[Federal Register Volume 61, Number 40 (Wednesday, February 28, 1996)]
[Rules and Regulations]
[Pages 7674-7682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-4437]
[[Page 7673]]
_______________________________________________________________________
Part VI
Department of Housing and Urban Development
_______________________________________________________________________
24 CFR Parts 111 and 115
Regulatory Reinvention; Certification and Funding of State and Local
Fair Housing Enforcement Agencies; Interim Rule
Federal Register / Vol. 61, No. 40 / Wednesday, February 28, 1996 /
Rules and Regulations
[[Page 7674]]
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
Office of the Assistant Secretary for Fair Housing and Equal
Opportunity
24 CFR Parts 111 and 115
[Docket No. FR-3322-F-01]
RIN 2529-AA60
Regulatory Reinvention; Certification and Funding of State and
Local Fair Housing Enforcement Agencies
AGENCY: Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, HUD.
ACTION: Interim rule.
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SUMMARY: This interim rule represents another step in HUD's continuing
efforts to reinvent and streamline its regulations. The Fair Housing
Act provides that the Secretary of HUD shall refer complaints alleging
a discriminatory housing practice to State or local enforcement
agencies certified by the Secretary. Currently, HUD's regulations at 24
CFR part 115 set forth the criteria the Secretary will utilize to
certify such agencies. HUD's regulations at 24 CFR part 111 establish
the requirements for the Fair Housing Assistance Program (FHAP),
through which HUD provides assistance to certified fair housing
enforcement agencies. This interim rule consolidates parts 111 and 115,
thus providing all necessary requirements in a single part and
eliminating unnecessary or repetitive regulatory provisions.
DATES: Effective date: March 29, 1996.
Comments due date: April 29, 1996.
ADDRESSES: Interested persons are invited to submit comments regarding
the interim rule to the Office of the General Counsel, Rules Docket
Clerk, Room 10276, Department of Housing and Urban Development, 451
Seventh Street, SW, Washington, DC 20410-0500. Communications should
refer to the above docket number and title. Facsimile (FAX) comments
are not acceptable. A copy of each communication submitted will be
available for public inspection and copying during regular business
hours (7:30 a.m. to 5:30 p.m. Eastern Time) at the above address.
FOR FURTHER INFORMATION CONTACT: Marcella Brown, Director, Fair Housing
Assistance Program Division, Office of Fair Housing and Equal
Opportunity, Room 5218, Department of Housing and Urban Development,
451 Seventh Street, SW, Washington, DC 20410, telephone (202) 708-0455.
Hearing- or speech-impaired individuals may call HUD's TDD number (202)
708-0113 or 1-800-877-8339 (Federal Information Relay Service TDD).
(Except for the ``800'' number, these are not toll-free numbers.)
SUPPLEMENTARY INFORMATION:
I. Background
The Fair Housing Act (42 U.S.C. 3600-3620) (the Act) provides that
whenever a complaint alleges a discriminatory housing practice, arising
in the jurisdiction of a State or local agency which has been certified
by the Secretary under section 810(f) of the Act, HUD shall refer the
complaint to that State or local agency. HUD has implemented section
810(f) at 24 CFR part 115, which establishes the criteria the Secretary
will utilize to certify State and local fair housing enforcement
agencies.
Section 817 of the Act provides that the Secretary may reimburse
State and local fair housing enforcement agencies which assist the
Secretary in enforcing the Act. HUD has implemented section 817 at 24
CFR part 111, which sets forth the requirements for the Fair Housing
Assistance Program (FHAP). Through the FHAP, HUD provides assistance to
certified State and local fair housing enforcement agencies. This
assistance is designed to provide support for complaint processing,
training, technical assistance, data and information systems, and other
fair housing projects.
Pursuant to President Clinton's memorandum of March 4, 1995,
Regulatory Reinvention, HUD conducted a comprehensive, page-by-page
review of its regulations. This interim rule marks another step in
HUD's continuing efforts to streamline, update and generally improve
its regulations. Specifically, the rule consolidates parts 111 and 115,
thus providing all necessary requirements for certification and FHAP
participation in part 115. This interim rule also eliminates burdensome
or redundant regulatory provisions currently located in parts 111 and
115. The Department welcomes comments on how this interim rule may be
made more understandable and less burdensome.
II. Justification for Interim Rulemaking
It is HUD's policy to publish rules for public comment before their
issuance for effect, in accordance with its own regulations on
rulemaking found at 24 CFR part 10. However, part 10 provides that
prior public comment will be omitted if HUD determines that it is
``impracticable, unnecessary, or contrary to the public interest'' (24
CFR 10.1). HUD finds that in this case prior public comment is contrary
to the public interest, since immediate implementation of this interim
rule will benefit the public. Specifically, this interim rule will
assist FHAP participants by providing all necessary requirements in a
single part and eliminating burdensome and redundant provisions.
Further, the streamlining amendments made by this interim rule will
allow HUD to administer the FHAP in a more efficient manner, thus
strengthening its ability to enforce the Fair Housing Act.
III. Other Matters
A. Environmental Impact
This rulemaking does not have an environmental impact. This
rulemaking simply amends an existing regulation by consolidating and
streamlining provisions and does not alter the environmental effect of
the regulations being amended. A Finding of No Significant Impact with
respect to the environment was made in accordance with HUD regulations
in 24 CFR part 50 that implement section 102(2)(C) of the National
Environmental Policy Act of 1969 (42 U.S.C. 4332) at the time of
development of regulations implementing Section 214 of the Housing and
Community Development Act of 1980. That Finding remains applicable to
this rule, and is available for public inspection between 7:30 a.m. and
5:30 p.m. weekdays in the Office of the Rules Docket Clerk, room 10276,
Department of Housing and Urban Development, 451 Seventh Street, SW,
Washington, DC 20410-0500.
B. 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 interim rule will not have substantial direct effects
on States or their political subdivisions, or the relationship between
the Federal government and the States, or on the distribution of power
and responsibilities among the various levels of government. This
interim rule merely consolidates in a single part the requirements for
``substantially equivalent'' certification and participation in the
FHAP. It effects no changes in the current relationships between the
Federal government, the States and their political subdivisions in
connection with HUD programs.
C. Executive Order 12606, the Family
The General Counsel, as the Designated Official under Executive
[[Page 7675]]
Order 12606, The Family, has determined that this interim rule will not
have a potential significant impact on family formation, maintenance,
and general well-being and, thus, is not subject to review under the
Order. This interim rule only affects State and local fair housing
enforcement agencies which seek certification under section 810(f) of
the Act and participation in the FHAP. No significant change in
existing HUD policies or programs will result from promulgation of this
interim rule, as those policies and programs relate to family concerns.
D. Regulatory Flexibility Act
The Secretary, in accordance with the Regulatory Flexibility Act (5
U.S.C. 605(b)) has reviewed and approved this interim rule, and in so
doing certifies that this interim rule will not have a significant
economic impact on a substantial number of small entities.
List of Subjects
24 CFR Part 111
Fair housing, Grant programs--housing and community development,
Reporting and recordkeeping requirements.
24 CFR Part 115
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations, Mortgages,
Reporting and recordkeeping requirements.
Accordingly, under the authority at 42 U.S.C. 3535(d) 24 CFR parts
111 and 115 are amended as follows:
PART 111--[REMOVED]
1. Part 111 is removed.
2. Part 115 is revised to read as follows:
PART 115--CERTIFICATION AND FUNDING OF STATE AND LOCAL FAIR HOUSING
ENFORCEMENT AGENCIES
Subpart A--General
Sec.
115.100 Definitions.
115.101 Program administration.
115.102 Public notices.
Subpart B--Certification of Substantially Equivalent Agencies
115.200 Purpose.
115.201 Basis of determination.
115.202 Criteria for Adequacy of Law.
115.203 Performance standards.
115.204 Consequences of Certification.
115.205 Technical assistance.
115.206 Request for certification.
115.207 Procedure for interim certification.
115.208 Suspension of interim certification.
115.209 Denial of interim certification.
115.210 Procedure for certification.
115.211 Suspension of certification.
115.212 Withdrawal of certification.
Subpart C--Fair Housing Assistance Program (FHAP)
115.300 Purpose.
115.301 Agency eligibility criteria.
115.302 Capacity Building Funds.
115.303 Eligible activities for Capacity Building Funds.
115.304 Agencies eligible for contributions funds.
115.305 Special Enforcement Effort (SEE) funds.
115.306 Training funds.
115.307 Additional requirements for participation in the FHAP.
115.308 Standards for FHAP program review.
115.309 Reporting and recordkeeping requirements.
115.310 Subcontracting under the FHAP.
115.311 Corrective and remedial action.
Authority: 42 U.S.C. 3600-3620 and 3535(d).
Subpart A--General
Sec. 115.100 Definitions.
(a) The terms ``Fair Housing Act'' and ``HUD'', as used in this
part, are defined in 24 CFR 5.100.
(b) The terms ``Aggrieved person'', ``Complainant'',
``Conciliation'', ``Conciliation agreement'', ``Discriminatory housing
practice'', ``Dwelling'', ``Handicap'', ``Person'', ``Respondent'',
``Secretary'', and ``State'', as used in this part, are set forth in
section 802 of the Fair Housing Act.
(c) Other definitions. The following definitions also apply to this
part:
Act means the Fair Housing Act, as defined in 24 CFR 5.100.
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Certified Agency is an agency to which the Assistant Secretary for
Fair Housing and Equal Opportunity has granted interim certification or
certification, in accordance with the requirements of this part.
Cooperative Agreement is the assistance instrument HUD will use to
provide funds. The Cooperative Agreement will contain attachments and
appendices establishing requirements relating to the operation or
performance of the agency.
Cooperative Agreement Officer (CAO) is the administrator of the
funds awarded pursuant to this part and is the Director of a Fair
Housing Enforcement Center in the Office of Fair Housing and Equal
Opportunity.
Director of FHEO means a Director of a Fair Housing Enforcement
Center.
Dual-Filed Complaint means a housing discrimination complaint which
has been filed with both the Fair Housing Enforcement Center and the
certified agency.
FHEO means the Office of Fair Housing and Equal Opportunity.
FHAP means the Fair Housing Assistance Program.
Sec. 115.101 Program administration.
(a) Authority and Responsibility. The Secretary has delegated the
authority and responsibility for administering this part to the
Assistant Secretary.
(b) Delegation of Authority. The Assistant Secretary delegates the
authority and responsibility for administering this part to each
Director of a Fair Housing Enforcement Center. However, with respect to
the duties and responsibilities for administering subpart B of this
part, the Assistant Secretary retains the right to make final decisions
concerning the granting and maintenance of substantial equivalency
certification and interim certification.
Sec. 115.102 Public notices.
(a) Periodically, the Assistant Secretary will publish the
following public notices in the Federal Register:
(1) A list of all agencies which have interim certification or
certification; and
(2) A list of agencies to which a notice of denial of interim
certification has been issued or for which withdrawal of certification
is being proposed.
(b) The Assistant Secretary will publish in the Federal Register a
notice soliciting public comment before granting certification to a
State or local agency. The notice will invite the public to comment on
the relevant State and local laws, as well as on the performance of the
agency in enforcing its law. All comments will be considered before a
final decision on certification is made.
Subpart B--Certification of Substantially Equivalent Agencies
Sec. 115.200 Purpose.
This subpart implements section 810(f) of the Fair Housing Act. The
purpose of this subpart is to set forth:
(a) The basis for agency interim certification and certification;
(b) The procedure by which a determination to certify is made by
the Assistant Secretary;
(c) The basis and procedures for denial of interim certification;
(d) The basis and procedures for withdrawal of certification;
(e) The consequences of certification;
(f) The basis and procedures for suspension of interim
certification or certification; and
(g) The funding criteria for interim certified and certified
agencies.
[[Page 7676]]
Sec. 115.201 Basis of determination.
A determination to certify an agency as substantially equivalent
involves a two-phase procedure. The determination requires examination
and an affirmative conclusion by the Assistant Secretary on two
separate inquiries:
(a) Whether the law, administered by the agency, on its face,
satisfies the criteria set forth in section 810(f)(3)(A) of the Act;
and
(b) Whether the current practices and past performance of the
agency demonstrate that, in operation, the law in fact provides rights
and remedies which are substantially equivalent to those provided in
the Act.
Sec. 115.202 Criteria for Adequacy of Law.
(a) In order for a determination to be made that a State or local
fair housing agency administers a law which, on its face, provides
rights and remedies for alleged discriminatory housing practices that
are substantially equivalent to those provided in the Act, the law or
ordinance must:
(1) Provide for an administrative enforcement body to receive and
process complaints and provide that:
(i) Complaints must be in writing;
(ii) Upon the filing of a complaint the agency shall serve notice
upon the complainant acknowledging the filing and advising the
complainant of the time limits and choice of forums provided under the
law;
(iii) Upon the filing of a complaint the agency shall promptly
serve notice on the respondent or person charged with the commission of
a discriminatory housing practice advising of his or her procedural
rights and obligations under the law or ordinance together with a copy
of the complaint;
(iv) A respondent may file an answer to a complaint.
(2) Delegate to the administrative enforcement body comprehensive
authority, including subpoena power, to investigate the allegations of
complaints, and power to conciliate complaints, and require that:
(i) The agency commence proceedings with respect to the complaint
before the end of the 30th day after receipt of the complaint;
(ii) The agency investigate the allegations of the complaint and
complete the investigation within the time-frame established by section
810(a)(1)(B)(iv) of the Act or comply with the notification
requirements of section 810(a)(1)(C) of the Act.
(iii) The agency make final administrative disposition of a
complaint within one year of the date of receipt of a complaint, unless
it is impracticable to do so. If the agency is unable to do so it shall
notify the parties, in writing, of the reasons for not doing so;
(iv) Any conciliation agreement arising out of conciliation efforts
by the agency shall be an agreement between the respondent, the
complainant, and the agency and shall require the approval of the
agency;
(v) Each conciliation agreement shall be made public unless the
complainant and respondent otherwise agree and the agency determines
that disclosure is not required to further the purposes of the law or
ordinance.
(3) Not place any excessive burdens on the complainant that might
discourage the filing of complaints, such as:
(i) A provision that a complaint must be filed within any period of
time less than 180 days after an alleged discriminatory housing
practice has occurred or terminated;
(ii) Anti-testing provisions;
(iii) Provisions that could subject a complainant to costs,
criminal penalties or fees in connection with filing of complaints.
(4) Not contain exemptions that substantially reduce the coverage
of housing accommodations as compared to section 803 of the Act.
(5) Provide the same protections as those afforded by sections 804,
805, 806, and 818 of the Act, consistent with HUD's implementing
regulations found at 24 CFR part 100.--
(i) As used in section 804(f)(3)(C) of the Act, the term ``covered
multifamily dwellings'' means buildings consisting of four or more
units if such buildings have one or more elevators and ground floor
units in other buildings consisting of four or more units.
(ii) The law or ordinance administered by the State or local fair
housing agency may provide that compliance with the appropriate
requirements of the American National Standard for buildings and
facilities providing accessibility and usability for physically
handicapped people (commonly cited as ``ANSI A117.1-1986'') suffices to
satisfy the requirements of section 804(f)(3)(C)(iii) of the Act.
(b) In addition to the factors described in paragraph (a) of this
section, the provisions of the State or local law must afford
administrative and judicial protection and enforcement of the rights
embodied in the law.
(1) The agency must have authority to:
(i) Grant or seek prompt judicial action for appropriate temporary
or preliminary relief pending final disposition of a complaint if such
action is necessary to carry out the purposes of the law or ordinance;
(ii) Issue and seek enforceable subpoenas;
(iii) Grant actual damages in an administrative proceeding or
provide adjudication in court at agency expense to allow the award of
actual damages to an aggrieved person;
(iv) Grant injunctive or other equitable relief, or be specifically
authorized to seek such relief in a court of competent jurisdiction;
(v) Provide an administrative proceeding in which a civil penalty
may be assessed or provide an adjudication in court at agency expense,
allowing the assessment of punitive damages against the respondent.
(2) Agency actions must be subject to judicial review upon
application by any party aggrieved by a final agency order.
(3) Judicial review of a final agency order must be in a court with
authority to grant to the petitioner, or to any other party, such
temporary relief, restraining order, or other order as the court
determines is just and proper; affirm, modify, or set aside, in whole
or in part, the order, or remand the order for further proceedings; and
enforce the order to the extent that the order is affirmed or modified.
(c) The requirement that the state or local law prohibit
discrimination on the basis of familial status does not require that
the state or local law limit the applicability of any reasonable local,
state or Federal restrictions regarding the maximum number of occupants
permitted to occupy a dwelling.
(d) The state or local law may assure that no prohibition based on
discrimination because of familial status applies to housing for older
persons substantially as described in 24 CFR part 100, subpart E.
(e) A determination of the adequacy of a state or local fair
housing law ``on its face'' is intended to focus on the meaning and
intent of the text of the law, as distinguished from the effectiveness
of its administration. Accordingly, this determination is not limited
to an analysis of the literal text of the law but must take into
account all relevant matters of state or local law. Regulations,
directives, rules of procedure, judicial decisions, or interpretations
of the fair housing law by competent authorities will be considered in
making this determination.
(f) A law will be found inadequate ``on its face'' if it permits
any of the agency's decision-making authority to be contracted out or
delegated to a non-governmental authority. For the
[[Page 7677]]
purposes of this paragraph, ``decision-making authority'' shall
include:
(1) Acceptance of the complaint;
(2) Approval of the conciliation agreement;
(3) Dismissal of a complaint;
(4) Any action specified in Secs. 115.202(a)(2)(iii) or
115.202(b)(1); and
(5) Any decision-making regarding whether the matter will or will
not be pursued.
(g) The state or local law must provide for civil enforcement of
the law or ordinance by an aggrieved person by the commencement of an
action in an appropriate court at least one year after the occurrence
or termination of an alleged discriminatory housing practice. The court
must be empowered to:
(1) Award the plaintiff actual and punitive damages;
(2) Grant as relief, as it deems appropriate, any temporary or
permanent injunction, temporary restraining order or other order;
(3) Allow reasonable attorney's fees and costs.
Sec. 115.203 Performance standards.
A state or local fair housing enforcement agency must meet all of
the performance standards listed below in order to obtain or maintain
certification.
(a) Engage in timely, comprehensive and thorough fair housing
complaint investigation, conciliation and enforcement activities. The
performance assessment will consider the following to determine the
effectiveness of an agency's fair housing complaint processing,
consistent with such guidance as may be issued by HUD:
(1) The agency's case processing procedures;
(2) The thoroughness of the agency's case processing;
(3) A review of cause and no cause determinations for quality of
investigations and consistency with appropriate standards;
(4) A review of conciliation agreements and other settlements; and
(5) A review of the agency's administrative closures; and
(6) A review of the agency's enforcement procedures.
(b)(1) Commence proceedings with respect to a complaint:
(i) Before the end of the 30th day after receipt;
(ii) Carry forward such proceedings with reasonable promptness;
(iii) Make final administrative disposition within one year; and
(iv) Within 100 days of receipt of the complaint complete the
identified proceedings.
(2) To meet this standard, the performance assessment will consider
the timeliness of the agency's actions with respect to its complaint
processing, including, but not limited to:
(i) Whether the agency began its processing of fair housing
complaints within 30 days of receipt;
(ii) Whether the agency completes the investigative activities with
respect to a complaint within 100 days from the date of receipt or, if
it is impracticable to do so, notifies the parties in writing of the
reason(s) for the delay;
(iii) Whether the agency administratively disposes of a complaint
within one year from the date of receipt or, if it is impracticable to
do so, notifies the parties in writing of the reasons for the delay;
and
(iv) Whether the agency completed the investigation of the
complaint and prepared a complete final investigative report.
(3) The performance assessment will also consider documented
conciliation attempts and activities and a review of the bases for
administrative disposition of complaints.
(c) Conduct compliance reviews of settlements, conciliation
agreements and orders issued by or entered into to resolve
discriminatory housing practices. The performance assessment will
include, but not be limited to:
(1) An assessment of the agency's procedures for conducting
compliance reviews;
(2) Terms and conditions of agreements and orders issued;
(3) application of its authority to seek actual damages, as
appropriate; and
(4) Application of its authority to seek and assess civil penalties
or punitive damages.
(d) Consistently and affirmatively seek and obtain the type of
relief designed to prevent recurrences of such practices. The
performance assessment will include, but not be limited to:
(1) An assessment of the types of relief sought and obtained by the
agency with consideration of the inclusion of affirmative provisions
designed to protect the public interest;
(2) The adequacy of the disposition of the complaint;
(3) The relief sought and awarded;
(4) The number of complaints closed with relief and the number
closed without relief; and
(5) Whether all the issues and bases were investigated adequately
and appropriately disposed of.
(e) Consistently and affirmatively seek the elimination of all
prohibited practices under its fair housing law. An assessment under
this standard will include, but not be limited to:
(1) A discussion and confirmation of the law or ordinance
administered by the agency;
(2) The identification of any amendments, court decisions or other
rulings or documentation that may affect the agency's ability to carry
out provisions of its fair housing law or ordinance;
(3) Identification of the education and outreach efforts of the
agency; and
(4) Identification and discussion of any special requirements of
the fair housing law or ordinance.
Sec. 115.204 Consequences of Certification.
(a) Whenever a complaint received by the Assistant Secretary
alleges violations of a state or local fair housing law or ordinance
administered by an agency that has been certified as substantially
equivalent, the complaint will be referred to the agency, and no
further action shall be taken by the Assistant Secretary with respect
to such complaint except as provided for by the Act, this part, 24 CFR
part 103, subpart C, and any written agreements executed by the Agency
and the Assistant Secretary.
(b) If HUD determines that a complaint has not been processed in a
timely manner in accordance with the performance standards set forth in
Sec. 115.203, HUD may reactivate the complaint, conduct its own
investigation and conciliation efforts, and make a determination
consistent with 24 CFR part 103.
(c) Notwithstanding paragraph (a) of this section, whenever the
Assistant Secretary has reason to believe that a complaint demonstrates
a basis for the commencement of proceedings against any respondent
under section 814(a) of the Act or for proceedings by any governmental
licensing or supervisory authorities, the Assistant Secretary shall
transmit the information upon which such belief is based to the
Attorney General, Federal financial regulatory agencies, other Federal
agencies, or other appropriate governmental licensing or supervisory
authorities.
Sec. 115.205 Technical assistance.
(a) The Assistant Secretary, through the FHEO Field Office, may
provide technical assistance to the agencies. The agency may request
such technical assistance or the FHEO Field Office may determine the
necessity for technical assistance and require the agency's cooperation
and participation.
(b) The Assistant Secretary, through FHEO Headquarters or Field
staff, will require that the agency participate in training conferences
and seminars that will enhance the agency's ability to process
complaints alleging discriminatory housing practices.
[[Page 7678]]
Sec. 115.206 Request for certification.
(a) A request for certification under this subpart B shall be filed
with the Assistant Secretary by the State or local official having
principal responsibility for administration of the State or local fair
housing law. The request shall be supported by the following materials
and information:
(1) The text of the jurisdiction's fair housing law, the law
creating and empowering the agency, any regulations and directives
issued under the law, and any formal opinions of the State Attorney
General or the chief legal officer of the jurisdiction that pertain to
the jurisdiction's fair housing law.
(2) Organizational information of the agency responsible for
administering and enforcing the law.
(3) Funding and personnel made available to the agency for
administration and enforcement of the fair housing law during the
current operating year, and not less than the preceding three operating
years (or such lesser number during which the law was in effect).
(4) If available, data demonstrating that the agency's current
practices and past performance comply with the performance standards
described in Sec. 115.203.
(5) Any additional information which the submitting official may
wish to be considered.
(b) The request and supporting materials shall be filed with the
Assistant Secretary for Fair Housing and Equal Opportunity, Department
of Housing and Urban Development, 451 7th Street, SW., Washington, DC
20410. A copy of the request and supporting materials will be kept
available for public examination and copying at:
(1) The office of the Assistant Secretary; and
(2) The HUD Field Office in whose jurisdiction the State or local
jurisdiction seeking recognition is located; and
(3) The office of the State or local agency charged with
administration and enforcement of the State or local law.
Sec. 115.207 Procedure for interim certification.
(a) Upon receipt of a request for certification filed under
Sec. 115.206 of this part, the Assistant Secretary may request further
information necessary for a determination to be made under this
section. The Assistant Secretary may consider the relative priority
given to fair housing administration, as compared to the agency's other
duties and responsibilities, as well as the compatibility or potential
conflict of fair housing objectives with these other duties and
responsibilities.
(b) Interim certification. If the Assistant Secretary determines,
after application of the criteria set forth in Sec. 115.202 that the
State or local law or ordinance, on its face, provides substantive
rights, procedures, remedies, and judicial review procedures for
alleged discriminatory housing practices that are substantially
equivalent to those provided in the Act, the Assistant Secretary may
offer to enter into an Agreement for the Interim Referral of Complaints
and Other Utilization of Services (Interim Agreement). The interim
agreement will outline the procedures and authorities upon which the
interim certification is based.
(c) Such interim agreement, after it is signed by all appropriate
signatories, will result in the agency receiving interim certification.
(d)(1) Interim agreements shall be for a term of no more than three
years. The Assistant Secretary, through the FHEO Field Office, will
conduct one or more on-site assessments to determine whether the agency
administers its fair housing law or ordinance in a manner that is
substantially equivalent to the Act.
(2) Performance Improvement Plan. If the agency is not
administering its law or ordinance in a manner that is substantially
equivalent, the Assistant Secretary, may, but need not, offer a
Performance Improvement Plan (PIP) to the agency. The PIP will outline
the agency's deficiencies, identify necessary corrective actions, and
include a timetable for completion.
(3) If the agency receives a PIP, funding under the FHAP may be
suspended for the duration of the PIP. Once the agency has implemented
corrective actions to eliminate the deficiencies, and such corrective
actions are accepted by the Assistant Secretary, funding may be
reinstated.
Sec. 115.208 Suspension of interim certification.
(a)(1) The Assistant Secretary will suspend the agency's interim
certification if the Assistant Secretary has reason to believe that the
State or locality may have limited the effectiveness of the agency's
implementation of the fair housing law or ordinance by:
(i) Amending the fair housing law or ordinance;
(ii) Adopting rules or procedures concerning the fair housing law
or ordinance; or
(iii) Issuing judicial or other authoritative interpretations of
the fair housing law or ordinance.
(2) If the Assistant Secretary suspends interim certification under
paragraph (a)(1) of this section, such suspension will remain in effect
until the Assistant Secretary conducts a review of the changes in
language and/or interpretation and determines whether the law or
ordinance remains substantially equivalent to the Act on its face or in
its operations.
(i) If the Assistant Secretary determines that, notwithstanding the
actions taken by the State or locality as described in paragraph (a)(1)
of this section, the law or ordinance remains substantially equivalent
on its face and in operation to the Act, the Assistant Secretary will
rescind the suspension and reinstate the agency's interim certification
and/or recommend the agency for certification. HUD will provide
reimbursement for cases processed during the period of the suspension.
(ii) If the Assistant Secretary determines that the actions taken
by the State or locality do limit the agency's effectiveness interim
certification will be denied pursuant to Sec. 115.209.
(b)(1) The Assistant Secretary will suspend the interim
certification of an agency charged with the administration of a fair
housing law or ordinance if the Assistant Secretary has reason to
believe that the agency's performance does not comply with the criteria
set forth by this part. Such suspension shall not exceed 180 days.
(2) If the agency is suspended pursuant to paragraph (b) of this
section, the FHEO Field Office will not provide payment for complaints
processed within that period of time unless and until the Assistant
Secretary determines that the agency is fully in compliance with
Sec. 115.203. The FHEO Field Office will provide technical assistance
to the agency during this period of time.--
(i) During the period of a suspension the Assistant Secretary shall
not refer complaints to the agency.
(ii) Suspension under this section also renders the agency
ineligible to receive Fair Housing Assistance Program Funds under
subpart C of this part, pending correction of the deficiencies by the
agency.
(3) Before the end of the suspension, a final performance
assessment will be provided to the Assistant Secretary upon which a
determination will be made as to the adequacy of the agency's
performance.
[[Page 7679]]
Sec. 115.209 Denial of interim certification.
(a) If the Assistant Secretary determines, after application of the
criteria set forth in this Part that the State and local law or
ordinance, on its face or in its operation, does not provide
substantive rights, procedures, remedies, and availability of judicial
review for alleged discriminatory housing practices which are
substantially equivalent to those provided in the Fair Housing Act, the
Assistant Secretary shall inform the State or local official in writing
of the reasons for that determination.
(b) The agency, within 20 days from the date of the receipt of this
notice, may submit, in writing, any opposition to the planned denial of
Interim Certification to the Assistant Secretary. The Assistant
Secretary will evaluate all pertinent written comments, information,
and documentation. If, after reviewing all materials submitted by the
agency, the Assistant Secretary is still of the opinion that interim
certification should be denied, the Assistant Secretary will inform the
agency in writing of that determination.
(c) If the agency does not, within 20 days of receipt of the
Assistant Secretary's notice of denial of interim certification, make a
request of the Assistant Secretary under paragraph (b) of this section
to submit additional data, views, or comments, no further action shall
be required of the Assistant Secretary and denial of interim
certification shall occur.
Sec. 115.210 Procedure for certification.
(a)(1) Certification. If the Assistant Secretary determines, after
application of the criteria set forth in Secs. 115.202, 115.203 and
this section, that the State or local law or ordinance, both ``on its
face'' and ``in operation,'' provides substantive rights, procedures,
remedies, and judicial review procedures for alleged discriminatory
housing practices that are substantially equivalent to those provided
in the Act, the Assistant Secretary may enter into a Memorandum of
Understanding (MOU) with the agency. The MOU is a written agreement
providing for the referral of complaints to the agency and for
communication procedures between the agency and HUD that are adequate
to permit the Assistant Secretary to monitor the agency's continuing
substantial equivalency certification. A MOU, after it is signed by all
appropriate signatories, may authorize an agency to be a certified
agency for a period of not more than five years.
(2) Performance Improvement Plan. If the agency is not
administering its law or ordinance in a manner that is substantially
equivalent, the Assistant Secretary, may, but need not, offer a
Performance Improvement Plan (PIP) to the agency. The PIP will outline
the agency's deficiencies, identify necessary corrective actions, and
include a timetable for completion.
(3) If the agency receives a PIP, funding under the FHAP may be
suspended for the duration of the PIP. Once the agency has implemented
corrective actions to eliminate the deficiencies, and such corrective
actions are accepted by the Assistant Secretary, funding may be
reinstated.
(b) The Assistant Secretary shall annually assess the performance
of an agency to determine whether it continues to qualify for
certification under this part. If the Assistant Secretary affirmatively
concludes that the agency's law and performance have complied with the
requirements of this part in each of the five years, the Assistant
Secretary may offer the agency an updated Memorandum of Understanding.
(c) An agency shall receive interim certification prior to
receiving certification.
Sec. 115.211 Suspension of certification.
(a)(1) The Assistant Secretary will suspend the agency's
certification if the Assistant Secretary has reason to believe that the
State or locality may have limited the effectiveness of the agency's
implementation of the fair housing law or ordinance by:
(i) Amending the fair housing law or ordinance;
(ii) Adopting rules or procedures concerning the fair housing law
or ordinance; or
(iii) Issuing judicial or other authoritative interpretations of
the fair housing law or ordinance.
(2) If the Assistant Secretary suspends certification under
paragraph (a)(1) of this section, such suspension will remain in effect
until the Assistant Secretary conducts a review of the changes in
language and/or interpretation and determines whether the law or
ordinance remains substantially equivalent on its face and in its
operation to the Act.--
(i) If the Assistant Secretary determines that the law or ordinance
remains substantially equivalent on its face and in operation to the
Act, the Assistant Secretary will rescind the suspension and reinstate
the agency's interim certification and/or recommend the agency for
certification. HUD will provide reimbursement for cases processed
during the period of the suspension.
(ii) If the Assistant Secretary determines that the actions taken
by the State or locality do limit the agency's effectiveness,
certification will be withdrawn pursuant to Sec. 115.212.
(b)(1) The Assistant Secretary will suspend the certification of an
agency charged with the administration of a fair housing law or
ordinance, if the Assistant Secretary has reason to believe that the
agency's performance does not comply with the criteria set forth by
this part. Such suspension shall not exceed 180 days.
(2) If the agency is suspended pursuant to paragraph (b) of this
section, the FHEO Field Office will not provide payment for complaints
processed within that period of time unless and until the Assistant
Secretary determines that the agency is fully in compliance with
115.202 of this part. The FHEO Field Office will provide technical
assistance to the agency during this period of time.--
(i) During the period of a suspension the Assistant Secretary shall
not refer complaints to the agency.
(ii) Suspension under this section also renders the agency
ineligible to receive Fair Housing Assistance Program Funds under
subpart C of this part, pending correction of the deficiencies by the
agency.
(3) Before the end of the suspension, a final performance
assessment will be provided to the Assistant Secretary upon which a
determination will be made as to the adequacy of the agency's
performance.
Sec. 115.212 Withdrawal of certification.
(a) If the Assistant Secretary finds, as a result of a review
undertaken in accordance with this part, that the agency's fair housing
law or ordinance no longer meets the requirements of this part, the
Assistant Secretary shall propose to withdraw the certification
previously granted.
(b) The Assistant Secretary will propose withdrawal of
certification under paragraph (a) of this section unless further review
and information or documentation establishes that the current law and/
or the agency's administration of the law meets the criteria set out in
this part.
(c) If the Assistant Secretary determines, after application of the
criteria set forth in this Part, that the state or local law or
ordinance, in operation, does not provide substantive rights,
procedures, remedies, and availability of judicial review for alleged
discriminatory housing practices which are substantially equivalent to
those provided in the Fair Housing Act, the Assistant Secretary shall
inform the
[[Page 7680]]
State or local official in writing of the reasons for that
determination.
Subpart C--Fair Housing Assistance Program (FHAP)
Sec. 115.300 Purpose.
The purpose of the Fair Housing Assistance Program (FHAP) is to
provide assistance to State and local fair housing enforcement
agencies. The intent of this funding program is to build a coordinated
intergovernmental enforcement effort to further fair housing and to
encourage the agencies to assume a greater share of the responsibility
for the administration and enforcement of their fair housing laws and
ordinances. This financial assistance is designed to provide support
for:
(a) The processing of dual-filed complaints;
(b) Training under the Fair Housing Act and the agencies' fair
housing law;
(c) The provision of technical assistance;
(d) The creation and maintenance of data and information systems;
and
(e) The development and enhancement of other fair housing
enforcement projects.
Sec. 115.301 Agency eligibility criteria.
Any agency with certification or interim certification under
subpart A of this part, and which has entered into a MOU or interim
agreement, is eligible to participate in the FHAP.
Sec. 115.302 Capacity Building Funds.
(a) Capacity Building Funds (CBF) are funds that HUD may provide to
an agency with interim certification during the agency's first three
years of participation in the FHAP. Agencies receiving CBF are not
eligible to receive contributions funds under Sec. 115.304.
(b) Capacity Building Funds will be provided in a fixed annual
amount to be utilized for the eligible activities established pursuant
to Sec. 115.303. However, in the second and third year of the agency's
participation in the FHAP, HUD has the option to permit the agency to
receive Capacity Building funding on a per case basis, rather than in a
single annual amount.
(c) In order to receive capacity building funds, agencies will be
required to submit a statement of work which identifies:
(1) The objectives and activities to be carried out with the CBFs
received;
(2) A plan for training all of the agency's employees involved in
the administration of the agency's fair housing law or ordinance;
(3) A statement of the agency's intention to participate in HUD-
sponsored training in accordance with the training requirements set out
in the cooperative agreement;
(4) A description of the agency's complaint processing data and
information system or, alternatively, whether the agency plans to use
capacity building funds to purchase and install a data system; and
(5) A description of any other fair housing activities that the
agency will undertake with its capacity building funds.--
(i) All such activities must address matters affecting fair housing
enforcement which are cognizable under the Fair Housing Act. Any
activities which do not address the implementation of the agency's fair
housing law or ordinance, and which are therefore not cognizable under
the Fair Housing Act, will be disapproved.
(ii) Reserved.
Sec. 115.303 Eligible activities For Capacity Building Funds.
The primary purposes of capacity building funding is to provide for
complaint activities and to support activities that produce increased
awareness of fair housing rights and remedies. All such activities must
support the agency's administration of its fair housing law or
ordinance and address matters affecting fair housing which are
cognizable under the Fair Housing Act. HUD will periodically publish a
list of eligible activities in the Federal Register.
Sec. 115.304 Agencies Eligible for Contributions Funds.
(a) An agency that has received Capacity Building Funds for three
consecutive years is eligible for contributions funding. Contributions
funding consists of three categories:
(1) Complaint Processing (CP) Funds;
(2) Administrative Costs (AC) Funds; and
(3) Special Enforcement Efforts (SEE) Funds (Sec. 115.305 sets
forth the requirements for SEE funding).
(b) Complaint Processing Funds. (1) Agencies receiving CP funds
will receive such support based solely on the number of complaints
processed by the agency and accepted for payment by the Director of
FHEO during a consecutive, specifically identified, 12-month period.
Normally this period will be the previous year's funding cycle.
(2) Funding for agencies in their fourth year of participation in
the FHAP will be based on the number of complaints acceptably processed
by the agency during the agency's third year of participation in the
FHAP.
(c) Administrative Cost (AC) Funds. Agencies which acceptably
process 100 or more cases will receive no less than 10 percent of the
agency's annual FHAP payment amount for the preceding year, in addition
to case processing funds, contingent on fiscal year appropriations.
Agencies that acceptably process fewer than 100 cases will receive a
flat rate contingent on fiscal year appropriations.
(1) Agencies will be required to provide HUD with a statement of
how they intend to use the AC funds. HUD may require that some or all
AC funding be directed to activities designed to create, modify, or
improve local, regional, or national information systems concerning
fair housing matters (including the purchase of state of the art
computer systems and getting on line or internet access, etc.).
(2) [Reserved.]
Sec. 115.305 Special Enforcement Effort (SEE) funds.
(a) SEE funds are funds that HUD will provide to an agency to
enhance enforcement activities of the agency's fair housing law or
ordinance. SEE funds will be a maximum of 20% of the agency's total
FHAP cooperative agreement for the previous contract year, based on
approval of eligible activity or activities, and based on the
appropriation of funds. All agencies receiving contributions funds are
eligible to receive SEE funds if they meet three of the six criteria
set out below:
(1) The agency has taken action to enforce a subpoena or make use
of its prompt judicial action authority within the past year;
(2) The agency has held at least one administrative hearing or has
had at least one case on a court's docket for civil proceedings during
the past year;
(3) At least ten percent of the agency's fair housing caseload
resulted in written conciliation agreements providing monetary relief
for the complainant as well as remedial action, monitoring, reporting
and public interest relief provisions;
(4) The agency has had in the most recent three years, or is
currently handling, at least one major fair housing systemic
investigation requiring an exceptional amount of expenditure of funds;
(5) The agency's administration of its fair housing law or
ordinance received meritorious mention for its complaint processing or
other fair housing activities that were innovative; or
(6) The agency must have fully investigated 10 fair housing
complaints during the previous funding year.
(b) Notwithstanding the eligibility criteria set forth in paragraph
(a) of this section, an agency will be ineligible for
[[Page 7681]]
SEE funds if 20% or more of an agency's fair housing complaints result
in administrative closures.
(c) SEE funding amounts are subject to the FHAP appropriation by
Congress and will be described in writing in the cooperative agreements
annually. HUD will periodically publish a list of activities eligible
for SEE funding in the Federal Register.
Sec. 115.306 Training funds.
(a) All agencies are eligible to receive training funds. Training
funds are fixed amounts based on the number of agency employees to be
trained and shall be allocated based on the FHAP appropriation.
Training funds may be used only for HUD-approved or HUD-sponsored
training. Agency initiated training or other formalized training may be
included in this category. However, such training must first be
approved by the Cooperative Agreement Officer (CAO) and the Government
Technical Representative (GTR). Specifics on the amount of training
funds that an agency will receive and, if applicable, amounts that may
be deducted, will be set out in the cooperative agreement each year.
(b) All staff of the agency responsible for the administration of
the fair housing law or ordinance must participate in mandatory FHAP
training sponsored by HUD at the national and field office levels. If
the agency does not participate in the mandatory national and field
office HUD-sponsored training, training funds will be deducted from
their overall training amount.
Sec. 115.307 Additional requirements for participation in the FHAP.
(a) Agencies which participate in the FHAP must:
(1) Conform to reporting and record maintenance requirements
determined by the Assistant Secretary;
(2) Agree to on-site technical assistance and guidance and
implementation of corrective actions set out by the Department in
response to deficiencies found during the technical assistance or
performance assessment evaluations of the agency's operations;
(3) Agree to implement and adhere to policies and procedures (as
their laws and ordinances will allow) provided to the agencies by the
Assistant Secretary, including but not limited to guidance on
investigative techniques, case file preparation and organization,
implementation of data elements for complaint tracking, etc.;
(4) Spend at least twenty (20) percent of its total annual budget
on fair housing activities; and
(5) Not unilaterally reduce the level of financial resources
currently committed to fair housing complaint processing (budget and
staff reductions or other actions outside the control of the agency
will not, alone, result in a negative determination for the agency's
participation in the FHAP).
(b) The agency's refusal to provide information, assist in
implementation, or carry out the requirements of paragraph (a) of this
section may result in the denial or interruption of its receipt of FHAP
funds.
Sec. 115.308 Standards for FHAP program review.
HUD will conduct reviews of the agency's cooperative agreement
implementation. This review will also identify:
(a) How the agency used the FHAP funds received;
(b) Whether its draw-down of funds was timely;
(c) Whether the agency has been audited and received copies of the
audit reports in accordance with applicable rules and regulations for
State and local governmental entities; and
(d) If the agency complied with all certifications and assurances
required by HUD in the cooperative agreement.
Sec. 115.309 Reporting and recordkeeping requirements.
(a) The agency shall establish and maintain records demonstrating:
(1) Its financial administration of the FHAP funds; and
(2) Its performance under the FHAP.
(b) In accordance with the cooperative agreement in effect between
the agency and HUD, the agency will provide to HUD the agency reports
maintained pursuant to paragraph (a) of this section. The agency will
provide reports to HUD in accordance with the cooperative agreement in
effect between the agency and HUD for frequency and content, regarding
complaint processing, training, data and information systems,
enforcement and other activities explaining how FHAP funds were
expended and used.
(c) The agency will permit reasonable public access to its records,
consistent with the jurisdiction's requirements for release of
information. Documents relevant to the agency's participation in FHAP
must be made available at the agency's office during normal working
hours (except that documents with respect to ongoing fair housing
complaint investigations are exempt from public review consistent with
Federal and/or State law).
(d) The Secretary, the Inspector General of HUD, and the
Comptroller General of the United States, or any of their duly
authorized representatives, shall have access to all pertinent books,
accounts, reports, files, and other payments for surveys, audits,
examinations, excerpts, and transcripts as they relate to the agency's
participation in FHAP.
(e) All files will be kept in such fashion as to permit audits
under applicable procurement regulations and guidelines and the Single
Audit requirements for State and local agencies.
(f) The FHAP financial records and files will be kept at least
three years on-site after any cooperative agreement has terminated.
Sec. 115.310 Subcontracting under the FHAP.
If an agency subcontracts to a public or private agency any
activity for which the subcontractor will receive FHAP funds, the
agency must ensure and certify in writing that the subcontractor is:
(a) Using services and facilities that are accessible in accordance
with the Americans with Disability Act (ADA) (29 U.S.C. 706) and
Section 504 of the 1973 Rehabilitation Act (29 U.S.C. 792);
(b) Complying with the standards of Section 3 of the Housing and
Urban Development Act (12 U.S.C. 1701u); and
(c) Furthering fair housing.
Sec. 115.311 Corrective and remedial action.
(a) If HUD makes a preliminary determination that an agency has not
complied with Sec. 115.309, the agency will be given written notice of
this determination and an opportunity to show, through demonstrable
facts and data, that it has done so within a time prescribed by HUD.
(b) If an agency fails to demonstrate to HUD's satisfaction that it
has met program review standards, HUD will request the agency to submit
and comply with proposals for action to correct, mitigate, or prevent
performance deficiencies, including, but not limited to:
(1) Preparing and/or following a schedule of actions for carrying
out the affected fair housing activities;
(2) Establishing and/or following a management plan that assigns
responsibilities for carrying out the actions required;
(3) Canceling or revising activities likely to be affected by a
performance deficiency before expending FHAP funds for the activities;
and
(4) Redistributing or suspending disbursement of FHAP funds that
have not yet been disbursed.
(c) HUD may condition the use of FHAP award amounts with respect to
an agency's succeeding fiscal year's allocation on the satisfactory
[[Page 7682]]
completion by the agency of appropriate corrective actions. When the
use of funds is so conditioned, HUD will specify the deficiency(ies),
the required corrective action(s), and the time allowed for taking
these actions. Failure of the agency to complete the actions as
specified will result in a reduction or withdrawal of the FHAP
allocation in an amount not to exceed the amount conditionally granted.
Dated: January 31, 1996.
Elizabeth K. Julian,
Acting Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 96-4437 Filed 2-27-96; 8:45 am]
BILLING CODE 4210-28-P