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the lesser of $250,000 or 10 percent of 84.13 Limitation of assistance subject the assistance;
to Section 102(d). (ii) Any change in the expected (a) In making the certification for assources or uses of funds that exceed the sistance subject to Section 102(d), the amount of all previously disclosed Secretary will consider the aggregate sources or uses by the lesser of $250,000 amount of assistance from the Departor 10 percent of previously disclosed ment and from other sources that is sources;
necessary to ensure the feasibility of (2) For all other programs:
the assisted activity. The Secretary (i) Any change in other government
will take into account all factors relassistance under Section 102(b)(1) that
evant to feasibility, which may inexceeds the amount of assistance that
clude, but are not limited to, past rates
of returns for owners, sponsors, and inwas previously disclosed;
vestors; the long-term needs of the (ii) Any change in the pecuniary in
project and its tenants; and the usual terest of any person under Section
and customary fees charged in carrying 102(b)(2) that exceeds the amount of all
out the assisted activity. previously disclosed interests by the
(b) If the Department determines lesser of $50,000 or 10 percent of such in that the aggregate of assistance within terest;
the jurisdiction of the Department to a (iii) For all projects receiving a tax housing project from the Department credit under Federal, Sate or local law, and from other governmental sources any change in the expected sources or exceeds the amount that the Secretary uses of funds that were previously dis determines is necessary to make the closed;
assisted activity feasible, the Depart(iv) For all other projects:
ment will consider all options available (A) Any change in the expected
to enable it to make the required cersource of funds from a single source
tification, including reductions in the
amount of Section 8 subsidies. The Dethat exceeds the lesser of the amount previously disclosed for that source of
partment also may impose a dollar-for
dollar, or equivalent, reduction in the funds by $250,000 or 10 percent of the
amount of HUD assistance to offset the funds previously disclosed for that
amount of other government assistsource;
ance. In grant programs, this could re(B) Any change in the expected sult in a reduction of any grant sources of funds from all sources pre amounts not yet drawn down. The Deviously disclosed that exceeds the less partment may make these adjustments er of $250,000 or 10 percent of the immediately, or in conjunction with amounts previously disclosed from all servicing actions anticipated to occur sources of funds;
in the near future (e.g., in conjunction (C) Any change in a single expected with the next annual adjustment of use of funds that exceeds the lesser of Section 8 rents). $250,000 or 10 percent of the previously (c) If an applicant does not meet the disclosed use;
$200,000 disclosure requirement in (D) Any change in the use of all funds $4.7(b), an applicant must certify that exceeds the lesser of $250,000 or 10
whether there is, or is expected to be percent of the previously disclosed uses
made, available with respect to the for all funds.
housing project any other govern(c) Period of coverage. For purposes of
mental assistance. The Department
may also require any applicant subject updating of Section 102(c), an applica
to this subpart A to submit such a certion for assistance will be considered to
tification in conjunction with the Debe pending from the time the applica
partment's processing of any subsetion is submitted until the Department quent servicing action on that project. communicates its decision with respect
If there is other government assistance to the selection of the applicant.
for purposes of the two preceding sen(Approved by the Office of Management and
tences, the applicant must submit such Budget under control number 2510-0011)
information as the Department deems necessary to make the certification
and subsequent adjustments under Section 102(d).
(d) The certification under Section 102(d) shall be retained in the official file for the housing project.
Subpart B-Prohibition of Advance
Disclosure of Funding Decisions
8 4.20 Purpose.
The provisions of this subpart B are authorized under section 103 of the Department of Housing and Urban Development Reform Act of 1989 (Pub. L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter, Section 103). Both the provisions of Section 103 and this subpart B apply for the purposes of Section 103. Section 103 proscribes direct or indirect communication of certain information during the selection process by HUD employees to persons within or outside of the Department who are not authorized to receive that information. The purpose of the proscription is to preclude giving an unfair advantage to applicants who would receive information not available to other applicants or to the public. Section 103 also authorizes the Department to impose a civil money penalty on a HUD employee who knowingly discloses protected information, if such a violation of Section 103 is material, and authorizes the Department to sanction the person who received information improperly by, among other things, denying assistance to that person.
tained on a contractual or consultative basis under an Office of Human Resources appointment. However, “employee" does not include an independent contractor, e.g., a firm or individual working under the authority of a procurement contract.
Material or materially means in some influential or substantial respect or having to do more with substance than with form.
Person means an individual, corporation, company, association, authority, firm, partnership, society, State, local government, or any other organization or group of people.
Selection process means the period with respect to a selection for assistance that begins when the HUD official responsible for awarding the assistance involved, or his or her designee, makes a written request (which includes the selection criteria to be used in providing the assistance) to the Office of General Counsel (OGC) to prepare the NOFA, solicitation, or request for applications for assistance for publication in the FEDERAL REGISTER. The period includes the evaluation of applications, and concludes with the announcement of the selection of recipients of assistance.
(a) Coverage. The prohibitions against improper disclosure of covered selection information apply to any person who is an employee of the Department. In addition, the Department will require any other person who participates at the invitation of the Department in the selection process to sign a certification that he or she will be bound by the provisions of this part.
(b) Applicability. The prohibitions contained in this part apply to conduct occurring on or after June 12, 1991.
Application means a written request for assistance regardless of whether the request is in proper form or format.
Assistance does not include any contract (e.g., a procurement contract) that is subject to the Federal Acquisition Regulation (FAR) (48 CFR ch. 1).
Disclose means providing information directly or indirectly to person through any means of communication.
Employee includes persons employed on a full-time, part-time, or temporary basis, and special government employees as defined in 18 U.S.C. 202. The term applies whether or not the employee is denoted as an officer of the Department. “Employee" is to be construed broadly to include persons who are re
provision of technical assistance concerning program requirements, provided that the requirements or statements are disclosed on a uniform basis to any applicant or potential applicant. For purposes of this part, the term "technical assistance" includes such activities as explaining and responding to questions about program regulations, defining terms in an application package, and providing other forms of technical guidance that may be described in a NOFA. The term “technical assistance" also includes identification of those parts of an application that need substantive improvement, but this term does not include advising the applicant how to make those improvements.
(2) The dates by which particular decisions in the selection process will be made;
(3) Any information which has been published in the FEDERAL REGISTER in a NOFA or otherwise;
(4) Any information which has been made public through means other than the FEDERAL REGISTER;
(5) An official audit, inquiry or investigation, if the disclosure is made to an auditor or investigator authorized by the HUD Inspector General to conduct the audit or investigation;
(6) Legal activities, including litigation, if the disclosure is made to an attorney who is representing or is otherwise responsible to the Department in connection with the activities; or
(7) Procedures that are required to be performed to process an application, e.g., environmental or budget reviews, and technical assistance from experts in fields who are regularly employed by other government agencies, provided that the agency with which the expert is employed or associated is not an applicant for HUD assistance during the pending funding cycle.
(b) An authorized employee, during the selection process, may contact an applicant for the purpose of:
(1) Communication of the applicant's failure to qualify, after a preliminary review for eligibility and completeness with respect to his or her application, and the reasons for the failure to qualify, or the fact of the applicant's failure to be determined to be technically acceptable after a full review; or
(2) Clarification of the terms of the applicant's application. A clarification, for the purpose of this paragraph (b), may include a request for additional information consistent with regulatory requirements.
(c) hibition of advance disclosure of funding decisions. During the selection process an employee shall not knowingly disclose any covered selection information regarding the selection process to any person other than an employee authorized to receive that information.
(1) The following disclosures of information are, at any time during the selection process, a violation of Section 103:
(i) Information regarding any applicant's relative standing;
(ii) The amount of assistance requested by any applicant;
(iii) Any information contained in an application;
(2) The following disclosures of information, before the deadline for the submission of applications, shall be a violation of Section 103:
(i) The identity of any applicant; and (ii) The number of applicants.
8 4.28 Civil penalties.
Whenever any employee knowingly and materially violates the prohibition in Section 103, the Department may impose a civil money penalty on the employee in accordance with the provisions of 24 CFR part 30.
8 4.30 Procedure upon discovery of a
violation. (a) In general. When an alleged violation of Section 103 or this subpart B comes to the attention of any person, including an employee, he or she may either:
(1) Contact the HUD Ethics Law Division to provide information about the alleged violation; or
(2) Contact the HUD Office of Inspector General to request an inquiry or investigation into the matter.
(b) Ethics Law Division. When the Ethics Law Division receives information concerning an alleged violation of Section 103, it shall refer the matter to the Inspector General stating the facts of the alleged violation and requesting
that the Inspector General make an in 84.34 Review of Inspector Generals quiry or investigation into the matter. report by the Ethics Law Division. (c) Inspector General. When the In
After receipt of the Inspector Genspector General receives information
eral's report, the Ethics Law Division concerning an alleged violation of Sec
shall review the facts and cirtion 103 or this subpart B, he or she
cumstances of the alleged violations. shall notify the Ethics Law Division In addition, the Ethics Law Division when the Inspector General begins an may: inquiry or investigation into the mat (a) Return the report to the Inspector ter.
General with a request for further in(d) Protection of employee complain vestigation; ants. (1) No official of the Ethics Law (b) Discuss the violation with the emDivision, after receipt of information ployee alleged to have committed the from an employee stating the facts of violation; or an alleged violation of this part, shall (c) Interview any other person, indisclose the identity of the employee cluding employees who it believes will without the consent of that employee. be helpful in furnishing information The Inspector General, after receipt of relevant to the inquiry. information stating the facts of an alleged violation of this part, shall not
84.36 Action by the Ethics Law Divi
sion. disclose the identity of the employee who provided the information without (a) After review of the Inspector Genthe consent of that employee, unless eral's report, the Ethics Law Division the Inspector General determines that
shall determine whether or not there is disclosure of the employee's identity is
sufficient information providing a reaunavoidable during the course of an in
sonable basis to believe that a violavestigation. However, any employee
tion of Section 103 or this subpart B who knowingly reports a false alleged
has occurred. violation of this part is not so pro
(b) If the Ethics Law Division detertected and may be subject to discipli
mines that there is no reasonable basis nary action.
to believe that a violation of Section (2) Any employee who has authority
103 or this subpart B has occurred, it to take, direct others to take, rec
shall close the matter and send its deommend or approve a personnel action
termination to the Office of Inspector
General. is prohibited from threatening, taking,
(c) If the Ethics Law Division deterfailing to take, recommending, or ap
mines that there is sufficient informaproving any personnel action as reprisal against another employee for
tion to provide a reasonable basis to
believe that a violation of Section 103 providing information to investigating
or this subpart B has occurred, it shall: officials.
(1) Send its determination to the Of84.32 Investigation by Office of In
fice of Inspector General; and spector General.
(2) Refer the matter to the appro
priate official for review as to whether The Office of Inspector General shall
to impose a civil money penalty in acreview every alleged violation of Sec- cordance with 24 CFR part 30; provided, tion 103. If after a review the Office of however, that the Ethics Law Division Inspector General determines that fur shall not make a civil money penalty ther investigation is not warranted, it recommendation unless it finds the shall notify the Ethics Law Division of violation to have been knowing and that determination. If, after a review, material. The decision to impose a the Office of Inspector General deter- civil money penalty in a particular mines that additional investigation is matter may be made only upon referral warranted, it shall conduct the inves- from the Ethics Law Division. tigation and upon completion issue a (d) In determining whether a violareport of the investigation to the Eth tion is material, the Ethics Law Diviics Law Division as to each alleged vio- sion shall consider the following faclation.
tors, as applicable:
(1) The content of the disclosure and (c) The Secretary may impose a sancits significance to the person to whom tion authorized by this section whether the disclosure was made;
or not the Ethics Law Division refers a (2) The time during the selection case under 24 CFR part 30, and whether process when the disclosure was made; or not a civil money penalty is im
(3) The person to whom the disclo posed.
PART 5-GENERAL HUD PROGRAM requested by the person to whom the REQUIREMENTS; WAIVERS disclosure was made;
(5) The dollar amount of assistance Subpart A-Generally Applicable Definiavailable for a given competition or tions and Federal Requirements; Walvprogram;
ers (6) The benefit, if any, received or ex
Subpart B-Disclosure and Verification of partment.
Social Security Numbers and Employer (e) If the Ethics Law Division deter
Identification Numbers; Procedures for mines that there is sufficient informa
Obtaining Income Information tion to provide a reasonable basis to 5.210 Purpose, applicability, and Federal believe that a violation of Section 103 preemption. or this subpart B has occurred, it may, 5.212 Compliance with the Privacy Act and in addition to referring the matter
other requirements. under 24 CFR part 30, refer the matter
5.214 Definitions. to an appropriate HUD official for con
DISCLOSURE AND VERIFICATION OF SOCIAL SEsideration of any other available dis
CURITY NUMBERS AND EMPLOYER IDENTIciplinary action. Any referral author FICATION NUMBERS FOR APPLICANTS AND ized by this paragraph (e) shall be re PARTICIPANTS IN CERTAIN HUD PROGRAMS ported to the Inspector General and
5.216 Disclosure and verification of Social may be reported to the employee's su
Security and Employer Identification pervisor.
5.218 Penalties for failing to disclose and $4.38 Administrative remedies.
verify Social Security and Employer
Identification Numbers. (a) If the Department receives or obtains information providing a reason PROCEDURES FOR OBTAINING INCOME INFORMAable basis to believe that a violation of TION ABOUT APPLICANTS AND PARTICIPANTS Section 103 has occurred, the Depart 5.230 Consent by assistance applicants and ment may impose a sanction, as deter participants. mined to be appropriate, upon an appli 5.232 Penalties for failing to sign consent cant for or a recipient of assistance forms. who has received covered selection in
5.234 Requests for information from formation.
SWICAs and Federal agencies; restric
tions on use. (b) In determining whether a sanc 5.236 Procedures for termination, denial, tion is appropriate and if so which suspension, or reduction of assistance sanction or sanctions should be sought, based on information obtained from a the Secretary shall give consideration SWICA or Federal agency. to the applicant's conduct with respect
5.238 Criminal and civil penalties. to the violation. In so doing, the Sec
Subpart C-Pet Ownership for the Elderly retary shall consider the factors listed at $4.36(d), as well as any history of
or Persons with Disabilities prior violations in any HUD program,
GENERAL REQUIREMENTS the benefits received or expected, de
5.300 Purpose. terrence of future violations and the
5.303 Exclusion for animals that assist perextent of any complicity in the viola
sons with disabilities. tion.
5.309 Prohibition against discrimination.