[Federal Register Volume 76, Number 120 (Wednesday, June 22, 2011)]
[Rules and Regulations]
[Pages 36850-36851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15509]



[[Page 36849]]

Vol. 76

Wednesday,

No. 120

June 22, 2011

Part V





Department of Housing and Urban Development





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24 CFR Part 30





Adjustment of Civil Money Penalty Amount for Inflation; Final Rule

  Federal Register / Vol. 76 , No. 120 / Wednesday, June 22, 2011 / 
Rules and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 30

[Docket No. FR-5490-F-01]
RIN 2501-AD52


Adjustment of Civil Money Penalty Amount for Inflation

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: HUD is issuing this final rule to adjust for inflation the 
civil money penalty for failure to disclose lead-based paint hazards. 
This adjustment for inflation is required by the Debt Collection 
Improvement Act of 1996.

DATES: Effective Date: July 22, 2011.

FOR FURTHER INFORMATION CONTACT: Robert F. Weisberg, Acting Director, 
Lead Programs Enforcement Division, Office of Healthy Homes and Lead 
Hazard Control, Department of Housing and Urban Development, 451 7th 
Street, SW., Room 8236, Washington, DC 20410-3000, telephone number 
202-402-7687 (this is not a toll-free number). Hearing- or speech-
impaired individuals may access this number via TTY by calling the 
toll-free Federal Relay Service at 800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    Pursuant to section 4 of the Federal Civil Penalties Inflation 
Adjustment Act of 1990 (28 U.S.C. 2461 note) (FCPIAA), as amended by 
the Debt Collection Improvement Act of 1996 (31 U.S.C. 3701 note) 
(DCIA), each federal agency is required to adjust, by regulation, each 
civil money penalty provided by law within the jurisdiction of that 
agency. Each such regulation must be published in the Federal Register.
    Section 1018 of Title X of the Housing and Community Development 
Act of 1992 (42 U.S.C. 4852d) (Title X) and its implementing 
regulations at 24 CFR part 35, subpart A, requires disclosure of lead-
based paint in certain sale and leasing transactions of pre-1978 
housing (``Lead Disclosure Rule''). Section 1018(b)(1) of Title X (42 
U.S.C. 4852d(b)(1)), referencing Section 102 of the Department of 
Housing and Urban Development Reform Act of 1989 (42 U.S.C. 3545), 
provides a monetary penalty for violations of the Lead Disclosure Rule. 
HUD's regulations at 24 CFR 30.65(b) currently set the maximum penalty 
for such violations at $11,000.
    The formula for determining the specific adjustment of civil money 
penalties for inflation is nondiscretionary and is determined by 
section 5 of the FCPIAA. The adjustment is based on the change in the 
cost-of-living increase, which is defined in the statute as based on 
the percentage change, if any, in the Consumer Price Index from June of 
the calendar year in which the civil money penalty was last set to June 
of the calendar year preceding the adjustment. The statute also states 
specific rules for rounding, and provides that adjusted civil money 
penalties can only be applied prospectively; that is, only to 
violations that occur after the date the increase takes effect.

II. This Final Rule

    This final rule applies the statutory formula to the current 
$11,000 maximum penalty to arrive at the updated maximum penalty. 
Applying the statutory formula to determine the amount of the 
adjustment is a four-step process. The first step entails determining 
the inflation adjustment factor. This is done by calculating the 
percentage increase by which the Consumer Price Index for all urban 
consumers (CPI-U) for the month of June of the calendar year preceding 
the adjustment (i.e., June 2010) exceeds the CPI-U for the month of 
June of the calendar year in which the amount of such civil monetary 
penalty was last set or adjusted (i.e., June 1996) (the civil monetary 
penalty for the Lead Disclosure Rule was last set on September 24, 
1996, at 61 FR 50207). CPI-U values are available at a Department of 
Labor, Bureau of Labor Statistics file transfer protocol site, ftp://ftp.bls.gov/pub/special.requests/cpi/cpiai.txt. For June 2010 and June 
1996, the CPI-U values are 217.965 and 156.7, respectively. Applying 
these values, the inflation factor is (217.965/156.7)-1 = 0.39097 or 
39.097 percent.
    Once the inflation adjustment factor is determined, the second step 
is to multiply the inflation adjustment factor by the current civil 
penalty amount to calculate the inflation increase. The inflation 
increase is $4,301 (i.e., 0.39097 x $11,000). The third step is to 
round the inflation increase according to Section 5(a) of the FCPIAA as 
amended by the DCIA. Under Section 5(a), for penalties greater than 
$10,000 but less than or equal to $100,000, the increase must be 
rounded to the nearest multiple of $5,000. As such, the inflation 
increase here of $4,301 must be rounded to $5,000.
    Once the inflation increase has been rounded, the last step is to 
add the rounded inflation increase to the current civil penalty amount 
to obtain the new, inflation-adjusted civil penalty amount. In this 
case, that new amount is $16,000 (i.e., the current $11,000, plus 
$5,000 to account for inflation).
    Accordingly, this rule amends 24 CFR 30.65(b) to raise the maximum 
penalty that HUD may impose upon those individuals or entities who 
violate the Lead Disclosure Rule, from $11,000 to $16,000.
    Section 1018(b)(5) of Title X also authorizes the Environmental 
Protection Agency (EPA) to enforce Section 1018 (42 U.S.C. 4852d) 
requirements pursuant to Section 409 of the Toxic Substance and Control 
Act (TSCA) (15 U.S.C. 2689). This final rule sets the HUD penalty at 
the level already established by EPA (see 40 CFR 19.4).

III. Findings and Certifications

Justification for Final Rulemaking

    In general, HUD publishes a rule for public comment before issuing 
a rule for effect, in accordance with HUD's regulations on rulemaking 
at 24 CFR part 10. Part 10, however, provides in Sec.  10.1 for 
exceptions from that general rule where HUD finds good cause to omit 
advance notice and public participation. The good cause requirement is 
satisfied when the prior public procedure is ``impracticable, 
unnecessary, or contrary to the public interest.''
    HUD finds that good cause exists to publish this rule for effect 
without soliciting public comment, on the basis that prior public 
procedure is unnecessary. This final rule merely follows the statutory 
directive in the FCPIAA to make periodic increases in HUD's civil money 
penalties by applying the adjustment formula established in the 
statute. Accordingly, because calculation of the increases is mandated 
by statute, HUD exercises no discretion or any policy judgment in 
updating the regulations to reflect the maximum allowable penalties 
derived from application of the statutory instructions. HUD emphasizes 
that this rule addresses only the matter of the calculation of the 
maximum civil money penalty for the violations described in the 
regulations. This rule does not address the issue of the Secretary's 
discretion to impose or not to impose a penalty, nor the procedures 
that HUD must follow in initiating a civil money penalty action.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (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. Since this 
rule is published under an exception to notice

[[Page 36851]]

and comment rulemaking requirements, the Regulatory Flexibility Act 
does not apply.

Environmental Impact

    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. Furthermore, this rule is a statutorily required 
establishment of a rate and cost determination and related external 
administrative requirements or procedures that do not constitute a 
development decision that affects the physical condition of specific 
project areas or building sites. Accordingly, under 24 CFR 50.19(c)(1) 
and (c)(6), this rule is categorically excluded from the requirements 
of the National Environmental Policy Act (42 U.S.C. 4332 et seq.).

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 final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments and does not preempt 
state law within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments and the private sector. This final rule does not 
impose any Federal mandates on any State, local, or tribal governments 
or the private sector within the meaning of UMRA.

List of Subjects in 24 CFR Part 30

    Administrative practice and procedure, Grant programs-housing and 
community development, Loan programs-housing and community development, 
Mortgages, Penalties.

    Accordingly, for the reasons stated in the preamble, HUD amends 24 
CFR part 30 as follows:

PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT

0
1. The authority citation for 24 CFR 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. 2461 note; 42 U.S.C. 1437z-1 and 
3535(d).


0
2. Revise Sec.  30.65(b) to read as follows:


Sec.  30.65  Failure to disclose lead-based paint hazards.

* * * * *
    (b) Amount of penalty. The maximum penalty is $16,000 for each 
violation.

    Dated: June 11, 2011.
Shaun Donovan,
Secretary.
[FR Doc. 2011-15509 Filed 6-21-11; 8:45 am]
BILLING CODE 4210-67-P