24 C.F.R. Subpart B—Certification of Substantially Equivalent Agencies
Title 24 - Housing and Urban Development
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. 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. (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. (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: (i) 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; (ii) Affirm, modify, or set aside, in whole or in part, the order, or remand the order for further proceedings; and (iii) 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 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 §§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; and (3) Allow reasonable attorney's fees and costs. A state or local fair housing enforcement agency must meet all of the performance standards listed in this section 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; (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. (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 §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. (a) The Assistant Secretary, through its 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. (a) A request for certification under this subpart 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 §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; (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. (a) Upon receipt of a request for certification filed under §115.206, 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 §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. (a) Suspension based on changes in the law. (1) The Assistant Secretary may 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. Such suspension shall not exceed 180 days. (3) If the Assistant Secretary determines that, notwithstanding the actions taken by the State or locality as described in paragraph (a)(1), 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 full or partial reimbursement for cases processed during the period of the suspension. (4) 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 §115.209. (b) Suspension based on agency performance. (1) The Assistant Secretary may 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 may elect not to 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 §115.203. The FHEO Field Office will provide technical assistance to the agency during this period of time. (3) During the period of a suspension the Assistant Secretary shall not refer complaints to the agency. (4) Suspension under paragraph (b) of this section 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. (5) 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. (c) HUD will provide an agency with notice of the specific reasons for the suspension of its interim certification and an opportunity to respond, in accordance with the procedures set forth in HUD issued guidance. (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. (a) Certification. (1) If the Assistant Secretary determines, after application of the criteria set forth in §§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. (2) 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. (3) 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. (b) Performance Improvement Plan. (1) 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. (2) 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. (c) Annual assessments. 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. (d) Interim certification required prior to certification. An agency shall receive interim certification prior to receiving certification. (a) Suspension based on changes in the law. (1) The Assistant Secretary may 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. Such suspension shall not exceed 180 days. (3) 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 full or partial reimbursement for cases processed during the period of the suspension. (4) 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 §115.212. (b) Suspension based on agency performance. (1) The Assistant Secretary may 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 may elect not to 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 §115.203. The FHEO Field Office will provide technical assistance to the agency during this period of time. (3) During the period of a suspension the Assistant Secretary shall not refer complaints to the agency. (4) Suspension under this paragraph 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. (5) 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. (c) HUD will provide an agency with notice of the specific reasons for the suspension of its certification and an opportunity to respond, in accordance with the procedures set forth in HUD issued guidance. (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 State or local official in writing of the reasons for that determination.
Title 24: Housing and Urban Development
PART 115—CERTIFICATION AND FUNDING OF STATE AND LOCAL FAIR HOUSING ENFORCEMENT AGENCIES
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.
