PART 41-POLICIES AND PROCEDURES FOR THE ENFORCEMENT OF STANDARDS AND REQUIREMENTS FOR ACCESSIBILITY BY THE PHYSICALLY HANDICAPPED

Sec.

41.1 Applicability. 41.2 Definitions.

41.3 Assurance and declaration required. 41.4 Waiver or modification of standards. 41.5 Achieving compliance.

41.6 Matters involving the Architectural and Transportation Barriers Compliance Board.

AUTHORITY: Architectural Barriers Act of 1968, as amended by Pub. L. 90-480, 42 U.S.C. 4151 et seq.

SOURCE: 44 FR 62806, Oct. 31, 1979, unless otherwise noted.

§ 41.1 Applicability.

This part sets forth policies and procedures for the enforcement of standards and requirements for accessibility by the physically handicapped imposed:

(a) For nonresidential buildings or facilities by regulations issued by the General Services Administration at subchapter D of the Federal Property Management Regulations, subpart for the

101-19.6-Accommodations Physically Handicapped, or

(b) By regulation or contract under any other program of the Department, except a program subject only to standards or requirements at 24 CFR part 8 imposed pursuant to section 504 of the Rehabilitation Act of 1973.

The policies and procedures of this part shall apply after the effective date of these regulations to all complaints received, and/or findings of noncompliance made, regarding buildings or facilities subject to such regulatory or contractural requirements.

§ 41.2 Definitions.

As used in this part, the term Secretary means the Secretary of Housing and Urban Development, or to the extent of any delegation of authority by the Secretary to act under this part, any other Department Official to whom authority has been delegated.

§ 41.3 Assurance and declaration required.

(a) Each Assistant Secretary shall, as a condition for approval of any contract or application for assistance under a program imposing standards and/or requirements for accessibility which are subject to this part, require an assurance of compliance with those standards and requirements. Such assurance shall be in a form acceptable to the Secretary.

(b) For each project covered under this part, except a project subject to Departmental examinations and inspections as set forth in § 41.5(a), the responsible Assistant Secretary shall require a declaration as to project drawings, specifications, and other construction documents. The declaration shall be signed by the licensed, or registered, architect or engineer, or by such other responsible official as designated by HUD, who has prepared such construction documents. The declaration shall affirm that the proposed project, to the best knowledge and belief of the declarer, conforms to applicable accessibility design standards and requirements. The declaration statement shall be in a form acceptable to the Secretary.

§ 41.4 Waiver or modification of standards.

(a) The applicability of standards and requirements for accessibility by the physically handicapped may be waived or modified on a case-by-case basis upon a written request from a recipient of a Departmental grant or loan or from a Departmental agency leasing a building or facility.

(b) For residential buildings or facilities, a waiver or modification may be granted only by the Secretary.

(c) Upon the recommendation of an Assistant Secretary, a waiver or modification for nonresidential buildings or facilities may be granted only by the Administrator, General Services Administration.

(d) No request for a waiver or modification shall be recommended for approval by an Assistant Secretary or approved by the Secretary unless the following criteria obtain:

(1) The granting of the waiver or modification is based upon findings of

fact, and is not inconsistent with the provisions of the Architectural Barriers Act, and

(2) Application of the requirement or standard would adversely affect the purposes of the Departmental program under which the loan or grant is being provided or for which the building or facility is being leased.

(e) Requests for a waiver or modification shall be submitted to the appropriate Assistant Secretary for review. Each request shall include:

(1) The name and address of the requestor.

(2) The name and location of the involved building or facility.

(3) Any applicable plans, drawings, specifications or other descriptions of the building or facility.

(4) The standard provision or requirement from which the requestor seeks a waiver or modification.

(5) A description of the building or facility as to its accessibility for the physically handicapped and how the waiving or modification of a standard or requirement would affect that accessibility.

(6) A statement of the facts which establish that the criteria of paragraph (d) of this section would be satisfied.

(7) A description of the steps taken, or to be taken, to comply with standards and requirements for which a waiver or modification is not being requested.

(8) Such other information as the requestor or the responsible Assistant Secretary deems appropriate or necessary.

(f) If the responsible Assistant Secretary finds that the criteria of paragraph (d) of this section are satisfied, then he or she shall submit the request along with his or her recommendations to the Secretary for action or for referral to the Administrator, General Services Administration for action. In reviewing request for waiver and modifications, the Secretary shall assure consistent Department policy regarding the removal of architectural barriers and accessibility by physically handicapped persons.

(g) All waivers and modifications granted pursuant to this part shall have only future effect on; and are

limited to cases for which the request is made.

§ 41.5 Achieving compliance.

(a) Examinations and inspections. If, for any project, an Assistant Secretary requires Departmental architectural and engineering examinations of drawings and specifications or other construction documents or requires Departmental architectural and engineering inspections during or upon completion of construction, those examinations and inspections shall include a determination of compliance with standards and requirements for accessibility referenced in this part.

(b) Periodic compliance reviews. The Secretary, in consultation with the appropriate Assistant Secretary, shall conduct surveys and investigations as deemed appropriate to achieve compliance with standards or requirements subject to this part.

(c) Complaints. Any interested person who has reason to believe that there has been noncompliance with standards or requirements subject to this part, may, by himself or herself, or by a representative, file a written complaint with the responsible Department Official or with the Architectural and Transportation Barriers Compliance Board, Washington, DC 20201.

(d) Investigations. The Secretary shall, after consultation with the appropriate Assistant Secretary, make a prompt investigation whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with standards or requirements subject to this part. The investigation should include a determination of the authority under which the standards or requirements were imposed and, where appropriate, a review of the records kept pursuant to 24 CFR 40.6; the circumstances under which the building of facility was designed, constructed or altered; and other factors relevant to a determination as to whether there has been noncompliance with this part.

(e) Resolution of matters. (1) If any examination, inspection, periodic compliance review, complaint, or investigation pursuant to this section indicates

a failure to comply with the applicable standards or requirements, the Secretary shall attempt to gain voluntary compliance whenever possible.

(2) If it has been determined that voluntary compliance cannot be achieved, the Secretary shall refer the matter to the appropriate Assistant Secretary for action pursuant to his or her program authority regarding the residential structure or other building or facility under investigation, to achieve compliance with the requirements subject to this part. The Assistant Secretary shall report to the Secretary within 30 days of the date of such referral regarding the action taken and the schedule and means of achieving compliance, except that the Secretary may specify a shorter or longer reporting period, as deeded appropriate.

(f) Disposition of unresolved complaints. Unresolved complaints shall be referred to the Architectural and Transportation Barriers Compliance Board to be processed in accordance with 36 CFR part 1150. A complaint shall be deemed unresolved if it is not resolved within 90 days of the date of the filing of the complaint with the Department.

(g) Compliance action by other individuals. Individuals other than the Secretary may receive complaints and undertake other appropriate actions to achieve compliance with requirements subject to this part, so long as initial notification of such complaints or proposed actions is given both to the Secretary and the appropriate Assistant Secretary.

§ 41.6 Matters involving the Architectural and Transportation Barriers Compliance Board.

(a) Complaints. With respect to any complaint referred to the responsible Department Official by the Architectural and Transportation Barriers Compliance Board (A&TBCB), the procedures set forth in this part shall apply. In such a case, the Secretary shall coordinate all investigations and/or other compliance actions to assure that the Department resolves any architectural barriers deficiencies so as to respond to the A&TBCB within its required 60-day period set

forth at 36 CFR 1150.41 for the informal resolution of complaints.

(b) Citations. The Office of General Counsel shall, with the assistance of the appropriate Assistant Secretary, respond to any citation issued by the A&TBCB to the Department alleging noncompliance with the standards issued pursuant to the Architectural Barriers Act of 1968, as amended. The applicable procedures regarding such a citation are set forth at 36 CFR part 1150.

PART 42-UNIFORM RELOCATION ASSISTANCE AND REAL PROPERTY ACQUISITION FOR FEDERAL AND FEDERALLY ASSISTED PROGRAMS

AUTHORITY: Sec. 213, Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Pub. L. 91-646, 84 Stat. 1894 (42 U.S.C. 4601) as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987, title IV of Pub. L. 100-17, 101 Stat. 246–256 (42 U.S.C. 4601 note); sec. 7(d), Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).

SOURCE: 53 4965, Feb. 19, 1988, unless otherwise noted.

§ 42.1 Uniform relocation and real property acquisition.

Regulations and procedures applicable to all HUD-assisted programs subject to the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Pub. L. 91-646, 84 Stat. 1894, 42 U.S.C. 4601), as amended by the Surface Transportation and Uniform Relocation Assistance Act of 1987 (title IV of Pub. L. 100-17, 101 Stat. 246-255, 42 U.S.C. 4601 note) are set forth in 49 CFR part 24. These regulations and procedures are effective as of April 2, 1989.

PART 43-[RESERVED]

PART 44-NON-FEDERAL AUDIT REQUIREMENTS FOR STATE AND LOCAL GOVERNMENT

Sec.

44.1 Purpose.

44.2 Definitions. 44.3 Scope of audit.

(a) This part implements the general audit requirements for recipient organizations in OMB Circular A-128 "Audits of State and local governments." The OMB Circular was issued under the Single Audit Act of 1984, 31 U.S.C. 7501-7507. OMB Circular A-128 supersedes Attachment P, "Audit requirements," of Circular A-102, “Uniform requirements for grants to State and local governments."

(1) This part repeats all substantive audit requirements in OMB Circular A-128. If any of the substantive audit requirements in OMB Circular A-128 are revised in the future, HUD shall promulgate regulations to conform this part to those revisions.

(2) The difference between the language of this part and of OMB Circular A-128 generally reflects only the substitution of certain terms and phrases reflecting the implementation of the Circular into the codification for HUD regulations. For example, in certain sections of this part, references to Federal agencies in the Circular have been changed to HUD and references to this Circular are replaced with OMB Circular A-128.

(b) The Single Audit Act requires State or local governments that receive $100,000 or more a year in Feder

al funds to have an audit made for that year. Section 7505 of the Act requires the Director of the Office of Management and Budget (OMB) to prescribe policies, procedures and guidelines to implement the Act. It specifies that OMB shall designate cognizant Federal agencies, determine criteria for making appropriate charges to Federal programs for the cost of audits, and provide procedures to assure that small firms or firms owned and controlled by disadvantage individuals have the opportunity to participate in contracts for single audits.

(c) Concerning the applicability of the audit requirements of the Single Audit Act, the Act requires:

(1) State or local governments that receive $100,000 or more a year in Federal financial assistance shall have an audit conducted in accordance with the Act's requirements;

(2) State or local governments that receive between $25,000 and $100,000 a year shall have an audit conducted in accordance with the Act's requirements (Government-, Department-, agency- or establishment-wide audit), or a grant-specific financial audit. Such financial audits shall be performed in accordance with the Government Auditing Standards for financial audits issued by the Comptroller General of the United States and include the compliance tests described in OMB's Compliance Supplement for Single Audits of State and Local Governments for the specific Federal assistance programs involved. For those programs not covered by the Compliance Supplement, the financial audit shall include any specific compliance tests required by HUD. If the Federal assistance program is not covered by the Compliance Supplement and if no compliance requirements have been established by HUD, the auditor shall design appropriate compliance tests in accordance with government auditing standards. Audits shall be conducted with the frequency described at § 44.4.

(3) State or local governments that receive less than $25,000 a year shall be exempt from compliance with the Act and other Federal audit requirements. These State and local governments shall comply with audit require

ments prescribed by State or local law or regulation.

(d) The Act does not exempt State or local governments from maintaining records of Federal financial assistance or from providing access to such records to Federal agencies, as provided in Federal law or in 24 CFR part 85. (e) The Act is applicable to State and local governments with respect to any fiscal year that begins after December 31, 1984.

[51 FR 39086, Sept. 27, 1986 and 51 FR 30480, Aug. 27, 1986, as amended at 53 FR 8056, Mar. 11, 1988; 55 FR 8463, Mar. 8, 1990]

§ 44.2 Definitions.

Cognizant agency means the Federal agency assigned by OMB to carry out the responsibilities described in this part, which incorporates OMB Circular A-128.

Federal financial assistance means assistance provided by a Federal agency in the form of grants, contracts, cooperative agreements, loans, loan guarantees, property, interest subsidies, insurance, or direct appropriations, but does not include direct Federal cash assistance to individuals. It includes awards received directly from Federal agencies, or indirectly through other units of State and local governments.

Federal agency has the same meaning as the term agency in section 551(1) of title 5 U.S.C.

Generally accepted accounting principles has the meaning specified in the generally accepted government auditing standards.

Generally accepted government auditing standards means the Standards For Audit of Government Organizations, Programs, Activities, and Functions, developed by the Comptroller General, dated February 27, 1981.

HUD means the Department of Housing and Urban Development.

Independent auditor means:

(1) A State or local government auditor who meets the independence standards specified in generally accepted government auditing standards;

or

(2) A public accountant who meets such independence standards.

Indian tribe means any Indian tribe, band, nation, or other organized group or community, including any Alaskan Native village or regional or village corporation (as defined in, or established under, the Alaskan Native Claims Settlement Act) that is recognized by the United States as eligible for the special programs and services provided by the United States to Indians because of their status as Indians. Internal controls means the plan of organization and methods and procedures adopted by management to ensure that:

(1) Resource use is consistent with laws, regulations, and policies;

(2) Resources are safeguarded against waste, loss, and misuse; and

(3) Reliable data are obtained, maintained, and fairly disclosed in reports.

Local government means any unit of local government within a State, including a county, a borough, municipality, city, town, township, parish, local public authority, special district, school district, intrastate district, council of governments, and any other instrumentality of local government.

Major Federal Assistance Program is defined in the Appendix to this part.

Public accountants means those individuals who meet the qualification standards included in generally accepted government auditing standards for personnel performing government audits.

State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust Territory of the Pacific Islands, any instrumentality thereof, and any multi-State, regional, or interstate entity that has governmental functions and any Indian tribe.

Subrecipient means any person or government department, agency, or establishment that receives Federal financial assistance through a State or local government, but does not include an individual that is a beneficiary of such assistance. A subrecipient may also be a direct recipient of Federal financial assistance.