[Federal Register Volume 63, Number 98 (Thursday, May 21, 1998)]
[Notices]
[Pages 28214-28215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13636]
[[Page 28213]]
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Part IV
Department of Housing and Urban Development
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Notice and Request for Comments on HUD's Implementation of the Small
Business Regulatory Enforcement Fairness Act of 1996; Notice
Federal Register / Vol. 63, No. 98 / Thursday, May 21, 1998 /
Notices
[[Page 28214]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
[Docket No. FR-4347-N-01]
Notice and Request for Comments on HUD's Implementation of the
Small Business Regulatory Enforcement Fairness Act of 1996
AGENCY: Office of the Secretary, HUD.
ACTION: Notice.
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SUMMARY: This notice solicits comments on HUD's implementation of the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).
The notice describes HUD's implementation to date of SBREFA and
additional implementation plans.
DATES: Comment Due Date: July 20, 1998.
ADDRESSES: Interested persons are invited to submit comments regarding
this document to the Regulations Division, Office of the General
Counsel, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title and to the specific sections
in the regulation. Facsimile (FAX) comments are not acceptable. A copy
of each communication submitted will be available for public inspection
and copying during regular business hours at the above address.
FOR FURTHER INFORMATION CONTACT: Casimir Bonkowski, Director, Office of
Small and Disadvantaged Businesses, Department of Housing and Urban
Development, Room 3130 451 Seventh Street, S.W., Washington, DC 20410,
telephone 202-708-1428. Hearing- or speech-impaired persons may use the
telecommunications system for the hearing-impaired (TTY) by contacting
the Federal Information Relay Service on 1-800-877-TTY (1-800-877-8339)
or (202) 708-9300. (Other than the ``800'' TTY number, telephone
numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
I. The Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(Pub.L. 104-121, 110 Stat. 847, approved March 29, 1996) (``SBREFA'')
provides, among other things, for agencies to establish specific
policies or programs to assist small entities. Small entities include
small businesses, nonprofit organizations, and small governmental
jurisdictions.
Section 213 of SBREFA requires each covered agency to establish a
program to answer inquiries concerning information and advice about
compliance with statutes and regulations within the agency's
jurisdiction. The agency must use information received during these
inquiries to help small entities interpret and apply the regulations to
specific facts.
Section 223 of SBREFA requires each covered agency to establish a
policy or program to reduce or waive civil penalties when a small
entity violates a statute or regulation. Under appropriate
circumstances, an agency may consider ability to pay when it assesses a
penalty against a small entity. 1
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\1\ The applicable procurement statutes and regulations do not
provide for special consideration of or rights for small
governmental entities. SBREFA did not make statutory changes that
would result in changes to the Federal Acquisition Regulation to
address small entities.
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II. Identification of HUD Regulations That May Have a Significant
Economic Impact on a Substantial Number of Small Entities
Although HUD is not generally regarded as a ``regulatory agency'',
HUD has important regulatory responsibilities, including oversight and
enforcement of the Real Estate Settlement Procedures Act (RESPA) and
the Interstate Land Sales Full Disclosure Act; oversight over certain
activities of government-sponsored enterprises (GSEs); oversight and
enforcement of FHA mortgage insurance programs; and the establishment
and enforcement of lead-based paint hazard control standards and
manufactured housing standards.
HUD has long had in place a systematic process for determining
whether newly developed rules are likely to have a significant economic
impact on a substantial number of small entities. The typical HUD rule
implements statutory directions for the administration of grant
programs. Rules of this type are intended to reflect Congressional
mandates that, by their nature, have universal applicability to the
portion of the public affected by the rule. These rules generally do
not lend themselves to the provision of special procedures, or
exemptions from requirements, applicable to small entities. Although
HUD Rules are generally not the type to lend themselves to special
procedures or exemptions for small entities, HUD nevertheless has
developed a process intended to introduce additional scrutiny to
existing procedures for safeguarding the interests of small entities
during development and following implementation of regulations.
To ensure that there is a meaningful assessment of HUD rules to
determine which rules, if any, will have a significant economic impact
on substantial number of small businesses, HUD:
(1) Targets regulations that may impact small businesses at the
earliest opportunity in the development process; and
(2) Assigns oversight responsibility to HUD's Office of Small and
Disadvantaged Business Utilization (OSDBU) to review:
(i) the HUD program office's assessment of any significant economic
impact on a substantial number of small entities;
(ii) the HUD program office's assessment and disposition of all
alternative rule implementation strategies submitted by small entities,
and
(iii) the small entity compliance guides prepared by the program
offices, where applicable.
III. Guidance to Small Entities
To help small entities understand their obligations under the
regulations administered by HUD, HUD provides both general guidance and
individualized advice. OSDBU maintains the requirements of the SBREFA
and Regulatory Flexibility Act on the HUD web site with instructions to
small entities on the OSDBU role as small business Ombudsman, as well
as copies of compliance guides, names of HUD staff with familiarity in
HUD programs that may impact small businesses, to answer questions, and
a users forum where representatives of small entities can ask questions
on a specific rule as a means of providing a fast means of clarifying
issues. Additionally, small entities can download regulations, forms,
and documentation from the HUD web pages. If a small entity does not
have access to a computer, HUD will mail this information on request.
To ensure that we evaluate and update our small entity assistance
program periodically, HUD works with the Small Business Administration
to identify small business concerns in the housing industry.
IV. Rights of Small Entities in Enforcement Actions
Section 223 of SBREFA requires agencies that regulate the
activities of small entities to establish a policy or program to reduce
or, under appropriate circumstances, waive civil penalties when a small
entity violates a statute or
[[Page 28215]]
regulation. (For purposes of brevity, this policy or program is
referred to as the ``small entity compliance policy.'')
Section 223 also requires an agency's small entity compliance
policy to contain conditions or exclusions (subject to any restrictions
or limitations that may be imposed on the agency by other statutes),
which conditions or exclusions may include, but are not limited to the
following:
(1) Requiring small entities to correct the violation within a
reasonable correction period;
(2) Limiting applicability of the small entity compliance policy to
violations discovered when small entities participate in a compliance
assistance or audit program operated by the agency;
(3) Excluding from applicability of the small entity compliance
policy those small entities that have been subject to multiple
enforcement actions by the agency;
(4) Excluding from applicability of the small entity compliance
policy violations involving willful or criminal conduct or that pose
serious health, safety, or environmental threats, safety, or requiring
a good-faith effort to comply with the law.
Federal statutes and regulations authorize HUD to impose civil
penalties in conjunction with regulatory and enforcement issues. Under
these authorities, HUD has authority to issue civil money penalties for
violations of requirements governing its grant, mortgage insurance, and
the regulatory programs, identified earlier in this notice.
In establishing its policy for implementation of SBREFA, following
enactment of SBREFA, HUD reported to President Clinton and the Congress
that, under appropriate circumstances, HUD may consider ability to pay
in determining penalty assessments on small entities. HUD notes that
the ability to pay is a legislative directive for many programs under
the Department of Housing and Urban Development Reform Act of 1989
(Pub. L. 101-235, approved December 15, 1989). HUD's policy to date has
been to assist regulated entities in achieving compliance with
requirements in order to avoid any penalty process.
Where penalties are determined appropriate, HUD's policy is to
consider: (1) the nature of the violation (the violation must not be
one that is repeated or multiple, willful, criminal or poses health or
safety risks), (2) whether the entity has shown a good faith effort to
comply with the regulations; and (3) the resources of the regulated
entity. Depending upon the circumstances surrounding the violation, it
is not HUD's intent to put any individual or entity out of business by
the penalties or settlement amounts paid to the Federal Government.
V. Small Entities' Comments on Agencies Enforcement Activities
Section 222 of SBREFA requires the Small Business and Agriculture
Regulatory Enforcement Ombudsman to ``work with each agency with
regulatory authority over small businesses to ensure that small
business concerns that receive or are subject to an audit, on-site
inspection, compliance assistance effort other enforcement related
communication or contact by agency personnel are provided with a means
to comment on the enforcement activity conducted by this personnel.
To implement this statutory provision, the Small Business
Administration has requested that agencies include the following
language on agency publications and notices which are provided to small
businesses concerns at the time the enforcement action is undertaken.
The language is as follows:
Your Comments Are Important
The Small Business and Agriculture Regulatory Enforcement
Ombudsman and 10 Regional Fairness Boards were established to
receive comments from small businesses about federal agency
enforcement actions. The Ombudsman will annually evaluate the
enforcement activities and rate each agency's responsiveness to
small business. If you wish to comment on the enforcement actions of
[insert agency name], call [provide telephone number].
HUD intends to work with the Small Business Administration to
provide small entities with information on the Fairness Boards and
National Ombudsman program, at the time enforcement actions are taken,
to ensure that small entities have the full means to comment on the
enforcement activity conducted by HUD. HUD intends to include this
language in HUD general circulation issuances and publications
regarding enforcement actions. HUD welcomes comments on the manner in
which it has implemented SBREFA to date, and the additional action
intended to be taken as described in this notice.
Dated: May 14, 1998.
Andrew Cuomo,
Secretary.
[FR Doc. 98-13636 Filed 5-20-98; 8:45 am]
BILLING CODE 4210-32-P
