Rule2022-03007
HUD Office of Hearings and Appeals
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 14, 2022
Effective
March 16, 2022
Issuing agencies
Housing and Urban Development Department
Abstract
This final rule amends HUD's regulations regarding HUD's Office of Hearings and Appeals (OHA). This rule makes conforming changes to HUD regulations to reflect the office's proper title, to remove references to the terminated HUD Board of Contract Appeals, and to add a reference to recent Supreme Court precedent regarding the proper appointment procedure for administrative law judges and administrative judges.
Full Text
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<title>Federal Register, Volume 87 Issue 30 (Monday, February 14, 2022)</title>
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[Federal Register Volume 87, Number 30 (Monday, February 14, 2022)]
[Rules and Regulations]
[Pages 8194-8197]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03007]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570
[Docket No. FR-6285-F-01]
HUD Office of Hearings and Appeals
AGENCY: Office of Hearings and Appeals, HUD.
ACTION: Final rule.
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SUMMARY: This final rule amends HUD's regulations regarding HUD's
Office of Hearings and Appeals (OHA). This rule makes conforming
changes to HUD regulations to reflect the office's proper title, to
remove references to the terminated HUD Board of Contract Appeals, and
to add a reference to recent Supreme Court precedent regarding the
proper appointment procedure for administrative law judges and
administrative judges.
DATES: Effective March 16, 2022.
FOR FURTHER INFORMATION CONTACT: J. Jeremiah Mahoney, Chief
Administrative Law Judge, Office of Hearings and Appeals, Department of
Housing and Urban Development, 451 7th Street SW, Room B-133,
Washington, DC 20410, 202-254-0000 (not a toll-free number). Hearing-
or speech-impaired individuals may access this number via TTY by
calling the Federal Relay Service at 800-877-8339 (toll-free number).
SUPPLEMENTARY INFORMATION:
I. Background
The HUD Office of Hearings and Appeals (OHA) is an independent
judicial office within HUD's Office of the Secretary. The OHA is headed
by the Chief Administrative Law Judge, who supervises the judges and
the professional and administrative support staffs.
Each Administrative Judge and each Administrative Law Judge is
appointed by the HUD Secretary as an Officer of the United States. The
Judges also may be appointed through contracts with other U.S.
Department heads and Federal Agency heads to conduct hearings and issue
decisions on matters before their respective agencies.
The OHA Judges function as independent and impartial triers of fact
responsible for presiding over adversarial hearings, and adjudicating
appeals, based upon alleged violations of Federal statutes or their
implementing regulations.
Hearing procedures are established by agency regulations and are
guided by the rules applicable to trials in a U.S. district court. In
each case, the judge makes an impartial decision based upon the law,
and the facts established by the evidence.
II. This Final Rule
This final rule updates HUD's regulations in 24 CFR parts 14, 17,
20, 26, 28, 30, 81, 103, 180, and 570, to reflect that the office's
title is ``Office of Hearings and Appeals,'' as changed by the HUD
Secretary. These HUD regulations contain outdated references to the
``Office of Administrative Law Judges,'' ``Office of Appeals,'' and
``Board of Contract Appeals.'' This final rule updates HUD regulations
throughout Title 24 to reflect these changes. While this final rule
updates those sections of Title 24 that use outdated language that also
implicate the hearing procedures at 24 CFR part 180, there are other
sections of Title 24 that rely on the hearing procedures at 24 CFR part
180, which do not require the conforming amendments made by this final
rule, including 24 CFR parts 1, 3, 6, 8, and 146. These sections of
Title 24 implement federal civil rights statutes, which continue to
rely on 24 CFR part 180 for administrative enforcement procedures.
[[Page 8195]]
OHA was formed at the end of 2007 after the HUD Board of Contract
Appeals, along with other agencies' boards of contract appeals, was
consolidated into the Civilian Board of Contract Appeals. The Civilian
Board of Contract Appeals is an independent tribunal housed within the
U.S. General Services Administration, pursuant to section 847 of the
National Defense Authorization Act for Fiscal Year 2006 (Pub. L. 109-
163, approved January 6, 2006). OHA was established to merge the non-
procurement contract dispute functions previously performed by the HUD
Board of Contract Appeals with the HUD Office of Administrative Law
Judges. OHA remained as an independent office within the Office of the
Secretary. This final rule will not change any existing OHA functions,
but will avoid internal or external confusion as to its name,
composition, location, and contact information. This final rule also
removes an obsolete reference to a ``hearing examiner'' in 24 CFR
14.50, because this is a former title for Administrative Law Judges
that is no longer used in the Federal Government.
This final rule also adds language to HUD's regulations in 24 CFR
20.1 to explain that Administrative Law Judges are appointed by the HUD
Secretary as Officers of the United States, pursuant to the
Appointments Clause of the United States Constitution. The HUD
Administrative Law Judges have also been appointed by other U.S.
Department heads and Federal Agency heads to conduct hearings and issue
decisions on matters before their respective agencies. The requirement
of U.S. Department and Federal Agency heads to appoint Administrative
Law Judges was recently recognized by the Supreme Court in Lucia v.
SEC, 585 U.S. __ (2018). HUD is adding this language to its regulations
in response to this.
Finally, this final rule clarifies the required qualifications for
both Administrative Judges and Administrative Law Judges at 24 CFR
20.3(d) in accordance with the Office of Personnel Management's
requirements and regulations at 5 CFR part 930. All of HUD's
Administrative Judges and Administrative Law Judges are currently
actively licensed attorneys at law.
III. Justification for Final Rulemaking
Generally, HUD publishes a rule for public comment before
publishing a rule for effect, in accordance with HUD's regulations on
rulemaking at 24 CFR part 10. However, Sec. 10.1 allows for omission
of notice and public comment in cases of statements of policy,
interpretive rules, rules governing HUD's organization or internal
practices, if the Department determines in a particular case or class
of cases that notice and public procedure are impracticable,
unnecessary, or contrary to the public interest. In this case, HUD has
determined that prior public comment is unnecessary because this rule
is exclusively concerned with fixing outdated references concerning
OHA. Specifically, the regulatory amendments made by the final rule are
technical and non-substantive in nature, since they are limited to
updating the terminology used in HUD's regulations governing
administrative hearings and appeals and adding language in accordance
with Supreme Court precedent.
IV. Findings and Certifications
Executive Orders 12866 and 13563, Regulatory Planning and Review
Under Executive Order 12866 (Regulatory Planning and Review) (58 FR
51735), a determination must be made whether a regulatory action is
significant and, therefore, subject to review by the Office of
Management and Budget (OMB) in accordance with the requirements of the
order.
Executive Order 13563 (Improving Regulations and Regulatory Review)
(76 FR 3821) directs executive agencies to analyze regulations that are
``outmoded, ineffective, insufficient, or excessively burdensome, and
to modify, streamline, expand, or repeal them in accordance with what
has been learned.'' Executive Order 13563 also directs that, where
relevant, feasible, and consistent with regulatory objectives, and to
the extent permitted by law, agencies are to identify and consider
regulatory approaches that reduce burdens and maintain flexibility and
freedom of choice for the public. As discussed above in this preamble,
this final rule updates outdated terminology and its changes are
technical and non-substantive in nature. HUD determined that this rule
was not significant under Executive Order 12866 and Executive Order
13563.
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') (64 FR 43255)
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 rule
will not have federalism implications and would not impose substantial
direct compliance costs on State and local governments or preempt State
law within the meaning of the Executive order.
Environmental Review
This final 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, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this
final rule is categorically excluded from environmental review under
the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
Regulatory Flexibility Act
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. Because HUD
determined that good cause exists to issue this rule without prior
public comment, this rule is not subject to the requirement to publish
an initial or final regulatory flexibility analysis under the RFA as
part of such action.
Unfunded Mandates Reform
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) \1\
requires that an agency prepare a budgetary impact statement before
promulgating a rule that includes a Federal mandate that may result in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year. If a budgetary impact statement is required, section 205 of UMRA
also requires an agency to identify and consider a reasonable number of
regulatory alternatives before promulgating a rule.\2\ However, the
UMRA applies only to rules for which an agency publishes a general
notice of proposed rulemaking. As discussed above, HUD has determined,
for good cause, that prior notice and public comment is not required on
this rule and, therefore, the UMRA does not apply to this final rule.
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\1\ 2 U.S.C. 1532.
\2\ 2 U.S.C. 1535.
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[[Page 8196]]
List of Subjects
24 CFR Part 14
Claims, Equal access to justice, Lawyers, 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 26
Administrative practice and procedure.
24 CFR Part 28
Administrative practice and procedure, Claims, Fraud, Penalties.
24 CFR Part 30
Administrative practice and procedure, Grant programs--housing and
community development, Loan programs--housing and community
development, Mortgage insurance, Penalties.
24 CFR Part 81
Accounting, Federal Reserve System, Mortgages, Reporting and
recordkeeping requirements, Securities.
24 CFR Part 103
Administrative practice and procedure, Aged, Fair housing,
Individuals with disabilities, Intergovernmental relations,
Investigations, Mortgages, Penalties, Reporting and recordkeeping
requirements.
24 CFR Part 180
Administrative practice and procedure, Aged, Civil rights, Fair
housing, Individuals with disabilities, Investigations, Mortgages,
Penalties, Reporting and recordkeeping requirements.
24 CFR Part 570
Administrative practice and procedure, American Samoa, Community
development block grants, Grant programs--education, Grant programs--
housing and community development, Guam, Indians, Loan programs--
housing and community development, Low and moderate income housing,
Northern Mariana Islands, Pacific Islands Trust Territory, Puerto Rico,
Reporting and recordkeeping requirements, Student aid, Virgin Islands.
Accordingly, for the reasons described in the preamble, HUD amends
24 CFR parts 14, 17, 20, 26, 28, 30, 81, 103, 180, and 570 to read as
follows:
PART 14--IMPLEMENTATION OF THE EQUAL ACCESS TO JUSTICE ACT IN
ADMINISTRATIVE PROCEEDINGS
0
1. The authority citation for part 14 continues to read as follows:
Authority: 5 U.S.C. 504(c)(1); 42 U.S.C. 3535(d).
0
2. In Sec. 14.50, revise the definition of ``Adjudicative officer'' to
read as follows:
Sec. 14.50 Definitions.
* * * * *
Adjudicative officer. The Administrative Law Judge, Administrative
Judge of the HUD Office of Hearings and Appeals, or other officer
designated by the Secretary, who presided at the adversary
adjudication.
* * * * *
PART 17--ADMINISTRATIVE CLAIMS
0
3. The authority citation for part 17 continues to read as follows:
Authority: 28 U.S.C. 2672; 31 U.S.C. 3711, 3716-18, 3721, and 5
U.S.C. 5514; 42 U.S.C. 3535(d).
PART 17--[Amended]
0
4. In part 17:
0
a. Remove ``Office of Appeals'' and add in its place ``Office of
Hearings and Appeals'' wherever it appears; and
0
b. Remove ``OA'' and add in its place ``OHA'' wherever it appears.
0
5. In Sec. 17.63, remove the definition of ``Office of Appeals or OA''
and add a definition for ``Office of Hearings and Appeals'' in
alphabetical order.
The addition reads as follows:
Sec. 17.63 Definitions.
* * * * *
Office of Hearings and Appeals or OHA means the HUD Office of
Hearings and Appeals.
* * * * *
PART 20--OFFICE OF HEARINGS AND APPEALS
0
6. The authority citation for part 20 continues to read as follows:
Authority: 42 U.S.C. 3535(d).
0
7. Revise Sec. 20.1 to read as follows:
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. The Administrative Law Judges and the
Administrative Judges within the Office of Hearings and Appeals are
appointed by the Secretary of the Department pursuant to the
Appointments Clause of the United States Constitution.
0
8. In Sec. 20.3, revise paragraphs (c) and (d) to read as follows:
Sec. 20.3 Location, organization, and officer qualifications.
* * * * *
(c) Organization. The Office of Hearings and Appeals is supervised
by the Chief Administrative Law Judge and a Deputy Chief Administrative
Law Judge.
(d) Officer qualifications. (1) The Administrative Judges of the
Office of Hearings and Appeals shall be attorneys at law actively
licensed by any state, commonwealth, territory, or the District of
Columbia.
(2) The Administrative Law Judges of the Office of Hearings and
Appeals shall be qualified in accordance with the Office of Personnel
Management regulations at 5 CFR part 930.
0
9. In Sec. 20.5, revise the section heading and in the first sentence
remove ``Office of Appeals'' and add in its place ``Office of Hearings
and Appeals''.
The revision reads as follows:
Sec. 20.5 Jurisdiction of Office of Hearings and Appeals.
* * * * *
PART 26--HEARING PROCEDURES
0
10. The authority citation for part 26 continues to read as follows:
Authority: 42 U.S.C. 3535(d).
Sec. 26.2 [Amended]
0
11. In Sec. 26.2, in paragraph (a), remove the words ``Office of
Appeals''.
Sec. 26.9 [Amended]
0
12. In Sec. 26.9, in paragraph (a)(1), remove ``Office of Appeals''
and add in its place ``Office of Hearings and Appeals''.
Sec. 26.29 [Amended]
0
13. In Sec. 26.29, in the definition of ``Docket Clerk'', remove
``Office of Administrative Law Judges'' and add in its place ``Office
of Hearings and Appeals''.
PART 28--IMPLEMENTATION OF THE PROGRAM FRAUD CIVIL REMEDIES ACT OF
1986
0
14. The authority citation for part 28 continues to read as follows:
Authority: 28 U.S.C. 2461 note; 31 U.S.C. 3801-3812; 42 U.S.C.
3535(d).
[[Page 8197]]
Sec. 28.25 [Amended]
0
15. In Sec. 28.25, in paragraph (a), remove ``Office of Administrative
Law Judges'' and add in its place ``Office of Hearings and Appeals''.
PART 30--CIVIL MONEY PENALTIES: CERTAIN PROHIBITED CONDUCT
0
16. The authority citation for part 30 continues to read as follows:
Authority: 12 U.S.C. 1701q-1, 1703, 1723i, 1735f-14, and 1735f-
15; 15 U.S.C. 1717a; 28 U.S.C. 1 note and 2461 note; 42 U.S.C.
1437z-1 and 3535(d).
0
17. In part 30, remove ``Office of Administrative Law Judges'' and add
in its place ``Office of Hearings and Appeals'' wherever it appears.
PART 81--THE SECRETARY OF HUD'S REGULATION OF THE FEDERAL NATIONAL
MORTGAGE ASSOCIATION (FANNIE MAE) AND THE FEDERAL HOME LOAN
MORTGAGE CORPORATION (FREDDIE MAC)
0
18. The authority citation for part 81 continues to read as follows:
Authority: 12 U.S.C. 1451 et seq., 1716-1723h, and 4501-4641;
28 U.S.C. 2461 note; 42 U.S.C. 3535(d) and 3601-3619.
0
19. In part 81, remove ``Office of Administrative Law Judges'' and add
in its place ``Office of Hearings and Appeals'' wherever it appears.
PART 103--FAIR HOUSING--COMPLAINT PROCESSING
0
20. The authority citation for part 103 continues to read as follows:
Authority: 42 U.S.C. 3535(d), 3600-3619.
PART 103--[Amended]
0
21. In part 103, remove ``Office of Administrative Law Judges'' and add
in its place ``Office of Hearings and Appeals'' wherever it appears.
PART 180--CONSOLIDATED HUD HEARING PROCEDURES FOR CIVIL RIGHTS
MATTERS
0
22. The authority citation for part 180 continues to read as follows:
Authority: 28 U.S.C. 1 note; 29 U.S.C. 794; 42 U.S.C. 2000d-1,
3535(d), 3601-3619, 5301-5320, and 6103.
0
23. In part 180:
0
a. Remove ``Director of the Office of Hearings and Appeals'' and add in
its place ``Chief Administrative Law Judge'' wherever it appears; and
0
b. Remove ``Office of ALJs'' and add in its place ``Office of Hearings
and Appeals'' wherever it appears.
PART 570--COMMUNITY DEVELOPMENT BLOCK GRANTS
0
24. The authority citation for part 570 continues to read as follows:
Authority: 12 U.S.C. 1701x, 1701 x-1; 42 U.S.C. 3535(d) and
5301-5320.
Sec. 570.496 [Amended]
0
25. In Sec. 570.496, in paragraph (d)(1)(iii), remove ``Office of
Administrative Law Judges'' and add in its place ``Office of Hearings
and Appeals'' wherever it appears.
Dated: February 8th, 2022.
Marcia L. Fudge,
Secretary.
[FR Doc. 2022-03007 Filed 2-11-22; 8:45 am]
BILLING CODE 4210-67-P
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</html>Indexed from Federal Register on February 14, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.