[Federal Register Volume 87, Number 30 (Monday, February 14, 2022)]
[Rules and Regulations]
[Pages 8194-8197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03007]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570

[Docket No. FR-6285-F-01]


HUD Office of Hearings and Appeals

AGENCY: Office of Hearings and Appeals, HUD.

ACTION: Final rule.

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SUMMARY: This final rule amends HUD's regulations regarding HUD's 
Office of Hearings and Appeals (OHA). This rule makes conforming 
changes to HUD regulations to reflect the office's proper title, to 
remove references to the terminated HUD Board of Contract Appeals, and 
to add a reference to recent Supreme Court precedent regarding the 
proper appointment procedure for administrative law judges and 
administrative judges.

DATES: Effective March 16, 2022.

FOR FURTHER INFORMATION CONTACT: J. Jeremiah Mahoney, Chief 
Administrative Law Judge, Office of Hearings and Appeals, Department of 
Housing and Urban Development, 451 7th Street SW, Room B-133, 
Washington, DC 20410, 202-254-0000 (not a toll-free number). Hearing- 
or speech-impaired individuals may access this number via TTY by 
calling the Federal Relay Service at 800-877-8339 (toll-free number).

SUPPLEMENTARY INFORMATION:

I. Background

    The HUD Office of Hearings and Appeals (OHA) is an independent 
judicial office within HUD's Office of the Secretary. The OHA is headed 
by the Chief Administrative Law Judge, who supervises the judges and 
the professional and administrative support staffs.
    Each Administrative Judge and each Administrative Law Judge is 
appointed by the HUD Secretary as an Officer of the United States. The 
Judges also may be appointed through contracts with other U.S. 
Department heads and Federal Agency heads to conduct hearings and issue 
decisions on matters before their respective agencies.
    The OHA Judges function as independent and impartial triers of fact 
responsible for presiding over adversarial hearings, and adjudicating 
appeals, based upon alleged violations of Federal statutes or their 
implementing regulations.
    Hearing procedures are established by agency regulations and are 
guided by the rules applicable to trials in a U.S. district court. In 
each case, the judge makes an impartial decision based upon the law, 
and the facts established by the evidence.

II. This Final Rule

    This final rule updates HUD's regulations in 24 CFR parts 14, 17, 
20, 26, 28, 30, 81, 103, 180, and 570, to reflect that the office's 
title is ``Office of Hearings and Appeals,'' as changed by the HUD 
Secretary. These HUD regulations contain outdated references to the 
``Office of Administrative Law Judges,'' ``Office of Appeals,'' and 
``Board of Contract Appeals.'' This final rule updates HUD regulations 
throughout Title 24 to reflect these changes. While this final rule 
updates those sections of Title 24 that use outdated language that also 
implicate the hearing procedures at 24 CFR part 180, there are other 
sections of Title 24 that rely on the hearing procedures at 24 CFR part 
180, which do not require the conforming amendments made by this final 
rule, including 24 CFR parts 1, 3, 6, 8, and 146. These sections of 
Title 24 implement federal civil rights statutes, which continue to 
rely on 24 CFR part 180 for administrative enforcement procedures.

[[Page 8195]]

    OHA was formed at the end of 2007 after the HUD Board of Contract 
Appeals, along with other agencies' boards of contract appeals, was 
consolidated into the Civilian Board of Contract Appeals. The Civilian 
Board of Contract Appeals is an independent tribunal housed within the 
U.S. General Services Administration, pursuant to section 847 of the 
National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-
163, approved January 6, 2006). OHA was established to merge the non-
procurement contract dispute functions previously performed by the HUD 
Board of Contract Appeals with the HUD Office of Administrative Law 
Judges. OHA remained as an independent office within the Office of the 
Secretary. This final rule will not change any existing OHA functions, 
but will avoid internal or external confusion as to its name, 
composition, location, and contact information. This final rule also 
removes an obsolete reference to a ``hearing examiner'' in 24 CFR 
14.50, because this is a former title for Administrative Law Judges 
that is no longer used in the Federal Government.
    This final rule also adds language to HUD's regulations in 24 CFR 
20.1 to explain that Administrative Law Judges are appointed by the HUD 
Secretary as Officers of the United States, pursuant to the 
Appointments Clause of the United States Constitution. The HUD 
Administrative Law Judges have also been appointed by other U.S. 
Department heads and Federal Agency heads to conduct hearings and issue 
decisions on matters before their respective agencies. The requirement 
of U.S. Department and Federal Agency heads to appoint Administrative 
Law Judges was recently recognized by the Supreme Court in Lucia v. 
SEC, 585 U.S. __ (2018). HUD is adding this language to its regulations 
in response to this.
    Finally, this final rule clarifies the required qualifications for 
both Administrative Judges and Administrative Law Judges at 24 CFR 
20.3(d) in accordance with the Office of Personnel Management's 
requirements and regulations at 5 CFR part 930. All of HUD's 
Administrative Judges and Administrative Law Judges are currently 
actively licensed attorneys at law.

III. Justification for Final Rulemaking

    Generally, HUD publishes a rule for public comment before 
publishing a rule for effect, in accordance with HUD's regulations on 
rulemaking at 24 CFR part 10. However, Sec.  10.1 allows for omission 
of notice and public comment in cases of statements of policy, 
interpretive rules, rules governing HUD's organization or internal 
practices, if the Department determines in a particular case or class 
of cases that notice and public procedure are impracticable, 
unnecessary, or contrary to the public interest. In this case, HUD has 
determined that prior public comment is unnecessary because this rule 
is exclusively concerned with fixing outdated references concerning 
OHA. Specifically, the regulatory amendments made by the final rule are 
technical and non-substantive in nature, since they are limited to 
updating the terminology used in HUD's regulations governing 
administrative hearings and appeals and adding language in accordance 
with Supreme Court precedent.

IV. Findings and Certifications

Executive Orders 12866 and 13563, Regulatory Planning and Review

    Under Executive Order 12866 (Regulatory Planning and Review) (58 FR 
51735), a determination must be made whether a regulatory action is 
significant and, therefore, subject to review by the Office of 
Management and Budget (OMB) in accordance with the requirements of the 
order.
    Executive Order 13563 (Improving Regulations and Regulatory Review) 
(76 FR 3821) directs executive agencies to analyze regulations that are 
``outmoded, ineffective, insufficient, or excessively burdensome, and 
to modify, streamline, expand, or repeal them in accordance with what 
has been learned.'' Executive Order 13563 also directs that, where 
relevant, feasible, and consistent with regulatory objectives, and to 
the extent permitted by law, agencies are to identify and consider 
regulatory approaches that reduce burdens and maintain flexibility and 
freedom of choice for the public. As discussed above in this preamble, 
this final rule updates outdated terminology and its changes are 
technical and non-substantive in nature. HUD determined that this rule 
was not significant under Executive Order 12866 and Executive Order 
13563.

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') (64 FR 43255) 
prohibits an agency from publishing any rule that has federalism 
implications if the rule either imposes substantial direct compliance 
costs on State and local governments and is not required by statute, or 
the rule preempts State law, unless the agency meets the consultation 
and funding requirements of section 6 of the Executive Order. This rule 
will not have federalism implications and would not impose substantial 
direct compliance costs on State and local governments or preempt State 
law within the meaning of the Executive order.

Environmental Review

    This final rule does not direct, provide for assistance or loan and 
mortgage insurance for, or otherwise govern, or regulate, real property 
acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
final rule is categorically excluded from environmental review under 
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. Because HUD 
determined that good cause exists to issue this rule without prior 
public comment, this rule is not subject to the requirement to publish 
an initial or final regulatory flexibility analysis under the RFA as 
part of such action.

Unfunded Mandates Reform

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) \1\ 
requires that an agency prepare a budgetary impact statement before 
promulgating a rule that includes a Federal mandate that may 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. If a budgetary impact statement is required, section 205 of UMRA 
also requires an agency to identify and consider a reasonable number of 
regulatory alternatives before promulgating a rule.\2\ However, the 
UMRA applies only to rules for which an agency publishes a general 
notice of proposed rulemaking. As discussed above, HUD has determined, 
for good cause, that prior notice and public comment is not required on 
this rule and, therefore, the UMRA does not apply to this final rule.
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    \1\ 2 U.S.C. 1532.
    \2\ 2 U.S.C. 1535.

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[[Page 8196]]

List of Subjects

24 CFR Part 14

    Claims, Equal access to justice, Lawyers, Reporting and 
recordkeeping requirements.

24 CFR Part 17

    Administrative practice and procedure, Claims, Government 
employees, Income taxes, Wages.

24 CFR Part 20

    Administrative practice and procedure, Government contracts, 
Organization and functions (Government agencies).

24 CFR Part 26

    Administrative practice and procedure.

24 CFR Part 28

    Administrative practice and procedure, Claims, Fraud, Penalties.

24 CFR Part 30

    Administrative practice and procedure, Grant programs--housing and 
community development, Loan programs--housing and community 
development, Mortgage insurance, Penalties.

24 CFR Part 81

    Accounting, Federal Reserve System, Mortgages, Reporting and 
recordkeeping requirements, Securities.

24 CFR Part 103

    Administrative practice and procedure, Aged, Fair housing, 
Individuals with disabilities, Intergovernmental relations, 
Investigations, Mortgages, Penalties, Reporting and recordkeeping 
requirements.

24 CFR Part 180

    Administrative practice and procedure, Aged, Civil rights, Fair 
housing, Individuals with disabilities, 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, Loan programs--
housing and community development, Low and moderate income housing, 
Northern Mariana Islands, Pacific Islands Trust Territory, Puerto Rico, 
Reporting and recordkeeping requirements, Student aid, Virgin Islands.

    Accordingly, for the reasons described in the preamble, HUD amends 
24 CFR parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570 to read as 
follows:

PART 14--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN 
ADMINISTRATIVE PROCEEDINGS

0
1. The authority citation for part 14 continues to read as follows:

    Authority:  5 U.S.C. 504(c)(1); 42 U.S.C. 3535(d).


0
2. In Sec.  14.50, revise the definition of ``Adjudicative officer'' to 
read as follows:


Sec.  14.50   Definitions.

* * * * *
    Adjudicative officer. The Administrative Law Judge, Administrative 
Judge of the HUD Office of Hearings and Appeals, or other officer 
designated by the Secretary, who presided at the adversary 
adjudication.
* * * * *

PART 17--ADMINISTRATIVE CLAIMS

0
3. The authority citation for part 17 continues to read as follows:

    Authority:  28 U.S.C. 2672; 31 U.S.C. 3711, 3716-18, 3721, and 5 
U.S.C. 5514; 42 U.S.C. 3535(d).

PART 17--[Amended]

0
4. In part 17:
0
a. Remove ``Office of Appeals'' and add in its place ``Office of 
Hearings and Appeals'' wherever it appears; and
0
b. Remove ``OA'' and add in its place ``OHA'' wherever it appears.

0
5. In Sec.  17.63, remove the definition of ``Office of Appeals or OA'' 
and add a definition for ``Office of Hearings and Appeals'' in 
alphabetical order.
    The addition reads as follows:


Sec.  17.63   Definitions.

* * * * *
    Office of Hearings and Appeals or OHA means the HUD Office of 
Hearings and Appeals.
* * * * *

PART 20--OFFICE OF HEARINGS AND APPEALS

0
6. The authority citation for part 20 continues to read as follows:

    Authority:  42 U.S.C. 3535(d).


0
7. Revise Sec.  20.1 to read as follows:


Sec.  20.1   Establishment of the Office of Hearings and Appeals.

    There is established in the Office of the Secretary the Office of 
Hearings and Appeals. The Administrative Law Judges and the 
Administrative Judges within the Office of Hearings and Appeals are 
appointed by the Secretary of the Department pursuant to the 
Appointments Clause of the United States Constitution.

0
8. In Sec.  20.3, revise paragraphs (c) and (d) to read as follows:


Sec.  20.3   Location, organization, and officer qualifications.

* * * * *
    (c) Organization. The Office of Hearings and Appeals is supervised 
by the Chief Administrative Law Judge and a Deputy Chief Administrative 
Law Judge.
    (d) Officer qualifications. (1) The Administrative Judges of the 
Office of Hearings and Appeals shall be attorneys at law actively 
licensed by any state, commonwealth, territory, or the District of 
Columbia.
    (2) The Administrative Law Judges of the Office of Hearings and 
Appeals shall be qualified in accordance with the Office of Personnel 
Management regulations at 5 CFR part 930.

0
9. In Sec.  20.5, revise the section heading and in the first sentence 
remove ``Office of Appeals'' and add in its place ``Office of Hearings 
and Appeals''.
    The revision reads as follows:


Sec.  20.5   Jurisdiction of Office of Hearings and Appeals.

* * * * *

PART 26--HEARING PROCEDURES

0
10. The authority citation for part 26 continues to read as follows:

    Authority:  42 U.S.C. 3535(d).


Sec.  26.2   [Amended]

0
11. In Sec.  26.2, in paragraph (a), remove the words ``Office of 
Appeals''.


Sec.  26.9   [Amended]

0
12. In Sec.  26.9, in paragraph (a)(1), remove ``Office of Appeals'' 
and add in its place ``Office of Hearings and Appeals''.


Sec.  26.29   [Amended]

0
13. In Sec.  26.29, in the definition of ``Docket Clerk'', remove 
``Office of Administrative Law Judges'' and add in its place ``Office 
of Hearings and Appeals''.

PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF 
1986

0
14. The authority citation for part 28 continues to read as follows:

    Authority:  28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C. 
3535(d).

[[Page 8197]]

Sec.  28.25   [Amended]

0
15. In Sec.  28.25, in paragraph (a), remove ``Office of Administrative 
Law Judges'' and add in its place ``Office of Hearings and Appeals''.

PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT

0
16. The authority citation for part 30 continues to read as follows:

    Authority:  12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, and 1735f-
15; 15 U.S.C. 1717a; 28 U.S.C. 1 note and 2461 note; 42 U.S.C. 
1437z-1 and 3535(d).


0
17. In part 30, remove ``Office of Administrative Law Judges'' and add 
in its place ``Office of Hearings and Appeals'' wherever it appears.

PART 81--THE SECRETARY OF HUD'S REGULATION OF THE FEDERAL NATIONAL 
MORTGAGE ASSOCIATION (FANNIE MAE) AND THE FEDERAL HOME LOAN 
MORTGAGE CORPORATION (FREDDIE MAC)

0
18. The authority citation for part 81 continues to read as follows:

    Authority:  12 U.S.C. 1451 et seq., 1716-1723h, and 4501-4641; 
28 U.S.C. 2461 note; 42 U.S.C. 3535(d) and 3601-3619.


0
19. In part 81, remove ``Office of Administrative Law Judges'' and add 
in its place ``Office of Hearings and Appeals'' wherever it appears.

PART 103--FAIR HOUSING--COMPLAINT PROCESSING

0
20. The authority citation for part 103 continues to read as follows:

    Authority:  42 U.S.C. 3535(d), 3600-3619.

PART 103--[Amended]

0
21. In part 103, remove ``Office of Administrative Law Judges'' and add 
in its place ``Office of Hearings and Appeals'' wherever it appears.

PART 180--CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS 
MATTERS

0
22. The authority citation for part 180 continues to read as follows:

    Authority:  28 U.S.C. 1 note; 29 U.S.C. 794; 42 U.S.C. 2000d-1, 
3535(d), 3601-3619, 5301-5320, and 6103.


0
23. In part 180:
0
a. Remove ``Director of the Office of Hearings and Appeals'' and add in 
its place ``Chief Administrative Law Judge'' wherever it appears; and
0
b. Remove ``Office of ALJs'' and add in its place ``Office of Hearings 
and Appeals'' wherever it appears.

PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS

0
24. The authority citation for part 570 continues to read as follows:

    Authority:  12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 3535(d) and 
5301-5320.


Sec.  570.496   [Amended]

0
25. In Sec.  570.496, in paragraph (d)(1)(iii), remove ``Office of 
Administrative Law Judges'' and add in its place ``Office of Hearings 
and Appeals'' wherever it appears.

    Dated: February 8th, 2022.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-03007 Filed 2-11-22; 8:45 am]
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