Rules of Practice and Procedure; Civil Money Penalty Inflation Adjustment, 7493-7496 [2021-01576]
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7493
Rules and Regulations
Federal Register
Vol. 86, No. 18
Friday, January 29, 2021
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.
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Parts 103, 106, 204, 211, 212,
214, 216, 217, 223, 235, 236, 240, 244,
245, 245a, 248, 264, 274a, 286, 301, 319,
320, 322, 324, 334, 341, 343a, 343b, and
392
[CIS No. 2627–18; DHS Docket No. USCIS–
2019–0010]
RIN 1615–AC18
U.S. Citizenship and Immigration
Services Fee Schedule and Changes to
Certain Other Immigration Benefit
Request Requirements
U.S. Citizenship and
Immigration Services, Department of
Homeland Security.
ACTION: Notification of preliminary
injunction.
AGENCY:
U.S. Citizenship and
Immigration Services (USCIS) is issuing
this document to inform the public of
two preliminary injunctions ordered by
Federal district courts affecting the
Department of Homeland Security’s (the
Department, or DHS) final rule entitled
‘‘U.S. Citizenship and Immigration
Services Fee Schedule and Changes to
Certain Other Immigration Benefit
Request Requirements.’’
DATES: The court orders were effective
September 29, 2020 and October 8,
2020.
SUMMARY:
For
technical questions only: Kika Scott,
Chief Financial Officer, U.S. Citizenship
and Immigration Services, Department
of Homeland Security, 5900 Capital
Gateway Drive, Camp Springs, MD
20588–0009, telephone (240) 721–3000.
SUPPLEMENTARY INFORMATION: On August
3, 2020, the Department published a
final rule in the Federal Register at 85
FR 46788 entitled ‘‘U.S. Citizenship and
Immigration Services Fee Schedule and
Changes to Certain Other Immigration
Benefit Request Requirements’’ (the
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FOR FURTHER INFORMATION CONTACT:
VerDate Sep<11>2014
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‘‘Final Rule’’). The Final Rule was to be
effective October 2, 2020.
On August 20, 2020, the Immigrant
Legal Resource Center and other
plaintiffs filed a lawsuit in the U.S.
District Court for the Northern District
of California, Immigration Legal
Resource Center et al., v. Wolf, et al.,
20–cv–05883–JWS (‘‘ILRC v. Wolf’’),
seeking a court order to prohibit the
Department from implementing or
enforcing the Final Rule. Plaintiffs
subsequently filed a motion for a
preliminary injunction and stay of the
effective date of the Final Rule.
On September 3, 2020, Northwest
Immigrant Rights Project (NWIRP) and
other plaintiffs in Nw. Immigrant Rts.
Project, et al., v. USCIS, No. 19–cv–3283
(RDM) (‘‘NWIRP v. USCIS’’), filed a
motion in the U.S. District Court for the
District of Columbia requesting
postponement of the effective date of
the Final Rule, stay of any
implementation or enforcement of the
Final Rule, and for a preliminary
injunction against implementation or
enforcement of the Final Rule.
On September 29, 2020, the U.S.
District Court for the Northern District
of California, in ILRC v. Wolf,
preliminarily enjoined DHS from
implementing or enforcing any part of
the Final Rule. See Immigration Legal
Resource Center et al., v. Wolf, et al.,
No. 20–cv–05883–JWS, 2020 WL
5798269 (N.D. Cal. Sept. 29, 2020).
On October 8, 2020, the U.S. District
Court for the District of Columbia
granted NWIRP’s motion for a
preliminary injunction. See NWIRP v.
USCIS, No. CV 19–3283 (RDM), 2020
WL 5995206 (D.D.C. Oct. 8, 2020).
The Department is complying with
the terms of these orders and is not
enforcing the regulatory changes set out
in the Final Rule. USCIS will continue
to accept the fees that were in place
prior to October 2, 2020, and follow the
guidance in place prior to October 2,
2020 to adjudicate fee waiver requests
as provided under the Adjudicator’s
Field Manual (AFM) Chapters 10.9 and
10.10.
Any further guidance and updates
regarding the subject litigation will be
posted on the USCIS website https://
www.uscis.gov/news/news-releases/
uscis-response-to-preliminary-
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injunction-of-fee-rule on an ongoing
basis.
Tracy L. Renaud,
Senior Official Performing the Duties of the
Director.
[FR Doc. 2021–02044 Filed 1–28–21; 8:45 am]
BILLING CODE 9111–97–P
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Parts 1209, 1217, and 1250
RIN 2590–AB14
Rules of Practice and Procedure; Civil
Money Penalty Inflation Adjustment
Federal Housing Finance
Agency.
ACTION: Final rule.
AGENCY:
The Federal Housing Finance
Agency (FHFA) is adopting this final
rule amending its Rules of Practice and
Procedure and other agency regulations
to adjust each civil money penalty
within its jurisdiction to account for
inflation, pursuant to 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 January 29, 2021, and
applicable beginning January 15, 2021.
FOR FURTHER INFORMATION CONTACT:
Frank R. Wright, Assistant General
Counsel, at (202) 649–3087,
Frank.Wright@fhfa.gov (not a toll-free
number); Federal Housing Finance
Agency, 400 7th Street SW, Washington,
DC 20219. The telephone number for
the Telecommunications Device for the
Deaf is: (800) 877–8339 (TDD only).
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
FHFA is an independent agency of the
Federal government, and the financial
safety and soundness regulator of the
Federal National Mortgage Association
(Fannie Mae) and the Federal Home
Loan Mortgage Corporation (Freddie
Mac) (collectively, the Enterprises), as
well as the Federal Home Loan Banks
(collectively, the Banks) and the Office
of Finance under authority granted by
the Federal Housing Enterprises
Financial Safety and Soundness Act of
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Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Rules and Regulations
1992 (Safety and Soundness Act).1
FHFA oversees the Enterprises and
Banks (collectively, the regulated
entities) and the Office of Finance to
ensure that they operate in a safe and
sound manner and maintain liquidity in
the housing finance market in
accordance with applicable laws, rules
and regulations. To that end, FHFA is
vested with broad supervisory
discretion and specific civil
administrative enforcement powers,
similar to such authority granted by
Congress to the Federal bank regulatory
agencies.2 Section 1376 of the Safety
and Soundness Act (12 U.S.C. 4636)
empowers FHFA to impose civil money
penalties under specific conditions.
FHFA’s Rules of Practice and Procedure
(12 CFR part 1209) (the Enforcement
regulations) govern cease and desist
proceedings, civil money penalty
assessment proceedings, and other
administrative adjudications.3 FHFA’s
Flood Insurance regulation (12 CFR part
1250) governs flood insurance
responsibilities as they pertain to the
Enterprises.4 FHFA’s Implementation of
the Program Fraud Civil Remedies Act
of 1986 regulation (12 CFR part 1217)
sets forth procedures for imposing civil
penalties and assessments under the
Program Fraud Civil Remedies Act (31
U.S.C. 3801 et seq.) on any person that
makes a false claim for property,
services or money from FHFA, or makes
a false material statement to FHFA in
connection with a claim, where the
amount involved does not exceed
$150,000.5
The Adjustment Improvements Act
The Federal Civil Penalties Inflation
Adjustment Act of 1990 (Inflation
Adjustment Act), as amended by the
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (Adjustment Improvements Act),
requires FHFA, as well as other federal
agencies with the authority to issue civil
money penalties (CMPs), to adjust by
regulation the maximum amount of each
CMP authorized by law that the agency
has jurisdiction to administer.6 The
Adjustment Improvements Act required
agencies to make an initial ‘‘catch-up’’
adjustment of their CMPs upon the
statute’s enactment,7 and further
requires agencies to make additional
adjustments on an annual basis
following the initial adjustment.8
The Adjustment Improvements Act
sets forth the formula that agencies must
apply when making annual adjustments,
based on the percent change between
the October Consumer Price Index for
All Urban Consumers (the CPI–U)
preceding the date of the last adjustment
and the October CPI–U for the year
before that.
II. Description of the Rule
This final rule adjusts the maximum
penalty amount within each of the three
tiers specified in 12 U.S.C. 4636 by
amending the table contained in 12 CFR
1209.80 of the Enforcement regulations
to reflect the new adjusted maximum
penalty amount that FHFA may impose
upon a regulated entity or any entityaffiliated party within each tier. The
increases in maximum penalty amounts
contained in this final rule may not
necessarily affect the amount of any
CMP that FHFA may seek for a
particular violation, which may not be
the maximum that the law allows;
FHFA would calculate each CMP on a
U.S. Code citation
case-by-case basis in light of a variety of
factors.9 This rule also adjusts the
maximum penalty amounts for
violations under the FHFA Flood
Insurance regulation by amending the
text of 12 CFR 1250.3 to reflect the new
adjusted maximum penalty amount that
FHFA may impose for violations under
that regulation. This rule also adjusts
the maximum amounts for civil money
penalties under the Program Fraud Civil
Remedies Act by amending the text of
12 CFR 1217.3 to reflect the new
adjusted maximum penalty amount that
FHFA may impose for violations under
that regulation.
The Adjustment Improvements Act
directs federal agencies to calculate each
annual CMP adjustment as the percent
change between the CPI–U for the
previous October and the CPI–U for
October of the calendar year before.10
The maximum CMP amounts for FHFA
penalties were last adjusted in 2020.11
Since FHFA is making this round of
adjustments in calendar year 2021, and
the maximum CMP amounts were last
set in calendar year 2020, the inflation
adjustment amount for each maximum
CMP amount was calculated by
comparing the CPI–U for October 2019
with the CPI–U for October 2020,
resulting in an inflation factor of
1.01182. For each maximum CMP
calculation, the product of this inflation
adjustment and the previous maximum
penalty amount was then rounded to the
nearest whole dollar as required by the
Adjustment Improvements Act, and was
then summed with the previous
maximum penalty amount to determine
the new adjusted maximum penalty
amount.12 The tables below set out these
items accordingly.
Previous
maximum
penalty amount
Description
Rounded
inflation
increase
New adjusted
maximum
penalty amount
Enforcement Regulations
12 U.S.C. 4636(b)(1) ............
12 U.S.C. 4636(b)(2) ............
12 U.S.C. 4636(b)(4) ............
First Tier ............................................................................
Second Tier .......................................................................
Third Tier (Entity-affiliated party or Regulated entity) ......
11,883
59,413
2,376,518
140
702
28,090
12,023
60,115
2,404,608
11,665
11,665
138
138
11,803
11,803
578
7
585
Program Fraud Civil Remedies Regulation
31 U.S.C. 3802(a)(1) ............
31 U.S.C. 3802(a)(2) ............
Maximum penalty per false claim .....................................
Maximum penalty per false statement ..............................
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Flood Insurance Regulation
42 U.S.C. 4012a(f)(5) ...........
Maximum penalty per violation .........................................
1 See Safety and Soundness Act, 12 U.S.C. 4513
and 4631–4641.
2 Id.
3 See 12 CFR part 1209.
4 See 12 CFR part 1250.
5 See generally, 31 U.S.C. 3801 et seq.
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6 See
28 U.S.C. 2461 note.
promulgated its catch-up adjustment of
its CMPs with an interim final rule published July
1, 2016. 81 FR 43028.
8 FHFA promulgated its most recent annual
adjustment of its CMP with a final rule published
January 28, 2020. 85 FR 4903.
7 FHFA
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9 See, e.g., 12 CFR 1209.7(c); FHFA Enforcement
Policy, AB 2013–03 (May 31, 2013).
10 28 U.S.C. 2461 note.
11 See 85 FR 4903 (January 28, 2020).
12 28 U.S.C. 2461 note.
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Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Rules and Regulations
Description
42 U.S.C. 4012a(f)(5) ...........
Maximum total penalties assessed against an Enterprise
in a calendar year.
Rounded
inflation
increase
166,661
New adjusted
maximum
penalty amount
1970
168,631
III. Differences Between the Federal
Home Loan Banks and the Enterprises
Accordingly, FHFA is adopting these
amendments as a final rule.
information has been submitted to OMB
for review.
When promulgating any regulation
that may have future effect relating to
the Banks, the Director is required by
section 1313(f) of the Safety and
Soundness Act to consider the
differences between the Banks and the
Enterprises with respect to the Banks’
cooperative ownership structure,
mission of providing liquidity to
members, affordable housing and
community development mission,
capital structure, and joint and several
liability (12 U.S.C. 4513(f)).13 The
Director considered the differences
between the Banks and the Enterprises,
as they relate to the above factors, and
determined that this final rule is
appropriate. The inflation adjustments
effected by the final rule are mandated
by law, and the special features of the
Banks identified in section 1313(f) of
the Safety and Soundness Act can be
accommodated, if appropriate, along
with any other relevant factors, when
determining any actual penalties.
Regulatory Flexibility Act
Lists of Subjects
Pursuant to the Regulatory Flexibility
Act (RFA),15 an agency must prepare a
regulatory flexibility analysis for all
proposed and final rules that describes
the impact of the rule on small entities,
unless the head of an agency certifies
that the rule will not have ‘‘a significant
economic impact on a substantial
number of small entities.’’ However, the
RFA applies only to rules for which an
agency publishes a general notice of
proposed rulemaking pursuant to the
APA.16 As discussed above, FHFA has
determined for good cause that the APA
does not require a general notice of
proposed rulemaking for this rule. Thus,
the RFA does not apply to this final
rule.
12 CFR Part 1209
IV. Regulatory Impact
Administrative Procedure Act
FHFA finds good cause that notice
and an opportunity to comment on this
final rule are unnecessary under section
553(b) of the Administrative Procedure
Act (APA), 5 U.S.C. 553(b). The
Adjustment Improvements Act states
that the annual civil money penalty
adjustments shall be made
notwithstanding the rulemaking
provisions of 5 U.S.C. 553.14
Furthermore, this rulemaking conforms
with and is consistent with the statutory
directive set forth in the Adjustment
Improvements Act. As a result, there are
no issues of policy discretion about
which to seek public comment.
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Previous
maximum
penalty amount
U.S. Code citation
Congressional Review Act
The rule is not a ‘‘major rule’’ as
defined by the Congressional Review
Act, codified at 5 U.S.C. 801 et seq. The
rule will not result in: (1) An annual
effect on the economy of $100,000,000
or more; (2) a major increase in costs or
prices; or (3) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
the ability of United States-based
companies to compete with foreignbased companies.17
Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. 3501 et seq.) requires that
regulations involving the collection of
information receive clearance from the
Office of Management and Budget
(OMB). This rule contains no such
collection of information requiring OMB
approval under the Paperwork
Reduction Act. Consequently, no
Administrative practice and
procedure, Penalties.
12 CFR Part 1217
Civil remedies, Program fraud.
12 CFR Part 1250
Flood insurance, Governmentsponsored enterprises, Penalties,
Reporting and record keeping
requirements.
Accordingly, for the reasons stated in
the SUPPLEMENTARY INFORMATION and
under the authority of 12 U.S.C. 4513b
and 12 U.S.C. 4526, the Federal Housing
Finance Agency hereby amends
subchapters A and C of chapter XII of
Title 12 of the Code of Federal
Regulations as follows:
SUBCHAPTER A—ORGANIZATION
AND OPERATIONS
PART 1209—RULES OF PRACTICE
AND PROCEDURE
1. The authority citation for part 1209
continues to read as follows:
■
Authority: 5 U.S.C. 554, 556, 557, and 701
et seq.; 12 U.S.C. 1430c(d); 12 U.S.C. 4501,
4502, 4503, 4511, 4513, 4513b, 4517, 4526,
4566(c)(1) and (c)(7), 4581–4588, 4631–4641;
and 28 U.S.C. 2461 note.
■
2. Revise § 1209.80 to read as follows:
§ 1209.80
Inflation adjustments.
The maximum amount of each civil
money penalty within FHFA’s
jurisdiction, as set by the Safety and
Soundness Act and thereafter adjusted
in accordance with the Inflation
Adjustment Act, is as follows:
New adjusted
maximum
penalty amount
U.S. Code citation
Description
12 U.S.C. 4636(b)(1) ...............................
12 U.S.C. 4636(b)(2) ...............................
12 U.S.C. 4636(b)(4) ...............................
First Tier ....................................................................................................................
Second Tier ...............................................................................................................
Third Tier (Regulated Entity or Entity-Affiliated party) ..............................................
13 So in original; no paragraphs (d) and (e) were
enacted. See 12 U.S.C.A. 4513 n 1.
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14 28
16 5
15 5
17 5
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U.S.C. 2461 note, section 4(b)(2).
U.S.C. 603.
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U.S.C. 603(a), 604(a).
U.S.C. 804(2).
29JAR1
$12,023
60,115
2,404,608
7496
■
Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Rules and Regulations
3. Revise § 1209.81 to read as follows:
§ 1209.81
Applicability.
The inflation adjustments set out in
§ 1209.80 shall apply to civil money
penalties assessed in accordance with
the provisions of the Safety and
Soundness Act, 12 U.S.C. 4636, and
subparts B and C of this part, for
violations occurring on or after January
15, 2021.
PART 1217—PROGRAM FRAUD CIVIL
REMEDIES ACT
4. The authority citation for part 1217
continues to read as follows:
section against an Enterprise during any
calendar year not to exceed $168,631.
*
*
*
*
*
Mark A. Calabria,
Director, Federal Housing Finance Agency.
[FR Doc. 2021–01576 Filed 1–28–21; 8:45 am]
BILLING CODE 8070–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 97
■
Authority: 12 U.S.C. 4501; 12 U.S.C. 4526;
28 U.S.C. 2461 note; 31 U.S.C. 3801–3812.
5. Amend § 1217.3 by revising
paragraphs (a)(1) introductory text and
(b)(1) introductory text to read as
follows:
■
§ 1217.3 Basis for civil penalties and
assessments.
(a) * * *
(1) A civil penalty of not more than
$11,803 may be imposed upon a person
who makes a claim to FHFA for
property, services, or money where the
person knows or has reason to know
that the claim:
*
*
*
*
*
(b) * * *
(1) A civil penalty of up to $11,803
may be imposed upon a person who
makes a written statement to FHFA with
respect to a claim, contract, bid or
proposal for a contract, or benefit from
FHFA that:
*
*
*
*
*
SUBCHAPTER C—ENTERPRISES
PART 1250—FLOOD INSURANCE
6. The authority citation for part 1250
continues to read as follows:
■
Authority: 12 U.S.C. 4521(a)(4) and 4526;
28 U.S.C. 2461 note; 42 U.S.C. 4001 note; 42
U.S.C. 4012a(f)(3), (4), (5), (8), (9), and (10).
7. Amend § 1250.3 by revising
paragraph (c) to read as follows:
■
§ 1250.3
Civil money penalties.
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*
*
*
*
*
(c) Amount. The maximum civil
money penalty amount is $578 for each
violation that occurs before January 15,
2021, with total penalties not to exceed
$166,661. For violations that occur on or
after January 15, 2021, the civil money
penalty under this section may not
exceed $585 for each violation, with
total penalties assessed under this
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[Docket No. 31351; Amdt. No. 3940]
Standard Instrument Approach
Procedures, and Takeoff Minimums
and Obstacle Departure Procedures;
Miscellaneous Amendments
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
This rule amends, suspends,
or removes Standard Instrument
Approach Procedures (SIAPs) and
associated Takeoff Minimums and
Obstacle Departure Procedures for
operations at certain airports. These
regulatory actions are needed because of
the adoption of new or revised criteria,
or because of changes occurring in the
National Airspace System, such as the
commissioning of new navigational
facilities, adding new obstacles, or
changing air traffic requirements. These
changes are designed to provide for the
safe and efficient use of the navigable
airspace and to promote safe flight
operations under instrument flight rules
at the affected airports.
DATES: This rule is effective January 29,
2021. The compliance date for each
SIAP, associated Takeoff Minimums,
and ODP is specified in the amendatory
provisions.
The incorporation by reference of
certain publications listed in the
regulations is approved by the Director
of the Federal Register as of January 29,
2021.
ADDRESSES: Availability of matter
incorporated by reference in the
amendment is as follows:
SUMMARY:
For Examination
1. U.S. Department of Transportation,
Docket Ops-M30, 1200 New Jersey
Avenue SE, West Bldg., Ground Floor,
Washington, DC 20590–0001;
2. The FAA Air Traffic Organization
Service Area in which the affected
airport is located;
3. The office of Aeronautical
Navigation Products, 6500 South
PO 00000
Frm 00004
Fmt 4700
Sfmt 4700
MacArthur Blvd., Oklahoma City, OK
73169 or,
4. The National Archives and Records
Administration (NARA).
For information on the availability of
this material at NARA, email
fedreg.legal@nara.gov or go to: https://
www.archives.gov/federal-register/cfr/
ibr-locations.html.
Availability
All SIAPs and Takeoff Minimums and
ODPs are available online free of charge.
Visit the National Flight Data Center
online at nfdc.faa.gov to register.
Additionally, individual SIAP and
Takeoff Minimums and ODP copies may
be obtained from the FAA Air Traffic
Organization Service Area in which the
affected airport is located.
FOR FURTHER INFORMATION CONTACT:
Thomas J. Nichols, Flight Procedures
and Airspace Group, Flight
Technologies and Procedures Division,
Flight Standards Service, Federal
Aviation Administration. Mailing
Address: FAA Mike Monroney
Aeronautical Center, Flight Procedures
and Airspace Group, 6500 South
MacArthur Blvd., Registry Bldg 29,
Room 104, Oklahoma City, OK 73169.
Telephone: (405) 954–4164.
SUPPLEMENTARY INFORMATION: This rule
amends 14 CFR part 97 by amending the
referenced SIAPs. The complete
regulatory description of each SIAP is
listed on the appropriate FAA Form
8260, as modified by the National Flight
Data Center (NFDC)/Permanent Notice
to Airmen (P–NOTAM), and is
incorporated by reference under 5
U.S.C. 552(a), 1 CFR part 51, and 14
CFR 97.20. The large number of SIAPs,
their complex nature, and the need for
a special format make their verbatim
publication in the Federal Register
expensive and impractical. Further,
airmen do not use the regulatory text of
the SIAPs, but refer to their graphic
depiction on charts printed by
publishers of aeronautical materials.
Thus, the advantages of incorporation
by reference are realized and
publication of the complete description
of each SIAP contained on FAA form
documents is unnecessary. This
amendment provides the affected CFR
sections, and specifies the SIAPs and
Takeoff Minimums and ODPs with their
applicable effective dates. This
amendment also identifies the airport
and its location, the procedure and the
amendment number.
Availability and Summary of Material
Incorporated by Reference
The material incorporated by
reference is publicly available as listed
in the ADDRESSES section.
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[Federal Register Volume 86, Number 18 (Friday, January 29, 2021)]
[Rules and Regulations]
[Pages 7493-7496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01576]
=======================================================================
-----------------------------------------------------------------------
FEDERAL HOUSING FINANCE AGENCY
12 CFR Parts 1209, 1217, and 1250
RIN 2590-AB14
Rules of Practice and Procedure; Civil Money Penalty Inflation
Adjustment
AGENCY: Federal Housing Finance Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA) is adopting this
final rule amending its Rules of Practice and Procedure and other
agency regulations to adjust each civil money penalty within its
jurisdiction to account for inflation, pursuant to 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 January 29, 2021, and applicable beginning January 15,
2021.
FOR FURTHER INFORMATION CONTACT: Frank R. Wright, Assistant General
Counsel, at (202) 649-3087, [email protected] (not a toll-free
number); Federal Housing Finance Agency, 400 7th Street SW, Washington,
DC 20219. The telephone number for the Telecommunications Device for
the Deaf is: (800) 877-8339 (TDD only).
SUPPLEMENTARY INFORMATION:
I. Background
FHFA is an independent agency of the Federal government, and the
financial safety and soundness regulator of the Federal National
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage
Corporation (Freddie Mac) (collectively, the Enterprises), as well as
the Federal Home Loan Banks (collectively, the Banks) and the Office of
Finance under authority granted by the Federal Housing Enterprises
Financial Safety and Soundness Act of
[[Page 7494]]
1992 (Safety and Soundness Act).\1\ FHFA oversees the Enterprises and
Banks (collectively, the regulated entities) and the Office of Finance
to ensure that they operate in a safe and sound manner and maintain
liquidity in the housing finance market in accordance with applicable
laws, rules and regulations. To that end, FHFA is vested with broad
supervisory discretion and specific civil administrative enforcement
powers, similar to such authority granted by Congress to the Federal
bank regulatory agencies.\2\ Section 1376 of the Safety and Soundness
Act (12 U.S.C. 4636) empowers FHFA to impose civil money penalties
under specific conditions. FHFA's Rules of Practice and Procedure (12
CFR part 1209) (the Enforcement regulations) govern cease and desist
proceedings, civil money penalty assessment proceedings, and other
administrative adjudications.\3\ FHFA's Flood Insurance regulation (12
CFR part 1250) governs flood insurance responsibilities as they pertain
to the Enterprises.\4\ FHFA's Implementation of the Program Fraud Civil
Remedies Act of 1986 regulation (12 CFR part 1217) sets forth
procedures for imposing civil penalties and assessments under the
Program Fraud Civil Remedies Act (31 U.S.C. 3801 et seq.) on any person
that makes a false claim for property, services or money from FHFA, or
makes a false material statement to FHFA in connection with a claim,
where the amount involved does not exceed $150,000.\5\
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\1\ See Safety and Soundness Act, 12 U.S.C. 4513 and 4631-4641.
\2\ Id.
\3\ See 12 CFR part 1209.
\4\ See 12 CFR part 1250.
\5\ See generally, 31 U.S.C. 3801 et seq.
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The Adjustment Improvements Act
The Federal Civil Penalties Inflation Adjustment Act of 1990
(Inflation Adjustment Act), as amended by the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015 (Adjustment
Improvements Act), requires FHFA, as well as other federal agencies
with the authority to issue civil money penalties (CMPs), to adjust by
regulation the maximum amount of each CMP authorized by law that the
agency has jurisdiction to administer.\6\ The Adjustment Improvements
Act required agencies to make an initial ``catch-up'' adjustment of
their CMPs upon the statute's enactment,\7\ and further requires
agencies to make additional adjustments on an annual basis following
the initial adjustment.\8\
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\6\ See 28 U.S.C. 2461 note.
\7\ FHFA promulgated its catch-up adjustment of its CMPs with an
interim final rule published July 1, 2016. 81 FR 43028.
\8\ FHFA promulgated its most recent annual adjustment of its
CMP with a final rule published January 28, 2020. 85 FR 4903.
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The Adjustment Improvements Act sets forth the formula that
agencies must apply when making annual adjustments, based on the
percent change between the October Consumer Price Index for All Urban
Consumers (the CPI-U) preceding the date of the last adjustment and the
October CPI-U for the year before that.
II. Description of the Rule
This final rule adjusts the maximum penalty amount within each of
the three tiers specified in 12 U.S.C. 4636 by amending the table
contained in 12 CFR 1209.80 of the Enforcement regulations to reflect
the new adjusted maximum penalty amount that FHFA may impose upon a
regulated entity or any entity-affiliated party within each tier. The
increases in maximum penalty amounts contained in this final rule may
not necessarily affect the amount of any CMP that FHFA may seek for a
particular violation, which may not be the maximum that the law allows;
FHFA would calculate each CMP on a case-by-case basis in light of a
variety of factors.\9\ This rule also adjusts the maximum penalty
amounts for violations under the FHFA Flood Insurance regulation by
amending the text of 12 CFR 1250.3 to reflect the new adjusted maximum
penalty amount that FHFA may impose for violations under that
regulation. This rule also adjusts the maximum amounts for civil money
penalties under the Program Fraud Civil Remedies Act by amending the
text of 12 CFR 1217.3 to reflect the new adjusted maximum penalty
amount that FHFA may impose for violations under that regulation.
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\9\ See, e.g., 12 CFR 1209.7(c); FHFA Enforcement Policy, AB
2013-03 (May 31, 2013).
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The Adjustment Improvements Act directs federal agencies to
calculate each annual CMP adjustment as the percent change between the
CPI-U for the previous October and the CPI-U for October of the
calendar year before.\10\ The maximum CMP amounts for FHFA penalties
were last adjusted in 2020.\11\ Since FHFA is making this round of
adjustments in calendar year 2021, and the maximum CMP amounts were
last set in calendar year 2020, the inflation adjustment amount for
each maximum CMP amount was calculated by comparing the CPI-U for
October 2019 with the CPI-U for October 2020, resulting in an inflation
factor of 1.01182. For each maximum CMP calculation, the product of
this inflation adjustment and the previous maximum penalty amount was
then rounded to the nearest whole dollar as required by the Adjustment
Improvements Act, and was then summed with the previous maximum penalty
amount to determine the new adjusted maximum penalty amount.\12\ The
tables below set out these items accordingly.
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\10\ 28 U.S.C. 2461 note.
\11\ See 85 FR 4903 (January 28, 2020).
\12\ 28 U.S.C. 2461 note.
----------------------------------------------------------------------------------------------------------------
Rounded New adjusted
U.S. Code citation Description Previous maximum inflation maximum penalty
penalty amount increase amount
----------------------------------------------------------------------------------------------------------------
Enforcement Regulations
----------------------------------------------------------------------------------------------------------------
12 U.S.C. 4636(b)(1)............. First Tier............... 11,883 140 12,023
12 U.S.C. 4636(b)(2)............. Second Tier.............. 59,413 702 60,115
12 U.S.C. 4636(b)(4)............. Third Tier (Entity- 2,376,518 28,090 2,404,608
affiliated party or
Regulated entity).
----------------------------------------------------------------------------------------------------------------
Program Fraud Civil Remedies Regulation
----------------------------------------------------------------------------------------------------------------
31 U.S.C. 3802(a)(1)............. Maximum penalty per false 11,665 138 11,803
claim.
31 U.S.C. 3802(a)(2)............. Maximum penalty per false 11,665 138 11,803
statement.
----------------------------------------------------------------------------------------------------------------
Flood Insurance Regulation
----------------------------------------------------------------------------------------------------------------
42 U.S.C. 4012a(f)(5)............ Maximum penalty per 578 7 585
violation.
[[Page 7495]]
42 U.S.C. 4012a(f)(5)............ Maximum total penalties 166,661 1970 168,631
assessed against an
Enterprise in a calendar
year.
----------------------------------------------------------------------------------------------------------------
III. Differences Between the Federal Home Loan Banks and the
Enterprises
When promulgating any regulation that may have future effect
relating to the Banks, the Director is required by section 1313(f) of
the Safety and Soundness Act to consider the differences between the
Banks and the Enterprises with respect to the Banks' cooperative
ownership structure, mission of providing liquidity to members,
affordable housing and community development mission, capital
structure, and joint and several liability (12 U.S.C. 4513(f)).\13\ The
Director considered the differences between the Banks and the
Enterprises, as they relate to the above factors, and determined that
this final rule is appropriate. The inflation adjustments effected by
the final rule are mandated by law, and the special features of the
Banks identified in section 1313(f) of the Safety and Soundness Act can
be accommodated, if appropriate, along with any other relevant factors,
when determining any actual penalties.
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\13\ So in original; no paragraphs (d) and (e) were enacted. See
12 U.S.C.A. 4513 n 1.
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IV. Regulatory Impact
Administrative Procedure Act
FHFA finds good cause that notice and an opportunity to comment on
this final rule are unnecessary under section 553(b) of the
Administrative Procedure Act (APA), 5 U.S.C. 553(b). The Adjustment
Improvements Act states that the annual civil money penalty adjustments
shall be made notwithstanding the rulemaking provisions of 5 U.S.C.
553.\14\ Furthermore, this rulemaking conforms with and is consistent
with the statutory directive set forth in the Adjustment Improvements
Act. As a result, there are no issues of policy discretion about which
to seek public comment. Accordingly, FHFA is adopting these amendments
as a final rule.
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\14\ 28 U.S.C. 2461 note, section 4(b)(2).
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Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (RFA),\15\ an agency
must prepare a regulatory flexibility analysis for all proposed and
final rules that describes the impact of the rule on small entities,
unless the head of an agency certifies that the rule will not have ``a
significant economic impact on a substantial number of small
entities.'' However, the RFA applies only to rules for which an agency
publishes a general notice of proposed rulemaking pursuant to the
APA.\16\ As discussed above, FHFA has determined for good cause that
the APA does not require a general notice of proposed rulemaking for
this rule. Thus, the RFA does not apply to this final rule.
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\15\ 5 U.S.C. 603.
\16\ 5 U.S.C. 603(a), 604(a).
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Congressional Review Act
The rule is not a ``major rule'' as defined by the Congressional
Review Act, codified at 5 U.S.C. 801 et seq. The rule will not result
in: (1) An annual effect on the economy of $100,000,000 or more; (2) a
major increase in costs or prices; or (3) significant adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of United States-based companies to compete with foreign-
based companies.\17\
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\17\ 5 U.S.C. 804(2).
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Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) requires that
regulations involving the collection of information receive clearance
from the Office of Management and Budget (OMB). This rule contains no
such collection of information requiring OMB approval under the
Paperwork Reduction Act. Consequently, no information has been
submitted to OMB for review.
Lists of Subjects
12 CFR Part 1209
Administrative practice and procedure, Penalties.
12 CFR Part 1217
Civil remedies, Program fraud.
12 CFR Part 1250
Flood insurance, Government-sponsored enterprises, Penalties,
Reporting and record keeping requirements.
Accordingly, for the reasons stated in the SUPPLEMENTARY
INFORMATION and under the authority of 12 U.S.C. 4513b and 12 U.S.C.
4526, the Federal Housing Finance Agency hereby amends subchapters A
and C of chapter XII of Title 12 of the Code of Federal Regulations as
follows:
SUBCHAPTER A--ORGANIZATION AND OPERATIONS
PART 1209--RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 1209 continues to read as follows:
Authority: 5 U.S.C. 554, 556, 557, and 701 et seq.; 12 U.S.C.
1430c(d); 12 U.S.C. 4501, 4502, 4503, 4511, 4513, 4513b, 4517, 4526,
4566(c)(1) and (c)(7), 4581-4588, 4631-4641; and 28 U.S.C. 2461
note.
0
2. Revise Sec. 1209.80 to read as follows:
Sec. 1209.80 Inflation adjustments.
The maximum amount of each civil money penalty within FHFA's
jurisdiction, as set by the Safety and Soundness Act and thereafter
adjusted in accordance with the Inflation Adjustment Act, is as
follows:
------------------------------------------------------------------------
New adjusted
U.S. Code citation Description maximum penalty
amount
------------------------------------------------------------------------
12 U.S.C. 4636(b)(1).......... First Tier............ $12,023
12 U.S.C. 4636(b)(2).......... Second Tier........... 60,115
12 U.S.C. 4636(b)(4).......... Third Tier (Regulated 2,404,608
Entity or Entity-
Affiliated party).
------------------------------------------------------------------------
[[Page 7496]]
0
3. Revise Sec. 1209.81 to read as follows:
Sec. 1209.81 Applicability.
The inflation adjustments set out in Sec. 1209.80 shall apply to
civil money penalties assessed in accordance with the provisions of the
Safety and Soundness Act, 12 U.S.C. 4636, and subparts B and C of this
part, for violations occurring on or after January 15, 2021.
PART 1217--PROGRAM FRAUD CIVIL REMEDIES ACT
0
4. The authority citation for part 1217 continues to read as follows:
Authority: 12 U.S.C. 4501; 12 U.S.C. 4526; 28 U.S.C. 2461 note;
31 U.S.C. 3801-3812.
0
5. Amend Sec. 1217.3 by revising paragraphs (a)(1) introductory text
and (b)(1) introductory text to read as follows:
Sec. 1217.3 Basis for civil penalties and assessments.
(a) * * *
(1) A civil penalty of not more than $11,803 may be imposed upon a
person who makes a claim to FHFA for property, services, or money where
the person knows or has reason to know that the claim:
* * * * *
(b) * * *
(1) A civil penalty of up to $11,803 may be imposed upon a person
who makes a written statement to FHFA with respect to a claim,
contract, bid or proposal for a contract, or benefit from FHFA that:
* * * * *
SUBCHAPTER C--ENTERPRISES
PART 1250--FLOOD INSURANCE
0
6. The authority citation for part 1250 continues to read as follows:
Authority: 12 U.S.C. 4521(a)(4) and 4526; 28 U.S.C. 2461 note;
42 U.S.C. 4001 note; 42 U.S.C. 4012a(f)(3), (4), (5), (8), (9), and
(10).
0
7. Amend Sec. 1250.3 by revising paragraph (c) to read as follows:
Sec. 1250.3 Civil money penalties.
* * * * *
(c) Amount. The maximum civil money penalty amount is $578 for each
violation that occurs before January 15, 2021, with total penalties not
to exceed $166,661. For violations that occur on or after January 15,
2021, the civil money penalty under this section may not exceed $585
for each violation, with total penalties assessed under this section
against an Enterprise during any calendar year not to exceed $168,631.
* * * * *
Mark A. Calabria,
Director, Federal Housing Finance Agency.
[FR Doc. 2021-01576 Filed 1-28-21; 8:45 am]
BILLING CODE 8070-01-P
