[Federal Register Volume 63, Number 90 (Monday, May 11, 1998)]
[Proposed Rules]
[Pages 26022-26028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11849]
[[Page 26021]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 6, 180, 570
Nondiscrimination in Programs and Activities Receiving Assistance Under
Title I of the Housing and Community Development Act of 1974; Proposed
Rule
Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed
Rules
[[Page 26022]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 6, 180, 570
[Docket No. FR 4092-P-01]
RIN 2501-AC28
Nondiscrimination in Programs and Activities Receiving Assistance
Under Title I of the Housing and Community Development Act of 1974
AGENCY: Office of the Secretary, HUD.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish procedures to file a
complaint for a claim of discrimination under HUD's community planning
and development programs modeled on the Department's regulations
implementing the prohibition against discrimination on the basis of
disability and the regulations implementing the prohibition against
discrimination on the basis of race, color, or national origin in
Federal programs. The rule also would provide that hearings on
complaints be conducted in accordance with HUD's consolidated hearing
procedures for civil rights claims. This rule is needed to inform
members of the public how to file complaints and how HUD will act on
their complaints.
DATES: Comments due date: July 10, 1998.
ADDRESSES: Interested persons are invited to submit comments regarding
this rule to the Regulations Division, Office of General Counsel, Room
10276, Department of Housing and Urban Development, 451 Seventh Street,
SW, Washington, DC 20410. Communications should refer to the above
docket number and title. Facsimile (FAX) comments are not acceptable. A
copy of each communication submitted will be available for public
inspection and copying on weekdays between 7:30 a.m. and 5:30 p.m. at
the above address.
FOR FURTHER INFORMATION CONTACT: Betsy Ryan, Director, Program
Compliance Division, Office of Program Compliance and Disability
Rights, Office of Fair Housing and Equal Opportunity, Room 5240,
Department of Housing and Urban Development, 451 Seventh Street SW.,
Washington DC 20410-5000, telephone (202) 708-0404. Hearing or speech-
impaired persons may access this number via TTY by calling the Federal
Information Relay Service at 1-800-877-8339. (Except for the ``800''
number, these telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION:
I. Background
Section 109 of Title I of the Housing and Community Development Act
of 1974 (42 U.S.C. 5301-5321) (Title I) provides as follows:
No person in the United States shall on the ground of race,
color, national origin, religion, or sex be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity funded in whole or in
part with funds made available under this title. Any prohibition
against discrimination on the basis of age under the Age
Discrimination Act of 1975, or with respect to an otherwise
qualified handicapped individual as provided in Section 504 of the
Rehabilitation Act of 1973 shall also apply to any such program or
activity.
The original language in section 109 of Title I (hereafter
``Section 109'') was modeled on the language in Title VI of the Civil
Rights Act of 1964 (42 U.S.C. 2000d-1) (Title VI). Title VI prohibits
discrimination on the bases of race, color, and national origin in any
program or activity for which federal financial assistance is
authorized under a law administered by the Department. However, Section
109 also includes protection against discrimination on the basis of
sex. Additionally, unlike Title VI, which excludes employment practices
except where employment is a primary purpose of the program, Section
109 includes employment discrimination within its coverage.
The Housing and Community Development Act of 1981 (Pub. L. 97-335,
approved August 13, 1981; 95 Stat. 392) amended Section 109 to
reference the prohibitions against age and disability discrimination in
Title I programs under the Age Discrimination Act of 1975 (42 U.S.C.
6101-6107) (Age Discrimination Act) and section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) (Section 504). The purpose
of this amendment was to clarify that although Section 109 does not
directly prohibit discrimination on the bases of age and disability, it
directs that the prohibitions against discrimination on the basis of
age under the Age Discrimination Act and the prohibitions against
discrimination on the basis of disability under Section 504 apply to
Title I programs.
Section 912 of the National Affordable Housing Act of 1990 (Pub. L.
101-625, approved November 28, 1991; 104 Stat. 4079) also amended
Section 109 to add protection against discrimination on the basis of
religion. Age or disability discrimination actions in Title I programs
may be brought under either the Age Discrimination Act or Section 504,
as appropriate. Causes of action for race, color, and national origin
discrimination may be brought under Title VI and/or Section 109. Causes
of action for discrimination based on sex and religion may be brought
under Section 109.
The Department's regulations governing the Community Development
Block Grant Programs are set forth in 24 CFR part 570. Section 570.602
of these regulations incorporates the nondiscrimination provisions of
Section 109, defining specific types of discrimination, and setting
forth performance standards by which the Department judges whether a
Recipient is complying with Section 109.
To date, Section 109 has been enforced by utilizing the provisions
of Sec. 570.602 and the procedures set forth in the Department's
regulations at 24 CFR part 8, which implement Section 504 for HUD-
assisted programs and activities. The purpose of this rule is to set
forth, in a new 24 CFR part 6, the policies and procedures necessary to
enforce Section 109.
In addition to proposing a new part 6, the Department also proposes
to conform 24 CFR 570.602 to reflect the addition of the new part 6 to
the Department's regulations. Specifically, the Department proposes to
amend 24 CFR 570.602 to state the applicability of Section 109 to the
Title I programs and to refer the reader to the new part 6 for the
regulations governing Section 109. Additionally, the Department
proposes to amend 24 CFR part 180 (Consolidated HUD Hearing Procedures
for Civil Rights Matters) to include Section 109. The Department
promulgated part 180 in an effort to promote uniformity and reduce
confusion for HUD program participants who in the past were faced with
separate hearing procedures for each civil rights statutory authority
enforced by the Department. Part 180 consolidates HUD's hearing
procedures for nondiscrimination and equal opportunity matters under
the Fair Housing Act (42 U.S.C. 3601-3619), Title VI, the Age
Discrimination Act, and Section 504. Amending part 180 to include
Section 109 will further the Department's goals of promoting
uniformity, avoiding redundancy, and reducing confusion for HUD program
participants. The use of part 180 hearing procedures for Section 109
hearings in no way affects the applicability of the hearing procedures
provided for at 24 CFR 570.496 and 570.913, which govern non-civil
rights matters under Title I. Section 570.913 is proposed to be amended
in this rule to cross reference the procedures in parts 6 and 180 with
respect to discrimination prohibited under Section 109, as described in
Sec. 570.602.
[[Page 26023]]
The proposed new part 6 provides specific time frames and
procedures for the acceptance and investigation of complaints,
improving response time and benefit to both complainants and
Recipients. The proposed new part 6 is divided into two subparts.
Subpart A (General Provisions) outlines the purpose and applicability
of part 6, defines the important terms that are used in the regulation,
and states in general terms the discriminatory acts that are prohibited
by Section 109. Subpart B (Enforcement) sets forth the administrative
enforcement provisions and refers the reader to 24 CFR part 180 for the
administrative hearing procedures.
II. Findings and Certifications
Public Reporting Burden
The information collection requirements contained in Sec. 6.6 of
this proposed rule are already imposed on Recipients of Title I
assistance under existing regulations at 24 CFR 91.105, 91.115,
570.491, and 570.506. These information collection requirements have
been approved by the Office of Management and Budget under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB
Control Numbers 2506-0117 and 2506-0077. This rule incorporates these
recordkeeping requirements, but does not require duplication of this
information. An agency may not conduct or sponsor, and a person is not
required to respond to, a collection of information unless the
collection displays a valid control number.
Coordination
The Department of Justice has reviewed and approved this proposed
rule under Executive Order 12250. The Equal Employment Opportunity
Commission has reviewed and approved this proposed rule under Executive
Order 12067.
Unfunded Mandates Reform Act
The Secretary has reviewed this rule before publication and by
approving it certifies, in accordance with the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1532), that this rule does not impose a Federal
mandate that will result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year.
Environmental Impact
In accordance with 24 CFR 50.19(c)(3) of the HUD regulations, the
policies and procedures contained in this rule set out
nondiscrimination standards and, therefore, are categorically excluded
from the requirements of the National Environmental Policy Act under 24
CFR 50.19(c)(3).
Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed this proposed rule before publication, and
by approving it certifies that this proposed rule would not have a
significant economic impact on small entities. The purpose of this rule
is to provide for the enforcement of Section 109 of the Housing and
Community Development Act of 1974, as amended, as it applies to
recipients of Federal financial assistance from the Department of
Housing and Urban Development. The rule is needed to inform members of
the public on how to file complaints on the basis of discrimination
under Section 109 and how HUD will act on their complaints. The rule
sets out the process so that all parties involved in complaints will
have certainty as to what procedures will govern. The proposed rule
would not have a significant economic impact on a substantial number of
small entities. The Department is sensitive, however, to the fact that
uniform application of requirements on entities of differing sizes
often places a disproportionate burden on small business. Therefore,
the Department is soliciting alternatives for compliance from small
entities that might be less burdensome to them.
Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that the policies
contained in this proposed rule would not have substantial direct
effects on States or their political subdivisions, or the relationship
between the Federal government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Specifically, the requirements of this proposed rule are directed to
Title I programs and activities, and do not impinge upon the
relationship between the Federal government and State and local
governments. Accordingly, the proposed rule is not subject to review
under the Order.
Catalog
The Catalog of Federal Domestic Assistance number for the program
affected by this rule is 14.406.
List of Subjects
24 CFR Part 6
Administrative practice and procedure, Civil rights, Community
development block grants, Equal employment opportunity, Grant
programs--housing and community development, Investigations, Loan
programs--housing and community development, Reporting and
recordkeeping requirements.
24 CFR Part 180
Administrative practice and procedure, Aged, Civil rights, Fair
housing, Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Lead poisoning, Loan
programs--housing and community development, Low and moderate income
housing, New communities, Northern Mariana Islands, Pacific Islands
Trust Territory, Pockets of poverty, Puerto Rico, Reporting and
recordkeeping requirements, Small cities, Student aid, Virgin Islands.
Accordingly, subtitle A and chapters I and V of title 24 of the
Code of Federal Regulations are proposed to be amended as follows:
1. A new part 6 is added, to read as follows:
PART 6--NONDISCRIMINATION IN PROGRAMS AND ACTIVITIES RECEIVING
ASSISTANCE UNDER TITLE I OF THE HOUSING AND COMMUNITY DEVELOPMENT
ACT OF 1974
Subpart A--General Provisions
Sec.
6.1 Purpose.
6.2 Applicability.
6.3 Definitions.
6.4 Discrimination prohibited.
6.5 Discrimination prohibited--employment.
6.6 Records to be maintained.
Subpart B--Enforcement
6.10 Compliance information.
6.11 Conduct of investigations.
6.12 Procedure for effecting compliance.
6.13 Hearings and appeals.
Authority: 42 U.S.C. 3535(d), 5309.
Subpart A--General Provisions
Sec. 6.1 Purpose.
The purpose of this part is to implement the provisions of Section
109 of Title I of the Housing and Community Development Act of 1974
(Title I) (42
[[Page 26024]]
U.S.C. 5309). Section 109 provides that no person in the United States
shall, on the ground of race, color, national origin, religion, or sex,
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity funded in
whole or in part with Federal financial assistance. Section 109 does
not directly prohibit discrimination on the bases of age or disability,
and the regulations set forth in this part 6 do not apply to age or
disability discrimination in Title I programs. Instead, Section 109
directs that the prohibitions against discrimination on the basis of
age under the Age Discrimination Act of 1975 (42 U.S.C. 6101-6107) (Age
Discrimination Act) and the prohibitions against discrimination on the
basis of disability under Section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794) (Section 504) apply to programs or activities funded in
whole or in part with Federal financial assistance. Thus, the
regulations of 24 CFR part 8, which implement Section 504 for HUD
programs, and the regulations of 24 CFR part 146, which implement the
Age Discrimination Act for HUD programs, apply to disability and age
discrimination in Title I programs.
Sec. 6.2 Applicability.
(a) This part applies to any program or activity funded in whole or
in part with funds under Title I of the Housing and Community
Development Act of 1974, including Community Development Block Grants--
Entitlement, State and HUD-Administered Small Cities, and Section 108
Loan Guarantees; Urban Development Action Grants; Economic Development
Initiative Grants; and Special Purpose Grants.
(b) The provisions of this part and sections 104(b)(2) and 109 of
Title I which relate to discrimination on the basis of race shall not
apply to the provision of Federal financial assistance by grantees
under this title to the Hawaiian Homelands (42 U.S.C. 5309).
Sec. 6.3 Definitions.
The terms Department, HUD, and Secretary are defined in 24 CFR part
5. Other terms used in this part 6 are defined as follows:
Act means the Housing and Community Development Act of 1974, as
amended (42 U.S.C. 5301-5320).
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Award Official means the HUD official who has been delegated the
Secretary's authority to implement a Title I funded program and to make
grants thereunder.
Complete complaint means a written statement that contains the
complainant's name and address, identifies the Recipient against which
the complaint is made, and describes the Recipient's alleged
discriminatory action in sufficient detail to inform HUD of the nature
and date of the alleged violation of section 109. It shall be signed by
the complainant or by someone authorized to do so on his or her behalf.
Complaints filed on behalf of classes or third parties shall describe
or identify (by name, if possible) the alleged victims of
discrimination.
Federal financial assistance means: (1) Any assistance made
available under Title I of the Housing and Community Development Act of
1974, as amended, and includes income generated from such assistance,
and any grant, loan, contract, or any other arrangement, in the form
of:
(i) Funds;
(ii) Services of Federal personnel; or
(iii) Real or personal property or any interest in or use of such
property, including:
(A) Transfers or leases of the property for less than fair market
value or for reduced consideration; and
(B) Proceeds from a subsequent transfer or lease of the property if
the Federal share of its fair market value is not returned to the
Federal Government.
(2) Federal financial assistance includes assistance in the form of
proceeds from loans guaranteed under section 108 of the Act, but does
not include assistance made available through direct Federal
procurement contracts or any other contract of insurance or guaranty.
Program or activity (funded in whole or in part) means all of the
operations of --
(1)(i) A department, agency, special purpose district, or other
instrumentality of a State or local government; or
(ii) The entity of such State or local government that distributes
such assistance, and each such department or agency (and each other
State or local government entity) to which the assistance is extended,
in the case of assistance to a State or local government;
(2)(i) A college, university, or other post-secondary institution,
or a public system of higher education; or
(ii) A local educational agency (as defined in section 198(a)(10)
of the Elementary and Secondary Education Act of 1965), system of
vocational education or other school system;
(3)(i) An entire corporation, partnership, or other private
organization, or an entire sole proprietorship--
(A) If assistance is extended to such corporation, partnership,
private organization, or sole proprietorship as a whole; or
(B) Which is principally engaged in the business of providing
education, health care, housing, social services, or parks and
recreation; or
(ii) The entire plant or other comparable, geographically separate
facility to which Federal financial assistance is extended, in the case
of any other corporation, partnership, private organization, or sole
proprietorship; or
(4) Any other entity which is established by two or more of the
entities described in paragraphs (1), (2), or (3) of this definition,
any part of which is extended Federal financial assistance.
Recipient means any State, political subdivision of any State, or
instrumentality of any State or political subdivision, any public or
private agency, institution, organization, or other entity, or any
individual, in any State, to whom Federal financial assistance is
extended, directly or through another Recipient, for any program or
activity, or who otherwise participates in carrying out such program or
activity, including any successor, assign, or transferee thereof, but
such term does not include any ultimate beneficiary under any such
program or activity.
Responsible Official means the Assistant Secretary for Fair Housing
and Equal Opportunity or his or her designee.
Section 109 means Section 109 of the Housing and Community
Development Act of 1974, as amended.
Title I means Title I of the Housing and Community Development Act
of 1974 (42 U.S.C. 5301-5321).
Sec. 6.4 Discrimination prohibited.
(a) Section 109 requires that no person in the United States shall,
on the grounds of race, color, national origin, religion, or sex, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity funded in
whole or in part with Federal financial assistance.
(1) A Recipient under any program or activity to which this part
applies may not, directly or through contractual, licensing, or other
arrangements, on the grounds of race, color, national origin, religion,
or sex:
[[Page 26025]]
(i) Deny any individual any facilities, services, financial aid, or
other benefits provided under the program or activity;
(ii) Provide any facilities, services, financial aid, or other
benefits which are different, or are provided in a different form, from
that provided to others under the program or activity;
(iii) Subject an individual to segregated or separate treatment in
any facility, or in any matter of process related to the receipt of any
service or benefit under the program or activity;
(iv) Restrict an individual's access to, or enjoyment of, any
advantage or privilege enjoyed by others in connection with facilities,
services, financial aid or other benefits under the program or
activity;
(v) Treat an individual differently from others in determining
whether the individual satisfies any admission, enrollment,
eligibility, membership, or other requirements or conditions which the
individual must meet in order to be provided any facilities, services,
or other benefit provided under the program or activity;
(vi) Deny an individual an opportunity to participate in a program
or activity as an employee;
(vii) Aid or otherwise perpetuate discrimination against an
individual by providing Federal financial assistance to an agency,
organization, or person that discriminates in providing any housing,
aid, benefit, or service;
(viii) Otherwise limit an individual in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by other individuals
receiving the housing, aid, benefit, or service;
(ix) Use criteria or methods of administration which have the
effect of subjecting persons to discrimination or have the effect of
defeating or substantially impairing accomplishment of the objectives
of the program or activity with respect to persons of a particular
race, color, national origin, religion, or sex; or
(x) Deny a person the opportunity to participate as a member of
planning or advisory boards.
(2) In determining the site or location of housing, accommodations,
or facilities, a Recipient may not make selections of such site or
location which have the effect of excluding persons from, denying them
the benefits of, or subjecting them to discrimination on the ground of
race, color, national origin, religion, or sex; or which have the
purpose or effect of defeating or substantially impairing the
accomplishment of the objectives of Section 109 and of this part 6.
(3)(i) In administering a program or activity in which the
Recipient has discriminated on the grounds of race, color, national
origin, religion or sex, the Recipient must take any necessary steps to
overcome the effects of prior discrimination.
(ii) In the absence of discrimination, a Recipient, in
administering a program or activity, may take any steps necessary to
overcome the effects of conditions which resulted in limiting
participation by persons of a particular race, color, national origin,
religion, or sex.
(iii) After a finding of noncompliance, or after a Recipient has
reasonable cause to believe that discrimination has occurred, a
Recipient shall not be prohibited by this section from taking any
action eligible under 24 CFR part 570, subpart C, to ameliorate an
imbalance in benefits, services or facilities provided to any
geographic area or specific group of persons within its jurisdiction,
where the purpose of such action is to remedy discriminatory practices
or usage.
(iv)(A) Notwithstanding anything to the contrary in this part,
nothing contained in this section shall be construed to prohibit any
Recipient from maintaining or constructing separate living facilities
or restroom facilities for the different sexes in order to protect
personal privacy or modesty concerns. Furthermore, selectivity on the
basis of sex is not prohibited when institutional or custodial services
can, in the interest of personal privacy or modesty, only be performed
by a member of the same sex as those receiving the services.
(B) Section 109 of the Act does not directly prohibit
discrimination on the basis of age or disability, but directs that the
prohibitions against discrimination on the basis of age under the Age
Discrimination Act and the prohibitions against discrimination on the
basis of disability under Section 504 apply to Title I programs and
activities. Accordingly, for programs or activities receiving Federal
financial assistance, the regulations set forth in this part 6 apply to
discrimination on the bases of race, color, national origin, religion,
or sex; the regulations at 24 CFR part 8 apply to discrimination on the
basis of disability; and the regulations at 24 CFR part 146 apply to
discrimination on the basis of age.
Sec. 6.5 Discrimination prohibited-employment.
(a) General. A Recipient may not, under any program or activity
funded in whole or in part with Federal financial assistance, directly
or through contractual agents or other arrangements including contracts
and consultants, subject a person to discrimination in the terms and
conditions of employment, including advertising, interviewing,
selection, promotion, demotion, transfer, recruitment and advertising,
layoff or termination, pay or other compensation, including benefits,
and selection for training.
(b) Determination of compliance status. The Assistant Secretary
will follow the procedures set forth in this part and 29 CFR part 1691
and look to the substantive guidelines and policy of the Equal
Employment Opportunity Commission when reviewing employment practices
under Section 109.
Sec. 6.6 Records to be maintained.
(a) General. Recipients shall maintain records and data as required
by 24 CFR 91.105, 91.115, 570.490, and 570.506.
(b) Employment. Recipients shall maintain records and data as
required by the Equal Employment Opportunity Commission at 29 CFR part
1600.
(c) Recipients shall make available such records and any supporting
documentation upon request of the Responsible Official.
(Approved by the Office of Management and Budget under control numbers
2506-0117 and 2506-0077.)
Subpart B--Enforcement
Sec. 6.10 Compliance information.
(a) Cooperation and assistance. The Responsible Official and the
Award Official, in obtaining compliance with this part, will provide
assistance and guidance to Recipients to help them comply voluntarily
with this part.
(b) Access to data and other sources of information. Each Recipient
shall permit access by authorized representatives of HUD to its
facilities, books, records, accounts, minutes and audio tapes of
meetings, personnel, computer disks and tapes, and other sources of
information as may be pertinent to a determination of whether the
Recipient is complying with this part. Where information required of a
Recipient is in the exclusive possession of any other agency,
institution, or person, and this agency, institution, or person fails
or refuses to furnish this information, the Recipient shall so certify
in any requested report and shall set forth what efforts it has made to
obtain the information. Failure or refusal to furnish pertinent
information (whether maintained by the Recipient or some other agency,
institution, or person) without a credible reason for the failure or
refusal will be considered to be noncompliance under this part.
(c) Compliance data. Each Recipient shall keep records and submit
to the
[[Page 26026]]
Responsible Official, timely, complete, and accurate data at such times
and in such form as the Responsible Official may determine to be
necessary to ascertain whether the Recipient has complied or is
complying with this part.
(d) Notification to employees, beneficiaries, and participants.
Each Recipient shall make available to employees, participants,
beneficiaries, and other interested persons information regarding the
provisions of this part and its applicability to the program or
activity under which the Recipient receives Federal financial
assistance and make such information available to them in such manner
as the Responsible Official finds necessary to apprise such persons of
the protections against discrimination assured them by Section 109 and
this part.
Sec. 6.11 Conduct of investigations.
(a) Filing a complaint--(1) Who may file. Any person who believes
that he or she has been subjected to discrimination prohibited by this
part may file, or may have an authorized representative file on his or
her behalf, a complaint with the Responsible Official. Any person who
believes that any specific class of persons has been subjected to
discrimination prohibited by this part and who is a member of that
class or who is the authorized representative of a member of that class
may file a complaint with the Responsible Official.
(2) Confidentiality. The Responsible Official shall hold in
confidence the identity of any person submitting a complaint, unless
the person submits written authorization otherwise, except to the
extent necessary to carry out the purposes of this part, including the
conduct of any investigation, hearing, or proceeding under this part.
(3) When to file. Complaints shall be filed within 180 days of the
alleged act of discrimination, unless the Responsible Official waives
this time limit for good cause. For purposes of determining when a
complaint is filed under this part, a complaint mailed to the
Responsible Official via the U. S. Postal Service will be deemed filed
on the date it is postmarked. A complaint delivered to the Responsible
Official in any other manner will be deemed filed on the date it is
received by the Responsible Official.
(4) Where to file complaints. Complaints must be in writing,
signed, addressed to the Responsible Official and filed with (mailed to
or otherwise delivered to) the Office of Fair Housing and Equal
Opportunity at any HUD Office.
(5) Content of complaints. Each complaint should contain the
complainant's name, address, and phone number; a description or name,
if available, of the Recipient alleged to have violated this part; an
address where the violation occurred; and a description of the
Recipient's alleged discriminatory action in sufficient detail to
inform the Responsible Official of the nature and date of the alleged
violation of this part.
(6) Amendments to complaints. Amendments to complaints, such as
clarification and amplification of allegations in a complaint or the
addition of other Recipients, may be made by the complainant or the
complainant's authorized representative at any time during the pendency
of the complaint and any amendment shall be deemed to be made as of the
original filing date.
(7) Notification. To the extent practicable, the Responsible
Official will notify the complainant and the Recipient of the
Responsible Official's receipt of a complaint within 10 calendar days
of receipt of a complete complaint. If the Responsible Official
receives a complaint that is not complete, the Responsible Official
will notify the complainant and specify the additional information that
is needed to make the complaint complete. If the complainant fails to
complete the complaint, the Responsible Official will close the
complaint without prejudice and notify the complainant. When a complete
complaint has been received, the Responsible Official, or his or her
designee, will review the complaint for acceptance, rejection, or
referral to an appropriate Federal agency within 20 calendar days.
(8) Resolution of complaints. After the acceptance of a complete
complaint, the Responsible Official will investigate the complaint,
attempt informal resolution, and, if resolution is not achieved, the
Responsible Official will notify the Recipient and complainant, to the
extent practicable within 180 days of the receipt of the complete
complaint, of the results of the investigation in a letter of findings
sent by certified mail, return receipt requested, containing the
following:
(i) Findings of fact and a finding of compliance or noncompliance;
(ii) A description of an appropriate remedy for each violation
believed to exist; and
(iii) A notice of the right of the Recipient and the complainant to
request a review of the letter of findings by the Responsible Official.
A copy of the final investigative report will be made available upon
request.
(9) Right to a review of the letter of findings. (i) Within 30 days
of receipt of the letter of findings, a complainant or Recipient may
request that a review be made of the letter of findings, by mailing or
delivering to the Responsible Official, Room 5100, Office of Fair
Housing and Equal Opportunity, HUD, Washington, DC 20410, a written
statement of the reasons why the letter of findings should be modified.
(ii) The Responsible Official will send by certified mail, return
receipt requested, a copy of the request for review to the other party.
Such other party shall have 20 days from receipt to respond to the
request for review.
(iii) The Responsible Official will either sustain or modify the
letter of findings or require that further investigation be conducted,
within 60 days of the request for review. The Responsible Official's
decision shall constitute the formal determination of compliance or
noncompliance.
(iv) If neither party requests that the letter of findings be
reviewed, the Responsible Official, within 14 calendar days of the
expiration of the time period in paragraph (a)(9)(i) of this section,
will send a formal written determination of compliance or noncompliance
to the complainant, the Recipient, and the Award Official.
(10) Voluntary compliance time limits. The Recipient will have 10
calendar days, or such other reasonable amount of time specified in the
letter transmitting the findings of noncompliance, from receipt of a
formal determination of noncompliance within which to agree, in
writing, to come into voluntary compliance or to contact the
Responsible Official for settlement discussions. If the Recipient fails
to meet this deadline, HUD will proceed in accordance with Secs. 6.12
and 6.13.
(11) Informal resolution/voluntary compliance. (i) General. It is
the policy of HUD to encourage the informal resolution of matters. A
complaint or a compliance review may be resolved by informal means at
any time. If a letter of findings is issued, and the letter makes a
finding of noncompliance, the Responsible Official will attempt to
resolve the matter through a voluntary compliance agreement.
(ii) Objectives of informal resolution/voluntary compliance. In
attempting informal resolution, the Responsible Official will attempt
to achieve a just resolution of the matter and to obtain assurances,
where appropriate, that the Recipient will satisfactorily remedy any
violations of the rights of any complainant, and will take such action
as will assure the elimination of any violation of this part or the
prevention of the occurrence of such violation in the future. If a
finding of noncompliance
[[Page 26027]]
has been made, the terms of such an informal resolution shall be
reduced to a written voluntary compliance agreement, signed by the
Recipient and the Responsible Official, and be made part of the file.
Such voluntary compliance agreements shall seek to protect the
interests of the complainant (if any), other persons similarly
situated, and the public interest.
(iii) Right to file a private civil action. At any time in the
process, the complainant has the right to file a private civil action.
If the complainant does so, the Responsible Official has the discretion
to administratively close the investigation or continue the
investigation, if he or she decides that it is in the best interests of
the Department to do so. If the Responsible Official makes a finding of
noncompliance and an agreement to voluntarily comply is not obtained
from the Recipient, the procedures at Secs. 6.12 and 6.13 for effecting
compliance shall be followed.
(12) Intimidatory or retaliatory acts prohibited. No Recipient or
other person shall intimidate, threaten, coerce, or discriminate
against any person for the purpose of interfering with any right or
privilege secured by this part, or because he or she has made a
complaint, testified, assisted, or participated in any manner in an
investigation, compliance review, proceeding, or hearing under this
part.
(b) Compliance reviews--(1) Periodic compliance reviews. The
Responsible Official may periodically review the practices of
Recipients to determine whether they are complying with this part and
may conduct on-site reviews. The Responsible Official will initiate an
on-site review by sending to the Recipient a letter advising the
Recipient of the practices to be reviewed; the programs affected by the
review; and the opportunity, at any time prior to receipt of a final
determination, to submit information that explains, validates, or
otherwise addresses the practices under review. In addition, the Award
Official will include, in normal program compliance reviews and
monitoring procedures, appropriate actions to review and monitor
compliance with general or specific program requirements designed to
effectuate the requirements of this part.
(2) Time period of the review. (i) For the Entitlement program,
compliance reviews will cover the three years prior to the date of the
review.
(ii) For the Urban Development Action Grant (UDAG) program, the
compliance review is applicable only to UDAG loan repayments or other
payments or revenues classified as program income. UDAG repayments or
other payments or revenues classified as miscellaneous revenue are not
subject to compliance review under this part. (See 24 CFR 570.500(a).)
The compliance review will cover the time period that program income is
being repaid.
(iii) For the State and HUD-Administered Small Cities programs, the
compliance review will cover the four years prior to the date of the
review.
(iv) For all other programs, the time period covered by the review
will be four years prior to the date of the review.
(v) On a case-by-case basis, at the discretion of the Responsible
Official, the above time frames for review can be expanded where facts
or allegations warrant further investigation.
(3) Early compliance resolution. On the last day of the on-site
visit, after the compliance review, the Recipient will be given an
opportunity to supplement the record. Additionally, a prefinding
conference may be held and a summary of the proposed findings may be
presented to the Recipient. In those instances where the issue(s)
cannot be resolved at a prefinding conference or with the supplemental
information, a meeting will be scheduled to attempt a voluntary
settlement.
(4) Notification of findings. (i) The Assistant Secretary will
notify the Recipient of Federal financial assistance of the results of
the compliance review in a letter of findings sent by certified mail,
return receipt requested.
(ii) Letter of findings. The letter of findings will include the
findings of fact and the conclusions of law; a description of a remedy
for each violation found; and a notice that a copy of HUD's final
report concerning its investigation of the complaint allegations will
be made available, upon request, to the Recipient.
(iii) Response to the letter of findings of noncompliance. Within a
reasonable period of time not to exceed 30 days after receipt of the
letter of findings, the Recipient may request the commencement of
discussions to resolve the findings of noncompliance voluntarily.
Sec. 6.12 Procedure for effecting compliance.
(a) Whenever the Assistant Secretary determines that a Recipient of
Federal financial assistance has failed to comply with Section 109(a)
or this part and voluntary compliance efforts have failed, the
Secretary shall notify the Governor of the State or the Chief Executive
Officer of the unit of general local government of the findings of
noncompliance and shall request that the Governor or the Chief
Executive Officer secure compliance. If within a reasonable period of
time, not to exceed 60 days, the Governor or the Chief Executive
Officer fails or refuses to secure compliance, the Secretary shall:
(1) Refer the matter to the Attorney General with a recommendation
that an appropriate civil action be instituted;
(2) Exercise the powers and functions provided by Title VI;
(3) Terminate or reduce payments under Title I, or limit the
availability of payments under Title I to programs or activities not
affected by the failure to comply; or
(4) Take such other actions as may be provided by law, including
but not limited to, the initiation of proceedings under 24 CFR part 24
or any applicable proceeding under State or local law.
(b) Termination, reduction, or limitation of the availability of
Title I payments. No order terminating, reducing, or limiting the
availability of Title I payments under this part shall become effective
until:
(1) The Secretary has notified the Governor of the State or the
Chief Executive Officer of the unit of general local government of the
Recipient's failure to comply in accordance with paragraph (a) of this
section and of the termination, reduction or limitation of the
availability of Title I payments to be taken;
(2) The Secretary has determined that compliance cannot be secured
by voluntary means; and
(3) The Recipient has been extended an opportunity for a hearing in
accordance with Sec. 6.13(a); and
(4) A final agency notice or decision has been rendered in
accordance with paragraph (c) of this section or 24 CFR part 180.
(c) If a Recipient does not respond to the notice of opportunity
for a hearing or does not elect to proceed with a hearing within 20
days of the issuance of the Secretary's actions listed in paragraphs
(b)(1), (2) and (3) of this section, then the Secretary's approval of
the termination, reduction or limitation of the availability of Title I
payments is considered a final agency notice and the Recipient may seek
judicial review in accordance with section 111(c) of the Act.
Sec. 6.13 Hearings and appeals.
(a) When a Recipient requests an opportunity for a hearing, in
accordance with Sec. 6.12(b)(3), the General Counsel shall follow the
notification procedures set forth in 24 CFR 180.415. The hearing, and
any petition for review, will be conducted in accordance with
[[Page 26028]]
the procedures set forth in 24 CFR part 180.
(b) After a hearing is held and a final agency decision is rendered
under 24 CFR part 180, the Recipient may seek judicial review in
accordance with section 111(c) of the Act.
PART 180--CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS
MATTERS
2. The heading of part 180 is revised to read as set forth above.
2a. The authority citation for 24 CFR part 180 continues to read as
follows:
Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1, 3535(d), 3601-3619,
5301-5320, and 6103.
3. In Sec. 180.100, the paragraph (c) designation is removed and a
new paragraph (c) is added immediately above the definition for Agency;
and the definitions of ``Federal financial assistance,'' ``Non-Fair
Housing Act Matters,'' and ``Recipient'' are revised to read as
follows:
Sec. 180.100 Definitions.
* * * * *
(c) Other terms used in this part are defined as follows:
* * * * *
Federal financial assistance has the meaning provided in 24 CFR
1.2, 6.3, 8.3, or 146.7, as applicable.
* * * * *
Non-Fair Housing Act Matters refers to proceedings under this part
pursuant to:
(1) Title VI of the Civil Rights Act of 1964, as amended, (42
U.S.C. 2000d-1) and the implementing regulations at 24 CFR part 1;
(2) Section 504 of the Rehabilitation Act of 1973, as amended (29
U.S.C. 794) and the implementing regulations at 24 CFR part 8;
(3) The Age Discrimination Act of 1975, as amended (42 U.S.C.
6103), and the implementing regulations at 24 CFR part 146; or
(4) Section 109 of Title I of the Housing and Community Development
Act of 1974, as amended (42 U.S.C. 5301-5321), and the implementing
regulations at 24 CFR part 6.
* * * * *
Recipient has the meaning provided in 24 CFR 1.2, 6.3, 8.3, or
146.7, as applicable.
* * * * *
4. Section 180.105 is amended by removing ``and'' at the end of
paragraph (a)(3), by removing the period at the end of paragraph (a)(4)
and adding ``; and'' in its place, and by adding a new paragraph
(a)(5), to read as follows:
Sec. 180.105 Scope of rules.
(a) * * *
(5) Section 109 of Title I of the Housing and Community Development
Act of 1974 (42 U.S.C. 5301-5321) and implementing regulations at 24
CFR part 6.
* * * * *
5. In Sec. 180.310, paragraph (a) is revised to read as follows:
Sec. 180.310 Parties.
(a) Parties to proceedings under this part are HUD, the
respondent(s), and any intervenors. Respondents include persons named
as such in a charge issued under 24 CFR part 103 and Recipients/
applicants named as respondents in hearing notices issued under 24 CFR
parts 1, 6, 8 or 146 and notices of proposed adverse action under this
part.
* * * * *
6. In Sec. 180.415, the section heading and paragraph (a) are
revised to read as follows:
Sec. 180.415 Notice of proposed adverse action regarding Federal
financial assistance in non-Fair Housing Act matters.
(a) Filing and service. Within 10 days after a Recipient/applicant
has requested a hearing, as provided for in 24 CFR parts 1, 6, 8, or
146, the General Counsel shall file a notice of proposed adverse action
with the Chief Docket Clerk and serve copies (with the additional
information required under paragraph (b) of this section) on all
respondents and complainants.
* * * * *
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
7. The authority for part 570 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 5301-5320.
8. Section 570.602 is revised to read as follows:
Sec. 570.602 Section 109 of the Act.
Section 109 of the Act requires that no person in the United States
shall on the grounds of race, color, national origin, religion, or sex
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance made available pursuant to the Act.
Section 109 also directs that the prohibitions against discrimination
on the basis of age under the Age Discrimination Act and the
prohibitions against discrimination on the basis of disability under
Section 504 shall apply to programs or activities receiving Federal
financial assistance under Title I programs. The policies and
procedures necessary to ensure enforcement of Section 109 are codified
in 24 CFR part 6.
9. In Sec. 570.913, a heading is added to paragraph (a) and the
introductory text of paragraph (a) is revised to read as follows:
Sec. 570.913 Other remedies for noncompliance.
(a) Action to enforce compliance. When the Secretary acts to
enforce the civil rights provisions of Section 109, as described in
Sec. 570.602 and 24 CFR part 6, the procedures described in 24 CFR
parts 6 and 180 apply. If the Secretary finds, after reasonable notice
and opportunity for hearing, that a recipient has failed to comply
substantially with any other provisions of this part, the provisions of
this section apply. The Secretary, until he/she is satisfied that there
is no longer any such failure to comply, shall:
* * * * *
Dated: March 27, 1998.
Andrew Cuomo,
Secretary.
[FR Doc. 98-11849 Filed 5-8-98; 8:45 am]
BILLING CODE 4210-32-P
