81 FR 43031 - Implementation of the Program Fraud Civil Remedies Act of 1986
FEDERAL HOUSING FINANCE AGENCY Federal Register Volume 81, Issue 127 (July 1, 2016)
Federal Register Volume 81, Issue 127 (July 1, 2016)
| Page Range | 43031-43036 | |
| FR Document | 2016-15620 |
[Federal Register Volume 81, Number 127 (Friday, July 1, 2016)] [Rules and Regulations] [Pages 43031-43036] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-15620] ----------------------------------------------------------------------- FEDERAL HOUSING FINANCE AGENCY 12 CFR Part 1217 RIN 2590-AA76 Implementation of the Program Fraud Civil Remedies Act of 1986 AGENCY: Federal Housing Finance Agency. ACTION: Interim final rule. ----------------------------------------------------------------------- SUMMARY: The Federal Housing Finance Agency (FHFA) is adopting an interim final rule to implement the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.) (PFCRA), by establishing administrative procedures for imposing civil penalties and assessments against persons who make false, fictitious, or fraudulent claims or written statements to FHFA in the context of its contracting or employment activities, where the amount of money or the value of property or services involved or requested from FHFA is $150,000 or less. FHFA previously issued a notice of proposed rulemaking to implement PFCRA. This rule is issued as an interim final rule rather than as a final rule because it increases the maximum penalty amount set forth in the proposed rule as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Adjustment Improvements Act), and that Act also requires that such ``catch up'' adjustments be published in the form of an interim final rule. If, prior to the effective date of the interim final rule, FHFA does not receive any comments from which FHFA concludes that the rule should be revised, this rule will become final without further action by FHFA. DATES: Effective Date: August 1, 2016. Comment Date: Comments on the interim final rule must be received prior to August 1, 2016. ADDRESSES: You may submit your comments, identified by regulatory information number (RIN) 2590-AA76, by any of the following methods: Agency Web site: www.fhfa.gov/open-for-comment-or-input. Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. If you submit your comments to the Federal eRulemaking Portal, please also send it by email to FHFA at [email protected] to ensure timely receipt by the agency. Please include ``RIN 2590-AA76'' in the subject line of the message. Hand Delivery/Courier: The hand delivery address is: Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA76, Federal Housing Finance Agency, Constitution Center, (OGC) Eighth Floor, 400 Seventh Street SW., Washington, DC 20219. The package should be delivered to the Seventh Street entrance Guard Desk, First Floor, on business days between 9 a.m. and 5 p.m. U.S. Mail, United Parcel Service, Federal Express, or Other Mail Service: The mailing address for comments is: Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA76, Federal Housing Finance Agency, Constitution Center, (OGC) Eighth Floor, 400 Seventh Street SW., Washington, DC 20219. Copies of all comments will be posted without change, including any personal information you provide, such as your name, address, or phone number, on the FHFA Internet Web site at http://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public on business days between the hours of 10 a.m. and 3 p.m., at the Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street, SW., Washington, DC 20219. To make an appointment to inspect comments, please call the Office of General Counsel at (202) 649-3804. FOR FURTHER INFORMATION CONTACT: Maura Dundon, Assistant General Counsel, Office of the General Counsel, (202) 649-3961, [email protected], or Ellen Bailey, Managing Associate General Counsel, Office of General Counsel, (202) 649-3056, [email protected], 400 Seventh Street SW., Eighth Floor, Washington, DC 20219 (not toll free numbers). The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877- 8339. SUPPLEMENTARY INFORMATION: I. Background A. General The Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.) (PFCRA) requires FHFA, as an ``authority,'' to establish by rule procedures for imposing civil penalties and assessments on any person who 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.\1\ A ``claim'' as defined in the Act includes a request, demand, or submission for property, services, or money from FHFA or a party to a contract with FHFA, including money representing benefits.\2\ A ``statement'' is any representation, certification, affirmation, document, record, or accounting or bookkeeping entry with respect to a claim, a contract or a bid or proposal for a contract with FHFA, or a benefit from FHFA.\3\ For covered claims and statements, PFCRA provides an administrative remedy as an alternative to judicial action, where the Department of Justice (DOJ) has declined to prosecute under the civil False Claims Act, 31 U.S.C. 3729.\4\ --------------------------------------------------------------------------- \1\ See 31 U.S.C. 3801(a)(1)(C) and 3803(g); see also 5 U.S.C., App. 3, 11(2). \2\ 31 U.S.C. 3801(a)(3). \3\ Id. at section 3801(a)(9). \4\ See S.Rep. No. 99-212 at 6, 99th Cong., 1st Sess. 6 (1985) (``[E]xisting remedies are not adequate to cope with the problem of fraud in Federal programs. The Committee [of Governmental Affairs of the Senate], therefore, believes that an alternative administrative remedy is needed to adjudicate small-dollar false claim and statement cases that otherwise would not be initiated civilly.''). --------------------------------------------------------------------------- PFCRA establishes a process of (a) investigation by the ``investigating official,'' who, by statute, is the Inspector General (IG) of the agency or a designee of the IG; (b) review by the agency's ``reviewing official,'' designated by the agency head, to determine if adequate evidence of liability exists; \5\ and (c) review by DOJ. If the Attorney General approves use of the PFCRA process, PFCRA authorizes the reviewing official to initiate an action by providing notice to the person alleged to be liable; if a hearing on the record is requested, it is before a ``presiding official,'' which by statute is [[Page 43032]] an Administrative Law Judge (ALJ) appointed or detailed for such purpose.\6\ PFCRA also establishes appeal rights to the agency head by any person determined by an ALJ to be liable, and further review is available by a U.S. District Court.\7\ --------------------------------------------------------------------------- \5\ 31 U.S.C. 3801(a)(8)(A) and 3803. The Director of FHFA has designated the General Counsel of FHFA as FHFA's reviewing official. See 80 FR 79719, 79719 n.5 (Dec. 23, 2015). \6\ 31 U.S.C. 3803. \7\ Id.; see also section 3805. --------------------------------------------------------------------------- A civil penalty may be imposed for making a false claim or statement to an agency even if the agency did not provide any money, property, services, or benefits to any person as a result. Where money, property, services, or benefits were provided as a result of the person's false claim or statement, an ``assessment'' may also be imposed as the administrative equivalent of damages. The maximum amount of any civil penalty is established by PFCRA, subject to periodic adjustments for inflation, and PFCRA also caps any assessment at an amount equal to twice the value of the money, property, services, or benefits provided.\8\ --------------------------------------------------------------------------- \8\ Id. at section 3802(a)(1) and (3). --------------------------------------------------------------------------- Following PFCRA's enactment in 1986, an interagency task force was established under the leadership of the Department of Health and Human Services to develop model implementing regulations by all affected agencies and departments. This action was consistent with the expectation that ``regulations would be substantively uniform throughout the government, except as necessary to meet the specific needs of a particular agency or program.'' \9\ For that reason, FHFA reviewed the PFCRA rules of other departments and agencies and has modeled its proposed and interim final rule on the final rules of the Federal Deposit Insurance Corporation (FDIC) and Department of Housing and Urban Development (HUD).\10\ The FDIC rule was employed because, like FHFA, FDIC is a federal financial safety and soundness regulator. FHFA's supervisory, regulatory, enforcement, and resolution powers are similar to FDIC's, and both FDIC and FHFA have express independent litigating authority and authority to bring administrative actions for civil money penalties for false claims or statements made to them by their regulated institutions or entities and affiliated parties separate and apart from authority provided by PFCRA. The HUD rule was employed as it provides a structural model and an established operational approach. --------------------------------------------------------------------------- \9\ See S. Rep. No. 99-212 at 12; see also 52 FR 27423 (July 21, 1987). \10\ See 12 CFR part 308, subpart T (FDIC) and 24 CFR part 28 (HUD) (2015). --------------------------------------------------------------------------- B. Proposed Rule On December 23, 2015, FHFA published a proposed rule to implement PFCRA.\11\ --------------------------------------------------------------------------- \11\ See 80 FR 79719. --------------------------------------------------------------------------- Similar to the FDIC in its final rule, FHFA proposed that its PFCRA rule would apply only to FHFA's employment and contracting activities, and not to FHFA's supervisory, regulatory, enforcement, conservatorship, or receivership activities because other civil and administrative remedies available to FHFA are adequate to redress fraud in the areas not covered. FHFA noted in the notice of proposed rulemaking that it intended that the PFCRA administrative process not be confused with ordinary Agency procedures available in regulatory or conservatorship situations.\12\ FHFA also proposed a process to investigate and adjudicate PFCRA claims in accordance with PFCRA's procedural requirements.\13\ Should a PFCRA case proceed to adjudication by an ALJ, FHFA proposed to use its existing Rules of Practice and Procedure, which were incorporated by reference.\14\ --------------------------------------------------------------------------- \12\ Id. at 79720. \13\ Id. at 79720-79721. \14\ Id. at 79721. --------------------------------------------------------------------------- FHFA's proposed rule also established a maximum civil penalty that reflected an inflation adjustment to the statutory PFCRA civil penalty, addressed an assessment in lieu of damages of up to twice the amount of the false, fictitious, or fraudulent claim, and stated that the PFCRA rule would not preclude the imposition of any other authorized actions or sanctions currently employed by FHFA, including debarment and suspension of contractors.\15\ --------------------------------------------------------------------------- \15\ Id. --------------------------------------------------------------------------- FHFA invited comments on all aspects of the proposed rule during a 60-day comment period that closed on February 22, 2016. FHFA received one comment from a private citizen that did not address the substance of the proposed rule. II. Analysis of Final Rule; Publication as an Interim Final Rule FHFA has determined that no changes to the scope and process of the rule as proposed are necessary in light of comments received. Following publication of the proposed rule, however, FHFA reviewed provisions of the recently enacted Adjustment Improvements Act and has determined that further adjustment of the maximum penalty is required.\16\ Both the requirement that the penalty be adjusted and the adjustment formula to be applied are set forth in the Adjustment Improvements Act. Further, the Adjustment Improvements Act requires agencies to publish adjustments in accordance with that Act in an interim final rule.\17\ Consequently, FHFA is publishing this rule as an interim final rule to meet that requirement. If, prior to the effective date of the interim final rule, FHFA does not receive any comments from which FHFA concludes that the rule should be revised, this rule will become final without further action by FHFA. --------------------------------------------------------------------------- \16\ Section 701, Public Law 114-74 (Nov. 2, 2015), codified as 28 U.S.C. 2461 note. \17\ 28 U.S.C. 2461 note, section 4(b)(1)(A). --------------------------------------------------------------------------- Scope. As does the FDIC's PFCRA rule, FHFA's interim final rule states that it applies to FHFA's employment and contracting activities and does not apply to FHFA's supervisory, regulatory, enforcement, conservatorship, or receivership activities because other civil and administrative remedies available to FHFA with regard to its regulated entities (Fannie Mae, Freddie Mac (together, the Enterprises), any affiliate of an Enterprise, and the Federal Home Loan Banks) and the Office of Finance of the Federal Home Loan Bank System (OF) or any other entity-affiliated party are adequate to redress fraud in the areas not covered. This statement of scope is almost identical to the scope set forth by the FDIC in its PFCRA rule, at 12 CFR 308.500(c).\18\ --------------------------------------------------------------------------- \18\ FDIC's PFCRA rule applies to FDIC's employment and contracting activities but does not apply to false claims or statements made in connection with FDIC's regulatory, supervision, enforcement, insurance, receivership or liquidation responsibilities. See 12 CFR 308.500(c). FDIC explained that, as so limited, its rule was consistent with PFCRA's underlying purpose ``to provide federal agencies with an administrative remedy for `small dollar fraud' cases for which there is no other remedy because the cases are too small for the [DOJ] to prosecute,'' and distinguished FDIC's circumstances from those of other agencies based on its other available administrative remedies and on its independent litigating authority. 65 FR 52352 (Aug. 29, 2000) (proposed rule); see also 66 FR 9187, 9188 (Feb. 7, 2001) (final rule). --------------------------------------------------------------------------- In the event a regulated entity, any affiliate of an Enterprise, or the OF or any other entity-affiliated party made a false claim on or provided false information to FHFA in its supervisory, regulatory, enforcement, conservatorship, or receivership activities, FHFA has other available administrative remedies and independent litigating authority. See generally 12 U.S.C. 4513, 4514, 4585, and 4636. As a result, even without PFCRA, FHFA could pursue [[Page 43033]] administrative or judicial remedies for such false claims or statements on its own behalf with similar or greater effect. FHFA also notes that its PFCRA rule would not apply to false claims or statements made by any person to any regulated entity, an affiliate of an Enterprise, or the OF. PFCRA generally does not apply to false claims or statements made to private companies conducting private business activities, unless those companies are allocating money, property, services or benefits where the actual provider is the United States government.\19\ Because the regulated entities, including any affiliate of an Enterprise, and the OF do not receive United States government money, property, services, or benefits from FHFA, FHFA's interim final rule implementing PFCRA does not apply to any false claim or statement by any person to any regulated entity, including any affiliate of an Enterprise, or the OF.\20\ --------------------------------------------------------------------------- \19\ 31 U.S.C. 3801(a)(3)(B). Application of PFCRA does not require or imply the establishment of a principal-agent relationship. \20\ If a regulated entity, an affiliate of an Enterprise, or the OF were to allocate United States government money, property, services, or benefits to any person on behalf of another agency or department of the Federal government, then any PFCRA rule of that other agency or department may be applicable. --------------------------------------------------------------------------- Process. Pursuant to PFCRA and FHFA's interim final rule, FHFA's ``investigating official'' (under PFCRA, the FHFA IG or the IG's designee) is responsible for initiating an investigation of any claim or statement believed to be false.\21\ The investigating official submits a report containing information about the case (including exculpatory information), the potential violation, and other relevant information relating to liability to the General Counsel of FHFA, the ``reviewing official'' designated by the Director of FHFA.\22\ The reviewing official (or the designee thereof) would then make a determination of whether there is adequate evidence of liability. If so, the reviewing official would provide written notice to the Attorney General of the intent to refer the allegations to an ALJ as presiding officer. Under the terms of PFCRA and the authority of the Attorney General, DOJ could elect to bring an action for civil relief under other applicable law, or the FHFA action may be deferred or postponed to avoid interference with a criminal investigation or prosecution by the Attorney General. --------------------------------------------------------------------------- \21\ See 31 U.S.C. 3801(a)(4)(A). \22\ See 31 U.S.C. 3801(a)(8)(A), requiring the agency head to designate a reviewing official; see also footnote 5, supra. --------------------------------------------------------------------------- If the Attorney General approves the use of PFCRA, FHFA's reviewing official may refer the case to an ALJ as presiding officer. To initiate the action, the reviewing official must provide notice to any person who is subject to the allegation of liability. That person may then request a formal hearing on the record and is entitled to all exculpatory information in the possession of the investigating official or the reviewing official. If a hearing is requested, the ALJ would determine liability based on the preponderance of the evidence and the amount of any penalty (and, if appropriate, any assessment) to be imposed. The interim final rule implements statutory provisions for an appeal of the ALJ's decision to the Director of FHFA as the ``authority head'' and then to the appropriate U.S. District Court. FHFA's interim final rule provides for hearing and appeal rights of persons subject to allegations of liability for any penalty or assessment under PFCRA. FHFA currently has Rules of Practice and Procedure in place at title 12 of the Code of Federal Regulations, part 1209, which establish evidentiary, hearing, and appeals procedures and processes for hearings on the record at FHFA. Similar to the HUD rule, FHFA's PFCRA rule cross-references its existing administrative enforcement procedures for purposes of PFCRA actions. FHFA's existing rules of procedure were issued subject to a notice and comment rulemaking process and, by using them for purposes of any PFCRA action, FHFA ensures due process and procedural consistency. Maximum Penalty Amount. PFCRA establishes a maximum civil penalty of $5,000 for each violation of the Act.\23\ That amount is required to be adjusted for inflation by the Adjustment Improvements Act, which also sets forth the formula for the initial, or ``catch up,'' adjustment.\24\ FHFA has incorporated that adjustment into its interim final rule, resulting in a maximum penalty amount of $10,781. This is an increase in the maximum penalty amount initially set forth in the proposed rule, but it is required to comply with the Adjustment Improvements Act. This is the only substantive change FHFA has made to the rule as proposed.\25\ --------------------------------------------------------------------------- \23\ See 31 U.S.C. 3802(a). \24\ 28 U.S.C. 2461 note. The Adjustment Improvements Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (``1990 Adjustment Act''). To establish the maximum civil penalty in its proposed rule, FHFA applied the initial adjustment formula set forth in the 1990 Adjustment Act. That formula has been repealed by, and replaced with a ``catch up'' adjustment formula set forth in, the Adjustment Improvements Act. \25\ This interim final rule also corrects a typographical error in the rule text at section 1217.9: a reference to ``subpart B'' of FHFA's Rules of Practice and Procedure at 12 CFR part 1209 that should have been to ``subpart C,'' where other sections of the proposed rule correctly referred to ``subpart C'' (see sections 1217.1(a)(2) and 1217.6(b)(8), 80 FR at 79721 and 79723) and, in read context, the reference to ``subpart C'' was clearly intended. --------------------------------------------------------------------------- The Adjustment Improvements Act also requires that such ``catch- up'' adjustments be published in the form of an interim final rule. This rule is issued as an interim final rule, rather than as a final rule, only for purposes of meeting that requirement. If, prior to the effective date of the interim final rule, FHFA does not receive any comments from which FHFA concludes that the rule should be revised, this rule will become final without further action by FHFA. III. Paperwork Reduction Act The interim final rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Therefore, FHFA has not submitted any information to the Office of Management and Budget for review. IV. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, including small businesses and or small organizations, must include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities.\26\ FHFA has considered the impact of the interim final rule under the Regulatory Flexibility Act. The General Counsel of FHFA certifies that the interim final rule is not likely to have a significant economic impact on a substantial number of small entities, because the regulation merely fulfills a statutory requirement under PFCRA to establish procedures for imposing civil penalties and assessments against those persons who have violated existing prohibitions against making fraudulent claims or statements to FHFA in its contracting and employment activities, and does not alter any underlying requirements or prohibitions or impose any new [[Page 43034]] requirements or prohibitions on persons subject to regulation by FHFA. --------------------------------------------------------------------------- \26\ See 5 U.S.C. 605(b). --------------------------------------------------------------------------- List of Subjects in 12 CFR Part 1217 Civil remedies, Program fraud. Authority and Issuance Accordingly, for the reasons stated in the preamble, and under the authority of 12 U.S.C. 4511, 4513, 4514, 4526, 4585 and 4636 and 31 U.S.C. 3803, FHFA amends subchapter A of Chapter XII of Title 12 of the Code of Federal Regulations by adding a new Part 1217 to read as follows: PART 1217--PROGRAM FRAUD CIVIL REMEDIES ACT Sec. 1217.1 Purpose and scope. 1217.2 Definitions. 1217.3 Basis for civil penalties and assessments. 1217.4 Investigation. 1217.5 Request for approval by the Department of Justice. 1217.6 Notice. 1217.7 Response. 1217.8 Statute of limitations. 1217.9 Hearings. 1217.10 Settlements. Authority: 12 U.S.C. 4501; 12 U.S.C. 4526, 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812. Sec. 1217.1 Purpose and scope. (a) Purpose. This part: (1) Establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to FHFA or to its agents; and (2) Specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments. Hearings under this part shall be conducted in accordance with the Administrative Procedure Act pursuant to part 1209, subpart C, of this chapter. (b) Scope. This part applies only to persons who make, submit, or present or cause to be made, submitted, or presented false, fictitious, or fraudulent claims or written statements to FHFA or to those acting on its behalf in connection with FHFA employment matters and FHFA contracting activities. It does not apply to false claims or statements made in connection with matters or activities related to FHFA's supervisory, regulatory, enforcement, conservatorship, or receivership responsibilities, as other civil and administrative actions available to FHFA to redress fraud in such areas provide for remedies that are equal to or exceed those available through this part. Sec. 1217.2 Definitions. As used in this part: Ability to pay is determined based on a review of the respondent's resources available both currently and prospectively, from which FHFA could ultimately recover the total penalty, and as appropriate, assessment, which may be predicted based on historical evidence. Assessment means a monetary penalty that is in addition to a civil penalty and may be imposed if FHFA has made any payment, transferred property, or provided services for a claim that is determined to be in violation of paragraph (a)(1) of Sec. 1217.3. An assessment may not exceed an amount that is twice the amount of the claim or portion of the claim determined to be in violation of paragraph (a)(1) of Sec. 1217.3. A civil penalty other than an assessment may be imposed whether or not FHFA has made a payment, transferred property, or provided services in response to the false claim or statement. Benefit means anything of value, including, but not limited to, any advantage, preference, privilege, license, permit, favorable decision, ruling, or status. Claim means any request, demand, or submission: (1) Made to FHFA for property, services, or money (including money representing benefits); (2) Made to a recipient of property, services, or money from FHFA or to a party to a contract with FHFA: (i) For property or services, if FHFA: (A) Provided such property or services; (B) Provided any portion of the funds for the purchase of such property or services; or (C) Will reimburse such recipient or party for the purchase of such property or services; or (ii) For the payment of money (including money representing benefits) if the United States: (A) Provided any portion of the money requested or demanded; or (B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (3) Made to FHFA, which has the effect of decreasing an obligation to pay or account for property, services, or money. Investigating official means the FHFA Inspector General, or an officer or employee of the FHFA Office of Inspector General designated by the FHFA Inspector General. Knows or has reason to know. (1) For purposes of establishing liability under 31 U.S.C. 3802 and this part, means that a person, with respect to a claim or statement: (i) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; (ii) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or (iii) Acts in reckless disregard of the truth or falsity of the claim or statement. (2) No proof of specific intent to defraud is required for purposes of establishing liability under 31 U.S.C. 3802 or this part. Makes a claim or statement includes making, presenting, or submitting the claim or statement and causing the claim or statement to be made, presented, or submitted. Notice means the charging document served by FHFA to commence an administrative proceeding to impose a civil penalty and, if appropriate, an assessment under chapter 38 of subtitle III of title 31, U.S.C., and this part. Person means any individual, partnership, corporation, association, or private organization. Presiding officer means an administrative law judge appointed under 5 U.S.C. 3105 or detailed to FHFA under 5 U.S.C. 3344. Reasonable prospect of collecting an appropriate amount of penalties and assessments is determined based on a generalized analysis made by the reviewing official, based on the limited information available in the report of investigation for purposes of determining whether the allocation of FHFA's resources to any particular action is appropriate. Report of investigation means a report containing the findings and conclusions of an investigation under chapter 38 of subtitle III of title 31, U.S.C., by the investigating official, as described in Sec. 1217.4. Respondent means any person alleged to be liable for a civil penalty or assessment under Sec. 1217.3. Reviewing official means the General Counsel of FHFA, as so designated by the Director pursuant to 31 U.S.C. 3801(a)(8)(A). Statement means, unless the context indicates otherwise, any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made: (1) With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a claim); or (2) With respect to (including relating to eligibility for) a contract with, or a bid or proposal for a contract with, or benefit from, FHFA or any State, political subdivision of a State, or other [[Page 43035]] party, if FHFA provides any portion of the money or property under such contract or benefit, or if FHFA will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such benefit. Sec. 1217.3 Basis for civil penalties and assessments. (a) False, fictitious or fraudulent claims. (1) A civil penalty of not more than $10,781 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: (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by a written statement that: (A) Asserts a material fact which is false, fictitious, or fraudulent; or (B) Omits a material fact and, as a result of the omission, is false, fictitious, or fraudulent, where the person making, presenting, or submitting such statement has a duty to include such material fact; or (iii) Is for payment for the provision of property or services to FHFA which the person has not provided as claimed. (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim for purposes of this part. (3) A claim shall be considered made to FHFA, a recipient, or party when the claim is actually made to an agent, fiscal intermediary, or other entity, acting for or on behalf of FHFA, the recipient, or the party. (4) Each claim for property, services, or money is subject to a civil penalty, without regard to whether the property, services, or money actually is delivered or paid. (5) There is no liability under this part if the amount of money or value of property or services claimed exceeds $150,000 as to each claim that a person submits. For purposes of this paragraph (a), a group of claims submitted simultaneously as part of a single transaction shall be considered a single claim. (6) If the FHFA has made any payment, transferred property, or provided services for a claim, then FHFA may make an assessment against a person found liable in an amount of up to twice the amount of the claim or portion of the claim that is determined to be in violation of paragraph (a)(1) of this section. This assessment is in addition to the amount of any civil penalty imposed. (b) False, fictitious or fraudulent statements. (1) A civil penalty of up to $10,781 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: (i) The person knows or has reason to know: (A) Asserts a material fact which is false, fictitious, or fraudulent; or (B) Omits a material fact and is false, fictitious, or fraudulent as a result of such omission, where the person making, presenting, or submitting such statement has a duty to include such material fact; and (ii) Contains or is accompanied by an express certification or affirmation of the truthfulness and accuracy of the contents of the statement. (2) Each written representation, certification, or affirmation constitutes a separate statement. (3) A statement shall be considered made to FHFA when the statement is actually made to an agent, fiscal intermediary, or other entity acting for or on behalf of FHFA. (c) Joint and several liability. A civil penalty or assessment may be imposed jointly and severally if more than one person is determined to be liable. Sec. 1217.4 Investigation. (a) General. FHFA may initiate an action under chapter 38 of subtitle III of title 31, U.S.C., and this part against a respondent only upon an investigation by the investigating official. (b) Subpoena. Pursuant to 31 U.S.C. 3804(a), the investigating official may require by subpoena the production of records and other documents. The subpoena shall state the authority under which it is issued, identify the records sought, and name the person designated to receive the records. The recipient of the subpoena shall provide a certification that the documents sought have been produced, that the documents are not available and the reasons they are not available, or that the documents, suitably identified, have been withheld based upon the assertion of an identified privilege. (c) Investigation report. If the investigating official concludes that an action under chapter 38 of subtitle III of title 31, U.S.C., and this part may be warranted, the investigating official shall prepare a report containing the findings and conclusions of the investigation, including: (1) A description of the claim or statement at issue; (2) The evidence supporting the allegations; (3) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of Sec. 1217.3; and (4) Any exculpatory or mitigating circumstances that may relate to the claim or statement. (d) Referrals to the Attorney General. The investigating official may refer allegations directly to the Department of Justice for civil relief under other applicable law, as appropriate, or may defer or postpone submitting a report to the reviewing official to avoid interference with a criminal investigation or prosecution. Sec. 1217.5 Request for approval by the Department of Justice. (a) General. If the reviewing official determines that the report of investigation supports an action under this part, the reviewing official must submit a written request to the Department of Justice for approval to issue a notice under Sec. 1217.6. (b) Content of request. A request under this section shall include: (1) A description of the claim or statement at issue; (2) The evidence supporting the allegations; (3) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of Sec. 1217.3; (4) Any exculpatory or mitigating circumstances that may relate to the claim or statement; and (5) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments. Determining there is a reasonable prospect of collecting an appropriate amount of penalties and assessments is separate from determining ability to pay, and may not be considered in determining the amount of any penalty or assessment in any particular case. Sec. 1217.6 Notice. (a) Commencement of action; notice. Upon obtaining approval from the Department of Justice, the reviewing official may commence an action to establish liability of the respondent under the Program Fraud Civil Remedies Act of 1986 (31 U.S.C. 3801 et seq.) and this part. To commence an action, the reviewing official must issue a notice to the respondent of the allegations of liability against the respondent. The notice shall be mailed, by registered or certified mail, or shall be delivered through such other means by which delivery may be confirmed. (b) Notice contents. The notice required under this section shall include: (1) The allegations of liability against the respondent, including the statutory basis for liability, the claim or statement [[Page 43036]] at issue, and the reasons why liability arises from that claim or statement; (2) A statement that the required approval to issue the notice was received from the Department of Justice; (3) The amount of the penalty and, if applicable, any assessment for which the respondent may be held liable; (4) A statement that the respondent may request a hearing by submitting a written response to the notice; (5) The addresses to which a response must be sent in accordance with Sec. 1209.15 of this chapter; (6) A statement that failure to submit an answer within 30 days of receipt of the notice may result in the imposition of the maximum amount of penalties and assessments sought, without right of appeal; (7) A statement that the respondent must preserve and maintain all documents and data, including electronically stored data, within the possession or control of the respondent that may relate to the allegations; and (8) A copy of this part 1217 and part 1209, subpart C of this chapter. (c) Obligation to preserve documents. Upon the issuance of a notice under this section, FHFA and the respondent shall each preserve and maintain all documents and data, including electronically stored data, within their respective possession or control that may relate to the allegations in the complaint. Sec. 1217.7 Response. (a) General. (1) To obtain a hearing, the respondent must file a written response to a notice under Sec. 1217.6: (i) In accordance with Sec. 1209.24 of this chapter; and (ii) Not later than 30 days after the date of service of the notice. (2) A timely filed response to a notice under Sec. 1217.6 shall be deemed to be a request for a hearing. (3) A response to a notice under Sec. 1217.6 must include: (i) The admission or denial of each allegation of liability made in the notice; (ii) Any defense on which the respondent intends to rely; (iii) Any reasons why the penalty and, if appropriate, any assessment should be less than the amount set forth in the notice; and (iv) The name, address, and telephone number of the person who will act as the respondent's representative, if any. (b) Failure to respond. If no response to a notice under this part is timely submitted, FHFA may file a motion for default judgment in accordance with Sec. 1209.24(c) of this part. Sec. 1217.8 Statute of limitations. The statute of limitations for commencing a hearing under this part shall be tolled: (a) If the hearing is commenced in accordance with 31 U.S.C. 3803(d)(2)(B) within 6 years after the date on which the claim or statement is made; or (b) If the parties agree to such tolling. Sec. 1217.9 Hearings. (a) General. Hearings under this part shall be conducted in accordance with the procedures in subpart C of part 1209 of this chapter, governing actions in accordance with subchapter II of chapter 5, U.S.C. (commonly known as the Administrative Procedure Act). (b) Factors to consider in determining amount of penalties and assessments. In determining an appropriate amount of any civil penalty and, if appropriate, any assessment, the presiding officer and, upon appeal, the Director or designee thereof, shall consider and state in his or her opinion any mitigating or aggravating circumstances. The amount of penalties and assessments imposed shall be based on the presiding officer's and the Director's or designee's consideration of evidence in support of one or more of the following factors: (1) The number of false, fictitious, or fraudulent claims or statements; (2) The time period over which such claims or statements were made; (3) The degree of the respondent's culpability with respect to the misconduct; (4) The amount of money or the value of the property, services, or benefit falsely claimed; (5) The value of the actual loss to FHFA as a result of the misconduct, including foreseeable consequential damages and the cost of investigation; (6) The relationship of the civil penalties to the amount of the loss to FHFA; (7) The potential or actual impact of the misconduct upon public health or safety or public confidence in the management of FHFA programs and operations, including particularly the impact on the intended beneficiaries of such programs; (8) Whether the respondent has engaged in a pattern of the same or similar misconduct; (9) Whether the respondent attempted to conceal the misconduct; (10) The degree to which the respondent has involved others in the misconduct or in concealing it; (11) If the misconduct of employees or agents is imputed to the respondent, the extent to which the respondent's practices fostered or attempted to preclude the misconduct; (12) Whether the respondent cooperated in or obstructed an investigation of the misconduct; (13) Whether the respondent assisted in identifying and prosecuting other wrongdoers; (14) The complexity of the program or transaction, and the degree of the respondent's sophistication with respect to it, including the extent of the respondent's prior participation in the program or in similar transactions; (15) Whether the respondent has been found, in any criminal, civil, or administrative proceeding, to have engaged in similar misconduct or to have dealt dishonestly with the Government of the United States or of a State, directly or indirectly; (16) The need to deter the respondent and others from engaging in the same or similar misconduct; (17) The respondent's ability to pay; and (18) Any other factors that in any given case may mitigate or aggravate the seriousness of the false claim or statement. (c) Stays ordered by the Department of Justice. If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General notifies the Director in writing that continuation of FHFA's action may adversely affect any pending or potential criminal or civil action related to the claim or statement at issue, the presiding officer or the Director shall stay the FHFA action immediately. The FHFA action may be resumed only upon receipt of the written authorization of the Attorney General. Sec. 1217.10 Settlements. (a) General. The reviewing official, on behalf of FHFA, and the respondent may enter into a settlement agreement under Sec. 1209.20 of this chapter at any time prior to the issuing of a notice of final decision under Sec. 1209.55 of this chapter. (b) Failure to comply. Failure of the respondent to comply with a settlement agreement shall be sufficient cause for resuming an action under this part, or for any other judicial or administrative action. Dated: June 27, 2016. Melvin L. Watt, Director, Federal Housing Finance Agency. [FR Doc. 2016-15620 Filed 6-30-16; 8:45 am] BILLING CODE 8070-01-P
![Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations 43031
Authority: 12 U.S.C. 4521(a)(4) and 4526; rule, FHFA does not receive any Street SW., Eighth Floor, Washington,
28 U.S.C. 2461 note; 42 U.S.C. 4001 note; 42 comments from which FHFA concludes DC 20219 (not toll free numbers). The
U.S.C. 4012a(f)(3), (4), (5), (8), (9), and (10). that the rule should be revised, this rule telephone number for the
■ 5. Revise § 1250.3(c) to read as will become final without further action Telecommunications Device for the
follows: by FHFA. Hearing Impaired is (800) 877–8339.
DATES: Effective Date: August 1, 2016. SUPPLEMENTARY INFORMATION:
§ 1250.3 Civil money penalties.
Comment Date: Comments on the
* * * * * I. Background
interim final rule must be received prior
(c) Amount. The maximum civil to August 1, 2016. A. General
money penalty amount is $485 for each ADDRESSES: You may submit your The Program Fraud Civil Remedies
violation that occurs before August 1, comments, identified by regulatory Act of 1986 (31 U.S.C. 3801 et seq.)
2016, with total penalties not to exceed information number (RIN) 2590–AA76, (PFCRA) requires FHFA, as an
$140,000. For violations that occur on or by any of the following methods: ‘‘authority,’’ to establish by rule
after August 1, 2016, the civil money Agency Web site: www.fhfa.gov/open- procedures for imposing civil penalties
penalty under this section may not for-comment-or-input. and assessments on any person who
exceed $534 for each violation, with Federal eRulemaking Portal: http:// makes a false claim for property,
total penalties assessed under this www.regulations.gov. Follow the services, or money from FHFA, or
section against an Enterprise during any instructions for submitting comments. If makes a false material statement to
calendar year not to exceed $154,028. you submit your comments to the FHFA in connection with a claim,
* * * * * Federal eRulemaking Portal, please also where the amount involved does not
Dated: June 27, 2016. send it by email to FHFA at exceed $150,000.1 A ‘‘claim’’ as defined
Melvin L. Watt, RegComments@FHFA.gov to ensure in the Act includes a request, demand,
Director, Federal Housing Finance Agency.
timely receipt by the agency. Please or submission for property, services, or
include ‘‘RIN 2590–AA76’’ in the money from FHFA or a party to a
[FR Doc. 2016–15619 Filed 6–30–16; 8:45 am]
subject line of the message. contract with FHFA, including money
BILLING CODE 8070–01–P
Hand Delivery/Courier: The hand representing benefits.2 A ‘‘statement’’ is
delivery address is: Alfred M. Pollard, any representation, certification,
General Counsel, Attention: Comments/ affirmation, document, record, or
FEDERAL HOUSING FINANCE
RIN 2590–AA76, Federal Housing accounting or bookkeeping entry with
AGENCY
Finance Agency, Constitution Center, respect to a claim, a contract or a bid or
12 CFR Part 1217 (OGC) Eighth Floor, 400 Seventh Street proposal for a contract with FHFA, or a
SW., Washington, DC 20219. The benefit from FHFA.3 For covered claims
RIN 2590–AA76 package should be delivered to the and statements, PFCRA provides an
Seventh Street entrance Guard Desk, administrative remedy as an alternative
Implementation of the Program Fraud First Floor, on business days between 9 to judicial action, where the Department
Civil Remedies Act of 1986 a.m. and 5 p.m. of Justice (DOJ) has declined to
AGENCY: Federal Housing Finance U.S. Mail, United Parcel Service, prosecute under the civil False Claims
Agency. Federal Express, or Other Mail Service: Act, 31 U.S.C. 3729.4
The mailing address for comments is: PFCRA establishes a process of (a)
ACTION: Interim final rule.
Alfred M. Pollard, General Counsel, investigation by the ‘‘investigating
SUMMARY: The Federal Housing Finance Attention: Comments/RIN 2590–AA76, official,’’ who, by statute, is the
Agency (FHFA) is adopting an interim Federal Housing Finance Agency, Inspector General (IG) of the agency or
final rule to implement the Program Constitution Center, (OGC) Eighth Floor, a designee of the IG; (b) review by the
Fraud Civil Remedies Act of 1986 (31 400 Seventh Street SW., Washington, agency’s ‘‘reviewing official,’’
U.S.C. 3801 et seq.) (PFCRA), by DC 20219. designated by the agency head, to
establishing administrative procedures Copies of all comments will be posted determine if adequate evidence of
for imposing civil penalties and without change, including any personal liability exists; 5 and (c) review by DOJ.
assessments against persons who make information you provide, such as your If the Attorney General approves use of
false, fictitious, or fraudulent claims or name, address, or phone number, on the the PFCRA process, PFCRA authorizes
written statements to FHFA in the FHFA Internet Web site at http:// the reviewing official to initiate an
context of its contracting or employment www.fhfa.gov. In addition, copies of all action by providing notice to the person
activities, where the amount of money comments received will be available for alleged to be liable; if a hearing on the
or the value of property or services examination by the public on business record is requested, it is before a
involved or requested from FHFA is days between the hours of 10 a.m. and ‘‘presiding official,’’ which by statute is
$150,000 or less. FHFA previously 3 p.m., at the Federal Housing Finance
1 See 31 U.S.C. 3801(a)(1)(C) and 3803(g); see also
issued a notice of proposed rulemaking Agency, Eighth Floor, 400 Seventh
5 U.S.C., App. 3, 11(2).
to implement PFCRA. This rule is Street, SW., Washington, DC 20219. To 2 31 U.S.C. 3801(a)(3).
issued as an interim final rule rather make an appointment to inspect 3 Id. at section 3801(a)(9).
than as a final rule because it increases comments, please call the Office of 4 See S.Rep. No. 99–212 at 6, 99th Cong., 1st Sess.
the maximum penalty amount set forth General Counsel at (202) 649–3804. 6 (1985) (‘‘[E]xisting remedies are not adequate to
asabaliauskas on DSK3SPTVN1PROD with RULES
in the proposed rule as required by the FOR FURTHER INFORMATION CONTACT: cope with the problem of fraud in Federal
programs. The Committee [of Governmental Affairs
Federal Civil Penalties Inflation Maura Dundon, Assistant General of the Senate], therefore, believes that an alternative
Adjustment Act Improvements Act of Counsel, Office of the General Counsel, administrative remedy is needed to adjudicate
2015 (Adjustment Improvements Act), (202) 649–3961, Maura.Dundon@ small-dollar false claim and statement cases that
and that Act also requires that such fhfa.gov, or Ellen Bailey, Managing otherwise would not be initiated civilly.’’).
5 31 U.S.C. 3801(a)(8)(A) and 3803. The Director
‘‘catch up’’ adjustments be published in Associate General Counsel, Office of of FHFA has designated the General Counsel of
the form of an interim final rule. If, prior General Counsel, (202) 649–3056, FHFA as FHFA’s reviewing official. See 80 FR
to the effective date of the interim final Ellen.Bailey@fhfa.gov, 400 Seventh 79719, 79719 n.5 (Dec. 23, 2015).
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![43032 Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations
an Administrative Law Judge (ALJ) B. Proposed Rule penalty is required.16 Both the
appointed or detailed for such purpose.6 requirement that the penalty be adjusted
PFCRA also establishes appeal rights to On December 23, 2015, FHFA and the adjustment formula to be
the agency head by any person published a proposed rule to implement applied are set forth in the Adjustment
determined by an ALJ to be liable, and PFCRA.11 Improvements Act. Further, the
further review is available by a U.S. Similar to the FDIC in its final rule, Adjustment Improvements Act requires
District Court.7 FHFA proposed that its PFCRA rule agencies to publish adjustments in
would apply only to FHFA’s accordance with that Act in an interim
A civil penalty may be imposed for
employment and contracting activities, final rule.17 Consequently, FHFA is
making a false claim or statement to an
and not to FHFA’s supervisory, publishing this rule as an interim final
agency even if the agency did not
regulatory, enforcement, rule to meet that requirement. If, prior
provide any money, property, services,
conservatorship, or receivership to the effective date of the interim final
or benefits to any person as a result.
activities because other civil and rule, FHFA does not receive any
Where money, property, services, or
administrative remedies available to comments from which FHFA concludes
benefits were provided as a result of the FHFA are adequate to redress fraud in
person’s false claim or statement, an that the rule should be revised, this rule
the areas not covered. FHFA noted in will become final without further action
‘‘assessment’’ may also be imposed as the notice of proposed rulemaking that by FHFA.
the administrative equivalent of it intended that the PFCRA Scope. As does the FDIC’s PFCRA
damages. The maximum amount of any administrative process not be confused rule, FHFA’s interim final rule states
civil penalty is established by PFCRA, with ordinary Agency procedures that it applies to FHFA’s employment
subject to periodic adjustments for available in regulatory or and contracting activities and does not
inflation, and PFCRA also caps any conservatorship situations.12 FHFA also apply to FHFA’s supervisory,
assessment at an amount equal to twice proposed a process to investigate and regulatory, enforcement,
the value of the money, property, adjudicate PFCRA claims in accordance conservatorship, or receivership
services, or benefits provided.8 with PFCRA’s procedural activities because other civil and
Following PFCRA’s enactment in requirements.13 Should a PFCRA case administrative remedies available to
1986, an interagency task force was proceed to adjudication by an ALJ, FHFA with regard to its regulated
established under the leadership of the FHFA proposed to use its existing Rules entities (Fannie Mae, Freddie Mac
Department of Health and Human of Practice and Procedure, which were (together, the Enterprises), any affiliate
Services to develop model incorporated by reference.14 of an Enterprise, and the Federal Home
implementing regulations by all affected FHFA’s proposed rule also Loan Banks) and the Office of Finance
agencies and departments. This action established a maximum civil penalty of the Federal Home Loan Bank System
was consistent with the expectation that that reflected an inflation adjustment to (OF) or any other entity-affiliated party
‘‘regulations would be substantively the statutory PFCRA civil penalty, are adequate to redress fraud in the
uniform throughout the government, addressed an assessment in lieu of areas not covered. This statement of
except as necessary to meet the specific damages of up to twice the amount of scope is almost identical to the scope set
needs of a particular agency or the false, fictitious, or fraudulent claim, forth by the FDIC in its PFCRA rule, at
program.’’ 9 For that reason, FHFA and stated that the PFCRA rule would 12 CFR 308.500(c).18
reviewed the PFCRA rules of other not preclude the imposition of any other In the event a regulated entity, any
departments and agencies and has authorized actions or sanctions affiliate of an Enterprise, or the OF or
modeled its proposed and interim final currently employed by FHFA, including any other entity-affiliated party made a
rule on the final rules of the Federal debarment and suspension of false claim on or provided false
Deposit Insurance Corporation (FDIC) contractors.15 information to FHFA in its supervisory,
and Department of Housing and Urban regulatory, enforcement,
FHFA invited comments on all
Development (HUD).10 The FDIC rule conservatorship, or receivership
aspects of the proposed rule during a
was employed because, like FHFA, activities, FHFA has other available
60-day comment period that closed on
FDIC is a federal financial safety and administrative remedies and
February 22, 2016. FHFA received one
soundness regulator. FHFA’s independent litigating authority. See
comment from a private citizen that did
supervisory, regulatory, enforcement, generally 12 U.S.C. 4513, 4514, 4585,
not address the substance of the
and resolution powers are similar to and 4636. As a result, even without
proposed rule.
FDIC’s, and both FDIC and FHFA have PFCRA, FHFA could pursue
express independent litigating authority II. Analysis of Final Rule; Publication
and authority to bring administrative as an Interim Final Rule 16 Section 701, Public Law 114–74 (Nov. 2, 2015),
actions for civil money penalties for codified as 28 U.S.C. 2461 note.
false claims or statements made to them FHFA has determined that no changes 17 28 U.S.C. 2461 note, section 4(b)(1)(A).
by their regulated institutions or entities to the scope and process of the rule as 18 FDIC’s PFCRA rule applies to FDIC’s
proposed are necessary in light of employment and contracting activities but does not
and affiliated parties separate and apart apply to false claims or statements made in
from authority provided by PFCRA. The comments received. Following connection with FDIC’s regulatory, supervision,
HUD rule was employed as it provides publication of the proposed rule, enforcement, insurance, receivership or liquidation
a structural model and an established however, FHFA reviewed provisions of responsibilities. See 12 CFR 308.500(c). FDIC
the recently enacted Adjustment explained that, as so limited, its rule was consistent
asabaliauskas on DSK3SPTVN1PROD with RULES
operational approach. with PFCRA’s underlying purpose ‘‘to provide
Improvements Act and has determined federal agencies with an administrative remedy for
6 31
that further adjustment of the maximum ‘small dollar fraud’ cases for which there is no other
U.S.C. 3803.
7 Id.;
remedy because the cases are too small for the [DOJ]
see also section 3805. to prosecute,’’ and distinguished FDIC’s
8 Id. at section 3802(a)(1) and (3). 11 See 80 FR 79719.
12 Id.
circumstances from those of other agencies based
9 See S. Rep. No. 99–212 at 12; see also 52 FR at 79720. on its other available administrative remedies and
13 Id. at 79720–79721.
27423 (July 21, 1987). on its independent litigating authority. 65 FR 52352
10 See 12 CFR part 308, subpart T (FDIC) and 24 14 Id. at 79721.
(Aug. 29, 2000) (proposed rule); see also 66 FR
CFR part 28 (HUD) (2015). 15 Id. 9187, 9188 (Feb. 7, 2001) (final rule).
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![43036 Federal Register / Vol. 81, No. 127 / Friday, July 1, 2016 / Rules and Regulations
at issue, and the reasons why liability § 1217.8 Statute of limitations. (12) Whether the respondent
arises from that claim or statement; The statute of limitations for cooperated in or obstructed an
(2) A statement that the required commencing a hearing under this part investigation of the misconduct;
approval to issue the notice was shall be tolled: (13) Whether the respondent assisted
received from the Department of Justice; (a) If the hearing is commenced in
in identifying and prosecuting other
(3) The amount of the penalty and, if accordance with 31 U.S.C. 3803(d)(2)(B)
within 6 years after the date on which wrongdoers;
applicable, any assessment for which
the respondent may be held liable; the claim or statement is made; or (14) The complexity of the program or
(4) A statement that the respondent (b) If the parties agree to such tolling. transaction, and the degree of the
may request a hearing by submitting a respondent’s sophistication with respect
§ 1217.9 Hearings.
written response to the notice; to it, including the extent of the
(a) General. Hearings under this part respondent’s prior participation in the
(5) The addresses to which a response shall be conducted in accordance with
must be sent in accordance with program or in similar transactions;
the procedures in subpart C of part 1209
§ 1209.15 of this chapter; of this chapter, governing actions in (15) Whether the respondent has been
(6) A statement that failure to submit accordance with subchapter II of found, in any criminal, civil, or
an answer within 30 days of receipt of chapter 5, U.S.C. (commonly known as administrative proceeding, to have
the notice may result in the imposition the Administrative Procedure Act). engaged in similar misconduct or to
of the maximum amount of penalties (b) Factors to consider in determining have dealt dishonestly with the
and assessments sought, without right of amount of penalties and assessments. In Government of the United States or of
appeal; determining an appropriate amount of a State, directly or indirectly;
(7) A statement that the respondent any civil penalty and, if appropriate,
(16) The need to deter the respondent
must preserve and maintain all any assessment, the presiding officer
and, upon appeal, the Director or and others from engaging in the same or
documents and data, including
designee thereof, shall consider and similar misconduct;
electronically stored data, within the
possession or control of the respondent state in his or her opinion any (17) The respondent’s ability to pay;
that may relate to the allegations; and mitigating or aggravating circumstances. and
(8) A copy of this part 1217 and part The amount of penalties and (18) Any other factors that in any
1209, subpart C of this chapter. assessments imposed shall be based on given case may mitigate or aggravate the
(c) Obligation to preserve documents. the presiding officer’s and the Director’s
seriousness of the false claim or
Upon the issuance of a notice under this or designee’s consideration of evidence
statement.
section, FHFA and the respondent shall in support of one or more of the
following factors: (c) Stays ordered by the Department
each preserve and maintain all
(1) The number of false, fictitious, or of Justice. If at any time the Attorney
documents and data, including
fraudulent claims or statements; General or an Assistant Attorney
electronically stored data, within their (2) The time period over which such
respective possession or control that General designated by the Attorney
claims or statements were made; General notifies the Director in writing
may relate to the allegations in the (3) The degree of the respondent’s
complaint. that continuation of FHFA’s action may
culpability with respect to the adversely affect any pending or
§ 1217.7 Response. misconduct; potential criminal or civil action related
(4) The amount of money or the value
(a) General. (1) To obtain a hearing, to the claim or statement at issue, the
of the property, services, or benefit
the respondent must file a written falsely claimed; presiding officer or the Director shall
response to a notice under § 1217.6: (5) The value of the actual loss to stay the FHFA action immediately. The
(i) In accordance with § 1209.24 of FHFA as a result of the misconduct, FHFA action may be resumed only upon
this chapter; and including foreseeable consequential receipt of the written authorization of
(ii) Not later than 30 days after the damages and the cost of investigation; the Attorney General.
date of service of the notice. (6) The relationship of the civil
penalties to the amount of the loss to § 1217.10 Settlements.
(2) A timely filed response to a notice
under § 1217.6 shall be deemed to be a FHFA; (a) General. The reviewing official, on
request for a hearing. (7) The potential or actual impact of behalf of FHFA, and the respondent
(3) A response to a notice under the misconduct upon public health or may enter into a settlement agreement
§ 1217.6 must include: safety or public confidence in the under § 1209.20 of this chapter at any
(i) The admission or denial of each management of FHFA programs and time prior to the issuing of a notice of
allegation of liability made in the notice; operations, including particularly the
final decision under § 1209.55 of this
impact on the intended beneficiaries of
(ii) Any defense on which the chapter.
such programs;
respondent intends to rely; (8) Whether the respondent has (b) Failure to comply. Failure of the
(iii) Any reasons why the penalty and, engaged in a pattern of the same or respondent to comply with a settlement
if appropriate, any assessment should be similar misconduct; agreement shall be sufficient cause for
less than the amount set forth in the (9) Whether the respondent attempted resuming an action under this part, or
notice; and to conceal the misconduct; for any other judicial or administrative
asabaliauskas on DSK3SPTVN1PROD with RULES
(iv) The name, address, and telephone (10) The degree to which the action.
number of the person who will act as respondent has involved others in the
the respondent’s representative, if any. misconduct or in concealing it; Dated: June 27, 2016.
(b) Failure to respond. If no response (11) If the misconduct of employees or Melvin L. Watt,
to a notice under this part is timely agents is imputed to the respondent, the Director, Federal Housing Finance Agency.
submitted, FHFA may file a motion for extent to which the respondent’s [FR Doc. 2016–15620 Filed 6–30–16; 8:45 am]
default judgment in accordance with practices fostered or attempted to BILLING CODE 8070–01–P
§ 1209.24(c) of this part. preclude the misconduct;
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Document Created: 2016-07-14 11:37:47
Document Modified: 2016-07-14 11:37:47
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule. | |
| Contact | Maura Dundon, Assistant General Counsel, Office of the General Counsel, (202) 649-3961, [email protected], or Ellen Bailey, Managing Associate General Counsel, Office of General Counsel, (202) 649-3056, [email protected], 400 Seventh Street SW., Eighth Floor, Washington, DC 20219 (not toll free numbers). The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877- 8339. | |
| FR Citation | 81 FR 43031 | |
| RIN Number | 2590-AA76 | |
| CFR Associated | Civil Remedies and Program Fraud |
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