1994 US Code
Title 42 - THE PUBLIC HEALTH AND WELFARE
CHAPTER 44 - DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Sec. 3537b - Registration of consultants

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§3537b. Registration of consultants (a) Record of expenditures (1) Requirement to maintain

Each person who makes an expenditure to influence the decision of any officer or employee of the Department, through communication with such officer or employee, with respect to—

(A) the award of any financial assistance within the jurisdiction of the Department, or

(B) any management action involving a change in the terms and conditions or status of financial assistance awarded to any person,

shall keep records, as required by this section. The preceding sentence shall not apply to expenditures incurred in complying with conditions, requirements, or procedures imposed by the Secretary in connection with any financial assistance.

(2) Covered information

Each person referred to in paragraph (1) shall keep a detailed and exact account of—

(A) all such expenditures made by or on behalf of such person; and

(B) the name and address of every person to whom any such expenditure is made and the date of the expenditure.

(3) Maintenance of records

Each person making such an expenditure shall obtain a bill, stating the particulars, for every such expenditure, and shall retain all records required by this section for not less than the 2-year period beginning on the date of the filing of the report required by subsection (b) of this section, which shall include the information under paragraph (2).

(4) Limitation of fees

Any person engaged for pay or other consideration for the purpose of attempting to influence any award or allocation of financial assistance within the jurisdiction of the Department shall not seek or receive any fee that is—

(A) based on the amount of assistance or number of units that may be provided by the Secretary, or

(B) contingent on an award of assistance by the Secretary, except where—

(i) services are provided to a nonprofit entity applying for such award or allocation of assistance; and

(ii) professional services related to a project are donated in whole or in part to a nonprofit entity in the event assistance for a project is not awarded.

(b) Reports of expenditures filed with Secretary (1) Report

Each person making an expenditure for the purposes designated in subsection (a)(1) of this section shall file with the Secretary, between the 1st and 10th day of each calendar year, a report specifying the total expenditures made by or on behalf of such person during the year and the information required by subsection (a)(2)(B) of this section.

(2) Regular employees

The requirements of this subsection shall not apply in the case of a payment of reasonable compensation made to any regularly employed officer or employee of the person who requests or receives assistance within the jurisdiction of the Department, or who is involved in any management action with respect to such assistance.

(3) Minimum dollar requirements

The requirements of this subsection shall not apply to any person whose total expenditures for purposes described in subparagraphs (A) and (B) of subsection (a)(1) of this section are less than ,000 in any calendar year.

(4) Filing and retention

A report required by this subsection—

(A) shall be considered properly filed when deposited in a post office within the prescribed time, stamped, registered, and addressed to the Secretary, but if the Secretary does not receive the report, the person shall promptly file a duplicate report when the Secretary notifies the person that the original report has not been received; and

(B) shall be retained by the Secretary for the 2-year period beginning on the date of filing, shall constitute part of the public records of the Department, and shall be open to public inspection.

(5) Publication of information

The Secretary shall compile all expenditure information as soon as practicable after the close of the calendar year with respect to which the information is filed and shall publish it as a notice in the Federal Register.

(c) Registration by persons attempting to influence Department decisions (1) Requirement and information

Each person receiving payment or any consideration for the purpose described in subsection (a)(1) of this section, shall, not later than 14 days after being retained for such purpose, register with the Secretary. The registration shall be in writing and shall include the name and business address of the registrant, the name and address of the registrant's employer and of any person or entity in whose interest the registrant appears or works, and a statement of whether the registrant has been employed by the Federal Government during the 2-year period ending on the date of the registration and in what capacity. Each registrant shall, between the 1st and 10th day of each calendar year, file with the Secretary a detailed report of all money received and expended by the registrant during the preceding year in carrying out the work, including information as to whom money was paid, and for what purposes.

(2) Minimum dollar requirement

The requirements of the last sentence of paragraph (1) shall not apply with respect to any calendar year to any person whose total compensation for attempting to influence a decision with respect to assistance within the jurisdiction of the Department or a management action with respect to such assistance is less than ,000 in such year.

(3) Publication of information

The Secretary shall compile all registration information as soon as practicable after the close of the calendar year with respect to which the information is filed and shall publish it annually as a notice in the Federal Register.

(d) Civil money penalties (1) Authority

Whenever any person knowingly fails to file a report required under subsection (b) of this section, or any person knowingly fails to register and file a report required under subsection (c) of this section, the Secretary may impose a civil money penalty on that person in accordance with the provisions of this subsection. The penalty shall be in addition to any other available civil remedy or any available criminal penalty, and may be imposed whether or not the Secretary imposes other administrative sanctions.

(2) Amount of penalty

The amount of the penalty, as determined by the Secretary, shall not exceed the greater of—

(A) ,000 for each violation; or

(B) the total amount received for any services performed for any applicant to which the violation under paragraph (1) relates.

(3) Factors in determining amount of penalty

In determining the amount of a penalty under this subsection, consideration shall be given to such factors as the gravity of the offense, any history of prior offenses (including offenses occurring before December 15, 1989), ability to pay the penalty, injury to the public, benefits received, deterrence of future violations, and such other factors as the Secretary may determine in regulations to be appropriate.

(4) Agency procedures (A) Establishment

The Secretary shall establish standards and procedures governing the imposition of civil money penalties under paragraph (1). These standards and procedures shall—

(i) provide for the Secretary or other department official to make the determination to impose the penalty or for use of an administrative entity to make the determination;

(ii) provide for the imposition of a penalty only after the person has been given an opportunity for a hearing on the record; and

(iii) provide for review of any determination or order, or interlocutory ruling, arising from a hearing.

(B) Final orders

If no hearing is requested within 15 days of receipt of the notice of opportunity for hearing, the imposition of the penalty shall constitute a final and unappealable determination. If the Secretary reviews the determination or order, the Secretary may affirm, modify, or reverse that determination or order. If the Secretary does not review the determination or order within 90 days of the issuance of the determination or order, the determination or order shall be final.

(C) Reviewability of imposition of penalty

The Secretary's determination or order imposing a penalty under paragraph (1) shall not be subject to review, except as provided in paragraph (5).

(5) Judicial review of agency determination (A) In general

After exhausting all administrative remedies established by the Secretary under paragraph (4)(A), a person against whom the Secretary has imposed a civil money penalty under paragraph (1) may obtain a review of the penalty and such ancillary issues as may be addressed in the notice of determination to impose a penalty under paragraph (4)(A)(i) in the appropriate court of appeals of the United States, by filing in such court, within 20 days after the entry of such order or determination, a written petition praying that the Secretary's order or determination be modified or be set aside in whole or in part.

(B) Objections not raised in hearing

The court shall not consider any objection that was not raised in the hearing conducted pursuant to paragraph (4)(A) unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection. If any party demonstrates to the satisfaction of the court that additional evidence not presented at the hearing is material and that there are reasonable grounds for the failure to present such evidence at the hearing, the court shall remand the matter to the Secretary for consideration of such additional evidence.

(C) Scope of review

The decisions, findings, and determinations of the Secretary shall be reviewed pursuant to section 706 of title 5.

(D) Order to pay penalty

Notwithstanding any other provision of law, in any such review, the court shall have the power to order payment of the penalty imposed by the Secretary.

(6) Action to collect penalty

If any person fails to comply with the Secretary's determination or order imposing a civil money penalty under paragraph (1), after the determination or order is no longer subject to review as provided by paragraphs (4)(A) and (5), the Secretary may request the Attorney General of the United States to bring an action in an appropriate United States district court to obtain a monetary judgment against the person and such other relief as may be available. The monetary judgment may, in the discretion of the court, include any attorneys’ fees and other expenses incurred by the United States in connection with the action. In an action under this paragraph, the validity and appropriateness of the Secretary's determination or order imposing the penalty shall not be subject to review.

(7) Settlement by Secretary

The Secretary may compromise, modify, or remit any civil money penalty which may be, or has been, imposed under this subsection.

(8) Deposit of penalties

The Secretary shall deposit all civil money penalties collected under this subsection into miscellaneous receipts of the Treasury.

(e) Prohibition on consulting activities (1) In general

Whoever is fined under subsection (d) of this section may be prohibited, for the 3-year period beginning on the date of the imposition of the fine, from receiving any payment or thing of value for performing any services (with respect to any application for financial assistance within the jurisdiction of the Department) for any applicant.

(2) Criminal penalty

Whoever violates the prohibition under paragraph (1) shall, upon conviction, be guilty of a felony and shall be fined under title 18, or imprisoned not more than 5 years, or both.

(f) Definitions

For purposes of this section:

(1) The term “person” means an individual (including a consultant, lobbyist, or lawyer), corporation, company, association,,1 firm, partnership, society,,,1 or any other organization or group of people, but does not include a State or local government, or the officer or employee of a State or local government or housing finance agency thereof who is engaged in the official business of the State or local government.

(2) The term “expenditure” includes a payment, distribution, loan, advance, deposit, gift of money, or anything else of value, and includes a contract, promise, or agreement, whether or not legally enforceable, to make an expenditure.

(3) The term “financial assistance within the jurisdiction of the Department” includes any contract, grant, loan, cooperative agreement, or other form of assistance, including the insurance or guarantee of a loan, mortgage, or pool of mortgages.

(4) The term “knowingly” means having actual knowledge of or acting with deliberate ignorance of or reckless disregard for the prohibitions under this section.

(5) The term “reasonable compensation” means, with respect to a regularly employed officer or employee of any person, compensation that is consistent with the normal compensation for such officer or employee for work that is not furnished to or not furnished in cooperation with the Department.

(6) The term “regularly employed” means, with respect to an officer or employee of a person requesting or receiving assistance within the jurisdiction of the Department or who is involved in a management action with respect to such assistance, an officer or employee who is employed by such person for at least 130 working days within one year immediately before the date of the submission that initiates departmental consideration of such person for receipt of such assistance, or the date of initiation of any management action.

(g) Regulations

The Secretary shall issue any regulations necessary to implement this section.

(h) Effective date

This section shall take effect on the date specified in regulations implementing this section that are issued by the Secretary after notice and public comment. The regulations shall establish standards that include determinations of what types of activities constitute influence with respect to the decisions of the Department described in subsection (a)(1)(A) and (B) of this section.

(Pub. L. 89–174, §13, as added Pub. L. 101–235, title I, §112, Dec. 15, 1989, 103 Stat. 2016; amended Pub. L. 102–550, title IX, §926, Oct. 28, 1992, 106 Stat. 3885.)

Amendments

1992—Subsec. (f)(1). Pub. L. 102–550 struck out “authority” after “association,”, “State” after “society,”, and “local government” before “, or any other” and inserted before period at end “, but does not include a State or local government, or the officer or employee of a State or local government or housing finance agency thereof who is engaged in the official business of the State or local government”.

Section Referred to in Other Sections

This section is referred to in title 12 section 1708.

1 So in original.