| [Federal Register: January 25, 1999 (Volume 64, Number 15)]
[Rules and Regulations]
[Page 3795-3802]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25ja99-14]
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_______________________________________________________________________
Part V
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 6, 180 and 570
Nondiscrimination in Programs and Activities Receiving Assistance Under
Title I of the Housing and Community Development Act of 1974; Final
Rule
[[Page 3796]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 6, 180, 570
[Docket No. FR 4092-F-02]
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: Final rule.
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SUMMARY: This rule establishes procedures to file a complaint for a
claim of discrimination under HUD's community planning and development
programs funded under Title I of the Housing and Community Development
Act of 1974. The procedure is modeled on HUD'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 provides 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. The rule also
informs the public of HUD's procedures for conducting compliance
reviews.
DATES: Effective date February 24, 1999.
FOR FURTHER INFORMATION CONTACT: Betsy Ryan, Office of Enforcement,
Office of Fair Housing and Equal Opportunity, Room 5208, Department of
Housing and Urban Development, 451 Seventh Street, SW, Washington, DC
20410-5000, telephone (202) 619-8041, ext. 6991. (This telephone number
is not toll-free.) Hearing or speech-impaired persons may access this
number via TTY by calling the Federal Information Relay Service at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On May 11, 1998, the Department published a proposed rule to
implement the provisions of section 109 of Title I of the Housing and
Community Development Act of 1974 (42 U.S.C. 5301-5321) (Title I), at
63 FR 26022. The comment period ended on July 10, 1998, and no public
comments were received. This final rule makes only clarifying changes
to that proposed rule.
Section 109 was modeled on the language of 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, 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. Section 109 was amended to direct
that the existing prohibitions against discrimination on the basis of
age and against discrimination on the basis of disability apply to
Title I programs, and it was amended to add protection against
discrimination on the basis of religion. (See complete history in the
proposed rule preamble, published on May 11, 1998, 63 FR 26022.)
II. Changes From Proposed Rule
Only minor, clarifying changes are made to the May 11, 1998
proposed rule in the adoption of this final rule. The changes affect
Secs. 6.2, 6.3, and 6.11. To provide a complete version of the rule,
this final rule republishes the language of the proposed rule, with
minor clarifications.
The applicability section of the rule, Sec. 6.2, did not
specifically mention the Secretary's partial waiver of Section 109 with
respect to programs for native Americans. A new paragraph (c) has been
added, comparable to the paragraph dealing with Hawaiian Homelands. New
paragraph (c) states that the section 109 protections against
discrimination on the basis of race and national origin do not apply to
grant recipients under the Native American Housing Assistance and Self-
Determination Act, and it references the provision of the Indian
Community Development Block Grant rule that already makes race and
national origin restrictions inapplicable to Indian tribal entities.
The definition of Federal financial assistance found in Sec. 6.3
contained a grammatical inconsistency, which is corrected in this rule.
At the proposed rule stage, Sec. 6.11 was organized into two
paragraphs. Paragraph (a) applied to complaints; paragraph (b) applied
to compliance reviews. The provisions dealing with response after
issuance of a letter of findings, informal resolution process, and
right to file a civil action were all contained within paragraph (a),
although these procedures actually are applied to compliance reviews as
well. At this final rule stage, Sec. 6.11 is reorganized to place the
provisions applicable to both in separate new paragraphs (c), (d), (e),
and (f), and the language is revised slightly to make it appropriate to
apply to both situations. In light of these revisions, a paragraph that
dealt with the issue of response to the letter of findings of
noncompliance was removed from the paragraph on compliance reviews
because it was redundant.
This final rule makes no substantive changes to the process
provided in the proposed rule.
III. Findings and Certifications
Public Reporting Burden
The information collection requirements in Sec. 6.6 of this 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 final rule
under Executive Order 12250.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4; approved March 22, 1995) (UMRA) establishes requirements for Federal
agencies to assess the effects of their regulatory actions on State,
local, and tribal governments, and the private sector. This rule does
not impose any Federal mandates on any State, local, or tribal
governments, or on the private sector, within the meaning of the UMRA.
Environmental Impact
In accordance with 24 CFR 50.19(c)(3) of the HUD regulations, the
policies and procedures 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 final rule before publication, and by
approving it certifies that this final rule would not
[[Page 3797]]
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 will not have any
meaningful impact on small entities. The entities that receive
assistance under Title I of the Housing and Community Development Act,
to which this rule applies, are either States or ``entitlement
jurisdictions'', all of which have populations of greater than 50,000
and consequently do not fall within the definition of small entities.
In addition, we note that the proposed rule preamble specifically
invited comment on alternatives to the compliance procedure for small
entities that might be less burdensome to them. There was no response.
Executive Order 13083, Federalism
The Department has determined that, under section 1 of Executive
Order 13083, Federalism, the policies contained in this rule are not
policies that 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 final 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
final 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, Northern Mariana Islands, Pacific Islands Trust Territory,
Puerto Rico, Reporting and recordkeeping requirements, Small cities,
Student aid, Urban renewal, Virgin Islands.
Accordingly, subtitle A and chapters I and V of title 24 of the
Code of Federal Regulations are 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) 42 U.S.C. 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 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 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 that 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).
(c) The provisions of this part and sections 104(b)(2) and 109 of
Title I that relate to discrimination on the basis of race and national
origin shall not apply to the provision of Federal financial assistance
to grant recipients under the Native American Housing Assistance and
Self-Determination Act (25 U.S.C. 4101). See also, 24 CFR 1003.601(a).
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 under that program.
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
[[Page 3798]]
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) Any 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 a State or local government that distributes
Federal financial assistance, and each department or agency (and each
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 the 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 that is 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.
Recipient does not include any ultimate beneficiary under any 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
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, on the grounds of
race, color, national origin, religion, or sex.
(1) A Recipient under any program or activity to which this part
applies may not, directly or through contractual, licensing, or other
arrangements, take any of the following actions on the grounds of race,
color, national origin, religion, or sex:
(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 that 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 that 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 that 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 that 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. The Recipient may not make selections that 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 that resulted in limiting
participation by
[[Page 3799]]
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 subpart C of 24 CFR part 570 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 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. Terms and conditions of employment include
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 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 that 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 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. Generally, the Responsible Official shall hold
in confidence the identity of any person submitting a complaint, unless
the person submits written authorization otherwise. However, an
exception to maintaining confidentiality of the identity of the person
may be required 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
[[Page 3800]]
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 while the complaint
is being considered, 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 assess 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.
(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 before 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 implement the
requirements of this part.
(2) Time period of the review. (i) For the Entitlement program,
compliance reviews will cover the three years before 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 before the date of the
review.
(iv) For all other programs, the time period covered by the review
will be four years before 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 compliance review will be made available, upon
request, to the Recipient.
(c) Right to a review of the letter of findings. (1) Within 30 days
of receipt of the letter of findings, any party 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.
(2) The Responsible Official will send by certified mail, return
receipt requested, a copy of the request for review to all parties.
Parties other than the party requesting review and HUD shall have 20
days from receipt to respond to the request for review.
(3) 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.
(4) If no 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 all
parties.
(d) Voluntary compliance time limits. The Recipient will have 10
calendar days from receipt of the letter of findings of noncompliance,
or such other reasonable time as specified in the letter, 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.
(e) Informal resolution/voluntary compliance--(1) 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.
(2) 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
[[Page 3801]]
violation of this part or the prevention of the occurrence of such
violation in the future. If a finding of noncompliance 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.
(3) 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.
(f) 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.
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 will notify the Governor of the State or the Chief Executive
Officer of the unit of general local government of the findings of
noncompliance and will 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 will:
(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;
(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 will follow the
notification procedures set forth in 24 CFR 180.415. The hearing, and
any petition for review, will be conducted in accordance with 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.
3. 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.
4. 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.
* * * * *
5. 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.
* * * * *
6. 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
[[Page 3802]]
respondents in hearing notices issued under 24 CFR parts 1, 6, 8 or 146
and notices of proposed adverse action under this part.
* * * * *
7. 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
8. The authority for part 570 continues to read as follows:
Authority: 42 U.S.C. 3535(d) and 5301-5320.
9. 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.
10. 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: January 12, 1999.
Andrew Cuomo,
Secretary.
[FR Doc. 99-1621 Filed 1-22-99; 8:45 am]
BILLING CODE 4210-32-P
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