Nondiscrimination in Programs and Activities Receiving Assistance Under Title I of the Housing and Community Development Act of 1974

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