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8000 - Miscellaneous Statutes and Regulations
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PART 108COMPLIANCE PROCEDURES FOR AFFIRMATIVE FAIR HOUSING
MARKETING
Sec. 108.1
Purpose and application.
108.5
Authority.
108.15
Pre-occupancy conference.
108.20
Monitoring office responsibility for monitoring plans and reports.
108.21
Civil rights/compliance reviewing office compliance responsibility.
108.25
Compliance meeting.
108.35
Complaints.
108.40
Compliance reviews.
108.45
Compliance report.
108.50
Sanctions.
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.
SOURCE: 44 FR 47013, Aug. 9, 1979, unless otherwise
noted.
§ 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]
{{6-30-05 p.9716}}
§ 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.
[Codified to 24 C.F.R. § 108.5]
§ 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]
[Section 108.15 amended at 48 Fed. Reg. 20903, May 10,
1983; 64 Fed. Reg. 44095, August 12, 1999, effective September 13,
1999]
§ 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]
[Section 108.20 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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.
{{8-31-99 p.9717}}
[Codified to 24 C.F.R. § 108.21]
[Section 108.21 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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.
{{8-31-99 p.9718}}
(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]
[Section 108.25 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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]
[Section 108.35 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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
{{8-31-99 p.9719}}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]
[Section 108.40 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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]
[Section 108.45 amended at 64 Fed. Reg. 44096, August 12,
1999, effective September 13, 1999]
§ 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]
[The page following this is 9733.]
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