[Federal Register Volume 61, Number 154 (Thursday, August 8, 1996)]
[Rules and Regulations]
[Pages 41480-41482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-20201]
[[Page 41479]]
_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Part 103
Revision of HUD's Fair Housing Complaint Processing; Interim Rule
Federal Register / Vol. 61, No. 154 / Thursday, August 8, 1996 /
Rules and Regulations
[[Page 41480]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 103
[Docket No. FR-4031-I-01]
RIN 2529-AA79
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity; Revision of HUD's Fair Housing Complaint Processing
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: This interim rule amends HUD's regulations governing fair
housing complaint processing. Specifically, this rule removes the
provision allowing a respondent to request a subpoena during a fair
housing investigation. The removal of this provision will eliminate the
delays associated with subpoena requests and expedite the investigation
process. Further, the rule will prevent the appearance of a conflict of
interest between HUD's dual role as investigator and impartial arbiter
of discovery disputes between complainants and respondents. This
interim rule will also conform HUD's investigation practices with those
of other Federal administrative agencies.
DATES: Effective date: September 9, 1996.
Comments due date: October 7, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
the interim rule to the Office of the General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying during regular business
hours (7:30 a.m. to 5:30 p.m. Eastern Time) at the above address.
FOR FURTHER INFORMATION CONTACT: Susan Forward, Deputy Assistant
Secretary for Enforcement and Investigations, Room 5106, Department of
Housing and Urban Development, 451 Seventh Street, SW., Washington, DC
20410, telephone number (202) 708-4211. For hearing- and speech-
impaired persons, this number may be accessed via TTY by calling the
Federal Information Relay Service at 1-800-877-8339. (With the
exception of the ``800'' number, these numbers are not toll free.)
SUPPLEMENTARY INFORMATION:
I. Background
A. Respondent's Right to Request Subpoena
The Fair Housing Amendments Act of 1988 amended section 811 of the
Fair Housing Act (title VIII of the Civil Rights Act of 1968, as
amended, 42 U.S.C. 3601 et seq.) (the Act). Section 811, as amended,
authorizes the Secretary of HUD to issue subpoenas and order discovery
in aid of fair housing investigations and hearings. The Secretary has
delegated this investigative authority to the Assistant Secretary for
Fair Housing and Equal Opportunity. The Secretary's authority to
conduct hearings has been delegated to HUD's administrative law judges.
Prior to the Fair Housing Amendments Act of 1988, the Act did not
contain an administrative hearing process with discovery available to
the parties. However, the original language of section 811(b) of the
Act permitted a respondent to request the issuance of a subpoena during
a fair housing investigation:
Upon written application to the Secretary, a respondent shall be
entitled to the issuance of a reasonable number of subpoenas by and
in the name of the Secretary to the same extent and subject to the
same limitations as subpoenas issued by the Secretary himself.
Subpoenas issued at the request of a respondent shall show on
their face the name and address of such respondent and shall state
that they were issued at his request. 42 U.S.C. 3611(b) (1969).
The Fair Housing Amendments Act of 1988 removed the above-quoted
provision from the Act and granted the Secretary sole authority for
conducting discovery during fair housing investigations. However, HUD's
regulation at 24 CFR 103.215, published on January 23, 1989, includes a
provision which permits a respondent to request a subpoena during an
investigation. HUD's regulations do not provide a complaining party
with the opportunity to request issuance of a subpoena. However, the
complainant is permitted to request that the Assistant Secretary for
Fair Housing and Equal Opportunity revoke, quash or modify a
respondent's subpoena. This difference was based, in part, on the
assumption that HUD would be representing the interests of the
complaining party, and therefore the respondent should be offered the
ability to discover information in its own defense.
A recent Department of Justice memorandum 1 calls that
assumption into question. The memorandum states that the responsibility
of the government in the conduct of fair housing cases is not to
advocate for the complainant, but to serve the government's goals of
doing justice and correcting societal wrongs. Consequently, HUD's role
in a fair housing investigation is to objectively consider the facts
and determine whether cause exists to believe that a violation of the
Act has occurred, not to represent the interests of the complainant.
---------------------------------------------------------------------------
\1\ Assistant Attorney General Walter Dellinger, memorandum to
Deval L. Patrick, Assistant Attorney General for Civil Rights, The
Relationship Between Department Attorneys and Persons on Whose
Behalf the United States Initiates Cases Under the Fair Housing Act
(January 20, 1995).
---------------------------------------------------------------------------
B. Revision of 24 CFR 103.215
The lack of statutory support discussed above has prompted HUD to
publish this interim rule, which revises Sec. 103.215 to delete the
requirement that HUD issue a subpoena at the request of a respondent.
There are additional reasons for HUD's decision to take this action:
1. Prevents Appearance of Conflict of Interest
This interim rule prevents the appearance of a conflict of interest
between the Assistant Secretary's dual roles as investigator and as
impartial arbiter of discovery disputes between complainants and
respondents by removing the requirement that HUD engage in discovery at
the direction of one of the parties. The refereeing of these disputes
is a function more properly allocated to the administrative law judges
in the context of administrative hearings, or district court judges in
the context of elected federal litigation.
2. Expedites Investigation Process
This interim rule eliminates delays in the investigation process
which are associated with processing subpoena requests from
respondents. The Act charges HUD with completing all fair housing
investigations within a 100-day period, if practicable. If the fair
housing investigation cannot be completed within that time, the
Secretary is required to notify the complainant and the respondent of
the reasons for the delay. (42 U.S.C. 3610(a)(1).) However, the United
States Commission on Civil Rights noted, in its report on enforcement
of the Act, that the complexity of some cases and the heavy caseload
burden on investigative staff
[[Page 41481]]
bore out the observation that HUD frequently is not able to close
complaints or make determinations in 100 days.2 HUD has determined
that pursuing discovery at the direction of the respondent, in addition
to the discovery that HUD determines is necessary to the investigation,
is not necessary to a fair and impartial determination and can actually
impede HUD's efforts to complete the investigation in a timely manner.
---------------------------------------------------------------------------
\2\ United States Commission on Civil Rights, The Fair Housing
Amendments Act of 1988: The Enforcement Report, at 40-42 (1994).
---------------------------------------------------------------------------
3. Conforms HUD's Investigative Practices to Other Federal Agencies
This interim rule will conform HUD's investigation practices with
those of other Federal administrative agencies, which do not provide
for discovery by parties during the investigation of civil rights
complaints. HUD's review of the relevant regulations of the Equal
Employment Opportunity Commission for Title VII of the Civil Rights Act
of 1968 (29 CFR part 1601), the Americans with Disabilities Act (29 CFR
part 1630), the Equal Pay Act (29 CFR part 1620), and the Age
Discrimination in Employment Act (29 CFR part 1626) revealed that a
respondent does not have an opportunity to request a subpoena during
the government's investigation of a civil rights complaint under any of
these regulations. Similar regulations governing the Department of
Education's enforcement of Title IX of the Education Amendments of 1972
(34 CFR part 106), and the Department of Justice's enforcement of the
Immigration Reform and Control Act of 1986 (28 CFR part 44) also do not
contain any provisions authorizing a respondent to request a subpoena
during a civil rights investigation under these statutes.
HUD believes that the experience of other Federal administrative
agencies provides positive guidance for this decision to streamline and
simplify the investigation process.
C. Respondent's Ability To Prepare Its Defense
HUD believes it is important to emphasize that this interim rule
does not compromise a respondent's ability to prepare its own defense.
A respondent may continue to conduct an independent investigation of
the facts underlying the fair housing complaint and may obtain the
Final Investigative Report on which HUD's determination is based. This
interim rule does not change a respondent's ability to compel discovery
or request a subpoena from an administrative law judge during the
administrative hearing process. (See 24 CFR 104.500-104.590.) This
interim rule only affects the ability of a respondent to compel the use
of HUD's resources to subpoena evidence independent of the evidence
which HUD has determined is necessary to the investigation.
II. Justification for Interim Rulemaking
HUD generally publishes a rule for public comment before issuing a
rule for effect, in accordance with its own regulations on rulemaking
in 24 CFR part 10. However, 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). HUD finds that in this case prior
public comment is contrary to the public interest, since immediate
implementation of this interim rule will benefit the public.
This interim rule removes a respondent's right to request a
subpoena during the course of a fair housing investigation. HUD's
processing of these subpoena requests may delay, and often has delayed,
its investigation of complaints alleging discriminatory housing
practices. By eliminating these delays, this interim rule expedites
HUD's investigations and its ability to enforce the Act. Further, the
rule prevents the appearance of a conflict of interest between HUD's
dual roles as investigator and impartial arbiter of discovery disputes
between complainants and respondents. Such an appearance weakens HUD's
ability to conduct fair housing complaint investigations.
This interim rule does not compromise a respondent's ability to
prepare its own defense. Respondents will still be able to compel
discovery or request subpoenas during the administrative hearing
process. The rule only affects the ability of a respondent to compel
use of HUD's resources to subpoena evidence over and above the
information which HUD has determined is necessary to a full and fair
investigation.
Although HUD believes issuing this interim rule for immediate
effect will benefit the public, HUD welcomes public comment. All
comments will be considered in the development of the final rule.
III. Other Matters
A. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)), has reviewed and approved this final rule, and in so
doing certifies that this rule will not have a significant economic
impact on a substantial number of small entities. This rule streamlines
HUD's regulations governing fair housing complaint processing. The rule
will have no adverse or disproportionate economic impact on small
businesses.
B. Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking amends an existing regulation by streamlining provisions and
does not alter the environmental effect of the regulations being
amended. A Finding of No Significant Impact with respect to the
environment was made in accordance with HUD regulations in 24 CFR part
50 that implement section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332) at the time of development of
regulations implementing the Act. That finding remains applicable to
this rule, and is available for public inspection between 7:30 a.m. and
5:30 p.m. weekdays in the Office of the Rules Docket Clerk, Office of
General Counsel, Room 10276, Department of Housing and Urban
Development, 451 Seventh Street, SW., Washington, DC.
C. Executive Order 12612, Federalism
The General Counsel, as the Designated Official under section 6(a)
of Executive Order 12612, Federalism, has determined that this rule
will 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. No programmatic or policy changes
will result from this rule that would affect the relationship between
the Federal Government and State and local governments.
D. Executive Order 12606, The Family
The General Counsel, as the Designated Official under Executive
Order 12606, The Family, has determined that this rule will not have
the potential for significant impact on family formation, maintenance,
or general well-being, and thus is not subject to review under the
Order. No significant change in existing HUD policies or programs will
result from promulgation of this rule.
[[Page 41482]]
E. Executive Order 12866, Regulatory Planning and Review
This interim rule was reviewed by the Office of Management and
Budget under Executive Order 12866, Regulatory Planning and Review. Any
changes made to the interim rule as a result of that review are clearly
identified in the docket file, which is available for public inspection
in the office of the Department's Rules Docket Clerk, Room 10276, 451
Seventh Street, SW., Washington, DC 20410-0500.
List of Subjects in 24 CFR Part 103
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
Accordingly, 24 CFR part 103 is amended as follows:
PART 103--FAIR HOUSING--COMPLAINT PROCESSING
1. The authority citation for 24 CFR part 103 continues to read as
follows:
Authority: 42 U.S.C. 3535(d), 3601-3619.
2. Section 103.215 is amended by revising paragraph (b) to read as
follows:
Sec. 103.215 Conduct of investigations.
* * * * *
(b) The Assistant Secretary may conduct and order discovery in aid
of the investigation by the same methods and to the same extent that
discovery may be ordered in an administrative proceeding under 24 CFR
part 104, except that the Assistant Secretary shall have the power to
issue subpoenas described in 24 CFR 104.590 in support of the
investigation. Subpoenas issued by the Assistant Secretary must be
approved by the General Counsel as to their legality before issuance.
Dated: April 23, 1996.
Elizabeth K. Julian,
Deputy Assistant Secretary for Policy and Initiatives.
[FR Doc. 96-20201 Filed 8-7-96; 8:45 am]
BILLING CODE 4210-28-P
