us-hud-fair-housing-guidance-96-3fheo-c2e8a003d7e9•Administration of the Civil Rights -Related Program Requirements of the Department's Housing and Community Development Programs Under the March 16, 1995, Delegation and Redelegation of Authority
Administration of the Civil Rights -Related Program Requirements of the Department's Housing and Community Development Programs Under the March 16, 1995, Delegation and Redelegation of Authority
us-hud-fair-housing-guidance-96-3fheo-c2e8a003d7e9Administration of the Civil Rights -Related Program Requirements of the Department's Housing and Community Development Programs Under the March 16, 1995, Delegation and Redelegation of AuthorityGuidance
U.S. Department of Housing and Urban Development
FAIR HOUSING AND EQUAL OPPORTUNITY
Special Attention of: NOTICE FHEO 96-3
All Secretary's Representatives
All State/Area Coordinators Issued: July 23, 1996
All CPD Directors
All FHEO Enforcement Center Expires: July 23, 1997
Directors
All FHEO Program Operations and Cross References: Federal Register,
Compliance Center Directors Vol. 60, Page 14294-95,
All Housing Directors Dated March 16, 1995
All PIH Directors "Delegation and Redelegation of
Authority"
Subject: Administration of the Civil Rights -Related Program Requirements of
the Department's Housing and Community Development Programs Under
the March 16, 1995, Delegation and Redelegation of Authority
1. Purpose. This Notice provides guidance to Fair Housing and Equal
Opportunity (FHEO) field staff regarding the redelegation of authority
by the Assistant Secretary for FHEO to the Director, Program Operations
and Compliance Center (POCC) in each HUD field office. Additionally,
this Notice describes the responsibilities for FHEO field and
Headquarters staff with the objective of helping to ensure compliance
with the civil rights-related program requirements (CRRPRs) contained in
the Department's housing and community development programs.
2. The Delegation. On March 16, 1995, the Department published in the
Federal Register a delegation of authority from the Secretary to the
Assistant Secretary for FHEO to make decisions regarding CRRPRs. The
delegation states the reasons for, and outlines significant changes in,
the organizational relationships between FHEO field staff and their
field counterparts in Housing, Public and Indian Housing (PIH) and
Community Planning and Development (CPD); and between field and
Headquarters FHEO and program staff. The principal points of the
delegation are:
a. FHEO field office staff, in the past, played a largely advisory
role regarding the impact of the CRRPRs. In reviewing a HUD
program application, the FHEO field staff would simply advise the
HUD program field staff whether an applicant was in compliance with
the CRRPRs.
E: Distribution: W-3-1
In the event of a disagreement, the Regional Administrator or Area
Manager for the particular office made the final decision to
resolve the issue. However, since the field reorganization
eliminated the positions of Regional Administrator and Area
Manager, there was no one in the field offices to resolve
disagreements concerning civil rights issues involving HUD
programs. Consequently, there was the concern that compliance with
the CRRPRs would not be adequately considered.
b. The Secretary concluded that it is most important that HUD program
funds and other benefits be given to HUD program applicants that
comply with the Department's CRRPRs. He further concluded that the
best way to accomplish this objective is by giving additional
specific authority to the Assistant Secretary for FHEO and to the
field POCC Directors in determining the CRRPR status of applicants
or recipients of Federal financial assistance or other benefits.
c. The function of FHEO is to ensure compliance with civil rights
requirements. This responsibility is accomplished not only by
having FHEO administer and enforce civil rights statutes, but also
through participation in the decision-making process regarding
compliance with CRRPRs. Participation by FHEO in this decision-
making process is designed solely to assure that serious FHEO
issues are thoroughly considered before programmatic decisions are
made. FHEO field staff will function as equal partners and their
recommendations will be given the same consideration and weight as
those made by program staff. It is intended that the POCCs work
closely and cooperatively with program offices toward common
Departmental goals relating to fair housing.
d. In the event that the POCC and field office program directors are
not able to agree on the CRRPR status of an applicant or
participant, both parties shall consult with the Secretary's
Representative/State/Area Coordinator who will propose a solution.
If the solution proposed at the Field Office level is not
satisfactory to both parties, the issue must be elevated to
Headquarters where it will be jointly decided between the Assistant
Secretaries for FHEO and the applicable program office. In the
event the two Assistant Secretaries cannot agree, the matter will
be resolved by the Secretary.
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3. Civil Rights-Related Program Requirements. CRRPRs are those
requirements of HUD programs relating to equal opportunity that are:
- contained in regulations which interpret civil rights statutes,
e.g., the Fair Housing Act regulations at 24 CFR 100; and
- incorporated into program regulations, Notices of Funding
Availability (NOFAs), Mortgagee Letters and other agreements
between the Assistant Secretary for Fair Housing and Equal
Opportunity and another Assistant Secretary.
CRRPRs are administered through (1) reviews of documents submitted to
Field Offices pursuant to processes described in program regulations and
Handbooks; (2) off-site and onsite monitoring of the recipient's
performance under the CRRPRs; (3) ongoing technical assistance to
grantees/recipients and (4) appropriate sanctions established in program
statutes, regulations, handbooks and notices. Examples of specific types
of CRRPRs include but are not limited to the following:
a. Certifications of Compliance with Civil Rights Laws and Executive
Orders. (1) The recipient signs a certification form stating that
it will comply with various civil rights laws (e.g., the Fair
Housing Act, Title VI of the Civil Rights Act of 1964, Executive
Order 11063, the Americans with Disabilities Act, the Age
Discrimination Act of 1975, Section 504 of the Rehabilitation Act
of 1973). A single certification for all of these civil rights
laws is found in, for example, the Section 8 Rental Certificate and
Rental Voucher Program. (2) Other programs require the recipients
to comply with these civil rights laws but do not require the
recipient to submit a certification, or (3) require a certification
to comply with some but not all of the civil rights laws listed
above.
The civil rights laws cited vary depending upon the nature of the
HUD program. For example, the Community Development Block Grant
(CDBG) Program includes a reference to Section 109 of the Housing
and Community Development Act of 1974 because that civil rights
requirement is unique to that program. Also, the Consolidated Plan
Final Rule requires CDBG recipients to certify that their grants
will be conducted and administered in conformity with Title VI of
the Civil Rights Act of 1964, the Fair Housing Act and implemen-
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ting regulations. HUD insured housing programs do not contain a
reference to Title VI or Section 504 because those civil rights
laws are only applicable to HUD programs that receive federal
financial assistance.
b. Affirmatively Furthering Fair Housing Certification. The
Consolidated Plan regulations for Community Planning and
Development Programs (24 CFR 91) require all units of general local
government, states and consortia that submit a Consolidated Plan to
certify that they will affirmatively further fair housing.
Compliance with this certification means completing an analysis of
impediments to fair housing choice, taking steps to address the
problems identified in the analysis and maintaining records showing
that they are addressing the problems identified in the analysis.
The recipient can update the analysis at any time during the five-
year Consolidated Plan life cycle.
c. Site and Neighborhood Standards. Applicants for low-income public
housing new construction, Section 202 Supportive Housing for the
Elderly and Section 811 Supportive Housing for Persons with
Disabilities program funds must show how their proposed site will
be consistent with the objectives of the Fair Housing Act and Title
VI of the Civil Rights Act of 1964. The applicant's site can not
be located within an area of minority concentration unless it
passes either a "sufficient and comparable opportunities" test or
an "overriding needs" test.
d. Tenant Selection and Assignment Procedures in Public Housing. The
Title VI Regulations, 24 CFR 1, require housing authorities to
formulate and implement a tenant selection and assignment plan,
under which the housing authority selects and assigns tenants and
administers its waiting list in a manner that does not violate
Title VI of the Civil Rights Act of 1964. Section 504 of the
Rehabilitation Act of 1973 has requirements regarding tenant
selection and assignment pertaining to persons with disabilities.
Additionally, Section 504 contains requirements pertaining to
reasonable accommodation. For example, if alterations are required
to make a unit accessible to an applicant with a disability, the
HUD recipient is obligated to make the necessary alterations unless
doing so would cause undue financial and administrative burdens or
result in a fundamental alteration of the program or activity.
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e. Section 8 Certificate/Voucher Conforming Rule - 24 CFR 982 -
Administrative Plan Requirements. The Administrative Plan
requirements include a number of civil rights related provisions.
f. Affirmative Fair Housing Marketing requirements found in the
Regulations at 24 CFR 200.600 and in the regulations of a number of
insured and subsidized housing programs. These regulations require
applicants for five or more units of multifamily and single-family
insured and assisted housing to implement HUD-approved plans which
describe (1) affirmative steps to attract all segments of the
eligible populations to the housing; and (2) special outreach
activities to those groups considered least likely to apply for the
housing without such activities.
g. Programmatic monitoring requirements pertaining to civil rights
that are explicitly stated in program Regulations, e.g., the Equal
Opportunity Performance Review Regulations of the Community
Development Block Grant (CDBG) Entitlement Program at 24 CFR
570.904.
h. Civil rights related reporting and recordkeeping requirements
outlined in regulations, notices and handbooks, e.g., the Fair
Housing and Equal Opportunity recordkeeping requirements for CDBG
found at 24 CFR 570.506(g).
i. Regulatory provisions relating to civil rights related programmatic
sanctions, e.g., rejection of a program application if a charge has
been issued against an applicant pursuant to Section 810(g)(2) of
the Fair Housing Act. Such provisions are found in, among other
places, the Regulations governing the Supportive Housing for the
Elderly Program (24 CFR 889.300(c) (2)).
The requirements of Section 3 of the Housing and Urban Development Act
of 1968, while not in the strict sense civil rights related, are also
cited in many HUD program regulations, notably those relating to Public
Housing Development and the Community Development programs.
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4. Applicability.
a. Section B of the delegation redelegates the Assistant Secretary's
authority to determine compliance with the CRRPRs to the POCC
Directors. The procedures described in Section 5 below cover the
involvement of FHEO POCC staff in (1) determining the status of
applicants for, and participants in, HUD housing and community
development programs under CRRPRs and (2) the resolution of
disputes between FHEO and program divisions over these
determinations. The methods used to make these determinations were
previously described in Sections 2.c and 2.d of this Notice.
b. The procedures described in Section 5 below do not apply to the
rating by Field Office staff of applications or proposals solicited
through a competitive NOFA. As stated in the March 16, 1995
delegation "FHEO staff usually rates [civil rights] criteria and
provides the ratings to field program staff. Nothing in this
delegation would allow FHEO to challenge the award of such
competitive assistance based on the program office's assessment of
non-FHEO features."
5. Procedures.
a. Field Office Level.
(1) POCC staff shall follow procedures outlined in program
regulations, handbooks or notices issued by FHEO or the
program office. They shall also complete all reviews within
the statutory or regulatory deadlines of the program or as
established by the Field Office. In most instances, the Field
Office will approve the document without raising major issues
or will assist the applicant in addressing any minor technical
issues. POCC staff shall also conduct monitoring activities
connected with civil rights in accordance with current
monitoring procedures, e.g., HUD Handbook 8004.1, Consolidated
Civil Rights Monitoring Requirements, Public Housing Agency
Section 8 Existing and Lower-Income Public Housing Programs.
As a result of these monitoring activities, POCC staff
identify their findings and concerns and recommend corrective
action. Depending on the seriousness of the finding or
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concern, the POCC or Program Operations Division also has the
option of recommending further review by the POCC Compliance
Divisions.
(2) If issues arise regarding the status of an applicant or
participant with respect to a CRRPR, the POCC Director and/or
staff should immediately consult with the Program Director
and/or staff to allow additional information/actions to be
generated and reviewed without exceeding the statutory or
other deadlines. If the information/action is sufficient to
resolve the issue, no other steps are necessary. Issues
should be resolved locally whenever possible.
(3) If there is a disagreement between FHEO and program staff
based on the interpretation of a statutory or regulatory
provision pertaining to CRRPRs, or if some kind of sanction is
deemed warranted, the POCC Director and the Program Director
shall meet to determine the appropriate course of action,
e.g., sending a letter of warning to the recipient, imposing
no sanctions, securing a Special Assurance, imposing
conditions on the contract, etc. Where appropriate, the POCC
Director should consult with his or her Program Coordinator in
the Office of Program Standards and Evaluation (OPSE) to
receive technical assistance in determining appropriate
courses of action or make him/her aware that a problem exists.
(4) If an impasse is reached between the POCC and the Housing, CPD
or PIH Program Directors, both parties shall consult with the
Secretary's Representative/State/Area Coordinator who will
propose a solution.
b. Headquarters Level.
(1) If the solution proposed at the Field Office level is not
satisfactory to both parties, the issue must be elevated to
Headquarters. At this juncture, the assigned Field Monitoring
and Management Planning Division Desk Officer and the OPSE
Program Coordinator become aware of the situation and shall
participate in any discussions at Headquarters relative to the
issue, especially if the issue is a sensitive or precedent
setting one. Examples of situations that may be elevated
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include sensitive issues such as tenant selection and
assignment plans or practices that may affect the funding
status of PHAs; site and neighborhood standards disputes
involving the selection of sites located within areas of
minority concentration; matters involving Section 504 or the
Fair Housing Act's accessibility provisions when such
provisions are CRRPRs; or matters involving a community's
refusal to grant zoning approval for Federally-assisted or
non-Federally-assisted facilities that treat persons with
disabilities such as AIDS.
(2) Within 24 hours of being informed about the problem, FHEO
shall alert the appropriate program staff. The Headquarters
FHEO Program Coordinator and Desk Officer shall as soon as
possible meet with appropriate senior staff from FHEO and the
Program Office to resolve the issue. Every effort shall be
made to resolve the dispute prior to the expiration of any
established review and approval timeframe. The POCC Director
and the appropriate Field Office program director shall have
the right to. participate through conference calls or other
means in any meeting of Headquarters staff below DAS level.
By so doing the POCC Director can play a key role in
formulating the solution before it is approved by the
Assistant Secretary for FHEO. If the issue is not resolved,
the Assistant Secretaries for FHEO and the affected program
shall attempt to resolve the problem.
(3) In the event the two Assistant Secretaries are unable to
agree, the matter shall be resolved by the Secretary.
6. Role of Headquarters Staff.
a. Under the restructured organization of HUD, each program office has
a unit that handles day-to-day support of and assistance to its own
field organizations.
(1) In FHEO, the Office of Program Standards and Evaluation (OPSE)
has the lead in overseeing the daily programmatic component of
operations of the small and large POCCs. OPSE also informs
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the field regarding the policies and procedures required to
implement the CRRPRs, trains and evaluates POCC Directors and,
where appropriate, POCC staff.
(2) The Field Monitoring and Management Planning Division in the
Office of Management and Field Coordination works in
coordination with OPSE on the resolution of field issues.
b. Under this delegation, OPSE's primary role is to render technical
assistance and advice to Field Office FHEO and program staff on
civil rights-related matters that are in dispute. If a policy
dispute involving a field office program decision is referred to
Headquarters, OPSE and the Desk Officer work cooperatively with
Headquarters and Field Office program staff to resolve the
situation through negotiations. If FHEO and its program office
counterparts agree on a solution, then FHEO and the program office
will communicate the Headquarters position to the Field Office
immediately, with the Field Office having the right to comment on
the proposed solution.
c. In the event that FHEO and program staff can not work out a
solution, OPSE and the Field Monitoring and Management Planning
Division shall prepare the case for the Assistant Secretary to
resolve with his/her program counterparts. If the Assistant
Secretaries come to a consensus on the solution, then their
decision shall be final; if no decision is reached, the dispute is
to be elevated to the Secretary.
Please address all comments and questions to your Program Coordinator or
William D. Gregorie, Acting Director, Office of Program Standards and
Evaluation, (202) 708-2288, extension 266.
Elizabeth K. Julian
Assistant Secretary for
Fair Housing and Equal
Opportunity
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