring on or after this rule's effective date. HUD provides a table
showing how, for each component, the penalties are being adjusted for
2022 pursuant to the 2015 Act. In the first column (``Description''),
HUD provides a description of the penalty. In the second column
(``Statutory Citation''), HUD provides the United States Code statutory
citation providing for the penalty. In the third column (``Regulatory
Citation''), HUD provides the Code of Federal Regulations citation
under Title 24 for the penalty. In the fourth column (``Previous
Amount''), HUD provides the amount of the penalty pursuant to the rule
implementing the 2021 adjustment (86 FR 14370, March 16, 2021). In the
fifth column (``2022 Adjusted Amount''), HUD lists the penalty after
applying the 2022 inflation adjustment.
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Regulatory citation 2022 adjusted
Description Statutory citation (24 CFR) Previous amount amount
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False Claims................... Omnibus Budget Sec. 28.10(a)...... $11,803.......... $12,537.
Reconciliation
Act of 1986; (31
U.S.C.
3802(a)(1)).
False Statements............... Omnibus Budget Sec. 28.10(b)...... $11,803.......... $12,537.
Reconciliation
Act of 1986; (31
U.S.C. 3802
(a)(2)).
Advance Disclosure of Funding.. Department of Sec. 30.20......... $20,731.......... $22,021.
Housing and Urban
Development Act;
(42 U.S.C.
3537a(c)).
Disclosure of Subsidy Layering. Department of Sec. 30.25......... $20,731.......... $22,021.
Housing and Urban
Development Act;
(42 U.S.C.
3545(f)).
FHA Mortgagees and Lenders HUD Reform Act of Sec. 30.35......... Per Violation: Per Violation:
Violations. 1989; (12 U.S.C. $10,366; Per $11,011; Per
1735f-14(a)(2)). Year: $2,073,133. Year:
$2,202,123.
Other FHA Participants HUD Reform Act of Sec. 30.36......... Per Violation: Per Violation:
Violations. 1989 (12 U.S.C. $10,366; Per $11,011; Per
1735f-14(a)(2)). Year: $2,073,133. Year:
$2,202,123.
Indian Home Loan Guarantee Housing Community Sec. 30.40......... Per Violation: Per Violation:
Lender or Holder Violations. Development Act $10,366; Per $11,011; Per
of 1992 (12 Year: $2,073,133. Year:
U.S.C. 1715z- $2,202,123.
13a(g)(2)).
Multifamily & Section 202 or HUD Reform Act of Sec. 30.45......... $51,827.......... $55,052.
811 Owners Violations. 1989 (12 U.S.C.
1735f-15(c)(2)).
Ginnie Mae Issuers & Custodians HUD Reform Act of Sec. 30.50......... Per Violation: Per Violation:
Violations. 1989 (12 U.S.C. $10,366; Per $11,011; Per
1723i(a)). Year: $2,073,133. Year:
$2,202,123.
Title I Broker & Dealers HUD Reform Act of Sec. 30.60......... Per Violation: Per Violation:
Violations. 1989 (12 U.S.C. $10,366; Per $11,011; Per
1703). Year: $2,073,133. Year:
$2,202,123.
Lead Disclosure Violation...... Title X-- Sec. 30.65......... $18,364.......... $19,507.
Residential Lead-
Based Paint
Hazard Reduction
Act of 1992 (42
U.S.C.
4852d(b)(1)).
Section 8 Owners Violations.... Multifamily Sec. 30.68......... $40,282.......... $42,788.
Assisted Housing
Reform and
Affordability Act
of 1997 (42
U.S.C. 1437z-
1(b)(2)).
[[Page 24419]]
Lobbying Violation............. The Lobbying Sec. 87.400........ Min: $20,731; Min: $22,021;
Disclosure Act of Max: $207,314. Max: $220,213.
1995 (31 U.S.C.
1352).
Fair Housing Act Civil Fair Housing Act Sec. 180.671(a).... No Priors: No Priors:
Penalties. (42 U.S.C. $21,663; One $23,011; One
3612(g)(3)). Prior: $54,157; Prior: $57,527;
Two or More Two or More
Priors: $108,315. Priors:
$115,054.
Manufactured Housing Housing Community Sec. 3282.10....... Per Violation: Per Violation:
Regulations Violation. Development Act $3,011; Per $3,198; Per
of 1974 (42 Year: $3,763,392. Year:
U.S.C. 5410). $3,997,550.
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Additionally, this final rule makes a technical revision to correct
an inadvertent error in 24 CFR 28.10(b)(1)(ii). Section 28.10(b)(1)(ii)
cross-references Sec. 28.10(b)(1)(A)(ii) which does not exist. This
error was made in the original drafting of this language and
codification via the 2008 amendments to this section. 73 FR 76831. The
original language located at Sec. 28.10(a)(1)(ii) has since been
separated into Sec. 28.10(b)(1)(i)(B) and Sec. 28.10(b)(1)(ii).
Compare 24 CFR (a)(1)(ii) in 61 FR 50213, Sept. 24, 1996, with 24 CFR
28.10(b)(1) (2022). In order to maintain the original meaning of this
subsection, the cross reference in Sec. 28.10(b)(1)(ii) should refer
to Sec. 28.10(b)(1)(i)(B).
III. Justification for Final Rulemaking for the 2022 Adjustments
HUD generally publishes regulations for public comment before
issuing a rule for effect, in accordance with its own regulations on
rulemaking in 24 CFR part 10. However, part 10 provides for exceptions
to the general rule if the agency finds good cause to omit advanced
notice and public participation. The good cause requirement is
satisfied when prior public procedure is ``impractical, unnecessary, or
contrary to the public interest'' (see 24 CFR 10.1). As discussed, this
final rule makes the required 2022 inflation adjustment, which HUD does
not have discretion to change, and a minor technical change. Moreover,
the 2015 Act specifies that a delay in the effective date under the
Administrative Procedure Act is not required for annual adjustments
under the 2015 Act. HUD has determined, therefore, that it is
unnecessary to delay the effectiveness of the 2022 inflation
adjustments to solicit public comments.
Section 7(o) of the Department of Housing and Urban Development Act
(42 U.S.C. 3535(o)) requires that any HUD regulation implementing any
provision of the Department of Housing and Urban Development Reform Act
of 1989 that authorizes the imposition of a civil money penalty may not
become effective until after the expiration of a public comment period
of not less than 60 days. This rule does not authorize the imposition
of a civil money penalty--rather, it makes a standard inflation
adjustment to penalties that were previously authorized. As noted
above, the 2022 inflation adjustments are made in accordance with a
statutorily prescribed formula that does not provide for agency
discretion. This rule also makes one technical amendment that merely
replaces a cross reference to a paragraph that does not exist with a
corrected cross reference and leaves the requirements of the false
claims provision unchanged.
Accordingly, a delay in the effectiveness of the 2022 inflation
adjustments in order to provide the public with an opportunity to
comment is unnecessary because the 2015 Act exempts the adjustments
from the need for delay, the rule does not authorize the imposition of
a civil money penalty or alter the requirements in any way, and, in any
event, HUD would not have the discretion to make changes as a result of
any comments.
IV. Findings and Certifications
Regulatory Review--Executive Orders 12866 and 13563
Under Executive Order 12866 (Regulatory Planning and Review) (58 FR
51735), a determination must be made whether a regulatory action is
significant and, therefore, subject to review by the Office of
Management and Budget (OMB) in accordance with the requirements of the
order. Executive Order 13563 (Improving Regulations and Regulatory
Review) (76 FR 3821) directs executive agencies to analyze regulations
that are ``outmoded, ineffective, insufficient, or excessively
burdensome, and to modify, streamline, expand, or repeal them in
accordance with what has been learned.'' Executive Order 13563 also
directs that, where relevant, feasible, and consistent with regulatory
objectives, and to the extent permitted by law, agencies are to
identify and consider regulatory approaches that reduce burdens and
maintain flexibility and freedom of choice for the public. As discussed
above in this preamble, this final rule adjusts existing civil monetary
penalties for inflation by a statutorily required amount.
HUD determined that this rule was not significant under Executive
Order 12866 and Executive Order 13563.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Because HUD has determined that good cause exists to issue this rule
without prior public comment, this rule is not subject to the
requirement to publish an initial or final regulatory flexibility
analysis under the RFA as part of such action.
Unfunded Mandates Reform
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) \3\
requires that an agency prepare a budgetary impact statement before
promulgating a rule that includes a Federal mandate that may result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. If a budgetary impact statement is required, section 205 of UMRA
also requires an agency to identify and consider a reasonable number of
regulatory alternatives before promulgating a rule.\4\ However, the
UMRA applies only to rules for which an agency publishes a general
notice of proposed rulemaking. As discussed above, HUD has determined,
for good cause, that prior notice and public comment is not required on
this rule and, therefore, the UMRA does not apply to this final rule.
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\3\ 2 U.S.C. 1532.
\4\ 2 U.S.C. 1535.
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Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') (64 FR 43255)
prohibits an agency from publishing any rule that has federalism
implications if the rule either imposes substantial direct compliance
costs on State and local
[[Page 24420]]
governments and is not required by statute, or the rule preempts State
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This rule will not have federalism
implications and would not impose substantial direct compliance costs
on State and local governments or preempt State law within the meaning
of the Executive order.
Environmental Review
This final rule does not direct, provide for assistance or loan and
mortgage insurance for, or otherwise govern, or regulate, real property
acquisition, disposition, leasing, rehabilitation, alteration,
demolition, or new construction, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this
final rule is categorically excluded from environmental review under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
List of Subjects
24 CFR Part 28
Administrative practice and procedure, Claims, Fraud, Penalties.
24 CFR Part 30
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Mortgage insurance, Penalties.
24 CFR Part 87
Government contracts, Grant programs, Loan programs, Lobbying,
Penalties, Reporting and recordkeeping requirements.
24 CFR Part 180
Administrative practice and procedure, Aged, Civil rights, Fair
housing, Persons with disabilities, Investigations, Mortgages,
Penalties, Reporting and recordkeeping requirements.
24 CFR Part 3282
Administrative practice and procedure, Consumer protection,
Intergovernmental relations, Manufactured homes, Reporting and
recordkeeping requirements.
Accordingly, for the reasons described in the preamble, HUD amends
24 CFR parts 28, 30, 87, 180, and 3282 to read as follows:
PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF
1986
0
1. The authority citation for part 28 continues to read as follows:
Authority: 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C.
3535(d).
0
2. In Sec. 28.10, revise paragraphs (a)(1) introductory text and
(b)(1) to read as follows:
Sec. 28.10 Basis for civil penalties and assessments.
(a) * * *
(1) A civil penalty of not more than $12,537 may be imposed upon
any person who makes, presents, or submits, or causes to be made,
presented, or submitted, a claim that the person knows or has reason to
know:
* * * * *
(b) * * *
(1) A civil penalty of not more than $12,537 may be imposed upon
any person who makes, presents, or submits, or causes to be made,
presented, or submitted, a written statement that:
(i)(A) Asserts a material fact which is false, fictitious, or
fraudulent; or
(B)(1) Omits a material fact; and
(2) Is false, fictitious, or fraudulent as a result of such
omission;
(ii) In the case of a statement described in (b)(1)(i)(B) of this
section, is a statement in which the person making, presenting, or
submitting such statement has a duty to include such material fact; and
(iii) Contains or is accompanied by an express certification or
affirmation of the truthfulness and accuracy of the contents of the
statement.
* * * * *
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
0
3. The authority citation for part 30 continues to read as follows:
Authority: 12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, and 1735f-
15; 15 U.S.C. 1717a; 28 U.S.C. 1 note and 2461 note; 42 U.S.C.
1437z-1 and 3535(d).
0
4. In Sec. 30.20, revise paragraph (b) to read as follows:
Sec. 30.20 Ethical violations by HUD employees.
* * * * *
(b) Maximum penalty. The maximum penalty is $22,021 for each
violation.
0
5. In Sec. 30.25, revise paragraph (b) to read as follows:
Sec. 30.25 Violations by applicants for assistance.
* * * * *
(b) Maximum penalty. The maximum penalty is $22,021 for each
violation.
0
6. In Sec. 30.35, revise the first sentence in paragraph (c)(1) to
read as follows:
Sec. 30.35 Mortgagees and lenders.
* * * * *
(c)(1) * * * The maximum penalty is $11,011 for each violation, up
to a limit of $2,202,123 for all violations committed during any one-
year period. * * *
* * * * *
0
7. In Sec. 30.36, revise the first sentence in paragraph (c) to read
as follows:
Sec. 30.36 Other participants in FHA programs.
* * * * *
(c) * * * The maximum penalty is $11,011 for each violation, up to
a limit of $2,202,123 for all violations committed during any one-year
period. * * *
0
8. In Sec. 30.40, revise the first sentence in paragraph (c) to read
as follows:
Sec. 30.40 Loan guarantees for Indian housing.
* * * * *
(c) * * * The maximum penalty is $11,011 for each violation, up to
a limit of $2,202,123 for all violations committed during any one-year
period. * * *
0
9. In Sec. 30.45, revise paragraph (g) to read as follows:
Sec. 30.45 Multifamily and section 202 or 811 mortgagors.
* * * * *
(g) Maximum penalty. The maximum penalty for each violation under
paragraphs (c) and (f) of this section is $55,052.
* * * * *
0
10. In Sec. 30.50, revise the first sentence in paragraph (c) to read
as follows:
Sec. 30.50 GNMA issuers and custodians.
* * * * *
(c) * * * The maximum penalty is $11,011 for each violation, up to
a limit of $2,202,123 during any one-year period. * * *
0
11. In Sec. 30.60, revise paragraph (c) to read as follows:
Sec. 30.60 Dealers or sponsored third-party originators.
* * * * *
(c) Amount of penalty. The maximum penalty is $11,011 for each
violation, up to a limit for any particular person of $2,202,123 during
any one-year period.
0
12. In Sec. 30.65, revise paragraph (b) to read as follows:
[[Page 24421]]
Sec. 30.65 Failure to disclose lead-based paint hazards.
* * * * *
(b) Amount of penalty. The maximum penalty is $19,507 for each
violation.
0
13. In Sec. 30.68, revise paragraph (c) to read as follows:
Sec. 30.68 Section 8 owners.
* * * * *
(c) Maximum penalty. The maximum penalty for each violation under
this section is $42,788.
* * * * *
PART 87--NEW RESTRICTIONS ON LOBBYING
0
14. The authority citation for part 87 continues to read as follows:
Authority: 28 U.S.C. 1 note; 31 U.S.C. 1352; 42 U.S.C. 3535(d).
0
15. In Sec. 87.400, revise paragraphs (a), (b), and (e) to read as
follows:
Sec. 87.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $22,021 and not more than
$220,213 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B of this part) to be filed or amended if required herein,
shall be subject to a civil penalty of not less than $22,021 and not
more than $220,213 for each such failure.
* * * * *
(e) First offenders under paragraph (a) or (b) of this section
shall be subject to a civil penalty of $22,021, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $22,021 and $220,213 as
determined by the agency head or his or her designee.
* * * * *
PART 180--CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS
MATTERS
0
16. The authority citation for part 180 continues to read as follows:
Authority: 28 U.S.C. 1 note; 29 U.S.C. 794; 42 U.S.C. 2000d-1,
3535(d), 3601-3619, 5301-5320, and 6103.
0
17. In Sec. 180.671, revise paragraphs (a)(1) through (3) to read as
follows:
Sec. 180.671 Assessing civil penalties for Fair Housing Act cases.
(a) * * *
(1) $23,011, if the respondent has not been adjudged in any
administrative hearing or civil action permitted under the Fair Housing
Act or any State or local fair housing law, or in any licensing or
regulatory proceeding conducted by a Federal, State, or local
governmental agency, to have committed any prior discriminatory housing
practice.
(2) $57,527, if the respondent has been adjudged in any
administrative hearing or civil action permitted under the Fair Housing
Act, or under any State or local fair housing law, or in any licensing
or regulatory proceeding conducted by a Federal, State, or local
government agency, to have committed one other discriminatory housing
practice and the adjudication was made during the 5-year period
preceding the date of filing of the charge.
(3) $115,054, if the respondent has been adjudged in any
administrative hearings or civil actions permitted under the Fair
Housing Act, or under any State or local fair housing law, or in any
licensing or regulatory proceeding conducted by a Federal, State, or
local government agency, to have committed two or more discriminatory
housing practices and the adjudications were made during the 7-year
period preceding the date of filing of the charge.
* * * * *
PART 3282--MANUFACTURED HOME PROCEDURAL AND ENFORCEMENT REGULATIONS
0
18. The authority citation for part 3282 continues to read as follows:
Authority: 15 U.S.C. 2967; 42 U.S.C. 3535(d), 5403, and 5424.
0
19. Revise Sec. 3282.10 to read as follows:
Sec. 3282.10 Civil and criminal penalties.
Failure to comply with these regulations may subject the party in
question to the civil and criminal penalties provided for in section
611 of the Act, 42 U.S.C. 5410. The maximum amount of penalties imposed
under section 611 of the Act shall be $3,198 for each violation, up to
a maximum of $3,997,550 for any related series of violations occurring
within one year from the date of the first violation.
Damon Y. Smith,
General Counsel.
[FR Doc. 2022-08768 Filed 4-25-22; 8:45 am]
BILLING CODE 4210-67-P