Adjustment of Civil Monetary Penalty Amounts for 2019

Citation84 FR 9451
Record Number2019-04898
Published date15 March 2019
SectionRules and Regulations
CourtHousing And Urban Development Department
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.
Rules and Regulations Federal Register
9451
Vol. 84, No. 51
Friday, March 15, 2019
1
Office of Management and Budget, M–19–04,
Memorandum for the Heads of Executive
Departments and Agencies, Implementation of
Penalty Inflation Adjustments for 2019, Pursuant to
the Federal Civil Penalties Inflation Adjustment Act
Improvements Act of 2015. (https://
www.whitehouse.gov/wp-content/uploads/2017/11/
m_19_04.pdf). (October 2018 CPI–U (252.885)/
October 2017 CPI–U (246.663) = 1.02522.)
2
28 U.S.C. 2461 note.
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Parts 28, 30, 87, 180, and 3282
[Docket No. FR–6139–F–01]
RIN 2501–AD90
Adjustment of Civil Monetary Penalty
Amounts for 2019
AGENCY
: Office of the General Counsel,
HUD.
ACTION
: Final rule.
SUMMARY
: This rule provides for 2019
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.
DATES
: Effective date for 2019 inflation
adjustment: April 15, 2019.
FOR FURTHER INFORMATION CONTACT
:
Ariel Pereira, Associate General
Counsel, Office of Legislation and
Regulations, Department of Housing and
Urban Development, 451 7th Street SW,
200, 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
Information Relay Service, toll-free, at
800–877–8339.
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 on rules. 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 2019.
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 2018 is
1.02522.
1
Pursuant to the 2015 Act,
adjustments are rounded to the nearest
dollar.
2
II. This Final Rule
This rule makes the required 2019
inflation adjustment of civil penalty
amounts. Since HUD is not applying
these adjustments retroactively, the
2019 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 2019 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
2018 adjustment (83 FR 32790, July 16,
2018). In the fifth column (‘‘2019
Adjusted Amount’’), HUD lists the
penalty after applying the 2019 inflation
adjustment.
Description Statutory citation
Regulatory
citation
(24 CFR) Previous amount 2019 adjusted amount
False Claims ...................... Omnibus Budget Reconciliation Act of
1986 (31 U.S.C. 3802(a)(1)). § 28.10(a) $11,181 .............................. $11,463.
False Statements ............... Omnibus Budget Reconciliation Act of
1986 (31 U.S.C. 3802(b)(1)). § 28.10(b) $11,181 .............................. $11,463.
Advance Disclosure of
Funding. Department of Housing and Urban De-
velopment Act (42 U.S.C. 3537a(c)). § 30.20 $19,639 .............................. $20,134.
Disclosure of Subsidy
Layering. Department of Housing and Urban De-
velopment Act (42 U.S.C. 3545(f)). § 30.25 $19,639 .............................. $20,134.
FHA Mortgagees and
Lenders Violations. HUD Reform Act of 1989 (12 U.S.C.
1735f–14(a)(2)). § 30.35 Per Violation: $9,819 .........
Per Year: $1,963,870 ........ Per Violation: $10,067
Per Year: $2,013,399.
Other FHA Participants
Violations. HUD Reform Act of 1989 (12 U.S.C.
1735f–14(a)(2)). § 30.36 Per Violation: $9,819 .........
Per Year: $1,963,870 ........ Per Violation: $10,067
Per Year: $2,013,399.
Indian Loan Mortgagees
Violations. Housing Community Development Act of
1992 (12 U.S.C. 1715z–13a(g)(2)). §30.40 Per Violation: $9,819 .........
Per Year: $1,963,870 ........ Per Violation: $10,067
Per Year: $2,013,399.
Multifamily & Section 202
or 811 Owners Violations. HUD Reform Act of 1989 (12 U.S.C.
1735f–15(c)(2)). § 30.45 $49,096 .............................. $50,334.
Ginnie Mae Issuers &
Custodians Violations. HUD Reform Act of 1989 (12 U.S.C.
1723i(b)). § 30.50 Per Violation: $9,819 .........
Per Year: $1,963,870 ........ Per Violation: $10,067
Per Year: $2,013,399.
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3
2 U.S.C. 1532.
4
2 U.S.C. 1534.
Description Statutory citation
Regulatory
citation
(24 CFR) Previous amount 2019 adjusted amount
Title I Broker & Dealers
Violations. HUD Reform Act of 1989 (12 U.S.C.
1703). § 30.60 Per Violation: $9,819 .........
Per Year: $1,963,870 ........ Per Violation: $10,067
Per Year: $2,013,399.
Lead Disclosure Violation .. Title X—Residential Lead-Based Paint
Hazard Reduction Act of 1992 (42
U.S.C. 4852d(b)(1)).
§ 30.65 $17,395 .............................. $17,834.
Section 8 Owners Viola-
tions. Multifamily Assisted Housing Reform
and Affordability Act of 1997 (42
U.S.C. 1437z–1(b)(2)).
§ 30.68 $38,159 .............................. $39,121.
Lobbying Violation ............. The Lobbying Disclosure Act of 1995 (31
U.S.C. 1352). § 87.400 Min: $19,639 ......................
Max: $196,387 ................... Min: $20,134
Max: $201,340.
Fair Housing Act Civil Pen-
alties. Fair Housing Act (42 U.S.C. 3612(g)(3)) § 180.671(a) No Priors: $20,521 ............
One Prior: $51,302 ............
Two or More Priors:
$102,606.
No Priors: $21,039
One Prior: $52,596
Two or More Priors:
$105,194.
Manufactured Housing
Regulations Violation. Housing Community Development Act of
1974 (42 U.S.C. 5410). § 3282.10 Per Violation: $2,852 .........
Per Year: $3,565,045 ........ Per Violation: $2,924
Per Year: $3,654,955.
III. Justification for Final Rulemaking
for the 2019 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 2019 inflation adjustment,
which HUD does not have discretion to
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 2019 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 2019 inflation adjustments
are made in accordance with a
statutorily prescribed formula that does
not provide for agency discretion.
Accordingly, a delay in the effectiveness
of the 2019 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, 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), 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) 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. Executive Order
13771 (Reducing Regulation and
Controlling Regulatory Costs) requires
that for every new regulation issued, at
least two prior regulations be identified
for removal, and that the cost of planned
regulations be prudently managed and
controlled through a budgeting process.
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.
Moreover, as this rule is not a
significant regulatory action under
Executive Order 12866, it is not
considered an Executive Order 13771
regulatory action.
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
identity 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
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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.
Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule either imposes
substantial direct compliance costs on
State and local 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, Individuals 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
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).
2. In § 28.10, revise the introductory
text of paragraphs (a)(1) and (b)(1) to
read as follows:
§ 28.10 Basis for civil penalties and
assessments.
(a) Claims. (1) A civil penalty of not
more than $11,463 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) Statements. (1) A civil penalty of
not more than $11,463 may be imposed
upon any person who makes, presents,
or submits, or causes to be made,
presented, or submitted, a written
statement that:
* * * * *
PART 30—CIVIL MONEY PENALTIES:
CERTAIN PROHIBITED CONDUCT
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).
4. In § 30.20, revise paragraph (b) to
read as follows:
§ 30.20 Ethical violations by HUD
employees.
* * * * *
(b) Maximum penalty. The maximum
penalty is $20,134 for each violation.
5. In § 30.25, revise paragraph (b) to
read as follows:
§ 30.25 Violations by applicants for
assistance.
* * * * *
(b) Maximum penalty. The maximum
penalty is $20,134 for each violation.
6. In § 30.35, revise the first sentence
in paragraph (c)(1) to read as follows:
§ 30.35 Mortgagees and lenders.
* * * * *
(c)(1) Amount of penalty. The
maximum penalty is $10,067 for each
violation, up to a limit of $2,013,399 for
all violations committed during any
one-year period. * * *
* * * * *
7. In § 30.36, revise the first sentence
in paragraph (c) to read as follows:
§ 30.36 Other participants in FHA
programs.
* * * * *
(c) Amount of penalty. The maximum
penalty is $10,067 for each violation, up
to a limit of $2,013,399 for all violations
committed during any one-year period.
***
8. In § 30.40, revise the first sentence
in paragraph (c) to read as follows:
§ 30.40 Loan guarantees for Indian
housing.
* * * * *
(c) Amount of penalty. The maximum
penalty is $10,067 for each violation, up
to a limit of $2,013,399 for all violations
committed during any one-year period.
***
9. In § 30.45, revise paragraph (g) to
read as follows:
§ 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
$50,334.
* * * * *
10. In § 30.50, revise the first sentence
in paragraph (c) to read as follows:
§ 30.50 GNMA issuers and custodians.
* * * * *
(c) Amount of penalty. The maximum
penalty is $10,067 for each violation, up
to a limit of $2,013,399 during any one-
year period. * * *
11. In § 30.60, revise paragraph (c) to
read as follows:
§ 30.60 Dealers or sponsored third-party
originators.
* * * * *
(c) Amount of penalty. The maximum
penalty is $10,067 for each violation, up
to a limit for any particular person of
$2,013,399 during any one-year period.
12. In § 30.65, revise paragraph (b) to
read as follows:
§ 30.65 Failure to disclose lead-based
paint hazards.
* * * * *
(b) Amount of penalty. The maximum
penalty is $17,834 for each violation
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13. In § 30.68, revise paragraph (c) to
read as follows:
§ 30.68 Section 8 owners.
* * * * *
(c) Maximum penalty. The maximum
penalty for each violation under this
section is $39,121.
* * * * *
PART 87—NEW RESTRICTIONS ON
LOBBYING
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).
15. In § 87.400, revise paragraphs (a),
(b), and (e) to read as follows:
§ 87.400 Penalties.
(a) Any person who makes an
expenditure prohibited herein shall be
subject to a civil penalty of not less than
$20,134 and not more than $201,340 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
$20,134 and not more than $201,340 for
each such failure.
* * * * *
(e) First offenders under paragraph (a)
or (b) of this section shall be subject to
a civil penalty of $20,134, absent
aggravating circumstances. Second and
subsequent offenses by persons shall be
subject to an appropriate civil penalty
between $20,134 and $201,340 as
determined by the agency head or his or
her designee.
* * * * *
PART 180—CONSOLIDATED HUD
HEARING PROCEDURES FOR CIVIL
RIGHTS MATTERS
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.
17. In § 180.671, revise paragraphs
(a)(1) through (3) to read as follows:
§ 180.671 Assessing civil penalties for Fair
Housing Act cases.
(a) * * *
(1) $21,039, 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) $52,596, 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) $105,194, 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
18. The authority citation for part
3282 is revised to read as follows:
Authority: 28 U.S.C. 1 note; 28 U.S.C.
2461 note; 42 U.S.C. 3535(d) and 5424.
19. Revise § 3282.10 to read as
follows:
§ 3282.10 Civil and criminal penalties.
Failure to comply with this part 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 $2,924 for each violation, up to
a maximum of $3,654,955 for any
related series of violations occurring
within one year from the date of the first
violation.
Dated: March 12, 2019.
J. Paul Compton, Jr.,
General Counsel.
[FR Doc. 2019–04898 Filed 3–14–19; 8:45 am]
BILLING CODE 4210–67–P
PENSION BENEFIT GUARANTY
CORPORATION
29 CFR Parts 4022 and 4044
Allocation of Assets in Single-
Employer Plans; Benefits Payable in
Terminated Single-Employer Plans;
Interest Assumptions for Valuing and
Paying Benefits
AGENCY
: Pension Benefit Guaranty
Corporation.
ACTION
: Final rule.
SUMMARY
: This final rule amends the
Pension Benefit Guaranty Corporation’s
regulations on Benefits Payable in
Terminated Single-Employer Plans and
Allocation of Assets in Single-Employer
Plans to prescribe certain interest
assumptions under the benefit payments
regulation for plans with valuation dates
in April 2019 and interest assumptions
under the asset allocation regulation for
plans with valuation dates in the second
quarter of 2019. These interest
assumptions are used for valuing
benefits and paying certain benefits
under terminating single-employer
plans covered by the pension insurance
system administered by PBGC.
DATES
: Effective April 1, 2019.
FOR FURTHER INFORMATION CONTACT
:
Melissa Rifkin (rifkin.melissa@
PBGC.gov), Attorney, Regulatory Affairs
Division, Pension Benefit Guaranty
Corporation, 1200 K Street NW,
Washington, DC 20005, 202–326–4400,
ext. 6563. (TTY users may call the
Federal relay service toll free at 1–800–
877–8339 and ask to be connected to
202–326–4400, ext. 6563.)
SUPPLEMENTARY INFORMATION
: PBGC’s
regulations on Allocation of Assets in
Single-Employer Plans (29 CFR part
4044) and Benefits Payable in
Terminated Single-Employer Plans (29
CFR part 4022) prescribe actuarial
assumptions—including interest
assumptions—for valuing and paying
plan benefits under terminating single-
employer plans covered by title IV of
the Employee Retirement Income
Security Act of 1974 (ERISA). The
interest assumptions in the regulations
are also published on PBGC’s website
(http://www.pbgc.gov).
Lump Sum Interest Assumption
PBGC uses the interest assumptions in
appendix B to part 4022 (‘‘Lump Sum
Interest Rates for PBGC Payments’’) to
determine whether a benefit is payable
as a lump sum and to determine the
amount to pay as a lump sum. Because
some private-sector pension plans use
these interest rates to determine lump
sum amounts payable to plan
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