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-

                                   3
          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.

                                   4
     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.

                                   5
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

                                   6
               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

                                   7
               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

                                   8
               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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