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final agency action until approved by the Secretary.
(d) All final decisions shall be promptly served on all parties, and amici, if any.
an initial decision. A copy of the recommended findings and proposed decision, or of the initial decision, shall be served upon all parties, and amici, if any. 82.103 Exceptions to initial or
ommended decisions. Within 30 days after the mailing of an initial or recommended decision, any party may file exceptions to the decision, stating reasons therefor, with the responsible Department official. Any other party may file a response thereto within 45 days after the mailing of the decision. Upon the filing of such exceptions, the responsible Department official shall review the decision and issue his decision thereon.
8 2.104 Final decisions.
(a) The responsible Department official shall make the final decision in all proceedings under this part after expiration of all applicable time limits provided in $2.101 or $2.103.
(b) Where the hearing is conducted by a hearing examiner who makes an initial decision, if no exceptions thereto are filed within the 30-day period specified in $2.103, such initial decision shall become the final decision of the responsible Department official upon his approval thereof and shall constitute final agency action within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act), subject to the provisions of paragraph (c) of this section.
(c) Where the final decision of the responsible Department official does not provide for the suspension or termination of, or the refusal to grant or continue, Federal financial assistance or the imposition of any other sanction, it is an order within the meaning of 5 U.S.C. 551(6) (formerly section 2(d) of the Administrative Procedure Act) and shall constitute final agency action within the meaning of 5 U.S.C. 704 (formerly section 10(c) of the Administrative Procedure Act). When such final decision of the responsible Department official (other than the Secretary) does provide for suspension or termination of, or the refusal to grant or continue, Federal financial assistance or the imposition of any other sanction, such decision shall not constitute an order or
82.105 Oral argument to the respon
sible Department official. (a) If any party desires to argue a case orally on exceptions or replies to exceptions to
initial ommended decision, or upon review on initiative of the responsible Department official, he shall make such request in writing. The responsible Department official may grant or deny such requests in his discretion. If granted, he will serve notice of oral argument on all parties. The notice will set forth the order of presentation, the amount of time allotted, and the time and place for argument. The names of persons who will argue should be filed with the Civil Rights docket clerk not later than 7 days before the date set for oral argument.
(b) The purpose of oral argument is to emphasize and clarify the written argument in the briefs. Reading at length from the brief or other texts is not favored. Participants should confine their arguments to points of controlling importance and to points upon which exceptions have been filed. Consolidation of appearances at oral argument by parties taking the same side will permit the parties' interests to be presented more effectively in the time allotted.
(c) Pamphlets, charts, and other written material may be presented at oral argument only if such material is limited to facts already in the record and is served on all parties and filed with the Civil Rights docket clerk at least 7 days before the argument.
$ 2.106 Service on amici curiae.
All briefs, exceptions, memoranda, requests, and decisions referred to in this subpart J shall be served upon amici curiae at the same times and in the same manner required for service on parties. Any written statements of position and trial briefs required of parties under $2.71 shall be served on amici.
Subpart K- Judicial Standards of ed proceeding only with persons who
are employed by or assigned to work
with them and who perform no inves32.111 Conduct.
tigative or prosecuting function in conParties and their representatives are
nection with the proceeding.
82.114 Expeditious treatment. standards of practice and ethics in all Requests for expeditious treatment proceedings. They should not indulge of matters pending before the responin offensive personalities, unseemly sible Department official or the presidwrangling, or intemperate accusations ing officer are deemed communications or characterizations. A representative
on the merits, and are improper except of any party whether or not a lawyer
when forwarded from parties to a proshall observe the traditional respon
ceeding and served upon all other parsibilities of lawyers as officers of the
ties thereto. Such communications court and use his best efforts to re
should be in the form of a motion. strain his client from improprieties in connection with a proceeding.
82.115 Matters not prohibited. $2.112 Improper conduct.
A request for information which With respect to any proceeding it is
merely inquires about the status of a improper for any interested person to proceeding without discussing issues or attempt to sway the judgment of the expressing points of view is not deemed responsible Department official by un an ex parte communication. Such redertaking to bring pressure or influ quests should be directed to the Civil ence to bear upon any officer having a Rights docket clerk. Communications responsibility for a decision in the pro with respect to minor procedural matceeding, or his staff. It is improper that ters or inquiries or emergency requests such interested persons or any mem for extensions of time are not deemed bers of the Department's staff or the ex parte communications prohibited by presiding officer give statements to $2.113. Where feasible, however, such communications media, by paid adver communications should be by letter tisement or otherwise, designed to in with copies to all parties. Ex parte fluence the judgment of any officer communications between a respondent having responsibility for a decision in
and the responsible Department offithe proceeding, or his staff. It is im
cial or the Secretary with respect to proper for any person to solicit com
securing such respondent's voluntary munications to any such officer, or his
compliance with any requirement of staff, other than proper communications by parties or amici curiae.
part 1 of this title are not prohibited. 82.113 Ex parte communications.
82.116 Filing of ex parte communica
tions. Only persons employed by or as
A prohibited communication in writsigned to work with the responsible Department official who perform no in
ing received by the Secretary, the revestigative or prosecuting function in
sponsible Department official, or by connection with a proceeding shall
the presiding officer, shall be made communicate ex parte with the respon
public by placing it in the correspondsible Department official, or the pre
ence file of the docket in the case and siding officer, or any employee or per
will not be considered as part of the son involved in the decisional process
record for decision. If the prohibited in such proceedings with respect to the
communication is received orally, a merits of that or a factually related memorandum setting forth its subproceeding. The responsible Depart stance shall be made and filed in the ment official, the presiding officer, or correspondence section of the docket in any employee or person involved in the the case. A person referred to in such decisional process of a proceeding shall memorandum may file a comment for communicate ex parte with respect to inclusion in the docket if he considers the merits of that or a factually relat- the memorandum to be incorrect.
examiner or the responsible Department official.
PART 4-HUD REFORM ACT
Subpart A-Accountability in the Provision
of HUD Assistance
Sec. 4.1 Purpose. 4.3 Definitions. 4.5 Notice and documentation of assistance
subject to Section 102(a). 4.7 Notice of funding decisions. 4.9 Disclosure requirements for assistance
subject to Section 102(b). 4.11 Updating of disclosure. 4.13 Limitation of assistance subject to Sec
Proceedings 82.121 Post-termination proceedings.
(a) An applicant or recipient adversely affected by the order terminating, discontinuing, or refusing Federal financial assistance in consequence of proceedings pursuant to this title may request the responsible Department official for an order authorizing payment, or permitting resumption, of Federal financial assistance. Such request shall be in writing and shall affirmatively show that, since entry of the order, it has brought its program or activity into compliance with the requirements of the Act, and with part 1 of this title, and shall set forth specificially, and in detail, the steps which it has taken to achieve such compliance. If the responsible Department official denies such request, the applicant or recipient shall be given an expeditious hearing if it so requests in writing and specifies why it believes the responsible Department official to have been in error. The request for such a hearing shall be addressed to the responsible Department official and shall be made within 30 days after the applicant or recipient is informed that the responsible Department official has refused to authorize payment or permit resumption of Federal financial assistance.
(b) In the event that a hearing shall be requested pursuant to paragraph (a) of this section, the hearing procedures established by this part shall be applicable to the proceedings, except as otherwise provided in this section.
Subpart B-Prohibition of Advance
Disclosure of Funding Decisions 4.20 Purpose. 4.22 Definitions. 4.24 Scope. 4.26 Permissible and impermissible disclo
sures. 4.28 Civil penalties. 4.30 Procedure upon discovery of a viola
tion. 4.32 Investigation by Office of Inspector
General. 4.34 Review of Inspector General's report by
the Ethics Law Division. 4.36 Action by the Ethics Law Division. 4.38 Administrative remedies.
AUTHORITY: 42 U.S.C. 3535(d), 3537a, 3545.
SOURCE: 61 FR 14449, Apr. 1, 1996, unless otherwise noted.
Subpart A-Accountability in the
Provision of HUD Assistance
$ 2.131 Definitions.
(a) The definitions contained in $1.2 of this title, to the extent applicable, apply to this part.
(b) The term hearing eraminer is used in the sense in which used in 5 U.S.C. 3105 and 3344 (formerly section 11 of the Administrative Procedure Act).
(c) Presiding officer, in any particular matter, may be the assigned hearing
The provisions of this subpart A are authorized under section 102 of the Department of Housing and Urban Development Reform Act of 1989 (Pub. L. 101-235, approved December 15, 1989) (42 U.S.C. 3537a) (hereinafter, Section 102). Both the provisions of Section 102 and this subpart A apply for the purposes of Section 102. Section 102 contains a number of provisions designed to ensure greater accountability and integrity in the way in which the Department makes assistance available under certain of its programs.
$ 4.3 Definitions.
Applicant includes a person whose application for assistance must be submitted to HUD for any purpose including approval, environmental review, or rent determination.
Assistance under any program or discretionary fund administered by the Secretary is subject to Section 102(a), and means any assistance, under any program administered by the Department, that provides by statute, regulation or otherwise for the competitive distribution of funding.
Assistance within the jurisdiction of the Department is subject to Section 102(b), and means any contract, grant, loan, cooperative agreement, or other form of assistance, including the insurance or guarantee of a loan or mortgage, that is provided with respect to a specific project or activity under a program administered by the Department, whether or not it is awarded through a competitive process.
Assistance within the jurisdiction of the Department to any housing project is subject to Section 102(d), and means:
(1) Assistance which is provided directly by HUD to any person or entity, but not to subrecipients. It includes assistance for the acquisition, rehabilitation, operation conversion, modernization, renovation, or demolition of any property containing five or more dwelling units that is to be used primarily for residential purposes. It includes assistance to independent group residences, board and care facilities, group homes and transitional housing but does not include primarily nonresidential facilities such as intermediate care facilities, nursing homes and hospitals. It also includes any change requested by a recipient in the amount of assistance previously provided, except changes resulting from annual adjustments in Section 8 rents under Section 8(c)(2)(A) of the United States Housing Act of 1937 (42 U.S.C. 1437f);
(2) Assistance to residential rental property receiving a tax credit under Federal, State or local law.
(3) For purposes of this definition, assistance includes assistance resulting from annual adjustments in Section 8 rents under Section 8(c)(2)(A) of the United States Housing Act of 1937, unless the initial assistance was made
available before April 15, 1991, and no other assistance subject to this subpart A was made available on or after that date.
Housing project means:
(1) Property containing five or more dwelling units that is to be used for primarily residential purposes, including (but not limited to) living arrangements such as independent group residences, board and care facilities, group homes, and transitional housing, but excluding facilities that provide primarily non-residential services, such as intermediate care facilities, nursing homes, and hospitals.
(2) Residential rental property receiving a tax credit under Federal, State, or local law.
Interested party means any person involved in the application for assistance, or in the planning, development or implementation of the project or activity for which assistance is sought and any other person who has a pecuniary interest exceeding the lower of $50,000 or 10 percent in the project or activity for which assistance is sought.
Selection criteria includes, in addition to any objective measures of housing and other need, project merit, or efficient use of resources, the weight or relative importance of each published selection criterion as well as any other factors that may affect the selection of recipients.
8 4.5 Notice and documentation of as
sistance subject to Section 102(a). (a) Notice. Before the Department solicits an application for assistance subject to Section 102(a), it will publish a Notice in the FEDERAL REGISTER describing application procedures. Not less than 30 calendar days before the deadline by which applications must be submitted, the Department will publish selection criteria in the FEDERAL REGISTER.
(b) Documentation of decisions. HUD will make available for public inspection, for at least five (5) years, and beginning not less than 30 calendars days after it provides the assistance, all documentation and other information regarding the basis for the funding decision with respect to each application submitted to HUD for assistance. HUD will also make available any written
indication of support that it received from any applicant. Recipients of HUD assistance must ensure, in accordance with HUD guidance, the public availability of similar information submitted by subrecipients of HUD assistance.
84.7 Notice of funding deci ons.
HUD will publish a Notice in the FEDERAL REGISTER at least quarterly to notify the public of all decisions made by the Department to provide:
(a) Assistance subject to Section 102(a); and
(b) Assistance that is provided through grants or cooperative agreements on a discretionary (non-formula, non-demand) basis, but that is not provided on the basis of a competition.
(1) Other governmental assistance that is or is expected to be made available, based upon a reasonable assessment of the circumstances, with respect to the project or activities for which the assistance is sought;
(2) The name and pecuniary interest of any interested party; and
(3) A report of the expected sources and uses of funds for the project or activity which is the subject of the application, including governmental and non-governmental sources of funds and private capital resulting from tax benefits.
(c) In the case of mortgage insurance under 24 CFR subtitle B, chapter II, the mortgagor is responsible for making the disclosures required under Section 102(b) and this section, and the mortgagee is responsible for furnishing the mortgagor's disclosures to the Department. (Approved by the Office of Management and Budget under control number 2510 0011)
4.9 Disclosure requirements for as
sistance subject to Section 102(b). (a) Receipt and reasonable expectation of receipt. (1) In determining the threshold of applicability of Section 102(b), an applicant will be deemed to have received or to have a reasonable expectation of receiving:
(i) The total amount of assistance received during the Federal fiscal year during which the application was submitted;
(ii) The total amount of assistance requested for the fiscal year in which any pending application, including the current application, was submitted; and
(iii) For the fiscal year described in paragraph (a)(1)(ii) of this section, the total amount of assistance from the Department or any other entity that is likely to be made available on a formula basis or in the form of program income as defined in 24 CFR part 85.
(2) In the case of assistance that will be provided pursuant to contract over a period of time (such as project-based assistance under Section 8 of the United States Housing Act of 1937), all amounts that are to be provided over the term of the contract, irrespective of when they are to be received.
(b) Content of disclosure. Applicants that receive or can reasonably be expected to receive, as defined in paragraph (a) of this section, an aggregate amount of assistance that is in excess of $200,000 must disclose the following information:
84.11 Updating of disclosure.
(a) During the period in which an ap plication for assistance covered under Section 102(b) is pending, or in which such assistance is being provided, the applicant must report to the Department, or to the State or unit of general local government, as appropriate:
(1) Any information referred to in Section 102(b) that the applicant should have disclosed with respect to the application, but did not disclose;
(2) Any information referred to in Section 102(b) that initially arose after the time for making disclosures under that subsection, including the name and pecuniary interest of any person who did not have a pecuniary interest in the project or activity that exceeded the threshold in Section 102(b) at the time of the application, but that subsequently exceeded the threshold.
(b) With regard to changes in information that was disclosed under Sections 102(b) or 102(c):
(1) For programs administered by the Assistant Secretary for Community Planning and Development:
(i) Any change in other government assistance covered by Section 102(b) that exceeds the amount of all assistance that was previously disclosed by