Proposed Rule2022-20311
Adjustment of Civil Monetary Penalty Amounts: Request for Comments
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 21, 2022
Issuing agencies
Housing and Urban Development Department
Abstract
Consistent with the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 ("2015 Act"), HUD annually publishes a final rule adjusting its civil money penalty amounts for inflation according to the formula provided by the 2015 Act. In these rules, HUD does not apply the adjustments retroactively and provides that the inflation-adjusted penalty amounts apply to violations occurring on or after the rule's effective date. HUD is considering revising this approach, however, and annually applying inflation-adjusted penalty amounts to violations assessed after the date of inflation, if the violation occurred after the enactment of the 2015 Act. Through this request for comments, HUD seeks public input on the impact of applying inflation-adjusted penalty amounts on the date the penalty is assessed rather than the date of the violation.
Full Text
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<title>Federal Register, Volume 87 Issue 182 (Wednesday, September 21, 2022)</title>
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[Federal Register Volume 87, Number 182 (Wednesday, September 21, 2022)]
[Proposed Rules]
[Pages 57655-57657]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20311]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 28, 30, 87, 180, and 3282
[Docket No. FR-6346-N-01]
Adjustment of Civil Monetary Penalty Amounts: Request for
Comments
AGENCY: Office of the General Counsel, HUD.
ACTION: Request for comments.
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SUMMARY: Consistent with the Federal Civil Penalties Inflation
Adjustment Act of 1990, as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (``2015 Act''), HUD
annually publishes a final rule adjusting its civil money penalty
amounts for inflation according to the formula provided by the 2015
Act. In these rules, HUD does not apply the adjustments retroactively
and provides that the inflation-adjusted penalty amounts apply to
violations occurring on or after the rule's effective date. HUD is
considering revising this approach, however, and annually applying
inflation-adjusted penalty amounts to violations assessed after the
date of inflation, if the violation occurred after the enactment of the
2015 Act. Through this request for comments, HUD seeks public input on
the impact of applying inflation-adjusted penalty amounts on the date
the penalty is assessed rather than the date of the violation.
DATES: Comments are due on or before: November 21, 2022.
ADDRESSES: Interested persons are invited to submit comments regarding
[[Page 57656]]
this request. All submissions must refer to the above docket number and
title. There are two methods for submitting public comments:
1. Electronic Submission of Comments. Interested persons may submit
comments electronically through the Federal eRulemaking Portal at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>. HUD strongly encourages commenters to
submit comments electronically. Electronic submission of comments
allows the author maximum time to prepare and submit a comment, ensures
timely receipt by HUD, and enables HUD to make them immediately
available to the public. Comments submitted electronically through the
<a href="https://www.regulations.gov">https://www.regulations.gov</a> website can be viewed by other submitters
and interested members of the public. Commenters should follow
instructions provided on that site to submit comments electronically.
2. Submission of Comments by Mail. Members of the public may submit
comments by mail to the Regulations Division, Office of General
Counsel, Department of Housing and Urban Development, 451 7th Street
SW, Room 10276, Washington, DC 20410-0500. Due to security measures at
all federal agencies, however, submission of comments by standard mail
often results in delayed delivery. To ensure timely receipt of
comments, HUD recommends that comments submitted by standard mail be
submitted at least two weeks in advance of the deadline. HUD will make
all comments received by mail available to the public at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
No Facsimile Comments. Facsimile (FAX) comments will not be
accepted.
Public Inspection of Public Comments. All properly submitted
comments and communications regarding this document submitted to HUD
are available for public inspection and copying between 8 a.m. and 5
p.m. weekdays at the above address. Due to security measures at the HUD
Headquarters building, an advance appointment to review the public
comments must be scheduled by calling the Regulations Division at 202-
708-3055 (this is not a toll-free number). Hearing- or speech-impaired
individuals can dial 7-1-1 to access the Telecommunications Relay
Service (TRS), which permits users to make text-based calls, including
Text Telephone (TTY) and Speech to Speech (STS) calls. Copies of all
comments submitted are available for inspection and downloading at
<a href="http://www.regulations.gov">http://www.regulations.gov</a>.
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 202-708-3055 (this is not
a toll-free number). Hearing- or speech-impaired individuals can dial
7-1-1 to access the Telecommunications Relay Service (TRS), which
permits users to make text-based calls, including Text Telephone (TTY)
and Speech to Speech (STS) calls.
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Civil Penalties Inflation Adjustment Act Improvements
Act of 2015 (the 2015 Act) (Pub. L. 114-74, sec. 701, 129 Stat. 599),
amended the Federal Civil Penalties Inflation Adjustment Act of 1990
(Pub. L. 101- 410, 104 Stat. 890), to improve the effectiveness of
civil monetary penalties and to maintain their deterrent effect.
Specifically, the 2015 Act, codified at 28 U.S.C. 2461, note, requires
agencies with statutory authority to assess civil money penalties
(CMPs) and publish annual adjustments for inflation. Section 5 of the
2015 Act establishes the formula for calculating annual adjustments and
is tied to the Consumer Price Index for all Urban Consumers (CPI-U). In
accordance with the 2015 Act, annual adjustments after the initial
``catch-up'' adjustment may be issued ``notwithstanding section 553 of
Title 5, United States Code'', the notice and comment requirements of
the Administrative Procedure Act.
On June 15, 2016, HUD issued for public comment an interim rule,
pursuant to the 2015 Act, to amend CMP regulations (81 FR 38931). HUD
finalized the interim rule the following year in the Inflation Catch-up
Adjustment of Civil Monetary Penalty Amounts Final Rule and Adjustment
of Civil Monetary Penalty Amounts for 2017 (82 FR 24521). HUD's 2017
final rule stated that ``Since HUD is not applying these adjustments
retroactively, the 2016 increases being finalized apply to violations
occurring prior to the effective date of this final rule (and on and
after the effective date of the 2016 interim rule) and the 2017
increases apply to violations occurring on or after this rule's
effective date.''
Since the publication of the 2017 final rule, HUD has continued to
apply inflation-adjusted penalty amounts to violations occurring on or
after the rule's effective date each year.\1\ In addition, HUD has
implemented its adjusted penalty amounts uniformly across the several
programs for which it has authority to assess penalties.
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\1\ See Adjustment of Civil Monetary Penalty Amounts for 2018-
2022 at 83 FR 32790; 84 FR 9451; 85 FR 13041; 86 FR 14370; and 87 FR
24418.
HUD Statutory and Regulatory Authority for Imposition of Civil Money
Penalties
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Regulatory
Description Statutory citation citation (24 CFR)
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False Claims................... Omnibus Budget Sec. 28.10(a).
Reconciliation
Act of 1986 (31
U.S.C.
3802(a)(1)).
False Statements............... Omnibus Budget Sec. 28.10(b).
Reconciliation
Act of 1986 (31
U.S.C. 3802
(a)(2)).
Advance Disclosure of Funding.. Department of Sec. 30.20.
Housing and Urban
Development Act
(42 U.S.C.
3537a(c)).
Disclosure of Subsidy Layering. Department of Sec. 30.25.
Housing and Urban
Development Act
(42 U.S.C.
3545(f)).
FHA Mortgagees and Lenders HUD Reform Act of Sec. 30.35.
Violations. 1989 (12 U.S.C.
1735f-14(a)(2)).
Other FHA Participants HUD Reform Act of Sec. 30.36.
Violations. 1989 (12 U.S.C.
1735f-14(a)(2)).
Indian Home Loan Guarantee Housing Community Sec. 30.40.
Lender or Holder Violations. Development Act
of 1992 (12
U.S.C. 1715z-
13a(g)(2)).
Multifamily & Section 202 or HUD Reform Act of Sec. 30.45.
811 Owners Violations. 1989 (12 U.S.C.
1735f-15(c)(2)).
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Ginnie Mae Issuers & Custodians HUD Reform Act of Sec. 30.50.
Violations. 1989 (12 U.S.C.
1723i(a)).
Title I Broker & Dealers HUD Reform Act of Sec. 30.60.
Violations. 1989 (12 U.S.C.
1703).
Lead Disclosure Violation...... Title X-- Sec. 30.65.
Residential Lead-
Based Paint
Hazard Reduction
Act of 1992 (42
U.S.C.
4852d(b)(1)).
Section 8 Owners Violations.... Multifamily Sec. 30.68.
Assisted Housing
Reform and
Affordability Act
of 1997 (42
U.S.C. 1437z-
1(b)(2)).
Lobbying Violation............. The Lobbying Sec. 87.400.
Disclosure Act of
1995 (31 U.S.C.
1352).
Fair Housing Act Civil Fair Housing Act Sec. 180.671(a).
Penalties. (42 U.S.C.
3612(g)(3)).
Manufactured Housing Housing Community Sec. 3282.10.
Regulations Violation. Development Act
of 1974 (42
U.S.C. 5410).
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II. This Document
This document announces that HUD is considering revising its
implementation of the 2015 Act by providing that the adjusted penalty
amounts would apply to penalties assessed after the publication of the
adjustment, rather than to violations occurring after publication of
the adjustment, as long as the violation occurred after the enactment
of the 2015 Act. HUD is considering applying the inflation-adjusted
penalty amounts in this manner after revisiting Section 6 of the 2015
Act which provides that an ``increase under this Act in a civil
monetary penalty shall apply only to civil monetary penalties,
including those whose associated violation predate such increase, which
are assessed after the date the increase takes effect.'' 28 U.S.C.
2461, note. The Office of Management and Budget (``OMB'') guidance (M-
22-07) which provides the 2022 inflation multiplier also provides that
the adjusted penalty applies to ``penalties assessed after the
effective date of the applicable adjustment''.\2\ Finally, a review of
the penalty adjustments published by other federal agencies suggests
that they apply the inflation-adjusted penalty amounts to penalties
assessed after the date of the increase as long as the violation
occurred after the enactment of the 2015 Act.
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\2\ December 15, 2021, Memorandum for the Heads of Executive
Departments and Agencies (M-22-07) from Shalanda D. Young, Acting
Director, Office of Management and Budget, Implementation of Penalty
Inflation Adjustments for 2022, Pursuant to the Federal Civil
Penalties Inflation Adjustment Act Improvements Act of 2015 (OMB
Memorandum), at 4.
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III. Request for Public Comments
In considering the forthcoming 2023 fiscal year, HUD is considering
whether to revise its implementation of the 2015 Act to apply
inflation-adjusted penalty amounts on the date the penalty is assessed,
rather than the earlier date of the violation, and is requesting public
comment. HUD is interested in the impact of such a change, as well as
the impact of applying the inflation-adjusted penalty to the date of
assessment for some, but not all, programs.
Damon Smith,
General Counsel.
[FR Doc. 2022-20311 Filed 9-20-22; 8:45 am]
BILLING CODE 4210-67-P
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