[Federal Register Volume 72, Number 182 (Thursday, September 20, 2007)]
[Rules and Regulations]
[Pages 53876-53879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18522]



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Part V





Department of Housing and Urban Development





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24 CFR Parts 14, 15, et al.



 HUD Office of Hearings and Appeals Conforming Amendments; and 
Technical Correction to Part 15 Regulations; Final Rule

  Federal Register / Vol. 72, No. 182 / Thursday, September 20, 2007 / 
Rules and Regulations  

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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 14, 15, 17, 20, 24, 25, 26, and 180

[Docket No. FR-5137-F-01]
RIN 2501-AD32


HUD Office of Hearings and Appeals Conforming Amendments; and 
Technical Correction to Part 15 Regulations

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This final rule revises HUD's regulations to reflect the 
statutorily mandated termination of the HUD Board of Contract Appeals. 
As required by the National Defense Authorization Act for Fiscal Year 
2006 (2006 NDA Act), the contract-related functions of the HUD Board of 
Contract Appeals have been transferred to the new Civilian Board of 
Contract Appeals. This final rule also describes the organization, 
address, and officer qualifications of the new Office of Hearings and 
Appeals (OHA) and its two divisions, which will carry out the 
nonprocurement functions performed by the former HUD Board of Contract 
Appeals. This rule also makes conforming changes to other HUD 
regulations to reflect this organizational change. Additionally, this 
rule makes a technical correction to HUD's Freedom of Information Act 
(FOIA) regulations to include reference to Regional Counsel, which was 
inadvertently omitted from a previously published rule.

DATES: Effective Date: October 22, 2007.

FOR FURTHER INFORMATION CONTACT: Questions regarding the establishment 
and organization of the OHA should be directed to David T. Anderson, 
Director, Office of Hearings and Appeals, Department of Housing and 
Urban Development, 1707 H Street, NW., Eleventh Floor, Washington, DC 
20006; telephone number (202) 254-0000 (this is not a toll-free 
number). Questions regarding the technical correction to the part 15 
regulations should be directed to Allen Villafuerte, Office of General 
Counsel, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Room 10258, Washington, DC 20410-0500; telephone number 
(202) 708-0300, extension 5095 (this is not a toll-free number). 
Hearing-or speech-impaired individuals may access these telephone 
numbers via TTY by calling the toll-free Federal Information Relay 
Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 847 of the 2006 NDA Act (Pub. L. 109-163, approved January 
6, 2006) (41 U.S.C. 438) established the Civilian Board of Contract 
Appeals within the General Services Administration and gave it 
jurisdiction to decide contract disputes from several civilian 
agencies. The 2006 NDA Act simultaneously terminated the Boards of 
Contract Appeals of eight federal agencies, excepting the boards of 
contract appeals of the Department of Defense, the Tennessee Valley 
Authority, and the U.S. Postal Service. As a result, the affected eight 
federal agencies, including HUD, no longer have a board of contract 
appeals as part of their organizational structure.
    Because of the transfer of contract appeals adjudicatory 
responsibilities under the 2006 NDA Act, and to provide the 
nonprocurement contract dispute functions performed by the former HUD 
Board of Contract Appeals, HUD has established within the Office of the 
Secretary a new OHA (71 FR 76679, December 21, 2006). The OHA consists 
of two separate divisions, the existing Office of Administrative Law 
Judges and the new Office of Appeals. The Office of Appeals includes 
Administrative Judges who perform certain nonprocurement contract 
appeals functions that were provided by the Administrative Judges of 
the former HUD Board of Contract Appeals.

II. Final Rule

    This final rule revises the regulations in 24 CFR part 20, which 
governed the establishment and operation of the former HUD Board of 
Contract Appeals. Specifically, this rule describes the OHA's 
organization, address, and officer qualifications. This rule also makes 
conforming changes to regulations in parts 14, 17, 20, 24, 25, 26, and 
180 that reference the former HUD Board of Contract Appeals. It also 
reflects the new address of the Office of Administrative Law Judges 
throughout HUD's regulations.
    In addition, this rule makes a technical amendment to HUD's FOIA 
regulations in 24 CFR part 15. HUD published a final rule on February 
26, 2007 (72 FR 8580) to clarify the types of requests for HUD 
documents and employee testimony covered by the Department's document 
production and testimony approval regulations. In HUD's amendments to 
Sec.  15.203 in the February 26, 2007, final rule, HUD inadvertently 
omitted reference to Regional Counsel in Sec.  15.203(b). Section 
15.203(b) in the February 26, 2007, final rule largely mirrors Sec.  
15.203(a) of the part 15 regulations codified in the 2006 edition of 
title 24 of the Code of Federal Regulations. Section 15.203(a) of the 
2006 codified regulations references Regional Counsel, and HUD intended 
to include the same reference in the new Sec.  15.203(b) of the 
February 26, 2007, final rule. This rule provides for such inclusion.

III. Justification for Final Rulemaking

    In general, HUD publishes a rule for public comment before issuing 
a rule for effect, in accordance with HUD's regulations on rulemaking 
at 24 CFR part 10. Part 10, however, allows in Sec.  10.1 for omission 
of notice and public comment in cases of statements of policy, 
interpretive rules, rules governing the Department's organization or 
internal practices, or if a statute expressly provides for omission of 
notice and public comment. In this case, public comment is unnecessary 
because the majority of this rule reflects the Department's 
organization resulting from the termination of the HUD Board of 
Contract Appeals, pursuant to the 2006 NDA Act. More specifically, this 
final rule removes regulations relating to the former HUD Board of 
Contract Appeals and describes the organization of the new OHA. It also 
reflects the reassignment of nonprocurement functions previously 
carried out by the former HUD Board of Contract Appeals elsewhere 
within the Department. Similarly, the correction to part 15 merely 
outlines the procedures used by the Department to be followed when a 
subpoena, order, or other demand of a court is issued to HUD for the 
disclosure of material or for the disclosure of information in its 
possession. This correction reflects current HUD practices. The 
amendment made by this part of this rule does not affect the rights or 
obligations of members of the public.

IV. Findings and Certifications

Impact on Small Entities

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) generally 
requires an agency to conduct a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking requirements, unless the 
agency certifies that the rule will not have a significant economic 
impact on a substantial number of small entities. This final rule does 
not establish special procedures that would need to be complied with by 
small entities. This rule does not change the procedures that all 
entities, small and large, must follow in the course of certain 
hearings and appellate review processes. Accordingly, the undersigned 
certifies that this final rule would not

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have a significant economic impact on a substantial number of small 
entities.

Environmental Impact

    This proposed rule does not direct, provide for assistance or loan 
and mortgage insurance for, or otherwise govern or regulate, real 
property acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, nor does it establish, revise, or 
provide for standards for construction or construction materials, 
manufactured housing, or occupancy. Accordingly, under 24 CFR 
50.19(c)(1), this proposed rule is categorically excluded from 
environmental review under the National Environmental Policy Act of 
1969 (42 U.S.C. 4321 et seq.).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications, if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments nor preempt state law 
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on state, local, and 
tribal governments and the private sector. This final rule does not 
impose any federal mandates on any state, local, or tribal governments 
or the private sector within the meaning of UMRA.

List of Subjects

24 CFR Part 14

    Claims, Equal access to justice, Lawyers, Reporting and 
recordkeeping requirements.

24 CFR Part 15

    Classified information, Courts, Freedom of information, Government 
employees, Reporting and recordkeeping requirements.

24 CFR Part 17

    Administrative practice and procedure, Claims, Government 
employees, Income taxes, Wages.

24 CFR Part 20

    Administrative practice and procedure, Government contracts, 
Organization and functions (Government agencies).

24 CFR Part 24

    Administrative practice and procedure, Government contracts, Grant 
programs, Loan programs, Reporting and recordkeeping requirements.

24 CFR Part 25

    Administrative practice and procedure, Loan programs--housing and 
community development, Organization and functions (Government 
agencies), Reporting and recordkeeping requirements.

24 CFR Part 26

    Administrative practice and procedure.

24 CFR Part 180

    Administrative practice and procedure, Aged, Civil rights, Fair 
housing, Individuals with disabilities, Investigations, Mortgages, 
Penalties, Reporting and recordkeeping requirements.

0
Accordingly, for the reasons described in the preamble, HUD amends 24 
CFR parts 14, 15, 17, 20, 24, 25, 26, and 180, as follows:

PART 14--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN 
ADMINISTRATIVE PROCEEDINGS

0
1. The authority citation for part 14 is revised to read as follows:

    Authority: 5 U.S.C. 504(c)(1); 42 U.S.C. 3535(d).


Sec.  14.50  [Amended]

0
2. In 24 CFR 14.50, in the definition of Adjudicative officer, remove 
the words ``Board of Contract Appeals'' and add, in their place, the 
words ``Office of Appeals''.

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD 
EMPLOYEES

0
3. The authority citation for part 15 continues to read as follows:

    Authority: 42 U.S.C. 3535(d).


0
4. Revise paragraph (b) of Sec.  15.203 to read as follows:


Sec.  15.203  Making a demand for production of material or provision 
of testimony.

* * * * *
    (b) Whenever a demand is made upon the Department or an employee of 
the Department for the production of material or provision of 
testimony, the employee shall immediately notify the Associate General 
Counsel for Litigation, or the appropriate Regional Counsel, or other 
designee. The appropriate Regional Counsel shall mean the Regional 
Counsel for the Regional Office having delegated authority over the 
project or activity with respect to which the information is sought. 
The Associate General Counsel for Litigation, the appropriate Regional 
Counsel, or other designee shall maintain a record of all demands 
served upon the Department and refer the demand to the appropriate 
designee for processing and determination.

PART 17--ADMINISTRATIVE CLAIMS

0
5. The authority citation for part 17 continues to read as follows:

    Authority: 5 U.S.C. 5514, 28 U.S.C. 2672; 31 U.S.C. 3711, 3716-
18, 3721; and 42 U.S.C. 3535(d).

0
6. The authority citation for subpart C continues to read as follows:

    Authority: 5 U.S.C. 5514; 31 U.S.C. 3701, 3711, 3716-3720E; and 
42 U.S.C. 3535(d).


0
7. Revise Sec.  17.140 to read as follows:


Sec.  17.140  Miscellaneous provisions: correspondence with the 
Department.

    The employee shall file an original and one copy of a request for a 
hearing with the Clerk, Office of the Chief Administrative Law Judge, 
1707 H Street, NW., Eleventh Floor, Washington, DC 20006, on official 
work days between the hours of 8:45 a.m. and 5:15 p.m. All other 
correspondence shall be submitted to the Department Claims Officer, 
Office of the Chief Financial Officer, Department of Housing and Urban 
Development, 451 Seventh Street, SW., Washington, DC 20410. Documents 
may be filed by personal delivery or mail. All documents shall be 
printed, typewritten, or otherwise processed in clear, legible form and 
on letter-size paper.

0
8. Revise Sec.  17.152 to read as follows:


Sec.  17.152  Review within the Department of a determination that an 
amount is past-due and legally enforceable.

    (a) Notification by debtor. A debtor who receives a Notice of 
Intent has the right to present evidence that all or part of the debt 
is not past-due or not legally enforceable. The debtor should send a 
copy of the Notice of Intent with a letter notifying the Office of 
Appeals within 25 calendar days from the date of the Department's 
Notice of Intent that he or she intends to present evidence. (See

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Sec.  17.161(a) for address of the Office of Appeals.) Failure to give 
this advance notice will not jeopardize the debtor's right to present 
evidence within the 65 days provided for in paragraph (b) of this 
section. If the Office of Appeals has additional procedures governing 
the review process, a copy of the procedures will be mailed to the 
debtor after his request for review is received and docketed by the 
Office of Appeals.
    (b) Submission of evidence. The debtor may submit evidence showing 
that all or part of the debt is not past-due or not legally 
enforceable, along with the notification requested by paragraph (a) of 
this section, but in any event the evidence must be submitted to the 
Office of Appeals within 65 calendar days from the date of the 
Department's Notice of Intent. Failure to submit evidence within 65 
calendar days will result in a dismissal of the request for review by 
the Office of Appeals.
    (c) Review of the record. After a timely submission of evidence by 
the debtor, an Administrative Judge from the Office of Appeals will 
review the evidence submitted by the Department that shows that all or 
part of the debt is past-due and legally enforceable. (Administrative 
Judges are appointed in accordance with 41 U.S.C. 607(b)(1).) The 
Administrative Judge shall make a determination based upon a review of 
the written record, except that the Administrative Judge may order an 
oral hearing if he or she finds that:
    (1) An applicable statute authorizes or requires the Secretary to 
consider waiver of the indebtedness and the waiver determination turns 
on credibility or veracity; or
    (2) The question of indebtedness cannot be resolved by review of 
the documentary evidence.
    (d) Previous decision by the Office of Appeals. The debtor is not 
entitled to a review of the Department's intent to offset it if, in a 
previous year, the Office of Appeals has issued a decision on the 
merits that the debt is past-due and legally enforceable, except when 
the debt has become legally unenforceable since the issuance of that 
decision or when the debtor can submit newly discovered material 
evidence that the debt is presently not legally enforceable.

0
9. Revise Sec.  17.161(a) to read as follows:


Sec.  17.161  Correspondence with the Department.

    (a) All correspondence from the debtor to the Office of Appeals 
concerning the right to review as described in Sec.  17.152 shall be 
addressed to the HUD Office of Appeals, 1707 H Street, NW, Eleventh 
Floor, Washington, DC 20006.
* * * * *

0
10. Revise Sec.  17.170(b) to read as follows:
* * * * *
    (b) Hearing official. Any hearing required to establish the 
Secretary's right to collect a debt through administrative wage 
garnishment shall be conducted by an Administrative Judge of the Office 
of Appeals.

0
11. Revise part 20 to read as follows:

PART 20--OFFICE OF HEARINGS AND APPEALS

Sec.
20.1 Establishment of the Office of Hearings and Appeals.
20.3 Location, organization, and officer qualifications.
20.5 Jurisdiction of Office of Appeals.

    Authority: 42 U.S.C. 3535(d).


Sec.  20.1  Establishment of the Office of Hearings and Appeals.

    There is established in the Office of the Secretary the Office of 
Hearings and Appeals.


Sec.  20.3  Location, organization, and officer qualifications.

    (a) Location. The Office of Hearings and Appeals is located at 1707 
H Street, NW, Eleventh Floor, Washington, DC 20006. The telephone 
number of the Office of Hearings and Appeals is (202) 254-0000. 
Hearing- or speech-impaired individuals may access this number via TTY 
by calling the toll-free Federal Information Relay Service at (800) 
877-8339. The facsimile number is (202) 254-0011.
    (b) Organization. The Office of Hearings and Appeals consists of 
two divisions: the Office of Administrative Law Judges and the Office 
of Appeals. Its administrative activities are supervised by the 
Director of the Office of Hearings and Appeals.
    (c) Officer qualifications. The Director, Administrative Judges, 
and Administrative Law Judges of the Office of Hearings and Appeals 
shall be attorneys at law duly licensed by any state, commonwealth, 
territory, or the District of Columbia.


Sec.  20.5  Jurisdiction of Office of Appeals.

    The Office of Appeals shall, consistent with statute and 
regulation, have jurisdiction over matters assigned to it by the 
Secretary or designee. Determinations shall have the finality provided 
by the applicable statute, regulation, or agreement.

PART 24--GOVERNMENT DEBARMENT AND SUSPENSION (NONPROCUREMENT)

0
12. The authority citation for part 24 continues to read as follows:

    Authority: 41 U.S.C. 701 et seq.; 42 U.S.C. 3535(d); Sec. 2455, 
Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); E.O. 12549 (3 
CFR, 1986 Comp., p. 189); E.O. 12689 (3 CFR, 1989 Comp., p. 235).


Sec.  24.947  [Amended]

0
13. In 24 CFR 24.947, remove the words ``Board of Contract Appeals'' 
and add, in their place, the words ``Office of Appeals''.

PART 25--MORTGAGEE REVIEW BOARD

0
14. The authority citation for 24 CFR part 25 continues to read as 
follows:

    Authority: 12 U.S.C. 1708(c), 1708(d), 1709(s), 1715b, and 
1735f-14; 42 U.S.C. 3535(d).


0
15. In Sec.  25.3, revise the definition of Hearing officer to read as 
follows:


Sec.  25.3  Definitions.

* * * * *
    Hearing officer. An Administrative Law Judge authorized by the 
Secretary, or by the Secretary's designee, to issue findings of fact or 
other appropriate findings under Sec.  25.8(d)(2).
* * * * *

PART 26--HEARING PROCEDURES

0
16. The authority citation for part 26 continues to read as follows:

    Authority: 42 U.S.C. 3535(d).


Sec.  26.2  [Amended]

0
17. In 24 CFR 26.2(a), remove the words ``Board of Contract Appeals'' 
and add, in their place, the words ``Office of Appeals''.


0
18. In Sec.  26.28, revise the definition of Chief Docket Clerk to read 
as follows:


Sec.  26.28  Definitions.

* * * * *
    Chief Docket Clerk means the Chief Docket Clerk of the Office of 
Administrative Law Judges at the following address: 1707 H Street, NW., 
Eleventh Floor, Washington, DC 20006.
* * * * *

PART 180--CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS 
MATTERS

0
19. The authority citation for part 180 continues to read as follows:

    Authority: 29 U.S.C. 794; 42 U.S.C. 2000d-1 3535(d), 3601-3619; 
5301-5320, and 6103.

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0
20. In Sec.  180.100(c), revise the definition of Chief Docket Clerk to 
read as follows:


Sec.  180.100  Definitions.

* * * * *
    (c) * * *
    Chief Docket Clerk is the docket clerk for HUD's Office of 
Administrative Law Judges, 1707 H Street, NW., Eleventh Floor, 
Washington, DC 20006. The telephone number is (202) 254-0000 and the 
facsimile number is (202) 254-0011.
* * * * *

    Dated: August 13, 2007.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E7-18522 Filed 9-19-07; 8:45 am]
BILLING CODE 4210-67-P