[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Rules and Regulations]
[Pages 44094-44097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20801]
[[Page 44093]]
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Part III
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Department of Housing and Urban Development
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24 CFR Part 108
Compliance Procedures for Affirmative Fair Housing Marketing;
Nomenclature Change; Final Rule
Federal Register / Vol. 64, No. 155 / Thursday, August 12, 1999 /
Rules and Regulations
[[Page 44094]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 108
[Docket No. FR-4514-F-01]
RIN 2529-AA87
Compliance Procedures for Affirmative Fair Housing Marketing;
Nomenclature Change
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Final rule.
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SUMMARY: HUD's regulations at 24 CFR part 108 cover compliance
procedures for affirmative fair housing marketing. As a result of
internal HUD organizational changes, the offices referred to in these
regulations no longer exist as they did when the regulations were
issued. This final rule updates these references. This final rule also
incorporates language that all correspondence that could lead to an
enforcement action against a small entity (such as audits,
investigations, or compliance reviews) will notify the small entity of
its right to comment to the National Small Business Ombudsman. This
requirement is added in accordance with the Small Business Regulatory
Enforcement Fairness Act.
DATES: Effective date: September 13, 1999.
FOR FURTHER INFORMATION CONTACT: Pamela D. Walsh, Office of Fair
Housing and Equal Opportunity, Room 5224, U.S. Department of Housing
and Urban Development, 451 Seventh Street, SW, Washington, DC, 20410-
2000; telephone (202) 708-2288 (this is not a toll-free number).
Hearing-or speech-impaired individuals may access this number via TTY
by calling the toll-free Federal Information Relay Service at (800)
877-8339.
SUPPLEMENTARY INFORMATION:
I. Background Information
HUD's regulations at 24 CFR part 108 cover compliance procedures
for affirmative fair housing marketing. These regulations were
published in 1979. Since then, HUD and the Office of Fair Housing and
Equal Opportunity have experienced several reorganizations. As
currently promulgated, the regulations define a compliance process that
requires two offices to perform complementary monitoring and reviewing
functions. An Area Office is primarily responsible for monitoring
functions and a Regional Office is primarily responsible for reviewing
functions. As a result of recent internal HUD organizational changes,
however, these offices no longer exist as they did when the regulations
were issued in 1979.
This final rule replaces references to Area Office and Regional
Office with the terms monitoring office and civil rights/compliance
reviewing office, respectively. These terms do not correspond to actual
offices within HUD, but are intended to reflect the functions of each
office within the compliance process. HUD will publish concurrently
with this final rule a notice in the Federal Register that designates
the specific offices within HUD that will act as monitoring and civil
rights/compliance reviewing offices under this part. In the future,
should HUD's internal organizational structure change again, the
specific offices that will act as monitoring and civil rights/
compliance reviewing offices will again be designated through a notice
published in the Federal Register.
With respect to compliance reviews, which are addressed in 24 CFR
part 108, HUD is cognizant that section 222 of the Small Business
Regulatory Enforcement Fairness Act (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 or 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 that 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 1-888-REG-FAIR (1-888-734-3247).
As HUD stated in its notice describing HUD's actions on
implementation of SBREFA, which was published on May 21, 1998 (63 FR
28214), HUD intends to work with the Small Business Administration
(SBA) 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. Accordingly, this rule
adopts the language requested by the SBA and it is included in
Sec. 108.25(b).
II. Justification for Final Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
at 24 CFR part 10. Part 10 provides for exceptions to the general rule
if the agency finds good cause to omit advance notice and public
participation. The good cause requirement is satisfied when prior
public procedure is ``impracticable, unnecessary, or contrary to the
public interest'' (24 CFR 10.1). For the following reasons, HUD finds
that good cause exists to publish this rule for effect without first
soliciting public comment.
This final rule makes nomenclature changes to 24 CFR part 108. As a
result of internal HUD organizational changes the offices referred to
in the current regulations no longer exist as they did when the
regulations were issued. This final rule merely replaces references to
Area Office and Regional Office with the terms monitoring office and
civil rights/compliance reviewing office, respectively. This rule also
amends 24 CFR part 108 to include ``notification'' language to small
entities, consistent with SBREFA, which the SBA has requested Federal
agencies adopt in their enforcement regulations, and which HUD has
agreed to adopt in its enforcement regulations. Neither of these two
amendments make any substantive changes to the compliance procedures
contained in part 108. Therefore, we have determined that it is
unnecessary to publish this rule for public comment prior to publishing
the rule for effect.
III. Findings and Certifications
Environmental Impact
This final rule involves regulations that set out fair housing or
nondiscrimination standards or enforcement procedures. Accordingly,
under 24 CFR 50.19(c)(3), this final rule is categorically excluded
from environmental review under the National Environmental Policy Act
of 1969 (Public Law 91-190, 83 Stat. 852, codified as amended at 42
U.S.C. 4321-4347).
[[Page 44095]]
Regulatory Flexibility Act
Section 605(b). The Secretary has reviewed this final rule before
publication and by approving it certifies, in accordance with the
Regulatory Flexibility Act (5 U.S.C. 605(b)), that this final rule
would not have a significant economic impact on a substantial number of
small entities. This final rule implements a nomenclature change only
and does not make any substantive changes to the regulations at 24 CFR
part 108. Therefore, the action taken by this rule (the nomenclature
change) does not create any additional burden.
Section 610. HUD notes, however, that changes were last made to
this rule in 1985. Section 610 of the Regulatory Flexibility Act
requires Federal Agencies to review every ten years existing
regulations that have or will have a significant economic impact on a
substantial number of small entities. The purpose of the review is to
determine whether existing rules should be left unchanged, or whether
they should be revised or rescinded in order to minimize significant
economic impacts on a substantial number of small entities. In deciding
whether change is necessary, the Regulatory Flexibility Act establishes
several factors that must be considered:
(1) Whether the rule is still needed;
(2) What type of complaints or comments were received from the
public concerning the rule;
(3) The complexity of the rule;
(4) How much the rule overlaps, duplicates or conflicts with other
Federal rules, and, to the extent feasible, with State and local
governmental rules; and
(5) How long it has been since the rule has been evaluated or how
much the technology, economic conditions, or other factors have changed
in the area affected by the rule.
During the years that the regulations in 24 CFR part 108 have been
in effect, HUD has not received any data that indicates that the
requirements of this part have had a significant economic impact on a
substantial number of small entities. Nevertheless, HUD has reviewed
this rule in accordance with the principles of section 610.
(1) This rule is only applicable to participants in certain HUD
programs, as specified in Sec. 108.1. Because HUD's mission is to
provide a decent, safe and sanitary home and suitable living
environment for every American, and this mission encompasses fighting
for fair housing and increasing affordable housing and homeownership,
HUD believes that this rule is needed for HUD's programs. HUD's
programs should provide the leadership in marketing sales and rentals
of homes that affirmatively furthers fair housing.
(2) HUD has not received complaints about this rule.
(3) The rule is not complex.
(4) The rule does not overlap, duplicate or conflict with other
Federal rules, nor, to the extent feasible, with State and local
governmental rules. Again, this rule is only applicable to HUD
programs.
(5) The rule was last evaluated in 1995 as part of President
Clinton's directive to all Federal agencies to review all existing
regulations and determine which regulations were obsolete, no longer
necessary or could be consolidated with other regulations. In 1995, HUD
determined, as it has now, that this rule is needed, and that the rule
did not duplicate other HUD regulations, and therefore consolidation
with other regulations was not appropriate.
The marketing techniques addressed by this rule have changed given
the change in technology. The rule, however, does not regulate the type
of marketing techniques used. Rather, the rule provides that whatever
marketing techniques the HUD program participant commits to utilize in
its Affirmative Fair Housing Marketing (AFHM) plan, the participant
utilizes such techniques to affirmatively further fair housing.
As noted earlier, although this rule makes no substantive changes
to 24 CFR part 108, only nomenclature changes, HUD welcomes comments
from its program participants about its part 108 regulation and their
experience with its requirements to date. Comments that provide a
factual basis for any views or suggestions presented are particularly
helpful to HUD in its evaluation of this regulation. Comments should be
submitted to: Office of the General Counsel, Rules Docket Clerk, Room
10276, U.S. Department of Housing and Urban Development, 451 Seventh
Street, SW, Washington, DC 20410-0500. Comments should refer to the
docket number of FR-4514-F-01.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Public Law
104-4, 109 Stat. 48, 64, codified at 2 U.S.C. 1531-1538) (UMRA)
requires Federal agencies to assess the effects of their regulatory
actions on State, local, and tribal governments and on the private
sector. This final rule does not impose, within the meaning of the
UMRA, any Federal mandates on any State, local, or tribal governments
or on the private sector.
Federalism Impact
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612 (entitled ``Federalism''), has determined that
the policies contained in this rule will not have substantial direct
effects on States or their political subdivisions, on the relationship
between the Federal Government and the States, or on the distribution
of power and responsibilities among various levels of government.
List of Subjects in 24 CFR Part 108
Fair housing, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, HUD proposes to amend 24
CFR part 108 as follows:
PART 108--COMPLIANCE PROCEDURES FOR AFFIRMATIVE FAIR HOUSING
MARKETING
1. The authority citation for part 108 is revised to read as
follows:
Authority: 42 U.S.C. 3608, 3535(d); E.O. 11063, 27 FR 11527, 3
CFR, 1958-1963 Comp., p. 652; E.O. 12892, 59 FR 2939, 3 CFR, 1994
Comp., p. 849.
2. Add new paragraphs (e) and (f) to Sec. 108.1 to read as follows:
Sec. 108.1 Purpose and application.
* * * * *
(e) The term monitoring office includes any office within HUD
designated by HUD to act as a monitoring office. As necessary, HUD will
designate specific offices within HUD to act as monitoring offices
through a notice published in the Federal Register.
(f) The term civil rights/compliance reviewing office includes any
office within HUD designated by HUD to act as a civil rights/compliance
reviewing office. As necessary, HUD will designate specific offices
within HUD to act as civil rights/compliance reviewing offices through
a notice published in the Federal Register.
3. Revise the first and second sentences of Sec. 108.15 to read as
follows:
Sec. 108.15 Pre-occupancy conference.
Applicants shall submit a Notification of Intent to Begin Marketing
to the monitoring office no later than 90 days prior to engaging in
sales or rental marketing activities. Upon receipt of the Notification
of Intent to Begin Marketing from the applicant, the monitoring office
shall review any previously approved plan and may schedule a pre-
occupancy conference. * * *
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4. Revise Sec. 108.20 to read as follows:
Sec. 108.20 Monitoring office responsibility for monitoring plans and
reports.
(a) Submission of documentation. Pursuant to initiation of
marketing, the applicant shall submit to the monitoring office reports
documenting the implementation of the AFHM plan, including sales or
rental reports, as required by the Department. Copies of such
documentation shall be forwarded to the civil rights/compliance
reviewing office by the monitoring office as requested.
(b) Monitoring of AFHM plan. The monitoring office is responsible
for monitoring AFHM plans and providing technical assistance to the
applicant in preparation or modification of such plans during the
period of development and initial implementation.
(c) Review of applicant's reports. Each sales or rental report
shall be reviewed by the monitoring office as it is received. When
sales or rental reports show that 20% of the units covered by the AFHM
plan have been sold or rented, or whenever it appears that the plan may
not accomplish its intended objective, the monitoring office shall
notify the civil rights/compliance reviewing office.
(d) Failure of applicant to file documentation. If the applicant
fails to file required documentation, the applicant shall be sent a
written notice indicating that if the delinquent documentation is not
submitted to the monitoring office within 10 days from date of receipt
of the notice, the matter will be referred to the civil rights/
compliance reviewing office by the monitoring office for action which
may lead to the imposition of sanctions.
5. Revise Sec. 108.21 to read as follows:
Sec. 108.21 Civil rights/compliance reviewing office compliance
responsibility.
The civil rights/compliance reviewing office shall be responsible
for determining whether an applicant's actions are in apparent
compliance with its approved AFHM plan, the AFHM regulations, and this
part and for determining changes or modifications necessary in the plan
after initiation of marketing.
6. Revise paragraphs (a), (b), (d), (e), (f), (g), and (h) of
Sec. 108.25 to read as follows:
Sec. 108.25 Compliance meeting.
(a) Scheduling meeting. If an applicant fails to comply with
requirements under Sec. 108.15 or Sec. 108.20 or it appears that the
goals of the AFHM plan may not be achieved, or that the implementation
of the Plan should be modified, the civil rights/compliance reviewing
office shall schedule a meeting with the applicant. The meeting shall
be held at least ten days before the next sales or rental report is
due. The purpose of the compliance meeting is to review the applicant's
compliance with AFHM requirements and the implementation of the AFHM
Plan and to indicate any changes or modifications which may be required
in the Plan.
(b) Notice of Compliance Meeting. A Notice of Compliance Meeting
shall be sent to the last known address of the applicant, by certified
mail or through personal service. The Notice will advise the applicant
of the right to respond within seven (7) days to the matters identified
as subjects of the meeting and to submit information and relevant data
evidencing compliance with the AFHM regulations, the AFHM Plan,
Executive Order 11063 and title VIII of the Civil Rights Act of 1968,
when appropriate. If the applicant is a small entity, as defined by the
regulations of the Small Business Administration, the Notice shall
include notification that the entity may submit comment on HUD's
actions to the Small Business and Agriculture Regulatory Enforcement
Ombudsman, and shall include the appropriate contact information.
* * * * *
(d) Preparation for the compliance meeting. The monitoring office
will provide information concerning the status of the project or
housing involved to be presented to the applicant at the meeting. The
monitoring office shall be notified of the meeting and may send
representatives to the meeting.
(e) Resolution of matters. Where matters raised in the compliance
meetings are resolved through revision to the plan or its
implementation, the terms of the resolution shall be reduced to writing
and submitted to the civil rights/compliance reviewing office within 10
days of the date of the compliance meeting.
(f) Determination of compliance. If the evidence shows no violation
of the AFHM regulations and that the applicant is complying with its
approved AFHM plan and this part, the civil rights/compliance reviewing
office shall so notify the applicant within 10 days of the meeting.
(g) Determination of possible noncompliance. If the evidence
indicates an apparent failure to comply with the AFHM plan or the AFHM
regulation, or if the matters raised cannot be resolved, the civil
rights/compliance reviewing office shall so notify the applicant no
later than ten (10) days after the date the compliance meeting is held,
in writing by certified mail, return receipt requested, and shall
advise the applicant that the Department will conduct a comprehensive
compliance review or refer the matter to the Assistant Secretary for
Fair Housing and Equal Opportunity for consideration of action
including the imposition of sanctions. The purpose of a compliance
review is to determine whether the applicant has complied with the
provisions of Executive Order 11063, title VIII of the Civil Rights Act
of 1968, and the AFHM regulations in conjunction with the applicant's
specific AFHM plan previously approved by HUD.
(h) Failure of applicant to attend the meeting. If the applicant
fails to attend the meeting scheduled pursuant to this section, the
civil rights/compliance reviewing office shall so notify the applicant
no later than ten (10) days after the date of the scheduled meeting, in
writing by certified mail, return receipt requested, and shall advise
the applicant as to whether the civil rights/compliance reviewing
office will conduct a comprehensive compliance review or refer the
matter to the Assistant Secretary for Fair Housing and Equal
Opportunity for consideration of action including the imposition of
sanctions.
7. Revise the first and second sentences of Sec. 108.35 to read as
follows:
Sec. 108.35 Complaints.
Individuals and private and public entities may file complaints
alleging violations of the AFHM regulations or an approved AFHM plan
with any monitoring office, civil rights/compliance reviewing office,
or with the Assistant Secretary for FH&EO. Complaints will be referred
to the civil rights/compliance reviewing office. * * *
8. Revise paragraphs (a) and (b) of Sec. 108.40 to read as follows:
Sec. 108.40 Compliance reviews.
(a) General. All compliance reviews shall be conducted by the civil
rights/compliance reviewing office. Complaints alleging a violation(s)
of the AFHM regulations, or information ascertained in the absence of a
complaint indicating an applicant's failure to comply with an AFHM
plan, shall be referred immediately to the civil rights/compliance
reviewing office. The monitoring office shall be notified as
appropriate of all alleged violations of the AFHM regulations or
alleged failure to comply with an AFHM plan.
(b) Initiation of compliance reviews. Even in the absence of a
complaint or other information indicating
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noncompliance pursuant to paragraph (a), the civil rights/compliance
reviewing office may conduct periodic compliance reviews throughout the
life of the mortgage in the case of multi-family projects and
throughout the duration of the Housing Assistance Payments Contract
with the Department in the case of housing assisted under section 8 of
the United States Housing Act of 1937, as amended, 42 U.S.C. 1437.
* * * * *
Sec. 108.45 [Amended]
9. Remove the last sentence of Sec. 108.45.
Dated: July 26, 1999.
Eva M. Plaza,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 99-20801 Filed 8-11-99; 8:45 am]
BILLING CODE 4210-28-P
