8000 - Miscellaneous Statutes and Regulations
PART 108COMPLIANCE PROCEDURES FOR AFFIRMATIVE FAIR
Purpose and application.
AUTHORITY: 42 U.S.C. 3608, 3535(d); E.O. 11063, 27 FR 11527, 3 CFR, 1958--1963 Comp., p. 652; E.O. 12892, 59 FR 2939, 3 CFR, 1994 Comp., p. 849.
§ 108.1 Purpose and application.
(a) The primary purpose of this regulation is to establish procedures for determining whether or not an applicant's actions are in compliance with its approved Affirmative Fair Housing Marketing (AFHM) plan, AFHM Regulation (24 CFR 200.600), and AFHM requirements in departmental programs.
(b) These regulations apply to all applicants for participation in subsidized and unsubsidized housing programs administered by the Department of Housing and Urban Development and to all other persons subject to Affirmative Fair Housing Marketing requirements in department programs.
(c) The term applicant includes:
(1) All persons whose applications are approved for development or rehabilitation of: subdivisions; multifamily projects; manufactured home parks of five or more lots, units or spaces; or dwelling units, when the applicant's participation in FHA housing programs has exceeded, or would thereby exceed, development of five or more such dwelling units during the year preceding the application, except that there shall not be included in a determination of the number of dwelling units developed or rehabilitated by an applicant, those in which a single family dwelling is constructed or rehabilitated for occupancy by a mortgagor on property owned by the mortgagor and in which the applicant had no interest prior to entering into the contract for construction or rehabilitation. For the purposes of this definition, a person remains an applicant from the date of submission of an application through duration of receipt of assistance pursuant to such application.
(2) All other persons subject to AFHM requirements in departmental programs.
(d) The term person includes one or more individuals, corporations, partnerships, associations, labor organizations, legal representatives or agents, mutual companies, joint-stock companies, trusts, unincorporated organizations, trustees, trustees in bankruptcy, receivers, fiduciaries and public entities.
(e) The term monitoring office includes any office within HUD designated by HUD to act as a monitoring office. As necessary, HUD will designate specific offices within HUD to act as monitoring offices through a notice published in the Federal Register.
(f) The term civil rights/compliance reviewing office includes any office within HUD designated by HUD to act as a civil rights/compliance reviewing office. As necessary, HUD will designate specific offices within HUD to act as civil rights/compliance reviewing offices through a notice published inthe Federal Register.
[Codified to 24 C.F.R. § 108.1]
[Section 108.1 amended at 50 Fed. Reg. 9268, March 7, 1985, effective April 17, 1985; added at 64 Fed. Reg. 44095, August 12, 1999, effective September 13, 1999]
§ 108.5 Authority.
The regulations in this part are issued pursuant to the authority to issue regulations granted to the Secretary by section 7(d) of the Department of Housing and Urban Development Act of 1965, 42 U.S.C. 3535(d). They implement the functions, powers, and duties imposed on the Secretary by Executive Order 11063, 27 FR 11527 and title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3608.
§ 108.15 Pre-occupancy conference.
Applicants shall submit a Notification of Intent to Begin Marketing to the monitoring office no later than 90 days prior to engaging in sales or rental marketing activities. Upon receipt of the Notification of Intent to Begin Marketing from the applicant, the monitoring office shall review any previously approved plan and may schedule a pre-occupancy conference. Such pre-occupancy conference shall be held prior to initiation of sales or rental marketing activities. At this conference, the previously approved AFHM plan shall be reviewed with the applicant to determine if the plan, and/or its proposed implementation, requires modification previous to initiation of marketing in order to achieve the objectives of the AFHM regulation and the plan.
(Approved by the Office of Management and Budget under control number 2535-0027)
[Codified to 24 C.F.R. § 108.15]
§ 108.20 Monitoring office responsibility for monitoring plans and reports.
(a) Submission of documentation. Pursuant to initiation of marketing, the applicant shall submit to the monitoring office reports documenting the implementation of the AFHM plan, including sales or rental reports, as required by the Department. Copies of such documentation shall be forwarded to the civil rights/compliance reviewing office by the monitoring office as requested.
(b) Monitoring of AFHM plan. The monitoring office is responsible for monitoring AFHM plans and providing technical assistance to the applicant in preparation or modification of such plans during the period of development and initial implementation.
(c) Review of applicant's reports. Each sales or rental report shall be reviewed by the monitoring office as it is received. When sales or rental reports show that 20% of the units covered by the AFHM plan have been sold or rented, or whenever it appears that the plan may not accomplish its intended objective, the monitoring office shall notify the civil rights/compliance reviewing office.
(d) Failure of applicant to file documentation. If the applicant fails to file required documentation, the applicant shall be sent a written notice indicating that if the delinquent documentation is not submitted to the monitoring office within 10 days from date of receipt of the notice, the matter will be referred to the the civil rights/compliance reviewing office by the monitoring office for action which may lead to the imposition of sanctions.
[Codified to 24 C.F.R. § 108.20]
§ 108.21 Civil rights/compliance reviewing office compliance responsibility.
The civil rights/compliance reviewing office shall be responsible for determining whether an applicant's actions are in apparent compliance with its approved AFHM plan, the AFHM regulations, and this part and for determining changes or modifications necessary in the plan after initiation of marketing.
[Codified to 24 C.F.R. § 108.21]
§ 108.25 Compliance meeting.
(a) Scheduling meeting. If an applicant fails to comply with requirements under § 108.15 or § 108.20 or it appears that the goals of the AFHM plan may not be achieved, or that the implementation of the plan should be modified, the civil rights/compliance reviewing office shall schedule a meeting with the applicant. The meeting shall be held at least ten days before the next sales or rental report is due. The purpose of the compliance meeting is to review the applicant's compliance with AFHM requirements and the implementation of the AFHM plan and to indicate any changes or modifications which may be required in the plan.
(b) Notice of compliance meeting. A Notice of Compliance Meeting shall be sent to the last known address of the applicant, by certified mail or through personal service. The notice will advise the applicant of the right to respond within seven (7) days to the matters identified as subjects of the meeting and to submit information and relevant data evidencing compliance with the AFHM regulations, the AFHM plan, Executive Order 11063 and title VIII of the Civil Rights Act of 1968, when appropriate. If the applicant is a small entity, as defined by the regulations of the Small Business Administration, the Notice shall include notification that the entity may submit comment on HUD's actions to the Small Business and Agriculture Regulatory Enforcement Ombudsman, and shall include the appropriate contact information.
(c) Applicant data required. The applicant will be requested in writing to provide, prior to or at the compliance meeting, specific documents, records, and other information relevant to compliance, including but not limited to:
(1) Copies or scripts of all advertising in the Standard Metropolitan Statistical Area (SMSA) or housing market area, as appropriate, including newspaper, radio and television advertising, and a photograph of any sale or rental sign at the site of construction;
(2) Copies of brochures and other printed material used in connection with sales or rentals;
(3) Evidence of outreach to community organizations;
(4) Any other evidence of affirmative outreach to groups which are not likely to apply for the subject housing;
(5) Evidence of instructions to employees with respect to company policy of nondiscrimination in housing;
(6) Description of training conducted with sales/rental staff;
(7) Evidence of nondiscriminatory hiring and recruiting policies for staff engaged in the sale or rental of properties, and data by race and sex of the composition of the staff;
(8) Copies of applications and waiting lists of prospective buyers or renters maintained by applicant;
(9) Copies of sign-in lists maintained on site for prospective buyers and renters who are shown the facility;
(10) Copies of the selection and screening criteria;
(11) Copies of relevant lease or sales agreements;
(12) Any other information which documents efforts to comply with an approved plan.
(d) Preparation for the compliance meeting. The monitoring office will provide information concerning the status of the project or housing involved to be presented to the applicant at the meeting. The monitoring office shall be notified of the meeting and may send representatives to the meeting.
(e) Resolution of matters. Where matters raised in the compliance meetings are resolved through revision to the plan or its implementation, the terms of the resolution shall be reduced to writing and submitted to the civil rights/compliance reviewing office within 10 days of the date of the compliance meeting.
(f) Determination of compliance. If the evidence shows no violation of the AFHM regulations and that the applicant is complying with its approved AFHM plan and this part, the civil rights/compliance reviewing office shall so notify the applicant within 10 days of the meeting.
(g) Determination of possible noncompliance. If the evidence indicates an apparent failure to comply with the AFHM plan or the AFHM regulation, or if the matters raised cannot be resolved, the civil rights/compliance reviewing office shall so notify the applicant no later than ten (10) days after the date of the compliance meeting is held, in writing by certified mail, return receipt requested, and shall advise the applicant that the Department will conduct a comprehensive compliance review or refer the matter to the Assistant Secretary for Fair Housing and Equal Opportunity for consideration of action including the imposition of sanctions. The purpose of a compliance review is to determine whether the applicant has complied with the provisions of Executive Order 11063, title VIII of the Civil Rights Act of 1968, and the AFHM regulations in conjunction with the applicant's specific AFHM plan previously approved by HUD.
(h) Failure of applicant to attend the meeting. If the applicant fails to attend the meeting scheduled pursuant to this section, the civil rights/compliance reviewing office shall so notify the applicant no later than ten (10) days after the date of the scheduled meeting, in writing by certified mail, return receipt requested, and shall advise the applicant as to whether the civil rights/compliance reviewing office will conduct a comprehensive compliance review or refer the matter to the Assistant Secretary for Fair Housing and Equal Opportunity for consideration of action including the imposition of sanctions.
[Codified to 24 C.F.R. § 108.25]
§ 108.35 Complaints.
Individuals and private and public entities may file complaints alleging violations of the AFHM regulations or an approved AFHM plan with any monitoring office, civil rights/compliance reviewing office, or with the Assistant Secretary for FH&EO. Complaints will be referred to the civil rights/compliance reviewing office. Where there is an allegation of a violation of title VIII the complaint also will be processed under Part 105.
[Codified to 24 C.F.R. § 108.35]
§ 108.40 Compliance reviews.
(a) General. All compliance reviews shall be conducted by the civil rights/compliance reviewing office. Complaints alleging a violation(s) of the AFHM regulations, or information ascertained in the absence of a complaint indicating an applicant's failure to comply with an AFHM plan, shall be referred immediately to the civil rights/compliance reviewing office. The monitoring office shall be notified as appropriate of all alleged violations of the AFHM regulations or alleged failure to comply with an AFHM plan.
(b) Initiation of compliance reviews. Even in the absence of a complaint or other information indicating noncompliance pursuant to paragraph (a), the civil rights/compliance reviewing office may conduct periodic compliance reviews throughout the life of the mortgage in the case of multifamily projects and throughout the duration of the Housing Assistance Payments Contract with the Department in the case of housing assisted under section 8 of the United States Housing Act of 1937, as amended, 42 U.S.C. 1437.
(c) Nature of compliance reviews. The purpose of a compliance review is to determine whether the applicant is in compliance with the Department's AFHM requirements and the applicant's approved AFHM plan. Where allegations under this part may also constitute a violation of the provisions of Executive Order 11063 or title VIII, the review will also determine compliance with the requirements thereof. The applicant shall be given at least five (5) days notice of the time set for any compliance review and the place or places for such review. The compliance review will cover the following areas:
(1) Applicant's sales and rental practices, including practices in soliciting buyers and tenants, determining eligibility, selecting and rejecting buyers and renters, and in concluding sales and rental transactions.
(2) Programs to attract minority and majority buyers and renters regardless of sex, including:
(i) Use of advertising media, brochures, and pamphlets;
(ii) Conformance with both the Department's Fair Housing Poster Regulation (24 CFR Part 110) and the Advertising Guidelines for Fair Housing (37 FR 6700) and any revisions thereto.
(3) Data relating to:
(i) The size and location of units;
(ii) Services provided;
(iii) Sales and/or rental price ranges;
(iv) The race and sex of buyers and/or renters;
(v) Race and sex of staff engaged in sale or rental of dwellings.
(4) Other matters relating to the marketing or sales of dwellings under HUD affirmative marketing requirements, the AFHM plan and this part.
[Codified to 24 C.F.R. § 108.40]
§ 108.45 Compliance report.
Following a compliance review, a report shall be prepared promptly and the Assistant Secretary for FH&EO shall make a finding of compliance or noncompliance. If it is found that the applicant is in compliance, all parties concerned shall be notified of the findings. Whenever a finding of noncompliance is made pursuant to this part the report shall list specifically the violations found. The applicant shall be sent a copy of the report by certified mail, return receipt requested, together with a notice that, if the matter cannot be resolved within ten days of receipt of the notice, the matter will be referred to the Assistant Secretary for FH&EO to make a determination as to whether actions will be initiated for the imposition of sanctions.
[Codified to 24 C.F.R. § 108.45]
§ 108.50 Sanctions.
Applicants failing to comply with the requirements of these regulations, the AFHM regulations, or an AFHM plan will make themselves liable to sanctions authorized by law, regulations, agreements, rules, or policies governing the program pursuant to which the application was made, including, but not limited to, denial of further participation in departmental programs and referral to the Department of Justice for suit by the United States for injunctive or other appropriate relief.
[Codified to 24 C.F.R. § 108.50]