26022 Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules

DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT

24 CFR Parts 6, 180, 570

[Docket No. FR 4092–P–01]

RIN 2501–AC28

Nondiscrimination in Programs and

Activities Receiving Assistance Under

Title I of the Housing and Community

Development Act of 1974

AGENCY: Office of the Secretary, HUD.

ACTION: Proposed rule.

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

§ 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

§ 570.602.
Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules 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 § 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

§ 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
26024 Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules

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.

§ 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 HUDAdministered 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).

§ 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).

§ 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:
Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules 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.

§ 6.5 Discrimination prohibitedemployment.

(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.

§ 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

§ 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
26026 Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules

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.

§ 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 §§ 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
Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules 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 §§ 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 HUDAdministered 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.

§ 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 § 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.

§ 6.13 Hearings and appeals.

(a) When a Recipient requests an

opportunity for a hearing, in accordance

with § 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
26028 Federal Register / Vol. 63, No. 90 / Monday, May 11, 1998 / Proposed Rules

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 § 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:

§ 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:

§ 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 § 180.310, paragraph (a) is

revised to read as follows:

§ 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 § 180.415, the section heading

and paragraph (a) are revised to read as

follows:

§ 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:

§ 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 § 570.913, a heading is added to

paragraph (a) and the introductory text

of paragraph (a) is revised to read as

follows:

§ 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 § 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