24 CFR 92.652 III. Planning Grants
24 CFR 92.652 Section 301. Planning grants.
(a) General authority. HUD will make HOPE 1 planning grants to
applicants for the purpose of developing homeownership programs under
this notice. HUD shall select applications based on a national
competition. HUD will assure compliance with the requirement for
national geographic diversity by selecting at least two mini and two
full planning grants in each of the 10 HUD Regions, to the extent
sufficient funds are available. Where both an RMC and an RC submit
applications for the same eligible property, HUD shall consider only the
application from the RMC.
(b) Planning grants. (1) Applicants may request a full planning
grant covering all necessary planning activities specified in section
305 or a mini planning grant. Mini planning grants, generally for
establishing or increasing the capacity of the applicant to apply for
and carry out a specific homeownership program, may cover some or all of
the activities specified in sections 305 (a), (b), (c), and (f). An
applicant may request a mini planning grant and, pursuant to a
subsequent NOFA, a full planning grant, but in no case may a full
planning grant duplicate previously funded activities.
(2) The amount of a planning grant (or the total amount of a mini
planning grant and a full planning grant) under this section may not
exceed $200,000, except that the Secretary may for good cause approve a
grant in a higher amount, based on a justification submitted by the
applicant demonstrating that the costs are reasonable. The maximum
amount for a mini planning grant shall be $100,000, except that HUD may
for good cause approve a grant in a higher amount, based on a
justification submitted by the applicant demonstrating that the costs
are reasonable. Where the proposed program provides for homeownership
opportunities using more than 250 units, no additional demonstration of
good cause for approving a planning grant of more than $200,000 (or of
more than $100,000 in the case of mini planning grants) is required if
the additional amount requested is not more than $800 for each unit over
250 for a planning grant (or not more than $400 for each unit over 250
for a mini planning grant).
(3) Activities funded under a mini planning grant shall be carried
out within 18 months of the effective date of the mini planning grant
agreement. Full planning grants shall be carried out within three years
of the effective date of the full planning grant agreement (or within 18
months of such effective date if HUD has previously approved a mini
planning grant for the proposed program).
(c) Set-aside. HUD shall allocate up to 15 percent of the total
amount appropriated for grants under the HOPE 1 program for planning
grants, but not less than $10 million. Of the amount set aside for
planning grants, 25 percent shall be set aside for mini planning grants.
24 CFR 92.652 Section 305. Eligible planning grant activities.
Planning grants may be used for the reasonable costs of eligible
activities necessary to develop homeownership programs. Only costs
incurred on or after the effective date of the grant agreement qualify
for funding under the program. Eligible planning grant activities
include --
(a) Development of RMCs and RCs. Development of RMCs and RCs in
connection with a specific homeownership program, including activities
such as --
(1) Consulting and legal assistance to incorporate the entity;
(2) Preparing by-laws and drafting a corporate charter;
(3) Designing and implementing personnel policies; performance
standards for measuring staff productivity; policies and procedures
covering organizational structure, recordkeeping, maintenance,
insurance, occupancy, and management information systems; and any other
recognized functional responsibilities relating to property management;
(4) Designing and implementing financial management systems that
include provisions for budgeting, accounting, and auditing; and
(5) Administrative costs necessary to the implementation of the
activities specified in paragraphs (a)(1)-(4) of this section.
Funding for this activity may not be provided for an RMC or RC that
has received funding under section 20(f) of the 1937 Act, unless the
applicant submits work plans used in connection with previous grants
demonstrating to HUD's satisfaction that the planning grant will not be
duplicative.
(b) Training and technical assistance. Training and technical
assistance for applicants related to development of a specific
homeownership program. This category may cover such activities as
establishing community organization, outreach, and support systems;
legal requirements for establishing cooperative, condominium, and other
homeownership entities; and the role of the board of directors in an
RMC.
(c) Feasibility studies. Studies of the feasibility of a specific
homeownership program, including whether the program can be designed to
meet the affordability standards under the notice and achieve financial
feasibility.
(d) Preliminary architectural and engineering work. Preliminary
architectural and engineering work, including work necessary to support
cost estimates included in an implementation grant application.
(e) Counseling and training. Resident and homebuyer counseling and
training. This category may cover such activities as the various ways
to become a homeowner (such as cooperative and fee simple ownership) and
financing alternatives.
(f) Economic development. (1) Planning for economic development, job
training, and self-sufficiency activities that promote economic
self-sufficiency of eligible families who will become homeowners under
the homeownership program.
(2) The application shall demonstrate that the proposed activities
are directly related to implementation of the proposed homeownership
program, and describe how these activities promote self-sufficiency.
(3) The aggregate amount of planning and implementation grants that
may be used for economic development activities may not exceed $250,000
for any single homeownership program.
(g) Security plans. Development of security plans. This activity
may cover assessing the need for the hiring of security personnel and
creating tenant patrols, for negotiating agreements with local law
enforcement agencies, and for providing security systems.
(h) Application for implementation grant. Preparation of an
application for an implementation grant under this notice.
(i) Other activities. Other activities proposed and justified as
necessary for the development of a homeownership program by the
applicant and approved by HUD.
24 CFR 92.652 Section 310. Applications for planning grants.
(a) NOFA. An application for a planning grant shall be submitted by
an applicant in accordance with this notice and the NOFA. The NOFA
advises potential applicants how to obtain an application package and
establishes deadlines and other requirements for submission of
applications. The NOFA also informs each applicant that it may request
information and guidance from HUD about program requirements and
preparation of the application.
(b) Application contents. Each application shall contain the
information required by the application package, which shall include at
least the following items.
(1) Request for planning grant. (i)(A) The application shall contain
a summary description of the proposed homeownership program and a
request for a planning grant (specifying whether the application is for
a mini planning grant or a full planning grant), (B) the schedule for
completing the activities, (C) the personnel necessary to complete the
activities, and (D) the amount of the grant requested (including
justification for a grant request exceeding $200,000 if the development
has 250 or fewer units or exceeding the applicable per unit limitation
if the development has more than 250 units).
(ii) An application for a full planning grant shall contain
sufficient detail for HUD to determine whether the proposed
homeownership program will cover all eligible activities necessary to
make the proposed program feasible, whether or not the application
requests HUD funding for each activity.
(iii) Where no resident entity has been established for the property,
the application shall propose establishment of such an entity (such as
an RMC, RC, or cooperative association) promptly after the effective
date of the grant agreement.
(2) Qualifications and experience of applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications. HUD encourages two or more entities to submit
applications together. For example, an application submitted by a newly
established RMC and an experienced nonprofit organization may greatly
increase the likelihood of the success of the proposed homeownership
program. The application shall specify which entity will be the
recipient and execute the grant agreement, and include a certification
that the entities have entered into a written agreement between them
that delineates their respective roles.
(ii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(3) Eligible property. The application shall identify and describe
the eligible property involved, and describe the composition of the
residents, including family size and income, and racial, ethnic, and
gender characteristics of the residents, as required by HUD and as
described in the application package. In addition, the application
shall describe the neighborhood in which the property is located and
include a map showing the location of the property and the racial and
ethnic characteristics of the neighborhood.
(4) CHAS certification. (i) The application shall contain a
certification by the public official, or his or her authorized
representative, who submits the CHAS that the proposed activities are
consistent with the approved CHAS of the State or unit of general local
government within which the eligible property is located.
(ii) Paragraph (b)(4)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(5) Equal opportunity certifications. (i) The application shall
contain --
(A) A certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHAs, under
the circumstances described in Section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) A statement from the applicant (A) whether or not a
desegregation order, agreement, or plan that applies to the applicant is
in effect or known to the applicant to be under consideration; (B) that
the applicant is not in violation of any existing desegregation order,
compliance agreement, or voluntary agreement, or a statement describing
the circumstances of the violation; and (C) describing any potential
impact the proposed homeownership program may have on implementing any
existing or pending order, agreement, or plan.
(6) Resident interest. (i) RMC or RC is an applicant. Where the
applicant (or one of the applicants) is an RMC or RC, the application
shall contain a board resolution from the RMC or RC supporting the
application.
(ii) RMC or RC exists for the eligible property. Where the applicant
(or one of the applicants) is not an RMC or RC for the eligible property
and there is an RMC or RC for the eligible property, the application
shall contain a board resolution from the RMC, or (if there is no RMC)
the RC, for the eligible property that it is interested in a
homeownership program and that the applicant is submitting the
application on behalf of the RMC or RC for the eligible property.
(iii) RMC or RC does not exist for the eligible property. In all
cases where there is no RMC or RC for the eligible property, the
application shall include a survey conducted by the applicant of
resident interest in homeownership and marketability of the units, which
shall be conducted in accordance with procedures set forth in the
application package. If the development is less than 50 percent vacant,
at least 50 percent of the households of the eligible property must
indicate that they are interested in exploring the possibility of
homeownership. If the development is 50 percent or more vacant, the
survey must indicate that there are at least 1.2 interested eligible
families for each unit in the proposed property that is not occupied by
a family interested in homeownership.
(7) Nonduplication of funding. The application shall contain a
certification that the applicant has not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(8) Disclosures required by Reform Act. Section 102(b) of the HUD
Reform Act of 1989, Public Law 101-235 (December 15, 1989) requires
disclosure of other information concerning other government assistance
to be made available with respect to the program and parties with a
pecuniary interest in the homeownership program, and submission of a
report on expected sources and uses of funds to be made available for
the program. Each application shall include the information required by
24 CFR part 12, subpart C, the regulation that implements section 102(b)
of the Reform Act. An implementing notice for 24 CFR part 12, subpart
C, is being published in the Federal Register. Applicants shall use the
form and guidance contained in that notice to make the required
disclosures.
(9) Other requirements. The application shall contain certifications
and other information required by the application package.
(c) Screening by HUD. (1) HUD shall screen each application
submitted on or before the deadline set forth in the NOFA to determine
whether it is complete, is internally consistent, and contains correct
computations. Where HUD determines an application is deficient in one
or more of these areas, it shall notify the applicant in writing and
give it an opportunity to correct the deficiencies in its application.
However, the applicant may not substantially revise the application,
such as by substituting another eligible property or applicant or
changing other fundamental features of the program, because that would
not be fair to other applicants. The notification shall also require
applicants to submit additional or correct material so it is received in
the appropriate HUD office no later than close-of business on the 14th
calendar day after the date of the written notification to the applicant
giving it an opportunity to modify its application. HUD may not extend
this deadline for actual receipt of the material for any reason. HUD
shall not consider further any applications that do not meet one of the
tests in the first sentence of paragraph (c)(1) of this section, after
the opportunity, if any, to submit additional or corrected material, or
that fail to comply with other program requirements.
(2) The purpose of this procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and may need
this additional opportunity to perfect their applications.
(Approved by the Office of Management and Budget under control number
2577-0132)
24 CFR 92.652 Section 315. Rating, ranking, and selection of planning
grant applications.
(a) Rating. HUD shall review each application that qualifies for
additional consideration under the screening procedures in section
310(c) and assign points in accordance with the following selection
criteria --
(1) Capability. The qualifications or potential capabilities of the
applicant for developing a successful and affordable homeownership
program. In assigning points for this criterion, HUD shall consider
evidence in the application demonstrating --
(i) The capability of the applicant to handle financial resources,
demonstrated through such evidence as previous experience and existing
financial control procedures, or an explanation of how such capability
will be obtained -- 15 points;
(ii) The applicant has direct experience in working with residents of
public or Indian housing developments -- 10 points.
(iii) The applicant has direct experience in representing residents
of public or Indian housing developments -- 5 points.
(iv) The extent to which the proposal represents a sound approach to
the planning process -- 5 points.
(v) A demonstration by the applicant or a joint applicant that it is
an RMC or RC -- 5 points.
Maximum points for this criterion (1): 40 points.
(2) Resident and homebuyer interest and marketability. The extent of
resident and homebuyer interest in, and marketability of, the
development of a homeownership program for the eligible property.
(i) Where the applicant is not an RMC or RC and the development is
less than 50 percent vacant, HUD shall assign points based on the
percentage of current residents of the property interested in
participating in the proposed homeownership program, based on a survey
conducted by the applicant and submitted to HUD as part of the
application.
(A) If 75 percent or more of the residents are interested: 15
points; or
(B) If 50-74.99 percent of the residents are interested: 10 points.
(ii) Where the applicant is not an RMC or RC and the development is
50 percent or more vacant, HUD shall assign points based on the number
of interested eligible families interested in participating in the
proposed homeownership program based on a survey conducted by the
applicant and submitted to HUD as part of the application. The purpose
of the survey is to determine if there is a sufficient pool of eligible
families interested in purchasing units in the proposed eligible
property.
(A) If there are 1.5 or more interested eligible families for each
unit in the proposed property not occupied by a family interested in
homeownership: 15 points; or
(B) If there are 1.2-1.49 interested eligible families for each unit
in the proposed property not occupied by a family interested in
homeownership: 10 points.
(iii) Where the applicant is an RMC or RC and --
-- A simple majority of the governing board favors homeownership
-- 10 points; or
-- Two thirds of the governing board favors homeownership -- 15
points.
Maximum points for this criterion (2): 15 points
(3) Suitability of the property. The suitability of the eligible
property for homeownership. Suitability for homeownership shall be
determined based on --
(i) Proximity or accessibility of the property to places of
employment, shopping, schools, medical facilities, transportation,
places of worship, recreational facilities, and other necessary services
for the families under the program -- 5 points;
(ii) Whether the surrounding neighborhood is free from conditions
which are seriously detrimental to the quality of life; substandard
dwellings or other undesirable elements must not predominate, unless the
undesirable conditions affecting the eligible property can be mitigated
-- 5 points; and
(iii) Whether the structure type and bedroom configuration are (or
have the potential, through rehabilitation, to become) appropriate for
the proposed homeownership program -- 5 points.
The review will be made in the context of where public or Indian
housing is typically located.
Maximum points for this criterion (3): 15 points.
(4) Local support. The extent of cooperation or support, or both,
from the unit of general local government, neighborhood organizations,
and providers of services and resources appropriate to assist eligible
families to achieve economic independence. In assigning points for this
criterion, HUD shall consider --
(i) Evidence of support for the homeownership program, demonstrated
through letters, resolutions, or other expressions of support from State
or local governments and PHAs/IHAs -- 5 points;
(ii) Evidence of support for the homeownership program, demonstrated
through letters, resolutions, or other expressions of support from
community, civic, religious, or other entities -- 5 points; and
(iii) Evidence from entities other than the applicant that funds,
services, or other resources will be made available in support of the
homeownership program, demonstrated through letters, resolutions, or
other expressions of support from providers of services and other
resources -- 5 points. The highest number of points shall be assigned
based on the quality, expected duration, and amount of support to the
homeownership program.
Maximum points for this criterion (4): 15 points.
(5) Efficiency. The extent to which the applicant maximizes
efficiency in its plan for use of a planning grant. The lower the cost
of the planning grant per unit in relation to other applications, the
greater the efficiency.
Maximum points for this criterion (5): 15 points.
Total number of points: 100 points.
(b) Ranking and selection to assure national geographic diversity.
(1) After assigning points to each application under paragraph (a) of
this section, HUD shall separately rank mini planning grant applications
together and full planning grants together. HUD shall then select the
two highest ranking applications on each list (one containing only mini
planning grant applications and the other containing full planning grant
applications) from each of the 10 HUD Regions. For both mini planning
grants and full planning grants, if none of the 20 applications involves
an Indian housing development and sufficient funds are available, the
highest ranking application involving an Indian housing development
shall also be approved.
(2) HUD shall then select from each list the highest ranking
applications without regard to their location.
(3) If two or more applications have the same number of points, the
application submitted by an RMC or RC shall be selected. If there is
still a tie, the application with the most points for capability shall
be selected. If there is still a tie, the application with the most
points for efficiency shall be selected.
(4) When the amount remaining after funding as many of the highest
ranking applications as possible is insufficient for the next highest
ranking application, HUD shall determine if it is feasible to fund part
of the application, with the remainder to be funded ''off the top'' from
possible future funding rounds. If so, that application shall be
funded. If not, HUD shall make the same determination for the next
highest application or applications. Any remaining amounts shall be
used in accordance with paragraph (g) of this section.
(5) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding the application from any
unused amounts or ''off the top'' from amounts available for planning
grants in the next funding round.
(c) Use of set-asides to fund other planning grants. Any amounts set
aside to fund applications for mini planning grants that are not needed
because there are insufficient approvable applications shall be used to
fund the highest ranked, unfunded applications for full planning grants.
Any amounts set aside to fund applications for full planning grants
that are not needed because there are insufficient approvable
applications shall be used to fund the highest ranked, unfunded
applications for mini planning grants.
(d) Reduction in requested grant amounts. HUD shall approve a
planning grant application for an amount lower than the amount requested
or adjust line items in the proposed budget within the amount requested
(or both) if it determines the amount requested for one or more eligible
activities is unreasonable or unnecessary or does not otherwise meet
applicable cost limitations established for the program.
(e) Notification of approval or disapproval. After completion of the
ranking and selection of proposals under paragraph (b) of this section,
HUD shall notify the selected applicants and the applicants that have
not been selected, in writing.
(f) Use of remaining amounts to fund HOPE 1 implementation grants.
Any amounts available to fund planning grants that are not needed
because there are insufficient approvable applications shall be used to
fund the highest ranked, unfunded implementation grant applications.
(g) Insufficient approvable applications. If funds remain after HUD
approves all approvable applications, including implementation grant
applications, as provided in this notice, HUD may publish a NOFA
inviting applications for planning or implementation grants, or both, in
accordance with this notice; or invite applicants who submitted
applications that could not be funded to submit amended planning grant
or implementation grant applications in accordance with this notice
within a deadline specified in the invitation. Any remaining amounts
shall be added to amounts available for subsequent funding rounds.
(h) Environmental review. HUD has determined that its approval of
applications for planning grants is categorically excluded from
environmental review and compliance requirements of the National
Environmental Policy Act of 1969 (NEPA) and that other Federal
environmental laws and authorities listed in 24 CFR 50.4 are not
applicable. The reason is that planning grants involve no
rehabilitation and little or no physical change and that, generally, not
enough information is available about the proposed homeownership program
at this point to make the review. HUD has excluded planning grant
applications from environmental assessment under NEPA and exempted
planning grant applications from environmental review under the laws and
authorities listed in 24 CFR 50.4. See the interim rule amending 24 CFR
part 50 that is published elsewhere in today's edition of the Federal
Register. Applicants are reminded, however, that environmental review
at the implementation grant stage may nevertheless result in
disapproval.
24 CFR 92.652 IV. Implementation Grants
24 CFR 92.652 Section 401. Implementation grants.
(a) Implementation grants. HUD shall make implementation grants to
applicants for the purpose of carrying out homeownership programs
approved under this title. Where an RMC and an RC each submit an
application for the same eligible property, HUD shall consider only the
application from the RMC.
(b) National competition. HUD shall select applications based on a
national competition. HUD will assure compliance with the requirement
for national geographic diversity by selecting at least one
implementation grant application for a program in each of the 10 HUD
Regions, to the extent sufficient funds are available. If none of the
10 applications involves an Indian housing development and sufficient
funds are available, the highest ranking application involving an Indian
housing development shall also be approved.
24 CFR 92.652 Section 405. Eligible implementation grant activities.
(a) Limitations. Implementation grants may be used for the
reasonable costs of eligible activities necessary to carry out
homeownership programs. Only costs incurred on or after the effective
date of the grant agreement qualify for funding under the program.
(b) Eligible activities. Eligible activities include --
(1) Architectural and engineering work. Architectural and
engineering work, and related professional services required to prepare
architectural plans or drawings, write-ups, specifications, or
inspections.
(2) Implementation of homeownership program. (i) General.
Implementation of the homeownership program, including the provision of
assistance to families to make acquisition by them affordable (including
interest rate reductions (''interest rate buy-downs'') and down payment
assistance).
(ii) Maximum acquisition costs. The cost of acquisition is not an
eligible cost, but closing and other costs related to acquisition of the
development are eligible costs. Where a public or Indian housing
development contains improvements provided through local tax revenues
that increased the value of the development, an applicant may request
HUD to waive this limitation to permit use of program funds to pay the
PHA/IHA for the depreciated value of the amount of local tax revenues
spent on such improvements. The request for the waiver shall document
the original contribution, state the basis for computing the amount of
the depreciated value, and otherwise justify the request.
(3) Rehabilitation. (i) Rehabilitation of the eligible property
covered by the homeownership program, in accordance with housing quality
standards established by HUD. See also section 505(b) for applicable
requirements for accessibility for people with disabilities. The
property shall be rehabilitated (including the provision of suitable
amenities) to a level that makes it marketable for homeownership in the
market area to families with incomes at or below the median for the
area. HUD encourages applicants to undertake high quality
rehabilitation, even if it goes beyond applicable minimum standards.
Luxury items (fixtures, equipment, and landscaping of a type or quality
which substantially exceeds that customarily used in the locality for
properties of the same general type as the property to be rehabilitated)
do not qualify as eligible expenses. The construction of swimming pools
is not eligible. The cost to fill in or eliminate a pool from the
property and the cost to repair an existing pool are eligible.
(ii) The application shall describe all improvements to be made to,
or amenities to be provided for, the property, whether or not they may
be funded by use of grant amounts, contributions towards the match
required under the program, or other funds. HUD may disapprove
improvements or amenities specified in the application it determines are
unsuitable for the HOPE program, even if they will be paid for from
non-program funds.
(iii) If an applicant proposes to make improvements to an eligible
property beyond those that qualify as eligible costs, it shall assure
that their entire cost will be covered by funds other than the HOPE
grant and any amounts contributed towards the match and that the
affordability of the property will not be impaired. No such local funds
may count towards the match.
(iv) The prototype cost cap on rehabilitation shall be based on the
cost guidelines applicable to the CIAP program.
(4) Administrative costs. Administrative costs of the program. The
total amount that may be spent on administrative activities from the
amount of the grant and any contribution towards the match may not
exceed 15 percent of the amount of the grant HUD provides under this
notice.
(5) Development of RMCs and RCs. (i) Development of RMCs and RCs,
but only if the applicant has not received a HOPE planning grant for
such activities. See 305(a) for examples of eligible activities.
(ii) Funding for this activity may not be provided for an RMC or RC
that has received funding under section 20(f) of the 1937 Act, unless
the applicant submits work plans used in connection with previous grants
demonstrating to HUD's satisfaction that the implementation grant will
not be duplicative.
(6) Counseling and training. Counseling and training of homebuyers
and homeowners under the homeownership program. This may include such
subjects as counseling and training related to personal financial
management, home maintenance, home repair, construction skills (to the
extent appropriate, especially where the eligible family will do some of
the rehabilitation), and the general rights and responsibilities of a
homeowner.
(7) Relocation. Relocation of residents who elect to move, in
accordance with section 735.
(8) Temporary relocation. Any necessary temporary relocation of
residents during rehabilitation, in accordance with section 735.
(9) Assistance for operating expenses. (i) Funding of operating
expenses for the property, up to the amount necessary to achieve
long-term affordability, as provided in section 415(b)(12). Assistance
for operating expenses may cover the period beginning after acquisition
of the property from the PHA/IHA by the applicant or, if the PHA will
transfer the property to eligible families, beginning after transfer to
the families. Operating assistance may be used for (A) assistance for
potential homeowners during the rental phase (before acquisition of
ownership interests by the families), if any, (B) assistance for
nonpurchasing residents who remain in the property, (C) assistance for
homeowners after transfer of ownership interests to the families during
the term of the grant agreement, and (D) the funding of operating
reserves.
(ii) In addition, assistance for operating expenses may be drawn down
under the grant agreement to fund an operating expenses reserve
established in accordance with HUD guidelines, and the interest earned
on the reserve shall be credited to it for use for operating expenses
under the program.
(iii) The amount of assistance for operating expenses shall not
exceed the amount the development would have received if it had
continued to receive operating subsidies under 24 CFR part 990, with
adjustments comparable to those that would have been made under part
990, as determined by HUD based on actual or estimated cost experience
of the development in the year before the proposed sale by the PHA/IHA.
Where the actual or estimated costs for that year are unavailable or
atypical, the application shall propose an adjustment factor and justify
it.
(iv) An implementation grant under this program may provide
assistance for operating expenses for up to five years from the date
that the PHA/IHA transfers the property. If HUD determines that
extraordinary circumstances exist, as described in the application or at
the end of the five-year term, that justify extension of the five-year
term, it may, at the end of the five-year term, agree to extend the
original grant agreement for additional one-year periods, subject to the
availability of appropriations for this purpose. However, the total
term of the grant agreement, including all extensions, may not exceed 10
years. HUD reminds applicants that the selection criterion measuring
efficiency will favor applications proposing lower per unit costs;
thus, those applications which propose operating assistance for five
years or less will be at a competitive advantage.
(v) The entity with fiduciary responsibility for any operating
reserve shall be bonded, in accordance with requirements prescribed or
approved by HUD.
(10) Replacement reserves. (i) Replacement reserves for the
property, up to the amount necessary to achieve long-term affordability,
as provided in section 415(b)(12). Assistance for replacement reserves
may be drawn down under the grant agreement to fund the reserve
established in accordance with HUD guidelines, and the interest earned
on the reserve shall be credited to the reserve for use for replacement
expenses under the program.
(ii) The entity with fiduciary responsibility for any replacement
reserve shall be bonded, in accordance with requirements prescribed or
approved by HUD.
(11) Replacement housing plan. Implementation of replacement housing
plan activities under section 415(b)(8)(i)(E).
(12) Legal fees. Customary and reasonable costs of professional
legal services.
(13) Ongoing training needs. Defraying costs for the ongoing
training needs of the recipient for courses of instruction that are
directly related to developing and carrying out the homeownership
program.
(14) Economic development. (i) Economic development activities that
promote economic self-sufficiency of homebuyers, residents, and
homeowners under the homeownership program, such as job training or
retraining and the development, in or near the eligible property, of
child care centers that offer work and make it possible for parents to
work. The recipient shall enter into written agreements with the
providers of economic development services specifying the services to be
provided, including estimates of the numbers of homebuyers, residents,
and homeowners to be assisted.
(ii) In addition, planning for the establishment of for- or
not-for-profit small businesses by or on behalf of residents, job
training, and other activities that promote economic self-sufficiency of
homebuyers and homeowners of the eligible property covered by the
homeownership program and economic development of the neighborhood are
eligible.
(iii) The aggregate amount of planning and implementation grants that
may be used for economic development activities may not exceed $250,000.
(15) Other activities. Other activities proposed by the applicant,
to the extent the applicant justifies them as necessary for the proposed
homeownership program and HUD approves them. For example, the applicant
may propose activities related to security needs of the property that
are not otherwise covered under other eligible activities, such as under
architectural and engineering work and rehabilitation activities.
24 CFR 92.652 Section 410. Matching requirements for implementation
grants.
(a) Requirement for each recipient to match the HUD grant. Each
recipient shall assure that matching contributions equal to not less
than 25 percent of the amount of the implementation grant shall be
provided from non-Federal sources to carry out the homeownership
program. Amounts contributed to the match shall be used for eligible
activities or in accordance with this section. Any grant amounts
proposed for operating assistance shall be excluded for purposes of
computing the amount to be matched.
(b) Form. Contributions may only be in the form of --
(1) Cash contributions. (i) Cash contributions from non-Federal
resources. To be a cash contribution, funds must be contributed
permanently for uses under the HOPE 1 program. Funds will be considered
permanently contributed if all repayment, interest, and other return on
the contribution will only be used for eligible activities in accordance
with program requirements.
(ii) Non-Federal resources may not include funds from a Community
Development Block Grant made to an entitlement grantee or a State under
section 106(b) or section 106(d), respectively, of the Housing and
Community Development Act of 1974, except to the extent permitted for
administrative expenses under paragraph (a)(2) of this section.
Non-Federal resources may not include Federal tax expenditures,
comprehensive grants under section 14 of the 1937 Act, or amounts
provided to the development from syndication of the low income housing
tax credit. (Financing involving the use of the low income housing tax
credit is prohibited by section 415(b)(11)(iii).)
(iii) Non-Federal resources may include contribution of trust funds
held by Federal agencies for Indian tribes.
(iv) A cash contribution may be made by the applicant, non-Federal
public entities, private entities, or individuals. A cash contribution
may be made from program income from a Federal grant earned after the
end of the award period if no Federal requirements govern the
disposition of the program income. Included in this category are
repayments from closed out grants under the Urban Development Action
Grant Program (24 CFR part 570, subpart G), and the Housing Development
Grant Program (24 CFR part 850).
(v) Cash contributions may also be made from sales proceeds from the
Turnkey III Homeownership and Mutual Help programs obtained pursuant to
PIH Notice 91-28 or an approved homeownership program under section 5(h)
of the 1937 Act.
(vi) The grant equivalent of a below-market interest rate loan to the
homebuyer, where all repayments, interest, and other return will not be
permanently contributed to the HOPE program, may be counted as a cash
contribution.
(A) If the loan is made from proceeds of obligations issued by or on
behalf of a public body that are exempt from taxation by the United
States, the contribution is the present discounted cash value of the
difference between payments to be made on the borrowed funds and
payments to be received from the loan to the homebuyer, based on a
discount rate equal to the interest rate on the borrowed funds.
(B) If the loan is made from funds other than under paragraph
(b)(1)(vi)(A) of this section, the contribution is the present
discounted cash value of the yield forgone, calculated based on a
discount rate approved or prescribed by HUD. In determining the yield
forgone, the recipient must use as a measure of a market rate yield one
of the following, as appropriate:
(1) With respect to one- to four-unit housing financed with a fixed
interest rate mortgage, a rate equal to the 10-year Treasury note rate
plus 200 basis points;
(2) With respect to one- to four-unit housing financed with an
adjustable interest rate mortgage, a rate equal to the one-year Treasury
bill rate plus 250 basis points; or
(3) With respect to a multifamily project, a rate equal to the
10-year Treasury note rate plus 300 basis points.
(vii) A down payment by an eligible family may not count towards the
match.
(viii) Non-Federal resources may include amounts, determined in
accordance with paragraph (b)(1)(vi)(B) of this section, that have been
requested by the applicant in an application submitted to the Federal
Housing Finance Board for assistance under its Affordable Housing
program, so long as that application is approved before the date HUD
approves the HOPE application.
(2) Administrative costs. (i) Payment of eligible administrative
costs approved by HUD from non-Federal resources. Contributions for
administrative costs that exceed 7 percent of the grant (excluding any
assistance for operating expenses) may not count towards the match.
(This limitation is in addition to the limitation that the total amount
that may be spent on administrative activities from the amount of the
grant and any contributions towards the match may not exceed 15 percent
of the grant amount (section 405(b)(4).) Non-Federal resources, for the
purposes of counting contributions for administrative costs, may include
funds from a Community Development Block Grant made to an entitlement
grantee or a State under section 106(b) or section 106(d) of the 1974
Act and are subject to the recordkeeping and documentation requirements
of that program. (ii) For example, if the grant amount is $500,000
(excluding any operating assistance), the recipient must assure the
provision of at least $125,000 (25 percent of the grant) from
non-Federal sources. Contributions for administrative costs that may be
counted towards the match may not exceed $35,000 (7 percent of the grant
amount of $500,000). Although an applicant can spend more than this on
administrative costs, it may not be counted towards the match. The
applicant shall provide contributions covering the remaining $90,000
($125,000 ^$35,000) required for the match from non-Federal sources.
(3) Taxes, fees, and other charges. The present value of taxes,
fees, or other charges that are normally and customarily imposed but are
waived, forgone, or deferred in a manner that facilitates the
implementation of a homeownership program assisted under this notice.
Only amounts for the period after the date a property is acquired by a
recipient or other entity for transfer to eligible families (or the
effective date of the implementation grant agreement if the PHA will
transfer to eligible families) may be counted towards the match. For
example, if a city agrees to forgo real property taxes for 20 years, the
application shall compute the estimated tax that would be otherwise
payable over the 20 year period, and discount it to present value based
on a discount rate approved or prescribed by HUD. Amounts that would be
waived, forgone, or deferred for longer than 20 years from the date a
family acquires homeownership interests in the unit may not be counted
towards the match because enforcement would be impracticable. Where the
match includes amounts under paragraph (b)(3) of this section, the
documents transferring the homeownership interest to the family shall
evidence the contribution, to the extent the contribution has not
already been received.
(4) Land or other real property. Real property, not acquired with
Federal resources, contributed for use under an approved homeownership
program.
(i) For HOPE 1, the value of eligible property may not be counted as
a contribution towards the match.
(ii) The as-is fair market value of land or other real property may
be counted as a contribution towards the match, determined in accordance
with a recent appraisal conducted under procedures established or
approved by HUD.
(5) Infrastructure. The fair market value of investment, not made
with Federal resources, in on-site and off-site infrastructure required
for homeownership program. The infrastructure investment may be counted
towards the match only if it was completed no earlier than 12 months
before the date of notification by HUD of implementation grant approval
and no later than five years from the effective date of the grant
agreement. Investment in infrastructure may include such activities as
new or repaired utility laterals connecting eligible property to the
main line and new or rebuilt walkways, sidewalks, or curbs on or
contiguous to the eligible property. If the investment in
infrastructure also benefits other properties, only the share of the
costs directly benefiting the eligible property under the homeownership
program may be counted towards the match.
(6) Debt forgiveness. Where debt on real property to be acquired
under the program (other than a public or Indian housing development) is
forgiven, permitting the property to be acquired for less than fair
market value, the savings may count as a match. However, the
forgiveness of the amount of any debt exceeding fair market value of a
property under the program, determined under paragraph (b)(4) of this
section, may not be counted towards the match.
(7) Other in-kind contributions. (i) The reasonable value of in-kind
contributions proposed by the applicant in the application and approved
by HUD. In reviewing proposed in-kind contributions, HUD shall review
to ensure (A) the proposed contribution is to be used for an eligible
activity under the proposed homeownership program, (B) the application
demonstrates that the proposed in-kind contribution will actually be
provided; and (C) the proposed value of the contribution is reasonable.
In determining whether the value is reasonable, HUD shall generally
consider the amount such work would otherwise cost the program, but may
adjust the value, based on special circumstances.
(ii) All donated labor, including sweat equity provided by a
homebuyer or homeowner, shall be valued at $10 an hour, except for
donated professional labor, as approved by HUD, including work by
homebuyers and homeowners. The donated professional labor shall be
valued at the fair market value of the work completed. Professional
labor is work ordinarily performed by the donor for payment, such as
work by laborers, electricians, and architects that is equivalent to
work they do in their occupations. Sweat equity may be counted towards
the match only if it is not also counted towards a family's equity.
(iii) Donated materials and supplies may be counted towards the match
contribution. Materials and supplies need not have been purchased
specifically for the program to be included as a match contribution, if
the cost to the grantee of the materials and supplies (or, in the case
of materials and supplies donated by a different entity than the
recipient for use in the program, the fair market value of the materials
and supplies) and if the fact that they were used in the program can be
documented. The recipient shall maintain a written enumeration of what
donated materials and supplies will be used in the program, as well as
documentation of their cost or value.
(c) Other restrictions. Contributions towards eligible activities
that are not directly related to acquisition or rehabilitation of the
property may be counted towards the match only to the extent the
expenses are incurred before the date the family acquires the
homeownership interest, except that contributions for counseling and
training of homeowners may be counted if provided within one year of the
transfer of ownership interest to the family. For example,
contributions for child care services provided after the date of the
transfer of ownership interests to the families may not be counted
towards the match.
(d) Exception for Indian housing authorities. Where the recipient is
an IHA and the IHA (acting in that capacity) has not received, and will
not receive, amounts under title I of the Housing and Community
Development Act of 1974 for the fiscal year in which HUD obligates HOPE
grant funds, the match requirements under this section shall not apply.
24 CFR 92.652 Section 415. Applications for implementation grants.
(a) NOFA. An application for an implementation grant shall be
submitted by an applicant in accordance with this notice and the NOFA.
The NOFA advises potential applicants how to obtain an application
package and establishes deadlines and other requirements for submission
of applications. The NOFA also informs each applicant that it may
request information and guidance from HUD about program requirements and
preparation of the application.
(b) Application contents. Each application shall contain the
information required by the application package, which shall include at
least the following items.
(1) Request for HOPE implementation grant. The application shall
contain (i) a summary description of the proposed homeownership program;
(ii) a description of the personnel necessary to complete the
activities; (iii) the amount of the grant requested for each activity.
The amount requested, together with any non-Federal contributions, shall
be sufficient to carry out all proposed activities.
(2) Section 8 application. (i) The application shall contain an
application from a PHA/IHA whose jurisdiction includes the proposed
eligible property for assistance under section 8 of the 1937 Act,
specifying the period during which the assistance will be needed, or a
statement by the applicant that no section 8 assistance will be needed.
(ii) The application shall specify whether the assistance is proposed
to comply with the replacement housing plan requirement or for
nonpurchasing residents for use in another property, or both.
(3) Qualifications and experience of applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications and experience, including qualifications and experience
in providing housing for low-income families. It is particularly
important for an applicant that has not received and successfully
carried out a planning grant to demonstrate its capacity to carry out
the proposed homeownership program. HUD encourages two or more entities
to submit an application together. For example, an application
submitted by a newly established RMC and an experienced nonprofit
organization may greatly increase the likelihood of the success of the
proposed homeownership program. The application shall specify which
entity will be the recipient and execute the grant agreement, and
include a certification that the entities have entered into a written
agreement that delineates their respective roles.
(ii) Where the applicant is an RMC or RC, the application shall
demonstrate its ability to manage a public or Indian housing development
by having done so effectively and efficiently for a period of not less
than three years. Alternatively, the RMC or RC shall demonstrate that
it has arranged for the management of the homeownership program by a
qualified management entity which has effectively and efficiently
managed housing for a period of not less than three years.
(iii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(4) Description of proposed homeownership program. The application
shall describe the proposed homeownership program, demonstrating
consistency with all requirements specified in this notice and the
application package (see, especially, section 405, Eligible
Implementation Grant Activities and Part V, Other Requirements). The
application shall specify the activities to be carried out, their
estimated costs, and a reasonable schedule for carrying out the
activities. See section 715 for requirements for the timely transfer of
ownership interests to eligible families. Where no resident entity has
been established for the property, the application shall propose
establishment of a resident entity (such as an RMC, RC, or cooperative
association) promptly after the effective date of the grant agreement.
(5) Plan. (i) Identifying and selecting families. The application
shall contain a plan for identifying and selecting eligible families to
participate in the homeownership program. The plan shall --
(A) Establish equitable procedures for selection of eligible
families. Except for Indian tribes and IHAs as described in section
505(a)(2), the plan shall also describe activities planned to carry out
the applicant's affirmative fair housing marketing responsibilities that
apply whenever homeownership opportunities are made available to other
than current residents of the property. The plan shall describe the
applicant's affirmative fair housing marketing strategy, including
specific steps to inform potential applicants and solicit applications
from eligible families in the housing market area who are least likely
to apply for the program without special outreach. The plan shall
require any family determined not to have paid the appropriate amount of
tenant contribution under a HUD housing assistance program to resolve
any deficiency before being selected for homeownership.
(B) Give a first preference to otherwise qualified current residents
and a second preference to otherwise qualified eligible families who
have completed participation in an economic self-sufficiency program.
The following self-sufficiency programs (and any other Federal, State,
or local program proposed by the applicant and approved by HUD as
equivalent) qualify: Project Self-Sufficiency, Operation Bootstrap,
Family Self-Sufficiency, and JOBS.
(C) Require the recipient to promptly notify in writing any rejected
applicant family of the grounds for any rejection, or to require the
recipient to require another appropriate entity to do so.
(D) Require each eligible family selected for homeownership to
certify at the time it acquires an ownership interest in the unit (or
enters into a lease or other conditional ownership agreement providing
for acquisition of an ownership interest by the family) that it intends
to occupy the unit as its principal residence.
(E) Require each eligible family to agree to occupy the property as
its principal residence during the 15-year period from the date it
acquires ownership interest in the unit (or enters into a lease or other
conditional ownership agreement providing for acquisition of an
ownership interest by the family), unless the recipient determines that
family is required to move outside the market area due to a change in
employment or an emergency situation or the family sells its ownership
interest.
(F) Require any eligible family that violates the agreement made
under paragraph (b)(5)(i)(E) of this section to pay the amount then due
under the promissory note.
(G) Describe the composition of the residents and potential eligible
families, including family size and income, and racial, ethnic, and
gender characteristics, as required by HUD.
(ii) Providing relocation. The application shall describe the
proposed relocation activities, in accordance with the requirements of
section 735. The plan shall specify the approximate number of families
and individuals who are expected to choose to move and the number who
will be temporarily relocated during rehabilitation, the estimated
costs, the source of funding, the organization that will carry out the
relocation if different than the applicant, and other available
resources (including, for example, section 8 assistance).
(iii) Managing sweat equity. Where applicable, the application shall
contain a plan for managing the provision of sweat equity by homebuyers
and homeowners, including a description of the anticipated scope of the
work, schedule of completion, training of homebuyers and homeowners (and
training of others donating labor in connection with sweat equity
activity), supervision of the work by a licensed general contractor, and
a contingency plan if the sweat equity is not fully provided or the
schedule is not met.
(iv) Providing ongoing training and counseling. The application
shall contain a plan for providing ongoing training and counseling for
homebuyers and homeowners.
(6) Eligible property. (i) The application shall include a
description of the eligible property, including the number of units by
size (square footage), bedroom count, bathroom count, preliminary
drawings and outline specifications for the proposed rehabilitation,
unit plans, and a listing of amenities and services. The application
shall also describe the neighborhood and include a map showing the
location of the property and the racial and ethnic characteristics of
the neighborhood.
(ii) The acquisition or rehabilitation of a public or Indian housing
development shall involve acquisition and rehabilitation of all of the
units in the development. HUD may permit acquisition or rehabilitation
of less than the whole development if the applicant demonstrates to
HUD's satisfaction that the acquisition or rehabilitation (or both) of
less than all of the development is feasible and will not result in a
hardship to the residents of the development who are not included in the
homeownership program.
(7) Housing quality standards plan. The application shall include a
housing quality standards plan describing how the applicant will ensure
that --
(i) The unit will be free from any defects that pose a danger to
life, health, or safety before transfer of an ownership interest in a
unit to an eligible family or execution of a lease with an option to
purchase. The recipient shall inspect, or ensure inspection of, each
unit to determine it does not pose an imminent threat to the life,
health, or safety or current or future residents and that the property
has passed recent fire and other applicable safety inspections conducted
by appropriate local officials.
(ii) The unit will, not later than 2 years after the transfer to an
eligible family, meet minimum housing standards. The recipient shall
inspect, or ensure inspection of, each unit to determine it meets the
local housing code or, if no local code exists, the housing quality
standards established by HUD for the Section 8 Certificate program.
Higher standards may be proposed by the applicant or required by
lenders.
(8) Replacement housing plan. The application shall contain a
replacement housing plan.
(i) Public or Indian housing developments may not be transferred by
the PHA/IHA under the HOPE 1 program unless HUD has entered into a
binding agreement with the local PHA/IHA to make available to the
PHA/IHA Federal funding assistance under paragraphs (b)(8)(i) (A)-(C)
and (E) of this section, or another appropriate entity has entered into
a binding agreement to make available to the PHA/IHA or other applicant,
as appropriate, assistance under paragraphs (b)(8)(i) (D) and (E) of
this section, to provide an additional decent, safe, sanitary, and
affordable dwelling unit as a replacement for each unit in a public or
Indian housing development to be transferred by the PHA/IHA.
Replacement housing may consist of one or more of the following
methods --
(A) The development of additional public or Indian housing units by
the PHA/IHA in accordance with section 5 of the 1937 Act. The PHA/IHA
shall execute an annual contributions contract (ACC) for the additional
units before the date of transfer by the PHA/IHA of housing for use
under the HOPE 1 program. The additional units under the ACC must have
been identified as replacement housing in the development application.
(B) The rehabilitation of vacant public or Indian housing units by
the PHA/IHA in accordance with section 14(n)(1) of the 1937 Act. The
PHA/IHA shall execute an ACC for the modernization assistance before the
date of transfer by the PHA/IHA of housing for use under the HOPE 1
program. The modernization assistance under the ACC to be used to
rehabilitate vacant units must have been identified as replacement
housing in the application under the Comprehensive Improvement
Assistance program or in the comprehensive plan under the Comprehensive
Grant program.
(C) The use of 5-year, tenant-based rental assistance under the
section 8 Certificate and Housing Voucher programs. The PHA/IHA shall
execute an ACC for the additional section 8 certificate or voucher
assistance before the date of transfer by the PHA/IHA of housing for use
under the HOPE 1 program. The units under the ACC must have been
identified as replacement housing in the section 8 application.
(D) The use of a State or local program that is comparable to any of
the Federal programs referred to in (A)-(C) as to housing standards,
eligibility, and contribution to rent, and provides a term of assistance
of not less than five years.
(E) Where the applicant is an RMC, RC, or cooperative association,
the acquisition of nonpublicly-owned housing units before the date of
transfer by the PHA/IHA of housing units for use under the HOPE 1
program, which the applicant shall operate as rental housing comparable
to public or Indian housing as to term of assistance, housing standards,
eligibility, and contribution to rent. Funding for such replacement
units may be provided from the implementation grant or another source
for which the applicant has a firm commitment.
(ii) Assistance that has already been counted as meeting replacement
housing requirements under the HOPE 1 program or under sections 5(h),
18, or 21 of the 1937 Act may not be counted again as replacement
housing.
(iii) The plan shall include a certification from the PHA/IHA that it
concurs with the proposed replacement housing plan and will take all
necessary steps to carry it out.
(9) Match requirements. (i) The application shall describe, and
contain commitments for, the resources that are expected to be
contributed towards the match required under section 410, and of any
other resources that are expected to be made available in support of the
homeownership program. Acceptable evidence that the contribution will
be provided shall be included. For example, if 20 years of tax
abatement will be counted towards the match, the chief executive officer
or appropriate legislative body of the government should submit a copy
of the law or other official action documenting this commitment. Cash
or other property contributed shall be supported by evidence of a
binding commitment by the donor to donate the cash or other property,
subject only to approval of the implementation grant and any other
necessary conditions approved by HUD.
(ii) If the match requirement does not apply to an IHA in accordance
with section 410(d), the application shall contain a certification that
the IHA has not received, and will not receive, amounts under title I of
the Housing and Community Development Act of 1974 for the fiscal year in
which HUD obligates HOPE grant funds.
(10) Economic development. The application may contain a plan for
economic development activities under the program and shall contain such
a plan if the applicant requests a program involving assistance for
operating expenses. The application shall demonstrate that the proposed
economic development activities under section 405(b)(14) are directly
related to the proposed homeownership program, and describe how these
activities will promote the self-sufficiency of homebuyers, residents,
and homeowners.
(11) Financing. (i) The application shall identify and describe the
financing proposed for any (A) rehabilitation and (B) acquisition by
eligible families of ownership interests in units in the eligible
property.
(ii) Financing may include use of the implementation grant to permit
transfer of an ownership interest in a unit to an eligible family for
less than fair market value or with assisted financing; sale for cash;
or other sources of financing (subject to requirements that apply to
such other sources), including conventional mortgage loans, mortgage
loans insured under title II of the National Housing Act, and mortgage
loans under other available programs, such as VA, FmHA, and RTC
seller-assisted financing.
(iii) Financing may not involve use of the low income housing tax
credit.
(iv) If the applicant proposes that property transferred under this
notice be pledged as collateral for debt or otherwise encumbered, the
application shall contain sufficient information for HUD to determine
that --
(A) The encumbrance will not threaten the long-term availability of
the property for occupancy for low-income families, where the program
provides for such long-term availability.
(B) Neither the Federal government nor the PHA/IHA will be exposed to
undue risks related to action that may have to be taken pursuant to
paragraph (b)(11)(iv) of this section (opportunity to cure).
(C) Any debt obligation can be serviced from project income,
including operating assistance.
(D) The proceeds of the encumbrance will be used only to meet the
housing quality standards (see paragraph (b)(7) of this section) or to
make such additional capital improvements as HUD determines to be
consistent with the purposes of the HOPE program.
Indian housing development trust land may not be used as collateral.
(v) Recipients and homeowners continue to be subject to paragraphs
(b)(11)(iv) (A)-(D) of this section during the term of the grant
agreement.
(vi) The proposed financing shall require that any lender that
provides financing in connection with the program shall give the
PHA/IHA, RMC, individual owner, or other appropriate entity a reasonable
opportunity to cure a financial default before foreclosing on the
property, or taking other action as a result of the default (and the
financing and conveyance documents shall include such restrictions).
(12) Affordability. (i) Initial affordability -- (A) The application
shall demonstrate that the monthly expenditure for principal, interest,
taxes, and insurance by an eligible family that is necessary to complete
the sale for the initial acquisition of a unit does not exceed 30
percent of the adjusted income of the family, determined in accordance
with 24 CFR part 913 or, for Indian housing developments, part 905. As
required by the statute, closing costs are included in this cap to the
extent they are included in the costs of principal and interest, or are
otherwise required to be paid by the homeowner over time after
acquisition. It does not make sense to count closing costs paid as a
lump sum at closing for purposes of computing a monthly maximum family
expenditure. In setting the sales price for acquisition, the applicant
shall take into account the need to comply with this affordability
standard.
(B) The items subject to the limitations in paragraph (b)(12)(i)(A)
of this section, plus estimated utility costs and other monthly housing
costs (such as condominium and cooperative monthly fees) shall be at
least 25 percent but not more than 35 percent of the adjusted income of
the family, determined in accordance with 24 CFR part 913 or 905, as
appropriate. The applicant may request HUD to approve a higher
percentage cap, where the application demonstrates that a higher cap
than 35 percent is necessary to make the project feasible and that the
families will be able to afford the higher monthly cost.
(C) In the case of cooperative or condominium ownership, if the
monthly charge to the homeowner includes amounts for principal,
interest, taxes, insurance, or utilities, the portion of the charge
covering these amounts shall be considered for purposes of making the
affordability determinations under paragraph (b)(12) of this section.
(ii) Continued affordability. The application shall contain a
feasible plan for ensuring continued affordability by residents,
homebuyers, and homeowners in the eligible property. The plan shall be
based on a ''proforma'' prepared in accordance with paragraph
(b)(12)(iii) of this section; however, a proforma is not required under
HOPE 1 for single family property that does not involve significant
common ownership. The plan shall avoid using financing, such as a
mortgage that is not fully amortizing (such as a ''balloon'' mortgage)
or that involves negative amortization, that would impair the continued
affordability of the property for eligible families.
(iii) Proforma. The plan shall include a ''proforma'' that sets
forth estimated project costs and income over a 20-year period from the
date the applicant or other entity acquires the property for transfer to
eligible families (or from the effective date of the implementation
grant agreement, where the PHA/IHA, will transfer to eligible families).
The proforma shall be prepared in accordance with the following
requirements and guidelines:
(A) The proforma shall demonstrate that the requirements of paragraph
(b)(12)(i) of this section are met and that, for the 20-year period, on
an aggregate basis, eligible families shall not be required to pay more
than the amounts provided in paragraph (b)(12)(i) (A) and (B) of this
section.
(B) The proforma shall include an estimate of the income expected, by
each unit size, for the 20-year period, including any homeownership
payments, carrying charges, homeowner association payments, and HOPE
grant funds for operating assistance (including funding of reserves) and
for replacement reserves.
(C) The aggregate income estimated for the property shall equal or
exceed the aggregate costs of operating and maintaining the property,
including any debt service, property management costs, insurance costs,
taxes, funding of operating or replacement reserves, and any other
anticipated costs.
(D) Reasonable assumptions shall be used as to all material factors
having an impact on the estimates contained in the proforma, including
projected vacancy rates, collection rates, income of homebuyers,
homeowners, and other residents; changes in such incomes; changes in
utilities costs; and income earned on operating and replacement
reserves. The applicant shall justify all assumptions used to prepare
the proforma. The applicant shall estimate increases in income and
operating costs in accordance with guidelines provided by HUD in the
application package.
(E) The proposed use of an operating reserve funded from the HOPE
grant shall comply with the requirements of 405(b)(9).
(F) The proforma shall demonstrate that the aggregate income for the
property (including amounts provided by HUD for operating assistance or
replacement reserves) exceeds aggregate expenses and demonstrates a
positive trend in the difference between income and expenses during the
20-year period.
(iv) Replacement reserves. The application shall demonstrate that
the amount proposed for replacement reserves is adequate, taking into
account (A) the estimates covered by the proforma, (B) the size of the
grant and the amount of matching contributions, (C) the condition and
age of the property and each of its major systems and components
(including at least the heating, plumbing and electrical systems and the
roof, foundation, windows, exterior walls, and common areas (including
the need to repaint)), and (D) other possible replacement needs. The
requirement for replacement reserves shall not apply, in the case of
single family property, where the applicant demonstrates that the
financial status of eligible families is sufficient (taking into account
insurance requirements and home maintenance repair capability of the
family) so there is not a need for such reserves.
(13) Sales prices to applicant or other entity. The application
shall specify the terms of the proposed transfer to the entity, if any,
that will acquire the property for sale to eligible families. If the
applicant is a PHA/IHA that proposes to sell directly to eligible
families, paragraph (b)(13) of this section shall not apply. The
necessary information is covered by paragraph (b)(14) of this section.
(14) Sales prices and terms of sale to eligible families; form of
ownership.
(i) The application shall contain estimated sales prices and terms of
sale to eligible families. The application shall also specify the type
or types of homeownership to be used, including cooperative ownership
(including limited equity cooperative ownership), fee simple ownership
(including condominium ownership), or another form of ownership proposed
and justified by the applicant and approved by HUD. The application
shall contain a certification that the proposed type of homeownership is
consistent with any applicable State and local, or tribal, law. For
example, if the applicant is a cooperative that proposes to own the
property, it must have the legal ability to own the particular property.
(ii) The proposed program shall require each eligible family to make
a down payment towards the cost of acquisition at closing. An applicant
may permit a family to meet its down payment obligation through ''sweat
equity.''
(iii) An eligible family may transfer amounts credited to it under
other HUD homeownership programs (including Turnkey III and Mutual Help)
to meet down payment obligations under the HOPE program, if it is
purchasing the same unit it has occupied under the other HUD
homeownership program.
(iv) See section 110(k) for provisions governing the use of single
family FHA mortgage insurance.
(15) Resale restrictions, if any. The application shall contain any
proposed restrictions on the resale of units by initial or subsequent
homeowners under the homeownership program (see section 720(a)(1)(ii)).
The required restrictions set forth in section 720 need not be restated.
(16) Management entity. The application shall identify and describe
the entity that will operate and manage the property, and, if the PHA or
IHA will transfer the property within six months from the effective date
of the grant agreement, contain a copy of the proposed contract. Where
homeowners will have full responsibility (as is expected in scattered
site, fee simple ownership arrangements), this requirement will only
cover the period, if any, until the homeowners become fully responsible.
(17) CHAS certification. (i) The application shall contain a
certification by the public official, or his or her authorized
representative, who submits the CHAS that the proposed activities
(including activities related to the replacement housing plan) are
consistent with the approved CHAS of the State or unit of general local
government within which the eligible property is located.
(ii) Paragraph (b)(17)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(18) Equal opportunity certifications. (i) The application shall
contain --
(A) A certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHA, under
the circumstances described in section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) The application shall contain a statement from the applicant (A)
whether or not a desegregation order, agreement, or plan that applies to
the applicant is in effect or known to the applicant to be under
consideration; (B) that the applicant is not in violation of any
existing desegregation order, compliance agreement, or voluntary
agreement, or a statement describing the circumstances of the violation;
and (C) describing any potential impact the proposed homeownership
program may have on implementing any existing or pending order,
agreement, or plan.
(19) Resident interest. (i) RMC or RC is an applicant. Where the
applicant (or one of the applicants) is an RMC or RC, the application
shall contain a board resolution from the RMC or RC supporting the
application.
(ii) RMC or RC exists for the eligible property. Where the applicant
(or one of the applicants) is not an RMC or RC for the eligible property
and there is an RMC or RC for the eligible property, the application
shall contain a board resolution from the RMC or (if there is no RMC)
the RC for the eligible property if any, that it is interested in a
homeownership program and that the applicant is submitting the
application on behalf of the RMC or RC for the eligible property.
(iii) Survey of resident interest and marketability. In all cases,
the application shall also contain a survey conducted by the applicant
of resident interest in homeownership and marketability of the units,
which shall be conducted in accordance with procedures set forth in the
application package. If the development is less than 50 percent vacant,
at least 50 percent of the households of the eligible property must
indicate that they are interested in exploring the possibility of
homeownership. If the development is 50 percent or more vacant, the
survey must indicate that there are at least 1.2 interested eligible
families for each unit in the proposed property that is not occupied by
a family interested in homeownership.
(20) Public hearing. The application shall contain documentary
evidence that the applicant held at least one public hearing regarding
the sale of the eligible property proposed for use under the program,
with a summary of the views expressed by residents and other members of
the public and the response by the applicant.
(21) Plan for use of certain program income. The application shall
contain a plan for use of proceeds from sales to eligible families and
amounts families may not retain upon resale. The plan shall provide for
uncommitted program income to be spent before additional grant amounts
are drawn down by the recipient.
(22) Nondisplacement; participation by residents. The application
shall contain a certification by the applicant that no person has been
or will be displaced from his or her dwelling as a direct result of a
homeownership program under this notice. This does not preclude
termination of tenancy for violation of the terms of occupancy of a
unit. Each resident of an eligible property shall be given an
opportunity to become a homeowner under this program if the resident
qualifies as an eligible family and meets other program requirements.
(23) Nonduplication of funding. The application shall contain a
certification that the applicant has not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(24) Disclosures required by reform act. Section 102(b) of the HUD
Reform Act, Public Law 101-235 (December 15, 1989) requires disclosure
of other information concerning other government assistance to be made
available with respect to the program and parties with a pecuniary
interest in the homeownership program, and submission of a report on
expected sources and uses of funds to be made available for the program.
Each application shall include the information required by 24 CFR part
12, subpart C, the regulation that implements section 102(b) of the
Reform Act. An implementing notice for 24 CFR part 12, subpart C, is
being published in the Federal Register. Applicants shall use the form
and guidance contained in that notice to make the required disclosures.
(c) Screening by HUD. (1) HUD shall screen each application
submitted on or before the deadline set forth in the NOFA to determine
whether it is complete, is internally consistent, and contains correct
computations. Where HUD determines an application is deficient in one
or more of these areas, it shall notify the applicant in writing and
give it an opportunity to correct the deficiencies in its application.
However, the applicant may not substantially revise the application,
such as by substituting another eligible property or applicant or
changing other fundamental features of the program, because that would
not be fair to other applicants. The notification shall require
applicants to submit additional or correct material so it is received in
the appropriate HUD office no later than close-of business on the 14th
calendar day after the date of the notification to the applicant giving
it an opportunity to modify its application. HUD may not extend this
deadline for actual receipt of the material for any reason. HUD shall
not consider further any applications that do not meet one of the tests
in the first sentence of paragraph (c)(1) of this section, after the
opportunity, if any, to submit additional or corrected material, or fail
to comply with other program requirements.
(2) The purpose of this procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and may need
this additional opportunity to perfect their applications.
(Approved by the Office of Management and Budget under control number
2577-0132)
24 CFR 92.652 Section 420. Threshold review.
HUD shall review each application that qualifies for additional
consideration under the screening procedures in section 415(c). HUD
shall not consider further any application that fails to meet one or
more of the following additional threshold criteria --
(a) The application shall demonstrate that the affordability
standards in section 415(b)(12)(i) can be met and the plan for continued
affordability in section 415(b)(12)(ii) is feasible. HUD shall take
into account the proposed cost of operating the property after eligible
families become homeowners; the adequacy of counseling and training of
homebuyers, residents, and homeowners; and the extent to which the
proposed self-sufficiency activities assure continued affordability by
homeowners.
(b) The proposed costs of eligible activities are within applicable
cost limitations.
(c) The applicant's certification of compliance with equal
opportunity and related requirements and the statement concerning
desegregation orders, compliance agreements, and voluntary agreements
are consistent with facts known to HUD, and the performance of the
applicant is satisfactory or any problems are being satisfactorily
resolved.
(d) The application shall be submitted by an eligible applicant for
eligible property.
(e) The eligible property specified in the application shall be
located within the boundaries of a jurisdiction --
(1) Which is participating jurisdiction under the HOME program
established under title II of NAHA; or
(2) On behalf of which the agency responsible for affordable housing
has submitted a housing strategy or plan.
(f) The proposed program provides that at least 66 percent of units
will be acquired by eligible families (or such higher percentage as may
be required under State, local, or tribal law governing cooperative
associations or other form of homeownership used under the program).
24 CFR 92.652 Section 425. Rating, ranking, and selection of
applications.
(a) Rating. HUD shall review each application that it determines to
meet threshold requirements and assign it points in accordance with the
following selection criteria --
(1) Capability. The ability of the applicant to develop and carry
out the proposed homeownership program, taking into account the quality
of any related ongoing program of the applicant. In assigning points
for this criterion, HUD shall consider evidence in the application
demonstrating --
(i) The capability of the applicant to handle financial resources,
demonstrated through such evidence as previous experience and existing
financial control procedures, or by an explanation of how such
capability will be obtained -- 10 points.
(ii) The applicant has direct experience in working with or
representing residents of public or Indian housing developments -- 5
points.
(iii) If rehabilitation is proposed, the capability of the applicant
to manage the proposed rehabilitation, demonstrated through previous
experience in managing rehabilitation or construction, or by an
explanation of how such capability will be obtained -- 5 points.
(iv) If rehabilitation is proposed, the extent to which an
established resident-based organization will undertake substantial
program management responsibilities in implementing the proposed
homeownership program -- 5 points.
If rehabilitation is not being proposed, no points shall be assigned
for subcriteria (iii) and (iv) and the points for subcriteria (i) and
(ii) shall be increased to 15 and 10, respectively.
(v) A demonstration that the applicant or joint applicant is an RMC
or RC -- 5 points.
Maximum points for this criterion (1): 30 points.
(2) Local support. HUD shall assign points for this criterion based
on the extent to which funds for activities that do not qualify as
eligible activities will be provided in support of the homeownership
program, considering the extent to which the additional improvements,
amenities, and services enhance the homeownership program.
Maximum points for this criterion (2): 5 points.
(3) Resident and homebuyer interest and marketability. The extent of
resident and homebuyer interest in, and marketability of, the
development of a homeownership program for the eligible property.
(i) Where the development is less than 50 percent vacant, HUD shall
assign points based on the percentage of current residents of the
property interested in participating in the proposed homeownership
program, based on a survey conducted by the applicant and submitted to
HUD as part of the application.
(A) If 85 percent or more of the residents are interested: 10
points;
(B) If 66-84.99 percent of the residents are interested: 5 points;
or
(C) If 50-65.99 percent of the residents are interested: 0 points.
(ii) Where the development is 50 percent or more vacant, HUD shall
assign points based on the number of eligible families interested in
participating in the proposed homeownership program, based on a survey
conducted by the applicant and submitted to HUD as part of the
application. The purpose of the survey is to determine if there is a
sufficient pool of families eligible to purchase units in the proposed
eligible property.
(A) If there are 2.0 or more interested eligible families for each
unit in the proposed property not occupied by a family interested in
homeownership: 10 points;
(B) If there are 1.5-1.99 interested eligible families for each unit
in the proposed property not occupied by a family interested in
homeownership: 5 points.
(C) If there are 1.2-1.49 eligible families: 0 points. Maximum
points for this criterion (3): 10 points.
(4) Quality and feasibility of program. The quality and feasibility
of the proposed homeownership program, including the viability of the
economic self-sufficiency plan. In assigning points for this criterion,
HUD shall consider evidence in the application demonstrating --
(i) The overall soundness and comprehensiveness of the homeownership
program -- 5 points.
(ii) The extent to which the applicant (or other appropriate entity
identified in the application) is currently implementing effective
homebuyer screening procedures, homebuyer supportive services, and other
management practices intended to reduce the number of delinquencies in
rent payments or foreclosures, or the extent to which the plan covering
these activities contained in the application will be successful -- 10
points.
(iii) The extent to which proposed economic development activities
will result in continued affordability of the property after assistance
for operating expenses is no longer available -- 10 points.
If no assistance for operating assistance is being required and if
the application demonstrates that no economic development assistance is
needed, no points shall be assigned under subcriterion (iii), and the
points for subcriteria (i) and (ii) shall be increased to 10 and 15,
respectively.
Maximum points for this criterion (4): 25 points
(5) Relationship to CHAS. Whether the approved CHAS for the
jurisdiction within which the eligible property is located includes
homeownership as one of the general priorities identified pursuant to
section 105(b)(7) of NAHA. This criterion shall not be used to rate an
application submitted by an Indian tribe or IHA. The maximum score for
such an application will be 95. The percentage of points earned by an
applicant, based on its maximum point total of 95, will be multiplied by
100 (the maximum number of points for other applicants) to determine the
points for purposes of ranking.
Points for this criterion (5): 5 points.
(6) Efficient use of grant. The extent to which the proposed program
will result in the lowest total cost per unit in comparison to other
applications. Factors that will affect the cost will include the number
of non-purchasing residents in the property and the need to use the
implementation grant to fund the replacement housing plan.
Maximum points for this criterion (6): 10 points.
(7) Suitability of the property. The suitability of the eligible
property for homeownership. Suitability for homeownership shall be
determined based on --
(i) Proximity or accessibility of the property to places of
employment, shopping, schools, medical facilities, transportation,
places of worship, recreational facilities, and other necessary services
for the families under the program -- 3 points;
(ii) Whether the surrounding neighborhood is free from conditions
which are seriously detrimental to the quality of life; substandard
dwellings or other undesirable elements must not predominate, unless the
undesirable conditions affecting the property are being actively
mitigated -- 3 points; and
(iii) Whether the structure type and bedroom configuration are (or
will be after any proposed rehabilitation) appropriate for the proposed
homeownership program, taking into account that no residents in
occupancy on the date HUD approves an implementation grant may be
evicted by reason of a homeownership program -- 4 points.
The review will be made in the context of where public or Indian
housing is typically located.
Maximum points for this criterion (7): 10 points.
(8) MBE/WBE goals.
(i) The extent to which the applicant demonstrates a firm commitment
to promoting the use of minority business enterprises and women-owned
businesses, especially resident-owned businesses. For example, the
applicant has used such businesses in the past, has set forth specific
affirmative steps it will take to ensure that such businesses have an
equal opportunity to obtain and compete for contracts, or both. These
steps may include the steps outlined at 24 CFR 85.36(e) and
570.506(g)(6), but may not include awarding contracts solely or in part
on the basis of race or gender. See section 505(d) for the legal basis
for this criterion.
(ii) In the case of applications submitted by Indian tribes or IHAs,
the requirements of the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450e(b), apply. Accordingly, for such
applicants, points for this factor shall be assigned based on the extent
to which the applicant demonstrates a firm commitment to promoting the
use of minority business enterprises and women-owned businesses, to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act.
Maximum points for this criterion 8(i) or (ii), as applicable: 5
points.
(9) Appreciable reduction of public or Indian housing in the
locality. HUD shall deduct points for an application that would
appreciably reduce the public or Indian housing stock in a locality
under the jurisdiction of the PHA for the eligible property. In
determining the number of public or Indian housing units for this
purpose, the number of units proposed for homeownership under the
application shall be adjusted by subtracting the number to be replaced
through the development of additional public or Indian housing or the
rehabilitation of vacant public or Indian housing units, since, in those
cases, the public and Indian housing stock is not being reduced. Points
shall be deducted in accordance with the following standards:
(i) An application shall have no points deducted from its score if
the sale proposed by the application reduces the availability of public
or Indian housing by less than 15%.
(ii) An application shall have 5 points deducted from its score if
the sale proposed by the application reduces the availability of public
or Indian housing by 15% or more but less than 33%.
(iii) An application shall have 10 points deducted from its score if
the sale proposed by the application reduces the availability of public
or Indian housing by 33% or more but less than 50%.
(iv) An application shall have 12 points deducted from its score if
the sale proposed by the application reduces the availability of public
or Indian housing by 50% or more but less than 66%.
(v) An application shall have 15 points deducted from its score if
the sale proposed by the application reduces the availability of public
or Indian housing by 66% or more. Total number of points -- 100 points.
HUD intends to amend the rating system in the final rule by providing
for 5 bonus points if an applicant has been a successful planning grant
recipient. This will reward applicants who have already been developing
HOPE 1 homeownership programs. Comments are particularly invited on
whether HUD should include this change in the final rule.
(b) Environmental review. (1) HUD shall conduct an environmental
review of the applications.
(2) In conducting the environmental review, HUD shall assess the
environmental effects of each application in accordance with the
provisions of the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321) and HUD's implementing regulations at 24 CFR part 50. Any
application that requires an environmental impact statement (generally,
those that HUD determines would have a significant impact on the human
environment, in accordance with the environmental assessment procedures
at 24 CFR part 50, subpart E) shall not be eligible for funding.
(3) As a result of the environmental review, HUD may find that it
cannot approve an application unless adequate measures to mitigate
environmental impacts are taken. (See, for example, 24 CFR part 51.)
Accordingly, HUD may adjust the rating scores of such applications,
based on the anticipated time delays or excessive costs in adopting
appropriate impact mitigation. For example, the feasibility of the
program or the availability of an eligible property may be harmed by any
significant delay.
(4) The environmental review often will reveal information not
contained in the application that may have relevance to the selection
process. HUD shall make further adjustments to the ratings, where
appropriate, based on the information revealed during the environmental
review.
(c) Ranking and selection to assure national geographic diversity.
(1) After assigning points to each application under paragraph (a) of
this section, HUD shall rank the applications in order. HUD shall
examine the ranking and, where it determines that applications falling
below a certain point total are not suitable or not feasible for
homeownership under the program, it may establish a minimum number of
points for an application to be selected. HUD shall then select the
highest ranking application from each of the 10 HUD Regions. If none of
the 10 applications involves an Indian housing development and
sufficient funds are available, the highest ranking application
involving an Indian housing development shall also be approved.
(2) HUD shall then select the highest ranking remaining applications,
without regard to their location.
(3) If two or more applications have the same number of points, the
application submitted by an RMC or RC shall be selected. If there is
still a tie, the application with the most points for capability shall
be selected. If there is still a tie, the application with the most
points for efficiency shall be selected.
(4) When the amount remaining after funding as many of the highest
ranking applications as possible is insufficient for the next highest
ranking application, HUD shall determine if it is feasible to fund part
of the application, with the remainder to be funded ''off the top'' from
possible future funding rounds. If so, that application shall be
funded. If not, HUD shall make the same determination for the next
highest application or applications. Any remaining amounts shall be
used in accordance with paragraphs (f) and (g) of this section.
(5) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding the application from any
unused amounts or ''off the top'' from amounts available for
implementation grants in the next funding round.
(d) Reduction in requested grant amounts. HUD shall approve an
application for an amount lower than the amount requested or adjust line
items in the proposed budget within the amount requested (or both) if it
determines the amount requested for one or more eligible activities is
unreasonable or unnecessary or does not otherwise meet applicable cost
limitations established for the program.
(e) Notification of approval or disapproval. (1) Notification of
applicants. After completion of the ranking and selection of
applications, but no later than six months after the date of submission
of the application, HUD shall notify the selected applicants and the
applicants that have not been selected, in writing. The amount of the
required match may be adjusted when HUD approves an application, to
reflect the approved grant amount.
(2) Conditional approval of section 8 applications. HUD may approve
the HOPE grant application with a statement that the application for the
section 8 certificate or housing voucher assistance (or both) is
conditionally approved, subject to the availability of appropriations in
subsequent fiscal years. This will permit HUD to use section 8
authority for other purposes until it is needed for the HOPE 1 program
for nonpurchasing residents or for replacement housing.
(f) Use of remaining amounts to fund HOPE 1 planning grants. Any
amounts available to fund implementation grants that are not needed
because there are insufficient approvable applications shall be used to
fund the highest ranked, unfunded planning grant applications.
(g) Insufficient approvable applications.
If funds remain after HUD approves all approvable applications,
including planning grant applications, as provided in this notice, HUD
may publish a NOFA inviting planning grant or implementation grant
applications, or both, in accordance with this notice, or invite
applicants who submitted applications that could not be funded to submit
amended planning grant or implementation grant applications in
accordance with this notice within a deadline specified in the
invitation. Any remaining amounts shall be added to amounts available
for subsequent funding rounds.
24 CFR 92.652 V. Other Requirements
24 CFR 92.652 Section 501. Flood insurance and coastal barriers
resources act.
(a) Flood insurance. Pursuant to the Flood Disaster Protection Act
of 1973 (42 U.S.C. 4001-4128) HUD will not approve applications for
implementation grants providing financial assistance for acquisition or
rehabilitation of properties located in an area identified by the
Federal Emergency Management Agency (FEMA) as having special flood
hazards, unless --
(1) The community in which the area is situated is participating in
the National Flood Insurance program (see 44 CFR Parts 59 through 79),
or less than one year has passed since FEMA notification regarding such
hazards; and
(2) Flood insurance is obtained as a condition of approval of the
application.
(b) Coastal barriers resources act. Pursuant to the Coastal Barrier
Resources Act (16 U.S.C. 3601), HUD will not approve applications for
planning or implementation grants for properties in the Coastal Barrier
Resources System.
24 CFR 92.652 Section 505. Nondiscrimination and equal opportunity.
(a) Fair housing requirements. (1) The requirements of the Fair
Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR
part 100, part 109, and part 110; Executive Order 11063, as amended by
Executive Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980
Comp., p. 307) (Equal Opportunity in Housing) and implementing
regulations at 24 CFR part 107; and Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR part 1 shall
apply.
(2) The Indian Civil Rights Act (25 U.S.C. 1301 et seq.) applies to
tribes when they exercise their powers of self-government. Thus, it is
applicable in all cases when an IHA has been established by exercise of
such powers. In the case of an IHA established pursuant to State law,
the applicability of the Indian Civil Rights Act shall be determined on
a case-by-case basis. Developments subject to the Indian Civil Rights
Act shall be developed and operated in compliance with its provisions
and all implementing HUD requirements, instead of title VI and the Fair
Housing Act and their implementing regulations.
(b) Discrimination on the basis of age or handicap. The prohibitions
against discrimination on the basis of age under the Age Discrimination
Act of 1975 (42 U.S.C. 6101-07) and implementing regulations at 24 CFR
part 146, and the prohibitions against discrimination against
handicapped individuals under section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8 shall
apply.
(c) Employment opportunities. (1) The requirements of section 3 of
the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u)
(Employment Opportunities for Lower Income Persons in Connection with
Assisted Projects) shall apply. In addition, Executive Order 11246 (3
CFR 1964-1965 Comp., p. 339) (Equal Employment Opportunity) and
implementing regulations at 41 CFR part 60 shall apply.
(2) In the case of Indian tribes and IHAs, the requirements of the
Indian Self-Determination and Education Assistance Act shall also apply
(see 25 U.S.C. 450e(b); 24 CFR 905.165 (a) and (b) and 905.360);
compliance with Executive Order 11246 and 41 CFR part 60 shall be to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act (see 24 CFR 905.170(b)
and 905.360).
(d) Minority and women's business enterprises. The requirements of
Executive Orders 11625, 12432, and 12138 shall apply. Consistent with
HUD's responsibilities under these Orders, recipients must make efforts
to encourage the use of minority and women's business enterprises in
connection with funded activities. In the case of applications
submitted by Indian tribes or IHAs, recipients' efforts must be
consistent with, but not in derogation of, the Indian Self-Determination
and Education Assistance Act, 25 U.S.C. 450e(b).
(e) Affirmative fair housing marketing. The recipient shall adopt a
plan for informing and soliciting applications from people who are least
likely to apply for the program without special outreach, consistent
with the affirmative fair housing marketing requirements. See 24 CFR
part 108. This paragraph shall not apply to Indian tribes and IHAs, as
described in paragraph (a)(2) of this section.
(f) Authority for collection of racial, ethnic, and gender data. HUD
requires submission of racial, ethnic, and gender data under this notice
pursuant to section 562 of the Housing and Community Development Act of
1987, section 309 of the United States Housing Act of 1937, and section
808(e)(6) of the Fair Housing Act.
24 CFR 92.652 Section 510. OMB circulars.
(a) The policies, guidelines, and requirements of OMB Circular Nos.
A-87 (Cost Principles Applicable to Grants, Contracts and Other
Agreements with State and Local Governments) and 24 CFR part 85
(Administrative Requirements for Grants and Cooperative Agreements to
State, Local and Federally Recognized Indian Tribal Governments) apply
to the award, acceptance, and use of assistance under the program by
governmental entities, and to the remedies for non-compliance, except
where inconsistent with the provisions of NAHA, other Federal statutes,
or this notice. Circular Nos. A-110 (Grants and Cooperative Agreements
with Institutions of Higher Education, Hospitals, and Other Nonprofit
Organizations) and A-122 (Cost Principles Applicable to Grants,
Contracts and Other Agreements with Nonprofit Institutions) apply to the
acceptance and use of assistance by private nonprofit organizations,
except where inconsistent with the provisions of NAHA, other Federal
statutes, or this notice. Recipients are also subject to the audit
requirements of OMB Circular A-128 implemented at 24 CFR part 44, and
OMB Circular A-133 (Audits of Institutions of Higher Learning and Other
Nonprofit Institutions).
(b) Copies of OMB Circulars may be obtained from E.O.P.
Publications, room 2200, New Executive Office Building, Washington, DC
20503, telephone (202) 395-7332 (this is not a toll-free number). There
is a limit of two free copies.
24 CFR 92.652 Section 515. Drug-free workplace.
Applicants shall certify that they will provide a drug-free
workplace, in accordance with the Drug-free Workplace Act of 1988 and
HUD's implementing regulations at 24 CFR part 24, subpart F.
24 CFR 92.652 Section 520. Anti-lobbying certification.
(a) Section 319 of Public Law 101-121 prohibits recipients of Federal
contracts, grants, and loans from using appropriated funds for lobbying
the Executive or Legislative Branches of the Federal Government. A
government-wide common rule governing the restrictions on lobbying was
published as an interim rule on February 26, 1990 (55 FR 6736) and
supplemented by a notice published June 15, 1990 (55 FR 24540). For
HUD, this rule is found at 24 CFR part 87. The rule requires applicants
for and recipients of assistance exceeding $100,000 to certify that no
Federal funds have been or will be spent on lobbying activities in
connection with the assistance. The rule also requires disclosures from
applicants and recipients if nonappropriated funds have been spent or
committed for lobbying activities if those activities would be
prohibited if paid with appropriated funds. The law provides
substantial monetary penalties for failure to file the required
certification or disclosure.
(b) This section shall not apply to Indian tribes or IHAs. Indian
tribes, tribal organizations, or any other Indian organization with
respect to expenditures specifically permitted by other Federal law are
not covered by the definition of ''person'' in 24 CFR part 87.
24 CFR 92.652 Section 525. Debarred or suspended contractors.
The provisions of 24 CFR part 24 apply to the employment, engagement
of services, awarding of contracts, subgrants, or funding of any
recipients, or contractors or subcontractors, during any period of
debarment, suspension, or placement in ineligibility status.
24 CFR 92.652 Section 530. Conflict of interest.
(a) In addition to the conflict of interest requirements in OMB
Circular A-110 /2/ and 24 CFR part 85, no person who is an employee,
agent, consultant, officer, or elected or appointed official of the
recipient and who exercises or has exercised any functions or
responsibilities with respect to assisted activities, or who is in a
position to participate in a decision-making process or gain inside
information with regard to such activities, may obtain a financial
interest or benefit from the activity, or have an interest in any
contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for himself or herself or for those with
whom he or she has family or business ties, during his or her tenure or
for one year thereafter, except that a resident of an eligible property
may acquire a homeownership interest.
(b) HUD may grant an exception to the exclusion in paragraph (a) of
this section on a case-by-case basis when it determines that such an
exception will serve to further the purposes of the HOPE program and the
effective and efficient administration of the local homeownership
program. An exception may be considered only after the applicant or
recipient has provided a disclosure of the nature of the conflict,
accompanied by an assurance that there has been public disclosure of the
conflict and a description of how the public disclosure was made and an
opinion of the applicant's or recipient's attorney that the interest for
which the exception is sought would not violate State or local laws. In
determining whether to grant a requested exception, HUD shall consider
the cumulative effect of the following factors, where applicable:
(1) Whether the exception would provide a significant cost benefit or
an essential degree of expertise to the local homeownership program that
would otherwise not be available;
(2) Whether an opportunity was provided for open competitive bidding
or negotiation;
(3) Whether the person affected is a member of a group or class
intended to be the beneficiaries of the activity and the exception will
permit such person to receive generally the same interests or benefits
as are being made available or provided to the group or class;
(4) Whether the affected person has withdrawn from his or her
functions or responsibilities, or the decisionmaking process, with
respect to the specific activity in question;
(5) Whether the interest or benefit was present before the affected
person was in a position as described in paragraph (b) of this section;
(6) Whether undue hardship will result either to the applicant,
recipient, or the person affected when weighed against the public
interest served by avoiding the prohibited conflict; and
(7) Any other relevant consideration.
/2/ See section 510(b) concerning the availability of OMB Circulars.
24 CFR 92.652 Section 535. Labor standards.
Pursuant to section 12 of the 1937 Act, Davis-Bacon or HUD-determined
prevailing wage rates (or both) shall apply to activities under the HOPE
1 program, except that these wage rate requirements do not apply to
volunteers under the conditions set out in 24 CFR part 70. In addition,
if other Federal programs are used in connection with the HOPE 1
homeownership program, labor standards requirements apply to the extent
required by such other Federal programs. For example, if the Public and
Indian Housing Modernization or CDBG program is used in connection with
the program, the labor standards requirements of those programs would
apply to the extent required by them.
24 CFR 92.652 Section 540. Lead-based paint testing and abatement.
Any residential property assisted under the HOPE program established
under this notice constitutes HUD-associated housing for the purpose of
the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.)
and is, therefore, subject to 24 CFR part 35. Unless otherwise
provided, recipients shall be responsible for testing and abatement
activities.
24 CFR 92.652 Section 545. Requirements applicable to religious
organizations.
Where the applicant is, or proposes to contract with, a primarily
religious organization, or a wholly secular organization established by
a primarily religious organization, to provide, manage, or operate
housing under the program, the organization shall undertake its
responsibilities under the homeownership program in accordance with the
following principles:
(a) It will not discriminate against any employee or applicant for
employment under the program on the basis of religion and will not limit
employment or give preference in employment to persons on the basis of
religion;
(b) It will not discriminate against any person applying for housing
on the basis of religion and will not limit such housing or give
preference to persons on the basis of religion;
(c) It will provide no religious instruction or counseling, conduct
no religious services or worship (which term does not include voluntary,
non-denominational prayer before meetings), engage in no religious
proselytizing, and exert no other religious influence in the provision
of assistance under the homeownership program.
24 CFR 92.652 VI. Grant Agreement -- Planning and Implementation Grants
24 CFR 92.652 Section 601. Grant agreement.
After HUD approves an application for a planning grant or an
implementation grant, it shall enter into a grant agreement with the
recipient setting forth the amount of the grant and applicable terms and
conditions, including sanctions for violation of the agreement. Among
other things, the grant agreement shall provide that the recipient
agrees:
(a) To carry out the program in accordance with the provisions of
this notice, applicable law, the approved application, and all other
applicable requirements;
(b) To comply with such other terms and conditions, including
recordkeeping and reports, as HUD may establish for the purposes of
administering, monitoring, and evaluating the program in an affective
and efficient manner;
(c) That HUD may withhold, withdraw, or recapture any portion of a
grant, terminate the grant agreement, or take other appropriate action
authorized under the grant agreement, if HUD determines that the
recipient is failing to carry out the approved homeownership program in
accordance with the terms of the approved application and this notice,
including failure to provide the contribution towards the match.
24 CFR 92.652 VII. Implementation of Planning and Implementation Grants
24 CFR 92.652 Section 701. Implementation; family contribution;
performance standards.
(a) After execution of its planning or implementation grant
agreement, the recipient shall carry out the planning grant or
implementation grant activities in accordance with its approved
application. HUD shall establish procedures governing the drawdown of
funds under grant agreements.
(b) The total monthly amount payable by a family may not be less than
the amount determined in accordance with 24 CFR part 905 or 913, as
appropriate, if operating assistance under the program is being provided
for the family. The amount payable by a family shall be adjusted at
least annually in accordance with the requirements of those regulations
so long as operating assistance is being provided under the program for
the family.
(c) HUD intends to establish performance criteria in the final rule
for the program and invites comments on what the standards should be.
24 CFR 92.652 Section 705. Resident selection procedures during rental
phase (if any).
During the interim period, if any, when the property continues to be
operated and managed as rental housing, the recipient shall utilize
written resident selection policies and criteria that are consistent
with the public or Indian housing program and approved by HUD as
consistent with the purpose of improving housing opportunities for
low-income families. The policies shall provide that the recipient (or
another appropriate entity) (a) notify any rejected applicant in writing
of the grounds for rejection; (b) comply with applicable affirmative
fair housing marketing requirements; (c) specify the basis for resident
selection, which shall give a preference to applicants interested in
becoming homeowners who have completed participation in an economic
self-sufficiency program (see section 415(b)(5)(i)(B)) and other
applicants interested in becoming homeowners and shall provide for a
waiting list; and (d) verify family income of applicants and check the
credit and rental history of applicants. The resident selection
policies and criteria may not provide for the recipient (or other
entity) to take into account whether an applicant receives public
assistance or receives Federal, State, or local housing assistance, but
may take into account such assistance, and all other income and other
resources, in determining the amount a family will pay under the
program. The recipient may adopt the public housing or Indian housing
occupancy handbook, with any appropriate modifications (including, at
least, establishing a priority for applicants interested in
homeownership).
24 CFR 92.652 Section 710. Social security numbers.
As a condition of eligibility for homeownership under this notice --
(a) At the time a family applies for homeownership, the recipient (or
other appropriate entity) shall require the family to meet the
requirements for the disclosure and verification of social security
numbers, as provided by 24 CFR part 750; and
(b) The recipient (or other appropriate entity) shall require the
family to sign and submit consent forms for the obtaining of wage and
claim information from State Wage Information Collection Agencies, as
provided by 24 CFR part 760.
24 CFR 92.652 Section 715. Timely homeownership.
(a) Deadline for transfer. Recipients shall transfer ownership
interests in the property to eligible families within a reasonable
period of time.
(b) Definition of reasonable period of time. (1) Where applicable,
the PHA/IHA shall transfer the property to the recipient (or other
entity) within one year of the effective date the implementation grant
agreement. Where the development contains 50 units or fewer, transfer
of ownership interests to eligible families within two years of the date
the entity that acquires the development (or the effective date of the
implementation grant agreement where the PHA/IHA is that entity) shall
be considered reasonable. Where the development contains more than 50
units, transfer of ownership interests to eligible families within five
years shall be considered reasonable.
(2) An applicant may propose in its application a longer period for
transferring ownership interests to eligible families, and submit a
justification. After application approval, HUD may approve a request
for a longer deadline for transfer to eligible families, where it
determines that unanticipated, extraordinary circumstances exist.
Subject to the availability of funding, HUD may consider making
additional section 8 assistance available to residents in the property
where necessary to maintain its feasibility during the time the causes
for the delay are being corrected. This could become necessary if
residents who intended to purchase change their minds and need
assistance to afford the rents in the property.
24 CFR 92.652 Section 720. Restrictions on resale by initial
homeowners.
(a) In general. (1) Transfer Permitted -- (i) A homeowner may
transfer the homeowner's ownership interest in the unit, subject only to
the right to purchase under paragraph (a)(2) of this section, the
requirement for the purchaser to execute a promissory note, if required
under paragraph (b) of this section, and the limitation on the amount of
sales proceeds a family may retain upon sale within the first six years,
as required under paragraph (c) of this section. See paragraphs (b) and
(c) of this section for the rules for determining the amount homeowners
may retain from the sales proceeds.
(ii) Notwithstanding paragraph (a)(1)(i) of this section, an
applicant may propose in its application, and HUD may approve based on a
review of the individual circumstances, additional reasonable
restrictions on the resale of units under the program.
(2) Right to purchase.
(i) Where an RMC, RC, or cooperative has jurisdiction over the unit,
it shall have the prior right to purchase the ownership interest in the
unit from the initial homeowner for the amount specified in a firm
contract between the homeowner and a prospective buyer. The RMC, RC, or
cooperative association shall have 10 days after receiving notice of the
firm contract to decide whether to exercise its right and 60 additional
days to complete closing of the purchase.
(ii) If no RMC, RC, or cooperative has jurisdiction over the unit or
no such entity elects to purchase from the initial homeowner and if the
prospective buyer is not a low-income family, a PHA/IHA with
jurisdiction for the area in which the unit is located or the recipient,
as specified in writing at the time the family acquires ownership
interest in the unit, shall have the prior right to purchase the
ownership interest in the unit for the amount specified in the firm
contract. The PHA/IHA or recipient shall have 10 days after receiving
notice of the firm contract to decide whether to exercise its right and
60 additional days to complete closing of the purchase.
(iii) Where an RMC, RC, cooperative, PHA/IHA, or recipient exercises
a right to purchase, it shall resell the unit to an eligible family
promptly. If the PHA/IHA exercises a right to purchase shares
representing a unit in a cooperative, because the cooperative did not
have sufficient money to do so, the PHA/IHA shall give the cooperative
another chance to purchase the shares before selling it to an eligible
family.
(b) Promissory note. (1)(i) At closing, the initial homeowner shall
execute a nonamortizing, nonrecourse, non-interest-bearing promissory
note, in a form acceptable to HUD, equal to the difference, if any,
between the fair market value of the unit and the purchase price,
payable to the PHA/IHA, recipient, or other entity designated in the
approved homeownership plan, together with a mortgage securing the
obligation of the note. In determining the amount of the promissory
note and for that purpose only, the purchase price shall be adjusted by
deducting all substantial amounts of assistance that would result in an
undue profit to the family if it were to sell the property at the
beginning of the 7th year of homeownership. (See paragraph (c) of this
section for restrictions during the first six years.) For example, if
the family received down payment assistance equal to 10 percent or more
of the fair market value of the unit, a promissory note shall be
required.
(ii)(A) With respect to a sale by an initial homeowner, the note
shall require payment upon sale by the initial homeowner, to the extent
proceeds of the sale remain after paying off other outstanding debt
secured by the property that was incurred for the purpose of acquisition
or property improvement, paying any other amounts due in connection with
the sale (such as closing costs and transfer taxes), and paying the
family the amount of its equity in the property, computed in accordance
with paragraph (c) of this section.
(B) With respect to a sale by an initial homeowner after the first
six years after acquisition, through the 20th year, the amount payable
under the note shall be reduced by 1/168 of the original principal
amount of the note for each full month of ownership by the family after
the end of the sixth year. The homeowner may retain all other proceeds
of the sale.
(C) For example, if the family sells at the end of the 13th year of
homeownership (at the half-way point between the end of the sixth year
and the end of the 20th year of ownership), 84/168 (or one-half) of the
note would be forgiven, and only half of the principal amount of the
note would be payable from sales proceeds. The family could retain all
remaining proceeds, including proceeds due to normal market value
increases in the value of the property. If the initial homeowner
retains ownership for 20 or more years, the entire amount of the note
would be forgiven.
(2)(i) Where a subsequent purchaser during the 20-year period,
measured by the term of the initial promissory note, purchases the
property for less than the current fair market value, the purchaser
shall also execute at closing such a promissory note and mortgage, for
the amount of the discount (but no more than the amount payable at the
time of the sale on the promissory note by the seller). The term of the
promissory note shall be the period remaining of the original 20-year
period. The note shall require payment upon sale by the subsequent
homeowner, to the extent proceeds of the sale remain after covering
costs of the sale, paying off other outstanding debt secured by the
property that was incurred for the purpose of acquisition or property
improvement, and paying any other amounts due in connection with the
sale. The amount payable on the note shall be reduced by a percentage
of the original principal amount of the note for each full month of
ownership by the subsequent homeowner. The percentage shall be computed
by determining the percentage of the term of the promissory note the
homeowner has owned the property. The remainder may be retained by the
subsequent homeowner selling the property.
(ii) For example, if the subsequent homeowner acquires the property
from an initial homeowner at the end of year 4, there are 192 months (16
years 12) remaining in the 20-year period. The term of the promissory
note is 16 years. If the subsequent homeowner sells at the end of year
10, having owned the property for 72 months (6 years 12), 72/192 (37.5
percent) of the note would be forgiven, and 62.5 percent of the
principal amount of the note would be payable from sales proceeds. The
family could retain all remaining proceeds, including proceeds due to
normal market value increases in the value of the property. If the
subsequent homeowner retains ownership to the end of the initial 20-year
period (for 16 years, in the example), the entire amount of the note
would be forgiven.
(c) Limitation on equity interest an initial homeowner may retain
from sale during first six years. (1) The HOPE program is designed to
assure that an initial or subsequent homeowner does not receive any
undue profit from acquiring a unit under the program and that, to the
extent the sales price is sufficient, an initial homeowner recovers the
equity interest in the property. With respect to any sale by an initial
homeowner during the first six years after acquisition, the family may
retain only the amount computed under paragraph (c) of this section.
Any excess shall be distributed as provided in paragraph (d) of this
section. The amount of equity an initial homeowner has in the property
is determined by computing the sum of the following --
(i) The contribution to equity paid by the family (such as any down
payment (in the form of cash or the value of sweat equity) and any
amount paid towards principal on a mortgage loan during the period of
ownership);
(ii) The value of any improvements installed at the expense of the
family during the family's tensure as owner (including improvements made
through sweat equity), as determined by the recipient or other entity
specified in the approved application based on evidence of amounts spent
on the improvements, including the cost of material and labor; and
(iii) The appreciated value, determined by applying the Consumer
Price Index (Urban Consumers) against the contribution to equity under
paragraphs (c)(1) (i) and (ii) of this section.
(2) The recipient (or other entity) may, at the time of initial sale,
enter into an agreement with the family to set a maximum amount which
this appreciation may not exceed.
(3) Amounts that count towards a family's equity may not also count
towards the match.
(d) Use of amounts a family may not retain. Fifty percent of any
portion of the net sales proceeds that may not be retained by the
homeowner under paragraphs (a)(1)(ii), (b), and (c) of this section
shall be paid to the entity that transferred ownership interests in
units to eligible families, or another entity specified in the approved
application, for use for improvements to the project, business
opportunities for low-income families, supportive services related to
the homeownership program, additional homeownership opportunities
(including assistance for additional homeowners who are otherwise unable
to cover the costs of homeownership), and other activities approved by
HUD in the approved homeownership program or later. The remaining 50
percent shall be collected by the recipient and returned to HUD within
15 days of the sale for use under the HOPE 1 program, subject to any
limitations contained in appropriations Acts.
24 CFR 92.652 Section 725. Use of proceeds from sales to eligible
families.
The entity that transfers ownership interests in units to eligible
families, or another entity specified in the approved application, shall
use the proceeds, if any, from the initial sale for costs of the
homeownership program, including operating expenses, improvements to the
project, business opportunities for low-income families, supportive
services related to the homeownership program, additional homeownership
opportunities, and other activities approved by HUD, either as part of
the approved application or later on request.
24 CFR 92.652 Section 730. Third party rights.
The requirements under this notice regarding housing quality
standards, resale, or transfer of the ownership interest of a homeowner
shall be judicially enforceable against the recipient with respect to
actions involving rehabilitation, and against purchasers of eligible
property under the HOPE program or their successors in interest (to the
extent such requirements apply to purchasers and their successors in
interest) with respect to other actions by affected low-income families,
RMCs, RCs, PHAs/IHAs, and any agency, corporation, or authority of the
United States government. The parties specified in the preceding
sentence shall be entitled to reasonable attorney fees upon prevailing
in any such judicial action.
24 CFR 92.652 Section 735. Displacement prohibited; protection of
nonpurchasing residents.
(a) Displacement prohibited. No person may be displaced from his or
her dwelling as a direct result of a homeownership program under this
notice. This does not preclude terminations of tenancy for violation of
the terms of occupancy of the unit. In addition to any applicable
sanctions under the grant agreement, a violation of paragraph (a) of
this section may trigger a requirement to provide relocation assistance
in accordance with the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 and government-wide implementing
regulations at 49 CFR part 24.
(b) Temporary relocation. The recipient shall provide each resident
of an eligible property, who is required to relocate temporarily to
permit work to be carried out, with suitable, decent, safe, and sanitary
housing for the temporary period and shall reimburse the resident for
all reasonable out-of-pocket expenses incurred in connection with the
temporary relocation, including the costs of moving to and from the
temporarily occupied housing and any increase in monthly costs of rent
and utilities.
(c) Relocation assistance for residents who elect to move. The
recipient shall provide each nonpurchasing resident who elects to move
with relocation assistance in accordance with the approved homeownership
program.
(1) The program shall provide, at least, the following assistance:
(i) Advisory services including timely information, counseling
(including the provision of information on a resident's rights under the
Fair Housing Act), and referrals to suitable, affordable, decent, safe,
and sanitary alternative housing;
(ii) Payment for actual, reasonable moving expenses; and
(iii) Relocation housing assistance sufficient to permit relocation
to suitable, affordable, decent, safe, and sanitary housing. This
requirement is met if a family receives assistance as provided in
paragraph (c)(3) of this section. For other families, this requirement
is met if the cost of the housing to the family does not exceed the
higher of 30 percent of adjusted family income or the amount paid by the
family for the unit being vacated, and the housing is otherwise suitable
and decent, safe, and sanitary.
(2) If a resident residing in an eligible property on the date HUD
approved an application for an implementation grant decides not to
purchase a unit, or is not qualified to do so under the terms of the
approved homeownership program, the recipient shall, during the term of
any operating assistance under the implementation grant, permit each
otherwise qualified resident to elect to continue to reside in the
project at rents that do not exceed levels determined under 24 CFR part
913 or, for Indian housing developments, part 905.
(3) If an otherwise qualified resident chooses to move (at any time
during the term of the operating assistance contract), the PHA/IHA
shall, if possible, offer the resident (i) a unit in another public or
Indian housing development, or (ii) a section 8 certificate or voucher
for use in other housing, without regard to otherwise applicable Federal
or PHA/IHA preferences.
(d) Other rights. Tenants residing in a unit in a public or Indian
housing development transferred under this notice shall have all rights
provided to tenants of public or Indian housing under the 1937 Act.
(e) Notice of relocation assistance. As soon as feasible, each
recipient shall give each resident of an eligible property a written
description of the applicable provisions of this section.
24 CFR 92.652 VIII. Records, Reports, and Audit of Recipients
24 CFR 92.652 Section 801. Recordkeeping
(a) General records. Each recipient shall keep records that will
facilitate an effective audit to determine compliance with program
requirements and that fully disclose --
(1) The amount and disposition by the recipient of the planning and
implementation grants received under this notice, including sufficient
records that document the reasonableness and necessity of each
expenditure;
(2) The amount and disposition of proceeds from financing obtained in
connection with the program, sales to eligible families, and any funds
recaptured upon sale by the homeowner;
(3) The total cost of the homeownership program;
(4) The amount and nature of any other assistance, including cash,
property, services, or other items contributed as a condition of
receiving an implementation grant;
(5) The cost or other value of all in-kind contributions towards the
match required by section 410; and
(6) Any other proceeds received for, or otherwise used in connection
with, the homeownership program.
(b) Family size and income and racial, ethnic, and gender data. The
recipient shall maintain records on the family size and income, and
racial, ethnic, and gender characteristics, of families who apply for
homeownership and families who become homeowners.
(c) Cooperative and condominium agreements. The recipient shall
maintain a copy of any condominium and cooperative association
agreements for properties under the approved homeownership program.
(d) Amounts available for reuse. The recipient shall keep and make
available to HUD all records necessary to calculate accurately payments
due to HUD under section 720(d) and section 725.
(Approved by the Office of Management and Budget under control number
2577-0132)
24 CFR 92.652 Section 805. Reports
The recipient shall submit reports required by HUD.
(Approved by the Office of Management and Budget under control number
2577-0132)
24 CFR 92.652 Section 810. Access by HUD and the Comptroller General.
For the purpose of audit, examination, monitoring, and evaluation
each recipient shall give HUD (including any duly authorized
representatives and the Inspector General) and the Comptroller General
of the United States (and any duly authorized representatives) access to
any books, documents, papers, and records of the recipient that are
pertinent to assistance received under this notice, including all
records required to be kept by section 801.
24 CFR 92.652 IX. Waiver Authority
24 CFR 92.652 Section 901. Waiver authority.
Upon determination of good cause, the Secretary of Housing and Urban
Development may waive any provision of this notice, not otherwise
required by law, except provisions that establish deadlines for receipt
of any modifications to applications. Each such waiver shall be in
writing and shall be supported by documentation of the pertinent facts
and grounds. This waiver authority may be exercised by the Secretary or
the Assistant Secretary for Public and Indian Housing. Where another
HUD program regulation is involved, the Secretary or the appropriate
Assistant Secretary may waive the regulation. The Secretary
periodically will publish notice of granted waivers in the Federal
Register HUD may change submission deadlines established by this notice
by subsequent notice published in the Federal Register.
(57 FR 1527, Jan. 14, 1992, as amended at 57 FR 14758, Apr. 22, 1992)
24 CFR 92.652 Appendix B to Subtitle A -- HOPE for Homeownership of Multifamily Units Program
24 CFR 92.652 Subtitle A, App. B
24 CFR 92.652 Program Guidelines
I. Purpose; Summary; and Relationship to Other Programs
101. Purpose
105. Summary
110. Relationship to Other Programs
(a) Waiver of Section 8 Regulations
(b) Inapplicability of Other Acts
(c) Reservation of Section 8 Authority
(d) Termination of Section 8 and Other Rental Assistance
(e) Variations to FHA Single Family Mortgage Insurance Programs
II. Definitions
III. Planning Grants
301. Planning Grants
(a) General Authority
(b) Mini or Full Planning Grants
(c) Grant Cap
(d) Deadline for Completion of Activities
305. Eligible Planning Grant Activities
(a) Development of RMCs and RCs
(b) Training and Technical Assistance
(c) Feasibility Studies
(d) Preliminary Architectural and Engineering Work
(e) Counseling and Training
(f) Economic Development
(g) Security Plans
(h) Appraisal
(i) Application for Implementation Grant
(j) Other Activities
310. Applications for Planning Grants
(a) NOFA
(b) Application Contents
(1) Request for Planning Grant
(2) Qualifications and Experience of Applicant
(3) Eligible Property
(4) CHAS Certification
(5) Equal Opportunity Certifications
(6) Statement of Interest in Making Property Available
(7) Resident Interest
(8) Nonduplication of Funding
(9) Disclosures Required by the Reform Act
(10) Other Requirements
(c) Screening by HUD
315. Rating, Ranking, and Selection of Planning Grant Applications
(a) Rating
(b) Ranking and Selection to Assure National Geographic Diversity
(c) Reduction in Requested Grant Amounts
(d) Notification of Approval or Disapproval
(e) Use of Remaining Amounts to Fund Implementation Grants
(f) Insufficient Approvable Applications
(g) Environmental Review
IV. Implementation Grants
401. Implementation Grants
(a) Implementation Grants
(b) National Competition
(c) Overall Limitation on Grant Amount
405. Eligible Implementation Grant Activities
(a) Limitations
(b) Eligible Activities
(1) Architectural and Engineering Work
(2) Implementation of Homeownership Program
(3) Rehabilitation
(4) Administrative Costs
(5) Development of RMCs and RCs
(6) Counseling and Training
(7) Relocation
(8) Temporary Relocation
(9) Assistance for Operating Expenses
(10) Replacement Reserves
(11) Legal Fees
(12) Ongoing Training Needs
(13) Economic Development
(14) Other Activities
410. Matching Requirements for Implementation Grants
(a) Requirement for Each Recipient to Match the HUD Grant
(b) Form
(c) Other Restrictions
(d) Exception for Indian Housing Authorities
415. Applications for Implementation Grants
(a) NOFA
(b) Application Contents
(1) Request for HOPE Implementation Grant
(2) Section 8 Application
(3) Qualifications and Experience of Applicant
(4) Description of Proposed Homeownership Program
(5) Plan
(6) Eligible Property
(7) Housing Quality Standards Plan
(8) Economic Development
(9) Match Requirements
(10) Nondisplacement; Participation by Residents
(11) Financing
(12) Affordability
(13) Sales Price to Applicant or Other Entity
(14) Sales Prices and Terms of Sale to Eligible Families; Form of
Ownership
(15) Resale Restrictions, If Any
(16) Management Entity
(17) CHAS Certification
(18) Equal Opportunity Certifications
(19) Resident Interest
(20) Plan for Use of Certain Program Income
(21) Nonduplication of Funding
(22) Disclosures Required by the Reform Act
(c) Screening by HUD
420. Threshold Review
425. Rating, Ranking, and Selection of Applications
(a) Rating
(b) Environmental Review
(c) Ranking and Selection to Assure National Geographic Diversity
(d) Reduction in Requested Grant Amounts
(e) Notification of Approval or Disapproval
(f) Use of Remaining Amounts to Fund HOPE 2 Planning Grants
(g) Insufficient Approvable Applications
V. Other Requirements
501. Flood Insurance and Coastal Barriers Resources Act
(a) Flood Insurance
(b) Coastal Barriers Resources Act
505. Nondiscrimination and Equal Opportunity
(a) Fair Housing Requirements
(b) Discrimination on the Basis of Age or Handicap
(c) Employment Opportunities
(d) Minority and Women's Business Enterprises
(e) Affirmative Fair Housing Marketing
(f) Authority for Collection of Racial, Ethnic, and Gender Data
510. OMB Circulars
515. Drug-Free Workplace
520. Anti-Lobbying Certification
525. Debarred or Suspended Contractors
530. Conflict of Interest
535. Labor Standards
540. Lead-Based Paint Testing and Abatement
545. Requirements Applicable to Religious Organizations
VI. Grant Agreement -- Planning and Implementation Grants
601. Grant Agreement
VII. Implementation of Planning and Implementation Grants
701. Implementation; Family Contribution; Performance Standards
705. Resident Selection Procedures During Rental Phase (If Any)
710. Social Security Numbers
715. Timely Homeownership
(a) Deadline for Transfer
(b) Definition of Reasonable Period of Time
720. Restrictions on Resale by Initial Homeowners
(a) In General
(b) Promissory Note
(c) Limitation on Equity Interest an Initial Homeowner May Retain
from Sale During First Six Years
(d) Use of Amounts a Family May Not Retain
725. Use of Proceeds from Sales to Eligible Families
730. Third Party Rights
735. Displacement Prohibited; Protection of Nonpurchasing Residents
(a) Displacement Prohibited
(b) Temporary Relocation
(c) Relocation Assistance for Residents Who Elect to Move
(d) Notice of Relocation Assistance
VIII. Records, Reports, and Audit of Recipients
801. Recordkeeping
(a) General Records
(b) Family Size and Income and Racial, Ethnic, and Gender Data
(c) Cooperative and Condominium Agreements
(d) Amounts Available for Reuse
805. Reports
810. Access by HUD and the Comptroller General
IX. Waiver Authority
901. Waiver Authority
24 CFR 92.652 I. Purpose; Summary; and Relationship to Other Programs
24 CFR 92.652 Section 101. Purpose
The purpose of the HOPE 2 program is to provide homeownership
opportunities for eligible families in certain multifamily developments.
24 CFR 92.652 Section 105. Summary
Under the HOPE 2 program, HUD makes planning grants and
implementation grants to selected eligible applicants to assist them in
developing and carrying out homeownership programs for eligible
families. A recipient may use its implementation grant to acquire
eligible property (unless it already owns the property), fund
rehabilitation, and cover other eligible program costs. An eligible
applicant may (but is not required to) apply for a planning grant to
assist it in developing a homeownership program, including the
development of resident organizations, feasibility studies, counseling
and training of residents and homebuyers, activities necessary for the
development of a homeownership program, and preparation of an
application for an implementation grant.
An eligible applicant may apply for an implementation grant to fund
activities necessary to carry out an approved homeownership program.
Applicants may not submit an application for a planning grant and an
implementation grant for the same property in response to any one
notification of funding availability. Each recipient is required to
assure that a specified portion of the HOPE implementation grant is
matched for non-Federal sources. (Certain IHAs may be exempt; see
section 410(d).) Units must meet specified housing quality standards,
and eligible families may not be required to pay more than 30 percent of
adjusted income per month for principal, interest, taxes, and insurance
to complete a sale under the program.
24 CFR 92.652 Section 110. Relationship to other programs
(a) Waiver of section 8 Regulations. HUD may make section 8
authority available for use in support of the HOPE 2 program, and
intends to approve requests for waivers of the certificate and housing
voucher regulations to facilitate its use. Under the section 8 program,
HUD makes rental assistance available to assist eligible families.
Owners of units under the section 8 program receive a housing assistance
payment equal to the difference between the rent for the unit and the
amount payable by the eligible family, which is, in most cases, 30
percent of the family's adjusted income. See 24 CFR parts 882 and 887
for the rules governing the section 8 Certificate and Housing Voucher
programs.
To permit issuance of certificates and vouchers to otherwise eligible
nonpurchasing residents who qualify as low-income families, HUD will
determine that good cause exists and approve requests to waive --
(1) The provisions prohibiting issuance of certificates and vouchers
based on the identity or location of the housing occupied by the family,
since one purpose of providing section 8 assistance under the HOPE
program is to aid nonpurchasing residents in eligible properties and
section 8 assistance will be reserved for this purpose;
(2) The provisions establishing Federal preferences when the
assistance is used for nonpurchasing residents, since the section 8
assistance is being made available for these families and it makes no
sense to apply the preferences in this context; and
(3) The provisions limiting use of certificates and vouchers to very
low-income families. (Section 413(a) of NAHA amended the 1937 Act to
permit this waiver under the Voucher program.) HUD has determined that,
under the law, nonpurchasing residents should be given section 8
assistance if permitted by law and, therefore, will provide for issuance
of certificates and vouchers to low-income families, not only very
low-income families.
Additional waivers may be necessary to make section 8 assistance
readily available in support of the HOPE program. HUD will also
consider requests for such other waivers.
HUD intends to issue final regulations amending the section 8
regulations to achieve these purposes when it publishes the final HOPE
regulation.
(b) Inapplicability of Other Acts. Eligible property approved under
HOPE 2 is not subject to (1) the Low-Income Housing Preservation and
Resident Homeownership Act of 1990, or (2) the requirements of section
203 of the Housing and Community Development Amendments of 1978
applicable to the sale of developments either at foreclosure or after
acquisition by HUD.
(c) Reservation of Section 8 authority. HUD may reserve authority to
provide section 8 certificate and housing voucher assistance, to the
extent necessary to provide rental assistance for a nonpurchasing
resident who resides in an eligible property on the date HUD approves an
implementation grant, for use by the resident elsewhere. In addition,
subject to the availability of appropriations, HUD shall ensure that
section 8 rental assistance is made available to nonpurchasing residents
for use in the eligible property or elsewhere. HUD encourages PHAs/IHAs
to make other section 8 assistance available for use in connection with
the HOPE 2 program. See paragraph (a) of this section for a discussion
of waivers of section 8 regulations to facilitate use of section 8
assistance.
(d) Termination of Section 8 and Other Rental Assistance.
Project-based section 8 and other rental assistance shall be terminated
(1) on the date an eligible property is transferred under the HOPE 2
program to an entity for transfer to eligible families or (2) if no
transfer is proposed because the applicant or other entity already owns
the property, on the effective date of an implementation grant
agreement. The implementation grant may be used to cover any shortfall
in operating income during the rental phase and after acquisition by
eligible families.
(e) Variations to FHA Single Family Mortgage Insurance Programs. (1)
All regulatory requirements and underwriting procedures established for
the FHA single family mortgage insurance programs shall apply, except
for the changes described in paragraph (e) of this section.
(2) In the single family FHA mortgage insurance programs there is a
requirement for a down payment by the mortgagor in cash or the
equivalent. Since a recipient under the HOPE 2 program may provide the
down payment for the eligible family/mortgagor, section 429 of NAHA
amended section 203(b)(9) of the National Housing Act to provide that
the required down payment may be paid by a corporation or person other
than the mortgagor if the mortgage covers a unit under the HOPE program.
Therefore, the regulations at 24 CFR 203.19(b), 203.32(b), 234.28(c)
and 234.55(b) were amended by an interim rule published on February 4,
1991, 56 FR 4476. These amendments provide that a mortgagor being
assisted in the purchase of a housing unit in connection with the HOPE
program may obtain a loan for the down payment from a corporation of
another person under conditions satisfactory to HUD. In addition, a
second mortgage may be placed against the property even though the
entity holding a second mortgage is not a Federal, State, or local
government agency, if the entity is designated in the homeownership plan
of an applicant for an implementation grant under the HOPE programs.
24 CFR 92.652 II. Definitions
1937 Act. The United States Housing Act of 1937.
Administrative costs. Administrative costs that are reasonable and
necessary, as described in and valued in accordance with OMB Circular
A-87 or A-122 /1/ , as applicable, incurred by a recipient in carrying
out a homeownership program under this notice. For purposes of
complying with the 15 percent limitation in Section 405(b)(4),
administrative costs do not include the costs of activities which are
separately eligible under sections 405 or 410.
Applicant. For HOPE 2, the following entities that may represent the
residents of the eligible property:
(a) An RMC (resident management corporation).
(b) An RC (resident council).
(c) A cooperative association.
(d) A public or private nonprofit organization.
(e) A pubilc body, including an agency or instrumentality thereof.
(f) A PHA (public housing agency).
(g) An IHA (Indian housing authority).
(h) A mutual housing association.
A cooperative association may be an eligible applicant only for
eligible property it proposes to acquire and transfer ownership
interests in to eligible families under a homeownership program.
CHAS. A comprehensive housing affordability strategy under section
105 of NAHA. See 24 CFR part 91.
Cooperative association. An association organized and existing under
applicable State and local, or tribal, law primarily for the purpose of
acquiring, owning, and operating housing for its members or
shareholders, as applicable.
Eligible family. (a) A low-income family; or
(b) A family or individual who is a resident of the eligible property
on the date HUD approves an implementation grant.
Eligible property. A multifamily rental property, containing five or
more units, that is --
(a) Owned by HUD;
(b) Financed by a loan or mortgage held by HUD or insured by HUD,
including loans under the Section 312 Rehabilitation Loan program, the
Section 202 program, and the FHA Multifamily Mortgage Insurance
programs;
(c) Determined by HUD to have serious physical or financial problems
under the terms of an insurance or loan program administered by HUD (in
most cases, such properties will also be eligible under (b)); or
(d) Owned or held by the Secretary of Agriculture, the Resolution
Trust Corporation, or a State or local government.
Homeownership program. A program for homeownership that meets the
requirements under this notice. The program shall provide for
acquisition by eligible families of ownership interests in the units in
an eligible property under an ownership arrangement approved by HUD
under this notice, for occupancy by the eligible families. At least 66
percent of the units must be acquired by eligible families (or such
higher percentage as may be required under State, local, or tribal law
governing cooperative associations or other forms of homeownership used
under the program). No more than 34 percent of the units may be
occupied by renters. At least 80 percent of units acquired for
homeownership must be acquired by low-income families (or such higher
percentage as may be required under such State, local, or tribal law).
In addition, no unit may be acquired by a family whose annual income
exceeds 95 percent of the median income for the area, as determined by
HUD with adjustments for smaller and larger families. HUD may establish
income limits higher or lower than 95 percent of the median income for
the area on the basis of its finding that such variations are necessary
because of the prevailing levels of construction costs or unusually high
or low family incomes.
HUD. The United States Department of Housing and Urban Development.
IHA. An Indian housing authority, which means any entity that --
(a) Is authorized to engage in or assist in the development or
operation of low-income housing for Indians; and
(b) Is established (1) by exercise of the power of self-government of
an Indian tribe independent of State law; or (2) by operation of State
law providing specifically for housing authorities for Indians,
including regional housing authorities in Alaska.
Low-income family. A family or individual that qualifies as a
low-income family under 24 CFR part 813. NAHA changed the term lower
income family to low-income family; these terms have the same meaning.
In general, this regulation defines the term lower income family as a
family whose annual income does not exceed 80 percent of the median
income for the area, as determined by HUD with adjustments for smaller
and larger families. HUD may establish income limits higher or lower
than 80 percent of the median income for the area on the basis of its
finding that such variations are necessary because of the prevailing
levels of construction costs or unusually high or low family incomes.
Mutual Housing Association. A private entity organized under State
law that has been determined to be a tax-exempt entity under section
501(c) of the Internal Revenue Code of 1986 and that owns, manages, and
continuously develops affordable housing by providing long-term housing
for low- and moderate-income families. The residents of mutual housing
participate in the ongoing management of the housing, and through the
purchase of membership interests in the associations, have the right to
continue residing in the housing as long as they own memberships in the
associations.
NAHA. The Cranston-Gonzalez National Afforable Housing Act, Public
Law 101-625.
NOFA. Notice of Fund Availability.
Nonprofit organization. Any nonprofit organization that --
(a) Is organized and existing pursuant to Federal, State, local, or
tribal law;
(b) Has no part of its net earnings inuring to the benefit of any
individual, corporation, or other entity;
(c) Has a voluntary board;
(d) Has an accounting system or has designated a fiscal agent in
accordance with requirements established by HUD; and
(e) Practices nondiscrimination in the provision of assistance.
Ownership interest. Ownership by an eligible family by fee simple
title to a unit in an eligible property (including a condominium unit),
ownership of shares of or membership in a cooperative, or another form
of ownership proposed and justified by the applicant and approved by
HUD. The ownership interest may be subject only to (a) the restrictions
on resale required or approved under Section 720; (b) mortgages, deeds
of trust, or other liens or instruments securing debt on the property as
approved by HUD; or (c) any other restrictions or encumbrances which do
not impair the good and marketable nature of title to the ownership
interest. Mutual housing is eligible only to the extent it provides for
the transfer of ownership interests to eligible families.
PHA. A public housing agency, which means any State, county,
municipality, or other governmental entity or public body (or agency or
instrumentality thereof) which is authorized to engage in or assist in
the development or operation of low-income housing.
Private nonprofit organization. A nonprofit organization that is
privately controlled and that is a tax exempt entity under section
501(c) of the Internal Revenue Code of 1986. For purposes of this
requirement, private nonprofit organizations shall have governing bodies
which are controlled 51 percent or more by private individuals who are
acting in a private capacity. For purposes of this provision, an
individual is considered to be acting in a private capacity if the
individual is not legally bound to act on behalf of a public body
(including the applicant or recipient), and is not being paid by a
public body (including the applicant or recipient) while performing
functions in connection with the nonprofit organization.
Public body. Any State of the United States; any city, county,
town, township, parish, village, or other general purpose political
subdivision of a State; the Commonwealth of Puerto Rico, the District
of Columbia, Guam, the Northern Mariana Islands, the Virgin Islands,
American Samoa, the Federated States of Micronesia and Palau, the
Marshall Islands, or a general purpose political subdivision thereof;
any Indian tribe, as defined in title I of the Housing and Community
Development Act of 1974; any public agency or instrumentality of any of
the foregoing jurisdictions which is created by or pursuant to State or
local, or tribal, law and for which the applicable jurisdiction has
agreed to accept financial responsibility in the event of any
noncompliance or liability under the HOPE 2 program; and any PHA or
IHA. For purposes of this definition, an organization which meets the
requirements of paragraphs (a) and (b) of the definition of nonprofit
organization, but is controlled 51 percent or more by public officials
acting in their official capacities, may qualify as a public body.
RC. A resident council, which means any incorporated nonprofit
organization or association that --
(a) Is representative of the residents of the eligible property;
(b) Adopts written procedures providing for the election of specific
officers on a regular basis (but at least once every three years); and
(c) Has a democratically elected governing board, elected by the
residents of the eligible property, the voting membership of which
consists of residents of the property.
Recipient. An applicant approved to receive a grant under this notice
or such other entity specified in the HUD-approved application that will
assume the obligations of the recipient under this notice.
RMC. A resident management corporation that proposes to enter into,
or enters into, a management contract with the owner for an eligible
property and that --
(a) Is a nonprofit organization that is incorporated under the laws
of the State or tribe in which it is located;
(b) May be established by more than one resident organization or RC,
so long as each such organization or RC (1) approves the establishment
of the RMC and (2) has representation on the board of directors of the
RMC;
(c) Has an elected board of directors;
(d) Has by-laws that require the board of directors to include
representatives of each resident organization or RC involved in
establishing the corporation;
(e) Provides that its voting members are residents of the eligible
property it manages or will manage under a homeownership program and of
any other property or public or Indian housing developments;
(f) Is approved by the RC; if there is no RC, a majority of the
households of the eligible property shall approve the establishment of
an RC to determine the feasibility of establishing a corporation to
manage the property; and
(g) May serve as both the RMC and the RC, so long as the RMC
qualifies as an RC.
/1/ See Section 510(b) concerning the availability of OMB Circulars.
24 CFR 92.652 III. Planning Grants
24 CFR 92.652 Section 301. Planning grants.
(a) General Authority. HUD will make HOPE 2 planning grants to
applicants for the purpose of developing homeownership programs under
this notice. HUD shall select applications based on a national
competition. HUD will assure compliance with the requirement for
national geographic diversity by selecting at least three planning
grants in each of the 10 HUD Regions, to the extent sufficient funds are
available.
(b) Mini or Full Planning Grants. Applicants may request a full
planning grant covering all necessary planning activities specified in
Section 305 or a mini planning grant. Mini planning grants, generally
for establishing or increasing the capacity of the applicant to apply
for and carry out a specific homeownership program, may cover some or
all of the activities specified in Section 305 (a), (b), and (c). An
applicant may request a mini planning grant and, pursuant to a
subsequent NOFA, a full planning grant, but in no case may a full
planning grant duplicate previously funded activities.
(c) Grant Cap. The amount of a planning grant (or the total amount
of a mini planning grant and a full planning grant) under this section
may not exceed $200,000, except that the Secretary may for good cause
approve a grant in a higher amount, based on a justification submitted
by the applicant demonstrating that the costs are reasonable. The
maximum amount for a mini planning grant shall be $100,000, except that
HUD may for good cause approve a grant in a higher amount, based on a
justification submitted by the applicant demonstrating that the costs
are reasonable. Where the proposed program provides for homeownership
opportunities using more than 250 units, no additional demonstration of
good cause for approving a planning grant of more than $200,000 (or of
more than $100,000 in the case of mini planning grants) is required if
the additional amount requested is not more than $800 for each unit over
250 for a planning grant (or not more than $400 for each unit over 250
for a mini planning grant).
(d) Deadline for Completion of Activities. Activities funded under a
mini planning grant shall be carried out within 18 months of the
effective date of the mini planning grant agreement. Full planning
grants shall be carried out within three years of the effective date of
the full planning grant agreement (or within 18 months of such effective
date if HUD has approved a mini planning grant for the proposed
program).
24 CFR 92.652 Section 305. Eligible planning grant activities.
Planning grants may be used for the reasonable costs of eligible
activities necessary to develop homeownership programs. Only costs
incurred on or after the effective date of the grant agreement qualify
for funding under the program. Eligible activities include --
(a) Development of RMCs and RCs. Development of RMCs and RCs in
connection with a specific homeownership program, including activities
such as --
(1) Consulting and legal assistance to incorporate the entity;
(2) Preparing by-laws and drafting a corporate charter;
(3) Designing and implementing personnel policies; performance
standards for measuring staff productivity; policies and procedures
covering organizational structure, recordkeeping, maintenance,
insurance, occupancy, and management information systems; and any other
recognized functional responsibilities relating to property management;
(4) Designing and implementing financial management systems that
include provisions for budgeting, accounting, and auditing; and
(5) Administrative costs necessary to the implementation of the
activities specificed in paragraphs (a)(1)-(4) of this section.
(b) Training and Technical Assistance. Training and technical
assistance for applicants related to development of a specific
homeownership program. This activity may cover such topics as
establishing community organization, outreach, and support systems;
legal requirements for establishing cooperative, condominium, and other
homeownership entities; and the role of the board of directors in an
RMC.
(c) Feasibility Studies. Studies of the feasibility of a specific
homeownership program, including whether the program can be designed to
meet the affordability standards under the notice and achieve financial
feasibility.
(d) Preliminary Architectural and Engineering Work. Preliminary
architectural and engineering work, including work necessary to support
cost estimates included in an implementation grant application.
(e) Counseling and Training. Resident and homebuyer counseling and
training. This activity may cover such topics as the various ways to
become a homeowner (such as cooperative and fee simple ownership) and
financing alternatives.
(f) Economic Development. (1) Planning for economic development, job
training, and self-sufficiency activities that promote economic
self-sufficiency of eligible families who will become homeowners under
the homeownership program.
(2) The application shall demonstrate that the proposed activities
are directly related to implementation of the proposed homeownership
program, and describe how these activities promote self-sufficiency.
(3) The aggregate amount of planning and implementation grants that
may be used for economic development activities may not exceed $250,000
for any single homeownership program.
(g) Security Plans. Development of security plans. This activity
may cover assessing the need for the hiring of security personnel and
creating tenant patrols, for negotiating agreements with local law
enforcement agencies, and for providing security systems.
(h) Appraisal. Cost of appraisals related to the program.
(i) Application for Implementation Grant. Preparation of an
application for an implementation grant under this notice.
(j) Other Activities. Other activities proposed and justified as
necessary for the development of a homeownership program by the
applicant and approved by HUD.
24 CFR 92.652 Section 310. Applications for planning grants.
(a) NOFA. An application for a planning grant shall be submitted by
an applicant in accordance with this notice and the NOFA. An applicant
may submit an application for either a planning grant or an
implementation grant, but not both, for any one eligible property. The
NOFA advises potential applicants how to obtain an application package
and establishes deadlines and other requirements for submission of
applications. The NOFA also informs each applicant that it may request
information and guidance from HUD about program requirements and
preparation of the application.
(b) Application Contents. Each application shall contain the
information required by the application package, which shall include at
least the following items.
(1) Request for Planning Grant. (i)(A) The application shall contain
a summary description of the proposed homeownership program and a
request for a planning grant (specifying whether the application is for
a mini planning grant or a full planning grant), (B) the schedule for
completing the activities, (C) the personnel necessary to complete the
activities, and (D) the amount of the grant requested (including
justification for a grant request exceeding $200,000 if the development
has 250 or fewer units or exceeding the per unit limitations if the
development has more than 250 units).
(ii) An application for a full planning grant shall contain
sufficient detail for HUD to determine whether the proposed
homeownership program will cover all eligible activities necessary to
make the proposed program feasible, whether or not the application
requests HUD funding for each activity.
(iii) Where no resident entity has been established for the property,
the application shall propose establishment of such an entity (such as
an RMC, RC, or cooperative association) promptly after the effective
date of the grant agreement.
(2) Qualifications and Experience of Applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications. HUD encourages unincorporated resident organizations to
work with an eligible applicant to develop a planning grant application
under which the resident organization could work toward applicant status
for an implementation grant request. HUD also encourages two or more
entities to submit applications together. For example, an application
submitted by a newly established RC and an experienced nonprofit
organization may greatly increase the likelihood of the success of the
proposed homeownership program. The application shall specify which
entity will be the recipient and execute the grant agreement and include
a certification that the entities have entered into a written agreement
between them that delineates their respective roles.
(ii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(3) Eligible Property. The application shall identify and describe
the eligible property involved, and describe the composition of the
residents, including family size and income, and racial, ethnic, and
gender characteristics of the residents, as required by HUD and as
described in the application package. In addition, the application
shall describe the neighborhood in which the property is located and
include a map showing the location of the property and the racial and
ethnic characteristics of the neighborhood.
(4) CHAS Certification. (i) The application shall contain a
certification by the public official, or his or her authorized
representative, who submits the CHAS that the proposed activities are
consistent with the approved CHAS of the State or unit of general local
government within which the eligible property is located.
(ii) Paragraph (b)(4)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(5) Equal Opportunity Certifications. (i)(A) The application shall
contain a certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHAs, under
the circumstances described in section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) The application shall contain a statement from the applicant (A)
whether or not a desegregation order, agreement, or plan that applies to
the applicant is in effect or known to the applicant to be under
consideration; (B) that the applicant is not in violation of an
existing desegregation order, compliance agreement, or voluntary
agreement, or a statement describing the circumstances of the violation;
and (C) describing any potential impact the proposed homeownership
program may have on implementing any existing or pending order,
agreement, or plan.
(6) Statement of Interest in Making Property Available. The
application shall contain a signed statement from the owner of the
eligible property (including a statement from the appropriate HUD or
other government official where the property is owned or held by a
governmental entity) that it is interested in selling the property for
homeownership under the HOPE 2 program and it will not sell to anyone
else for a reasonable period of time to give a reasonable opportunity to
the applicant to apply for an implementation grant and to HUD to review
and approve or disapprove it and, if approved, execute the grant
agreement.
(7) Resident Interest. Where the applicant (or one of the
applicants) is not an RMC or RC, the application shall contain a board
resolution from the resident organization, if any, that it is interested
in a homeownership program and that the applicant is submitting the
application on behalf of the resident organization. Where there is more
than one resident organization, the application shall so indicate and
state the results of a vote by the residents, conducted by a
disinterested third party, designating one resident organization for
this purpose. In all cases, the application shall include a survey
conducted by the applicant of resident interest in homeownership and
marketability of the units, which shall be conducted in accordance with
procedures set forth in the application package.
(8) Nonduplication of Funding. The application shall contain a
certification that the applicant has not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(9) Disclosures Required by the Reform Act. Section 102(b) of the
HUD Reform Act of 1989, Public Law 101-235 (December 15, 1989) requires
disclosure of other information concerning other government assistance
to be made available with respect to the program and parties with a
pecuniary interest in the homeownership program, and submission of a
report on expected sources and uses of funds to be made available for
the program. Each application shall include the information required by
24 CFR part 12, subpart C, the regulation that implements section 102 of
the Reform Act. An implementing notice for 24 CFR part 12, subpart C,
is being published in the Federal Register. Applicants shall use the
form and guidance contained in that notice to make the required
disclosures.
(10) Other Requirements. The application shall contain
certifications and other information required by the application
package.
(c) Screening by HUD. (1) HUD shall screen each application
submitted on or before the deadline set forth in the NOFA to determine
whether it is complete, is internally consistent, and contains correct
computations. Where HUD determines an application is deficient in one
or more of these areas, it shall notify the applicant in writing and
give it an opportunity to correct the deficiencies in its application.
However, the applicant may not substantially revise the application,
such as by substituting another eligible property or applicant or
changing other fundamental features of the homeownership program,
because that would not be fair to other applicants. The notification
shall require applicants to submit additional or corrected material so
it is received in the appropriate HUD office no later than
close-of-business on the 14th calendar day after the date of the
notification to the applicant giving it an opportunity to modify its
application. HUD may not extend this deadline for actual receipt of the
material for any reason. HUD shall not consider further any
applications that do not meet one of the tests in the first sentence of
paragraph (c)(1) of this section, after the opportunity, if any, to
submit additional or corrected material.
(2) The purpose of the procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and may need
this additional opportunity to perfect their applications.
(Approved by the Office of Management and Budget under control number
2502-0451)
24 CFR 92.652 Section 315. Rating, ranking, and selection of planning
grant applications.
(a) Rating. HUD shall review each application that qualifies for
additional consideration under the screening procedures in section
310(c) and, for applications that meet all program requirements, assign
points in accordance with the following selection criteria --
(1) Capability. The qualifications or potential capabilities of the
applicant for developing a successful and affordable homeownership
program. HUD shall assign points based on the past experience of the
applicant, or an explanation of how such capability will be obtained, in
the following categories:
(i) Developing or managing multifamily housing, or both -- 10 points.
(ii) Providing multifamily homeownership programs (for example,
conversion of rental property to cooperative or condominium low-income
homeownership, or developing financing programs for low-income
homeownership) -- 10 points.
(iii) Organizing, developing, and training low-income neighborhood or
low-income resident groups -- 10 points.
Maximum points for this criterion (1): 30 points.
(2) Resident and Homebuyer Interest and Marketability. The extent of
resident and homebuyer interest in the development of a homeownership
program for the eligible property. HUD shall assign points based on the
percentage of current and potential residents interested in
participating in the proposed homeownership program, based on a survey
conducted by the applicant and submitted to HUD as part of the
application. Only occupied units in the property shall be used to
calculate the percentage of residents interested.
(i)(A) If 75 percent or more of the residents are interested: 10
points; or
(B) If 50-74.99 percent of the residents are interested: 5 points;
(C) If less than 50 percent of the residents are interested: 0
points.
and
(ii)(A) If 75 percent or more of the units occupied by nonpurchasers
are occupied by residents willing to move and the application
demonstrates all of the units in the property are marketable: 10
points;
(B) If 50-74.99 percent of the units occupied by nonpurchasers are
occupied by residents willing to move and the application demonstrates
all of the units in the property are marketable: 5 points; or
(C) If less than 50 percent of the units occupied by nonpurchasers
are occupied by residents willing to move: 0 points.
If the vacancy rate for the property is 50 percent or more, the
points for categories (ii) (A) and (B) shall be doubled and no points
shall be assigned for categories (i) (A) and (B).
Maximum points for this criterion (2): 20 points.
(3) Suitability of the Property. The suitability of the eligible
property for homeownership shall be determined based on --
(i) Proximity or accessibility of the property to places of
employment, shopping, schools, medical facilities, transportation,
places of worship, recreational facilities, and other necessary services
for the families under the program -- 4 points;
(ii) Whether the surrounding neighborhood is free from conditions
which are seriously detrimental to the quality of life; substandard
dwellings or other undesirable elements affecting the eligible property
must not predominate, unless the undesirable conditions are being
actively mitigated -- 12 points; and
(iii) Whether the structure type and bedroom configuration are (or
have the potential, through rehabilitation, to become) appropriate for
the proposed homeownership program -- 4 points.
The purpose of this criterion is to assure that properties in
neighborhoods completely unsuitable for homeownership are not selected.
The review will be made in the context of where the eligible properties
are typically located.
Maximum points for this criterion (3): 20 points.
(4) Local Support. The extent of cooperation or support, or both,
from the unit of general local government, neighborhood organizations,
and providers of services and resources appropriate to assist eligible
families to achieve economic independence. In assigning points for this
criterion, HUD shall consider --
(i) Evidence of support for the homeownership program, demonstrated
through letters, resolutions, or other expressions of support from State
or local governments, PHAs/IHAs, and community, civic, religious, or
other entities -- 10 points; and
(ii) Evidence from entities other than the applicant that funds,
services, or other resources will be made available in support of the
homeownership program, demonstrated through letters, resolutions, or
other expressions of support from providers of services and other
resources -- 10 points.
The highest number of points shall be assigned based on the quality,
expected duration, and amount of support to the homeownership program.
Maximum points for this criterion (4): 20 points.
(5) Efficiency. The extent to which the applicant maximizes
efficiency in its plan for use of a planning grant. The lower the cost
of the planning grant per unit, the greater the efficiency.
Maximum points for this criterion (5): 10 points. Total number of
points: 100 points.
(b) Ranking and Selection to Assure National Geographic Diversity.
(1) After assigning points to each application under paragraph (a) of
this section, HUD shall rank the planning grant applications. HUD shall
examine the ranking and, where it determines that applications falling
below a certain point total are not suitable or not feasible for
homeownership under the program, it may establish a minimum number of
points for an application to be selected. HUD shall then select the
three highest ranking applications from each of the 10 HUD Regions.
(2) HUD shall then select the highest ranking remaining applications,
without regard to their location.
(3) If two or more applications have the same number of points, the
application with the most points for capability shall be selected. If
there is still a tie, the application with the most points for
suitability of property shall be selected.
(4) When the amount remaining after funding as many of the highest
ranking applications as possible is insufficient for the next highest
ranking application, HUD may determine whether funding a lower grant
amount is feasible. Alternatively, HUD may skip to the next highest
ranking application or applications that can be funded with the
remaining amount.
(5) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding the application from any
unused amounts or ''off the top'' from amounts available for planning
grants in the next funding round.
(c) Reduction in Requested Grant Amounts. HUD shall approve a
planning grant application for an amount lower than the amount requested
or adjust line items in the proposed budget within the amount requested
(or both) if it determines the amount requested for one or more eligible
activities is unreasonable or unnecessary or does not otherwise meet
applicable cost limitations established for the program.
(d) Notification of Approval or Disapproval. After completion of the
ranking and selection of applications, but no later than six months
after the date of submission of the application, HUD shall notify the
selected applicants and the applicants that have not been selected, in
writing. HUD's notification to the applicant of the amount of the grant
award, based on the approved application, shall constitute a grant
obligation by HUD, subject to acceptance by the applicant by the
deadline specified in the notification.
(e) Use of Remaining Amounts to Fund HOPE 2 Implementation Grants.
Any amounts available to fund planning grants that are not needed
because there are insufficient approvable applications shall be used to
fund the highest ranked, unfunded implementation grant applications.
(f) Insufficient Approvable Applications. If funds remain after HUD
approves all approvable applications, including implementation grant
applications, as provided in this notice, HUD may publish a NOFA
inviting applications for planning or implementation grants, or both, in
accordance with this notice, or invite applicants who submitted
applications that could not be funded to submit amended planning grant
or implementation grant applications in accordance with this notice
within a deadline specified in the invitation.
(g) Environmental Review. HUD has determined that its approval of
applications for planning grants is categorically excluded from
environmental review and compliance requirements of the National
Environmental Policy Act of 1969 (NEPA) and that other Federal
environmental laws and authorities listed in 24 CFR 50.4 are not
applicable. The reason is that planning grants involve no
rehabilitation and little or no physical change and that, generally, not
enough information is available about the proposed homeownership program
at this point to make the review. HUD has excluded planning grant
applications from environmental assessment under NEPA and exempted
planning grant applications from environmental review under the laws and
authorities listed in 24 CFR 50.4. See the interim rule amending 24 CFR
part 50 that is published elsewhere in today's edition of the Federal
Register. Applicants are reminded, however, that environmental review
at the implementation grant stage may nevertheless result in
disapproval.
24 CFR 92.652 IV. Implementation Grants
24 CFR 92.652 Section 401. Implementation grants.
(a) Implementation Grants. HUD shall make implementation grants to
applicants for the purpose of carrying out homeownership programs
approved under this title.
(b) National Competition. HUD shall select applications based on a
national competition. HUD will assure compliance with the requirement
for national geographic diversity by selecting at least one
implementation grant application for a program in each of the 10 HUD
Regions, to the extent sufficient funds are available.
(c) Overall Limitation on Grant Amount. The amount requested for an
implementation grant for each unit may not exceed 120 times the current
published fair market rent for existing housing for that unit size
established by HUD under section 8(c) of the 1937 Act. (The fair market
rent is multiplied by 120 to convert it to an amount representing 10
years' worth of rents (12 (the number of months in a year) times 10 (the
number of years).)
24 CFR 92.652 Section 405. Eligible implementation grant activities.
(a) Limitations. Implementation grants may be used for the
reasonable costs of eligible activities necessary to carry out
homeownership programs. Only costs incurred on or after the effective
date of the grant agreement qualify for funding under the program.
(b) Eligible Activities. Eligible activities include --
(1) Architectural and Engineering Work. Architectural and
engineering work, and related professional services required to prepare
architectural plans or drawings, write-ups, specifications, or
inspections.
(2) Implementation of Homeownership Program -- (i) General.
Implementation of the homeownership program, including --
(A) Acquisition of the eligibility property for the purpose of
transferring ownership to eligible families in accordance with a
homeownership program that meets the requirements under this notice
(where the applicant owns the eligible property or where HUD otherwise
determines that an ''arms length'' relationship for acquisition does not
exist, program funds may not be used for acquisition of the property for
the program);
(B) The provision of assistance to families to make acquisition by
them affordable (including interest rate reductions (''interest rate
buy-downs'') and down payment assistance).
(ii) Maximum Acquisition Costs. (A) The cost of acquiring an
eligible property (by an applicant or other entity for transfer to
eligible families or by eligible families), which may not exceed the
as-is fair market value of a property for residential use, taking into
account any applicable low-income use restrictions, determined in
accordance with a recent appraisal conducted under procedures
established or approved by HUD, plus reasonable and customary closing
costs charged for comparable transactions in the market area.
(B) The applicant may acquire an eligible property where the debt
exceeds the fair market value only if the excess will not be the
responsibility of the recipient or homeowners. The excess debt may not
be counted towards the match.
(C) For example --
(i) If the proposed acquisition cost (including debt) is $2 million
and the appraised value is $2 million, up to $2 million of program funds
(the HUD grant and the contributions towards the match) may be used for
acquisition.
(ii) If the proposed acquisition cost (including debt) is $2 million
and the appraised value is $2.25 million, up to $2 million of program
funds (the HUD grant and the contributions towards the match) may be
used for acquisition, and HUD will count $250,000 of excess value
towards the match.
(iii) If the proposed acquisition cost (including debt) is $2.25
million and the appraised value is $2 million, up to $2 million of
program funds (the HUD grant and the contributions towards the match)
may be used for acquisition. The application would have to demonstrate
how the excess cost of $250,000 will be supported by the program (other
than by the recipient or the homeowners). The $250,000 could not be
counted towards the match.
(iii) Maximum Cost of Acquisition and Rehabilitation. The maximum
cost of acquisition and rehabilitation shall be the lower of (A) the
as-is fair market value of the property (see paragraph (b)(2)(ii)) of
this section, plus the actual cost of rehabilitation or (B) the
applicable maximum dollar limitation (including any high-cost area
adjustments) that applies to property refinanced and repaired pursuant
to section 223(f) of the National Housing Act, which shall be included
in the application package or otherwise provided by HUD.
(3) Rehabilitation. (i) Rehabilitation of the eligible property
covered by the homeownership program, in accordance with standards
established by HUD (see paragraph (b)(2) of this section for applicable
cost limitations covering both acquisition and rehabilitation and
section 505(b) for applicable requirements for accessibility for people
with disabilities). The property shall be rehabilitated (including the
provision of suitable amenities) to a level that makes it marketable for
homeownership if the market area to families with incomes at or below
the median for the area. HUD encourages applicants to undertake high
quality rehabilitation, even if it goes beyond applicable minimum
standards. Luxury items (fixtures, equipment, and landscaping of a type
or quality which substantially exceeds that customarily used in the
locality for properties of the same general type as the property to be
rehabilitated) do not qualify as eligible expenses. The construction of
swimming pools is not eligible. The cost to fill in or eliminate a pool
from the property and the cost to repair an existing pool are eligible.
(ii) The application shall describe all improvements to be made to,
or amenities to be provided for, the property, whether or not they may
be funded by use of grant amounts, contributions towards the match
required under the program, or other funds. HUD may disapprove
improvements or amenities specified in the application it determines are
unsuitable for the HOPE program, even if they will be paid for from
non-program funds.
(iii) If an applicant proposes to make improvements to an eligible
property beyond those that qualify as eligible costs, it shall assure
that their entire cost will be covered by funds other than the HOPE
grant and any amounts contributed towards the match and that the
affordability of the property will not be impaired. No such local funds
may count towards the match.
(iv) The cost of the rehabilitation shall be reasonable and in
accordance with the requirements of paragraph (b)(2)(iii) of this
section and other applicable requirements under this notice.
(4) Administrative Costs. Administrative costs of the program. The
total amount that may be spent on administrative activities from the
amount of the grant and any contribution towards the match may not
exceed 15 percent of the amount of the grant HUD provides under this
notice.
(5) Development of RMCs and RCs. Development of RMCs and RCs, but
only if the applicant has not received a HOPE planning grant for such
activities. See 305(a) for examples of eligible activities.
(6) Counseling and Training. Counseling and training of homebuyers
and homeowners under the homeownership program. This may include such
subjects as counseling and training related to personal financial
management, home maintenance, home repair, construction skills (to the
extent appropriate, especially where the eligible family will do some of
the rehabilitation), and the general rights and responsibilities of a
homeowner.
(7) Relocation. Relocation of residents who elect to move, in
accordance with section 735.
(8) Temporary Relocation. Any necessary temporary relocation of
residents during rehabilitation, in accordance with section 735.
(9) Assistance for Operating Expenses. (i) Funding of operating
expenses for the property, to the extent necessary to achieve long-term
affordability, as provided in section 415(b)(12). Assistance for
operating expenses may cover the period beginning after acquisition of
the property by the applicant (or after the effective date of the
implementation grant if the recipient of other entity that will transfer
the property to eligible families already owns the property). Operating
assistance may be used for (A) assistance for potential homeowners
during the rental phase (before acquisition of ownership interests by
the families), if any, (B) assistance for nonpurchasing residents who
remain in the property but for whom section 8 assistance is not
available, (C) assistance for homeowners after transfer of ownership
interests to the families during the term of the grant agreement, and
(D) the funding of operating reserves.
(ii) In addition, assistance for operating expenses may be drawn down
under the grant agreement to fund an operating expenses reserve
established in accordance with HUD guidelines, and the interest earned
on the reserve shall be credited to it for use for operating expenses
under the program.
(iii) An implementation grant under this program may provide
assistance for operating expenses for up to five years from the date
that the applicant or other entity acquires the eligible property (or,
if the applicant or other entity already owns the property, from the
effective date of the implementation grant agreement). If HUD
determines that extraordinary circumstances exist, as demonstrated in
the application or at the end of the five-year term, that justify
extension of the five-year term, it may, at the end of the five-year
term, agree to extend the original grant agreement for additional
one-year terms, subject to the availability of appropriations for this
purpose. However, the total term of the grant agreement, including all
extensions, may not exceed 10 years. HUD reminds applicants that the
selection criterion measuring efficiency will favor applications
proposing lower per unit costs; thus, those applications which propose
operating assistance for five years or less will be at a competitive
advantage.
(iv) The entity with fiduciary responsibility for any operating
reserve shall be bonded, in accordance with requirements prescribed or
approved by HUD.
(10) Replacement Reserves. (i) Replacement reserves for the
property, up to the amount necessary to achieve long-term affordability,
as provided in Section 415(b)(12). Assistance for replacement reserves
may be drawn down under the grant agreement to fund the reserve
established in accordance with HUD guidelines, and the interest earned
on the reserve shall be credited to the reserve for use for replacement
expenses under the program.
(ii) The entity with fiduciary responsibility for any replacement
reserve shall be bonded, in accordance with requirements prescribed or
approved by HUD.
(11) Legal Fees. Customary and reasonable costs of professional
legal services.
(12) Ongoing Training Needs. Defraying costs for the ongoing
training needs of the recipient for courses of instruction that are
directly related to developing and carrying out the homeownership
program.
(13) Economic Development. (i) Economic development activities that
promote economic self-sufficiency of homebuyers, residents, and
homeowners under the homeownership program, such as job training or
retraining and the development, in or near the eligible property, of
child care centers that offer work and make it possible for parents to
work. The recipient shall enter into written agreements with the
providers of economic development services specifying the services to be
provided, including estimates of the numbers of homebuyers, residents,
and homeowners to be assisted.
(ii) In addition, planning for the establishment of for- or
not-for-profit small businesses by or on behalf of residents, job
training, and other activities that promote economic self-sufficiency of
homebuyers and homeowners of the eligible property covered by the
homeownership program and economic development of the neighborhood are
eligible.
(iii) The aggregate amount of planning and implementation grants that
may be used for economic development activities may not exceed $250,000.
(14) Other Activities. Other activities proposed by the applicant,
to the extent the applicant justifies them as necessary for the proposed
homeownership program and HUD approves them. For example, the applicant
may propose activities related to security needs of the property that
are not otherwise covered under other eligible activities, such as under
architectural and engineering work and rehabilitation activities.
24 CFR 92.652 Section 410. Matching requirements for implementation
grants.
(a) Requirement for Each Recipient to Match the HUD Grant. Each
recipient shall assure that matching contributions equal to not less
than 33 percent of the amount of the implementation grant shall be
provided from non-Federal sources to carry out the homeownership
program. Amounts contributed to the match shall be used for eligible
activities or in accordance with this section. Any grant amounts
proposed for operating assistance shall be excluded for purposes of
computing the amount of the match.
(b) Form. Contributions may only be in the form of --
(1) Cash Contributions. (i) Cash contributions from non-Federal
resources. To be a cash contribution, funds must be contributed
permanently for uses under the HOPE 2 program. Funds will be considered
permanently contributed if all repayment, interest, and other return on
the contribution will only be used for eligible activities in accordance
with program requirements.
(ii) Non-Federal resources may not include funds from a Community
Development Block Grant made to an entitlement grantee or a State under
section 106(b) or section 106(d), respectively, of the Housing and
Community Development Act of 1974, except to the extent permitted for
administrative expenses under paragraph (a)(2) of this section.
Non-Federal resources may not include Federal tax expenditures,
comprehensive grants under section 14 of the 1937 Act, or amounts
provided to the development from syndication of the low income housing
tax credit. (Financing involving the use of the low income housing tax
credit is prohibited by Section 415(b)(11)(iii).)
(iii) Non-Federal resources may include contribution of trust funds
held by Federal agencies for Indian tribes.
(iv) A cash contribution may be made by the applicant, non-Federal
public entities, private entities, or individuals. A cash contribution
may be made from program income from a Federal grant earned after the
end of the award period if no Federal requirements govern the
disposition of the program income. Included in this category are
repayments from closed out grants under the Urban Development Action
Grant Program (24 CFR part 570, subpart G), and the Housing Development
Grant Program (24 CFR part 850).
(v) The grant equivalent of a below-market interest rate loan to the
homebuyer, where all repayments, interest, and other return will not be
permanently contributed to the HOPE program, may be counted as a cash
contribution.
(A) If the loan is made from proceeds of obligations issued by or on
behalf of a public body that are exempt from taxation by the United
States, the contribution is the present discounted cash value of the
difference between payments to be made on the borrowed funds and
payments to be received from the loan to the homebuyer, based on a
discount rate equal to the interest rate on the borrowed funds.
(B) If the loan is made from funds other than under paragraph
(b)(1)(v)(A), the contribution is the present discounted cash value of
the yield forgone, calculated based on a discount rate approved or
prescribed by HUD. In determining the yield forgone, the recipient must
use as a measure of a market rate yield on of the following, as
appropriate:
(1) With respect to an individual unit financed with a fixed interest
rate mortgage, a rate equal to the 10-year Treasury note rate plus 200
basis points;
(2) With respect to an individual unit financed with an adjustable
interest rate mortgage, a rate equal to the one-year Treasury bill rate
plus 250 basis points; or
(3) With respect to a multifamily project, a rate equal to the
10-year Treasury note rate plus 300 basis points.
(vi) A down payment by an eligible family may not count towards the
match.
(vii) Non-Federal resources may include amounts, determined in
accordance with paragraph (b)(1)(v)(B) of this section, that have been
requested by the applicant in an application submitted to the Federal
Housing Finance Board for assistance under its affordable housing
program, so long as that application is approved before the date HUD
approves the HOPE application.
(2) Administrative Costs. (i) Paymant of eligible administrative
costs approved by HUD from non-Federal resources. Contributions for
administrative costs that exceed 7 percent of the grant (excluding any
assistance for operating expenses) may not count towards the match.
(This limitation is in addition to the limitation that the total amount
that may be spent on administrative activities from the amount of the
grant and any contributions towards the match may not exceed 15 percent
of the grant amount (section 405(b)(4).) Non-Federal resources, for the
purposes of counting contributions for administrative costs, may include
funds from a Community Development Block Grant made to an entitlement
grantee or a State under section 106(b) or section 106(d) of the 1974
Act and are subject to the recordkeeping and documentation requirements
of that program.
(ii) For example, if the grant amount is $600,000 (excluding any
grant amounts proposed for operating assistance), the receipient must
assure the provision of at least $198,000 (33 percent of the grant) from
non-Federal sources.
Contributions for administrative costs that may be counted towards
the match may not exceed $42,000 (7 percent of the grant amount of
$600,000). Although an applicant can spend more than this on
administrative costs, it may not be counted towards the match. In
addition, assuming contributions of $42,000 for administrative costs,
the applicant must provide contributions covering the remaining $156,000
($198,000 - $42,000) required for the match from non-Federal sources.
(3) Taxes, Fees, and Other Charges. The present value of taxes,
fees, or other charges that are normally and customarily imposed but are
waived, forgone, or deferred in a manner that facilitates the
implementation of a homeownership program assisted under this notice.
Only amounts for the period after the date a property is acquired by a
recipient or other entity for transfer to eligible families (or the
effective date of the implementation grant agreement if no acquisition
is necessary) may be counted towards the match. For example, if a city
agrees to forego real property taxes for 20 years, the application shall
compute the estimated tax that would be otherwise payable over the 20
year period, and discount it to present value based on a discount rate
approved or prescribed by HUD. Amounts that would be waived, foregone,
or deferred for longer than 20 years from the date a family acquires
homeownership interests in the unit may not be counted towards the match
because enforcement would be impracticable. Where the match includes
amounts under paragraph (b)(3) of this section, the documents
transferring the homeownership interest to the family shall evidence the
contribution, to the extent the contribution has not already been
received.
(4) Land or Other Real Property. Real property, not acquired with
Federal resources, contributed for use under an approved homeownership
program. The as-is fair market value of land or other real property may
be counted as a contribution towards the match, determined in accordance
with a recent appraisal conducted under procedures established or
approved by HUD. For eligible property, the fair market value shall be
determined in accordance with section 405(b)(2)(ii).
(5) Infrastructure. The fair market value of investment, not made
with Federal resources, in on-site and off-site infrastructure required
for a homeownership program. The infrastructure investment may be
counted towards the match only if it was completed no earlier than 12
months before the date of notification by HUD of implementation grant
approval and no later than five years from the effective date of the
grant agreement. Investment in infrastructure may include such
activities as new or repaired utility laterals connecting eligible
property to the main line and new or rebuilt walkways, sidewalks, or
curbs on or contiguous to the eligible property. If the investment in
infrastructure also benefits other properties, only the share of the
costs directly benefiting the eligible property under the homeownership
program may be counted towards the match.
(6) Debt Forgiveness. Where debt on real property to be acquired
under the program is forgiven, permitting the property to be acquired
for less than fair market value, the savings may count as a match.
However, the forgiveness of the amount of any debt exceeding the fair
market value of a property under the program, determined under
405(b)(2)(ii) or paragraph (b)(4) of this section, may not be counted
towards the match.
(7) Other In-Kind Contributions. (i) The reasonable value of in-kind
contributions proposed by the applicant in the application and approved
by HUD. In reviewing proposed in-kind contributions, HUD shall review
to ensure (A) the proposed contribution is to be used for an eligible
activity under the proposed homeownership program, (B) the application
demonstrates that the proposed in-kind contribution will actually be
provided; and (C) the proposed value of the contribution is reasonable.
In determining whether the value is reasonable, HUD shall generally
consider the amount such work would otherwise cost the program, but may
adjust the value, based on special circumstances.
(ii) All donated labor, including sweat equity provided by a
homebuyer or homeowner, shall be valued at $10 an hour, except for
donated professional labor, as approved by HUD, including work by
homebuyers and homeowners. The donated professional labor shall be
valued at the fair market value of the work completed. Professional
labor is work ordinarily performed by the donor for payment, such as
work by laborers, electricians, and architects that is equivalent to
work they do in their occupations. Sweat equity may be counted towards
the match only if it is not also counted towards a family's equity.
(iii) Donated materials and supplies may be counted towards the match
contribution. Materials and supplies need not have been purchased
specifically for the program to be included as a match contribution, if
the cost to the grantee of the materials and supplies (or, in the case
of materials and supplies donated by a different entity than the
recipient for use in the program, the fair market value of the materials
and supplies) and if the fact that they were used in the program can be
documented. The recipient shall maintain a written enumeration of what
donated materials and supplies will be used in the program, as well as
documentation of their cost or value.
(c) Other Restrictions. Contributions towards eligible activities
that are not directly related to acquisition or rehabilitation of the
property may be counted towards the match only to the extent the
expenses are incurred before the date the family acquires the
homeownership interest, except that contributions for counseling and
training of homeowners may be counted if provided within one year of the
transfer of ownership interest to the family. For example,
contributions for child care services provided after the date of the
transfer of ownership interests to the families may not be counted
towards the match.
(d) Exception for Indian Housing Authorities. Where the recipient is
an IHA and the IHA (acting in that capacity) has not received, and will
not receive, amounts under title I of the Housing and Community
Development Act of 1974 for the fiscal year in which HUD obligates HOPE
grant funds, the match requirements under this section shall not apply.
24 CFR 92.652 Section 415. Applications for implementation grants.
(a) NOFA. An application for an implementation grant shall be
submitted by an applicant in accordance with this notice and the NOFA.
The NOFA advises potential applicants how to obtain an application
package and establishes deadlines and other requirements for submission
of applications. An applicant may submit an application for either a
planning grant or an implementation grant, but not both, for any one
eligible property. The NOFA also informs each applicant that it may
request information and guidance from HUD about program requirements and
preparation of the application.
(b) Application Contents. Each application shall contain the
information required by the application package, which shall include at
least the following items.
(1) Request for HOPE Implementation Grant. The application shall
contain (i) a summary description of the proposed homeownership program;
(ii) a description of the personnel necessary to complete the
activities; and (iii) the amount of the grant requested for each
activity. The amount requested, together with any non-Federal
contributions, shall be sufficient to carry out all proposed activities.
(2) Section 8 Application. (i) The application shall contain an
application from a PHA/IHA whose jurisdiction includes the proposed
eligible property for assistance under section 8 of the 1937 Act,
specifying the period during which the assistance will be needed, or a
statement by the applicant that no section 8 assistance will be needed.
(ii) The application shall specify whether the assistance is proposed
for nonpurchasing residents for use in the eligible or another property,
or both.
(3) Qualifications and Experience of Applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications and experience, including qualifications and experience
in providing housing for low-income families. It is particularly
important for an applicant that has not received and successfully
carried out a planning grant to demonstrate its capacity to carry out
the proposed homeownership program. HUD encourages two or more entities
to submit an application together. For example, an application
submitted by a newly established RC and an experienced nonprofit
organization may greatly increase the likelihood of the success of the
proposed homeownership program.
(ii) The application shall specify which entity will be the recipient
and execute the grant agreement and include a certification that the
entities have entered into a written agreement that delineates their
respective roles.
(iii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(4) Description of Proposed Homeownership Program. The application
shall describe the proposed homeownership program, demonstrating
consistency with all requirements specified in this notice and the
application package (see, especially, section 405, Eligible
Implementation Grant Activities and Part V, Other Requirements). The
application shall specify the activities to be carried out, their
estimated costs, and a reasonable schedule for carrying out the
activities. See section 715 for requirements for the timely transfer of
ownership interests to eligible families. Where no resident entity has
been established for the property, the application shall propose
establishment of such an entity (such as an RMC, RC, or cooperative
association) promptly after the effective date of the grant agreement.
(5) Plan -- (i) Identifying and Selecting Families. The application
shall contain a plan for identifying and selecting eligible families to
participate in the homeownership program. The plan shall --
(A) Establish equitable procedures for selection of eligible
families. Except for Indian tribes and IHAs as described in section
505(a)(2), the plan shall also describe activities planned to carry out
the applicant's affirmative fair housing marketing responsibilities that
apply whenever homeownership opportunities are made available to other
than current residents of the property. The plan shall describe the
applicant's affirmative fair housing marketing strategy, including
specific steps to inform potential applicants and solicit applications
from eligible families in the housing market area who are least likely
to apply for the program without special outreach. The plan shall
require any family determined not to have paid the appropriate amount of
tenant contribution under a HUD housing assistance program to resolve
any deficiency before being selected for homeownership.
(B) Give a first preference to otherwise qualified current residents
and a second preference to otherwise qualified eligible families who
have completed participation in an economic self-sufficiency program.
The following self-sufficiency programs (and any other Federal, State,
or local program proposed by the applicant and approved by HUD as
equivalent) qualify: Project Self-Sufficiency, Operation Bootstrap,
Family Self-Sufficiency and JOBS.
(C) Require the recipient to promptly notify in writing any rejected
applicant family of the grounds for any rejection, or to require the
recipient to require another appropriate entity to do so.
(D) Require each eligible family selected for homeownership to
certify at the time it acquires an ownership interest in the unit (or
enters into a lease or other conditional ownership agreement providing
for acquisition of an ownership interest by the family) that it intends
to occupy the unit as its principal residence.
(E) Require each eligible family to agree to occupy the property as
its principal residence during the 15-year period from the date it
acquires ownership interest in the unit (or enters into a lease or other
conditional ownership agreement providing for acquisition of an
ownership interest by the family), unless the recipient determines that
family is required to move outside the market area due to a change in
employment or an emergency situation or the family sells its ownership
interest.
(F) Require any eligible family that violates the agreement made
under paragraph (b)(5)(i)(E) of this section to pay the amount then due
under the promissory note.
(G) Describe the composition of the residents and potential eligible
families, including family size and income, and racial, ethnic, and
gender characteristics, as required by HUD.
(ii) Providing Relocation. The application shall describe the
proposed relocation activities, in accordance with the requirements of
section 735. The plan shall specify the approximate number of families
and individuals who are expected to choose to move and the number who
will be temporarily relocated during rehabilitation, the estimated
costs, the source of funding, the organization that will carry out the
relocation if different than the applicant, and other available
resources (including, for example, section 8 assistance).
(iii) Managing Sweat Equity. Where applicable, the application shall
contain a plan for managing the provision of sweat equity by homebuyers
and homeowners, including a description of the anticipated scope of the
work, schedule of completion, training of homebuyers and homeowners (and
training of others donating labor in connection with sweat equity
activity), supervision of the work by a licensed general contractor, and
a contingency plan if the sweat equity is not fully provided or the
schedule is not met.
(iv) Providing Ongoing Training and Counseling. The application
shall contain a plan for providing ongoing training and counseling for
homebuyers and homeowners.
(6) Eligible Property. (i) The application shall include a
description of the eligible property, including the number of units by
size (square footage), bedroom count, bathroom count, preliminary
drawings and outline specifications for the proposed rehabilitation,
unit plans, and a listing of amenities and services. The application
shall also describe the neighborhood and include a map showing the
location of the property and the racial and ethnic characteristics of
the neighborhood.
(ii) The acquisition or rehabilitation of an eligible property shall
involve acquisition and rehabilitation of all of the units in the
property. HUD may permit acquisition or rehabilitation of less than the
whole property if the applicant demonstrates to HUD's satisfaction that
the acquisition or rehabilitation (or both) of less than all of the
property is feasible and will not result in a hardship to the residents
of the property who are not included in the homeownership program.
(iii) The application shall include evidence that the applicant has
control of the property. Acceptable evidence includes a copy of the
executed contract of sale, option agreement, or deed, or other proof of
ownership. In the case of applications for property owned by a Federal,
State, or local government, acceptable evidence includes a commitment to
convey the property and a demonstration that any official action which
is necessary to convey the property to the applicant has been taken, or
will be taken, before the date estimated in the NOFA for notification of
selection. Options or other commitments may be contingent upon award of
funding under the program. Options or other commitments shall extend
for at least a 12-month period from the deadline for submission of
applications specified in the NOFA (to provide time necessary to review
and select applications and execute grant agreements).
(7) Housing Quality Standards Plan. The application shall include a
housing quality standards plan describing how the applicant will ensure
that --
(i) The unit will be free from any defects that pose a danger to
life, health, or safety before transfer of an ownership interest in a
unit to an eligible family or execution of a lease with an option to
purchase. The recipient shall inspect, or ensure inspection of, each
unit to determine it does not pose an imminent threat to the life,
health, or safety of current or future residents and that the property
has passed recent fire and other applicable safety inspections conducted
by appropriate local officials.
(ii) The unit will, not later than 2 years after the transfer to an
eligible family, meet minimum housing standards. The recipient shall
inspect, or ensure inspection of, each unit to determine it meets the
standards applicable to projects refinanced pursuant to section 223(f)
of the National Housing Act.
(8) Economic Development. The application may contain a plan for
economic development activities under the program and shall contain such
a plan if the applicant requests a homeownership program involving
assistance for operating expenses. The application shall demonstrate
that the proposed economic development activities under section
405(b)(13) are directly related to the proposed homeownership program,
and describe how these activities will promote the self-sufficiency of
homebuyers, residents, and homeowners.
(9) Match Requirements. (i) The application shall describe, and
include commitments for, the resources that are expected to be
contributed towards the match required under section 410, and of any
other resources that are expected to be made available in support of the
homeownership program. Acceptable evidence that the contribution will
be provided shall be included. For example, if 20 years of tax
abatement will be counted towards the match, the chief executive officer
or appropriate legislative body of the government should submit a copy
of the law or other official action documenting this commitment. Cash
or other property contributions shall be supported by evidence of a
binding commitment by the donor to donate the cash or other property,
subject only to approval of the implementation grant and any other
necessary conditions approved by HUD.
(ii) If the match requirement does not apply to an IHA in accordance
with section 410(d), the application shall contain a certification that
the IHA has not received, and will not receive, amounts under title I of
the Housing and Community Development Act of 1974 for the fiscal year in
which HUD obligates HOPE grant funds.
(10) Nondisplacement; Participation by Residents. The application
shall contain a certification by the applicant that no person has been
or will be displaced from his or her dwelling as a direct result of a
homeownership program under this notice. This does not precluded
termination of tenancy for violation of the terms of occupancy of a
unit. Each resident of an eligible property shall be given an
opportunity to become a homeowner under this program if the resident
qualifies as an eligible family and meets other program requirements.
(11) Financing. (i) The application shall identify and describe the
financing proposed for any (A) rehabilitation and (B) acquisition (1) of
the property, where applicable, by the applicant or other entity,
including an RC, for transfer to eligible families, and (2) by eligible
families of ownership interests in units in the eligible property.
(ii) Financing may include use of the implementation grant to permit
transfer of an ownership interest in a unit to an eligible family for
less than fair market value or with assisted financing; sale for cash;
or other sources of financing (subject to requirements that apply to
such other sources), including conventional mortgage loans, mortgage
loans insured under title II of the National Housing Act, and mortgage
loans under other available programs, such as VA, FmHA, and RTC
seller-assisted financing.
(iii) Financing may not involve use of the low income housing tax
credit. Financing may not include assumption of a mortgage where
low-income use restrictions would continue to apply.
(iv) If the applicant proposes that property transferred under this
notice be pledged as collateral for debt or otherwise encumbered, the
application shall contain sufficient information for HUD to determine
that --
(A) The encumbrance will not threaten the long-term availability of
the property for occupancy by low-income families, where the program
provides for such long-term availability.
(B) Neither the Federal government nor the PHA/IHA will be exposed to
undue risks related to action that may have to be taken pursuant to
paragraph (b)(11)(vi) of this section (opportunity to cure).
(C) Any debt obligation can be serviced from project income,
including operating assistance.
(D) The proceeds of the encumbrance will be used only to meet the
housing quality standards (see paragraph (b)(7)) of this section or to
make such additional capital improvements as HUD determines to be
consistent with the purposes of the HOPE program.
(v) Recipients and homeowners continue to be subject to paragraphs
(b)(11)(iv) (A)-(D) of this section during the term of the grant
agreement.
(vi) The proposed financing shall require that any lender that
provides financing in connection with the program shall give the
PHA/IHA, RMC, individual owner, or other appropriate entity a reasonable
opportunity to cure a financial default before foreclosing on the
property, or taking other action as a result of the default (and the
financing and conveyance documents shall include such restrictions).
(12) Affordability -- (i) Initial Affordability. (A) The application
shall demonstrate that the monthly expenditure for principal, interest,
taxes, and insurance by an eligible family that is necessary to complete
the sale for the initial acquisition of a unit does not exceed 30
percent of the adjusted income of the family, determined in accordance
with 24 CFR part 813. As required by the statute, closing costs are
included in this cap to the extent they are included in the costs of
principal and interest, or are otherwise required to be paid by the
homeowner over time after acquisition. It does not make sense to count
closing costs paid as a lump sum at closing for purposes of computing a
monthly maximum family expenditure. In setting the sales price for
acquisition, the applicant shall take into account the need to comply
with this affordability standard.
(B) The items subject to the limitations in paragraph (b)(12)(i)(A)
of this section, plus estimated utility costs and other monthly housing
costs (such as condominium and cooperative monthly fees) shall be at
least 25 percent but not more than 35 percent of the adjusted income of
the family, determined in accordance with 24 CFR part 813. The
applicant may request HUD to approve a higher percentage cap, where the
application demonstrates that a higher cap than 35 percent is necessary
to make the project feasible and that the families will be able to
afford the higher monthly cost.
(C) In the case of cooperative or condominium ownership, if the
monthly charge to the homeowner includes amounts for principal,
interest, taxes, insurance, or utilities, the portion of the charge
covering these amounts shall be considered for purposes of making the
affordability determinations under paragraph (b)(12) of this section.
(ii) Continued Affordability. The application shall contain a
feasible plan for ensuring continued affordability by residents,
homebuyers, and homeowners in the eligible property. The plan shall be
based on a ''proforma'' prepared in accordance with paragraph
(b)(12)(iii) of this section. The plan shall avoid using financing,
such as a mortgage that is not fully amortizing (such as a ''balloon''
mortgage) or that involves negative amortization, that would impair the
continued affordability of the property for eligible families.
(iii) Proforma. The plan shall include a ''proforma'' that sets
forth estimated project costs and income over a 20-year period from the
date the applicant or other entity acquires the property for transfer to
eligible families (or from the effective date of the implementation
grant agreement, where the applicant or other entity already owns the
property). The proforma shall be prepared in accordance with the
following requirements and guidelines.
(A) The proforma shall demonstrate that the requirements of paragraph
(b)(12)(i) of this section are met and that, for the 20-year period, on
an aggregate basis, eligible families shall not be required to pay more
than the amounts provided in paragraph (b)(12)(i) (A) and (B) of this
section.
(B) The proforma shall include an estimate of the income expected, by
each unit size, for the 20-year period, including any homeownership
payments, carrying charges, homeowner association payments, and HOPE
grant funds for operating assistance (including funding of reserves) and
for replacement reserves.
(C) The aggregate income estimated for the property shall equal or
exceed the aggregate costs of operating and maintaining the property,
including any debt service, property management costs, insurance costs,
taxes, funding of operating or replacement reserves, and any other
anticipated costs.
(D) Reasonable assumptions shall be used as to all material factors
having an impact on the estimates contained in the proforma, including
projected vacancy rates, collection rates, income of homebuyers,
homeowners, and other residents; changes in such incomes; changes in
utilities costs; and income earned on operating and replacement
reserves. The applicant shall justify all assumptions used to prepare
the proforma. The applicant shall estimate increases in income and
operating costs in accordance with guidelines provided by HUD in the
application package.
(E) The proposed use of an operating reserve funded from the HOPE
grant shall comply with the requirements of section 405(b)(9).
(F) The proforma shall demonstrate that the aggregate income for the
property (including amounts provided by HUD for operating assistance or
replacement reserves) exceeds aggregate expenses and demonstrates a
positive trend in the difference between income and expenses during the
20-year period.
(iv) Replacement Reserves. The application shall demonstrate that
the amount proposed for replacement reserves is adequate, taking into
account (A) the estimates covered by the proforma, (B) the size of the
grant and the amount of matching contributions, (C) the condition and
age of the property and each of its major systems and components
(including at least the heating, plumbing and electrical systems and the
roof, foundation, windows, exterior walls, and common areas (including
need to repaint)), and (D) other possible replacement needs. The amount
of the reserve shall be $1,000 per unit or such higher amount proposed
by the applicant and approved by HUD.
(13) Sales Price to Applicant or Other Entity. The application shall
specify the proposed sales price, the basis for the price determination,
and terms of the proposed sale to the entity, if any, that will purchase
the property for resale to eligible families.
(14) Sales Prices and Terms of Sale to Eligible Families; Form of
Ownership. (i) The application shall include an estimate of the sales
prices and terms of sale to eligible families. The application shall
also specify the type or types of homeownership to be used, including
cooperative ownership (including limited equity cooperative ownership),
fee simple ownership (including condominium ownership), or another form
of ownership proposed and justified by the applicant and approved by
HUD. The application shall contain a certification that the proposed
type of homeownership is consistent with any applicable State and local,
or tribal, law. For example, if the applicant is a cooperative that
proposes to own the property, it must have the legal ability to own the
particular property.
(ii) The proposed program shall require each eligible family to make
a down payment towards the cost of acquisition at closing.
(iii) An applicant may permit a family to meet its down payment
obligation through ''sweat equity.''
(iv) See section 110(e) for provisions governing the use of single
family FHA mortgage insurance.
(15) Resale Restrictions, If Any. The application shall contain any
proposed restrictions on the resale of units by initial or subsequent
homeowners under the homeownership program (see section 720(a)(1)(ii)).
The required restrictions set forth in section 720 need not be restated.
(16) Management Entity. The application shall identify and describe
the entity that will operate and manage the property, and contain a copy
of the proposed contract.
(17) CHAS Certification. (i) The application shall contain a
certification by the public official, or his or her authorized
representative, who submits the CHAS that the proposed activities are
consistent with the approved CHAS of the State or unit of general local
government within which the eligible property is located.
(ii) Paragraph (b)(17)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(18) Equal Opportunity Certifications. (i) The application shall
contain --
(A) A certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHA, under
the circumstances described in section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) The application shall contain a statement from the applicant (A)
whether or not a desegregation order, agreement, or plan that applies to
the applicant is in effect or known to the applicant to be under
consideration; (B) that the applicant is not in violation of any
existing desegregation order, compliance agreement, or voluntary
agreement, or a statement describing the circumstances of the violation;
and (C) describing any potential impact the proposed homeownership
program may have on implementing any existing or pending order,
agreement, or plan.
(19) Resident Interest. Where the applicant (or one of the
applicants) is not an RMC or RC, the application shall contain a
certification from the resident organization, if any, that it is
interested in a homeownership program and that the applicant is
submitting the application on behalf of the resident organization.
Where there is more than one resident organization, the application
shall so indicate and state the results of a vote by the residents,
conducted by a disinterested third party, designating one resident
organization for this purpose. In all cases, the application shall also
contain a survey conducted by the applicant of resident interest in
homeownership and marketability of the units, which shall be conducted
in accordance with procedures set forth in the application package.
(20) Plan for Use of Certain Program Income. The application shall
contain a plan for use of proceeds from sales to eligible families and
amounts families may not retain upon resale. The plan shall provide for
uncommitted program income to be spent before additional grant amounts
are drawn down by the recipient.
(21) Nonduplication of Funding. The application shall contain a
certification that the applicant has not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(22) Disclosures Required by the Reform Act.
Section 102(b) of the HUD Reform Act, Public Law 101-235 (December
15, 1989) requires disclosure of other information concerning other
government assistance to be made available with respect to the program
and parties with a pecuniary interest in the homeownership program, and
submission of a report on expected sources and uses of funds to be made
available for the program. Each application shall include the
information required by 24 CFR part 12, subpart C, the regulation that
implements section 102 of the Reform Act. An implementing notice for 24
CFR part 12, subpart C, is being published in the Federal Register.
Applicants shall use the form and guidance contained in that notice to
make the required disclosures.
(c) Screening by HUD. (1) HUD shall screen each application
submitted on or before the deadline for submission set forth in the NOFA
to determine whether it is complete, is internally consistent, and
contains correct computations. Where HUD determines an application is
deficient in one or more of these areas, it shall notify the applicant
in writing and give it an opportunity to correct the deficiencies in its
application. However, the applicant may not substantially revise the
application, such as by substituting another eligible property or
applicant or changing other fundamental features of the homeownership
program, because that would not be fair to other applicants. The
notification shall require applicants to submit additional or correct
material so it is received in the appropriate HUD office no later than
close-of-business on the 14th calendar day after the date of the
notification to the applicant giving it an opportunity to modify its
application. HUD may not extend this deadline for actual receipt of the
material for any reason. HUD shall not consider further any
applications that do not meet one of the tests in the first sentence of
paragraph (c)(1) of this section, after the opportunity, if any, to
submit additional or corrected material.
(2) The purpose of this procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and may need
this additional opportunity to perfect their applications.
(Approved by the Office of Management and Budget under control number
2502-0451)
24 CFR 92.652 Section 420. Threshold review.
HUD shall review each application that qualifies for additional
consideration under the screening procedures in Section 415(c). HUD
shall not consider further any application that fails to meet one or
more of the following additional threshold criteria --
(a) The application shall demonstrate that the affordability
standards in Section 415(b)(12)(i) can be met and the plan for continued
affordability in Section 415(b)(12)(ii) is feasible. HUD shall take
into account the proposed cost of operating the property after eligible
families become homeowners; the adequacy of counseling and training of
homebuyers, residents, and homeowners; and the extent to which the
proposed self-sufficiency activities assure continued affordability by
homeowners.
(b)(1) The proposed program may not result in appreciably reducing in
the locality the number of affordable multifamily rental housing units
that would be available to residents currently residing in the property
or to families who would be eligible to reside in the property.
(2) HUD shall determine whether the application complies with this
criterion, based on a determination that no more than 5 percent of the
affordable multifamily rental housing units in the locality would be
converted to homeownership. If the proposed eligible property is in a
market area that contains such a small number of affordable rental
housing units that the applicant believes the number of units in the
eligible property may exceed the 5 percent threshold, the applicant
shall submit whatever documentation it believes appropriate to assist
HUD in making this determination.
(c) The applicant's certification of compliance with equal
opportunity and related requirements and the statement concerning
desegregation orders, compliance agreements, and voluntary agreements
are consistent with facts known to HUD, and the performance of the
applicant is satisfactory or any problems are being satisfactorily
resolved.
(d) The application shall be submitted by an eligible applicant for
eligible property.
(e) The proposed program provides that at least 66 percent of the
units will be acquired by eligible families (or such higher percentage
as may be required under State, local, or tribal law governing
cooperative associations or other form of homeownership used under the
program). In addition, the proposed program provides that at least 80
percent of units acquired for homeownership will be acquired by
low-income families (or such higher percentage as may be required under
such State, local, or tribal law), and that no units will be acquired by
families with incomes above 95 percent of the area median.
(f) Where the vacancy rate for the eligible property is less than 50
percent, at least 50 percent of the residents are interested in becoming
homeowners.
(g) The proposed costs of eligible activities are within applicable
cost limitations.
(h) An assessment of the proposed eligible property, based on the
criterion for rating the suitability of property, indicates that the
property is suitable.
(i) The application meets all other program requirements.
24 CFR 92.652 Section 425. Rating, ranking, and selection of
applications.
(a) Rating. HUD shall review each application that it determines to
meet the threshold requirements and assign it points in accordance with
the following selection criteria --
(1) Capability. The qualifications or potential capabilities of the
applicant for developing a successful and affordable homeownership
program. HUD shall assign points based on the past experience of the
applicant, or an explanation of how such capability will be obtained, in
the following categories --
(i) Developing or managing multifamily housing, or both -- 5 points.
(ii) Providing multifamily homeownership programs (for example,
conversion of rental property to cooperative or condominium low-income
homeownership, or developing financing programs for low-income
homeownership) -- 5 points.
(iii) Organizing, developing, and training effective low-income
neighborhood or low-income resident groups, or both -- 5 points.
Maximum points for this criterion (1): 15 points.
(2) Quality of the Program. In assigning points for this criterion,
HUD shall consider evidence in the application demonstrating --
(i) The overall soundness and comprehensiveness of the homeownership
program -- 15 points.
(ii) The extent to which proposed economic development activities
will result in continued affordability of the property after assistance
for operating expenses is no longer available -- 10 points.
If no assistance for operating assistance is being requested and if
the application demonstrates that no economic development assistance is
needed, no points shall be assigned under subcriterion (ii), and the
points for subcriterion (i) shall be 25.
Maximum points for this criterion (2): 25 points
(3) Local Support. The extent of cooperation or support, or both,
from the unit of general local government, neighborhood organizations,
and providers of services and resources appropriate to assist eligible
families to achieve economic independence. In assigning points for this
criterion, HUD shall consider --
(i) Evidence of support for the homeownership program, demonstrated
through letters, resolutions, or other expressions of support from State
or local governments, PHAs/IHAs, and community, civic, religious, or
other entities -- 5 points; and
(ii) Evidence from entities other than the applicant that funds,
services, or other resources will be made available in support of the
homeownership program, demonstrated through letters, resolutions, or
other expressions of support from providers of services and other
resources. -- 5 points.
The highest number of points shall be assigned based on the quality,
expected duration, and size of support to the homeownership program.
Maximum points for this criterion (3): 10 points.
(4) Resident and Homebuyer Interest. The extent of resident and
homebuyer interest in the development of a homeownership program for the
eligible property. HUD shall assign points based on the percentage of
current and potential residents interested in participating in the
proposed homeownership program, based on a survey conducted by the
applicant and submitted to HUD as part of the application. Only
occupied units in the property shall be used to calculate the percentage
of residents interested.
(i)(A) If 75 percent or more of the residents are interested: 5
points; or
(B) If 50-74.99 percent of the residents are interested: 3 points;
and
(ii)(A) If 75 percent or more of the units occupied by nonpurchasers
are occupied by residents willing to move and the application
demonstrates that all the units in the property are marketable: 5
points;
(B) If 50-74.99 percent of the units occupied by nonpurchasers are
occupied by residents willing to move and the application demonstrates
that all the units in the property are marketable: 3 points; or
(C) If less than 50 percent of the units occupied by nonpurchasers
are occupied by residents willing to move: 0 points.
If the vacancy rate for the property is 50 percent or more, the
points for categories (ii) (A) and (B) shall be doubled and no points
shall be assigned for categories (i) (A) and (B).
Maximum points for this criterion (4): 10 points
(5) Suitability of the Property. The suitability of the eligible
property for homeownership shall be determined based on --
(i) Proximity or accessibility of the property to places of
employment, shopping, schools, medical facilities, transportation,
places of worship, recreational facilities, and other necessary services
for the families under the program -- 4 points;
(ii) Whether the surrounding neighborhood is free from conditions
which are seriously detrimental to the quality of life; substandard
dwellings or other undesirable elements must not predominate, unless the
undesirable conditions affecting the property are being actively
mitigated -- 12 points; and
(iii) Whether the structure type and bedroom configuration are (or
will be after any proposed rehabilitation) appropriate for the proposed
homeownership program -- 4 points.
The purpose of this criterion is to assure that property in
neighborhoods completely unsuitable for homeownership are not selected.
The review will be made in the context of where the eligible properties
are typically located.
Maximum points for this criterion (5): 20 points.
(6) MBE/WBE Goals. (i) The extent to which the applicant
demonstrates a firm commitment to promoting the use of minority business
enterprises and women-owned businesses, especially resident-owned
businesses. For example, the applicant has used such businesses in the
past, has set forth specific affirmative steps it will take to ensure
that such businesses have an equal opportunity to obtain and compete for
contracts, or both. These steps may include the steps outlined at 24
CFR 85.36(e) and 570.506(g)(6), but may not include awarding contracts
solely or in part on the basis of race or gender. See Section 505(d)
for the legal basis for this criterion.
(ii) In the case of applications submitted by Indian tribes or IHAs,
the requirements of the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450e(b), apply. Accordingly, for such
applicants, points for this factor shall be assigned based on the extent
to which the applicant demonstrates a firm commitment to promoting the
use of minority business enterprises and women-owned businesses, to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act.
Maximum points for this criterion (6) (i) or (ii), as applicable: 5
points.
(7) Feasibility and Efficiency -- (i) Feasibility. The extent of
readiness of the applicant to proceed with rehabilitation and the
homeownership program, based on the level of completeness of the
architectural exhibits and the cost estimates of the proposed
rehabilitation. Applicants submitting final working drawings and
specifications that are sufficient to permit the applicant to obtain
bids for the work will receive maximum points.
Maximum points for this subcriterion: 10 points.
(ii) Efficiency. The efficiency of the applicant's use of HOPE grant
funds, based on such factors as --
(A) The amount of the HOPE grant per unit, adjusted for high-cost
areas;
(B) The availability of contributions beyond those required by the
match, and the availability of the contributions proposed in cash and
for relatively firmer commitments of cash and other contributions.
Maximum points for this subcriterion (ii): 5 points.
Maximum points for this criterion (7): 15 points.
(8) Extent of Low-Income Homeownership. HUD shall deduct points for
an application that proposes relatively fewer low-income purchasers, as
follows: --
(i) An application shall have 15 points deducted from its score if
80.01-90 percent of the units will be purchased by low-income families.
(ii) An application shall have 10 points deducted from its score if
90.01-99.99 percent of the units will be purchased by low-income
families.
(iii) An application shall have no points deducted from its score if
100 percent of the units will be purchased by low-income families.
Total points -- 100 points.
(b) Environmental Review. (1) HUD shall conduct an environmental
review of the implementation grant applications.
(2) In conducting the environmental review, HUD shall assess the
environmental effects of each implementation grant application in
accordance with the provisions of the National Environmental Policy Act
of 1969 (NEPA) (42 U.S.C. 4321) and HUD's implementing regulations at 24
CFR part 50. Any application that requires an environmental impact
statement (generally, those that HUD determines would have a significant
impact on the human environment, in accordance with the environmental
assessment procedures at 24 CFR part 50, subpart E) shall not be
eligible for funding.
(3) As a result of the environmental review, HUD may find that it
cannot approve an application unless adequate measures to mitigate
environmental impacts are taken. (See, for example, 24 CFR part 51.)
Accordingly, HUD may adjust the rating scores of such applications,
based on the anticipated time delays or excessive costs in adopting
appropriate impact mitigation. For example, the feasibility of the
program or the availability of an eligible property may be harmed by any
significant delay.
(4) The environmental review often will reveal information not
contained in the application that may have relevance to the selection
process. HUD shall make further adjustments to the ratings, where
appropriate, based on the information revealed during the environmental
review.
(c) Ranking and Selection to Assure National Geographic Diversity.
(1) After assigning points to each application under paragraph (a) of
this section, HUD shall rank the implementation grant applications rated
under paragraph (a) of this section. HUD shall examine the ranking and,
where it determines that applications falling below a certain point
total are not suitable or not feasible for homeownership under the
program, it may establish a minimum number of points for an application
to be selected. HUD shall then select the highest ranking application
from each of the 10 HUD Regions.
(2) HUD shall then select the highest ranking remaining applications,
without regard to their location.
(3) If two or more applications have the same number of points, the
application with the most points for feasibility and efficiency shall be
selected. If there is still a tie, the application with the most points
for suitability of property shall be selected.
(4) When the amount remaining after funding as many of the highest
ranking applications as possible is insufficient for the next highest
ranking application, HUD may determine whether funding a lower grant
amount is feasible. Alternatively, HUD may skip to the next highest
ranking application or applications that can be funded with the
remaining amount.
(5) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding the application from any
unused amounts or ''off the top'' from amounts available for
implementation grants in the next funding round.
(d) Reduction in Requested Grant Amounts. HUD shall approve an
implementation grant application for an amount lower than the amount
requested or adjust line items in the proposed budget within the amount
requested (or both) if it determines the amount requested for one or
more eligible activities is unreasonable or unnecessary or does not
otherwise meet applicable cost limitations established for the program.
(e) Notification of Approval or Disapproval -- (1) Notification of
Applicants. After completion of the ranking and selection of
applications, but no later than six months after the date of submission
of the application, HUD shall notify the selected applicants and the
applicants that have not been selected, in writing. The amount of the
required match may be adjusted when HUD approves an application, to
reflect the approved grant amount.
(2) Conditional Approval of Section 8 Applications. HUD may approve
the HOPE implementation grant application with a statement that the
application for the section 8 certificate or housing voucher assistance
(or both) is conditionally approved, subject to the availability of
appropriations in subsequent fiscal years. This will permit HUD to use
section 8 authority for other purposes until it is needed for the HOPE 2
program for nonpurchasing residents.
(f) Use of Remaining Amounts to Fund HOPE 2 Planning Grants. Any
amounts available to fund implementation grants that are not needed
because there are insufficient approvable applications shall be used to
fund the highest ranked, unfunded planning grant applications.
(g) Insufficient Approvable Applications. If funds remain after HUD
approves all approvable applications, including planning grant
applications, as provided in this notice, HUD may publish a NOFA
inviting applications for planning or implementation grants, or both, in
accordance with this notice, or invite applicants who submitted
applications that could not be funded to submit amended planning grant
or implementation grant applications in accordance with this notice
within a deadline specified in the invitation.
24 CFR 92.652 V. Other Requirements
24 CFR 92.652 Section 501. Flood insurance and Coastal Barriers
Resources Act.
(a) Flood Insurance. Pursuant to the Flood Disaster Protection Act
of 1973 (42 U.S.C. 4001-4128) HUD will not approve applications for
implementation grants providing financial assistance for acquisition or
rehabilitation of properties located in an area identified by the
Federal Emergency Management Agency (FEMA) as having special flood
hazards, unless --
(1) The community in which the area is situated is participating in
the National Flood Insurance program (see 44 CFR parts 59 through 79),
or less than one year has passed since FEMA notification regarding such
hazards; and
(2) Flood insurance is obtained as a condition of approval of the
application.
(b) Coastal Barriers Resources Act. Pursuant to the Coastal Barriers
Resources Act (16 U.S.C. 3601), HUD will not approve applications for
planning or implementation grants for properties in the Coastal Barriers
Resources System.
24 CFR 92.652 Section 505. Nondiscrimination and equal opportunity.
(a) Fair Housing Requirements. (1) The requirements of the Fair
Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR
part 100, part 109, and part 110; Executive Order 11063, as amended by
Executive Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980
Comp., p. 307) (Equal Opportunity in Housing) and implementing
regulations at 24 CFR part 107; and title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR part 1 shall
apply.
(2) The Indian Civil Rights Act (25 U.S.C. 1301 et seq.) applies to
tribes when they exercise their powers of self-government. Thus, it is
applicable in all cases when an IHA has been established by exercise of
such powers. In the case of an IHA established pursuant to State law,
the applicability of the Indian Civil Rights Act shall be determined on
a case-by-case basis. Developments subject to the Indian Civil Rights
Act shall be developed and operated in compliance with its provisions
and all implementing HUD requirements, instead of title VI and the Fair
Housing Act and their implementing regulations.
(b) Discrimination on the Basis of Age or Handicap. The prohibitions
against discrimination on the basis of age under the Age Discrimination
Act of 1975 (42 U.S.C. 6101-07) and implementing regulations at 24 CFR
part 146, and the prohibitions against discrimination against
handicapped individuals under section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8 shall
apply.
(c) Employment Opportunities. (1) The requirements of section 3 of
the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u)
(Employment Opportunities for Lower Income Persons in Connection with
Assisted Projects) shall apply. In addition, Executive Order 11246 (3
CFR 1964-1965 Comp., p. 339) (Equal Employment Opportunity) and
implementing regulations at 41 CFR part 60 shall apply.
(2) In the case of Indian tribes in IHAs, the requirements of the
Indian Self-Determination and Education Assistance Act shall also apply
(see 25 U.S.C. 450e(b); 24 CFR 905.165 (a) and (b) and 905.360);
compliance with Executive Order 11246 and 41 CFR part 60 shall be to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act (see 24 CFR 905.170(b)
and 905.360).
(d) Minority and Women's Business Enterprises. The requirements of
Executive Orders 11625, 12432, and 12138 shall apply. Consistent with
HUD's responsibilities under these Orders, recipients must make efforts
to encourage the use of minority and women's business enterprises in
connection with funded activities. In the case of applications
submitted by Indian tribes or IHAs, recipients' efforts must be
consistent with, but not in derogation of, the Indian Self-Determination
and Education Assistance Act, 25 U.S.C. 450e(b).
(e) Affirmative Fair Housing Marketing. The recipient shall adopt a
plan for informing and soliciting applications from people who are least
likely to apply for the program without special outreach, consistent
with the affirmative fair housing marketing requirements. See 24 CFR
part 108. Paragraph (e) of this section shall not apply to Indian
tribes and IHAs, as described in paragraph (a)(2) of this section.
(f) Authority for Collection of Racial, Ethnic and Gender Data. HUD
requires submission of racial, ethnic, and gender data under this notice
pursuant to section 562 of the Housing and Community Development Act of
1987, section 431 of NAHA, and section 808(e)(6) of the Fair Housing
Act.
24 CFR 92.652 Section 510. OMB circulars.
(a) The policies, guidelines, and requirements of OMB Circular Nos.
A-87 (Cost Principles Applicable to Grants, Contracts and Other
Agreements with State and Local Governments) and 24 CFR part 85
(Administrative Requirements for Grants and Cooperative Agreements to
State, Local and Federally Recognized Indian Tribal Governments) apply
to the award, acceptance, and use of assistance under the program by
governmental entities, and to the remedies for non-compliance, except
where inconsistent with the provisions of NAHA, other Federal statutes,
or this notice. Circular Nos. A-110 (Grants and Cooperative Agreements
with Institutions of Higher Education, Hospitals, and Other Nonprofit
Organizations) and A-122 (Cost Principles Applicable to Grants,
Contracts and Other Agreements with Nonprofit Institutions) apply to the
acceptance and use of assistance by private nonprofit organizations,
except where inconsistent with the provisions of NAHA, other Federal
statutes, or this notice. Recipients are also subject to the audit
requirements of OMB Circular A-128 implemented at 24 CFR part 44, and
OMB Circular A-133 (Audits of Institutions of Higher Learning and Other
Nonprofit Institutions).
(b) Copies of OMB Circulars may be obtained from E.O.P.
Publications, room 2200, New Executive Office Building, Washington, DC
20503, telephone (202) 395-7332 (this is not a toll-free number). There
is a limit of two free copies.
24 CFR 92.652 Section 515. Drug-free workplace.
Applicants shall certify that they will provide a drug-free
workplace, in accordance with the Drug-free Workplace Act of 1988 and
HUD's implementing regulations at 24 CFR part 24, subpart F.
24 CFR 92.652 Section 520. Anti-lobbying certification.
(a) Section 319 of Public Law 101-121 prohibits recipients of Federal
contracts, grants, and loans from using appropriated funds for lobbying
the Executive or Legislative Branches of the Federal Government. A
government-wide common rule governing the restrictions on lobbying was
published as an interim rule on February 26, 1990 (55 FR 6736) and
supplemented by a notice published June 15, 1990 (55 FR 24540). For
HUD, this rule is found at 24 CFR part 87. The rule requires applicants
for and recipients of assistance exceeding $100,000 to certify that no
Federal funds have been or will be spent on lobbying activities in
connection with the assistance. The rule also requires disclosures from
applicants and recipients if nonappropriated funds have been spent or
committed for lobbying activities if those activities would be
prohibited if paid with appropriated funds. The law provides
substantial monetary penalties for failure to file the required
certification or disclosure.
(b) This section shall not apply to Indian tribes or IHAs. Indian
tribes, tribal organizations, or any other Indian organization with
respect to expenditures specifically permitted by other Federal law are
not covered by the definition of ''person'' in 24 CFR part 87.
24 CFR 92.652 Section 525. Debarred or suspended contractors.
The provisions of 24 CFR part 24 apply to the employment, engagement
of services, awarding of contracts, subgrants, or funding of any
recipients, or contractors or subcontractors, during any period of
debarment, suspension, or placement in ineligibility status.
24 CFR 92.652 Section 530. Conflict of interest.
(a) In addition to the conflict of interest requirements in OMB
Circular A-110 /2/ and 24 CFR part 85, no person who is an employee,
agent, consultant, officer, or elected or appointed official of the
recipient and who exercises or has exercised any functions or
responsibilities with respect to assisted activities, or who is in a
position to participate in a decision-making process or gain inside
information with regard to such activities, may obtain a financial
interest or benefit from the activity, or have an interest in any
contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for himself or herself or for those with
whom he or she has family or business ties, during his or her tenure or
for one year thereafter, except that a resident of an eligible property
may acquire a homeownership interest.
(b) HUD may grant an exception to the exclusion in paragraph (a) of
this section on a case-by-case basis when it determines that such an
exception will serve to further the purposes of the HOPE program and the
effective and efficient administration of the local homeownership
program. An exception may be considered only after the applicant or
recipient has provided a disclosure of the nature of the conflict,
accompanied by an assurance that there has been public disclosure of the
conflict and a description of how the public disclosure was made and an
opinion of the applicant's or recipient's attorney that the interest for
which the exception is sought would not violate State or local laws. In
determining whether to grant a requested exception, HUD shall consider
the cumulative effect of the following factors, where applicable:
(1) Whether the exception would provide a significant cost benefit or
an essential degree of expertise to the local homeownership program that
would otherwise not be available;
(2) Whether an opportunity was provided for open competitive bidding
or negotiation;
(3) Whether the person affected is a member of a group or class
intended to be the beneficiaries of the activity and the exception will
permit such person to receive generally the same interests or benefits
as are being made available or provided to the group or class;
(4) Whether the affected person has withdrawn from his or her
functions or responsibilities, or the decisionmaking process, with
respect to the specific activity in question;
(5) Whether the interest or benefit was present before the affected
person was in a position as described in paragraph (b) of this section;
(6) Whether undue hardship will result either to the applicant,
recipient, or the person affected when weighed against the public
interest served by avoiding the prohibited conflict; and
(7) Any other relevant considerations.
/2/ See section 510(b) concerning the availability of OMB Circulars.
24 CFR 92.652 Section 535. Labor standards.
If other Federal programs are used in connection with the HOPE 2
homeownership program, labor standards requirements apply to the extent
required by such other Federal programs. For example, If CDBG
assistance is used for the HOPE program, any labor standards
requirements of that program would apply to the extent required by it.
24 CFR 92.652 Section 540. Lead-based paint testing and abatement.
Any residential property assisted under the HOPE program established
under this notice constitutes HUD-associated housing for the purpose of
the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.)
and is, therefore, subject to 24 CFR part 35. Unless otherwise
provided, recipients shall be responsible for testing and abatement
activities.
24 CFR 92.652 Section 545. Requirements applicable to religious
organizations.
Where the applicant is, or proposes to contract with, a primarily
religious organization, or a wholly secular organization established by
a primarily religious organization, to provide, manage, or operate
housing under the program, the organization shall undertake its
responsibilities under the homeownership program in accordance with the
following principles:
(a) It will not discriminate against any employee or applicant for
employment under the program on the basis of religion and will not limit
employment or give preference in employment to persons on the basis of
religion;
(b) It will not discriminate against any person applying for housing
on the basis of religion and will not limit such housing or give
preference to persons on the basis of religion;
(c) It will provide no religious instruction or counseling, conduct
no religious services or worship (which term does not include voluntary,
non-denominational prayer before meetings), engage in no religious
proselytizing, and exert no other religious influence in the provision
of assistance under the homeownership program.
24 CFR 92.652 VI. Grant Agreement -- Planning and Implementation Grants
24 CFR 92.652 Section 601. Grant agreement.
After HUD approves an application for a planning grant or an
implementation grant, it shall enter into a grant agreement with the
recipient setting forth the amount of the grant and applicable terms and
conditions, including sanctions for violation of the agreement. Among
other things, the grant agreement shall provide that the recipient
agrees:
(a) To carry out the program in accordance with the provisions of
this notice, applicable law, the approved application, and all other
applicable requirements;
(b) To comply with such other terms and conditions, including
recordkeeping and reports, as HUD may establish for the purposes of
administering, monitoring, and evaluating the program in an effective
and efficient manner;
(c) That HUD may withhold, withdraw, or recapture any portion of a
grant, terminate the grant agreement, or take other appropriate action
authorized under the grant agreement, if HUD determines that the
recipient is failing to carry out the approved homeownership program in
accordance with the terms of the approved application and this notice,
including failure to provide the contributions towards the match.
24 CFR 92.652 VII. Implementation of Planning and Implementation Grants
24 CFR 92.652 Section 701. Implementation; Family contribution;
Performance standards.
(a) After execution of its planning or implementation grant
agreement, the recipient shall carry out the planning grant or
implementation grant activities in accordance with its approved
application. HUD shall establish procedures governing the drawdown of
funds under grant agreements.
(b) The total monthly amount payable by a family may not be less than
the amount determined in accordance with the regulations specified in
section 415(b)(12)(i) if operating assistance under the program is being
provided for the family. The amount payable by a family shall be
adjusted at least annually in accordance with the requirements of those
regulations so long as operating assistance is being provided under the
program for the family.
(c) HUD intends to establish performance criteria in the final rule
for the program and invites comments on what the standards should be.
24 CFR 92.652 Section 705. Resident selection procedures during rental
phase (If Any).
During the interim period, if any, when the property continues to be
operated and managed as rental housing, the recipient shall utilize
written resident selection policies and criteria that are approved by
HUD as consistent with the purpose of improving housing opportunities
for low-income families. The policies shall provide that the recipient
(or another appropriate entity) (a) notify any rejected applicant in
writing of the grounds for rejection; (b) comply with applicable
affirmative fair housing marketing requirements; (c) specify the basis
for resident selection, which shall give a preference to applicants
interested in becoming homeowners who have completed participation in an
economic self-sufficiency program (see section 415(b)(5)(i)(B)) and
other applicants interested in becoming homeowners and shall provide for
a waiting list; and (d) verify family income of applicants and check
the credit and rental history of applicants. The resident selection
policies and criteria may not provide for the recipient (or other
entity) to take into account whether an applicant receives public
assistance or receives Federal, State, or local housing assistance, but
may take into account such assistance, and all other income and other
resources, in determining the amount a family will pay under the
program. The recipient may adopt the assisted housing occupancy
handbook, with any appropriate modifications (including, at least,
establishing a priority for applicants interested in homeownership).
24 CFR 92.652 Section 710. Social security numbers.
As a condition of eligibility for homeownership under this notice --
(a) At the time a family applies for homeownership, the recipient (or
other appropriate entity) shall require the family to meet the
requirements for the disclosure and verification of social security
numbers, as provided by 24 CFR part 750; and
(b) The recipient (or other appropriate entity) shall require the
family to sign and submit consent forms for the obtaining of wage and
claims information from State Wage Information Collection Agencies, as
provided by 24 CFR part 760.
24 CFR 92.652 Section 715. Timely homeownership.
(a) Deadline for Transfer. Recipients shall transfer ownership
interests in the property to eligible families within a reasonable
period of time.
(b) Definition of Reasonable Period of Time. (1) Except for eligible
property already owned by the entity that will transfer to eligible
families, the eligible property shall be acquired within one year of the
effective date of the implementation grant agreement. Ownership
interests in the units shall be transferred to eligible families within
four years of the effective date.
(2) An applicant may propose in its application a longer period for
transferring ownership interests to eligible families, and submit a
justification. After application approval, HUD may approve a request
for a longer deadline for transfer to eligible families, where it
determines that unanticipated, extraordinary circumstances exist.
Subject to the availability of funding, HUD may consider making
additional section 8 assistance available to residents in the property
where necessary to maintain its feasibility during the time the causes
for the delay are being corrected. This could become necessary if
residents who intended to purchase change their minds and need
assistance to afford the rents in the property.
24 CFR 92.652 Section 720. Restrictions on resale by initial
homeowners.
(a) In general -- (1) Tranfer Permitted. (i) A homeowner may
transfer the homeowner's ownership interest in the unit, subject only to
the right to purchase under paragraph (a)(2) of this section, the
requirement for the purchaser to execute a promissory note, if required
under paragraph (b) of this section, and the limitation on the amount of
sales proceeds a family may retain upon sale within the first six years,
as required under paragraph (c) of this section. See paragraphs (b) and
(c) of this section for the rules for determining the amount homeowners
may retain from the sales proceeds.
(ii) Notwithstanding paragraph (a)(1)(i) of this section, an
applicant may propose in its application, and HUD may approve based on a
review of the individual circumstances, additional reasonable
restrictions on the resale of units under the program.
(2) Right to purchase. (i) Where an RMC, RC, or cooperative has
jurisdiction over the unit, it shall have the prior right to purchase
the ownership interest in the unit from the initial homeowner for the
amount specified in a firm contract between the homeowner and a
prospective buyer. The RMC, RC, or cooperative association shall have
10 days after receiving notice of the firm contract to decide whether to
exercise its right and 60 additional days to complete closing of the
purchase.
(ii) If no RMC, RC, or cooperative has jurisdiction over the unit or
no such entity elects to purchase from the initial homeowner and if the
prospective buyer is not a low-income family, a PHA/IHA with
jurisdiction for the area in which the unit is located or the recipient,
as specified in writing at the time the family acquires ownership
interest in the unit, shall have the prior right to purchase the
ownership interest in the unit for the amount specified in the firm
contract. The PHA/IHA, or recipient shall have 10 days after receiving
notice of the firm contract to decide whether to exercise its right and
60 additional days to complete closing of the purchase.
(iii) Where an RMC, RC, cooperative, PHA/IHA, or recipient exercises
a right to purchase, it shall resell the unit to an eligible family
promptly. If the PHA/IHA exercises a right to purchase shares
representing a unit in a cooperative, because the cooperative did not
have sufficient money to do so, the PHA/IHA shall give the cooperative
another chance to purchase the shares before selling it to an eligible
family.
(b) Promissory Note. (1)(i) At closing, the initial homeowner shall
execute a nonamortizing, nonrecourse, non-interest-bearing promissory
note, in a form acceptable to HUD, equal to the difference, if any,
between the fair market value of the unit and the purchase price,
payable to the PHA/IHA, recipient, or other entity designated in the
approved homeownership plan, together with a mortgage securing the
obligation of the note. In determining the amount of the promissory
note and for that purpose only, the purchase price shall be adjusted by
deducting all substantial amounts of assistance that would result in an
undue profit to the family if it were to sell the property at the
beginning of the 7th year of homeownership. (See paragraph (c) of this
section for restrictions during the first six years.) For example, if
the family received down payment assistance equal to 10 percent or more
of the fair market value, a promissory note shall be required.
(ii)(A) With respect to a sale by an initial homeowner, the note
shall require payment upon sale by the initial homeowner, to the extent
proceeds of the sale remain after paying off other outstanding debt
secured by the property that was incurred for the purpose of acquisition
or property improvement, paying any other amounts due in connection with
the sale (such as closing costs and transfer taxes), and paying the
family the amount of its equity in the property, computed in accordance
with paragraph (c) of this section.
(B) With respect to a sale by an initial homeowner after the first
six years after acquisition through the 20th year, the amount payable
under the note shall be reduced by 1/168 of the original principal
amount of the note for each full month of ownership by the family after
the end of the sixth year. The homeowner may retain all other proceeds
of the sale.
(C) For example, if the family sells at the end of the 13th year of
homeownership (at the half-way point between the end of the sixth year
and the end of the 20th year of ownership), 84/168 (or one-half) of the
note would be forgiven, and only half of the principal amount of the
note would be payable from sales proceeds. The family could retain all
remaining proceeds, including proceeds due to normal market value
increases in the value of the property. If the initial homeowner
retains ownership for 20 or more years, the entire amount of the note
would be forgiven.
(2)(i) Where a subsequent purchaser during the 20-year period,
measured by the term of the initial promissory note, purchases the
property for less than the then current fair market value, the purchaser
shall also execute at closing such a promissory note and mortgage, for
the amount of the discount (but no more than the amount payable at the
time of the sale on the promissory note by the seller). The term of the
promissory note shall be the period remaining of the original 20-year
period. The note shall require payment upon sale by the subsequent
homeowner, to the extent proceeds of the sale remain after covering
costs of the sale, paying off other outstanding debt secured by the
property that was incurred for the purpose of acquisition or property
improvement, and paying any other amounts due in connection with the
sale. The amount payable on the note shall be reduced by a percentage
of the original principal amount of the note for each full month of
ownership by the subsequent homeowner. The percentage shall be computed
by determining the percentage of the term of the promissory note the
homeowner has owned the property. The remainder may be retained by the
subsequent homeowner selling the property.
(ii) For example, if the subsequent homeowner acquires the property
from an initial homeowner at the end of year 4, there are 192 months (16
years 12) remaining in the 20-year period. The term of the promissory
note is 16 years. If the subsequent homeowner sells at the end of year
10, having owned the property for 72 months (6 years 12), 72/192 (37.5
percent) of the note would be forgiven, and 62.5 percent of the
principal amount of the note would be payable from sales proceeds. The
family could retain all remaining proceeds, including proceeds due to
normal market value increases in the value of the property. If the
subsequent homeowner retains ownership to the end of the initial 20-year
period (for 16 years, in the example), the entire amount of the note
would be forgiven.
(c) Limitation on Equity Interest an Initial Homeowner May Retain
from Sale During First Six years. (1) The HOPE program is designed to
assure that an initial or subsequent homeowner does not receive any
undue profit from acquiring a unit under the program and that, to the
extent the sales price is sufficient, an initial homeowner recovers the
equity interest in the property. With respect to any sale by an initial
homeowner during the first six years after acquisition, the family may
retain only the amount computed under paragraph (c) of this section.
Any excess shall be distributed as provided in paragraph (d) of this
section. The amount of equity an initial homeowner has in the property
is determined by computing the sum of the following --
(i) The contribution to equity paid by the family (such as any down
payment (in the form of cash or the value of sweat equity) and any
amount paid towards principal on a mortgage loan during the period of
ownership);
(ii) The value of any improvements installed at the expense of the
family during the family's tenure as owner (including improvements made
through sweat equity), as determined by the recipient or other entity
specified in the approved application based on evidence of amounts spent
on the improvements, including the cost of material and labor; and
(iii) The appreciated value, determined by applying the Consumer
Price Index (Urban Consumers) against the contribution to equity under
paragraphs (c)(l)(i) and (ii) of this section.
(2) The recipient (or other entity) may, at the time of initial sale,
enter into an agreement with the family to set a maximum amount which
this appreciation may not exceed.
(3) Amounts that count towards a family's equity may not also count
towards the match.
(d) Use of Amounts a Family May Not Retain. Fifty percent of any
portion of the net sales proceeds that may not be retained by the
homeowner under paragraphs (a)(1)(ii), (b), and (c) of this section
shall be paid to the entity that transferred ownership interests in
units to eligible families, or another entity specified in the approved
application, for use for improvements to the project, business
opportunities for low-income families, supportive services related to
the homeownership program, additional homeownership opportunities
(including assistance for additional homeowners who are otherwise unable
to cover the costs of homeownership), and other activities approved by
HUD in the approved homeownership program or later. The remaining 50
percent shall be collected by the recipient and returned to HUD within
15 days of the sale for use under the HOPE 2 program, subject to any
limitations contained in appropriations Acts.
24 CFR 92.652 Section 725. Use of proceeds from sales to eligible
families.
The entity that transfers ownership interests in units to eligible
families, or another entity specified in the approved application, shall
use the proceeds, if any, from the initial sale for costs of the
homeownership program, including operating expenses, improvements to the
project, business opportunities for low-income families, supportive
services related to the homeownership program, additional homeownership
opportunities, and other activities approved by HUD, either as part of
the approved application or later on request.
24 CFR 92.652 Section 730. Third party rights.
The requirements under this notice regarding housing quality
standards, resale, or transfer of the ownership interest of a homeowner
shall be judicially enforceable against the recipient with respect to
actions involving rehabilitation, and against purchasers of eligible
property under the HOPE program or their successors in interest (to the
extent such requirements apply to purchasers and their successors in
interest) with respect to other actions by affected low-income families,
RMCs, RCs, PHAs/IHAs, and any agency, corporation, or authority of the
United States government. The parties specified in the preceding
sentence shall be entitled to reasonable attorney fees upon prevailing
in any such judicial action.
24 CFR 92.652 Section 735. Displacement prohibited; Protection of
nonpurchasing residents.
(a) Displacement Prohibited. No person may be displaced from his or
her dwelling as a direct result of a homeownership program under this
notice. This does not preclude terminations of tenancy for violation of
the terms of occupancy of the unit. In addition to any applicable
sanctions under the grant agreement, a violation of paragraph (a) of
this section may trigger a requirement to provide relocation assistance
in accordance with the Uniform Relocation Assistance and Real Property
Acquisition Policies Act of 1970 and government-wide implementing
regulations at 49 CFR part 24.
(b) Temporary Relocation. The recipient shall provide each resident
of an eligible property, who is required to relocate temporarily to
permit work to be carried out, with suitable, decent, safe, and sanitary
housing for the temporary period and shall reimburse the resident for
all reasonable out-of-pocket expenses incurred in connection with the
temporary relocation, including the costs of moving to and from the
temporarily occupied housing and any increase in monthly costs of rent
and utilities.
(c) Relocation Assistance for Residents Who Elect to Move. The
recipient shall provide each nonpurchasing resident who elects to move
with relocation assistance in accordance with the approved homeownership
program.
(1) The program shall provide, at least, the following assistance:
(i) Advisory services including timely information, counseling
(including the provision of information on a resident's rights under the
Fair Housing Act), and referrals to suitable, affordable, decent, safe,
and sanitary alternative housing;
(ii) Payment for actual, reasonable moving expenses; and
(iii) Relocation housing assistance sufficient to permit relocation
to suitable, affordable, decent, safe, and sanitary housing. This
requirement is met if a family receives assistance as provided in
paragraph (c)(2) of this section. For other families, this requirement
is met if the cost of the housing to the family does not exceed the
higher of 30 percent of adjusted family income or the amount paid by the
family for the unit being vacated, and the housing is otherwise suitable
and decent, safe, and sanitary.
(2) If a resident living in an eligible property on the date HUD
approves an application for an implementation grant is a low-income
resident and decides not to purchase a unit, or is not qualified to do
so under the terms of the approved homeownership program, HUD shall,
subject to the availability of appropriations, ensure that the resident
receives a section 8 certificate or voucher for use in that or another
property.
(d) Notice of Relocation Assistance. As soon as feasible, each
recipient shall give each resident of an eligible property a written
description of the applicable provisions of this section.
24 CFR 92.652 VIII. Records, Reports, and Audit of Recipients
24 CFR 92.652 Section 801. Recordkeeping.
(a) General Records. Each recipient shall keep records that will
facilitate an effective audit to determine compliance with program
requirements and that fully disclose --
(1) The amount and disposition by the recipient of the planning and
implementation grants received under this notice, including sufficient
records that document the reasonableness and necessity of each
expenditure;
(2) The amount and disposition of proceeds from financing obtained in
connection with the program, sales to eligible families, and any funds
recaptured upon sale by the homeowner;
(3) The total cost of the homeownership program;
(4) The amount and nature of any other assistance, including cash,
property, services, or other items contributed as a condition of
receiving an implementation grant;
(5) The cost or other value of all in-kind contributions towards the
match required by section 410; and
(6) Any other proceeds received for, or otherwise used in connection
with, the homeownership program.
(b) Family Size and Income and Racial, Ethnic, and Gender Data. The
recipient shall maintain records on the family size and income, and
racial, ethnic, and gender characteristics, of families who apply for
homeownership and families who become homeowners.
(c) Cooperative and Condominium Agreements. The recipient shall
maintain a copy of any condominium and cooperative association
agreements for properties under the approved homeownership program.
(d) Amounts Available for Reuse. The recipient shall keep and make
available to HUD all records necessary to calculate accurately payments
due to HUD under Section 720(d) and Section 725.
(Approved by the Office of Management and Budget under control number
2502-0451)
24 CFR 92.652 Section 805. Reports.
The recipient shall submit reports required by HUD.
(Approved by the Office of Management and Budget under control number
2502-0451)
24 CFR 92.652 Section 810. Access by HUD and the Comptroller General.
For the purpose of audit, examination, monitoring, and evaluation
each recipient shall give HUD (including any duly authorized
representatives and the Inspector General) and the Comptroller General
of the United States (and any duly authorized representatives) access to
any books, documents, papers, and records of the recipient that are
pertinent to assistance received under this notice, including all
records required to be kept by Section 801.
24 CFR 92.652 IX. Waiver Authority
24 CFR 92.652 Section 901. Waiver Authority.
Upon determination of good cause, the Secretary of Housing and Urban
Development may waive any provision of this notice, not otherwise
required by law, except provisions that establish deadlines for receipt
of any modifications to applications. Each such waiver shall be in
writing and shall be supported by documentation of the pertinent facts
and grounds. This waiver authority may be exercised by the Secretary or
the Assistant Secretary for Housing -- Federal Housing Commissioner.
Where another HUD program regulation is involved, the Secretary or the
appropriate Assistant Secretary may waive the regulation. For example,
where a waiver to a CDBG regulation is requested for the HOPE 2 program,
it may be waived by the Assistant Secretary for Community Planning and
Development. The Secretary periodically will publish notice of granted
waivers in the Federal Register. HUD may change submission deadlines
established by this notice by subsequent notice published in the Federal
Register.
(57 FR 1562, Jan. 14, 1992)
24 CFR 92.652 Appendix C to Subtitle A -- HOPE for Homeownership of Single Family Homes Program
24 CFR 92.652 Subtitle A, App. C
24 CFR 92.652 Program Guidelines
I. Purpose; Summary; and Relationship to Other Programs
101. Purpose
105. Summary
110. Relationship to Other Programs
(a) Applicability of Section 8 of the 1937 Act
(b) Termination of Section 8 and Other Rental Assistance
(c) Modernization
(d) Continuation of Annual Contributions
(e) Operating Subsidies
(f) Variations to FHA Single Family Mortgage Insurance Programs
II. Definitions
III. Planning Grants
301. Planning grants
(a) General Authority
(b) Overall Limitations
305. Eligible Planning Grant Activities
(a) Assessing Stock of Eligible Properties
(b) Training of and Technical assistance to Applicants
(c) Feasibility Studies
(d) Preliminary Architectural and Engineering Work
(e) Identification of Counseling and Training Curricula and Sources
(f) Economic Development Planning
(g) Security Plans
(h) Application for an Implementation Grant
(i) Administrative Costs
310. Applications for Planning Grants
(a) NOFA
(b) Application Contents
(1) Request for Planning Grant
(2) Proposed Activities
(3) Qualifications and Experience of Applicant
(4) Eligible Properties and Families
(5) CHAS Certification
(6) Equal Opportunity Certifications
(7) Nonduplication of Funding
(8) Other Requirements
(c) Screening
315. Rating, Ranking, and Selection of Planning Grant Applications
(a) Rating
(b) Ranking and Selection
(c) Reduction in Requested Grant Amounts
(d) Notification of Approval or Disapproval
(e) Insufficient Approvable Applications; Reallocation
(f) Environmental Review
320. Post-Approval Requirements
(a) Timely Completion of Activities
(b) Performance Report
IV. Implementation Grants
401. Implementation Grants
(a) Implementation Grants
(b) Regional Fund Allocations
(c) Overall Limitations
(d) Scope of Program
405. Eligible Implementation Grant Activities
(a) Limitations
(b) Eligible Activities
(1) Architectural and Engineering Work
(2) Acquisition of Eligible Properties
(3) Financial Assistance to Homebuyers
(4) Rehabilitation
(5) Administrative Costs
(6) Counseling and Training
(7) Relocation
(8) Temporary Relocation
(9) Replacement Reserves
(10) Legal Fees
(11) Ongoing Training Needs
(12) Economic Development
(13) Other Activities
410. Matching Requirements for Implementation Grants
(a) Requirement for Each Recipient to Match the HUD Grant
(b) Form
(c) Other Restrictions
(d) Exception for Indian Housing Authorities
415. Applications for Implementation Grants
(a) NOFA
(b) Application Contents
(1) Request for HOPE Implementation Grant
(2) Match Requirements
(3) Qualifications and Experience of Applicant
(4) Description of Proposed Homeownership Program
(5) Plan
(6) Eligible Property
(7) Housing Quality Standards Plan
(8) Replacement Housing
(9) Nondisplacement; Participation by Residents
(10) Management Entity
(11) Financing
(12) Affordability
(13) Sales Price to Applicant or Other Entity
(14) Sales Prices and Terms of Sale to Eligible Families; Form of
Ownership
(15) Resale Restrictions, If Any
(16) CHAS Certification
(17) Equal Opportunity Certifications
(18) Plan for Use of Certain Sales Proceeds
(19) Economic Development
(20) Environmental Certification
(21) Nonduplication of Funding
(c) Screening
420. Threshold Review
(a) Experience and Capacity of Applicant
(b) Feasibility of the Homeownership Program
(c) Equal Opportunity and Related Requirements
425. Rating, Ranking, and Selection of Applications
(a) Rating
(b) Ranking and Selection
(c) Reduction in Requested Grant Amounts
(d) Notification of Approval or Disapproval
(e) Insufficient Approvable Applications; Reallocation
V. Other Requirements
501. Flood Insurance and Coastal Barriers Resources Act
(a) Flood Insurance
(b) Coastal Barriers Resources Act
505. Nondiscrimination and Equal Opportunity
(a) Fair Housing Requirements
(b) Discrimination on the Basis of Age or Handicap
(c) Employment Opportunities
(d) Minority and Women's Business Enterprises
(e) Affirmative Fair Housing Marketing
(f) Authority for Collection of Racial, Ethnic, and Gender Data
510. OMB Circulars
515. Drug-Free Workplace
520. Anti-Lobbying Certification
525. Debarred or Suspended Contractors
530. Conflict of Interest
535. Labor Standards
540. Lead-Based Paint Testing and Abatement
545. Requirements Applicable to Religious Organizations
VI. Grant Agreement
601. Grant Agreement
VII. Implementation
701. Implementation; Performance Standards
705. Deadline for Completion of Program Activities
710. Social Security Numbers
715. Timely Homeownership
(a) Deadline for Transfer
(b) Definition of Reasonable Period of Time
720. Restrictions on Resale by Initial Homeowners
(a) In General
(b) Promissory Note
(c) Limitation on Equity Interest an Initial Homeowner May Retain
from Sale During First Six Years
(d) Use of Amounts a Family May Not Retain
725. Use of Proceeds from Sales to Eligible Families
730. Third Party Rights
735. Displacement Prohibited; Protection of Nonpurchasing Residents
(a) Displacement Prohibited
(b) Temporary Relocation
(c) Relocation Assistance for Residents Who Elect to Move
(d) Notice of Relocation Assistance
740. Cash and Management Information System
(a) General
(b) Disbursement of HOPE 3 Funds
(c) Property Set-Up (Implementation Grants Only)
(d) Payment Voucher
(e) Submission of Property Transfer Report
(f) Submission of Property Completion Report
745. Environmental Procedures and Standards
VIII. Records, Reports, and Audit of Recipients
801. Recordkeeping
(a) General Records
(b) Family Size and Income and Racial, Ethnic, and Gender Data
(c) Cooperative and Condominium Agreements
(d) Amounts Available for Reuse
805. Reports
810. Access by HUD and the Comptroller General
IX. Waiver Authority
901. Waiver Authority
24 CFR 92.652 I. Purpose; Summary; and Relationship to Other Programs
24 CFR 92.652 Section 101. Purpose
The purpose of the HOPE 3 program is to provide homeownership
opportunities for eligible families to purchase certain Federal, State,
and local government-owned single family properties and units in
scattered site, single family public and Indian housing developments.
24 CFR 92.652 Section 105. Summary.
HUD will make a planning or implementation grant to selected eligible
applicants to assist them in developing and carrying out homeownership
programs for eligible families. Planning grants are for the purpose of
developing the capacity of recipients and to assist them in preparing
implementation grant applications. A recipient will use its
implementation grant to acquire eligible property (unless it already
owns the property), fund rehabilitation, facilitate the sale of eligible
properties to homebuyers, and cover other eligible program costs.
Each recipient is required to assure that the HOPE implementation
grant is matched from non-Federal sources. (Certain IHAs may be exempt;
see 410(d).) Units must meet specified housing quality standards, and
eligible families may not be required to pay more than 30 percent of
adjusted income per month for principal, interest, taxes, and insurance
to complete a sale under the program.
24 CFR 92.652 Section 110. Relationship to other programs.
(a) Applicability of Section 18 of 1937 Act. To the extent eligible
property under the HOPE 3 program is a scattered site, single family
public or Indian housing development, the requirements of section 18 of
the 1937 Act (including the requirement for a replacement housing plan)
shall generally govern the disposition of public or Indian housing.
However, under certain circumstances, an applicant that wants or utilize
its HOPE 3 grant in conjunction with other HUD homeownership programs
(e.g., Turnkey III, Mutual Help, or sections 5(h) or 21 of the 1937 Act)
may be exempt from the requirements of section 18 altogether, or may be
permitted to document compliance with requirements under other HUD
homeownership programs (including, in some instances, replacement
housing plans). Applicants should consult the HOPE 3 application
package to determine whether the proposed homeownership program is
subject to, or exempt from, the requirements of section 18, or whether
alternative requirements (including alternative replacement housing plan
provisions) are applicable.
(b) Termination of Section 8 and Other Rental Assistance. Section 8
and other rental assistance shall be terminated before an eligible
family acquires an ownership interest in an eligible property.
(c) Modernization. HUD may not make available modernization
assistance under section 14 of the 1937 Act with respect to a public or
Indian housing unit after the date the PHA/IHA transfers title in
accordance with a HOPE 3 homeownership program.
(d) Continuation of Annual Contributions. Notwithstanding sale of a
public or Indian housing development by a PHA/IHA under the HOPE 3
program, HUD shall continue to pay any annual contributions still
payable, subject to section 5(a) of the 1937 Act.
(e) Operating Subsidies. HUD may not provide operating subsidies
under section 9 of the 1937 Act with respect to a public or Indian
housing unit after the date the PHA/IHA transfers title in accordance
with a HOPE 3 homeownership program.
(f) Variations to FHA Single Family Mortgage Insurance Programs. (1)
All regulatory requirements and underwriting procedures established for
the FHA single family mortgage insurance programs shall apply, except
for the changes described in paragraph (f) of this section.
(2) In the single family FHA mortgage insurance programs there is a
requirement for a down payment by the mortgagor in cash or the
equivalent. Since a recipient under the HOPE 3 program may provide the
down payment for the eligible family/mortgagor, section 429 of NAHA
amended section 203(b)(9) of the National Housing Act to provide that
the required down payment may be paid by a corporation or person other
than the mortgagor if the mortgage covers a unit under the HOPE program.
Therefore, the regulations at 24 CFR 203.19(b), 203.32(b), 234.28(c)
and 234.55(b) were amended by an interim rule published on February 4,
1991, 56 FR 4476. These amendments provide that a mortgagor being
assisted in the purchase of a housing unit in connection with the HOPE
program may obtain a loan for the down payment from a corporation or
another person under conditions satisfactory to HUD. In addition, a
second mortgage may be placed against the property even though the
entity holding a second mortgage is not a Federal, State, or local
government agency, if the entity is designated in the homeownership plan
of an applicant for an implementation grant under the HOPE programs.
24 CFR 92.652 II. Definitions
1937 Act. The United States Housing Act of 1937.
Administrative costs. Administrative costs that are reasonable and
necessary, as described in and valued in accordance with OMB Circular
A-87 or A-122, /1/ as applicable, incurred by a recipient in carrying
out a homeownership program under this notice. For purposes of
complying with the 15 percent limitation in Section 405(b)(5),
administrative costs do not include the costs of activities which are
separately eligible under Section 405 or Section 410.
Applicant. A private nonprofit organization; a cooperative
association; or a public body (including a PHA, an IHA, and an agency
or instrumentality of a public body) in cooperation with a private
nonprofit organization. A cooperative association may be an eligible
applicant only for eligible property it proposes to acquire and transfer
ownership interests in to eligible families under a homeownership
program.
CHAS. A comprehensive housing affordability strategy under section
105 of NAHA. See 24 CFR part 91.
Cooperative association. An association organized and existing under
applicable State and local, or tribal, law primarily for the purpose of
acquiring, owning, and operating housing for its members or
shareholders, as applicable.
Displaced homemaker. An individual who --
(a) is an adult;
(b) has not worked full-time full-year in the labor force for a
number of years (at least two) but has, during such years, worked
primarily without remuneration to care for the home and family; and
(c) is unemployed or underemployed and is experiencing difficulty in
obtaining or upgrading employment.
Eligible family. A low-income family who is a first-time homebuyer.
Eligible property. A single family property, containing no more than
four units, that is owned or held by HUD, the Secretary of Veterans
Affairs, the Secretary of Agriculture, the Resolution Trust Corporation,
a State or local government (including any in rem property), or a
PHA/IHA. This definition includes a condominium unit and scattered site
single family public housing and properties held by institutions within
the jurisdiction of the Resolution Trust Corporation. A cooperative
unit shall be located in a cooperative development containing no more
than four units to qualify as eligible property under the HOPE 3
program. In the case of two- to four-unit property, only property that
may be divided so each unit may be acquired by an eligible family is
eligible. Only property that is debt free and has an otherwise clear
title on the date it is acquired by the recipient or other entity for
transfer to eligible families is eligible. For purposes of this
definition, the term State or local government means any entity included
in the first sentence of the definition of public body.
First-time homebuyer. An individual and his or her spouse (if any)
who have not owned a home during the 3-year period before purchase of a
home with assistance under the HOPE 3 program, except that --
(a) Any individual who is a displaced homemaker may not be excluded
from consideration on the basis that the individual, while a homemaker,
owned a home with his or her spouse or resided in a home owned by the
spouse;
(b) A participant in a program such as the Mutual Help or Turnkey III
program under the 1937 Act who has not yet acquired title qualifies as a
first-time homebuyer; and
(c) Any individual who is a single parent may not be excluded from
consideration as a first-time homebuyer on the basis that the
individual, while married, owned a home with his or her spouse or
resided in a home owned by the spouse.
Homeownership program. A program for homeownership meeting the
requirements under this notice. The program shall provide for
acquisition by eligible families of ownership interests in the units in
an eligible property under an ownership arrangement approved by HUD
under this notice, for occupancy by the eligible families. All eligible
properties shall be acquired by eligible families.
HUD. The United States Department of Housing and Urban Development.
IHA. An Indian housing authority, which means any entity that --
(a) Is authorized to engage in or assist in the development or
operation of low-income housing for Indians; and
(b) Is established (1) by exercise of the power of self-government of
an Indian tribe independent of State law; or (2) by operation of State
law providing specifically for housing authorities for Indians,
including regional housing authorities in Alaska.
Indian housing development. An Indian public housing project under
the 1937 Act.
Low-income family. A family or individual that qualifies as a
low-income family under 24 CFR part 913 (where the recipient is a
PHA/IHA, RMC), part 813 (unless the recipient is a PHA/IHA, RMC, or RC),
or part 905 (for Indian housing), as appropriate. NAHA changed the term
lower income family to low-income family; these terms have the same
meaning. In general, 24 CFR parts 813, 913, and 905 define the term
lower income family as a family whose annual income does not exceed 80
percent of the median income for the area, as determined by HUD with
adjustments for smaller and larger families. HUD may establish income
limits higher or lower than 80 percent of the median income for the area
on the basis of its finding that such variations are necessary because
of the prevailing levels of construction costs or unusually high or low
family incomes.
NAHA. The Cranston-Gonzalez National Affordable Housing Act, Public
Law 101-625.
NOFA. Notice of Fund Availability.
Nonprofit organization. Any nonprofit organization that --
(a) Is organized and existing pursuant to Federal, State, local, or
tribal law;
(b) Has no part of its net earnings inuring to the benefit of any
individual, corporation, or other entity;
(c) Has a voluntary board;
(d) Has an accounting system or has designated a fiscal agent in
accordance with requirements established by HUD; and
(e) Practices nondiscrimination in the provision of assistance.
Ownership interest. Ownership by an eligible family by fee simple
title to a unit in an eligible property (including a condominium unit),
ownership of shares of or membership in a cooperative, or another form
of ownership proposed and justified by the applicant and approved by
HUD. The ownership interest may be subject only to (a) the restrictions
on resale required or approved under section 720; (b) mortgages, deeds
of trust, or other liens or instruments securing debt on the property as
approved by HUD; or (c) any other restrictions or encumbrances which do
not impair the good and marketable nature of title to the ownership
interest. Mutual housing is eligible only to the extent it provides for
the transfer of ownership interests to eligible families.
PHA. A public housing agency, which means any State, county,
municipality, or other governmental entity or public body (or agency or
instrmentality thereof) which is authorized to engage in or assist in
the development or operation of low-income housing.
Private nonprofit organization. A nonprofit organization that is
privately controlled and that is a tax exempt entity under section
501(c) of the Internal Revenue Code of 1986. For purposes of this
requirement, private nonprofit organizations shall have governing bodies
which are controlled 51 percent or more by private individuals who are
acting in a private capacity. For purposes of this provision, an
individual is considered to be acting in a private capacity if the
individual is not legally bound to act on behalf of a public body
(including the applicant or recipient), and is not being paid by a
public body (including the applicant or recipient) while performing
functions in connection with the nonprofit organization.
Public body. Any State of the United States; any city, county,
town, township, parish, village, or other general purpose political
subdivision of a State; the Commonwealth of Puerto Rico, the District
of Columbia, Guam, the Northern Mariana Islands, the Virgin Islands,
American Samoa, the Federated States of Micronesia and Palau, the
Marshall Islands, or a general purpose political subdivision thereof;
any Indian tribe, as defined in title I of the Housing and Community
Development Act of 1974; any public agency or instrumentality of any of
the foregoing jurisdictions which is created by or pursuant to State or
local, or tribal, law and for which the applicable jurisdiction has
agreed to accept financial responsibility in the event of any
noncompliance or liability under the HOPE 3 program; and any PHA or
IHA. For purposes of this definition, an organization which meets the
requirements of paragraphs (a) and (b) of the definition of nonprofit
organization, but is controlled 51 percent or more by public officials
acting in their official capacities, may qualify as a public body.
Public housing development. A public housing project under the 1937
Act.
RC. A resident council, which means any incorporated non-profit
organization or association that --
(a) Is representative of the residents of the eligible property;
(b) Adopts written procedures providing for the election of specific
officers on a regular basis (but at least once every three years); and
(c) Has a democratically elected governing board, elected by the
residents of the eligible property, the voting membership of which
consists of residents of the property.
Recipient. An applicant approved to receive a grant under this notice
or such other entity specified in the HUD-approved application that will
assume the obligations of the recipient under this notice.
RMC. A resident management corporation that proposes to enter into,
or enters into, a management contract for eligible property and that --
(a) Is a nonprofit organization that is incorporated under the laws
of the State or tribe in which it is located;
(b) May be established by more than one resident organization or RC,
so long as each such organization or RC (1) approves the establishment
of the RMC and (2) has representation on the board of directors of the
RMC;
(c) Has an elected board of directors;
(d) Has by-laws that require the board of directors to include
representatives of each resident organization or RC involved in
establishing the corporation;
(e) Provides that its voting members are residents of the eligible
property it manages or will manage under a homeownership program and of
any other property or public or Indian housing developments;
(f) Is approved by the RC; if there is no RC, a majority of the
households of the eligible property shall approve the establishment of
an RC to determine the feasibility of establishing a corporation to
manage the property; and
(g) May serve as both the RMC and the RC, so long as the RMC
qualifies as an RC.
Single parent. An individual who --
(a) Is unmarried or legally separated from a spouse; and
(b)(1) Has one or more minor children for whom the individual has
custody or joint custody; or (2) is pregnant.
/1/ See Section 510(b) concerning the availability of OMB Circulars.
24 CFR 92.652 III. Planning Grants
24 CFR 92.652 Section 301. Planning grants.
(a) General authority. (1) HUD will make HOPE 3 planning grants to
applicants for the purpose of developing HOPE 3 homeownership programs.
(2) Planning grants will assist an applicant to establish or increase
its capacity to apply for and carry out a HOPE 3 homeownership program.
(3) HUD shall select applications based on a national competition.
(b) Overall limitations. (1) An applicant may apply for a planning
grant and an implementation grant in response to any one NOFA. An
applicant that has previously received a HOPE 3 implementation grant is
not eligible for a HOPE 3 planning grant. If an applicant submits
applications for both planning and implementation grants, HUD will
review the application for an implementation grant first to determine if
it passes all screening and threshold requirements. If the application
does, it will be processed (and the application for a planning grant
will not be processed). If it does not pass all screening and threshold
requirements, the applicant's planning grant application will be
processed instead.
(2) The amount of a planning grant under this section may not exceed
$100,000.
(3) Activities under a planning grant shall be carried out within 12
months of the effective date of the planning grant agreement.
24 CFR 92.652 Section 305. Eligible planning grant activities.
Planning grants may be used for the reasonable costs of only the
following eligible activities necessary to develop homeownership
programs. No additional activities may be approved. Only costs
incurred on or after the effective date of the grant agreement qualify
for funding under the program. HUD invites comments on whether the
final rule should permit HUD to approve other activities than those in
the following list. Specific examples of activities that the commenter
believes are appropriate for funding from a HOPE 3 planning grant but
would not qualify under this section should be included in the comment.
(a) Assessing stock of eligible properties. Assessing the
availability on an ongoing basis of eligible properties of the
appropriate condition, type, and price in specific neighborhoods or
areas to implement a homeownership program. For example, planning
grants may be used to fund the costs of obtaining and analyzing lists of
potentially eligible properties from appropriate Federal, State, and
local agencies and inspecting representative properties. Technical
studies to evaluate environmental problems and to determine whether
mitigation is feasible are eligible.
(b) Training of and technical assistance to applicants. Training of
and technical assistance to applicants related to development of a
specific homeownership program. This may cover, for example, such
activities as providing guidance to the applicant in establishing
cooperative, condominium, and other homeownership entities, and
examining alternative approaches for carrying out a homeownership
program. Training and technical assistance may only be provided by
qualified entities other than the applicant.
(c) Feasibility studies. Studies of the feasibility of a specific
homeownership program, including whether the program can be designed to
meet the affordability standards under section 415(b)(12) and achieve
financial feasibility.
(d) Preliminary architectural and engineering work. Preliminary
architectural and engineering work, including developing estimates of
the amount of work necessary to support rehabilitation of a typical unit
that may be acquired by an eligible family under the program and other
cost estimates to be included in a HOPE 3 implementation grant
application.
(e) Identification of counseling and training curricula and sources.
(1) Identification of course curricula and sources that can provide
homebuyer and homeowner counseling and training, including such subjects
as personal financial management, home maintenance, home repair,
construction skills (to the extent appropriate, especially where
eligible families will do some of the rehabilitation (''sweet
equity'')), and general rights and responsibilities of a homeowner.
(2) Where the application indicates that the applicant intends to
identify particular occupied units in eligible, scattered site public or
Indian housing developments to be used for cooperative or condominium
homeownership under the HOPE 3 program, counseling and training of
potential homebuyers.
(f) Economic development planning. (1) Planning for economic
development activities that are eligible implementation grant activities
under section 405(b)(12).
(2) The application shall demonstrate that the proposed activities
are directly related to implementation of the homeownership program, and
describe how these activities promote self-sufficiency.
(g) Security plans. Development of security plans. This activity
may cover, where applicable, assessing the need for the hiring of
security personnel and creating tenant patrols, for negotiating
agreements with local law enforcement agencies, and for providing
security systems.
(h) Application for an implementation grant. Preparation of an
application for an implementation grant under section 415 of this
notice.
(i) Administrative costs. Administrative costs necessary to carry
out the eligible activities specified in the approved application.
24 CFR 92.652 Section 310. Applications for planning grants.
(a) NOFA. An application for a planning grant shall be submitted by
an applicant in accordance with this notice and the NOFA. The NOFA
advises potential applicants how to obtain an application package and
establishes deadlines and other requirements for submission of
applications. The NOFA also informs each applicant that it may request
information and guidance from HUD about program requirements and
preparation of the application.
(b) Application contents. Each application shall contain the
information required by the application package, including at least the
following items.
(1) Request for planning grant. The application shall contain (i)
the amount of the grant requested; (ii) a reasonable schedule for
completing the activities, but in no case may activities extend beyond
12 months; and (iii) a description of the type and number of personnel
necessary to complete the activities.
(2) Proposed activities. The application shall specify the proposed
activities in sufficient detail to permit HUD to determine if the
planning grant activities are eligible and feasible.
(3) Qualifications and experience of applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications, including qualifications and experience in providing
housing for low-income families.
(ii) If two or more entities join in submitting an application, such
as a public body in cooperation with a private nonprofit organization or
two private nonprofit organizations, the application shall specify which
entity will assume legal responsibility as the recipient and execute the
grant agreement. The application shall include a copy of the written
agreement between the entities that delineates their respective roles.
(iii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(4) Eligible properties and families. (i) The application shall
identify the governmental entity that currently owns or holds eligible
properties likely to be involved in a homeownership program in the
general locations proposed in the applications.
(ii) The application shall describe the composition of the potential
homebuyers and residents likely to participate, including family size
and income, and racial, ethnic, and gender characteristics as required
by HUD.
(iii) The application shall describe the general locations from which
the applicant expects to identify neighborhoods containing properties to
be acquired under the program and describe the racial and ethnic
characteristics of residents of the general locations or, if the
application identifies specific neighborhoods, of the neighborhoods.
The application shall propose to identify at least 10 properties in each
general location which would be eligible for use under the program.
(iv) The application shall demonstrate that at least 10 eligible
properties would be available for use under the program.
(5) CHAS certification. (i) The application shall contain a
certification by the public official, or his or her authorized
representative, who submits the Comprehensive Housing Affordability
Strategy (CHAS) that the proposed activities are consistent with the
approved CHAS of the State or unit of general local government within
which the homeownership program would be located. Where the program
will be carried out in more than one unit of general local government
with a CHAS, a certification from each shall be included.
(ii) Paragraph (b)(5)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(6) Equal opportunity certifications. (i)(A) The application shall
contain a certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHA, under
the circumstances described in section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) The application shall contain a statement from the applicant (A)
whether or not a desegregation order, agreement, or plan that applies to
the applicant is in effect or known to the applicant to be under
consideration; (B) that the applicant is not in violation of any
existing desegregation order, compliance agreement, or voluntary
agreement, or a statement describing the circumstances of the violation;
and (C) describing any potential impact the proposed homeownership
program may have on implementing any existing or pending order,
agreement, or plan.
(7) Nonduplication of Funding. The application shall contain a
certification that the applicant has not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(8) Other requirements. The application shall contain other
certifications and information required by the application package.
(c) Screening. (1) HUD shall screen each application submitted on or
before the deadline set forth in the NOFA to determine whether it is
complete, is internally consistent, and contains correct computations.
In addition, HUD shall determine whether there appears to be a
sufficient number of suitable, available eligible properties in the
general locations identified in the application for the proposed
activities. For this purpose, at least 10 suitable eligible properties
must be determined to be available.
(2) Where HUD determines an application is deficient in one or more
of these areas, it shall notify the applicant in writing and give it an
opportunity to correct the deficiencies in its application. However,
the applicant may not substantially revise the application, such as by
substituting another applicant or changing other fundamental features of
the homeownership program, because that would not be fair to other
applicants. The notification shall require applicants to submit
additional or corrected material so that it is received in the
appropriate HUD office no later than close-of-business on the 14th
calendar day after the date of the written notification to the applicant
giving it an opportunity to modify its application. HUD may not extend
this deadline for actual receipt of the material for any reason. HUD
shall not consider further any applications that do not meet one of the
tests in paragraph (c)(1) of this section, after the opportunity, if
any, to submit additional or corrected material, or that fail to comply
with other program requirements.
(3) The purpose of this procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and might
need this additional opportunity to revise their applications. HUD
invites comments on this policy, including recommendations on whether it
should be adopted or modified in the final regulations.
24 CFR 92.652 Section 315. Rating, ranking, and selection of planning
grant applications.
(a) Rating. HUD shall review each application that qualifies for
additional consideration under the screening procedures in section
310(c) and assign points in accordance with the following selection
criteria --
(1) Capability. The ability of the applicant to develop a HOPE 3
homeownership program in a reasonable time and in a successful manner.
In assigning points for this criterion, HUD shall consider evidence in
the application demonstrating --
(i) the capability of the applicant to develop a HOPE 3 homeownership
program, demonstrated through previous experience of the applicant or
key staff in managing acquisition, rehabilitation, construction, real
estate financing, counseling and training, or other relevant activities,
or by an explanation of how such capability will be obtained -- 20
points.
(ii) the ability of the applicant to handle financial resources,
demonstrated through such evidence as previous experience of the
applicant or key staff and existing financial control procedures, or an
explanation of how such capability will be obtained -- 20 points.
Maximum points for this criterion (1): 40 points.
(2) Local support. In assigning points for this criterion, HUD shall
consider --
(i) The extent of interest of the unit of general local government or
Indian tribe, where applicable (and the PHA/IHA where it is not part of
the unit of general local government or Indian tribe and where public or
Indian housing is expected to be used under the program) in support of a
homeownership program, demonstrated through evidence of intent to
provide assistance, such as social services (including counseling and
training), rehabilitation loans or grants, interest rate subsidies,
water and sewer improvements, street and sidewalk improvements, and tax
abatements -- 10 points.
(ii) The extent of interest of the local community (including places
of worship, banks, neighborhood or community organizations, the business
community, or other community groups) in support of a homeownership
program, demonstrated through evidence of intent to provide assistance
such as the donation of labor or materials, interest rate reductions or
other financing subsidies, and volunteer assistance in some aspect of
the program (activities of the applicant shall not be considered under
this subcriterion (ii)) -- 10 points.
Maximum points for this criterion (2): 20 points.
(3) Need for homeownership program. In assigning points for this
criterion, HUD shall consider the relative percentage of the total
number of rental households consisting of persons with incomes at or
below the poverty level, as determined by the Bureau of Census, in the
applicable jurisdiction or jurisdictions.
Maximum points for this criterion (3): 20 points.
(4) Planning approach. The extent to which the proposal represents a
sound approach to planning, demonstrates an understanding of the nature
and scope of activities required to successfully implement a
homeownership program, and is likely to result in a successful
homeownership program.
Maximum points for this criterion (4): 20 points.
Maximum total points: 100 points.
(b) Ranking and selection. (1) After assigning points to each
application under paragraph (a) of this section, HUD shall review and
may adjust the ratings to ensure consistency among Field and Regional
Office scores. HUD shall then rank the planning grant applications.
Where HUD determines that applications falling below a certain point
total are not suitable or not feasible for developing a homeownership
program, it may establish a minimum number of points for an application
to be selected.
(2) The purpose of planning grants is to build the capacity of
applicants to submit approvable implementation grant applications.
Accordingly, for applications which qualify for selection under
paragraph (b)(1) of this section, HUD shall award bonus points to
planning grant applications in HUD Regions where funds from the initial
allocation to the Region under the NOFA remain after selection of all
approvable implementation grant applications. The points shall be
assigned as follows:
(3) HUD shall then select the three highest ranking applications in
each HUD Region.
(4) HUD shall then select the highest ranking remaining applications
without regard to their location. However, no more than a total of 20
applications may be approved in any one Region unless they would
otherwise be selected without receiving bonus points.
(5) If two or more applications receive the same number of points and
sufficient funds are not available to fund all such applications, the
application or applications requesting the smallest grants shall be
selected if a sufficient amount remains to fund them. If two or more
tied applications request the same amount and sufficient funds are not
available to fund all such applications, the following system will be
used to break the ties:
(i) If the tied applications are for programs to be carried out in
different jurisdictions, the one(s) with the highest number of points
for Need for Homeownership Program (criterion (3)) shall be selected, if
sufficient funds remain.
(ii) If the tied applications are to be carried out in the same
jurisdiction, the one(s) with the highest number of points for planning
Approach (criterion (4)) shall be selected, if sufficient funds remain.
If any amounts remain after applying these procedures, they shall be
reallocated in accordance with paragraph (e) of this section.
(6) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding the application from any
unused amounts or ''off the top'' from amounts available for planning
grants in the next funding round.
(7) If two or more applications propose substantially the same
general locations, only the highest ranking application will be
selected.
(c) Reduction in requested grant amounts. HUD shall approve an
application for an amount lower than the amount requested or adjust line
items in the proposed budget within the amount requested (or both) if it
determines that (1) the amount requested for one or more eligible
activities is unreasonable or unnecessary, (2) an activity proposed for
funding does not qualify as an eligible activity, or (3) the amount
requested exceeds the $100,000 cost limitation established for the
program. In addition, HUD may approve an application for a lower amount
if it determines the applicant is not able to carry out all of the
activities requested, or insufficient amounts remain in that funding
round to fund the full amount requested in the application.
(d) Notification of approval or disapproval. After completion of the
ranking and selection of applications, but no later than six months
after the date of submission of the application, HUD shall notify the
selected applicants and the applicants that have not been selected, in
writing. HUD's notification to the applicant or the amount of the grant
award, based on the approved application, shall constitute a grant
obligation by HUD, subject to acceptance by the applicant through
execution of the grant agreement by the deadline specified in the
notification.
(e) Insufficient approvable applications; reallocation. (1) If funds
remain after HUD approves all approvable planning grant applications in
accordance with this section, HUD shall combine them with amounts being
reallocated to Regions having more implementation grant applications
meeting threshold requirements than could be funded, in accordance with
425(e); publish a NOFA inviting additional applications for planning or
implementation grants, or both, in accordance with this notice; or
invite applicants who submitted applications that could not be funded to
submit amended planning grant or implementation grant applications in
accordance with this notice within a deadline specified in the
invitation.
(2) Amounts that become available due to deobligation of grant
amounts shall be available for reallocation in accordance with paragraph
(e)(1) of this section.
(f) Environmental Review. HUD has determined that its approval of
applications for planning grants is categorically excluded from
environmental review and compliance requirements of the National
Environmental Policy Act of 1969 (NEPA) and that other Federal
environmental laws and authorities listed in 24 CFR 50.4 are not
applicable. The reason is that planning grants involve no
rehabilitation and little or no physical change and that, generally, not
enough information is available about the proposed homeownership program
at this point to make the review. HUD has excluded planning grant
applications from environmental assessment under NEPA and exempted
planning grant applications from environmental review under the laws and
authorities listed in 24 CFR 50.4. See the interim rule amending 24 CFR
part 50 that is published elsewhere in today's edition of the Federal
Register. Applicants are reminded, however, that environmental review
at the implementation grant stage may nevertheless result in
disapproval.
24 CFR 92.652 Section 320. Post-approval requirements.
(a) Timely completion of activities. A recipient shall complete all
activities approved under a planning grant application within 12 months
from the effective date of the grant agreement. Recipients may draw
down amounts under the Cash and Management Information System, in
accordance with Section 740, for one additional month, to allow them to
pay outstanding obligations for work performed during the 12-month grant
period, and for one more additional month, to allow them to pay costs of
preparing the report required under paragraph (b) of this section. HUD
may deobligate amounts not drawn down by this deadline.
(b) Performance report. Each recipient shall submit a report on
activities undertaken under the grant agreement, including the
recipient's determination whether it is feasible for it to undertake a
homeownership program and an assessment of the factors used to make the
determination. Each recipient shall submit its performance report to
HUD no later than 13 months from the effective date of the grant
agreement.
24 CFR 92.652 IV. Implementation Grants
24 CFR 92.652 Section 401. Implementation grants.
(a) Implementation Grants. HUD shall make implementation grants to
applicants for the purpose of carrying out homeownership programs
approved under this title.
(b) Regional Fund Allocations. HUD shall allocate funding authority
for each of the 10 HUD Regions by formula, based on three equally
weighted factors --
(1) the number of rental units in the Region, as determined by the
Bureau of the Census, occupied by persons with incomes at or below the
poverty level (half of the weight for this factor), and the total number
of occupied rental units in the Region (for the other half);
(2) The number of rental units in the Region that are unsuitable
because they (i) lack or have incomplete plumbing; (ii) are occupied by
residents who are paying more than 30 percent of adjusted income towards
rent (including utilities); (iii) are occupied by an average of more
than one person in the household per room; or (iv) lack or have
incomplete kitchens; and
(3) The number of single family properties (with up to four units,
including condominium units) in the Region owned by HUD, the Resolution
Trust Corporation in its affordable housing inventory, or the Department
of Veterans Affairs.
Paragraphs (b) (1) and (2) of this section measure the need for the
program and paragraph (b)(3) of this section measures the supply of
eligible property available for the program.
(c) Overall Limitations. (1) HUD may approve more than one grant for
a program to be carried out in a jurisdiction, so long as different
applicants are the grantees and the programs will be carried out in
different neighborhoods. A single applicant may apply for more than one
implementation grant, but HUD will not approve grants for any one
applicant that total more than 5 percent of the amount available under
any one NOFA for HOPE 3 implementation grants.
For purposes of this limitation, the applicant identified in the
application as the legally responsible lead entity which will execute
the grant agreement will be considered the applicant. The purpose of
this limitation is to give as many applicants as possible an opportunity
to develop homeownership programs and to fund applicants in various
areas of the country.
(2) An applicant may apply for a planning grant and an implementation
grant in response to any one NOFA. If an applicant submits applications
for both planning and implementation grants, HUD will review the
application for an implementation grant first to determine if it passes
all screening and threshold requirements. If the application does, it
will be processed (and the application for a planning grant will not be
processed). If it does not pass all screening and threshold
requirements, the applicant's planning grant application will be
processed instead.
(3) No amendments to increase previously approved grant amounts are
allowed.
(d) Scope of Program. Applications which identify a public body (or
agency or instrumentality thereof) as the entity to execute the grant
agreement may only propose a program to be carried out within the
jurisdiction of that entity. Applications which identify a private
nonprofit organization as the entity to execute the grant agreement may
propose a program to be carried out within two or more jurisdictions.
No application may propose a program to be carried out in more than one
State.
24 CFR 92.652 Section 405. Eligible implementation grant activities.
(a) Limitations. Implementation grants may be used for the
reasonable costs of eligible activities necessary to carry out
homeownership programs. Only costs incurred on or after the effective
date of the grant agreement qualify for funding under the program.
(b) Eligible Activities. Eligible activities include --
(1) Architectural and Engineering Work. Architectural and
engineering work, and related professional services required to prepare
architectural plans or drawings, write-ups, specifications, or
inspections.
(2) Acquisition of Eligible Properties -- (i) General. Acquisition
of eligible properties for the purpose of transferring ownership
interests to eligible families in accordance with a homeownership
program that meets the requirements under this notice. (Where the
applicant owns the eligible property or where HUD otherwise determines
that an ''arms length'' relationship for acquisition does not exist,
program funds may not be used for acquisition of the property for the
program.)
(ii) Maximum Acquisition Costs. (A) The cost of acquiring an
eligible property (by an applicant or other entity for transfer to
eligible families or by eligible families), which may not exceed the
as-is fair market value of a property for residential use, taking into
account any applicable low-income use restrictions, determined in
accordance with a recent appraisal conducted under procedures
established or approved by HUD, plus reasonable and customary closing
costs charged for comparable transactions in the market area.
(B) Where the eligible property is a public or Indian housing
development, the cost of acquisition is not an eligible cost, but
closing and other costs related to acquisition of the development are
eligible costs. Where a public or Indian housing development contains
improvements provided through local tax revenues that increased the
value of the development, an applicant may request HUD to approve the
use of program funds to pay the PHA/IHA for the depreciated value of the
improvements paid for from local tax revenues. The request for the
approval shall document the original contribution, state the basis for
computing the amount of the depreciated value, and otherwise justify the
request.
(iii) Maximum Cost of Acquisition and Rehabilitation. (A) The cost
of acquisition and rehabilitation paid for from grant funds or from
matching funds being contributed may not exceed 80 percent of the
maximum amount that may be insured under section 203(b) of the National
Housing Act (including any high-cost area adjustments), plus reasonable
and customary closing costs charged for comparable transactions in the
market area. (The cost of acquisition of a unit in a public or Indian
housing development is not an eligible cost.) The maximum cost of
rehabilitation that may be paid for from grant funds and matching funds
may not exceed $33,500 for any unit (which shall not be adjusted for
high-cost areas).
(B) For example, in Columbus, Ohio, a recipient could pay no more
than $71,200 from grant funds and matching funds provided by HUD for the
cost of acquisition and rehabilitation of a one-unit single family
property. This limitation was determined by multiplying the FHA single
family mortgage insurance limit for a one-unit property in Columbus by
80 percent ($89,000 80% = $71,200). Within this overall limitation,
the recipient could spend up to $33,500 from grant funds and matching
funds for rehabilitation.
(3) Financial assistance to homebuyers. The provision of assistance
to families to make acquisition and rehabilitation of eligible
properties affordable. This may include interest rate reductions
(''interest rate buy-downs''), other financing assistance that reduce
monthly homebuyer payments, and payment of all or a portion of closing
costs, down payments, and other expenses. Acquisition of a property by
an eligible family is subject to the limitations under paragraph (b)(2)
of this section. Financial assistance may be provided directly to, or
on behalf of, an eligible homebuyer.
(4) Rehabilitation. (i) Rehabilitation of the eligible property
covered by the homeownership program, in accordance with standards
established by HUD (see paragraph (b)(2) of this section for applicable
cost limitations covering both acquisition and rehabilitation) and
section 505(b) for applicable requirements for accessibility for people
with disabilities. The property shall be rehabilitated (including the
provision of suitable amenities) to a level that makes it marketable for
homeownership in the market area to families with incomes at or below 80
percent of the median for the area. HUD encourages applicants to
undertake high quality rehabilitation. Luxury items (fixtures,
equipment, and landscaping of a type or quality which substantially
exceeds that customarily used in the locality for properties of the same
general type as the property to be rehabilitated) do not qualify as
eligible expenses. The construction of swimming pools is not eligible.
The cost to fill in or eliminate a pool from the property and the cost
to repair an existing pool are eligible.
(ii) The application shall describe all improvements to be made to,
or amenities to be provided for, the property, whether or not they may
be funded by use of grant amounts, contributions towards the match
required under the program, or other funds. HUD may disapprove
improvements or amenities specified in the application it determines are
unsuitable for the HOPE program, even if they will be paid for from
non-program funds.
(iii) If an applicant proposes to make improvements to an eligible
property beyond those that qualify as eligible costs, it shall assure
that their entire cost will be covered by funds other than the HOPE
grant and any amounts contributed towards the match and that the
affordability of the property will not be impaired. No such local funds
may count towards the match.
(iv) The rehabilitation shall meet local codes applicable to
rehabilitation work in the jurisdiction (but not less than the housing
quality standards established under the Section 8 Certificate program),
and shall include improvements necessary to meet applicable Federal
requirements, and may include energy conservation-related repairs and
improvements and the repair or replacement of major systems in danger of
failure.
(5) Administrative Costs. Administrative costs of the program. The
total amount that may be spent on administrative activities from the
amount of the grant and any contribution towards the match may not
exceed 15 percent of the amount of the grant HUD provides under this
notice.
(6) Counseling and Training. Counseling and training of homebuyers
and homeowners under the homeownership program. This may include such
subjects as personal financial management, home maintenance, home
repair, construction skills (to the extent appropriate, especially where
the eligible family will do some of the rehabilitation), and the general
rights and responsibilities of homeownership.
(7) Relocation. Relocation of residents who elect to move, in
accordance with section 735.
(8) Temporary Relocation. Any necessary temporary relocation of
residents during rehabilitation, in accordance with section 735.
(9) Replacement Reserves. (i) A single replacement reserve for the
properties under the program, if necessary to achieve long-term
affordability, as provided in section 415(b)(12).
(ii) Assistance for replacement reserves may be drawn down under the
grant agreement when needed to assist a homeowner and to fund a reserve
account at the time of program close out.
(iii) Where a HOPE 3 application proposes funding of a replacement
reserve, it shall describe the escrow or other arrangement that will be
used to safeguard the funds (including who will administer the reserve)
and the proposed life of the reserve. The application shall demonstrate
that the amount proposed for the replacement reserve is reasonable,
taking into account (A) the analysis related to determining the
affordability of the program, (B) the size of the grant and the amount
of matching contributions, (C) the condition and age of the properties
and each of their major systems and components (including at least the
heating, plumbing and electrical systems and the roof, foundation,
windows, exterior walls, and common area, if any (including the need to
repaint), and (D) other possible replacement needs. Where the
application proposes a replacement reserve, it shall also demonstrate
that the financial status of eligible families is insufficient (taking
into account insurance requirements and home maintenance repair
capability of the family) so there is a need for a reserve. The
replacement reserve may be used only to prevent severe financial
hardship to families caused by the failure of a major system or
component of the property that renders the unit substandard.
(iv) The entity with fiduciary responsibility for any replacement
reserve shall be bonded, in accordance with requirements prescribed or
approved by HUD.
(v) Although funding of replacement reserves is an eligible expense
under the notice, HUD invites comments on whether a replacement reserve
is needed for a single family homeownership program, especially with
respect to public and Indian housing transferred for homeownership under
the program.
(10) Legal Fees. Customary and reasonable costs of professional
legal services.
(11) Ongoing Training Needs. Defraying costs for the ongoing
training needs of the recipient for courses of instruction that are
directly related to developing and carrying out the homeownership
program.
(12) Economic Development. (i) Economic development activities that
promote economic self-sufficiency of homebuyers and homeowners under the
homeownership program involving only job training or retraining and day
care costs of those participating in job training and retraining
activities approved under the HOPE 3 program. The recipient shall enter
into written agreements with the providers of economic development
services specifying the services to be provided, including estimates of
the numbers of homebuyers and homeowners to be assisted.
(ii) The aggregate amount of planning and implementation grants that
may be used for economic development activities related to any one
program may not exceed $250,000.
(13) Other Activities. Other activities proposed by the applicant,
to the extent the applicant justifies them as necessary for the proposed
homeownership program and HUD approves them. For example, the applicant
may propose activities related to security needs of the property that
are not otherwise covered under other eligible activities, such as under
architectural and engineering work and rehabilitation activities.
24 CFR 92.652 Section 410. Matching requirements for implementation
grants.
(a) Requirement for Each Recipient to Match the HUD Grant. Each
recipient shall assure that matching contributions equal to not less
than 33 percent of the amount of the implementation grant shall be
provided from non-Federal sources to carry out the homeownership
program. Amounts contributed to the match shall be used for eligible
activities or in accordance with this section.
(b) Form. Contributions may only be in the form of --
(1) Cash Contributions. (i) Cash contributions from non-Federal
resources. To be a cash contribution, funds must be contributed
permanently for uses under the HOPE 3 program. Funds will be considered
permanently contributed if all repayment, interest, and other return on
the contribution will only be used for eligible activities in accordance
with program requirements.
(ii) Non-Federal resources may not include funds from a Community
Development Block Grant made to an entitlement grantee or a State under
section 106(b) or section 106(d), respectively, of the Housing and
Community Development Act of 1974, except to the extent permitted for
administrative expenses under paragraph (a)(2) of this section.
Non-Federal resources may not include Federal tax expenditures,
comprehensive grants under section 14 of the 1937 Act, or amounts
provided to the development from syndication of the low income housing
tax credit. (Financing involving the use of the low income housing tax
credit is prohibited by section 415(b)(11)(iii).)
(iii) Non-Federal resources may include contribution of trust funds
held by Federal agencies for Indian tribes.
(iv) A cash contribution may be made by the applicant, non-Federal
public entities, private entities, or individuals. A cash contribution
may be made from program income from a Federal grant earned after the
end of the award period if no Federal requirements govern the
disposition of the program income. Included in this category are
repayments from closed out grants under the Urban Development Action
Grant Program (24 CFR part 570, subpart G), and the Housing Development
Grant Program (24 CFR part 850).
(v) Cash contributions may also be made from sales proceeds from the
Turnkey III Homeownership and Mutual Help programs obtained pursuant to
PIH Notice 91-28 or an approved homeownership program under section 5(h)
of the 1937 Act.
(vi) The grant equivalent of a below-market interest rate loan to the
homebuyer, where all repayments, interest, and other return will not be
permanently contributed to the HOPE program, may be counted as a cash
contribution.
(A) If the loan is made from proceeds of obligations issued by or on
behalf of a public body that are exempt from taxation by the United
States, the contribution is the present discounted cash value of the
difference between payments to be made on the borrowed funds and
payments to be received on the loan to the homebuyer, based on a
discount rate equal to the interest rate on the borrowed funds.
(B) If the loan is made from funds other than under paragraph
(b)(1)(vi)(A) of this section, the contribution is the present
discounted cash value of the yield forgone, calculated based on a
discount rate approved or prescribed by HUD. In determining the yield
forgone, the recipient must use as a measure of a market rate yield one
of the following, as appropriate:
(1) With respect to housing financed with a fixed interest rate
mortgage, a rate equal to the 10-year Treasury note rate plus 200 basis
points; or
(2) With respect to housing financed with an adjustable interest rate
mortgage, a rate equal to the one-year Treasury bill rate plus 250 basis
points.
(vii) A down payment by an eligible family may not count towards the
match.
(viii) Non-Federal resources may include amounts, determined in
accordance with paragraph (b)(1)(vi)(B) of this section, that have been
requested by the applicant in an application submitted to the Federal
Housing Finance Board for assistance under its affordable housing
program, so long as that application is approved before the date HUD
approves the HOPE application.
(2) Administrative Costs. (i) Contributions for eligible
administrative costs may be recognized for matching purposes only up to
an amount equal to 7 percent of the amount of the implementation grant.
This limitation is in addition to the limitation that the total amount
that may be spent on administrative activities from the amount of the
grant and any contributions towards the match may not exceed 15 percent
of the grant amount (Section 405(b)(4)). If an applicant proposes to
contribute administrative costs, HUD will automatically approve an
applicant's assurances for matching purposes that it will pay eligible
administrative costs from non-Federal sources in an amount up to 7
percent of the implementation grant, and will not require further
documentation of those expenditures. If a recipient uses more than 8
percent of its implementation grant to pay for the costs of
administration, the amount credited towards the match will be reduced to
less than 7 percent to stay within the 15 percent limitation.
(ii) For example, if the grant amount is $600,000, the recipient must
assure the provision of at least $198,000 (33 percent of the grant) from
non-Federal sources. Contributions for administrative costs that may be
counted towards the match may not exceed $42,000 (7 percent of the grant
amount of $600,000). Although an applicant can spend more than this on
administrative costs, it may not be counted towards the match. In
addition, the applicant must provide contributions covering the
remaining $156,000 ($198,000 -- $42,000) required for the match from
non-Federal sources.
(iii) Non-Federal resources, for the purposes of counting
contributions for administrative costs, may include funds from a
Community Development Block Grant made to an entitlement grantee or a
State under section 106(b) or section 106(d) of the 1974 Act and are
subject to the recordkeeping and documentation requirements of that
program.
(3) Taxes, Fees, and Other Charges. The present value of taxes,
fees, or other charges that are normally and customarily imposed but are
waived, forgone, or deferred in a manner that facilitates the
implementation of a homeownership program assisted under this notice.
Only amounts of the period after the date a property is acquired by a
recipient or other entity for transfer to eligible families; the
effective date of the implementation grant agreement if the recipient
already owns the property; or the date after an eligible property is
acquired directly by an eligible property, as applicable, may be counted
towards the match. For example, if a city agrees to forgo real property
taxes for 20 years, the application shall compute the estimated tax that
would be otherwise payable over the 20 year period, and discount it to
present value based on a discount rate approved or prescribed by HUD.
Amounts that would be waived, forgone, or deferred for longer than 20
years from the date a family acquires homeownership interests in the
unit may not be counted towards the match because enforcement would be
impracticable. Where the match includes amounts under paragraph (b)(3)
of this section, the documents transferring the homeownership interest
to the family shall evidence the contribution, to the extent the
contribution has not already been received.
(4) Land or Other Real Property. Real property, not acquired with
Federal resources, contributed for use under an approved homeownership
program.
(i) Where the eligible property is a public or Indian housing
development, the value of such a development may not be counted as a
contribution towards the match.
(ii) The as-is fair market value of eligible property may be counted
as a contribution towards the match, determined in accordance with a
recent appraisal conducted under procedures established or approved by
HUD. The maximum value contributed shall be limited as provided in
405(b)(2)(ii) and (iii).
(iii) Vacant lots on existing streets with available utilities (which
need not include laterals) may be contributed for use under the program,
but only if a structure will be moved onto it, the resulting property
qualifies as eligible property under the program, and the total amount
of the contribution and any amount paid from HOPE 3 funds for the
structure and moving costs are within the limits provided in
405(b)(2)(ii) and (iii).
(5) Infrastructure. The fair market value of investment, not made
with Federal resources, in on-site and off-site infrastructure required
for a homeownership program. The infrastructure investment may be
counted towards the match only if it was completed no earlier than 12
months before the date of notification by HUD of implementation grant
approval. Investment in infrastructure may include such activities as
new or repaired utility laterals connecting eligible property to the
main line and new or rebuilt walkways, sidewalks, or curbs on or
contiguous to the eligible property. If the investment in
infrastructure also benefits other properties, only the share of the
costs directly benefiting the eligible property under the homeownership
program may be counted towards the match.
(6) Debt Forgiveness. Where debt on real property to be acquired
under the program is forgiven, permitting the property to be acquired
for less than fair market value, the savings may count as a match.
However, the amount of forgiven debt counted toward the match may not
exceed the fair market value of the property and any other applicable
limitations determined under 405(b)(2) (ii) and (iii) or paragraph
(b)(4) of this section.
(7) Other In-Kind Contributions. (i) The reasonable value of in-kind
contributions proposed by the applicant in the application and approved
by HUD. In reviewing proposed in-kind contributions, HUD shall review
to ensure (A) the proposed contribution is to be used for an eligible
activity under the proposed homeownership program; (B) the application
demonstrates that the proposed in-kind contribution will actually be
provided; and (C) the proposed value of the contribution is reasonable.
In determining whether the value is reasonable, HUD shall generally
consider the amount such work would otherwise cost the program, but may
adjust the value, based on special circumstances.
(ii) All donated labor, including sweat equity provided by a
homebuyer or homeowner, shall be valued at $10 an hour, except for
donated professional labor, as approved by HUD, including work by
homebuyers and homeowners. The donated professional labor shall be
valued at the fair market value of the work completed. Professional
labor is work ordinarily performed by the donor for payment, such as
work by laborers, electricians, and architects that is equivalent to
work they do in their occupations. Sweat equity may be counted towards
the match only if it is not also counted towards a family's equity.
(iii) Donated materials and supplies may be counted towards the match
contribution. Materials and supplies need not have been purchased
specifically for the program to be included as a match contribution, if
the cost of the grantee of the materials and supplies (or, in the case
of materials and supplies donated by a different entity than the
recipient for use in the program, the fair market value of the materials
and supplies) and if the fact that they were used in the program can be
documented. The recipient shall maintain a written enumeration of what
donated materials and supplies will be used in the program, as well as
documentation of their cost or value.
(c) Other Restrictions. All contributions towards eligible
activities to be counted towards the match shall be provided no later
than the deadline for completion of program activities established in
accordance with section 705, except that contributions under section
410(b)(3), taxes, fees, and other charges, may be made after the
deadline pursuant to a legally binding obligation by the donor.
(d) Exception for Indian Housing Authorities. Where the recipient is
an IHA and the IHA (acting in that capacity) has not received, and will
not receive, amounts under title I of the Housing and Community
Development Act of 1974 for the fiscal year in which HUD obligates HOPE
grant funds, the match requirements under this section shall not apply.
24 CFR 92.652 Section 415. Applications for implementation grants.
(a) NOFA. An application for an implementation grant shall be
submitted by an applicant in accordance with this notice and the NOFA.
The NOFA advises potential applicants how to obtain an application
package and establishes deadlines and other requirements for submission
of applications. The NOFA also informs each applicant that it may
request information and guidance from HUD about program requirements and
preparation of the application.
(b) Application Contents. Each application shall contain the
information required by the application package, which shall include at
least the following items.
(1) Request for HOPE Implementation Grant. The application shall
contain (i) a summary description of the proposed homeownership program;
(ii) a description of the personnel necessary to complete the
activities; and (iii) the amount of the grant requested for each
activity. The amount requested, together with any non-Federal
contributions, shall be sufficient to carry out all proposed activities.
(2) Match Requirements. (i) The application shall describe and,
except with respect to administrative costs, contain commitments for,
the resources that are expected to be contributed towards the match
required under section 410, and of any other resources that are expected
to be made available in support of the homeownership program. Except
for administrative costs, acceptable evidence that the contribution will
be provided shall be included. For example, if 20 years of tax
abatement will be counted towards the match, the chief executive officer
or appropriate legislative body of the government should submit a copy
of the law or other official action documenting this commitment. Cash
or other property contributions (except those related to administrative
costs) shall be supported by evidence of a binding commitment by the
donor to donate the cash or other property, subject only to approval of
the implementation grant and any other necessary conditions approved by
HUD.
(ii) If the match requirement does not apply to an IHA in accordance
with section 410(d), the application shall contain a certification that
the IHA has not received, and will not receive, amounts under title I of
the Housing and Community Development Act of 1974 for the fiscal year in
which HUD obligates HOPE grant funds.
(3) Qualifications and Experience of Applicant. (i) The application
shall describe the applicant and contain a statement of its
qualifications and experience, including qualifications and experience
in providing housing for low-income families.
(ii) Where a public body submits an application in cooperation with a
private nonprofit organization, the application shall include a written
agreement that delineates their respective roles and responsibilities
and identifies the entity that will execute the grant agreement.
(iii) An application from a private nonprofit organization that has
applied for tax exempt status under section 501(c) of the Internal
Revenue Code of 1986 on or before the date of application may be
considered so long as the organization is approved before the effective
date of the grant agreement.
(4) Description of Proposed Homeownership Program. The application
shall describe the proposed homeownership program, demonstrating
consistency with all requirements specified in this notice and the
application package (see, especially, section 405, Eligible
Implementation Grant Activities and part V, Other Requirements). The
application shall specify the activities to be carried out, their
estimated costs, and a reasonable schedule for carrying out the
activities. The schedule shall require completion of program activities
under the grant agreement no later than four years from the effective
date of the grant agreement. See section 705 for related requirements
and provisions permitting HUD to permit a longer deadline for completion
of program activities. See section 715 for requirements for the timely
transfer of ownership interests to eligible families.
(5) Plan. -- (i) Identifying and Selecting Families. The application
shall contain a plan for identifying and selecting eligible families to
participate in the homeownership program. The plan shall --
(A) Establish equitable procedures for selection of eligible
families. The procedures shall provide for selection only of families
that are creditworthy and have the financial capacity to handle the
anticipated costs of homeownership.
(B) Except for Indian tribes and IHAs as described in section
505(a)(2), describe activities planned to carry out the applicant's
affirmative fair housing marketing responsibilities that apply whenever
homeownership opportunities are made available to other than current
residents of the property. The plan shall describe the applicant's
affirmative fair housing marketing strategy, including specific steps to
inform potential applicants and solicit applications from eligible
families in the housing market area who are least likely to apply for
the program without special outreach.
(C) Require any family determined not to have paid the appropriate
amount of tenant contribution under a HUD housing assistance program to
resolve any deficiency before being selected for homeownership.
(D) Give a first preference to otherwise qualified residents that
legally occupied units on the date the implementation grant application
was submitted to HUD and to current residents at the time homeowners are
selected. If the unit occupied by a former resident on the date the
implementation grant application was submitted to HUD is occupied by a
current resident, a vacant unit under the program shall be offered to
the former resident at the earliest possible time.
The plan shall also give a first preference, in the case of vacant
properties, to otherwise qualified eligible families who reside in
public or Indian housing under the 1937 Act. If a unit occupied by a
resident on the date the implementation grant application is submitted
to HUD is vacant but its resident on the date of application wishes to
exercise the preference, the unit shall not be considered vacant for
purposes of the preference for families who reside in public or Indian
housing. The plan shall also include such measures as may be necessary
to inform residents of public and Indian housing developments of their
preference, such as informing RMCs, RCs, PHAs, and IHAs or taking other
appropriate measures.
The plan shall give a second preference to otherwise qualified
eligible families who have completed participation in an economic
self-sufficiency program. The following self-sufficiency programs (and
any other Federal, State, or local program proposed by the applicant and
approved by HUD as equivalent) qualify: Project Self-Sufficiency,
Operation Bootstrap, Family Self-Sufficiency, and JOBS.
(E) Require the recipient to promptly notify in writing any rejected
applicant family of the grounds for any rejection, or to require the
recipient to require another appropriate entity to do so.
(F) Require each eligible family selected for homeownership to
certify at the time it acquires an ownership interest in the unit (or
enters into a lease or other conditional ownership agreement providing
for acquisition of an ownership interest by the family) that it intends
to occupy the unit as its principal residence.
(G) Require each eligible family to agree to occupy the property as
its principal residence during the 15-year period from the date it
acquires ownership interest in the unit (or enters into a lease or other
conditional ownership agreement providing for acquisition of an
ownership interest by the family), unless the recipient determines that
family is required to move outside the market area due to a change in
employment or an emergency situation or the family sells its ownership
interest. The family may permit others to rent space (such as a
basement area or a spare bedroom) in the property occupied by the family
as its principal residence.
(H) Require any eligible family that violates the agreement made
under paragraph (b)(5)(i)(G) of this section to pay the amount then due
under the promissory note.
(I) Describe the composition of the residents and potential eligible
families, including family size and income, and racial, ethnic, and
gender characteristics, as required by HUD.
(ii) Providing Relocation. The application shall describe the
proposed relocation activities, in accordance with the requirements of
section 735. The plan shall specify the approximate number of families
and individuals who are expected to choose to move and the number who
will be temporarily relocated during rehabilitation, the estimated
costs, the source of funding, the organization that will carry out the
relocation if different than the applicant, and other available
resources (including, for example, section 8 assistance).
(iii) Managing Sweat Equity. Where applicable, the application shall
contain a plan for managing the provision of sweat equity by homebuyers
and homeowners, including a description of the anticipated scope of the
work, schedule of completion, training of homebuyers and homeowners (and
training of others donating labor in connection with sweat equity
activity), supervision of the work by a licensed general contractor, and
a contingency plan if the sweat equity is not fully provided or the
schedule is not met.
(iv) Providing Training and Counseling. The application shall
contain a plan for providing training and counseling for homebuyers and
homeowners.
(6) Eligible Property. The application shall anticipate selection of
at least five properties and contain the following information about the
properties expected to be included in the program:
(i) The anticipated types and sizes of properties;
(ii) Whether the applicant expects the properties to be vacant;
(iii) Whether the properties will be owned by the Federal government,
PHAs/IHAs, or State or local governments; and
(iv) The anticipated locations of the properties, by specifying
particular neighborhoods where activities will be carried out and
describing racial and ethnic characteristics of residents of the
neighborhoods.
(7) Housing Quality Standards Plan. The application shall include a
housing quality standards plan describing how the applicant will ensure
that --
(i) The unit will be free from any defects that pose a danger of
life, health, or safety before transfer of an ownership interest in a
unit to an eligible family or execution of a lease with an option to
purchase. The recipient shall inspect, or ensure inspection of, each
unit to determine it does not pose an imminent threat to the life,
health, or safety of residents and that the property has passed recent
fire and other applicable safety inspections conducted by appropriate
local officials; and
(ii) The unit will, not later than 2 years after the transfer to an
eligible family, meet minimum housing standards. The recipient shall
inspect, or ensure inspection of, each unit to determine it meets the
local housing code or the housing quality standards established by HUD
for the Section 8 Certificate program, whichever is higher.
Higher standards may be proposed by the applicant or required by
lenders. The applicant shall adopt written rehabilitation standards,
which shall be consistent with the housing quality standards plan, but
shall not submit them to HUD.
(8) Replacement Housing. Where section 18 of the 1937 Act applies,
the application shall contain an application under section 18 for the
disposition of units in public or Indian housing developments (see
sections 110(a) and 601(d)). Applicants that intend to utilize their
HOPE 3 grant in conjunction with a section 5(h) or 21 HUD homeownership
development shall be required either to submit as part of the HOPE 3
application package a certification of compliance with an existing
section 5(h) or 21 replacement housing plan, or a replacement housing
plan under section 5(h) or 21. Applicants should consult the HOPE 3
application package to determine whether the proposed homeownership
program is subject to, or exempt from, the requirements of section 18
(including the requirement for a replacement housing plan), or whether
alternative requirements (including alternative replacement housing plan
provisions) are applicable. HOPE assistance may not be used to fund
replacement housing.
(9) Nondisplacement; Participation by Residents. The application
shall contain a certification by the applicant that no person has been
or will be displaced from his or her dwelling as a direct result of a
homeownership program under this notice. This does not preclude
termination of tenancy for violation of the terms of occupancy of a
unit. Each resident of an eligible property on the date the application
was submitted to HUD and each resident at the time homeowners are
selected shall be given an opportunity to become a homeowner under this
program if the resident qualifies as an eligible family and meets other
program requirements. The use of eligible properties occupied by
residents who are not interested in, or do not qualify for,
homeownership and who do not elect to move is not permitted.
(10) Management Entity. The application shall identify and describe
the entity that will operate and manage the property, and contain a copy
of the proposed contract, or states that the applicant intends to
operate and manage the property. Where homeowners will have full
responsibility upon acquiring a homeownership interest in a property (as
is expected in scattered site, fee simple ownership arrangements), this
requirement will only cover the period, if any, until the homeowners
become fully responsible.
(11) Financing. (i) The application shall identify and describe the
financing proposed for any (A) rehabilitation and (B) acquisition (1) of
the property, where applicable, by the applicant or other entity,
including an RC, for transfer to eligible families, and (2) by eligible
families of ownership interests in eligible properties.
(ii) Financing may include use of the implementation grant to permit
transfer of an ownership interest in a unit to an eligible family for
less than fair market value or with assisted financing; sale for cash;
or other sources of financing (subject to requirements that apply to
such other sources), including conventional mortgage loans, mortgage
loans insured under title II of the National Housing Act, and mortgage
loans under other available programs, such as VA, FmHA, and RTC
seller-assisted financing.
(iii) Financing may not involve use of the low income housing tax
credit. No assumptions are permitted. HUD invites comments on whether
assumptions should be permitted.
(12) Affordability -- (i) Initial Affordability. (A) The application
shall demonstrate that the monthly expenditure for principal, interest,
taxes, and insurance by an eligible family that is necessary to complete
the sale for the initial acquisition of a unit is not less than 20
percent but not more than 30 percent of the adjusted income of the
family, determined in accordance with 24 CFR part 913 (where the
recipient is a PHA, RMC, or RC), part 813 (unless the recipient is a
PHA, RMC, or RC), or part 905 (for Indian housing developments), as
appropriate. HUD may approve a justified request in the application for
a floor lower than 20 percent to avoid undue hardship to families, such
as where the cost of utilities is high. As required by the statute,
closing costs are included in this 30 percent cap to the extent they are
included in the costs of principal and interest, or are otherwise
required to be paid by the homeowner over time after acquisition. It
does not make sense to count closing costs paid as a lump sum at closing
for purposes of computing a monthly maximum family expenditure. In
setting the sales price for acquisition, the applicant shall take into
account the need to comply with this affordability standard.
(B) Applicants are encouraged to consider the additional monthly
costs of utilities and other monthly housing costs in determining
whether the family can afford to purchase a unit.
(C) Applicants shall adopt written standards for determining monthly
expenditures under paragraph (b)(12) of this section, but shall not
submit them to HUD.
(ii) Continued Affordability. The application shall contain a
feasible plan for ensuring continued affordability by homebuyers and
homeowners in the eligible property. The plan shall avoid using
financing, such as a mortgage that is not fully amortizing (such as a
''balloon'' mortgage) or that involves negative amortization, that would
impair the continued affordability of the property for eligible
families.
(13) Sales Price to Applicant or Other Entity. The application shall
specify the estimated average sales price to the recipient for the
properties expected to be acquired for homeownership under the program,
the basis for the estimate, and terms (if known) to the entity that will
purchase properties for resale to eligible families.
(14) Sales Prices and Terms of Sale to Eligible Families; Form of
Ownership. (i) The application shall contain estimated sales prices and
terms of sale to eligible families. The application shall also specify
the type or types of homeownership to be used, including cooperative
ownership (including limited equity cooperative ownership), fee simple
ownership (including condominium ownership), or another form of
ownership proposed and justified by the applicant and approved by HUD.
(ii) In order for the homeowner to have a continuing equity interest
in the property, the proposed program shall require each eligible family
to make an investment in the property, which shall either be in the form
of a downpayment paid at closing from family resources or from the
proceeds of a loan to the family secured by a mortgage on the property.
(iii) An eligible family may transfer amounts credited to it under
other HUD homeownership programs (including Turnkey III and Mutual Help)
to meet down payment obligations under the HOPE program, if it is
purchasing the same unit it has occupied under the other HUD
homeownership program. An applicant may permit a family to meet its
down payment obligation, if any, through ''sweat equity.''
(iv) See 110(f) for provisions governing the use of single family FHA
mortgage insurance.
(15) Resale Restrictions, If Any. The application shall contain any
proposed restrictions on the resale of units by initial or subsequent
homeowners under the homeownership program (Section 720(a)(1)(ii)). The
required restrictions set forth in 720 need not be restated.
(16) CHAS Certification. (i) The application shall contain
certification by the public official, or his or her authorized
representative, who submits the CHAS that the proposed activities are
consistent with the approved CHAS of the State or unit of general local
government within which the eligible property is located. Where the
program will be carried out in more than one unit of general local
government with a CHAS, a certification from each shall be included.
(ii) Paragraph (b)(16)(i) of this section shall not apply to an
application submitted by an Indian tribe or IHA. Indian tribes and IHAs
are not included in the definition of a ''jurisdiction,'' the entity
charged with submitting a CHAS. HUD has concluded that Indian tribes
and IHAs need not submit a CHAS and need not submit a certification of
consistency with a housing strategy.
(17) Equal Opportunity Certifications. (i) The application shall
contain --
(A) A certification that the applicant will comply with the
requirements of the Fair Housing Act, title VI of the Civil Rights Act
of 1964, section 504 of the Rehabilitation Act of 1973; and the Age
Discrimination Act of 1975, and will affirmatively further fair housing;
or
(B) In the case of an application from an Indian tribe or IHA, under
the circumstances described in Section 505(a)(2) of this notice, a
certification that the applicant will comply with the Indian Civil
Rights Act (25 U.S.C. 1301 et seq.), section 504 of the Rehabilitation
Act of 1973, and the Age Discrimination Act of 1975.
(ii) The application shall contain a statement from the applicant (A)
whether or not a desegregation order, agreement, or plan that applies to
the applicant is in effect or known to the applicant to be under
consideration; (B) that the applicant is not in violation of any
existing desegregation order, compliance agreement, or voluntary
agreement, or a statement describing the circumstances of the violation;
and (C) describing any potential impact the proposed homeownership
program may have on implementing any existing or pending order,
agreement, or plan.
(18) Plan for Use of Certain Sales Proceeds. The application shall
contain a plan for use of proceeds from sales to eligible families and
amounts families may not retain upon resale. The plan shall provide for
uncommitted sales proceeds and resale proceeds that may not be retained
by a homebuyer to be spent before additional grant amounts are drawn
down by the recipient.
(19) Economic Development. The application may contain a plan for
economic development activities under the program. The application
shall demonstrate that the proposed activities under 405(b)(12)(i) are
directly related to the proposed homeownership program, and describe how
these activities will promote the self-sufficiency of homebuyers and
homeowners.
(20) Environmental Certification. The application shall contain a
certification that the applicant agrees to comply with the environmental
laws and authorities at 24 CFR 50.4 and that it will (i) supply HUD with
information necessary for it to perform any necessary environmental
review of each property; (ii) carry out mitigating measures required by
HUD or select alternate eligible property; and (iii) not acquire or
otherwise carry out any program activities with respect to any eligible
property until HUD approval is received. See Section 745.
(21) Nonduplication of Funding. The application shall contain a
certification that the applicant is not and will not receive assistance
from the Federal government, a State, or a unit of general local
government, or any agency or instrumentality thereof, for activities for
which funding is requested in the application.
(c) Screening. (1) HUD shall screen each application submitted on or
before the deadline set forth in the NOFA to determine whether it is
complete, is internally consistent, and contains correct computations.
Where HUD determines an application is deficient in one or more of these
areas, it shall notify the applicant in writing and give it an
opportunity to correct the deficiencies in its application. However,
the applicant may not substantially revise the application, such as by
substituting another neighborhood or applicant or changing other
fundamental features of the homeownership program, because that would
not be fair to other applicants. The notification shall inform each
applicant that it may request information and guidance from HUD about
program requirements and preparation of the application. The
notification shall also require applicants to submit additional or
corrected material so it is received in the appropriate HUD office no
later than close-of-business on the 14th calendar day after the date of
notification to the applicant giving it an opportunity to modify its
application. HUD may not extend this deadline for actual receipt of the
material for any reason. HUD shall not consider further any
applications that do not meet one of the tests in the first sentence of
paragraph (c)(1) of this section, after the opportunity, if any, to
submit additional or corrected material, or fail to comply with other
program requirements.
(2) The purpose of this procedure is to increase the number of
approvable applications so viable homeownership opportunities may be
developed at the earliest possible time, while giving each applicant an
equal opportunity to receive HUD assistance and correct deficiencies.
HUD anticipates that many applicants will be relatively new and may need
this additional opportunity to perfect their applications.
(Approved by the Office of Management and Budget under control number
2606-0119)
24 CFR 92.652 Section 420. Threshold Review
HUD shall review each application that qualifies for additional
consideration under the screening procedures in section 415(c). HUD
shall not consider further any application that fails to meet any one of
the following additional threshold criteria --
(a) Experience and Capacity of Applicant. (1) The applicant or other
specified entity has the administrative capacity, or proposes to obtain
administrative capacity, that is adequate to carry out the proposed
program.
(2) The application demonstrates that the applicant or other
specified entity has adequate internal management controls, including
strong systems for financial management and cost controls, as evidenced
by submission of a summary of the last certified independent audit
report or a certification from a certified public accountant who has
examined the current internal management controls or is establishing
those systems for a new entity.
(3) If the applicant or its key staff and other specified entity and
its key staff have previous experience in housing acquisition,
rehabilitation, or a homeownership program, their efforts have been free
of serious problems and major audit findings or problems and findings
have been satisfactorily resolved.
(b) Feasibility of the Homeownership Program. (1) The application
sets forth a realistic schedule for implementing the proposed program,
including timely acquisition and, where applicable, timely
rehabilitation of properties, as well as timely property transfer to
homebuyers. The schedule shall provide for completion of implementation
within four years from the effective date of the grant agreement, except
where a longer period is approved in accordance with 705.
(2)(i) At least five potentially suitable eligible properties are
available in the areas in which the applicant proposes to carry out the
program.
(ii) The proposed program does not result in appreciably reducing in
the locality the number of affordable rental housing units of the type
to be assisted that would be available to residents currently residing
in the types of properties proposed for use under the program or to
families who would be eligible to reside in the properties. In the case
of scattered site, single family public or Indian housing, where section
18 of the 1937 Act applies (see section 110(a)), this requirements is
met automatically since section 18 of the 1937 Act requires replacement
of each unit transferred to homeownership. HUD shall determine that the
application complies with this criterion if it determines that no more
than 10 percent of the affordable single family (one- to four units)
rental housing units in the market area would be converted to
homeownership as a result of approval of the application. If the
proposed homeownership program is in a market area that contains such a
small number of affordable rental housing units that the applicant
believes the number of units included in its application may exceed the
10 percent threshold, the applicant shall submit whatever documentation
it believes appropriate to assist HUD in making this determination.
(3) The proposed financing from all sources is sufficient to
accomplish the program's objectives.
(4) The application demonstrates that the affordability standards in
section 415(b)(12) can be met and the plan for ensuring continued
affordability in section 415(b)(12)(ii) is feasible. The plan shall
take into account the proposed cost of operating and maintaining the
property after eligible families become homeowners and the adequacy of
counseling and training of homebuyers, residents, and homeowners.
(5) Adequate supportive homeownership counseling services will be
provided.
(6) If applicable, the application provides for necessary relocation
assistance.
(7) The plan in section 415(b)(5)(i) for identifying and selecting
eligible families to participate is acceptable.
(8) The housing quality standards plan in section 415(b)(7) is
acceptable.
(9) The proposed program provides that all units in properties
assisted under the program will be acquired by eligible families.
(10) The application complies with all other applicable requirements
and proposes a homeownership program that is feasible, given the scope
and location of the program and the administrative capacity of the
applicant.
(c) Equal Opportunity and Related Requirements. The applicant's
certification of compliance with equal opportunity and related
requirements and its statement concerning desegregation orders,
compliance agreements, and voluntary agreements are consistent with
facts known to HUD, and the performance of the applicant is satisfactory
or any problems are being satisfactorily resolved.
24 CFR 92.652 Section 425. Rating, ranking, and selection of
applications
(a) Rating. If the regional allocation is not sufficient to fund
each application that HUD determines meets the threshold requirements,
HUD shall review each such application and assign it points in
accordance with the following selection criteria --
(1) Capability. The ability of the applicant to develop and carry
out the proposed homeownership program in a reasonable time and in a
successful manner. In assigning points for this criterion, HUD shall
consider evidence in the application demonstrating --
(i) The capability of the applicant to handle financial resources,
demonstrated through such evidence as previous experience of the
applicant or key staff and existing financial control procedures, or by
an explanation of how such capability will be obtained -- 10 points;
(ii) The capability of the applicant to manage the proposed
homeownership program as a whole, demonstrated through previous
experience of the applicant or key staff in managing acquisition,
rehabilitation, construction, real estate financing, counseling and
training, or other relevant activities or by an explanation of how such
capability will be obtained -- 10 points.
Maximum points for this criterion (1): 20 points.
(2) Local Support. In assigning points for this criterion, HUD shall
consider --
(i) The extent of commitment of the unit of general local government
(or Indian tribe, where applicable) and the PHA/IHA (where it is not
part of the unit of general local government or Indian tribe and where
units in public or Indian housing developments are expected to be used
under the program) in support of the program, such as the provision of
social services (including counseling and training), rehabilitation
loans or grants, interest rate subsidies, water and sewer improvements,
street and sidewalk improvements, and tax abatements -- 7 points.
(ii) The extent of commitment of the local community (including
places of worship, banks, neighborhood or community organizations or
other community groups) in support of the program, such as the donation
of labor or materials, interest rate reductions or other financing
subsidies, and commitment of volunteer assistance in some aspect of the
program (activities of the applicant shall not be considered under this
subcriterion (ii)) -- 7 points.
Maximum points for this criterion (2): 14 points.
(3) Quality. In assigning points for this criterion, HUD shall
consider --
(i) The quality of the applicant's efforts to maintain long-term
affordability, taking into account such program features as long-term
financing at reasonable terms, energy conservation, and improvements
that will require low-cost maintenance -- 5 points; and
(ii) The extent to which the plan provides for high quality
supportive services to homebuyers and homeowners, such as pre- and
post-homeownership counseling -- 5 points.
Maximum points for this criterion (3): 10 points.
(4) Relationship to CHAS. Whether the approved CHAS for the
jurisdiction or jurisdictions within which the homeownership program is
to be carried out includes homeownership as one of the general
priorities identified pursuant to section 105(b)(7) of NAHA.
This criterion shall not be used to rate an application submitted by
an Indian tribe or IHA. The maximum score for such an application will
be 95. The percentage of points earned by an applicant, based on its
maximum points local of 95, will be multiplied by the maximum number of
points for other applicants (100) to determine the points for purposes
of ranking.
Points for this criterion (4): 5 points.
(5) Efficiency. In assigning points for this criterion, HUD shall
consider the cost-effectiveness in using Federal grant funds, determined
by dividing the requested amount of the grant (adjusted by the R.S.
Means Cost Construction Index, where appropriate) by the total number of
units expected to be assisted,
Maximum points for this criterion (5): 15 points.
(6) MBE/WBE Goals. (i) The extent to which the applicant
demonstrates a firm commitment to promoting the use of minority business
enterprises and women-owned businesses, especially resident-owned
businesses. For example, the applicant has used such businesses in the
past, has set forth specific affirmative steps it will take to ensure
that such businesses have an equal opportunity to obtain and compete for
contracts, or both. These steps may include the steps outlined at 24
CFR 85.36(e) and 570.506(g)(6), but may not include awarding contracts
solely or in part on the basis of race or gender. See section 505(d)
for the legal basis for this criterion.
(ii) In the case of applications submitted by Indian tribes or IHAs,
the requirements of the Indian Self-Determination and Education
Assistance Act, 25 U.S.C. 450e(b), apply. Accordingly, for such
applicants, points for this factor shall be assigned based on the extent
to which the applicant demonstrates a firm commitment to promoting the
use of minority business enterprises and women-owned businesses, to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act.
Maximum points for this criterion (6)(i) or (ii), as applicable: 5
points.
(7) Inventory. In assigning points for this criterion, HUD shall
consider --
(i) The extent to which the proposal will emphasize the use of
eligible Federal properties, public or Indian housing, or both -- 3
points; and
(ii) The extent of the applicant's commitment to use vacant units, as
described in the applicant's homeownership program plan -- 8 points.
This subcriterion shall not be used to rate an application where use of
scattered site single family public or Indian housing is proposed for
more than half of the units under the program. The maximum score for
such an application will be 92. The percentage of points earned by an
applicant, based on its maximum point total of 92, will be multiplied by
the maximum number of points for other applicants (100) to determine the
points for purposes of ranking. For example, if an application receives
46 out of 92 points, or 50 percent, it will be ranked as if it had
earned 50 points (50 percent of 100 points), not 46 points.
Maximum points for this criterion (7): 11 points.
(8) Need. In assigning points for this criterion, HUD shall consider
the percentage of the number of rental households in the jurisdiction or
jurisdictions in which the program will be carried out that are living
in poverty as defined by the Bureau of the Census.
Maximum points for this criterion (8): 15 points.
(9) Fair Housing Choice. The degree to which the applicant's
proposal furthers fair housing choice through its affirmative marketing
strategy, the proposed areas in which eligible properties are located,
or a combination of these factors.
This criterion shall not be used to rate an application submitted by
an Indian tribe or IHA, when those entities are covered by the Indian
Civil Rights Act. Section 505(a)(2) explains the circumstances under
which the Indian Civil Rights Act applies. The maximum score for such
an application will be 95. The percentage of points earned by an
applicant, based on its maximum point total of 95, will be multiplied by
the maximum number of points for other applicants (100) to determine the
points for purposes of ranking.
Maximum points for this criterion (9): 5 points. Maximum total
points: 100 points.
(b) Ranking and Selection. (1) After assigning points to each
application under paragraph (a) of this section, HUD shall review and
may adjust the ratings to ensure consistency among Field and Regional
Office scores. HUD shall then rank the applications in order, by HUD
Region. HUD shall select the highest ranking applications within each
Region.
(2) If two or more applications in a Region receive the same number
of points and sufficient amounts are not available to fund all such
applications, the application or applications requesting the smallest
grants shall be selected if a sufficient amount remains to fund them.
If two or more tied applications request the same amount and sufficient
funds are not available to fund all such applications, the following
system will be used:
(i) If the tied applications are for programs to be carried out in
different jurisdictions, the one(s) with the highest number of points
for Need (criterion (8)) shall be selected, using whatever remaining
funds are available.
(ii) If the tied applications are to be carried out in the same
jurisdiction, the one(s) with the highest number of points for
Efficiency (criterion (5)) shall be selected, using whatever remaining
funds are available. If any amounts remain after applying these
procedures, they shall be reallocated in accordance with paragraph (e)
of this section.
(3) Procedural errors discovered after initial ratings but before
notification of applicants shall be corrected and rankings revised.
Procedural errors discovered after notification of approved applicants
which, if corrected, would result in approval of an application which
was not approved will be corrected by funding that application from any
unused amounts or ''off the top'' from amounts available for
implementation grants in the next funding round.
(c) Reduction in Requested Grant Amounts. HUD shall approve an
application for an amount lower than the amount requested or adjust line
items in the proposed budget within the amount requested (or both) if it
determines the amount requested for one or more eligible activities is
unreasonable or unnecessary or does not otherwise meet applicable cost
limitations established for the program. In addition, HUD may approve
an application for a lower amount if it determines (1) there is an
insufficient inventory of potential eligible properties; (2) the
application sets unrealistic program goals; (3) the applicant lacks
adequate past experience or otherwise is not able to carry out as large
a program as requested; (4) the applicant has requested an ineligible
activity; (5) the applicant has proposed an inadequate match; or (6)
insufficient amounts remain in that funding round to fund the full
amount requested in the application.
(d) Notification of Approval or Disapproval. After completion of the
ranking and selection of applications, but no later than six months
after the date of submission of the application, HUD shall notify the
selected applicants and the applicants that have not been selected, in
writing. The amount of the required match may be adjusted when HUD
approves an application, to reflect the approved grant amount. HUD will
cancel approval of the application if commitments for replacement
housing are not provided in a reasonable period of time.
(e) Insufficient Approvable Applications; Reallocation. (1) If funds
remain after HUD approves all approvable applications in a Region, the
remaining amounts from each Region may be combined and HUD may
reallocate to Regions having more applications meeting threshold
requirements than can be funded from the initial allocation for that
Region. Amounts that become available due to deobligation of grant
amounts may also be reallocated. Where HUD reallocates funds under
paragraph (e)(1) of this section, HUD shall reallocate funds using the
same factors as used for the original allocation. If amounts remain
after applying these procedures, they may be made available to fund the
highest ranked, unfunded planning grant applications or made available
under a NOFA inviting additional applications.
(2) As an alternative to the procedures in paragraph (e)(1) of this
section, if funds remain after HUD approves all approvable applications
in a Region, the remaining amounts from each Region may be made
available to fund the highest ranked, unfunded planning grant
applications or made available under a NOFA inviting additional
applications.
24 CFR 92.652 V. Other Requirements
24 CFR 92.652 Section 501. Flood Insurance and Coastal Barriers
Resources Act
(a) Flood Insurance. Pursuant to the Flood Disaster Protection Act
of 1973 (42 U.S.C. 4001-4128), the recipient may not provide financial
assistance for acquisition or rehabilitation of properties located in an
area identified by the Federal Emergency Management Agency (FEMA) as
having special flood hazards, unless -- .
(1) The community in which the area is situated is participating in
the National Flood Insurance program (see 44 CFR parts 59 through 79),
or less than one year has passed since FEMA notification regarding such
hazards; and
(2) Flood insurance is obtained as a condition of the acquisition or
rehabilitation of the property.
(b) Coastal Barriers Resources Act. Pursuant to the Coastal Barrier
Resources Act (16 U.S.C. 3601), HUD will not approve use of properties
in the Coastal Barrier Resources System.
24 CFR 92.652 Section 505. Nondiscrimination and Equal Opportunity
(a) Fair Housing Requirements. (1) The requirements of the Fair
Housing Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR
part 100, part 109, and part 110; Executive Order 11063, as amended by
Executive Order 12259 (3 CFR, 1958-1963 Comp., p. 652 and 3 CFR, 1980
Comp., p. 307) (Equal Opportunity in Housing) and implementing
regulations at 24 CFR part 107; and title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR part 1 shall
apply.
(2) The Indian Civil Rights Act (25 U.S.C. 1301 et seq.) applies to
tribes when they exercise their powers of self-government. Thus, it is
applicable in all cases when an IHA has been established by exercise of
such powers. In the case of an IHA established pursuant to State law,
the applicability of the Indian Civil Rights Act shall be determined on
a case-by-case basis. Developments subject to the Indian Civil Rights
Act shall be developed and operated in compliance with its provisions
and all implementing HUD requirements, instead of title VI and the Fair
Housing Act and their implementing regulations.
(b) Discrimination on the Basis of Age or Handicap.
The prohibitions against discrimination on the basis of age under the
Age Discrimination Act of 1975 (42 U.S.C. 6101-07) and implementing
regulations at 24 CFR part 146, and the prohibitions against
discrimination against handicapped individuals under section 504 of the
Rehabilitation Act of 1973 (29 U.S.C. 794) and implementing regulations
at 24 CFR part 8 shall apply.
(c) Employment Opportunities. (1) The requirements of section 3 of
the Housing and Urban Development Act of 1968 (12 U.S.C. 1701u)
(Employment Opportunities for Lower Income Persons in Connection with
Assisted Projects) shall apply. In addition, Executive Order 11246 (3
CFR 1964-1965 Comp., p. 339) (Equal Employment Opportunity) and
implementing regulations at 41 CFR part 60 shall apply.
(2) In the case of Indian tribes and IHAs, the requirements of the
Indian Self-Determination and Education Assistance Act shall also apply
(see 25 U.S.C. 450e(b); 24 CFR 905.165 (a) and (b) and 905.360);
compliance with Executive Order 11246 and 41 CFR part 60 shall be to the
maximum extent consistent with, but not in derogation of, the Indian
Self-Determination and Education Assistance Act (see 24 CFR 905.170(b)
and 905.360).
(d) Minority and Women's Business Enterprises. The requirements of
Executive Orders 11625, 12432, and 12138 shall apply. Consistent with
HUD's responsibilities under these Orders, recipients must make efforts
to encourage the use of minority and women's business enterprises in
connection with funded activities. In the case of applications
submitted by Indian tribes or IHAs, recipients' efforts must be
consistent with, but not in derogation of, the Indian Self-Determination
and Education Assistance Act, 25 U.S.C. 450e(b).
(e) Affirmative Fair Housing Marketing. The recipient shall adopt a
plan for informing and soliciting applications from people who are least
likely to apply for the program without special outreach, consistent
with the affirmative fair housing marketing requirements. See 24 CFR
part 108. This paragraph shall not apply to Indian tribes and IHAs, as
described in paragraph (a)(2) of this section.
(f) Authority for Collection of Racial, Ethnic, and Gender Data. HUD
requires submission of racial, ethnic, and gender data under this notice
pursuant to section 562 of the Housing and Community Development Act of
1987 and section 808(e)(6) of the Fair Housing Act.
24 CFR 92.652 Section 510. OMB Circulars
(a) The policies, guidelines, and requirements of OMB Circular Nos.
A-87 (Cost Principles Applicable to Grants, Contracts and Other
Agreements with State and Local Governments) and 24 CFR part 85
(Administrative Requirements for Grants and Cooperative Agreements to
State, Local and Federally Recognized Indian Tribal Governments) apply
to the award, acceptance, and use of assistance under the program by
governmental entities, and to the remedies for non-compliance, except
where inconsistent with the provisions of NAHA, other Federal statutes,
or this notice. Circular Nos. A-110 (Grants and Cooperative Agreements
with Institutions of Higher Education, Hospitals, and Other Nonprofit
Organizations) and A-122 (Cost Principles Applicable to Grants,
Contracts and Other Agreements with Nonprofit Institutions) apply to the
acceptance and use of assistance by private nonprofit organizations,
except where inconsistent with the provisions of NAHA, other federal
statutes, or this notice. Recipients are also subject to the audit
requirements of OMB Circular A-128 implemented at 24 CFR part 44, and
OMB Circular A-133 (Audits of Institutions of Higher Learning and Other
Nonprofit Institutions).
(b) Copies of OMB Circulars may be obtained from E.O.P.
Publications, room 2200, New Executive Office Building, Washington, DC
20503, telephone (202) 395-7332 (this is not a toll-free number). There
is a limit of two free copies.
24 CFR 92.652 Section 515. Drug-Free Workplace
Applicants shall certify that they will provide a drug-free
workplace, in accordance with the Drug-free Workplace Act of 1988 and
HUD's implementing regulations at 24 CFR part 24, subpart F.
24 CFR 92.652 Section 520. Anti-Lobbying Certification
(a) Section 319 of Public Law 101-121 prohibits recipients of Federal
contracts, grants, and loans from using appropriated funds for lobbying
the Executive or Legislative Branches of the Federal Government. A
government-wide common rule governing the restrictions on lobbying was
published as an interim rule on February 26, 1990 (55 FR 6736) and
supplemented by a notice published June 15, 1990 (55 FR 24540). For
HUD, this rule is found at 24 CFR part 87. The rule requires applicants
for and recipients of assistance exceeding $100,000 to certify that no
Federal funds have been or will be spent on lobbying activities in
connection with the assistance. The rule also requires disclosures from
applicants and recipients if nonappropriated funds have been spent or
committed for lobbying activities if those activities would be
prohibited if paid with appropriated funds. The law provides
substantial monetary penalties for failure to file the required
certification or disclosure.
(b) This section shall not apply to Indian tribes or IHAs. Indian
tribes, tribal organizations, or any other Indian organization with
respect to expenditures specifically permitted by other Federal law are
not covered by the definition of ''person'' in 24 CFR part 87.
24 CFR 92.652 Section 525. Debarred or Suspended Contractors
The provisions of 24 CFR part 24 apply to the employment, engagement
of services, awarding of contracts, subgrants, or funding of any
recipients, or contractors or subcontractors, during any period of
debarment, suspension, or placement in ineligibility status.
24 CFR 92.652 Section 530. Conflict of Interest
(a) In addition to the conflict of interest requirements in OMB
Circular A-110 /2/ and 24 CFR part 85, no person who is an employee,
agent, consultant, officer, or elected or appointed official of the
recipient and who exercises or has exercised any functions or
responsibilities with respect to assisted activities, or who is in a
position to participate in a decisionmaking process or gain inside
information with regard to such activities, may obtain a financial
interest or benefit from the activity, or have an interest in any
contract, subcontract, or agreement with respect thereto, or the
proceeds thereunder, either for himself or herself or for those with
whom he or she has family or business ties, during his or her tenure or
for one year thereafter, except that a resident of an eligible property
may acquire an ownership interest.
(b) HUD may grant an exception to the exclusion in paragraph (a) of
this section on a case-by-case basis when it determines that such an
exception will serve to further the purposes of the HOPE program and the
effective and efficient administration of the local homeownership
program. An exception may be considered only after the applicant or
recipient has provided a disclosure of the nature of the conflict,
accompanied by an assurance that there has been public disclosure of the
conflict and a description of how the public disclosure was made and an
opinion of the applicant's or recipient's attorney that the interest for
which the exception is sought would not violate State or local laws. In
determining whether to grant a requested exception, HUD shall consider
the cumulative effect of the following factors, where applicable:
(1) Whether the exception would provide a significant cost benefit or
an essential degree of expertise to the local homeownership program that
would otherwise not be available;
(2) Whether an opportunity was provided for open competitive bidding
or negotiation;
(3) Whether the person affected is a member of a group or class
intended to be the beneficiaries of the activity and the exception will
permit such person to receive generally the same interests or benefits
as are being made available or provided to the group or class;
(4) Whether the affected person has withdrawn from his or her
functions or responsibilities, or the decisionmaking process, with
respect to the specific activity in question;
(5) Whether the interest or benefit was present before the affected
person was in a position as described in paragraph (b) of this section;
(6) Whether undue hardship will result either to the applicant,
recipient, or the person affected when weighed against the public
interest served by avoiding the prohibited conflict; and
(7) Any other relevant considerations.
/2/ See 510(b) concerning the availability of OMB Circulars.
24 CFR 92.652 Section 535. Labor Standards
If other Federal programs are used in connection with the HOPE 3
homeownership program, labor standards requirements apply to the extent
required by such other Federal programs. For example, if CDBG funds are
used for rehabilitation, CDBG labor standards requirements will not
apply because HOPE 3 properties may not contain 8 or more units. See 24
CFR 570.603.
24 CFR 92.652 Section 540. Lead-Based Paint Testing and Abatement
Any residential property assisted under the HOPE program established
under this notice constitutes HUD-associated housing for the purpose of
the Lead-Based Paint Poisoning Prevention Act (42 U.S.C. 4821, et seq.)
and is, therefore, subject to 24 CFR part 35. Unless otherwise
provided, recipients shall be responsible for testing and abatement
activities.
24 CFR 92.652 Section 545. Requirements Applicable to Religious
Organizations
Where the applicant is, or proposes to contract with, a primarily
religious organization, or a wholly secular organization established by
a primarily religious organization, to provide, manage, or operate
housing under the program, the organization shall undertake its
responsibilities under the homeownership program in accordance with the
following principles:
(a) It will not discriminate against any employee or applicant for
employment under the program on the basis of religion and will not limit
employment or give preference in employment to persons on the basis of
religion;
(b) It will not discriminate against any person applying for housing
on the basis of religion and will not limit such housing or give
preference to persons on the basis of religion;
(c) It will provide no religious instruction or counseling, conduct
no religious services or worship (which term does not include voluntary,
non-denominational prayer before meetings), engage in no religious
proselytizing, and exert no other religious influence in the provision
of assistance under the homeownership program.
24 CFR 92.652 VI. Grant Agreement
24 CFR 92.652 Section 601. Grant Agreement
After HUD approves an application for a planning grant or an
implementation grant, it shall enter into a grant agreement with the
recipient setting forth the amount of the grant and applicable terms and
conditions, including sanctions for violation of the agreement. Among
other things, the grant agreement shall provide that the recipient
agrees:
(a) To carry out the program in accordance with the provisions of
this notice, applicable law, the approved application, and all other
applicable requirements;
(b) To comply with such other terms and conditions including
recordkeeping and reports, as HUD may establish for the purposes of
administering, monitoring, and evaluating the program in an effective
and efficient manner;
(c) To obtain HUD approval under applicable environmental
requirements before acquiring any property;
(d) That no amounts may be drawn down under the grant agreement with
respect to units in a public or Indian housing development until HUD
approves an application under section 18 of the 1937 Act and
implementing regulations, or approves a homeownership application for
conversion to the Turnkey III or Mutual Help program, or a homeownership
application for, or request for conversion to, section 5(h) or section
21 of the 1937 Act;
(e) That HUD will terminate the grant agreement if commitments for
replacement housing are not provided in a reasonable period of time;
and
(f) That HUD may withhold, withdraw, or recapture any portion of a
grant, terminate the grant agreement, or take other appropriate action
authorized under the grant agreement, if HUD determines that the
recipient is failing to carry out the approved homeownership program in
accordance with the terms of the approved application and this notice,
including failure to provide the contributions toward the match.
Failure to provide at least 70 percent of the number of homeownership
opportunities proposed in the application may result in remedial actions
being taken by HUD, including requiring repayment of all or part of the
grant.
24 CFR 92.652 VII. Implementation
24 CFR 92.652 Section 701. Implementation; Performance Standards
(a) After execution of its implementation grant agreement, the
recipient shall carry out the planning grant or implementation grant
activities in accordance with its approved application. HUD shall
establish procedures governing the drawdown of funds under grant
agreements, pursuant to section 740.
(b) HUD intends to establish performance criteria in the final rule
for the program and invites comments on what the standards should be.
24 CFR 92.652 Section 705. Deadline for Completion of Program
Activities
A recipient shall spend all implementation grant amounts within four
years from the effective date of the grant agreement. An applicant may
propose in its application a longer period for completion of activities,
together with a justification. After application approval, HUD may
approve a request to extend the deadline for the completion of eligible
activities, where it determines it is necessary.
24 CFR 92.652 Section 710. Social Security Numbers
As a condition of eligibility for homeownership under this notice --
(a) At the time a family applies for homeownership, the recipient (or
other appropriate entity) shall require the family to meet the
requirements for the disclosure and verification of social security
numbers, as provided by 24 CFR part 750; and
(b) The recipient (or other appropriate entity) shall require the
family to sign and submit consent forms for the obtaining of wage and
claim information from State Wage Information Collection Agencies, as
provided by 24 CFR part 760.
24 CFR 92.652 Section 715. Timely Homeownership
(a) Deadline for Transfer. Recipients shall transfer ownership
interests in the property to eligible families within a reasonable
period of time.
(b) Definition of Reasonable Period of Time. (1) Except for eligible
property already owned by the entity that will transfer ownership
interests to eligible families, all eligible properties, including in
rem property, shall be acquired within one year of the effective date of
the implementation grant agreement. All properties shall be transferred
to eligible families within two years of the effective date of the grant
agreement. The transfer shall involve (i) acquisition by an eligible
family of an ownership interest in the property, or (ii) a lease
providing for purchase by the family or other type of conditional
ownership agreement providing for transfer of ownership interest to the
family within two years of the date of execution of the lease.
(2) An applicant may propose in its application a longer period for
transferring ownership interests to eligible families, and submit a
justification. After application approval, HUD may approve a request
for a longer deadline for transfer to eligible families, where it
determines it is necessary.
24 CFR 92.652 Section 720. Restrictions on Resale by Initial
Homeowners
(a) In general -- (1) Transfer Permitted. (i) A homeowner may
transfer the homeowner's ownership interest in the unit, subject only to
the right to purchase under paragraph (a)(2) of this section, the
requirement for the purchaser to execute a promissory note, if required
under paragraph (b) of this section, and the limitation on the amount of
sales proceeds a family may retain upon sale within the first six years,
as required under paragraph (c) of this section. See paragraphs (b) and
(c) of this section for the rules for determining the amount homeowners
may retain from the sales proceeds.
(ii) Notwithstanding paragraph (a)(1)(i) of this section, an
applicant may propose in its application, and HUD may approve based on a
review of the individual circumstances, additional reasonable
restrictions on the resale of units under the program.
(2) Right to purchase. (i) Where an RMC, RC, or cooperative has
jurisdiction over the unit, it shall have the prior right to purchase
the ownership interest in the unit from the initial homeowner for the
amount specified in a firm contract between the homeowner and a
prospective buyer. The RMC, RC, or cooperative association shall have
10 days after receiving notice of the firm contract to decide whether to
exercise its right and 60 additional days to complete closing of the
purchase.
(ii) If no RMC, RC, or cooperative has jurisdiction over the unit or
no such entity elects to purchase from the initial homeowner and if the
prospective buyer is not a low-income family, a PHA/IHA with
jurisdiction for the area in which the unit is located or the recipient,
as specified in writing at the time the family acquires ownership
interest in the unit, shall have the prior right to purchase the
ownership interest in the unit for the amount specified in the firm
contract. The PHA/IHA or recipient shall have 10 days after receiving
notice of the firm contract to decide whether to exercise its right and
60 additional days to complete closing of the purchase.
(iii) Where an RMC, RC, cooperative, PHA/IHA, or recipient exercises
a right to purchase, it shall resell the unit to an eligible family
promptly. If the PHA/IHA exercises a right to purchase shares
representing a unit in a cooperative, because the cooperative did not
have sufficient money to do so, the PHA/IHA shall give the cooperative
another chance to purchase the shares before selling them to an eligible
family.
(b) Promissory Note. (1)(i) At closing, the initial homeowner shall
execute a nonamortizing, nonrecourse, non-interest-bearing promissory
note, in a form acceptable to HUD, equal to the difference, if any,
between the fair market value of the unit and the purchase price,
payable to the PHA/IHA, recipient, or other entity designated in the
approved homeownership plan, together with a mortgage securing the
obligation of the note. In determining the amount of the promissory
note and for that purpose only, the purchase price shall be adjusted by
deducting all substantial amounts of assistance that would result in an
undue profit to the family if it were to sell the property at the
beginning of the 7th year of homeownership. (See paragraph (c) of this
section for restrictions during the first six years.) For example, if
the family received down payment assistance equal to 10 percent or more
of the fair market value, a promissory note shall be required.
(ii)(A) With respect to a sale by an initial homeowner, the note
shall require payment upon sale by the initial homeowner, to the extent
proceeds of the sale remain after paying off other outstanding debt
secured by the property that was incurred for the purpose of acquisition
or property improvement, paying any other amounts due in connection with
the sale (such as closing costs and transfer taxes), and paying the
family the amount of its equity in the property, computed in accordance
with paragraph (c) of this section.
(B) With respect to a sale by an initial homeowner after the first
six years after acquisition, through the 20th year, the amount payable
under the note shall be reduced by 1/168 of the original principal
amount of the note for each full month of ownership by the family after
the end of the sixth year. The homeowner may retain all other proceeds
of the sale.
(C) For example, if the family sells at the end of the 13th year of
homeownership (at the half-way point between the end of the sixth year
and the end of the 20th year of ownership), 84/168 (or one-half) of the
note would be forgiven, and only half of the principal amount of the
note would be payable from sales proceeds. The family could retain all
remaining proceeds, including proceeds due to normal market value
increases in the value of the property. If the initial homeowner
retains ownership for 20 or more years, the entire amount of the note
would be forgiven.
(2)(i) Where a subsequent purchaser during the 20-year period,
measured by the term of the initial promissory note, purchases the
property for less than the then current fair market value, the purchaser
shall also execute at closing such a promissory note and mortgage, for
the amount of the discount (but no more than the amount payable at the
time of the sale on the promissory note by the seller). The term of the
promissory note shall be the period remaining of the original 20-year
period. The note shall require payment upon sale by the subsequent
homeowner, to the extent proceeds of the sale remain after covering
costs of the sale, paying off other outstanding debt secured by the
property that was incurred for the purpose of acquisition or property
improvement, and paying any other amounts due in connection with the
sale. The amount payable on the note shall be reduced by a percentage
of the original principal amount of the note for each full month of
ownership by the subsequent homeowner. The percentage shall be computed
by determining the percentage of the term of the promissory note the
homeowner has owned the property. The remainder may be retained by the
subsequent homeowner selling the property.
(ii) For example, if the subsequent homeowner acquires the property
from an initial homeowner at the end of year 4, there are 192 months (16
years 12) remaining in the 20-year period. The term of the promissory
note is 16 years. If the subsequent homeowner sells at the end of year
10, having owned the property for 72 months (6 years 12), 72/192 (37.5
percent) of the note would be forgiven, and 62.5 percent of the
principal amount of the note would be payable from sales proceeds. The
family could retain all remaining proceeds, including proceeds due to
normal market value increases in the value of the property. If the
subsequent homeowner retains ownership to the end of the initial 20-year
period (for 16 years, in the example), the entire amount of the note
would be forgiven.
(c) Limitation on Equity Interest an Initial Homeowner May Retain
from Sale During First Six Years. (1) The HOPE program is designed to
assure that an initial or subsequent homeowner does not receive any
undue profit from acquiring a unit under the program and that, to the
extent the sales price is sufficient, an initial homeowner recovers the
equity interest in the property. With respect to any sale by an initial
homeowner during the first six years after acquisition, the family may
retain only the amount computed under paragraph (c) of this section.
Any excess shall be distributed as provided in paragraph (d) of this
section. The amount of equity an initial homeowner has in the property
is determined by computing the sum of the following --
(i) The contribution to equity paid by the family (such as any down
payment (in the form of cash or the value of sweat equity) and any
amount paid towards principal on a mortgage loan during the period of
ownership);
(ii) The value of any improvements installed at the expense of the
family during the family's tenure as owner (including improvements made
through sweat equity), as determined by the recipient or other entity
specified in the approved application based on evidence of amounts spent
on the improvements, including the cost of material and labor; and
(iii) The appreciated value, determined by applying the Consumer
Price Index (Urban Consumers) against the contribution to equity under
paragraphs (c)(1) (i) and (ii) of this section.
(2) The recipient (or other entity) may, at the time of initial sale,
enter into an agreement with the family to set a maximum amount which
this appreciation may not exceed.
(3) Amounts that count towards a family's equity may not also count
towards the match.
(d) Use of Amounts a Family May Not Retain. Fifty percent of any
portion of the net sales proceeds that may not be retained by the
homeowner under paragraphs (a)(1)(ii), (b), and (c) of this section
shall be paid to the entity that transferred ownership interests in
units to eligible families, or another entity specified in the approved
application, for use for improvements to properties under the program,
business opportunities for low-income families, supportive services
related to the homeownership program, additional homeownership
opportunities, and other activities approved by HUD in the approved
homeownership program or later. The remaining 50 percent shall be
collected by the recipient and returned to HUD within 15 days of the
sale for use under the HOPE 3 program, subject to any limitations
contained in appropriations Acts.
24 CFR 92.652 Section 725. Use of Proceeds From Sales to Eligible
Families
The entity that transfers ownership interests in units to eligible
families, or another entity specified in the approved application, shall
use the proceeds, if any, from the initial sale for costs of the
homeownership program, including improvements to properties under the
program, business opportunities for low-income families, supportive
services related to the homeownership program, additional homeownership
opportunities, and other activities approved by HUD, either as part of
the approved application or later on request.
24 CFR 92.652 Section 730. Third Party Rights
The requirements under this notice regarding housing quality
standards, resale, or transfer of the ownership interest of a homeowner
shall be judicially enforceable against the recipient with respect to
actions involving rehabilitation, and against purchasers of eligible
property under the HOPE program or their successors in interest (to the
extent such requirements apply to purchasers and their successors in
interest) with respect to other actions by affected low-income families,
RMCs, RCs, PHAs/IHAs, and any agency, corporation, or authority of the
United States government. The parties specified in the preceding
sentence shall be entitled to reasonable attorney fees upon prevailing
in any such judicial action.
24 CFR 92.652 Section 735. Displacement Prohibited; Protection of
Nonpurchasing Residents.
(a) Displacement Prohibited. No person may be displaced from his or
her dwelling as a direct result of a homeownership program under this
notice. This does not preclude terminations of tenancy for violation of
the terms of occupancy of the unit. In addition to any applicable
sanctions under the grant agreement, a violation of this paragraph may
trigger a requirement to provide relocation assistance in accordance
with the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970 and government-wide implementing regulations at 49
CFR part 24.
(b) Temporary Relocation. The recipient shall provide each resident
of an eligible property, who is required to relocate temporarily to
permit work to be carried out, with suitable, decent, safe, and sanitary
housing for the temporary period and shall reimburse the resident for
all reasonable out-of-pocket expenses incurred in connection with the
temporary relocation, including the costs of moving to and from the
temporarily occupied housing and any increase in monthly costs of rent
and utilities.
(c) Relocation Assistance for Residents Who Elect to Move. The
recipient shall provide each nonpurchasing resident who elects to move
with relocation assistance in accordance with the approved homeownership
program. The program shall provide, at least, the following assistance:
(1) Advisory services including timely information, counseling
(including the provision of information on a resident's rights under the
Fair Housing Act), and referrals to suitable, affordable, decent, safe,
and sanitary alternative housing;
(2) Payment for actual, reasonable moving expenses; and
(3) Relocation housing assistance sufficient to permit relocation to
suitable, affordable, decent, safe, and sanitary housing. This
requirement is met if the cost of the housing to the family does not
exceed the higher of 30 percent of adjusted family income or the amount
paid by the family for the unit being vacated, and the housing is
otherwise suitable and decent, safe, and sanitary.
(d) Notice of Relocation Assistance. As soon as feasible, each
recipient shall give each resident of an eligible property a written
description of the applicable provisions of this section.
24 CFR 92.652 Section 740. Cash and Management Information System
(a) General. Disbursement of all approved HOPE 3 planning and
implementation grant funds is managed through HUD's Cash and Management
Information (C/MI) System for the HOPE 3 program. The C/MI System is a
computerized system which manages and disburses HOPE 3 funds, and
collects and reports information on their use. Funds will be disbursed
through the United States Treasury. The United States Treasury account
includes funds awarded to the recipient and obligated through the grant
agreement executed by HUD and the recipient. Recipients will be
required to establish a local account for the receipt of HOPE 3 program
funds.
(b) Disbursement of HOPE 3 Funds. After a recipient executes the
HOPE 3 grant agreement and submits the appropriate banking and security
documents, HOPE 3 funds may be drawn down for general program activities
under a planning or implementation grant, as applicable. HOPE 3 funds
are drawn down from a United States Treasury account for the program by
the recipient by electronic funds transfer. For implementation grants,
all drawdowns related to specific properties will only be allowed if the
individual properties have been entered into the C/MI System (see
paragraph (c) of this section). All funds drawn down will be deposited
in the local account of the HOPE 3 recipient within 48 to 72 hours of
the disbursement request. Any drawdown of HOPE 3 funds from the United
States Treasury account is conditioned upon the submission of
satisfactory information by the HOPE 3 recipient about the program and
compliance with other procedures specified by HUD in HUD's forms and
issuances concerning the C/MI System. Copies of these forms and
issuances may be obtained from HUD field offices. Funds not disbursed
within program deadlines may be automatically deobligated by the C/MI
System.
(c) Property Set-Up (Implementation Grants only). (1) Before
disbursement of any HOPE 3 funds related to specific properties, the
recipient must set up each property in the C/MI System. Disbursements
that require the set up of properties in the C/MI System are all
disbursements related to a specific property including acquisition,
rehabilitation, financial assistance to homebuyers (such as down payment
assistance, interest rate buy-down, and closing cost assistance),
architectural and engineering, permanent and temporary relocation.
Within 10 calendar days of property set up, the recipient is required to
submit a property set up report to HUD for each property set up in the
C/MI System.
(2) If the property set-up report is not received within 20 days of
the property set-up call, the property will be canceled automatically by
the C/MI System. In addition, a property which has been set up in the
C/MI System for 12 months without an initial disbursement of funds may
be canceled by the C/MI System.
(d) Payment Voucher. As post-documentation of each drawdown of funds
from the United States Treasury account, each recipient shall submit a
payment voucher to HUD, for each drawdown, in the form and by the
deadline required by HUD. For implementation grant program
disbursements or planning grant disbursements, the recipient will be
suspended from requesting additional program implementation grant
disbursements or planning grant disbursements until the payment voucher
is received. In addition, for implementation grants, if the payment
voucher is not received within 10 calendar days of the drawndown request
for a specific property, the recipient will be suspended from setting up
new properties until the payment voucher is received by HUD.
(e) Submission of Property Transfer Report. A property transfer
report for all properties assisted with implementation grants must be
submitted to HUD within 15 days of the transfer of the property but no
later than 25 months after the effective date of the grant agreement.
If a satisfactory property transfer report is not submitted by the due
date, HUD will suspend further property set-ups. Property set-ups will
remain suspended until a satisfactory property transfer report is
received and entered into the C/MI System.
(f) Submission of Property Completion Report. A property completion
report for properties assisted with implementation grants must be
submitted to HUD within 30 days of the final disbursement of funds from
all sources for that particular property, but no later than 25 months
after the submission of the property transfer report. If a satisfactory
property completion report is not submitted by the due date, HUD will
suspend further property set-ups for the recipient. Property set-ups
will remain suspended until a satisfactory property completion report is
received and entered into the C/MI system.
24 CFR 92.652 Section 745. Environmental Procedures and Standards
(a) Before any amounts under this program are used to acquire or
rehabilitate an eligible property, HUD shall determine whether the
proposed activities trigger applicability thresholds for the applicable
Federal environmental laws and authorities. These may apply when the
property is (1) located within designated coastal barriers; (2) listed
on, or eligible for listing on, the National Register of Historic
Places; or is located within, or adjacent to, an historic district;
(3) located near hazardous operations handling fuels or chemicals of an
explosive or flammable nature; (4) contaminated by toxic chemicals or
radioactive materials; (5) located within a runway clear zone at a
civil airport or within a clear zone or accident potential zone at a
military airfield; (6) located within a special flood hazard area; (7)
within a location requiring flood insurance protection; or (8) located
within a high noise area.
(b) A recipient may choose to make the threshold reviews itself or
with assistance from State or local governments or qualified persons or
to refer the property to HUD for threshold review. Where the recipient
makes the threshold review itself, it shall submit the result to HUD.
(c) If a recipient chooses not to make the threshold reviews, it
shall submit information to HUD to permit HUD to make the review.
(d) If HUD determines on the basis of the recipient's threshold
review or HUD's threshold review that one or more of the thresholds are
exceeded, HUD shall conduct an environmental review of that issue and,
if appropriate, establish mitigating measures that the recipient shall
carry out for the property unless it decides to select an alternate
property.
(e) HUD will issue a notice specifying applicable threshold and
documentation requirements.
24 CFR 92.652 VIII. Records, Reports, and Audit of Recipients
24 CFR 92.652 Section 801. Recordkeeping
(a) General Records. Each recipient shall keep records that will
facilitate an effective audit to determine compliance with program
requirements and that fully disclose --
(1) the amount and disposition by the recipient of the planning and
implementation grants received under this notice, including sufficient
records that document the reasonableness and necessity of each
expenditure;
(2) the amount and disposition of proceeds from financing obtained in
connection with the program, sales to eligible families, and any funds
recaptured upon sale by the homeowner;
(3) the total cost of the homeownership program;
(4) the amount and nature of any other assistance, including cash,
property, services, or other items contributed as a condition of
receiving an implementation grant;
(5) the cost or other value of all in-kind contributions towards the
match required by Section 410; and
(6) any other proceeds received for, or otherwise used in connection
with, the homeownership program.
(b) Family Size and Income and Racial, Ethnic, and Gender Data. The
recipient shall maintain records on the family size and income, and
racial, ethnic, and gender characteristics, of families who apply for
homeownership and families who become homeowners.
(c) Coopearative and Condominium Agreements. The recipient shall
maintain a copy of any condominium and cooperative association
agreements for properties under the approved homeownership program.
(d) Amounts Available for Reuse. The recipient shall keep and make
available to HUD all records necessary to calculate accurately payments
due to HUD under Section 720(d) and Section 725.
(Approved by the Office of Management and Budget, with respect to
implementation grants, under control 2506-0119)
24 CFR 92.652 Section 805. Reports
The recipient shall submit reports required by HUD. (Approved by the
Office of Management and Budget, with respect to implementation grants,
under control number 2506-0119)
24 CFR 92.652 Section 810. Access by HUD and the Comptroller General
For the purpose of audit, examination, monitoring, and evaluation
each recipient shall give HUD (including any duly authorized
representatives and the Inspector General) and the Comptroller General
of the United States (and any duly authorized representatives) access to
any books, documents, papers, and records of the recipient that are
pertinent to assistance received under this notice, including all
records required to be kept by Section 801.
24 CFR 92.652 IX. Waiver Authority
24 CFR 92.652 Section 901. Waiver Authority
Upon determination of good cause, the Secretary of Housing and Urban
Development may waive any provision of this notice, not otherwise
required by law, except that the provisions that establish deadlines for
receipt of any modifications to applications and the cap on planning
grants in Section 301(b)(2) may not be waived. Each such waiver shall
be in writing and shall be supported by documentation of the pertinent
facts and grounds. This waiver authority may be exercised by the
Secretary or the Assistant Secretary for Community Planning and
Development. Where another HUD program regulation is involved, the
Secretary or the appropriate Assistant Secretary may waive the
regulation. For example, where a waiver to a public and Indian housing
regulation is requested for the HOPE 3 program, it may be waived by the
Assistant Secretary for Public and Indian Housing. The Secretary
periodically will publish notice of granted waivers in the Federal
Register. HUD may change submission deadlines established by this
notice by subsequent notice published in the Federal Register.
(57 FR 1597, Jan. 14, 1992)
24 CFR 92.652 Subtitle A, App. D
24 CFR 92.652 Appendix D to Subpart A -- Shelter Plus Care Program
24 CFR 92.652 I. Introduction
Section 837 of the Cranston-Gonzalez National Affordable Housing Act
(NAHA) amended title IV of the Stewart B. McKinney Homeless Assistance
Act (McKinney Act) by adding subtitle F, which authorizes the Shelter
Plus Care (S+C) Program. The program targets assistance to a part of
the population of the homeless previously underserved by other McKinney
Act programs. The program is designed to link supportive services to
rental assistance for homeless persons with disabilities, primarily
those who are seriously mentally ill, have chronic problems with
alcohol, drugs, or both, or have acquired immunodeficiency syndrome
(AIDS) and related diseases.
HUD is required under section 452(b) of the McKinney Act (as amended
by the NAHA) to reserve, to the maximum extent practicable, not less
than 50 percent of all funds for homeless individuals who are seriously
mentally ill or have chronic drug or alcohol problems. HUD expects this
requirement to be met by the combined effect of selection criteria that
will award up to 40 percent of the points for applications proposing to
serve persons with those disabilities, and primarily homeless persons
whose nighttime residence is a public or private place not designed for,
or ordinarily used as, a regular sleeping accommodation for human beings
(e.g., ''street persons'').
A nationwide study of the homeless by the Urban Institute in 1987
supports the expectation that these two selection criteria will result
in the 50 percent requirement being met. In that study, conducted for
the Food and Nutrition Service of the U.S. Department of Agriculture,
the Urban Institute interviewed a sample of homeless using soup kitchens
and shelters (''service users'') in a representative sample of 20 cities
with populations over 100,000. The study also examined those homeless
who used neither soup kitchens nor shelters (''non-service users''),
although the sample size was smaller and less statistically valid. The
study found that there were no families in the non-service users sample
-- i.e., street persons were homeless individuals. This latter group is
generally characterized as street people. The study provided data on
the data on both groups. It found that non-service users were much more
likely to be mentally ill or have a history of substance abuse. For
example, 27 percent of the non-service using homeless had a history of
mental hospitalization, as compared to 19 percent of the service using
homeless. Almost twice as many of the non-service using homeless are
dually diagnosed (i.e., those with both mental illness and substance
abuse problems).
After the initial funding round, if HUD finds that the use of the two
selection criteria does not result in the 50 percent requirements being
met, it will reconsider this approach.
The S+C Program provides rental assistance through three components:
(1) A new homeless rental housing assistance program (S+C/HRHA); (2) an
expansion of the section 8 Moderate Rehabilitation Program for Single
Room Occupancy Dwellings for Homeless Individuals (S+C/SRO); and (3) a
program for rental housing assistance under section 202 of the Housing
Act of 1959 or its successor program under section 811 of the NAHA
(S+C/202). Applicants may apply for assistance under any one of the
three components, or a combination. Selection will be on a competitive
basis nationwide under selection criteria described in these Guidelines.
Section 455(b) of the McKinney Act, as amended by section 837 of the
NAHA, provides that no more than 10 percent of the assistance available
for any fiscal year may be used for programs located within any one unit
of general local government. Since each component of the S+C Program
has a separate appropriation, HUD will limit the amount of assistance
any one unit of local government may receive to no more than 10 percent
of the amount available for each component program being funded.
HUD will provide rental assistance under the S+C/HRHA and S+C/202
components for a five-year period, and under the S+C/SRO component for a
ten-year period. Recipients must match the rental assistance by
supportive services that are equal in value to the aggregate amount of
rental assistance and appropriate to the needs of the population to be
served.
Recipients must provide housing and supportive services for the full
term of the grant. However, recipients may find that some participants
do not require supportive services, or the same intensity of supportive
services, for the entire grant period. The program is designed to be
sufficiently flexible to allow recipients to tailor their programs to
the changing housing and services needs of the people served.
Recipients may provide a variety of housing situations, such as group
settings or individual units in the community, reflecting a range of
care situations from sheltered to independent living. HUD will require
applicants in metropolitan areas to request assistance for a minimum of
50 units, and applicants in non-metropolitan areas, 30 units. (In the
case of group homes, for this purpose a ''resident'' is considered a
''unit,'' i.e., a group home for six persons is six units.) In this way,
programs will be large enough to justify the time and expense of local
coordination and administration, as well as provide a sound basis for
evaluation.
Since enactment in 1987, subtitle A of title IV of the McKinney Act
(as implemented by HUD at 24 CFR part 90) has required that assistance
under title IV could not be provided to or within the jurisdiction of a
State or local government unless the jurisdiction had a HUD-approved
Comprehensive Homeless Assistance Plan (CHAP) and the applicant had
obtained a certification of consistency with the CHAP. Section 105 of
the NAHA has created a new planning document for use by States as well
as units of general local government -- the Comprehensive Housing
Affordability Strategy (CHAS). The CHAS incorporates elements of the
CHAP and will eventually replace it for almost all jurisdictions.
(Indian tribes will not be required to submit a CHAS.)
With respect to many of the programs, including the S+C Program, for
which a certification of consistency is required, HUD has the discretion
to continue using the CHAP for a period of time. The Department is
exercising its authority to provide for a transition from the CHAP until
October 31, 1991, so that jurisdictions need not submit a CHAS before
October 1991. If funding for the S+C Program becomes available and
applications for assistance are submitted before October 31, 1991, a
certification of consistency with the CHAP will be sufficient to meet
the requirement. HUD will publish an interim rule (24 CFR part 91) in
the near future prescribing the requirements for development of a CHAS,
which will be effective for the S+C Program after October 31, 1991.
Other program requirements are described below, as well as
descriptions of the three components, details on the submission of
applications, selection criteria, and other requirements.
24 CFR 92.652 II. Definitions
For purposes of the S+C Program:
Acquired immunodeficiency syndrome (AIDS) and related diseases means
the disease of AIDS or any conditions arising from the etiologic agent
for AIDS.
Applicant means
(1) In the case of rental housing assistance under the S+C/HRHA and
S+C/202, a State, unit of general local government, or Indian tribe;
and
(2) In the case of S+C/SRO, (i) a State, unit of general local
government, or Indian tribe that will be responsible for assuring the
provision of supportive services and the overall administration of the
program, and (ii) a public housing agency (PHA) that will be primarily
responsible for administering the housing assistance under S+C/SRO.
Eligible person means a homeless person with disabilities (primarily
persons who are seriously mentally ill, have chronic problems with
alcohol, drugs, or both, or have AIDS and related diseases) and the
family of such a person. (In the case of S+C/SRO, only individuals
meeting the definition of this paragraph are eligible persons, and not
the families of such individuals.) To be eligible for assistance,
persons in the S+C/HRHA and S+C/202 components must be very low income,
as defined in this section; and individuals in the S+C/SRO component
must be low income, as defined in this section, or primarily very low
income. Limitations on the percentage of non-very low income
individuals assisted in the S+C/SRO component apply consistent with 24
CFR part 813.
Homeless or homeless individual includes
(1) An individual who lacks a fixed, regular, and adequate nighttime
residence; and
(2) An individual who has a primary nighttime residence that is --
(i) A supervised publicly or privately operated shelter designed to
provide temporary living accommodations (including welfare hotels,
congregate shelters, and transitional housing for the mentally ill);
(ii) An institution that provides a temporary residence for
individuals intended to be institutionalized; or
(iii) A public or private place not designed for, or ordinarily used
as, a regular sleeping accommodation for human beings.
The term ''homeless'' or ''homeless individual'' does not include any
individual imprisoned or otherwise detained pursuant to an Act of the
Congress or a State law.
HUD means the Department of Housing and Urban Development.
Indian tribe means any Indian tribe, band, group, and nation,
including Alaska Indians, Aleuts, and Eskimos and any Alaskan Native
Village, of the United States, which is considered an eligible recipient
under the Indian Self-Determination and Education Assistance Act (Pub.
L. 93-638) or under the State and Local Fiscal Assistance Act of 1972
(Pub. L. 92-512).
Low income means an annual income not in excess of 80 percent of the
median income for the area, as determined by HUD. HUD may establish
income limits higher or lower than 80 percent of the median income for
the area on the basis of its finding that such variations are necessary
because of the prevailing levels of construction costs or unusually high
or low family incomes.
Person with disabilities means a household composed of one or more
persons at least one of whom is an adult who has a disability. A person
shall be considered to have a disability if such person has a physical,
mental, or emotional impairment which --
(1) Is expected to be of long-continued and indefinite duration;
(2) Substantially impedes his or her ability to live independently;
and
(3) Is of such a nature that such ability could be improved by more
suitable housing conditions.
A person will also be considered to have a disability if he or she
has a developmental disability, which is a severe, chronic disability
that --
(1) Is attributable to a mental or physical impairment or combination
of mental and physical impairments;
(2) Is manifested before the person attains age 22;
(3) Is likely to continue indefinitely;
(4) Results in substantial functional limitations in three or more of
the following areas of major life activity: (i) Self-care, (ii)
receptive and expressive language, (iii) learning, (iv) mobility, (v)
self-direction, (vi) capacity for independent living, and (vii) economic
self-sufficiency; and
(5) Reflects the person's need for a combination and sequence of
special, interdisciplinary, or generic care, treatment, or other
services which are of lifelong or extended duration and are individually
planned and coordinated.
Notwithstanding the preceding provisions of this paragraph, the term
''person with disabilities'' includes, except in the case of the S+C/SRO
component, two or more persons with disabilities living together, one or
more such persons living with another person who is determined to be
important to their care or well-being, and the surviving member or
members of any household described in the first sentence of this
definition who were living, in a unit assisted under the S+C Program,
with the deceased member of the household at the time of his or her
death. (In any event, with respect to the surviving member or members
of a household, the right to rental assistance under the S+C Program
will terminate at the end of the grant period under which the deceased
member was a participant.)
Participant means an eligible person who has been selected to
participate in the S+C Program.
Public housing agency, or PHA, means any State, county, municipality,
or other governmental entity or public body (or agency or
instrumentality thereof), including any Indian Housing Authority, which
is authorized to engage in or assist in the development or operation of
low income housing.
Recipient means an applicant approved for participation in the S+C
Program.
Secretary means the Secretary of HUD.
Section 202 sponsor means any private nonprofit entity, no part of
the net earnings of which inures to the benefit of any private
shareholder, contributor or individual, which entity is not controlled
by, or under the direction of persons or firms seeking to derive profit
or gain therefrom, which is approved by HUD as to administrative and
financial capacity and responsibility, and which has effective nonprofit
tax-exempt ruling under the Internal Revenue Code. ''Sponsor'' does not
mean a public body or the instrumentality of a public body. No officer
or director of the Sponsor is permitted to have any financial interest
in any contract in connection with the rendition of services, the
provision of goods or supplies, procurement of furnishings and
equipment, construction of the project, procurement of the site or other
matters whatsoever. The Sponsor may receive a management fee from the
recipient for managing the leased units under the S+C Program.
Seriously mentally ill means having a severe and persistent mental or
emotional impairment that seriously limits a person's ability to live
independently.
State means each of the several States, the District of Columbia, and
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Northern Mariana Islands, the Trust Territory of the Pacific
Islands, and any other territory or possession of the United States.
Supportive services means assistance that --
(1) Addresses the special needs of eligible persons; and
(2) Provides appropriate services or assists such persons in
obtaining appropriate services, including health care, mental health
treatment, substance and alcohol abuse services, child care services,
case management services, counseling, supervision, education, job
training, and other services essential for achieving and maintaining
independent living.
Inpatient acute hospital care does not qualify as a supportive
service.
Supportive service provider, or service provider, means a person or
organization licensed or otherwise qualified to provide supportive
services. Such a person or organization may provide the services for
profit or not for profit.
Unit of general local government means any city, county, town,
township, parish, village, or other general purpose political
subdivision of a State; Guam, the Northern Mariana Islands, the Virgin
Islands, and American Samoa, or a general purpose political subdivision
thereof; a combination of such political subdivisions recognized by the
Secretary; the District of Columbia; and the Trust Territory of the
Pacific Islands. Such term also includes a State or a local public body
or agency (as defined 711 of the Housing and Urban Development Act of
1970), community association, or other entity, which is approved by the
Secretary for the purpose of providing public facilities or services to
a new community as part of a program meeting the eligibility standards
of section 712 of the Housing and Urban Development Act of 1970 or title
IV of the Housing and Urban Development Act of 1968.
Very low income means an annual income not in excess of 50 percent of
the median income for the area, as determined by HUD, with adjustments
for smaller and larger families. HUD may establish income limits higher
or lower than 50 percent of the median income for the area on the basis
of its finding that such variations are necessary because of unusually
high or low family incomes.
24 CFR 92.652 III. Housing Standards; Rent Reasonableness; Vacancy Payments
24 CFR 92.652 A. Housing Standards
The housing to be provided must meet the applicable housing quality
standards (HQS) under Section 8 of the U.S. Housing Act of 1937 (1937
Act). For housing provided under the S+C/HRHA and S+C/202 components,
the HQS are described in 24 CFR 882.109, and for housing provided under
the S+C/SRO, in 24 CFR 882.803(b).
Before any assistance will be provided on behalf of a participant,
the recipient, or another entity acting on behalf of the recipient
(other than the entity providing the housing), must physically inspect
each unit to assure that the unit meets the HQS. Assistance will not be
provided for units that fail to meet the HQS, unless the owner corrects
any deficiencies within 30 days from the date of the lease agreement and
the recipient verifies that all deficiencies have been corrected.
Recipients will also be required to make physical inspections of all
units at least annually during the grant period to ensure that the units
continue to meet the HQS.
24 CFR 92.652 B. Rent Reasonableness
For the S+C/HRHA and S+C/202 components, the recipient must determine
whether the rent charged for the unit is reasonable in relation to rents
being charged for comparable unassisted units, taking into account the
location, size, type, quality, amenities, facilities, and management and
maintenance service of each unit, as well as not in excess of rents
currently being charged by the same owner for comparable unassisted
units. HUD will not provide assistance for units for which the rent is
not reasonable. For the S+C/SRO component, the PHA will calculate a
rent for the unit based on cost, in accordance with 24 CFR 882.805(g).
24 CFR 92.652 C. Vacancy Payments
If a participant vacates a unit before the expiration of the
occupancy agreement, no assistance payment may be made for that unit
after the month during which it was vacated. No additional assistance
will be paid until it is occupied by another eligible person. In
programs serving homeless persons, the need for units is such that the
owner should be able to fill vacancies quickly, particularly since
outreach to potential eligible persons is expected to be an integral
part of the S+C Program. (As used in this paragraph, the term
''vacates'' does not include brief periods of inpatient care.)
24 CFR 92.652 IV. Supportive Services
To qualify for assistance under the S+C Program, applicants must
demonstrate that they will provide or secure supportive services
appropriate to the needs of the population being served and at least
equal in value to the aggregate amount of rental assistance funded by
HUD. The supportive services or funding for the services may be
provided by other Federal, State, local, or private programs.
Recipients may contract with supportive service providers to furnish the
services.
The supportive services must be provided for the entire five-year
term of the rental assistance, or, in the case of the S+C/SRO Program,
the ten-year term. However, HUD recognizes that the amount of
supportive services needed by many participants in a program will be
much greater when a participant enters the program, and that the need
may diminish as participants become more self-sufficient and the
services may not be necessary for the entire period a participant is in
the program. The applicant will be required to state the total value of
the services, by source, to be provided over the grant period, although
the amounts will not necessarily be an equal match to rental assistance
on a year-to-year basis.
In calculating the amount of the matching supportive services,
applicants may also include: (1) The value of any lease on a building,
provided the building is used for the provision of supportive services
and the value included in the match is no more than the prorated share
used for the S+C Program; (2) salaries paid to staff of the recipient
(except PHA recipients under the S+C/SRO component) to carry out the S+C
Program; and (3) the value of supportive services provided by other
persons or organizations to participate in the S+C Program. The value
of time and services contributed by volunteers to the program may also
be included at the rate of $5.00 an hour.
If the supportive services and funding for the services are not
provided substantially in accordance with the recipient's description of
the nature, source, and timing of such aid, HUD may recapture any
unexpended housing assistance.
24 CFR 92.652 V. Rent Payments; Occupancy Agreements; Termination of Assistance
24 CFR 92.652 A. Rent Payments by Participants
Participants in the S+C Program must pay rent in accordance with
section 3(a)(1) of the 1937 Act. Although most homeless persons may not
have an income when they enter the S+C Program, it is not unreasonable
to expect that, through the supportive services, many would at some
point become gainfully employed or would being receiving income support
payments (e.g., Supplemental Security Income or State equivalent).
Under section 3(a)(1), each participant must pay the highest of: (1) 30
percent of the family's monthly adjusted income (adjustment factors
include the number of people in the family, age of family members,
medical expenses, and child care expenses); (2) 10 percent of the
family's monthly income; or (3) if the family is receiving payments for
welfare assistance from a public agency and a part of the payments,
adjusted in accordance with the family's actual housing costs, is
specifically designated by the agency to meet the family's housing
costs, the portion of the payments that is so designated; except that
the gross income of a person occupying an intermediate care facility
assisted under title XIX of the Social Security Act shall be the same as
if the person were being assisted under title XVI of the Social Security
Act. Detailed information with respect to calculating income for rent
determination is contained in 24 CFR 813.106.
Recipients must examine the participant's income initially to
determine the amount of rent payable by the participant. Recipients
must also reexamine a participant's income in accordance with 24 CFR
813.109 at least annually during the period of time the participant is
receiving rental assistance, and make any adjustments to the
participant's rental payment as necessary. Participants should be
required to provide the recipient information at any time regarding
subsequent employment.
For the S+C/SRO component, these responsibilities are specified in 24
CFR 882.808, and for the S+C/202 component, in 24 CFR 885.950. For the
S+C/HRHA component, the recipient must require, as a condition of
participation in the program, that each participant agree to supply such
certification, release, information, or documentation as the recipient
determines necessary to verify the participant's income.
24 CFR 92.652 B. Participant Occupancy Agreements
Participants in the S+C Program must execute an initial occupancy
agreement with the recipient or the entity providing the housing for a
term of at least one month, automatically renewable upon expiration,
except on prior notice. Other HUD programs require such agreements for
one-year periods. However, this requirement is believed to be
inappropriate for the S+C Program because of the characteristics of the
homeless population to be served. An agreement to occupy the unit for
at least a month, however, is not unreasonable, and will help to create
a sense of commitment to the program.
The occupancy agreement may include provisions not normally included
in a standard lease agreement. For example, the agreement should
provide that the tenant must participate in the supportive services
provided through the S+C Program as a condition of continued occupancy.
Assistance to participants who violate S+C Program requirements or the
occupancy agreement may be terminated in accordance with requirements
described below.
24 CFR 92.652 C. Termination of Assistance to Participants
Assistance to participants in a S+C Program may be terminated if the
participant violates program requirements or conditions of occupancy.
However, recipients should exercise judgment in determining when
violations are serious enough to warrant termination. For example, for
one of the target groups-substance abusers -- relapse is a common
occurrence, with many failing repeatedly before they finally succeed.
Similarly, seriously mentally ill persons may demonstrate inappropriate
behavior requiring clinical intervention. Recipients will be expected
to do as much as possible to ensure the adequacy of supportive services
so that a participant's assistance is terminated only in the most severe
cases, as stated in the occupancy agreement. Even after termination,
recipients should attempt to bring the person back into the program.
In terminating assistance to any program participant, recipients must
provide a formal process that recognizes the rights of individuals
receiving assistance to due process of law. This process, at a minimum,
must consist of: (1) Serving the participant with a written notice
containing a clear statement of the reasons for termination; (2) a
review of the decision, in which the participant is given the
opportunity to present written or oral objections before a person other
than the person (or a subordinate of that person) who made or approved
the termination decision; and (3) prompt written notification of the
final decision to the participant.
24 CFR 92.652 VI. Outreach
Recipients are required to use their best efforts to obtain the
participation of eligible persons who have previously not been assisted
under programs designed to assist the homeless or have been considered
not capable of participation in these programs. These efforts should be
primarily directed toward eligible persons who have a primary nighttime
residence that is a public or private place not designed for, or
ordinarily used as, a regular sleeping accommodation for human beings
(''street persons'').
24 CFR 92.652 VII. Environmental Matters
24 CFR 92.652 A. Environmental Review
The environmental effects of each application must be assessed in
accordance with the provisions of the National Environmental Policy Act
of 1969 (42 U.S.C. 4320) (NEPA) and the related environmental laws and
authorities listed in 24 CFR part 58. Section 443 of the McKinney Act
provides that the regulations and procedures applicable under section
104(g) of the Housing and Community Development Act of 1974 are to be
applied to programs under Title IV of the McKinney Act. Section 104(g)
authorizes HUD to assign the Federal environmental responsibilities to
grantees deemed to have the legal capacity for environmental review
(States, metropolitan cities, urban counties, and other units of general
local government) and to define how the responsibilities are to be
performed. Part 58 describes the requirements for grantees that assume
the responsibilities.
With the exception of PHAs, all applicants under the S+C Program have
the legal capacity for environmental review under section 104(g), and
HUD believes that the objectives of the S+C Program can best be served
by a consolidation of environmental review responsibilities at the
applicant level. Therefore, applicants will be required to assume the
responsibility for environmental review, decisionmaking, and action for
each application for assistance in accordance with part 58. PHAs do not
have the legal capacity for environmental review under section 104(g);
however, co-applicants of PHAs under the S+C/SRO component (i.e.,
States, units of general local governments, or Indian tribes) will be
required to assume the responsibility for environmental review.
HUD will approve applications subject to the completion of
environmental reviews within a reasonable time after selection for
funding. An assurance that the applicant will assume all environmental
review responsibility, including acceptance of jurisdiction of the
Federal courts, must be included in the application.
Applicants may adopt relevant and adequate prior reviews conducted by
HUD or another governmental entity if the reviews meet the particular
requirements of the Federal environmental law or authority under which
they would be adopted, and only under certain conditions (e.g., a
determination that no environmentally significant changes have occurred
since the review was done). Applicants that adopt such relevant and
adequate prior reviews may include the environmental certification and
Request for Release of Funds with their applications.
24 CFR 92.652 B. Location in Floodplain
Applications for rental assistance for housing that will be located
in any 100-year floodplain, as designated by the Federal Emergency
Management Agency (FEMA), are subject to the floodplain review
requirements of Executive Order 11988, Floodplain Management (May 24,
1977). Executive Order 11988 review, as referenced under part 58, is to
be performed during the environmental review.
Any intermediate care facilities for the mentally retarded and
individuals with related conditions must be treated as ''critical
actions'' under Executive Order 11988, and require consideration of any
500-year floodplain, as required under 24 CFR 885.740(b).
24 CFR 92.652 VIII. Nondiscrimination and Equal Opportunity
24 CFR 92.652 A. General
Recipients may establish a preference as part of their admissions
procedures for one or more of the statutorily targeted populations
(i.e., seriously mentally ill, alcohol or drug abusers, or persons with
AIDS and related diseases). However, other eligible disabled homeless
persons must be considered for housing designed for the target
population unless the recipient can demonstrate that there is sufficient
demand by the targeted group for the units, and other eligible disabled
homeless persons would not benefit from the primary supportive services
provided.
24 CFR 92.652 B. Compliance With Requirements
Recipients serving a designated population of homeless persons must,
within the designated population, comply with the following requirements
for nondiscrimination on the basis of race, color, religion, sex,
national origin, age, familial status, and handicap:
1. Fair Housing Requirements. The requirements of the Fair Housing
Act (42 U.S.C. 3601-19) and implementing regulations at 24 CFR part 100;
Executive Order 11063 (Equal Opportunity in Housing) and implementing
regulations at 24 CFR part 107; and Title VI of the Civil Rights Act of
1964 (42 U.S.C. 2000d) (Nondiscrimination in Federally Assisted
Programs) and implementing regulations issued at 24 CFR part 1.
2. Discrimination on the Basis of Age or Handicap. The prohibitions
against discrimination on the basis of age under the Age Discrimination
Act of 1975 (42 U.S.C. 6101-6107) and implementing regulations at 24 CFR
part 146, and the prohibitions against discrimination against
handicapped individuals under section 504 of the Rehabilitation Act of
1973 (29 U.S.C. 794) and implementing regulations at 24 CFR part 8.
3. Employment Opportunities. The requirements of Section 3 of the
Housing and Urban Development Act of 1968 (12 U.S.C. 1701u) (Employment
Opportunities for Lower Income Persons in Connection With Assisted
Projects).
4. Minority and Women's Business Enterprises. The requirements of
Executive Orders 11625, 12432, and 12138. Consistent with HUD's
responsibilities under these Orders, recipients must make efforts to
encourage the use of minority and women's business enterprises in
connection with funded activities.
5. Affirmative Outreach. If the procedures that the recipient
intends to use to make known the availability of the S+C Program are
unlikely to reach persons of any particular race, color, religion, sex,
age, national origin, familial status, or handicap who may qualify for
assistance, the recipient must establish additional procedures that will
ensure that interested persons can obtain information concerning the
assistance.
6. Disability Requirements -- Fair Housing Act and Section 504. The
recipient must comply with the reasonable modification and accommodation
requirements of the Fair Housing Act and, as appropriate, the
accessibility requirements of the Fair Housing Act and Section 504 of
the Rehabilitation Act of 1973, as amended.
24 CFR 92.652 IX. Other Federal Requirements
24 CFR 92.652 A. OMB Circulars
The policies, guidelines, and requirements of 24 CFR part 85 (as
codified pursuant to OMB Circular No. A-102 and OMB Circular No. A-87)
apply to the acceptance and use of funds under the program by
recipients. Recipients are also subject to the audit requirements
described in 24 CFR part 44.
24 CFR 92.652 B. Drug-Free Workplace
Under Section 401 of the McKinney Act, recipients are required to
administer, in good faith, a policy designed to ensure that homeless
facilities are free from the illegal use, possession, or distribution of
drugs or alcohol by its residents. Recipients must also certify that
they will provide a drug-free workplace, in accordance with the
Drug-Free Workplace Act of 1988 and HUD's implementing regulations at 24
CFR part 24, subpart F.
24 CFR 92.652 C. Anti-Lobbying Certification
Section 319 of Public Law 101-121 prohibit recipients of Federal
contracts, grants, and loans from using appropriated funds for lobbying
the Executive or Legislative Branches of the Federal Government. A
common rule governing the restrictions on lobbying was published as an
interim rule on February 26, 1990 (55 FR 6736) and supplemented by a
Notice published June 15, 1990 (55 FR 24540). The rule requires
applicants, recipients, and subrecipients of assistance exceeding
$100,000 to certify that no Federal funds have been or will be spent on
lobbying activities in connection with the assistance. The rule also
requires disclosures from applicants, recipients, and subrecipients if
nonappropriated funds have been spent or committed for lobbying
activities if those activities would be prohibited if paid with
appropriated funds. The law provides substantial monetary penalties for
failure to file the required certification or disclosure.
24 CFR 92.652 D. Debarred or Suspended Contractors
The provisions of 24 CFR part 24 apply to the employment, engagement
of services, awarding of contracts, or funding of any contractors or
subcontractors during any period of debarment, suspension, or placement
in ineligibility status.
24 CFR 92.652 E. Conflict of Interest
In addition to the conflict of interest requirements in OMB Circular
A-102 and 24 CFR part 85, no person who is an employee, agent,
consultant, officer, or elected or appointed official of the recipient
and who exercises or has exercised any functions or responsibilities
with respect to assisted activities, or who is in a position to
participate in a decisionmaking process or gain inside information with
regard to such activities, may obtain a personal or financial interest
or benefit from the activity, or have an interest in any contract,
subcontract, or agreement with respect thereto, or the proceeds
thereunder, either for himself or herself or for those with whom he or
she has family or business ties, during his or her tenure or for one
year thereafter.
24 CFR 92.652 F. Displacement, Relocation and Acquisition
The recipient must comply with the requirements of the Uniform
Relocation Assistance and Real Property Acquisition Policies Act of
1970, as amended (URA), implementing regulations at 49 CFR part 24, and
HUD Handbook 1378, Tenant Assistance, Relocation and Real Property
Acquisition.
24 CFR 92.652 X. Components
24 CFR 92.652 A. Homeless Rental Housing Assistance (S+C/HRHA)
The S+C/HRHA component provides grants to be used for rental
assistance in accordance with a flexible housing plan to be developed by
the applicant to fit the needs of the homeless population to be served.
Rental assistance will be provided for a five-year period.
The amount of rental assistance provided to an applicant will be
based on the number and type of units proposed to be assisted for the
five-year period. The grant per unit may not exceed the appropriate
Section 8 Fair Market Rent (FMR) for Existing Housing in effect for the
area at the time the application is approved, including any exceptions
based on unit size approved by HUD under 24 CFR 882.106(a)(3). (HUD
publishes a schedule of FMRs annually on or before October 1 to take
effect on that date. The relation between the FMRs and the type of unit
is explained in 24 CFR 882.106. Instructions on calculating the amount
of assistance using the FMRs as the basis will be included in the
application package.) Assistance for the individual tenant (participant)
will be in the form of rental assistance payments equal to the rent for
the unit, including utilities, minus the portion of the rent payable by
the tenant under section 3(a)(1) of the 1937 Act. The rent may not
exceed the FMR, as described above.
Subject to availability and on demonstration of need, up to 25
percent of the total rental assistance awarded may be spent in any one
of the five years, or a higher percentage if approved by HUD, where the
applicant provides evidence satisfactory to HUD that it is financially
committed to providing the housing assistance described in the
application for the full five-year period. Any amounts not needed for a
year during the grant period may be used to increase the amount
available in subsequent years.
Applicants must give assurance that the assistance provided by HUD,
and any amounts provided from other sources, are managed so that the
housing assistance described in the application is provided for the full
term of the grant, or that applicants will provide any shortfall, if
necessary.
Recipients under the S+C/HRHA component may contract with a PHA or
other entity approved by HUD to administer the housing assistance. Up
to seven percent of the amount of assistance awarded may be used to pay
the costs of administering the housing assistance.
S+C/HRHA recipients may offer participants a variety of housing
types, such as group homes or independent living units. Group homes may
not serve more than 15 persons on one site, and independent living units
for seriously mentally ill persons no more than 20 persons on one site.
Rental assistance under this component may not be used for units that
are currently receiving Federal funding under other HUD programs.
Where it is necessary to facilitate coordination of supportive
services and housing, a recipient may require that a participant live
within a particular area of the locality for the period of
participation, or may require a participant to live in a particular
structure or unit during the first year and a particular area the
remainder of the time.
Each recipient under the S+C/HRHA component must develop, and make
available to the public, its procedures for managing the rental housing
assistance funds provided by HUD. At a minimum, such procedures must
describe how eligible homeless persons will be selected to participate
in the program; how they will be placed in, or assisted in finding,
appropriate housing; to whom, and under what conditions, rental housing
assistance will be paid; and what safeguards will be used to prevent
the misuse of these funds.
24 CFR 92.652 B. Section 8 Moderate Rehabilitation Program for Single
Room Occupancy Dwellings for Homeless Individuals (S+C/SRO)
HUD's current Section 8 Moderate Rehabilitation Program for Single
Room Occupancy Dwellings for Homeless Individuals (Mod Rehab
SRO-Homeless) was authorized by section 441 of the McKinney Act to
provide rental assistance for homeless individuals in rehabilitated SRO
housing. The Mod Rehab SRO-Homeless Program provides funds under an
Annual Contributions Contract (ACC) to local PHAs to make rental
assistance payments to participating owners of rental property on behalf
of homeless individuals who rent rehabilitated SRO housing units. PHAs
are responsible for selecting properties that are suitable for
assistance and for identifying landlords who are willing to participate.
PHAs then enter into a formal agreement with the property owner to make
any repairs and improvements necessary to meet HUD standards and local
fire and safety requirements. Although HUD does not provide financing
for the actual rehabilitation, the cost of rehabilitation can be
reflected in the contract rents, which are calculated by the PHA and
include the costs of owning, managing, and maintaining the property.
The regulations governing the Mod Rehab SRO-Homeless Program are set
forth in 24 CFR part 882, subpart H. Those regulations will also govern
the S+C/SRO component, except where they conflict with any requirements
of the S+C Program described in this Notice.
Property eligibility requirements are described in 24 CFR 882.803(a).
Under 882.803(a)(2)(ii), property owned by a PHA administering the ACC
is ineligible for assistance. Section 548 of the NAHA lifted the bar on
PHA ownership of units assisted under section 8. However, the
Department believes that section 548 cannot be implemented without
regulatory guidance, which is being developed in the context of another
rule. Since the Department does not anticipate publication of a rule
implementing section 548 before the end of Fiscal Year 1991, units owned
by the PHA (or by an entity controlled by the PHA) administering the ACC
under which assistance is to be provided will not be eligible in any
program funded in Fiscal Year 1991.
Assistance under the S+C/SRO component will be in the form of rental
assistance payments, which equal the rent for the unit, including
utilities, minus the portion of the rent payable by the tenant under
section 3(a)(1) of the 1937 Act. Maximum gross rents for SRO units are
established at 75 percent of the 0-bedroom Moderate Rehabilitation FMR,
which is 120 percent of the Section 8 Existing FMR. The contract will
provide for rental assistance for a period of 10 years, and will also
provide the Secretary with an option to renew the contract for an
additional period of 10 years, subject to the availability of authority.
SRO housing is defined in section 8(n) of the 1937 Act and in 24 CFR
882.802 as a dwelling unit that is not required to contain food
preparation or sanitary facilities. Section 471 of the McKinney Act, as
amended by section 837 of the NAHA, provides that S+C/SRO assistance may
also be used in connection with the moderate rehabilitation of
efficiency units, if the building owner agrees to pay the additional
cost of rehabilitating and operating the efficiency units. The HQS
contained in the Mod Rehab SRO-Homeless rule, set forth in 882.803(b),
also apply to units assisted under S+C/SRO.
Unlike the Mod Rehab SRO-Homeless Program in which PHAs are the only
eligible applicants, in the S+C/SRO component, a State, unit of general
local government, or Indian tribe must be a joint applicant with the
PHA. The governmental entity will be responsible for assuring the
provision of supportive services and the overall administration of the
program, while the PHA will be primarily responsible for administering
the housing assistance.
Upon approval of an application, the Annual Contributions Contract
(ACC) would be, as under Mod Rehab SRO-Homeless, between HUD and the
PHA. There will also be a contract between HUD and the governmental
entity to administer the overall S+C/SRO component and ensure the
provision of supportive services described in the application.
Under the Mod Rehab SRO-Homeless Program, there is no requirement
that homeless individuals have disabilities. Under the S+C/SRO
component, however, participation is limited to homeless individuals
with disabilities, especially individuals who are seriously mentally
ill, have chronic problems with alcohol, drugs, or both, or have AIDS
and related diseases.
The MOD Rehab SRO-Homeless Program requires that a PHA establish a
waiting list and fill vacant units with persons from the waiting list.
Due to the special nature of the population to be served and the
outreach requirements under the S+C/SRO component, PHAs will not be
required to maintain a waiting list for the S+C/SRO component.
24 CFR 92.652 C. Section 202 Rental Assistance (S+C/202)
Section 481 of the McKinney Act, as amended by section 837 of the
NAHA, authorizes assistance under this component to be provided in
connection with rental assistance under section 202 of the Housing Act
of 1959 or its successor program under section 811 of the NAHA for very
low-income eligible persons. Under the S+C/202 component, assistance
for the tenant (participant) will be in the form of rental assistance
payments equal to the rent for the unit, including utilities, minus the
protion of the rent payable by the tenant under section 3(a)(1) of the
1937 Act. The rent may not exceed the FMR, as described below.
Upon approval of an application, HUD will enter into a contract with
the State, unit of local government, or Indian tribe that is the
recipient. The contract will require the governmental entity to
administer the overall S+C/202 component, ensure the provision of
supportive services described in the application, and enter into a
contract with the owner or lessor of housing meeting the requirements of
section 202 of section 811, as appropriate. Owners and lessors must
meet the qualifications of section 202 Sponsors, as defined in this
Notice. Each applicant for the S+C/202 component must involve not more
than one section 202 Sponsor due to the small size of the S+C/202
component.
The program regulations governing section 202 Projects for Nonelderly
Handicapped Families and Individuals are set forth at 24 CFR part 885,
subpart C. Where those regulations are in conflict with the
requirements or definitions of the S+C Program (e.g., persons eligible
for assistance), the provisions of the S+C Program contained in this
Notice must be followed.
Under the Section 202 Nonelderly Handicapped Program, persons whose
sole impairment is drug or alcohol addiction are not eligible for rental
assistance. Under the S+C/202 component, however, homeless persons with
a chronic problem with alcohol or drugs may be considered disabled and
eligible for assistance as long as they meet the three-part test in the
definition of ''person with disabilities.''
S+C/202 rental assistance will be provided for a period of five years
for housing in group homes or independent living units, as described in
885.700. Group homes may not serve more than 15 persons on one site, and
independent living units for seriously mentally ill persons, no more
than 20 persons on one site. Owners or lessors of the housing must
qualify as section 202 Sponsors under the definition contained in this
Notice.
The amount of the assistance reserved in the contract with the
applicant will be based on the number and type of units to be assisted,
and may not exceed the appropriate section 8 Existing Housing FMRs for
such units (including any exceptions based on unit size approved by HUD
under 24 CFR 882.106(a)(3)) in effect at the time the application is
approved. (HUD publishes a schedule of FMRs annually before October 1
to take effect on that date. The relation between the FMRs and the type
of unit is explained in 24 CFR 882.106. Instructions for calculating
the amount of assistance necessary based on FMRs will be included in the
application package.)
Applicants must provide assurance that the assistance provided by the
Secretary, and any amounts provided from other sources, will be managed
so that housing assistance described in the application is provided for
the full five years.
Up to seven percent of the amount of assistance awarded may be used
to pay the Sponsor for administering the housing assistance.
24 CFR 92.652 XI. Application Requirements
At a minimum, applications must contain:
1. Applicant data. Description of ongoing programs conducted by the
applicant and its contractors, and any past experience with similar
programs.
2. Assistance requested. The type of housing assistance requested
(i.e., S+C/HRHA, S+C/SRO, S+C/202 , or a combination), the number and
bedroom size of units requested, and the dollar amount of assistance
requested.
3. Population to be served. A description of the size and
characteristics of the population of eligible persons to be served.
4. Need for program. Identification of the need for the program in
the community to be served.
5. Program plan. A plan for:
(a) Identifying and selecting eligible persons to participate,
including the applicant's proposed definition of the term ''chronic
problems with alcohol or other drugs,'' if homeless persons with
substance abuse problems will be served;
(b) Obtaining participation of eligible persons most in need,
primarily persons who have a primary nighttime residence that is a
public or private place not designed for, or ordinarily used as, a
regular sleeping accommodation for human beings (''street-persons'').
(c) Coordinating the provision of housing assistance and supportive
services;
(d) Ensuring that the supportive service providers are providing a
continuum of supportive services adequate to meet the changing needs of
the persons served; and
(e) Developing individualized housing and supportive services
programs for participants and for monitoring each participant's program
toward achieving identified goals.
6. Supportive services. A description of the supportive services
that the applicant will make available for the population to be served;
a description of the accessibility of the supportive services to the
housing to be provided; the identity of the proposed supportive service
providers (which may be, or include, the applicant) and the
qualifications of the providers; the management and staffing plans of
the providers with respect to the supportive services to be provided; a
description of the matching resources that are expected to be available
to provide the supportive services; reasonable assurances that the
supportive services will be available for the full term of the housing
assistance requested; and a certification from the applicant that it
will fund the supportive services itself if the planned resources do not
become available for any reason.
7. Housing. (a) In the case of rental assistance under S+C/HRHA, a
description of the type, size, and general location of the housing to be
provided; an explanation of how the housing will meet the changing
needs of the population to be served; and identification of the entity
or entities that will administer the housing assistance. When the
recipient proposes to require participants to live in particular
structures or units, and/or particular areas of the locality, an
explanation of the reasons why such structures, units, or areas have
been selected. If not yet selected, an explanation of the procedures
that will be followed in selecting specific structures, units, or areas.
(b) In the case of rental assistance under S+C/SRO, an explanation of
how the housing meets the needs of the population to be served;
identification of the PHA; identification of the specific structures
that the applicant is proposing for rehabilitation and assistance and a
demonstration that the property is eligible under 24 CFR 882.803(a);
evidence of site control or other evidence that the site will be
available for rehabilitation in accordance with the PHA's schedule; a
feasibility analysis, which includes information on the amount and type
of rehabilitation proposed, preliminary rent calculations in accordance
with Mod Rehab program requirements, and the anticipated source of
financing; assurance that the project will not result in displacement;
demonstration that the project meets site and neighborhood standards;
the number of vacant units and the number of total units; and a
schedule for the rehabilitation and occupancy of the project. In
addition, for applications requesting assistance under the S+C/SRO
component, Section 102(b) of the HUD Reform Act (Pub. L. 101-235,
enacted December 15, 1989) requires disclosure of other information
concerning other government assistance to be made available with respect
to the project and parties with a pecuniary interest in the project, and
submission of a report on expected sources and uses of funds to be made
available for the project. Each application must include information to
be required by 24 CFR part 12, the regulation that will implement
Section 102 of the Reform Act. (HUD expects to publish part 12 as a
final rule before the deadline that will be established for the
submission of S+C applications.)
(c) In the case of rental assistance under S+C202, an explanation of
how the proposed housing meets the needs of the population to be served;
description of the process used to select the section 202 Sponsor;
identification of the section 202 Sponsor that will be the owner or
lessor of the property; and identification of the specific structures
in which the Sponsor proposes to house eligible persons.
8. CHAP or CHAS certification. For applications submitted before
October 31, 1991: A certification by the public official responsible
for submitting the Comprehensive Homeless Assistance Plan (CHAP) for the
appropriate jurisdiction, required under section 401 of the McKinney Act
and described in 24 CFR part 90, stating that the proposed activities
are consistent with the Plan. For applications submitted after October
31, 1991: A certification by the public official responsible for
submitting the Comprehensive Housing Affordability Strategy, required
under section 105 of the Cranston-Gonzalez National Affordable Housing
Act and described in 24 CFR part 91, stating that the proposed
activities are consistent with the approved housing strategy of the unit
of general local government within which rental assistance will be
provided.
9. Other. Other certifications, information, or data prescribed by
HUD in the application package.
24 CFR 92.652 XII. Selection Process
The selection process for rental assistance under the S+C Program
will consist of the following stages:
24 CFR 92.652 A. Threshold Review
Applications must meet certain threshold requirements before they are
eligible for ranking under the selection criteria described in this
Notice. The first level of threshold review, which will apply to all
applications, will determine whether the application is adequate in
form, time, and completeness, whether the applicant and the population
to be served are eligible, and whether the proposed supportive services
are cost effective and at least equal in value to the assistance
requested, and whether the limitations on the number of persons who may
be served on one site under the S+C/HRHA and S+C /202 components have
been met. Applications for S+C/SRO and S+C/202 will then be reviewed
further to determined whether they meet other threshold requirements for
those components. In an application contains a request for assistance
for more than one component, and one (or more) of the components fails
to meet the threshold requirements, the remainder of the application
will go forward in the process to the ranking stage. Applicants must
indicate if services are linked to a specific component, so that, if
that component fails under the threshold review, HUD can assess the
feasibility of the program.
1. Threshold requirements for all applications. (a) Form, time, and
adequacy. Applications must be filed in the form prescribed by HUD in
the application package and within the time established in the Notice of
Funds Availability. Applications must contain all applicable
certifications described in this Notice and in the application package
(e.g., CHAP, Drug-Free Workplace, environmental, anti-lobbying).
(b) Applicant eligibility. The applicant must be eligible under the
S+C Program.
(c) Eligible population to be served. The population proposed to be
served by the applicant must be eligible persons under the S+C Program.
(d) Matching. The value of the proposed supportive services must be
equal in value to the requested rental assistance.
2. Threshold requirements, for S+C/SRO applicants. In addition to
the above requirements, applicants for assistance under the S+C/SRO
component must show:
(a) PHA eligibility. The application must demonstrate that the
co-applicant is a PHA.
(b) Site control. The application must identify the specific
structure proposed to be rehabilitated and assisted, and demonstrate
evidence of site control or other evidence that the site will be
available for rehabilitation in accordance with the PHA's schedule.
(c) Feasibility. The application must demonstrate that a preliminary
estimate of the gross rents for the structure, calculated in accordance
with Mod Rehab program requirements, indicate that the project is
feasible within the FMR limitation. The feasibility analysis must
include information on the rehabilitation proposed for the structure and
must address the availability and type of financing to be used.
(d) Eligible property. The application must demonstrate that the
property proposed to be used meets the SRO regulatory definiton at 24
CFR 882.803(a); and that the units to be assisted are currently vacant.
''Currently vacant'' means that the unit is not occupied on and after
the date of the application.
(e) Rehabilitation costs. The application must demonstrate that the
rehabilitation costs are within the minimum limitation of $3,000 per
unit and the maximum limitation of $15,000 per unit.
(f) Site and neighborhood standards. The application must
demonstrate that the project is in compliance with HUD's site and
neighborhood standards, described in 24 CFR 882.803(b)(4).
(g) Completion schedule. The application must demonstrate that the
rehabilitation and occupancy of the project will be completed within 12
months from the date of execution of the ACC.
(h) Disclosure under Reform Act. The application must contain a
disclosure of other information concerning other government assistance
to be made available with respect to the project and parties with a
pecuniary interest in the project, and a report on expected sources and
uses of funds to be made available to the project, in accordance with
Section 102(b) of the HUD Reform Act. HUD expects to publish a final
rule implementing section 102(b) (24 CFR part 12) before any application
deadline is established for the S+C Program.
3. Threshold requirements for S+C/202 applicants. In addition to the
four threshold requirements for all applications, applicants for
assistance under the S+C/202 component must show:
(a) Selection of sponsor. The application must demonstrate that the
process used to select the sponsor was reasonable and equitable.
(b) Sponsor experience. The application must demonstrate that the
Sponsor has previous experience in the development and/or operation of
housing and/or the provision of supportive services related to the needs
of the homeless population to be served.
(c) Sponsor financial stability. The applicant must demonstrate that
the Sponsor has sufficient financial stability to continue in business
for the duration of the rental assistance contract.
(d) Sponsor qualifications. The application must demonstrate that
the Sponsor meets the qualifications of a private nonprofit sponsor as
required under the section 202 Program.
24 CFR 92.652 B. Rating
Applications that fulfill each of the threshold requirements
described above will be rated based on the selection criteria described
in section XIII of these Guidelines, and placed in ranked order.
Successful applicants will be expected to receive points in criteria A,
B, and C.
In cases where the applicant requests assistance under more than one
S+C component, the components will not be separately rated. Rather the
application will be rated as a whole. However, in assigning points in
such cases, HUD will consider the relative importance of each component
(such as the number of persons to be served and the nature, extent, and
location of the supportive services to be provided under each component)
to the likely success of the overall program.
24 CFR 92.652 C. Final Selection
In the final stage of the selection process, the highest-rated
applications will be considered for final selection in accordance with
their ranked order, to the extent funds are available for the component
or components requested. If funds are unavailable for one or more
requested components, only those for which funds are available will be
funded. Section 455(a)(2) of the McKinney Act, as amended by the NAHA,
includes geographic diversity as one of the selection criteria. In
order to achieve geographic diversity, HUD will determine, after
applications are rated and ranked under the selection criteria, whether
each of the four Census Regions contains at least one fundable
application. If not, HUD will substitute the highest ranked
applications in the necessary Census Region for applications at the
bottom of the list of tentatively selected projects.
Before notifying an applicant of its selection for an award of
assistance under the S+C/SRO component, HUD will certify that the amount
of the grant being approved is not more than necessary to provide
affordable housing, as required by section 102 of the HUD Reform Act and
in accordance with 24 CFR part 12.
24 CFR 92.652 XIII. Selection Criteria
Applications remaining in competition after the initial threshold
review will be rated and ranked under the following selection criteria:
24 CFR 92.652 A. Capability of Applicants
HUD will award up to 100 points based on the ability of the
applicant, either directly or through contractors, to develop and
operate the proposed assisted housing and supportive services program.
HUD will consider such factors as the quality of any ongoing programs of
the applicant; the past experience of the applicant in programs serving
the homeless, particularly the population to be served by the proposed
program; the management and staffing plans of the applicant; and other
factors relevant to the applicant's ability.
24 CFR 92.652 B. Need for the Program in the Community
HUD will award up to 100 points based on a demonstration of the need
for housing assistance and supportive services for eligible persons
proposed to be served by the program in the community, particularly the
hard-to-reach homeless. HUD will consider the extent to which the
applicant demonstrates that an unmet need exists through data such as
surveys of local homeless populations and other means of demonstrating
the need for the program.
24 CFR 92.652 C. Appropriateness of Housing and Supportive Services
HUD will award up to 300 points based on the appropriateness of the
proposed assisted housing and supportive services. HUD will consider
the degree to which proposed housing and services are targeted to
specific needs of the population to be served, the comprehensiveness of
the plan in providing a continuum of housing and services to meet the
changing needs of the target population, the qualifications of the
service providers, and the appropriateness of any restrictions on where
participants may live.
24 CFR 92.652 D. Assimilation of Participants Into Community
HUD will award up to 100 points based on the extent to which the
program assimilates participants into the community. HUD will consider
locations for housing and suportive services and any plans the applicant
has for helping participants gain access to neighborhood activities,
services, and institutions.
24 CFR 92.652 E. Service to Hard-to-Reach Homeless Persons
HUD will award up to 200 points based on the extent to which the
program will serve both homeless persons who spend nights in public or
private places not designed for, or ordinarily used as, regular sleeping
accommodations for human beings (i.e., street persons) and those who
reside in emergency shelters. HUD will consider the plans the applicant
has for outreach to this population and for efforts to encourage them to
remain in the housing. In awarding the maximum number of points under
this criterion, HUD will give consideration to both the quality of the
plan and the extent to which street persons will be served.
24 CFR 92.652 F. Service to Targeted Disabilities
HUD will award up to 200 points based on the extent to which the
program will serve persons who are seriously mentally ill, or have
chronic problems with alcohol, drugs, or both, or have AIDS and related
diseases.
24 CFR 92.652 XIV. Grant Agreement
The grant agreement will be between HUD and the recipient. HUD will
hold the recipient responsible for the overall administration of the S+C
Program, including overseeing any contractors. The grant agreement will
provide that the recipient agrees:
-- To operate the program in accordance with the provisions of
these Guidelines and applicable HUD regulations;
-- To conduct an ongoing assessment of the housing assistance and
supportive services required by the participants in the program;
-- To assure the adequate provision of supportive services to the
participants in the program; and
-- To comply with such other terms and conditions, including
recordkeeping and reports (which must include racial and ethnic data on
participants), as the Secretary may establish for purposes of carrying
out the program in an effective and efficient manner.
HUD will enforce the obligations in the grant agreement through such
action as may be necessary, including recapturing assistance awarded
under the program.
24 CFR 92.652 XV. Obligation and Deobligation of Funds
Upon approval of an application for funding and notification to the
applicant, HUD will obligate funds to cover the amount of the approved
assistance. After the initial obligation of funds for S+C/HRHA and
S+C/202, HUD will not make any upward revisions to the amount obligated
for any approved assistance.
HUD may deobligate all or a portion of the amounts approved for
rental assistance if the proposed housing for which funding was approved
or the supportive services proposed in the application are not provided
in accordance with the approved application and the requirements of
these Guidelines. The grant agreement may set forth other circumstances
under which funds may be deobligated, and other sanctions may be
imposed.
HUD may readvertise the availability of funds that have been
deobligated in a notice of fund availability, or may reconsider
applications that were submitted in response to the most recently
published Notice of Funds Availability and select applications for
funding with the deobligated funds. Such selections would be made in
accordance with the selection process described in these Guidelines.
Any selections made using deobligated funds will be subject to
applicable appropriation act requirements governing the use of
deobligated funding authority.
24 CFR 92.652 XVI. Waivers
The Secretary may waive any requirement in this Notice that is not
required by law, whenever it is determined that undue hardship will
result from applying the requirement, or where application of the
requirement would adversely affect the purposes of the S+C Program.
Each waiver will be in writing and will be supported by documentation of
the pertinent facts and grounds. The Secretary periodically will
publish notice of granted waivers in the Federal Register.
24 CFR 92.652 XVII. Other Matters
The collection of information requirements for this program were
submitted to OMB for review under Section 3504(h) of the Paperwork
Reduction Act of 1980. Information on these requirements is provided as
follows:
These guidelines would not constitute a ''major rule'' as that term
is defined in section 1(d) of the Executive Order on Federal Regulations
issued by the President on February 17, 1981. An analysis of the
guidelines indicates that it would not (1) have an annual effect on the
economy of $100 million or more; (2) cause a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or (3) have a significant
adverse effect on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.
A Finding of No Significant Impact with respect to the environment
has been made in accordance with HUD regulations at 24 CFR part 50,
which implement section 102(2)(C) of the National Environmental Policy
Act of 1969. The finding is available for public inspection between
7:30 a.m. and 5:30 p.m. weekdays in the Office of the Rules Docket
Clerk, Office of the General Counsel, Department of Housing and Urban
Development, room 10276, 451 Seventh Street SW., Washington, DC 20410.
These guidelines were listed in the Department's Semiannual Agenda of
Regulations published at 55 FR 44530 on October 29, 1990, under
Executive Order 12291 and the Regulatory Flexibility Act.
The General Counsel, as the designated official under Executive Order
12606, The Family, has determined that some of the policies in these
guidelines will have a potential significant impact on the formation,
maintenance, and general well-being of the family. Participation of
homeless families in the program can be expected to support family
values, by helping families remain together; by enabling them to live
in decent, safe, and sanitary housing; and by offering the supportive
services that are necessary to acquire the skills and means to live
independently in mainstream American society. Since the impact on the
family is considered to be a beneficial one, no further review is
necessary.
The General Counsel has also determined, as the Designated Official
for HUD under section 6(a) of Executive Order 12612, Federalism, that
the provision in these guidelines requiring applicants to assume the
responsibilities for environmental review, decisionmaking, and action
under NEPA and other environmental authorities has Federalism
implications. While the assignment of these responsibilities under
section 104(g) of the Housing and Community Development Act of 1974 is
discretionary with HUD, it is authorized by and clearly the intent of
section 443 of the McKinney Act. Therefore, the policy is not subject
to review under Executive Order 12612.
In accordance with 5 U.S.C. 605(b) (the Regulatory Flexibility Act),
the undersigned hereby certifies that these guidelines would not have a
significant economic impact on a substantial number of small entities.
They would govern the procedures under which HUD would make rental
assistance available to applicants under a program designed to house and
provide supportive services to homeless persons with disabilities.
(56 FR 4494, Feb. 4, 1991)
Effective Date Note: At 56 FR 4494, Feb. 4, 1991, Appendix D was
added. Several sections of this appendix contain information collection
requirements that will become effective upon approval by the Office of
Management and Budget. A notice announcing the effective date will be
published in the Federal Register.
24 CFR 92.652 24 CFR Ch. I (4-1-93 Edition)
24 CFR 92.652 Office of Asst. Secy., Equal Opportunity, HUD
24 CFR 92.652 Subtitle B -- Regulations Relating to Housing and Urban Development
24 CFR 92.652 24 CFR Ch. I (4-1-93 Edition)
24 CFR 92.652 Office of Asst. Secy., Equal Opportunity, HUD
24 CFR 92.652 CHAPTER I -- OFFICE OF ASSISTANT SECRETARY FOR EQUAL OPPORTUNITY, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR 92.652
24 CFR 92.652 SUBCHAPTER A -- FAIR HOUSING
Part
Page
100 Discriminatory conduct under the Fair Housing Act
103 Fair housing -- complaint processing
104 Administrative proceedings under section 812 of the Fair Housing
Act
105 (Reserved)
106 Fair housing administrative meetings under the Fair Housing Act
107 Nondiscrimination and equal opportunity in housing under
Executive Order 11063
108 Compliance procedures for affirmative fair housing marketing
109 Fair housing advertising
110 Fair housing poster
111 Fair Housing Assistance Program
115 Certification of substantially equivalent agencies
120 Community Housing Resource Board Program
121 Collection of data
125 Fair Housing Initiatives Program
Appendix I to Subchapter A -- Preamble to Final Rule Implementing
Fair Housing Amendments Act of 1988 (Published January 23, 1989)
Appendix II to Subchapter A -- Fair Housing Accessibility Guidelines
-- Design Guidelines for Accessible/Adaptable Dwellings
Appendix III to Subchapter A -- Preamble to Final Housing
Accessibility Guidelines (Published March 6, 1991)
24 CFR 92.652
24 CFR 92.652 SUBCHAPTER B -- EMPLOYMENT AND BUSINESS OPPORTUNITY
130 Equal employment opportunity under HUD contracts and HUD assisted
construction contracts
135 Employment opportunities for businesses and lower income persons
in connection with assisted projects
146 Nondiscrimination on the basis of age in HUD programs or
activities receiving Federal financial assistance
24 CFR 92.652
24 CFR 92.652 24 CFR Ch. I (4-1-93 Edition)
24 CFR 92.652 Office of Asst. Secy., Equal Opportunity, HUD
24 CFR 92.652 SUBCHAPTER A -- FAIR HOUSING
24 CFR 92.652 PART 100 -- DISCRIMINATORY CONDUCT UNDER THE FAIR HOUSING ACT
24 CFR 92.652 Subpart A -- General
Sec.
100.1 Authority.
100.5 Scope.
100.10 Exemptions.
100.20 Definitions.
24 CFR 92.652 Subpart B -- Discriminatory Housing Practices
100.50 Real estate practices prohibited.
100.60 Unlawful refusal to sell or rent or to negotiate for the sale
or rental.
100.65 Discrimination in terms, conditions and privileges and in
services and facilities.
100.70 Other prohibited sale and rental conduct.
100.75 Discriminatory advertisements, statements and notices.
100.80 Discriminatory representations on the availability of
dwellings.
100.85 Blockbusting.
100.90 Discrimination in the provision of brokerage services.
24 CFR 92.652 Subpart C -- Discrimination in Residential Real
Estate-Related Transactions
100.110 Discriminatory practices in residential real estate-related
transactions.
100.115 Residential real estate-related transactions.
100.120 Discrimination in the making of loans and in the provision of
other financial assistance.
100.125 Discrimination in the purchasing of loans.
100.130 Discrimination in the terms and conditions for making
available loans or other financial assistance.
100.135 Unlawful practices in the selling, brokering, or appraising
of residential real property.
24 CFR 92.652 Subpart D -- Prohibition Against Discrimination Because
of Handicap
100.200 Purpose.
100.201 Definitions.
100.202 General prohibitions against discrimination because of
handicap.
100.203 Reasonable modifications of existing premises.
100.204 Reasonable accommodations.
100.205 Design and construction requirements.
24 CFR 92.652 Subpart E -- Housing for Older Persons
100.300 Purpose.
100.301 Exemption.
100.302 State and Federal elderly housing programs.
100.303 62 or over housing.
100.304 55 or over housing.
24 CFR 92.652 Subpart F -- Interference, Coercion or Intimidation
100.400 Prohibited interference, coercion or intimidation.
Authority: Title VIII, Civil Rights Act of 1968, 42 U.S.C.
3600-3620; section 7(d), Department of HUD Act, 42 U.S.C. 3535(d).
Source: 54 FR 3283, Jan. 23, 1989, unless otherwise noted.
24 CFR 92.652 Subpart A -- General
24 CFR 100.1 Authority.
This regulation is issued under the authority of the Secretary of
Housing and Urban Development to administer and enforce title VIII of
the Civil Rights Act of 1968, as amended by the Fair Housing Amendments
Act of 1988 (the Fair Housing Act).
24 CFR 100.5 Scope.
(a) It is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the United
States. No person shall be subjected to discrimination because of race,
color, religion, sex, handicap, familial status, or national origin in
the sale, rental, or advertising of dwellings, in the provision of
brokerage services, or in the availability of residential real
estate-related transactions.
(b) This part provides the Department's interpretation of the
coverage of the Fair Housing Act regarding discrimination related to the
sale or rental of dwellings, the provision of services in connection
therewith, and the availability of residential real estate-related
transactions.
(c) Nothing in this part relieves persons participating in a Federal
or Federally-assisted program or activity from other requirements
applicable to buildings and dwellings.
24 CFR 100.10 Exemptions.
(a) This part does not:
(1) Prohibit a religious organization, association, or society, or
any nonprofit institution or organization operated, supervised or
controlled by or in conjunction with a religious organization,
association, or society, from limiting the sale, rental or occupancy of
dwellings which it owns or operates for other than a commercial purpose
to persons of the same religion, or from giving preference to such
persons, unless membership in such religion is restricted because of
race, color, or national origin;
(2) Prohibit a private club, not in fact open to the public, which,
incident to its primary purpose or purposes, provides lodgings which it
owns or operates for other than a commercial purpose, from limiting the
rental or occupancy of such lodgings to its members or from giving
preference to its members;
(3) Limit the applicability of any reasonable local, State or Federal
restrictions regarding the maximum number of occupants permitted to
occupy a dwelling; or
(4) Prohibit conduct against a person because such person has been
convicted by any court of competent jurisdiction of the illegal
manufacture or distribution of a controlled substance as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802).
(b) Nothing in this part regarding discrimination based on familial
status applies with respect to housing for older persons as defined in
subpart E of this part.
(c) Nothing in this part, other than the prohibitions against
discriminatory advertising, applies to:
(1) The sale or rental of any single family house by an owner,
provided the following conditions are met:
(i) The owner does not own or have any interest in more than three
single family houses at any one time.
(ii) The house is sold or rented without the use of a real estate
broker, agent or salesperson or the facilities of any person in the
business of selling or renting dwellings. If the owner selling the
house does not reside in it at the time of the sale or was not the most
recent resident of the house prior to such sale, the exemption in this
paragraph (c)(1) of this section applies to only one such sale in any
24-month period.
(2) Rooms or units in dwellings containing living quarters occupied
or intended to be occupied by no more than four families living
independently of each other, if the owner actually maintains and
occupies one of such living quarters as his or her residence.
24 CFR 100.20 Definitions.
As used in this part:
Aggrieved person includes any person who --
(a) Claims to have been injured by a discriminatory housing practice;
or
(b) Believes that such person will be injured by a discriminatory
housing practice that is about to occur.
Broker or Agent includes any person authorized to perform an action
on behalf of another person regarding any matter related to the sale or
rental of dwellings, including offers, solicitations or contracts and
the administration of matters regarding such offers, solicitations or
contracts or any residential real estate-related transactions.
Department means the Department of Housing and Urban Development.
Discriminatory housing practice means an act that is unlawful under
section 804, 805, 806, or 818 of the Fair Housing Act.
Dwelling means any building, structure or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by
one or more families, and any vacant land which is offered for sale or
lease for the construction or location thereon of any such building,
structure or portion thereof.
Fair Housing Act means title VIII of the Civil Rights Act of 1968, as
amended by the Fair Housing Amendments Act of 1988 (42 U.S.C.
3600-3620).
Familial status means one or more individuals (who have not attained
the age of 18 years) being domiciled with --
(a) A parent or another person having legal custody of such
individual or individuals; or
(b) The designee of such parent or other person having such custody,
with the written permission of such parent or other person.
The protections afforded against discrimination on the basis of
familial status shall apply to any person who is pregnant or is in the
process of securing legal custody of any individual who has not attained
the age of 18 years.
Handicap is defined in 100.201.
Person includes one or more individuals, corporations, partnerships,
associations, labor organizations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under title 11 U.S.C., receivers, and
fiduciaries.
Person in the business of selling or renting dwellings means any
person who:
(a) Within the preceding twelve months, has participated as principal
in three or more transactions involving the sale or rental of any
dwelling or any interest therein;
(b) Within the preceding twelve months, has participated as agent,
other than in the sale of his or her own personal residence, in
providing sales or rental facilities or sales or rental services in two
or more transactions involving the sale or rental of any dwelling or any
interest therein; or
(c) Is the owner of any dwelling designed or intended for occupancy
by, or occupied by, five or more families.
Secretary means the Secretary of the Department.
State means any of the several states, the District of Columbia, the
Commonwealth of Puerto Rico, or any of the territories and possessions
of the United States.
24 CFR 100.20 Subpart B -- Discriminatory Housing Practices
24 CFR 100.50 Real estate practices prohibited.
(a) This subpart provides the Department's interpretation of conduct
that is unlawful housing discrimination under section 804 and section
806 of the Fair Housing Act. In general the prohibited actions are set
forth under sections of this subpart which are most applicable to the
discriminatory conduct described. However, an action illustrated in one
section can constitute a violation under sections in the subpart. For
example, the conduct described in 100.60(b)(3) and (4) would constitute
a violation of 100.65(a) as well as 100.60(a).
(b) It shall be unlawful to:
(1) Refuse to sell or rent a dwelling after a bona fide offer has
been made, or to refuse to negotiate for the sale or rental of a
dwelling because of race, color, religion, sex, familial status, or
national origin, or to discriminate in the sale or rental of a dwelling
because of handicap.
(2) Discriminate in the terms, conditions or privileges of sale or
rental of a dwelling, or in the provision of services or facilities in
connection with sales or rentals, because of race, color, religion, sex,
handicap, familial status, or national origin.
(3) Engage in any conduct relating to the provision of housing which
otherwise makes unavailable or denies dwellings to persons because of
race, color, religion, sex, handicap, familial status, or national
origin.
(4) Make, print or publish, or cause to be made, printed or
published, any notice, statement or advertisement with respect to the
sale or rental of a dwelling that indicates any preference, limitation
or discrimination because of race, color, religion, sex, handicap,
familial status, or national origin, or an intention to make any such
preference, limitation or discrimination.
(5) Represent to any person because of race, color, religion, sex,
handicap, familial status, or national origin that a dwelling is not
available for sale or rental when such dwelling is in fact available.
(6) Engage in blockbusting practices in connection with the sale or
rental of dwellings because of race, color, religion, sex, handicap,
familial status, or national origin.
(7) Deny access to or membership or participation in, or to
discriminate against any person in his or her access to or membership or
participation in, any multiple-listing service, real estate brokers'
assocation, or other service organization or facility relating to the
business of selling or renting a dwelling or in the terms or conditions
or membership or participation, because of race, color, religion, sex,
handicap, familial status, or national origin.
(c) The application of the Fair Housing Act with respect to persons
with handicaps is discussed in subpart D of this part.
24 CFR 100.60 Unlawful refusal to sell or rent or to negotiate for the
sale or rental.
(a) It shall be unlawful for a person to refuse to sell or rent a
dwelling to a person who has made a bona fide offer, because of race,
color, religion, sex, familial status, or national origin or to refuse
to negotiate with a person for the sale or rental of a dwelling because
of race, color, religion, sex, familial status, or national origin, or
to discriminate against any person in the sale or rental of a dwelling
because of handicap.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Failing to accept or consider a bona fide offer because of race,
color, religion, sex, handicap, familial status, or national origin.
(2) Refusing to sell or rent a dwelling to, or to negotiate for the
sale or rental of a dwelling with, any person because of race, color,
religion, sex, handicap, familial status, or national origin.
(3) Imposing different sales prices or rental charges for the sale or
rental of a dwelling upon any person because of race, color, religion,
sex, handicap, familial status, or national origin.
(4) Using different qualification criteria or applications, or sale
or rental standards or procedures, such as income standards, application
requirements, application fees, credit analysis or sale or rental
approval procedures or other requirements, because of race, color,
religion, sex, handicap, familial status, or national origin.
(5) Evicting tenants because of their race, color, religion, sex,
handicap, familial status, or national origin or because of the race,
color, religion, sex, handicap, familial status, or national origin of a
tenant's guest.
24 CFR 100.65 Discrimination in terms, conditions and privileges and in
services and facilities.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to impose different
terms, conditions or privileges relating to the sale or rental of a
dwelling or to deny or limit services or facilities in connection with
the sale or rental of a dwelling.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Using different provisions in leases or contracts of sale, such
as those relating to rental charges, security deposits and the terms of
a lease and those relating to down payment and closing requirements,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(2) Failing or delaying maintenance or repairs of sale or rental
dwellings because of race, color, religion, sex, handicap, familial
status, or national origin.
(3) Failing to process an offer for the sale or rental of a dwelling
or to communicate an offer accurately because of race, color, religion,
sex, handicap, familial status, or national origin.
(4) Limiting the use of privileges, services or facilities associated
with a dwelling because of race, color, religion, sex, handicap,
familial status, or national origin of an an owner, tenant or a person
associated with him or her.
(5) Denying or limiting services or facilities in connection with the
sale or rental of a dwelling, because a person failed or refused to
provide sexual favors.
24 CFR 100.70 Other prohibited sale and rental conduct.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to restrict or attempt to
restrict the choices of a person by word or conduct in connection with
seeking, negotiating for, buying or renting a dwelling so as to
perpetuate, or tend to perpetuate, segregated housing patterns, or to
discourage or obstruct choices in a community, neighborhood or
development.
(b) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to engage in any conduct
relating to the provision of housing or of services and facilities in
connection therewith that otherwise makes unavailable or denies
dwellings to persons.
(c) Prohibited actions under paragraph (a) of this section, which are
generally referred to as unlawful steering practices, include, but are
not limited to:
(1) Discouraging any person from inspecting, purchasing or renting a
dwelling because of race, color, religion, sex, handicap, familial
status, or national origin, or because of the race, color, religion,
sex, handicap, familial status, or national origin of persons in a
community, neighborhood or development.
(2) Discouraging the purchase or rental of a dwelling because of
race, color, religion, sex, handicap, familial status, or national
origin, by exaggerating drawbacks or failing to inform any person of
desirable features of a dwelling or of a community, neighborhood, or
development.
(3) Communicating to any prospective purchaser that he or she wold
not be comfortable or compatible with existing residents of a community,
neighborhood or development because of race, color, religion, sex,
handicap, familial status, or national origin.
(4) Assigning any person to a particular section of a community,
neighborhood or development, or to a particular floor of a building,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(d) Prohibited activities relating to dwellings under paragraph (b)
of this section include, but are not limited to:
(1) Discharging or taking other adverse action against an employee,
broker or agent because he or she refused to participate in a
discriminatory housing practice.
(2) Employing codes or other devices to segregate or reject
applicants, purchasers or renters, refusing to take or to show listings
of dwellings in certain areas because of race, color, religion, sex,
handicap, familial status, or national origin, or refusing to deal with
certain brokers or agents because they or one or more of their clients
are of a particular race, color, religion, sex, handicap, familial
status, or national origin.
(3) Denying or delaying the processing of an application made by a
purchaser or renter or refusing to approve such a person for occupancy
in a cooperative or condominium dwelling because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Refusing to provide municipal services or property or hazard
insurance for dwellings or providing such services or insurance
differently because of race, color, religion, sex, handicap, familial
status, or national origin.
24 CFR 100.75 Discriminatory advertisements, statements and notices.
(a) It shall be unlawful to make, print or publish, or cause to be
made, printed or published, any notice, statement or advertisement with
respect to the sale or rental of a dwelling which indicates any
preference, limitation or discrimination because of race, color,
religion, sex, handicap, familial status, or national origin, or an
intention to make any such preference, limitation or discrimination.
(b) The prohibitions in this section shall apply to all written or
oral notices or statements by a person engaged in the sale or rental of
a dwelling. Written notices and statements include any applications,
flyers, brochures, deeds, signs, banners, posters, billboards or any
documents used with respect to the sale or rental of a dwelling.
(c) Discriminatory notices, statements and advertisements include,
but are not limited to:
(1) Using words, phrases, photographs, illustrations, symbols or
forms which convey that dwellings are available or not available to a
particular group of persons because of race, color, religion, sex,
handicap, familial status, or national origin.
(2) Expressing to agents, brokers, employees, prospective sellers or
renters or any other persons a preference for or limitation on any
purchaser or renter because of race, color, religion, sex, handicap,
familial status, or national origin of such persons.
(3) Selecting media or locations for advertising the sale or rental
of dwellings which deny particular segments of the housing market
information about housing opportunities because of race, color,
religion, sex, handicap, familial status, or national origin.
(4) Refusing to publish advertising for the sale or rental of
dwellings or requiring different charges or terms for such advertising
because of race, color, religion, sex, handicap, familial status, or
national origin.
(d) 24 CFR part 109 provides information to assist persons to
advertise dwellings in a nondiscriminatory manner and describes the
matters the Department will review in evaluating compliance with the
Fair Housing Act and in investigating complaints alleging discriminatory
housing practices involving advertising.
24 CFR 100.80 Discriminatory representations on the availability of
dwellings.
(a) It shall be unlawful, because of race, color, religion, sex,
handicap, familial status, or national origin, to provide inaccurate or
untrue information about the availability of dwellings for sale or
rental.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Indicating through words or conduct that a dwelling which is
available for inspection, sale, or rental has been sold or rented,
because of race, color, religion, sex, handicap, familial status, or
national origin.
(2) Representing that covenants or other deed, trust or lease
provisions which purport to restrict the sale or rental of dwellings
because of race, color, religion, sex, handicap, familial status, or
national origin preclude the sale of rental of a dwelling to a person.
(3) Enforcing covenants or other deed, trust, or lease provisions
which preclude the sale or rental of a dwelling to any person because of
race, color, religion, sex, handicap, familial status, or national
origin.
(4) Limiting information, by word or conduct, regarding suitably
priced dwellings available for inspection, sale or rental, because of
race, color, religion, sex, handicap, familial status, or national
origin.
(5) Providing false or inaccurate information regarding the
availability of a dwelling for sale or rental to any person, including
testers, regardless of whether such person is actually seeking housing,
because of race, color, religion, sex, handicap, familial status, or
national origin.
24 CFR 100.85 Blockbusting.
(a) It shall be unlawful, for profit, to induce or attempt to induce
a person to sell or rent a dwelling by representations regarding the
entry or prospective entry into the neighborhood of a person or persons
of a particular race, color, religion, sex, familial status, or national
origin or with a handicap.
(b) In establishing a discriminatory housing practice under this
section it is not necessary that there was in fact profit as long as
profit was a factor for engaging in the blockbusting activity.
(c) Prohibited actions under this section include, but are not
limited to:
(1) Engaging, for profit, in conduct (including uninvited
solicitations for listings) which conveys to a person that a
neighborhood is undergoing or is about to undergo a change in the race,
color, religion, sex, handicap, familial status, or national origin of
persons residing in it, in order to encourage the person to offer a
dwelling for sale or rental.
(2) Encouraging, for profit, any person to sell or rent a dwelling
through assertions that the entry or prospective entry of persons of a
particular race, color, religion, sex, familial status, or national
origin, or with handicaps, can or will result in undesirable
consequences for the project, neighborhood or community, such as a
lowering of property values, an increase in criminal or antisocial
behavior, or a decline in the quality of schools or other services or
facilities.
24 CFR 100.90 Discrimination in the provision of brokerage services.
(a) It shall be unlawful to deny any person access to or membership
or participation in any multiple listing service, real estate brokers'
organization or other service, organization, or facility relating to the
business of selling or renting dwellings, or to discriminate against any
person in the terms or conditions of such access, membership or
participation, because of race, color, religion, sex, handicap, familial
status, or national origin.
(b) Prohibited actions under this section include, but are not
limited to:
(1) Setting different fees for access to or membership in a multiple
listing service because of race, color, religion, sex, handicap,
familial status, or national origin.
(2) Denying or limiting benefits accruing to members in a real estate
brokers' organization because of race, color, religion, sex, handicap,
familial status, or national origin.
(3) Imposing different standards or criteria for membership in a real
estate sales or rental organization because of race, color, religion,
sex, handicap, familial status, or national origin.
(4) Establishing geographic boundaries or office location or
residence requirements for access to or membership or participation in
any multiple listing service, real estate brokers' organization or other
service, organization or facility relating to the business of selling or
renting dwellings, because of race, color, religion, sex, handicap,
familial status, or national origin.
24 CFR 100.90 Subpart C -- Discrimination in Residential Real Estate-Related Transactions
24 CFR 100.110 Discriminatory practices in residential real
estate-related transactions.
(a) This subpart provides the Department's interpretation of the
conduct that is unlawful housing discrimination under section 805 of the
Fair Housing Act.
(b) It shall be unlawful for any person or other entity whose
business includes engaging in residential real estate-related
transactions to discriminate against any person in making available such
a transaction, or in the terms or conditions of such a transaction,
because of race, color, religion, sex, handicap, familial status, or
national origin.
24 CFR 100.115 Residential real estate-related transactions.
The term residential real estate-related transactions means:
(a) The making or purchasing of loans or providing other financial
assistance --
(1) For purchasing, constructing, improving, repairing or maintaining
a dwelling; or
(2) Secured by residential real estate; or
(b) The selling, brokering or appraising of residential real
property.
24 CFR 100.120 Discrimination in the making of loans and in the
provision of other financial assistance.
(a) It shall be unlawful for any person or entity whose business
includes engaging in residential real estate-related transactions to
discriminate against any person in making available loans or other
financial assistance for a dwelling, or which is or is to be secured by
a dwelling, because of race, color, religion, sex, handicap, familial
status, or national origin.
(b) Prohibited practices under this section include, but are not
limited to, failing or refusing to provide to any person, in connection
with a residential real estate-related transaction, information
regarding the availability of loans or other financial assistance,
application requirements, procedures or standards for the review and
approval of loans or financial assistance, or providing information
which is inaccurate or different from that provided others, because of
race, color, religion, sex, handicap, familial status, or national
origin.
24 CFR 100.125 Discrimination in the purchasing of loans.
(a) It shall be unlawful for any person or entity engaged in the
purchasing of loans or other debts or securities which support the
purchase, construction, improvement, repair or maintenance of a
dwelling, or which are secured by residential real estate, to refuse to
purchase such loans, debts, or securities, or to impose different terms
or conditions for such purchases, because of race, color, religion, sex,
handicap, familial status, or national origin.
(b) Unlawful conduct under this section includes, but is not limited
to:
(1) Purchasing loans or other debts or securities which relate to, or
which are secured by dwellings in certain communities or neighborhoods
but not in others because of the race, color, religion, sex, handicap,
familial status, or national origin of persons in such neighborhoods or
communities.
(2) Pooling or packaging loans or other debts or securities which
relate to, or which are secured by, dwellings differently because of
race, color, religion, sex, handicap, familial status, or national
origin.
(3) Imposing or using different terms or conditions on the marketing
or sale of securities issued on the basis of loans or other debts or
securities which relate to, or which are secured by, dwellings because
of race, color, religion, sex, handicap, familial status, or national
origin.
(c) This section does not prevent consideration, in the purchasing of
loans, of factors justified by business necessity, including
requirements of Federal law, relating to a transaction's financial
security or to protection against default or reduction of the value of
the security. Thus, this provision would not preclude considerations
employed in normal and prudent transactions, provided that no such
factor may in any way relate to race, color, religion, sex, handicap,
familial status or national origin.
24 CFR 100.130 Discrimination in the terms and conditions for making
available loans or other financial assistance.
(a) It shall be unlawful for any person or entity engaged in the
making of loans or in the provision of other financial assistance
relating to the purchase, construction, improvement, repair or
maintenance of dwellings or which are secured by residential real estate
to impose different terms or conditions for the availability of such
loans or other financial assistance because of race, color, religion,
sex, handicap, familial status, or national origin.
(b) Unlawful conduct under this section includes, but is not limited
to:
(1) Using different policies, practices or procedures in evaluating
or in determining creditworthiness of any person in connection with the
provision of any loan or other financial assistance for a dwelling or
for any loan or other financial assistance which is secured by
residential real estate because of race, color, religion, sex, handicap,
familial status, or national origin.
(2) Determining the type of loan or other financial assistance to be
provided with respect to a dwelling, or fixing the amount, interest
rate, duration or other terms for a loan or other financial assistance
for a dwelling or which is secured by residential real estate, because
of race, color, religion, sex, handicap, familial status, or national
origin.
24 CFR 100.135 Unlawful practices in the selling, brokering, or
appraising of residential real property.
(a) It shall be unlawful for any person or other entity whose
business includes engaging in the selling, brokering or appraising of
residential real property to discriminate against any person in making
available such services, or in the performance of such services, because
of race, color, religion, sex, handicap, familial status, or national
origin.
(b) For the purposes of this section, the term appraisal means an
estimate or opinion of the value of a specified residential real
property made in a business context in connection with the sale, rental,
financing or refinancing of a dwelling or in connection with any
activity that otherwise affects the availability of a residential real
estate-related transaction, whether the appraisal is oral or written, or
transmitted formally or informally. The appraisal includes all written
comments and other documents submitted as support for the estimate or
opinion of value.
(c) Nothing in this section prohibits a person engaged in the
business of making or furnishing appraisals of residential real property
from taking into consideration factors other than race, color, religion,
sex, handicap, familial status, or national origin.
(d) Practices which are unlawful under this section include, but are
not limited to, using an appraisal of residential real property in
connection with the sale, rental, or financing of any dwelling where the
person knows or reasonably should know that the appraisal improperly
takes into consideration race, color, religion, sex, handicap, familial
status or national origin.
24 CFR 100.135 Subpart D -- Prohibition Against Discrimination Because of Handicap
24 CFR 100.200 Purpose.
The purpose of this subpart is to effectuate sections 6 (a) and (b)
and 15 of the Fair Housing Amendments Act of 1988.
24 CFR 100.201 Definitions.
As used in this subpart:
Accessible, when used with respect to the public and common use areas
of a building containing covered multifamily dwellings, means that the
public or common use areas of the building can be approached, entered,
and used by individuals with physical handicaps. The phrase readily
accessible to and usable by is synonymous with accessible. A public or
common use area that complies with the appropriate requirements of ANSI
A117.1-1986 or a comparable standard is accessible within the meaning of
this paragraph.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or within a site that can
be negotiated by a person with a severe disability using a wheelchair
and that is also safe for and usable by people with other disabilities.
Interior accessible routes may include corridors, floors, ramps,
elevators and lifts. Exterior accessible routes may include parking
access aisles, curb ramps, walks, ramps and lifts. A route that
complies with the appropriate requirements of ANSI A117.1-1986 or a
comparable standard is an accessible route.
ANSI A117.1-1986 means the 1986 edition of the American National
Standard for buildings and facilities providing accessibility and
usability for physically handicapped people. This incorporation by
reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
obtained from American National Standards Institute, Inc., 1430
Broadway, New York, NY 10018. Copies may be inspected at the Department
of Housing and Urban Development, 451 Seventh Street, SW., room 10276,
Washington, DC, or at the Office of the Federal Register, 800 North
Capitol Street, NW., suite 700, Washington, DC.
Building means a structure, facility or portion thereof that contains
or serves one or more dwelling units.
Building entrance on an accessible route means an accessible entrance
to a building that is connected by an accessible route to public
transportation stops, to accessible parking and passenger loading zones,
or to public streets or sidewalks, if available. A building entrance
that complies with ANSI A117.1-1986 or a comparable standard complies
with the requirements of this paragraph.
Common use areas means rooms, spaces or elements inside or outside of
a building that are made available for the use of residents of a
building or the guests thereof. These areas include hallways, lounges,
lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas and
passageways among and between buildings.
Controlled substance means any drug or other substance, or immediate
precursor included in the definition in section 102 of the Controlled
Substances Act (21 U.S.C. 802).
Covered multifamily dwellings means buildings consisting of 4 or more
dwelling units if such buildings have one or more elevators; and ground
floor dwelling units in other buildings consisting of 4 or more dwelling
units.
Dwelling unit means a single unit of residence for a family or one or
more persons. Examples of dwelling units include: a single family
home; an apartment unit within an apartment building; and in other
types of dwellings in which sleeping accommodations are provided but
toileting or cooking facilities are shared by occupants of more than one
room or portion of the dwelling, rooms in which people sleep. Examples
of the latter include dormitory rooms and sleeping accommodations in
shelters intended for occupancy as a residence for homeless persons.
Entrance means any access point to a building or portion of a
building used by residents for the purpose of entering.
Exterior means all areas of the premises outside of an individual
dwelling unit.
First occupancy means a building that has never before been used for
any purpose.
Ground floor means a floor of a building with a building entrance on
an accessible route. A building may have more than one ground floor.
Handicap means, with respect to a person, a physical or mental
impairment which substantially limits one or more major life activities;
a record of such an impairment; or being regarded as having such an
impairment. This term does not include current, illegal use of or
addiction to a controlled substance. For purposes of this part, an
individual shall not be considered to have a handicap solely because
that individual is a transvestite. As used in this definition:
(a) Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; disgestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities. The term physical or mental impairment includes,
but is not limited to, such diseases and conditions as orthopedic,
visual, speech and hearing impairments, cerebral palsy, autism,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, Human Immunodeficiency Virus infection, mental retardation,
emotional illness, drug addiction (other than addiction caused by
current, illegal use of a controlled substance) and alcoholism.
(b) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(c) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit one or more major life activities but that is treated by another
person as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits one
or more major life activities only as a result of the attitudes of other
toward such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
definition but is treated by another person as having such an
impairment.
Interior means the spaces, parts, components or elements of an
individual dwelling unit.
Modification means any change to the public or common use areas of a
building or any change to a dwelling unit.
Premises means the interior or exterior spaces, parts, components or
elements of a building, including individual dwelling units and the
public and common use areas of a building.
Public use areas means interior or exterior rooms or spaces of a
building that are made available to the general public. Public use may
be provided at a building that is privately or publicly owned.
Site means a parcel of land bounded by a property line or a
designated portion of a public right or way.
24 CFR 100.202 General prohibitions against discrimination because of
handicap.
(a) It shall be unlawful to discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of --
(1) That buyer or renter;
(2) A person residing in or intending to reside in that dwelling
after it is so sold, rented, or made available; or
(3) Any person associated with that person.
(b) It shall be unlawful to discriminate against any person in the
terms, conditions, or privileges of the sale or rental of a dwelling, or
in the provision of services or facilities in connection with such
dwelling, because of a handicap of --
(1) That buyer or renter;
(2) A person residing in or intending to reside in that dwelling
after it is so sold, rented, or made available; or
(3) Any person associated with that person.
(c) It shall be unlawful to make an inquiry to determine whether an
applicant for a dwelling, a person intending to reside in that dwelling
after it is so sold, rented or made available, or any person associated
with that person, has a handicap or to make inquiry as to the nature or
severity of a handicap of such a person. However, this paragraph does
not prohibit the following inquiries, provided these inquiries are made
of all applicants, whether or not they have handicaps:
(1) Inquiry into an applicant's ability to meet the requirements of
ownership or tenancy;
(2) Inquiry to determine whether an applicant is qualified for a
dwelling available only to persons with handicaps or to persons with a
particular type of handicap;
(3) Inquiry to determine whether an applicant for a dwelling is
qualified for a priority available to persons with handicaps or to
persons with a particular type of handicap;
(4) Inquiring whether an applicant for a dwelling is a current
illegal abuser or addict of a controlled substance;
(5) Inquiring whether an applicant has been convicted of the illegal
manufacture or distribution of a controlled substance.
(d) Nothing in this subpart requires that a dwelling be made
available to an individual whose tenancy would constitute a direct
threat to the health or safety of other individuals or whose tenancy
would result in substantial physical damage to the property of others.
24 CFR 100.203 Reasonable modifications of existing premises.
(a) It shall be unlawful for any person to refuse to permit, at the
expense of a handicapped person, reasonable modifications of existing
premises, occupied or to be occupied by a handicapped person, if the
proposed modifications may be necessary to afford the handicapped person
full enjoyment of the premises of a dwelling. In the case of a rental,
the landlord may, where it is reasonable to do so, condition permission
for a modification on the renter agreeing to restore the interior of the
premises to the condition that existed before the modification,
reasonable wear and tear excepted. The landlord may not increase for
handicapped persons any customarily required security deposit. However,
where it is necessary in order to ensure with reasonable certainty that
funds will be available to pay for the restorations at the end of the
tenancy, the landlord may negotiate as part of such a restoration
agreement a provision requiring that the tenant pay into an interest
bearing escrow account, over a reasonable period, a reasonable amount of
money not to exceed the cost of the restorations. The interest in any
such account shall accrue to the benefit of the tenant.
(b) A landlord may condition permission for a modification on the
renter providing a reasonable description of the proposed modifications
as well as reasonable assurances that the work will be done in a
workmanlike manner and that any required building permits will be
obtained.
(c) The application of paragraph (a) of this section may be
illustrated by the following examples:
Example (1): A tenant with a handicap asks his or her landlord for
permission to install grab bars in the bathroom at his or her own
expense. It is necessary to reinforce the walls with blocking between
studs in order to affix the grab bars. It is unlawful for the landlord
to refuse to permit the tenant, at the tenant's own expense, from making
the modifications necessary to add the grab bars. However, the landlord
may condition permission for the modification on the tenant agreeing to
restore the bathroom to the condition that existed before the
modification, reasonable wear and tear excepted. It would be reasonable
for the landlord to require the tenant to remove the grab bars at the
end of the tenancy. The landlord may also reasonably require that the
wall to which the grab bars are to be attached be repaired and restored
to its original condition, reasonable wear and tear excepted. However,
it would be unreasonable for the landlord to require the tenant to
remove the blocking, since the reinforced walls will not interfere in
any way with the landlord's or the next tenant's use and enjoyment of
the premises and may be needed by some future tenant.
Example (2): An applicant for rental housing has a child who uses a
wheelchair. The bathroom door in the dwelling unit is too narrow to
permit the wheelchair to pass. The applicant asks the landlord for
permission to widen the doorway at the applicant's own expense. It is
unlawful for the landlord to refuse to permit the applicant to make the
modification. Further, the landlord may not, in usual circumstances,
condition permission for the modification on the applicant paying for
the doorway to be narrowed at the end of the lease because a wider
doorway will not interfere with the landlord's or the next tenant's use
and enjoyment of the premises.
24 CFR 100.204 Reasonable accommodations.
(a) It shall be unlawful for any person to refuse to make reasonable
accommodations in rules, policies, practices, or services, when such
accommodations may be necessary to afford a handicapped person equal
opportunity to use and enjoy a dwelling unit, including public and
common use areas.
(b) The application of this section may be illustrated by the
following examples:
Example (1): A blind applicant for rental housing wants live in a
dwelling unit with a seeing eye dog. The building has a no pets policy.
It is a violation of 100.204 for the owner or manager of the apartment
complex to refuse to permit the applicant to live in the apartment with
a seeing eye dog because, without the seeing eye dog, the blind person
will not have an equal opportunity to use and enjoy a dwelling.
Example (2): Progress Gardens is a 300 unit apartment complex with
450 parking spaces which are available to tenants and guests of Progress
Gardens on a first come first served basis. John applies for housing in
Progress Gardens. John is mobility impaired and is unable to walk more
than a short distance and therefore requests that a parking space near
his unit be reserved for him so he will not have to walk very far to get
to his apartment. It is a violation of 100.204 for the owner or
manager of Progress Gardens to refuse to make this accommodation.
Without a reserved space, John might be unable to live in Progress
Gardens at all or, when he has to park in a space far from his unit,
might have great difficulty getting from his car to his apartment unit.
The accommodation therefore is necessary to afford John an equal
opportunity to use and enjoy a dwelling. The accommodation is
reasonable because it is feasible and practical under the circumstances.
24 CFR 100.205 Design and construction requirements.
(a) Covered multifamily dwellings for first occupancy after March 13,
1991 shall be designed and constructed to have at least one building
entrance on an accessible route unless it is impractical to do so
because of the terrain or unusual characteristics of the site. For
purposes of this section, a covered multifamily dwelling shall be deemed
to be designed and constructed for first occupancy on or before March
13, 1991, if the dwelling is occupied by that date, or if the last
building permit or renewal thereof for the dwelling is issued by a
State, County or local government on or before June 15, 1990. The
burden of establishing impracticality because of terrain or unusual site
characteristics is on the person or persons who designed or constructed
the housing facility.
(b) The application of paragraph (a) of this section may be
illustrated by the following examples:
Example (1): A real estate developer plans to construct six covered
multifamily dwelling units on a site with a hilly terrain. Because of
the terrain, it will be necessary to climb a long and steep stairway in
order to enter the dwellings. Since there is no practical way to
provide an accessible route to any of the dwellings, one need not be
provided.
Example (2): A real estate developer plans to construct a building
consisting of 10 units of multifamily housing on a waterfront site that
floods frequently. Because of this unusual characteristic of the site,
the builder plans to construct the building on stilts. It is customary
for housing in the geographic area where the site is located to be built
on stilts. The housing may lawfully be constructed on the proposed site
on stilts even though this means that there will be no practical way to
provide an accessible route to the building entrance.
Example (3): A real estate developer plans to construct a
multifamily housing facility on a particular site. The developer would
like the facility to be built on the site to contain as many units as
possible. Because of the configuration and terrain of the site, it is
possible to construct a building with 105 units on the site provided the
site does not have an accessible route leading to the building entrance.
It is also possible to construct a building on the site with an
accessible route leading to the building entrance. However, such a
building would have no more than 100 dwelling units. The building to be
constructed on the site must have a building entrance on an accessible
route because it is not impractical to provide such an entrance because
of the terrain or unusual characteristics of the site.
(c) All covered multifamily dwellings for first occupancy after March
13, 1991 with a building entrance on an accessible route shall be
designed and constructed in such a manner that --
(1) The public and common use areas are readily accessible to and
usable by handicapped persons;
(2) All the doors designed to allow passage into and within all
premises are sufficiently wide to allow passage by handicapped persons
in wheelchairs; and
(3) All premises within covered multifamily dwelling units contain
the following features of adaptable design:
(i) An accessible route into and through the covered dwelling unit;
(ii) Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations;
(iii) Reinforcements in bathroom walls to allow later installation of
grab bars around the toilet, tub, shower, stall and shower seat, where
such facilities are provided; and
(iv) Usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space.
(d) The application of paragraph (c) of this section may be
illustrated by the following examples:
Example (1): A developer plans to construct a 100 unit condominium
apartment building with one elevator. In accordance with paragraph (a),
the building has at least one accessible route leading to an accessible
entrance. All 100 units are covered multifamily dwelling units and they
all must be designed and constructed so that they comply with the
accessibility requirements of paragraph (c) of this section.
Example (2): A developer plans to construct 30 garden apartments in
a three story building. The building will not have an elevator. The
building will have one accessible entrance which will be on the first
floor. Since the building does not have an elevator, only the ground
floor units are covered multifamily units. The ground floor is the
first floor because that is the floor that has an accessible entrance.
All of the dwelling units on the first floor must meet the accessibility
requirements of paragraph (c) of this section and must have access to at
least one of each type of public or common use area available for
residents in the building.
(e) Compliance with the appropriate requirements of ANSI A117.1-1986
suffices to satisfy the requirements of paragraph (c)(3) of this
section.
(f) Compliance with a duly enacted law of a State or unit of general
local government that includes the requirements of paragraphs (a) and
(c) of this section satisfies the requirements of paragraphs (a) and (c)
of this section.
(g)(1) It is the policy of HUD to encourage States and units of
general local government to include, in their existing procedures for
the review and approval of newly constructed covered multifamily
dwellings, determinations as to whether the design and construction of
such dwellings are consistent with paragraphs (a) and (c) of this
section.
(2) A State or unit of general local government may review and
approve newly constructed multifamily dwellings for the purpose of
making determinations as to whether the requirements of paragraphs (a)
and (c) of this section are met.
(h) Determinations of compliance or noncompliance by a State or a
unit of general local government under paragraph (f) or (g) of this
section are not conclusive in enforcement proceedings under the Fair
Housing Amendments Act.
(i) This subpart does not invalidate or limit any law of a State or
political subdivision of a State that requires dwellings to be designed
and constructed in a manner that affords handicapped persons greater
access than is required by this subpart.
(54 FR 3283, Jan. 23, 1989, as amended at 56 FR 11665, Mar. 20, 1991)
24 CFR 100.205 Subpart E -- Housing for Older Persons
24 CFR 100.300 Purpose.
The purpose of this subpart is to effectuate the exemption in the
Fair Housing Amendments Act of 1988 that relates to housing for older
persons.
24 CFR 100.301 Exemption.
(a) The provisions regarding familial status in this part do not
apply to housing which satisfies the requirements of 100.302, 100.303
or 100.304.
(b) Nothing in this part limits the applicability of any reasonable
local, State, or Federal restrictions regarding the maximum number of
occupants permitted to occupy a dwelling.
24 CFR 100.302 State and Federal elderly housing programs.
The provisions regarding familial status in this part shall not apply
to housing provided under any Federal or State program that the
Secretary determines is specifically designed and operated to assist
elderly persons, as defined in the State or Federal program.
24 CFR 100.303 62 or over housing.
(a) The provisions regarding familial status in this part shall not
apply to housing intended for, and solely occupied by, persons 62 years
of age or older. Housing satisfies the requirements of this section
even though:
(1) There are persons residing in such housing on September 13, 1988
who are under 62 years of age, provided that all new occupants are
persons 62 years of age or older;
(2) There are unoccupied units, provided that such units are reserved
for occupancy by persons 62 years of age or over;
(3) There are units occupied by employees of the housing (and family
members residing in the same unit) who are under 62 years of age
provided they perform substantial duties directly related to the
management or maintenance of the housing.
(b) The following examples illustrate the application of paragraph
(a) of this section:
Example (1): John and Mary apply for housing at the Vista Heights
apartment complex which is an elderly housing complex operated for
persons 62 years of age or older. John is 62 years of age. Mary is 59
years of age. If Vista Heights wishes to retain its ''62 or over''
exemption it must refuse to rent to John and Mary because Mary is under
62 years of age. However, if Vista Heights does rent to John and Mary,
it might qualify for the ''55 or over'' exemption in 100.304.
Example (2): The Blueberry Hill retirement community has 100
dwelling units. On September 13, 1988, 15 units were vacant and 35
units were occupied with at least one person who is under 62 years of
age. The remaining 50 units were occupied by persons who were all 62
years of age or older. Blueberry Hill can qualify for the ''62 or
over'' exemption as long as all units that were occupied after September
13, 1988 are occupied by persons who were 62 years of age or older. The
people under 62 in the 35 units previously described need not be
required to leave for Blueberry Hill to qualify for the ''62 or over''
exemption.
24 CFR 100.304 55 or over housing.
(a) The provisions regarding familial status shall not apply to
housing intended and operated for occupancy by at least one person 55
years of age or older per unit, Provided That the housing satisfies the
requirements of 100.304 (b)(1) or (b)(2) and the requirements of
100.304(c).
(b)(1) The housing facility has significant facilities and services
specifically designed to meet the physical or social needs of older
persons. ''Significant facilities and services specifically designed to
meet the physical or social needs of older persons'' include, but are
not limited to, social and recreational programs, continuing education,
information and counseling, recreational, homemaker, outside maintenance
and referral services, an accessible physical environment, emergency and
preventive health care of programs, congregate dining facilities,
transportation to facilitate access to social services, and services
designed to encourage and assist residents to use the services and
facilities available to them (the housing facility need not have all of
these features to qualify for the exemption under this subparagraph);
or
(2) It is not practicable to provide significant facilities and
services designed to meet the physical or social needs of older persons
and the housing facility is necessary to provide important housing
opportunities for older persons. In order to satisfy this paragraph
(b)(2) of this section the owner or manager of the housing facility must
demonstrate through credible and objective evidence that the provision
of significant facilities and services designed to meet the physical or
social needs of older persons would result in depriving older persons in
the relevant geographic area of needed and desired housing. The
following factors, among others, are relevant in meeting the
requirements of this paragraph (b)(2) of this section --
(i) Whether the owner or manager of the housing facility has
endeavored to provide significant facilities and services designed to
meet the physical or social needs of older persons either by the owner
or by some other entity. Demonstrating that such services and
facilities are expensive to provide is not alone sufficient to
demonstrate that the provision of such services is not practicable.
(ii) The amount of rent charged, if the dwellings are rented, or the
price of the dwellings, if they are offered for sale.
(iii) The income range of the residents of the housing facility.
(iv) The demand for housing for older persons in the relevant
geographic area.
(v) The range of housing choices for older persons within the
relevant geographic area.
(vi) The availability of other similarly priced housing for older
persons in the relevant geographic area. If similarly priced housing
for older persons with significant facilities and services is reasonably
available in the relevant geographic area then the housing facility does
not meet the requirements of this paragraph (b)(2) of this section.
(vii) The vacancy rate of the housing facility.
(c)(1) At least 80% of the units in the housing facility are occupied
by at least one person 55 years of age or older per unit except that a
newly constructed housing facility for first occupancy after March 12,
1989 need not comply with this paragraph (c)(1) of this section until
25% of the units in the facility are occupied; and
(2) The owner or manager of a housing facility publishes and adheres
to policies and procedures which demonstrate an intent by the owner or
manager to provide housing for persons 55 years of age or older. The
following factors, among others, are relevant in determining whether the
owner or manager of a housing facility has complied with the
requirements of this paragraph (c)(2) of this section:
(i) The manner in which the housing facility is described to
prospective residents.
(ii) The nature of any advertising designed to attract prospective
residents.
(iii) Age verification procedures.
(iv) Lease provisions.
(v) Written rules and regulations.
(vi) Actual practices of the owner or manager in enforcing relevant
lease provisions and relevant rules or regulations.
(d) Housing satisfies the requirements of this section even though:
(1) On September 13, 1988, under 80% of the occupied units in the
housing facility are occupied by at least one person 55 years of age or
older per unit, provided that at least 80% of the units that are
occupied by new occupants after September 13, 1988 are occupied by at
least one person 55 years of age or older.
(2) There are unoccupied units, provided that at least 80% of such
units are reserved for occupancy by at least one person 55 years of age
or over.
(3) There are units occupied by employees of the housing (and family
members residing in the same unit) who are under 55 years of age
provided they perform substantial duties directly related to the
management or maintenance of the housing.
(e) The application of this section may be illustrated by the
following examples:
Example 1: A. John and Mary apply for housing at the Valley Heights
apartment complex which is a 100 unit housing complex that is operated
for persons 55 years of age or older in accordance with all the
requirements of this section. John is 56 years of age. Mary is 50
years of age. Eighty (80) units are occupied by at least one person who
is 55 years of age or older. Eighteen (18) units are occupied
exclusively by persons who are under 55. Among the units occupied by
new occupants after September 13, 1988 were 18 units occupied
exclusively by persons who are under 55. Two (2) units are vacant. At
the time John and Mary apply for housing, Valley Heights qualifies for
the ''55 or over'' exemption because 82% of the occupied units (80/98)
at Valley Heights are occupied by at least one person 55 years old or
older. If John and Mary are accepted for occupancy, then 81 out of the
99 occupied units (82%) will be occupied by at least one person who is
55 years of age or older and Valley Heights will continue to qualify for
the ''55 or over'' exemption.
B. If only 78 out of the 98 occupied units had been occupied by at
least one person 55 years of age or older, Valley Heights would still
qualify for the exemption, but could not rent to John or Mary if they
were both under 55 without losing the exemption.
Example 2: Green Meadow is a 1,000 unit retirement community that
provides significant facilities and services specifically designed to
meet the physical or social needs of older persons. On September 13,
1988, Green Meadow published and thereafter adhered to policies and
procedures demonstrating an intent to provide housing for persons 55
years of age or older. On September 13, 1988, 100 units were vacant and
300 units were occupied only by people who were under 55 years old.
Consequently, on September 13, 1988 67% of the Green Meadow's occupied
units (600 out of 900) were occupied by at at least one person 55 years
of age or older. Under paragraph (d)(1) of this section, Green Meadow
qualifies for the ''55 or over'' exemption even though, on September 13,
1988, under 80% of the occupied units in the housing facility were
occupied by at least one person 55 years of age or older per unit,
provided that at least 80% of the units that were occupied after
September 13, 1988 are occupied by at least one person 55 years of age
or older. Under paragraph (d) of this section, Green Meadow qualifies
for the ''55 or over'' exemption, even though it has unoccupied units,
provided that at least 80% of its unoccupied units are reserved for
occupancy by at least one person 55 years of age or over.
Example 3: Waterfront Gardens is a 200 unit housing facility to be
constructed after March 12, 1989. The owner and manager of Waterfront
Gardens intends to operate the new facility in accordance with the
requirements of this section. Waterfront Gardens need not comply with
the requirement in paragraph (c)(1) of this section that at least 80% of
the occupied units be occupied by at least one person 55 years of age or
older per unit until 50 units (25%) are occupied. When the 50th unit is
occupied, then 80% of the 50 occupied units (i.e., 40 units) must be
occupied by at least one person who is 55 years of age or older for
Waterfront Gardens to qualify for the ''55 or over'' exemption.
24 CFR 100.304 Subpart F -- Interference, Coercion or Intimidation
24 CFR 100.400 Prohibited interference, coercion or intimidation.
(a) This subpart provides the Department's interpretation of the
conduct that is unlawful under section 818 of the Fair Housing Act.
(b) It shall be unlawful to coerce, intimidate, threaten, or
interfere with any person in the exercise or enjoyment of, or on account
of that person having exercised or enjoyed, or on account of that person
having aided or encouraged any other person in the exercise or enjoyment
of, any right granted or protected by this part.
(c) Conduct made unlawful under this section includes, but is not
limited to, the following:
(1) Coercing a person, either orally, in writing, or by other means,
to deny or limit the benefits provided that person in connection with
the sale or rental of a dwelling or in connection with a residential
real estate-related transaction because of race, color, religion, sex,
handicap, familial status, or national origin.
(2) Threatening, intimidating or interfering with persons in their
enjoyment of a dwelling because of the race, color, religion, sex,
handicap, familial status, or national origin of such persons, or of
visitors or associates of such persons.
(3) Threatening an employee or agent with dismissal or an adverse
employment action, or taking such adverse employment action, for any
effort to assist a person seeking access to the sale or rental of a
dwelling or seeking access to any residential real estate-related
transaction, because of the race, color, religion, sex, handicap,
familial status, or national origin of that person or of any person
associated with that person.
(4) Intimidating or threatening any person because that person is
engaging in activities designed to make other persons aware of, or
encouraging such other persons to exercise, rights granted or protected
by this part.
(5) Retaliating against any person because that person has made a
complaint, testified, assisted, or participated in any manner in a
proceeding under the Fair Housing Act.
24 CFR 100.400 PART 103 -- FAIR HOUSING -- COMPLAINT PROCESSING
24 CFR 100.400 Subpart A -- Purpose and Definitions
Sec.
103.1 Purpose and applicability.
103.5 Other civil rights authorities.
103.9 Definitions.
24 CFR 100.400 Subpart B -- Complaints
103.10 Submission of information.
103.15 Who may file complaints.
103.20 Persons against whom complaints may be filed.
103.25 Where to file complaints.
103.30 Form and content of complaint.
103.40 Date of filing of complaint.
103.42 Amendment of complaint.
103.45 Service of notice on aggrieved person.
103.50 Notification of respondent; joinder of additional or
substitute respondents.
103.55 Answer to complaint.
24 CFR 100.400 Subpart C -- Referral of Complaints to State and Local
Agencies
103.100 Notification and referral to substantially equivalent State
or local agencies.
103.105 Cessation of action on referred complaints.
103.110 Reactivation of referred complaints.
103.115 Notification upon reactivation.
24 CFR 100.400 Subpart D -- Investigation Procedures
103.200 Investigations.
103.205 Systemic processing.
103.215 Conduct of investigation.
103.220 Cooperation of Federal, State and local agencies.
103.225 Completion of investigation.
103.230 Final investigative report.
24 CFR 100.400 Subpart E -- Conciliation Procedures
103.300 Conciliation.
103.310 Conciliation agreement.
103.315 Relief sought for aggrieved persons.
103.320 Provisions sought for the public interest.
103.325 Termination of conciliation efforts.
103.330 Prohibitions and requirements with respect to disclosure of
information obtained during conciliation.
103.335 Review of compliance with conciliation agreements.
24 CFR 100.400 Subpart F -- Issuance of Charge
103.400 Reasonable cause determination.
103.405 Issuance of charge.
103.410 Election of civil action or provision of administrative
proceeding.
24 CFR 100.400 Subpart G -- Prompt Judicial Action
103.500 Prompt judicial action.
24 CFR 100.400 Subpart H -- Other Action
103.510 Other action by HUD.
103.515 Action by other agencies.
Appendix to Part 103 -- List of Department of Housing and Urban
Development Regional Offices and Jurisdictional Areas and Field Offices
Authority: 42 U.S.C. 3601-3619; 42 U.S.C. 3535(d).
Source: 54 FR 3292, Jan. 23, 1989, unless otherwise noted.
24 CFR 100.400 Subpart A -- Purpose and Definitions
24 CFR 103.1 Purpose and applicability.
(a) This part contains the procedures established by the Department
of Housing and Urban Development for the investigation and conciliation
of complaints under section 810 of the Fair Housing Act, 42 U.S.C. 3610.
(b) This part applies to:
(1) Complaints alleging discriminatory housing practices because of
race, color, religion, sex or national origin; and
(2) Complaints alleging discriminatory housing practices on account
of handicap or familial status occurring on or after March 12, 1989.
(c) Part 104 governs the administrative proceedings before an
administrative law judge adjudicating charges issued under 103.405.
(d) The Department will reasonably accommodate persons with
disabilities who are participants in complaint processing.
24 CFR 103.5 Other civil rights authorities.
In addition to the Fair Housing Act, other civil rights authorities
may be applicable in a particular case. Thus, where a person charged
with a discriminatory housing practice in a complaint filed under
section 810 of the Fair Housing Act is also prohibited from engaging in
similar practices under title VI of the Civil Rights Act of 1964 (42
U.S.C. 2000d-2000d-5), section 109 of the Housing and Community
Development Act of 1974 (42 U.S.C. 5309), Executive Order 11063 of
November 20, 1962, on Equal Opportunity in Housing (27 FR 11527-11530,
November 24, 1962), section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), the Age Discrimination Act (42 U.S.C. 6101) or other
applicable law, the person may also be subject to action by HUD or other
Federal agencies under the rules, regulations, and procedures prescribed
under title VI (24 CFR parts 1 and 2), section 109 (24 CFR 570.602)),
Executive Order 11063 (24 CFR part 107), section 504 (24 CFR part 8), or
other applicable law.
24 CFR 103.9 Definitions.
As used in this part,
Aggrieved person includes any person who:
(a) Claims to have been injured by a discriminatory housing practice;
or
(b) Believes that such person will be injured by a discriminatory
housing practice that is about to occur.
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity in HUD.
Attorney General means the Attorney General of the United States.
Complainant means the person (including the Assistant Secretary) who
files a complaint under this part.
Conciliation means the attempted resolution of issues raised by a
complaint, or by the investigation of a complaint, through informal
negotiations involving the aggrieved person, the respondent, and the
Assistant Secretary.
Conciliation agreement means a written agreement setting forth the
resolution of the issues in conciliation.
Discriminatory housing practice means an act that is unlawful under
section 804, 805, 806 or 818 of the Fair Housing Act, as described in
part 100.
Dwelling means any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by
one or more families, or any vacant land which is offered for sale or
lease for the construction or location thereon of any such building,
structure, or portion thereof.
Fair Housing Act means title VIII of the Civil Rights Act of 1968, 42
U.S.C. 3600-3620.
General Counsel means the General Counsel of HUD.
HUD means the United States Department of Housing and Urban
Development.
Person includes one or more individuals, corporations, partnerships,
associations, labor organizations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustee in cases under title 11 U.S.C., receivers and
fiduciaries.
Personal service means handing a copy of the document to the person
to be served or leaving a copy of the document with a person of suitable
age and discretion at the place of business, residence or usual place of
abode of the person to be served.
Receipt of notice means the day that personal service is completed by
handing or delivering a copy of the document to an appropriate person or
the date that a document is delivered by certified mail.
Respondent means:
(a) The person or other entity accused in a complaint of a
discriminatory housing practice; and
(b) Any other person or entity identified in the course of
investigation and notified as required under 103.50.
State means any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, or any of the territories and possessions
of the United States.
Substantially equivalent State or local agency means a State or local
agency certified by HUD under 24 CFR part 115 (including agencies
certified for interim referrals).
To rent includes to lease, to sublease, to let, and otherwise to
grant for consideration the right to occupy premises not owned by the
occupant.
24 CFR 103.9 Subpart B -- Complaints
24 CFR 103.10 Submission of information.
(a) The Assistant Secretary will receive information concerning
alleged discriminatory housing practices from any person. Where the
information constitutes a complaint within the meaning of the Fair
Housing Act and this part and is furnished by an aggrieved person, it
will be considered to be filed under 103.40. Where additional
information is required for purposes of perfecting a complaint under the
Fair Housing Act, HUD will advise what additional information is needed
and will provide appropriate assistance in the filing of the complaint.
(b) HUD may also concurrently initiate compliance reviews under other
appropriate civil rights authorities, such as E.O. 11063 on Equal
Opportunity in Housing, title VI of the Civil Rights Act of 1964,
section 109 of the Housing and Community Development Act of 1974,
section 504 of the Rehabilitation Act of 1973 or the Age Discrimination
Act (42 U.S.C. 6101). The information may also be made available to any
other Federal, State or local agency having an interest in the matter.
In making available such information, steps will be taken to protect the
confidentiality of any informant or complainant where desired by the
informant or complainant.
24 CFR 103.15 Who may file complaints.
Any aggrieved person or the Assistant Secretary may file a complaint
no later than one year after an alleged discriminatory housing practice
has occurred or terminated. The complaint may be filed with the
assistance of an authorized representative of an aggrieved person,
including any organization acting on behalf of an aggrieved person.
24 CFR 103.20 Persons against whom complaints may be filed.
(a) A complaint may be filed against any person alleged to be
engaged, to have engaged, or to be about to engage, in a discriminatory
housing practice.
(b) A complaint may also be filed against any person who directs or
controls, or has the right to direct or control, the conduct of another
person with respect to any aspect of the sale, rental, advertising or
financing of dwellings or the provision of brokerage services relating
to the sale or rental of dwellings if that other person, acting within
the scope of his or her authority as employee or agent of the directing
or controlling person, is engaged, has engaged, or is about to engage,
in a discriminatory housing practice.
24 CFR 103.25 Where to file complaints.
(a)(1) Aggrieved persons may file complaints in person with, or by
mail to: Fair Housing, Department of Housing and Urban Development,
Washington DC 20410, or any HUD Office. A list of Regional Offices
(with addresses and areas of jurisdiction) and Field Offices (with
addresses) is contained in an appendix to this part.
(2) Aggrieved persons may provide information to be contained in a
complaint by telephone to any Regional or Field Office of HUD. HUD will
reduce information provided by telephone to writing on the prescribed
complaint form and send the form to the aggrieved person to be signed
and affirmed as provided in 103.30(a).
(3) Complaints may be filed in person or by mail with any
substantially equivalent State or local agency. Complaints filed with a
substantially equivalent State or local agency will be considered to be
complaints dual filed with the agency under its own law, and with HUD
under the Fair Housing Act.
(b) Generally, complaints will be processed through HUD's Regional
Administrator having jurisdiction in the State in which the alleged
discriminatory housing practice occurred. However, where a complaint
has been identified for systemic processing under 103.205, that
complaint may be processed in the Office of the Assistant Secretary in
Washington, DC.
24 CFR 103.30 Form and content of complaint.
(a) Each complaint must be in writing and must be signed and affirmed
by the aggrieved person filing the complaint or, if the complaint is
filed by HUD, by the Assistant Secretary. The signature and affirmation
may be made at any time during the investigation. The affirmation shall
state: ''I declare under penalty of perjury that the foregoing is true
and correct.''
(b) The Assistant Secretary may require complaints to be made on
prescribed forms. Complaint forms will be available in any HUD office
or in any substantially equivalent State or local agency.
Notwithstanding any requirement for use of a prescribed form, HUD will
accept any written statement which substantially sets forth the
allegations of a discriminatory housing practice under the Fair Housing
Act (including any such statement filed with a substantially equivalent
State or local agency) as a Fair Housing Act complaint. Personnel in
these offices will provide appropriate assistance in filling out forms
and in filing a complaint.
(c) Each complaint must contain substantially the following
information:
(1) The name and address of the aggrieved person.
(2) The name and address of the respondent.
(3) A description and the address of the dwelling which is involved,
if appropriate.
(4) A concise statement of the facts, including pertinent dates,
constituting the alleged discriminatory housing practice.
24 CFR 103.40 Date of filing of complaint.
(a) Except as provided in paragraph (b) of this section, a complaint
is filed when it is received by HUD, or dual filed with HUD through a
substantially equivalent State or local agency, in a form that
reasonably meets the standards of 103.30.
(b) The Assistant Secretary may determine that a complaint is filed
for the purposes of the one-year period for the filing of complaints,
upon the submission of written information (including information
provided by telephone and reduced to writing by an employee of HUD)
identifying the parties and describing generally the alleged
discriminatory housing practice.
(c) Where a complaint alleges a discriminatory housing practice that
is continuing, as manifested in a number of incidents of such conduct,
the complaint will be timely if filed within one year of the last
alleged occurrence of that practice.
24 CFR 103.42 Amendment of complaint.
Complaints may be reasonably and fairly amended at any time. Such
amendments may include, but are not limited to: amendments to cure
technical defects or omissions, including failure to sign or affirm a
complaint, to clarify or amplify the allegations in a complaint, or to
join additional or substitute respondents. Except for the purposes of
notifying respondents under 103.50, amended complaints will be
considered as having been made as of the original filing date.
24 CFR 103.45 Service of notice on aggrieved person.
Upon the filing of a complaint, the Assistant Secretary will notify,
by certified mail or personal service, each aggrieved person on whose
behalf the complaint was filed. The notice will:
(a) Acknowledge the filing of the complaint and state the date that
the complaint was accepted for filing.
(b) Include a copy of the complaint.
(c) Advise the aggrieved person of the time limits applicable to
complaint processing and of the procedural rights and obligations of the
aggrieved person under this part and part 104.
(d) Advise the aggrieved person of his or her right to commence a
civil action under section 813 of the Fair Housing Act in an appropriate
United States District Court, not later than two years after the
occurrence or termination of the alleged discriminatory housing
practice. The notice will state that the computation of this two-year
period excludes any time during which a proceeding is pending under this
part or part 104 with respect to a complaint or charge based on the
alleged discriminatory housing practice. The notice will also state
that the time period includes the time during which an action arising
from a breach of a conciliation agreement under section 814(b)(2) of the
Fair Housing Act is pending.
(e) Advise the aggrieved person that retaliation against any person
because he or she made a complaint or testified, assisted, or
participated in an investigation or conciliation under this part or an
administrative proceeding under part 104, is a discriminatory housing
practice that is prohibited under section 818 of the Fair Housing Act.
24 CFR 103.50 Notification of respondent; joinder of additional or
substitute respondents.
(a) Within ten days of the filing of a complaint under 103.40 or the
filing of an amended complaint under 103.42, the Assistant Secretary
will serve a notice on each respondent by certified mail or by personal
service. A person who is not named as a respondent in a complaint, but
who is identified in the course of the investigation under subpart D of
this part as a person who is alleged to be engaged, to have engaged, or
to be about to engage in the discriminatory housing practice upon which
the complaint is based may be joined as an additional or substitute
respondent by service of a notice on the person under this section
within ten days of the identification.
(b)(1) The notice will identify the alleged discriminatory housing
practice upon which the complaint is based, and include a copy of the
complaint.
(2) The notice will state the date that the complaint was accepted
for filing.
(3) The notice will advise the respondent of the time limits
applicable to complaint processing under this part and of the procedural
rights and obligations of the respondent under this part and part 104,
including the opportunity to submit an answer to the complaint within 10
days of the receipt of the notice.
(4) The notice will advise the respondent of the aggrieved person's
right to commence a civil action under section 813 of the Fair Housing
Act in an appropriate United States District Court, not later than two
years after the occurrence or termination of the alleged discriminatory
housing practice. The notice will state that the computation of this
two-year period excludes any time during which a proceeding is pending
under this part or part 104 with respect to a complaint or charge based
on the alleged discriminatory housing practice. The notice will also
state that the time period includes the time during which an action
arising from a breach of a conciliation agreement under section
814(b)(2) of the Fair Housing Act is pending.
(5) If the person is not named in the complaint, but is being joined
as an additional or substitute respondent, the notice will explain the
basis for the Assistant Secretary's belief that the joined person is
properly joined as a respondent.
(6) The notice will advise the respondent that retaliation against
any person because he or she made a complaint or testified, assisted or
participated in an investigation or conciliation under this part or an
administrative proceeding under part 104, is a discriminatory housing
practice that is prohibited under section 818 of the Fair Housing Act.
24 CFR 103.55 Answer to complaint.
(a) The respondent may file an answer not later than ten days after
receipt of the notice described in 103.50. The respondent may assert
any defense that might be available to a defendent in a court of law.
The answer must be signed and affirmed by the respondent. The
affirmation must state: ''I declare under penalty of perjury that the
foregoing is true and correct.''
(b) An answer may be reasonably and fairly amended at any time with
the consent of the Assistant Secretary.
24 CFR 103.55 Subpart C -- Referral of Complaints to State and Local Agencies
24 CFR 103.100 Notification and referral to substantially equivalent
State or local agencies.
(a) Whenever a complaint alleges a discriminatory housing practice
that is within the jurisdiction of a substantially equivalent State or
local agency and the agency is certified or may accept interim referrals
under 24 CFR part 115 with regard to the alleged discriminatory housing
practice, the Assistant Secretary will notify the agency of the filing
of the complaint and refer the complaint to the agency for further
processing before HUD takes any action with respect to the complaint.
The Assistant Secretary will notify the State or local agency of the
referral by certified mail.
(b) The Assistant Secretary will notify the aggrieved person and the
respondent, by certified mail or personal service, of the notification
and referral under paragraph (a) of this section. The notice will
advise the aggrieved person and the respondent of the aggrieved person's
right to commence a civil action under section 813 of the Fair Housing
Act in an appropriate United States District Court, not later than two
years after the occurrence or termination of the alleged discriminatory
housing practice. The notice will state that the computation of this
two-year period excludes any time during which a proceeding is pending
under this part or part 104 with respect to complaint or charge based on
the alleged discriminatory housing practice. The notice will also state
that the time period includes the time during which an action arising
from a breach of a conciliation agreement under section 814(b)(2) of the
Fair Housing Act is pending.
24 CFR 103.105 Cessation of action on referred complaints.
(a) After a complaint is referred under 103.100, the Assistant
Secretary will take no futher action with respect to the complaint,
except as provided in 103.110.
(b) A referral under 103.100 does not prohibit the Assistant
Secretary from taking appropriate action to review or investigate
matters in the complaint that raise issues cognizable under other civil
rights authorities applicable to departmental programs (see 103.5).
24 CFR 103.110 Reactivation of referred complaints.
The Assistant Secretary may reactivate a complaint referred under
103.100 for processing by HUD if:
(a) The substantially equivalent State or local agency consents or
requests the reactivation;
(b) The Assistant Secretary determines that, with respect to the
alleged discriminatory housing practice, the agency no longer qualifies
for certification as a substantially equivalent State or local agency
and may not accept interim referrals; or
(c) The substantially equivalent State or local agency has failed to
commence proceedings with respect to the complaint within 30 days of the
date that it received the notification and referral of the complaint;
or the agency commenced proceedings within this 30-day period, but the
Assistant Secretary determines that the agency has failed to carry the
proceedings forward with reasonable promptness. HUD will not reactivate
a complaint under this paragraph (c) of this section until the
appropriate HUD Regional Office has conferred with the agency to
determine the reason for the delay in processing of the complaint. If
the Assistant Secretary believes that the agency will proceed
expeditiously following the conference, the Assistant Secretary may
leave the complaint with the agency for a reasonable time,
notwithstanding the expiration of the 30-day period or a previous
failure to carry the proceedings forward with reasonable promptness.
24 CFR 103.115 Notification upon reactivation.
(a) Whenever a complaint referred to a State or local fair housing
agency under 103.100 is reactivated under 103.110, the Assistant
Secretary will notify the substantially equivalent State or local
agency, the aggrieved person and the respondent of HUD's reactivation.
The notification will be made by certified mail or personal service.
(b) The notification to the respondent and the aggrieved person will:
(1) Advise the aggrieved person and the respondent of the time limits
applicable to complaint processing and the procedural rights and
obligations of the aggrieved person and the respondent under this part
and part 104.
(2) State that HUD will process the complaint under the Fair Housing
Act and that the State or local agency to which the complaint was
referred may continue to process the complaint under State or local law.
(3) Advise the aggrieved person and the respondent of the aggrieved
person's right to commence a civil action under section 813 of the Fair
Housing Act in an appropriate United States District Court, not later
than two years after the occurrence or termination of the alleged
discriminatory housing practice. The notice will state that the
computation of this two-year period excludes any time during which a
proceeding is pending under this part or part 104 with respect to a
complaint or charge based on the alleged discriminatory housing practice
under part 104. The notices will also state that the time period
includes the time during which an action arising from a breach of
conciliation agreement under section 814(b)(2) of the Fair Housing Act
is pending.
24 CFR 103.115 Subpart D -- Investigation Procedures
24 CFR 103.200 Investigations.
(a) Upon the filing of a complaint under 103.40, the Assistant
Secretary will initiate an investigation. The purposes of an
investigation are:
(1) To obtain information concerning the events or transactions that
relate to the alleged discriminatory housing practice identified in the
complaint.
(2) To document policies or practices of the respondent involved in
the alleged discriminatory housing practice raised in the complaint.
(3) To develop factual data necessary for the General Counsel to make
a determination under 103.400 whether reasonable cause exists to
believe that a discriminatory housing practice has occurred or is about
to occur, and for the Assistant Secretary to make a determination under
103.400 that no reasonable cause exists to believe that a discriminatory
housing practice has occurred or is about to occur, and to take other
actions provided under this part.
(b) Upon the written direction of the Assistant Secretary, HUD may
initate an investigation of housing practices to determine whether a
complaint should be filed under subpart B of this part. Such
investigations will be conducted in accordance with the procedures
described under this subpart.
(54 FR 3292, Jan. 23, 1989, as amended at 55 FR 53293, Dec. 28, 1990,
57 FR 39116, Aug. 28, 1992)
24 CFR 103.205 Systemic processing.
Where the Assistant Secretary determines that the alleged
discriminatory practices contained in a complaint are pervasive or
institutional in nature, or that the processing of the complaint will
involve complex issues, novel questions of fact or law, or will affect a
large number of persons, the Assistant Secretary may identify the
complaint for systemic processing. This determination can be based on
the face of the complaint or on information gathered in connection with
an investigation. Systemic investigations may focus not only on
documenting facts involved in the alleged discriminatory housing
practice that is the subject of the complaint but also on review of
other policies and procedures related to matters under investigation, to
make sure that they also comply with the nondiscrimination requirements
of the Fair Housing Act.
24 CFR 103.215 Conduct of investigation.
(a) In conducting investigations under this part, the Assistant
Secretary will seek the voluntary cooperation of all persons to obtain
access to premises, records, documents, individuals, and other possible
sources of information; to examine, record, and copy necessary
materials; and to take and record testimony or statements of persons
reasonably necessary for the furtherance of the investigation.
(b) The Assistant Secretary and the respondent may conduct discovery
in aid of the investigation by the same methods and to the same extent
that parties may conduct discovery in an administrative proceeding under
24 CFR part 104, except that the Assistant Secretary shall have the
power to issue subpoenas described in 24 CFR 104.590 in support of the
investigation or at the request of the respondent. Subpoenas issued by
the Assistant Secretary must be approved by the General Counsel as to
their legality before issuance.
24 CFR 103.220 Cooperation of Federal, State and local agencies.
The Assistant Secretary, in processing Fair Housing Act complaints,
may seek the cooperation and utilize the services of Federal, State or
local agencies, including any agency having regulatory or supervisory
authority over financial institutions.
24 CFR 103.225 Completion of investigation.
The investigation will remain open until the reasonable cause
determination is made under 103.400, or a conciliation agreement is
executed and approved under 103.310. Unless it is impracticable to do
so, the Assistant Secretary will complete the investigation of the
alleged discriminatory housing practice within 100 days of the filing of
the complaint (or where the Assistant Secretary reactivates the
complaint, within 100 days after service of the notice of reactivation
under 103.115). If the Assistant Secretary is unable to complete the
investigation within the 100-day period, HUD will notify the aggrieved
person and the respondent, by mail, of the reasons for the delay.
(55 FR 3211, Jan. 31, 1990)
24 CFR 103.230 Final investigative report.
(a) At the end of each investigation under this part, the Assistant
Secretary will prepare a final investigative report. The investigative
report will contain:
(1) The names and dates of contacts with witnesses, except that the
report will not disclose the names of witnesses that request anonymity.
HUD, however, may be required to disclose the names of such witnesses in
the course of an administrative hearing under part 104 or a civil action
under title VIII of the Fair Housing Act;
(2) A summary and the dates of correspondence and other contacts with
the aggrieved person and the respondent;
(3) A summary description of other pertinent records;
(4) A summary of witness statements; and
(5) Answers to interrogatories.
(b) A final investigative report may be amended at any time, if
additional evidence is discovered.
(c) Notwithstanding the prohibitions and requirements with respect to
disclosure of information contained in 103.330, the Assistant Secretary
will make information derived from an investigation, including the final
investigative report, available to the aggrieved person and the
respondent. Following the completion of investigation, the Assistant
Secretary shall notify the aggrieved person and the respondent that the
final investigation report is complete and will be provided upon
request.
24 CFR 103.230 Subpart E -- Conciliation Procedures
24 CFR 103.300 Conciliation.
(a) During the period beginning with the filing of the complaint and
ending with the filing of a charge or the dismissal of the complaint by
the General Counsel or the Assistant Secretary, the Assistant Secretary
will, to the extent feasible, attempt to conciliate the complaint.
(b) In conciliating a complaint, HUD will attempt to achieve a just
resolution of the complaint and to obtain assurances that the respondent
will satisfactorily remedy any violations of the rights of the aggrieved
person, and take such action as will assure the elimination of
discriminatory housing practices, or the prevention of their occurrence,
in the future.
(c) Generally, officers, employees, and agents of HUD engaged in the
investigation of a complaint under this part will not participate or
advise in the conciliation of the same complaint or in any factually
related complaint. Where the rights of the aggrieved party and the
respondent can be protected and the prohibitions with respect to the
disclosure of information can be observed, the investigator may suspend
fact finding and engage in efforts to resolve the complaint by
conciliation.
(54 FR 3292, Jan. 23, 1989, as amended at 55 FR 53294, Dec. 28, 1990)
24 CFR 103.310 Conciliation agreement.
(a) The terms of a settlement of a complaint will be reduced to a
written conciliation agreement. The conciliation agreement shall seek
to protect the interests of the aggrieved person, other persons
similarly situated, and the public interest. The types of relief that
may be sought for the aggrieved person are described in 103.315. The
provisions that may be sought for the vindication of the public interest
are described in 103.320.
(b)(1) The agreement must be executed by the respondent and the
complainant. The agreement is subject to the approval of the Assistant
Secretary, who will indicate approval by signing the agreement. The
Assistant Secretary will approve an agreement and, if the Assistant
Secretary is the complainant, will execute the agreement, only if:
(i) The complainant and the respondent agree to the relief accorded
the aggrieved person;
(ii) The provisions of the agreement will adequately vindicate the
public interest; and
(iii) If the Assistant Secretary is the complainant, all aggrieved
persons named in the complaint are satisfied with the relief provided to
protect their interests.
(2) The General Counsel may issue a charge under 103.405 if the
aggrieved person and the respondent have executed a conciliation
agreement that has not been approved by the Assistant Secretary.
24 CFR 103.315 Relief sought for aggrieved persons.
(a) The following types of relief may be sought for aggrieved persons
in conciliation:
(1) Monetary relief in the form of damages, including damages caused
by humiliation or embarrassment, and attorney fees;
(2) Other equitable relief including, but not limited to, access to
the dwelling at issue, or to a comparable dwelling, the provision of
services or facilities in connection with a dwelling, or other specific
relief; or
(3) Injunctive relief appropriate to the elimination of
discriminatory housing practices affecting the aggrieved person or other
persons.
(b) The conciliation agreement may provide for binding arbitration of
the dispute arising from the complaint. Arbitration may award
appropriate relief as described in paragraph (a) of this section. The
aggrieved person and the respondent may, in the conciliation agreement,
limit the types of relief that may be awarded under binding arbitration.
24 CFR 103.320 Provisions sought for the public interest.
The following are types of provisions may be sought for the
vindication of the public interest:
(a) Elimination of discriminatory housing practices.
(b) Prevention of future discriminatory housing practices.
(c) Remedial affirmative activities to overcome discriminatory
housing practices.
(d) Reporting requirements.
(e) Monitoring and enforcement activities.
24 CFR 103.325 Termination of conciliation efforts.
(a) HUD may terminate its efforts to conciliate the complaint if the
respondent fails or refuses to confer with HUD; the aggrieved person or
the respondent fail to make a good faith effort to resolve any dispute;
or HUD finds, for any reason, that voluntary agreement is not likely to
result.
(b) Where the aggrieved person has commenced a civil action under an
Act of Congress or a State law seeking relief with respect to the
alleged discriminatory housing practice, and the trial in the action has
commenced, HUD will terminate conciliation unless the court specifically
requests assistance from the Assistant Secretary.
24 CFR 103.330 Prohibitions and requirements with respect to disclosure
of information obtained during conciliation.
(a) Except as provided in paragraph (b) of this section and
103.230(c), nothing that is said or done in the course of conciliation
under this part may be made public or used as evidence in a subsequent
administrative hearing under part 104 or in civil actions under title
VIII of the Fair Housing Act, without the written consent of the persons
concerned.
(b) Conciliation agreements shall be made public, unless the
aggrieved person and respondent request nondisclosure and the Assistant
Secretary determines that disclosure is not required to further the
purposes of the Fair Housing Act. Notwithstanding a determination that
disclosure of a conciliation agreement is not required, the Assistant
Secretary may publish tabulated descriptions of the results of all
conciliation efforts.
24 CFR 103.335 Review of compliance with conciliation agreements.
HUD may, from time to time, review compliance with the terms of any
conciliation agreement. Whenever HUD has reasonable cause to believe
that a respondent has breached a conciliation agreement, the General
Counsel shall refer the matter to the Attorney General with a
recommendation for the filing of a civil action under section 814(b)(2)
of the Fair Housing Act for the enforcement of the terms of the
conciliation agreement.
24 CFR 103.335 Subpart F -- Issuance of Charge
24 CFR 103.400 Reasonable cause determination.
(a) If a conciliation agreement under 103.310 has not been executed
by the complainant and the respondent and approved by the Assistant
Secretary, the Assistant Secretary shall conduct a review of the factual
circumstances revealed as part of HUD's investigation.
(1) If the Assistant Secretary for Fair Housing and Equal Opportunity
determines that, based on the totality of factual circumstances known at
the time of the Assistant Secretary's review, no reasonable cause exists
to believe that a discriminatory housing practice has occurred or is
about to occur, the Assistant Secretary shall: Issue a short and plain
written statement of the facts upon which the Assistant Secretary has
based the no reasonable cause determination; dismiss the complaint;
notify the aggrieved person and the respondent of the dismissal
(including the written statement of facts) by mail; and make public
disclosure of the dismissal. The respondent may request that no public
disclosure be made. Notwithstanding such a request, the fact of
dismissal, including the names of the parties, shall be public
information available on request. The Assistant Secretary's
determination shall be based solely upon the facts concerning the
alleged discriminatory housing practice provided by complainant and
respondent and otherwise disclosed during the investigation. In making
this determination, the Assistant Secretary shall consider whether the
facts concerning the alleged discriminatory housing practice are
sufficient to warrant the initiation of a civil action in federal court.
(2) If the Assistant Secretary believes that reasonable cause may
exist to believe that a discriminatory housing practice has occurred or
is about to occur, the Assistant Secretary shall forward the matter to
the General Counsel for consideration. In all such cases not involving
the legality of local land use laws or ordinances (except as provided in
paragraph (b) of this section), the General Counsel shall determine
whether, based on the totality of the factual circumstances known at the
time of the decision, reasonable cause exists to believe that a
discriminatory housing practice has occurred or is about to occur. The
General Counsel's determination shall be based solely on the facts
concerning the alleged discriminatory housing practice provided by
complainant and respondent and otherwise disclosed during the
investigation. In making this determination, the General Counsel shall
consider whether the facts concerning the alleged discriminatory housing
practice are sufficient to warrant the initiation of a civil action in
Federal court.
(i) If the General Counsel determines that reasonable cause exists,
the General Counsel will immediately issue a charge under 103.405 on
behalf of the aggrieved person, and shall notify the aggrieved person
and the respondent of this determination by certified mail or personal
service.
(ii) If the General Counsel determines that no reasonable cause
exists, the General Counsel shall: Issue a short and plain written
statement of the facts upon which the General Counsel has based the no
reasonable cause determination; dismiss the complaint; notify the
aggrieved person and the respondent of the dismissal (including the
written statement of facts) by mail; and make public disclosure of the
dismissal. The respondent may request that no public disclosure be
made. Notwithstanding such a request, the fact of dismissal, including
the names of the parties, shall be public information available on
request.
(3) If the General Counsel determines that the matter involves the
legality of local zoning or land use laws or ordinances, the General
Counsel, in lieu of making a determination regarding reasonable cause,
shall refer the investigative materials to the Attorney General for
appropriate action under section 814(b)(1) of the Fair Housing Act, and
shall notify the aggrieved person and the respondent of this action by
mail or personal service.
(b) The General Counsel may not issue a charge under paragraph (a) of
this section regarding an alleged discriminatory housing practice, if an
aggrieved person has commenced a civil action under an Act of Congress
or a State law seeking relief with respect to the alleged discriminatory
housing practice, and the trial in the action has commenced. If a
charge may not be issued because of the commencement of such a trial,
the General Counsel shall so notify the aggrieved person and the
respondent by certified mail or personal service.
(c)(1) A determination of no reasonable cause by the Assistant
Secretary or any determination by the General Counsel shall be made
within 100 days after filing of the complainant (or where the Assistant
Secretary has reactivated a complaint, within 100 days after service of
the notice of reactivation under 103.115), unless it is impractical to
do so.
(2) If the Assistant Secretary or the General Counsel is unable to
make the determination within the 100-day period specified in paragraph
(c)(1) of this section, HUD will notify the aggrieved person and the
respondent, by mail, of the reasons for the delay.
(55 FR 53294, Dec. 28, 1990, as amended at 57 FR 18398, Apr. 30,
1992)
24 CFR 103.405 Issuance of charge.
(a) A charge:
(1) Shall consist of a short and plain written statement of the facts
upon which the General Counsel has found reasonable cause to believe
that a discriminatory housing practice has occurred or is about to
occur;
(2) Shall be based on the final investigative report; and
(3) Need not be limited to facts or grounds that are alleged in the
complaint filed under subpart B of this part. If the charge is based on
grounds that are not alleged in the complaint, HUD will not issue a
charge with regard to the grounds unless the record of investigation
demonstrates that the respondent has been given notice and an
opportunity to respond to the allegation.
(b) Within three business days after the issuance of the charge, the
General Counsel shall:
(1) Obtain a time and place for hearing from the Chief Docket Clerk
of the Office of Administrative Law Judges;
(2) File the charge along with the notifications described in
104.410(b) with the Office of Administrative Law Judges;
(3) Serve the charge and notifications in accordance with 24 CFR
104.40; and
(4) Notify the Assistant Secretary of the filing of the charge.
(54 FR 3292, Jan. 23, 1989, as amended at 56 FR 55078, Oct. 24, 1991)
24 CFR 103.410 Election of civil action or provision of administrative
proceeding.
(a) If a charge is issued under 103.405, a complainant (including
the Assistant Secretary, if HUD filed the complaint), a respondent, or
an aggrieved person on whose behalf the complaint is filed may elect, in
lieu of an administrative proceeding under 24 CFR part 104, to have the
claims asserted in the charge decided in a civil action under section
812(o) of the Fair Housing Act.
(b) The election must be made not later than 20 says after the
receipt of service of the charge, or in the case of the Assistant
Secretary, not later than 20 days after service. The notice of the
election must be filed with the Chief Docket Clerk in the Office of
Administrative Law Judges and served on the General Counsel, the
Assistant Secretary, the respondent, and the aggrieved persons on whose
behalf the complaint was filed. The notification will be filed and
served in accordance with the procedures established under 24 CFR part
104.
(c) If an election is not made under this section, the General
Counsel will maintain an administrative proceeding based on the charge
in accordance with the procedures under 24 CFR part 104.
(d) If an election is made under this section, the General Counsel
shall immediately notify and authorize the Attorney General to commence
and maintain a civil action seeking relief under section 812(o) of the
Fair Housing Act on behalf of the aggrieved person in an appropriate
United States District Court. Such notification and authorization shall
include transmission of the file in the case, including a copy of the
final investigative report and the charge, to the Attorney General.
(e) The General Counsel shall be available for consultation
concerning any legal issues raised by the Attorney General as to how
best to proceed in the event that a new court decision or newly
discovered evidence is regarded as relevant to the reasonable cause
determination.
24 CFR 103.410 Subpart G -- Prompt Judicial Action
24 CFR 103.500 Prompt judicial action.
(a) If at any time following the filing of a complaint, the General
Counsel concludes that prompt judicial action is necessary to carry out
the purposes of this part or 24 CFR part 104, the General Counsel may
authorize the Attorney General to commence a civil action for
appropriate temporary or preliminary relief pending final disposition of
the complaint. To ensure the prompt initiation of the civil action, the
General Counsel will consult with the Assistant Attorney General for the
Civil Rights Division before making the determination that prompt
judicial action is necessary. The commencement of a civil action by the
Attorney General under this section will not affect the initiation or
continuation of proceedings under this part or administrative
proceedings under part 104.
(b) If the General Counsel has reason to believe that a basis exists
for the commencement of proceedings against the respondent under section
814(a) of the Fair Housing Act (Pattern or Practice Cases), proceedings
under section 814(c) of the Fair Housing Act (Enforcement of Subpoenas),
or proceedings by any governmental licensing or supervisory authorities,
the General Counsel shall transmit the information upon which that
belief is based to the Attorney General and to other appropriate
authorities.
24 CFR 103.500 Subpart H -- Other Action
24 CFR 103.510 Other action by HUD.
In addition to the actions described in 103.500, HUD may pursue one
or more of the following courses of action:
(a) Refer the matter to the Attorney General for appropriate action
(e.g., enforcement of criminal penalties under section 811(c) of the
Act).
(b) Take appropriate steps to initiate proceedings leading to the
debarment of the respondent under 24 CFR part 24, or initiate other
actions leading to the imposition of administrative sanctions where HUD
determines that such actions are necessary to the effective operation
and administration of Federal programs or activities.
(c) Take appropriate steps to initiate proceedings under:
(1) 24 CFR part 1, implementing title VI of the Civil Rights Act of
1964;
(2) 24 CFR 570.912, implementing section 109 of the Housing and
Community Development Act of 1974;
(3) 24 CFR part 8, implementing section 504 of the Rehabilitation Act
of 1973;
(4) 24 CFR part 107, implementing Executive Order 11063; or
(5) The Age Discrimination Act, 42 U.S.C. 6101.
(d) Inform any other Federal, State or local agency with an interest
in the enforcement of respondent's obligations with respect to
nondiscrimination in housing.
24 CFR 103.515 Action by other agencies.
In accordance with section 808 (d) and (e) of the Fair Housing Act
and Executive Order No. 12259, other Federal agencies, including any
agency having regulatory or supervisory authority over financial
institutions, are responsible for ensuring that their programs and
activities relating to housing and urban development are administered in
a manner affirmatively to further the goal of fair housing, and for
cooperating with the Assistant Secretary in furthering the purposes of
the Fair Housing Act.
24 CFR 103.515 Pt. 103, Appendix
24 CFR 103.515 Appendix to Part 103 -- Lists of Department of Housing
and Urban Development Regional Offices and Jurisdictional Areas and
Field Offices
1. HUD Regional Offices
2. HUD Field Offices
Birmingham Office, Daniel Building, 15, South 20th Street,
Birmingham, AL 35233-2096
Anchorage Office, 701 C Street, Box 64, Anchorage, AK 99513-0001
Phoenix Office, One North First Street, Third Floor, Post Office Box
13468, Phoenix, AZ 85002-3468
Tucson Office, 100 North Stone Avenue, Suite 410, Tucson, AZ
85701-1467
Lafayette Building, 523 Louisiana, Suite 200, Little Rock, AR
722201-3523
Fresno Office, 1630 E. Shaw Avenue, Suite 138, Fresno, CA 93710-8193
Los Angeles Office, 1615 W. Olympic Boulevard, Los Angeles, CA
90015-3801
Sacramento Office, 777 12th Street, Suite 200, Sacramento, CA
95814-1997
San Diego Office, Federal Office Building, 880 Front Street, Room
553, San Diego, CA 92188-0100
Santa Ana Office, 34 Civic Center Plaza, Box 12850, Santa Ana, CA
92712-2850
Caribbean Office, Federico Degetau Federal Building, U.S.
Courthouse, Room 428, Carlos E. Chardon Avenue, Hato Rey, PR 00918-2276
Hartford Office, 330 Main Street, First Floor, Hartford, CT
06106-1860
Wilmington Office, Federal Building, 844 King Street, Room 1304,
Wilmington, DE 19801-3519
Washington, DC Office, HUD Building, 451 Seventh Street SW., Room
3158, Washington, DC 20410-5500
Coral Gables Office, Gables 1 Tower, 1320 South Dixie Highway, Coral
Gables, FL 33146-2911
Jacksonville Office, 325 West Adams Street, Jacksonville, FL
32202-4304
Orlando Office, Federal Office Building, 80 North Hughey Avenue, Room
410, Orlando, FL 32801-2226
Tampa Office, 700 Twiggs Street, Room 527, Post Office Box 172910,
Tampa, FL 33672-2910
Honolulu Office, 300 Ala Moana Boulevard, Room 3318, Honolulu, HI
96850-4991
Boise Office, Federal Building -- U.S. Courthouse, Post Office Box
042, 550 West Fort Street, Boise, ID 83724-0420
Springfield Office, 524 S. Second Street, Room 672, Springfield, IL
62701-1774
Indianapolis Office, 151 North Delaware Street, Indianapolis, IN
46204-2526
Des Moines Office, Federal Building, 210 Walnut Street, Room 259, Des
Moines, IA 50390-2155
Topeka Office, Frank Carlson Federal Building, 444 Quincy, Room 370,
Topeka, KS 66683-0001
Louisville Office, 601 W. Broadway, Post Office Box 1044,
Louisville, KY 40201-1044
New Orleans Office, Fisk Federal Building, 1661 Canal Street, New
Orleans, LA 70112-2887
Shreveport Office, New Federal Building, 500 Fannin Street,
Shreveport, LA 71101-3077
Bangor Office, 263 State Street, Ground Level, Bangor, ME 04401-5435
Baltimore Office, the Equitable Building, 3rd Floor, 10 N. Calvert
Street, Baltimore, MD 21202-1865
Detroit Office, Patrick V. McNamara Federal Building, 477 Michigan
Ave., Detroit, MI 48226-2592
Flint Office, Gil Sabuco Building, Room 200, 352 S. Saginaw Street,
Flint, MI 48502-1953
Grand Rapids Office, 2922 Fuller Avenue, NE., Grand Rapids, MI
49505-3409
Minneapolis-St. Paul Office, 220 Second Street, South, Minneapolis,
MN 55401-2195
Jackson Office, Dr. A.H. McCoy Federal Building, 100 West Capitol
Street, Room 910, Jackson, MS 39269-1096
St. Louis Office, 210 North Tucker Boulevard, St. Louis, MO
63101-1997
Helena Office, Federal Office Building, Drawer 10095, 301 S. Park,
Room 340, Helena, MT 59626-0095
Omaha Office, Braiker/Brandeis Building, 210 South 16th Street,
Omaha, NE 68102-1622
Las Vegas Office, 1500 East Tropicana Avenue, 2nd Floor, Las Vegas,
NV 89119-6516
Reno Office, 1050 Bible Way, P.O. Box 4700, Rena, NV 89505-4700
Manchester Office, Norris Cotton Federal Building, 275 Chestnut
Street, Manchester, NH 03101-2487
Camden Office, The Parkade Building, 519 Federal Street, Camden, NJ
08103-9998
Newark Office, Military Park Building, 60 Park Place, Newark, NJ
07102-5504
Albuquerque Office, 625 Truman Street, NE., Albuquerque, NM
87110-6443
Albany Office, Leo W. O'Brien Federal Building, N. Pearl Street and
Clinton Avenue, Albany, NY 12207-2395
Buffalo Office, Mezzanine, Statler Building, 107 Delaware Avenue,
Buffalo, NY 14202-2986
Greensboro Office, 415 North Edgeworth Street, Greensboro, NC
27401-2107
Fargo Office, Federal Building, P.O. Box 2483, 653 2nd Avenue North,
Fargo, ND 58108-2483
Cincinnati Office, Federal Office Building, Room 9002, 550 Main
Street, Cincinnati, OH 45202-3253
Cleveland Office, One Playhouse Square, 1375 Euclid Avenue, Room 420,
Cleveland, OH 44115-1832
Columbus Office, 200 North High Street, Columbus, OH 43215-2499
Oklahoma City Office, Murrah Federal Building, 200 NW 5th Street,
Oklahoma City, OK 73102-3202
Tulsa Office, Robert S. Kerr Building, 440 S. Houston Avenue, Room
200, Tulsa, OK 74127-8923
Portland Office, 520 Southwest Sixth Avenue, Portland, OR 97204-1596
Pittsburgh Office, 412 Old Post Office Courthouse Building, 7th
Avenue and Grant Street, Pittsburgh, PA 15219-1906
Providence Office, 330 John O. Pastore Federal Building and U.S.
Post Office -- Kennedy Plaza, Providence, RI 02903-1785
Columbia Office, Strom Thurmond Federal Building 1835-45 Assembly
Street, Columbia, SC 29201-2480
Sioux Falls Office, 300 Building, 300 N. Dakota Ave., Suite 116,
Sioux Falls, SD 57102-0311
Knoxville Office, One Northshore Building, 1111 Northshore Drive,
Knoxville, TN 37919-4090
Memphis Office, One Memphis Place, 200 Jefferson Avenue, Suite 1200,
Memphis, TN 38103-2335
Nashville Office, One Commerce Place, Suite 1600, Nashville, TN
37239-1600
Dallas Office, 525 Griffin Street, Room 106, Dallas, TX 75202-5007
Houston Office, National Bank of Texas Building, 2211 Norfolk, Suite
300, Houston, TX 77098-4096
Lubbock Office, Federal Office Building, 1205 Texas Avenue, Lubbock,
TX 79401-4093
San Antonio Office, Washington Square, 800 Dolorosa Street, San
Antonio, TX 78207-4563
Salt Lake City Office, 324 South State Street, Suite 220, Salt Lake
City, UT 84111-2321
Burlington Office, Room B-311 Federal Building, 11 Elmwood Avenue,
P.O. Box 1104, Burlington, VT 05402-1104
Richmond Office, 701 East Franklin Street, Richmond, VA 23219-2591
Spokane Office, West 920 Riverside Avenue, Spokane, WA 99201-1075
Charleston Office, 405 Capitol Street, Suite 708, Charleston, WV
25301-1795
Milwaukee Office, Henry S. Reuss Federal Plaza, 310 West Wisconsin
Avenue, Suite 1380, Milwaukee, WI 53203-2289
Casper Office, 4225 Federal Office Building, P.O. Box 580, 100 East B
Street, Casper, WY 82602-1918
(53 FR 24202, June 27, 1988. Redesignated at 54 FR 3308, Jan. 23,
1989)
24 CFR 103.515 PART 104 -- ADMINISTRATIVE PROCEEDINGS UNDER SECTION 812 OF THE FAIR HOUSING ACT
24 CFR 103.515 Subpart A -- General information
Sec.
104.10 Scope.
104.20 Definitions.
104.30 Time computations.
104.40 Service and filing.
24 CFR 103.515 Subpart B -- Administrative Law Judge
104.100 Designation.
104.110 Authority.
104.120 Disqualification.
104.130 Ex Parte communications.
104.140 Separation of functions.
24 CFR 103.515 Subpart C -- Parties
104.200 In general.
104.210 Representation.
104.220 Standards of conduct.
24 CFR 103.515 Subpart D -- Pleadings and motions
104.400 In general.
104.410 The charge.
104.420 Answer to charge.
104.430 Request for intervention.
104.440 Amendments and supplemental pleadings.
104.450 Motions.
24 CFR 103.515 Subpart E -- Discovery
104.500 Discovery.
104.510 Depositions.
104.520 Use of deposition at hearings.
104.530 Written interrogatories.
104.540 Production of documents and other evidence; entry upon land
for inspection and other purposes; and physical and mental
examinations.
104.550 Admissions.
104.560 Supplementation of responses.
104.570 Protective orders.
104.580 Failure to make or cooperate in discovery.
24 CFR 103.515 Subpart F -- Subpoenas
104.590 Subpoenas.
24 CFR 103.515 Subpart G -- Prehearing Procedures
104.600 Prehearing statements.
104.610 Prehearing conference.
104.620 Settlement negotiations before a settlement judge.
24 CFR 103.515 Subpart H -- Hearing Procedures
104.700 Date and place of hearing.
104.710 Conduct of hearings.
104.720 Waiver of right to appear.
104.730 Evidence.
104.740 In camera and protective orders.
104.750 Exhibits.
104.760 Authenticity.
104.770 Stipulations.
104.780 Record of hearing.
104.790 Arguments and briefs.
104.800 End of hearing.
104.810 Receipt of evidence following hearing.
24 CFR 103.515 Subpart I -- Dismissals and Decisions
104.900 Dismissal.
104.910 Initial decision of administrative law judge.
104.920 Service of initial decision.
104.925 Resolution of charge.
104.930 Final decision.
104.935 Action upon issuance of a final decision.
104.940 Attorney's fees and costs.
24 CFR 103.515 Subpart J -- Judicial Review and Enforcement of Final
Decision
104.950 Judicial review of final decision.
104.955 Enforcement of final decision.
Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C.
3600-3620); section 7(d), Department of Housing and Urban Development
Act (42 U.S.C. 3535(d)).
Source: 54 FR 3298, Jan. 23, 1989, unless otherwise noted.
24 CFR 103.515 Subpart A -- General Information
24 CFR 104.10 Scope.
(a) Applicability. This part contains the rules of practice and
procedure established by the Department of Housing and Urban Development
for administrative proceedings before an Administrative Law Judge
adjudicating the claims asserted in a charge issued under 24 CFR part
103, where no party -- the complainant, the respondent, or an aggrieved
party -- elects to have the claims decided in a civil action under
section 812(o) of the Fair Housing Act.
(b) General application of rules. Hearings under this subpart shall
be conducted as expeditiously and inexpensively as possible, consistent
with the needs and rights of the parties to obtain a fair hearing and a
complete record.
(c) Conduct of proceedings. The Department will reasonably
accommodate persons with disabilities who are participants in the
hearing process or interested members of the general public.
24 CFR 104.20 Definitions.
Aggrieved person includes any person who:
(a) Claims to have been injured by a discriminatory housing practice;
or
(b) Believes that such person will be injured by a discriminatory
housing practice that is about to occur.
Attorney General means the Attorney General of the United States.
Complainant means the person (including the Assistant Secretary for
Fair Housing and Equal Opportunity) who filed the complaint under 24 CFR
part 103.
Complaint means a complaint filed under 24 CFR part 103.
Charge means the statement of facts issued under 24 CFR 103.405 upon
which HUD has found reasonable cause to believe that a discriminatory
housing practice has occurred or is about to occur.
Discriminatory housing practice means an act that is unlawful under
section 804, 805, 806 or 818 of the Fair Housing Act.
Fair Housing Act means title VIII of the Civil Rights Act of 1968, 42
U.S.C. 3600-3620.
General Counsel means the General Counsel of HUD.
Hearing means that part of an administrative proceeding that involves
the submission of evidence, either by oral presentation or written
submission, and includes the submission of briefs and oral arguments on
the evidence and applicable law.
HUD means the United States Department of Housing and Urban
Development.
Party means a person or agency named or admitted as a party to a
proceeding. Party includes an aggrieved person who intervenes under
104.430.
Person includes one or more individuals, corporations, partnerships,
associations, labor organizations, legal representatives, mutual
companies, joint-stock companies, trusts, unincorporated organizations,
trustees, trustees in cases under title 11 U.S.C., receivers and
fiduciaries.
Personal service means handing a copy of the document to the person
to be served or leaving a copy of the document with a person of suitable
age and discretion at the place of business, residence or usual place of
abode of the person to be served.
Prevailing party has the same meaning as the term has in section 722
of the Revised Statutes of the United States (42 U.S.C. 1988).
Respondent means the person accused in a charge of discriminatory
housing practice.
State means any of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, or any of the territories and possessions
of the United States.
24 CFR 104.30 Time computations.
(a) In general. In computing time under this part, the time period
begins the day following the act, event, or default and includes the
last day of the period, unless the last day is a Saturday, Sunday, or
legal holiday observed by the Federal Government, in which case the time
period includes the next business day. When the prescribed time period
is seven days or less, intermediate Saturdays, Sundays, and legal
holidays shall be excluded from the computation.
(b) Modification of time periods. Except for time periods required
by statute, the administrative law judge may enlarge or reduce any time
period required under this part where necessary to avoid prejudicing the
public interest or the rights of the parties.
(c) Entry of orders. In computing any time period involving the date
of the issuance of an order or decision by an administrative law judge,
the date of issuance is the date the order or decision is served by the
Chief Docket Clerk.
(d) Computation of time for delivery by mail. (1) Documents are not
filed until received by the Chief Docket Clerk. However, when documents
are filed by mail, three days shall be added to the prescribed time
period.
(2) Service is effected at the time of mailing.
(3) When a party has the right or is required to take an action
within a prescribed period after the service of a document upon the
party, and the document is served by mail, three days shall be added to
the prescribed period.
24 CFR 104.40 Service and filing.
(a) Generally. Copies of all filed documents shall be served on all
parties of record. All filed documents shall clearly designate the
docket number, if any, and title of the proceeding. All documents to be
filed shall be delivered or mailed to the Chief Docket Clerk, Office of
Administrative Law Judges, Room 2158, 451 Seventh Street, SW.,
Washington, DC 20410.
(b) By parties. Parties shall file all documents with the Office of
Administrative Law Judges with a copy to all other parties of record.
Service of documents upon any party may be made by personal service or
by mailing a copy to the last known address. When a party is
represented by an attorney, service shall be made upon the attorney.
The person serving the document shall certify to the manner and date of
service.
(c) By the Office of Administrative Law Judges. The Office of
Administrative Law Judges shall serve all notices, orders, decisions and
all other documents by mail to the last known address.
24 CFR 104.40 Subpart B -- Administrative Law Judge
24 CFR 104.100 Designation.
Proceedings under this part shall be presided over by an
administrative law judge appointed under 5 U.S.C. 3105. The presiding
administrative law judge shall be designated by the chief administrative
law judge at HUD.
24 CFR 104.110 Authority.
The administrative law judge shall have all powers necessary to the
conduct of fair and impartial hearings including, but not limited to,
the power:
(a) To conduct hearings in accordance with this part.
(b) To administer oaths and affirmations and examine witnesses.
(c) To issue subpoenas in accordance with 104.590.
(d) To rule on offers of proof and receive evidence.
(e) To take depositions or have depositions taken when the ends of
justice would be served.
(f) To regulate the course of the hearing and the conduct of parties
and their counsel.
(g) To hold conferences for the settlement or simplification of the
issues by consent of the parties.
(h) To dispose of motions, procedural requests, and similar matters.
(i) To make initial decisions as described under subpart I of this
part.
(j) To exercise such powers vested in the Secretary as are necessary
and appropriate for the purpose of the hearing and conduct of the
proceeding.
24 CFR 104.120 Disqualification.
(a) Disqualification. If an administrative law judge finds that
there is a basis for his or her disqualification in a proceeding, the
Administrative law judge shall withdraw from the proceeding. Withdrawal
is accomplished by entering a notice in the record and by providing a
copy of the notice to the chief administrative law judge.
(b) Motion for recusal. If a party believes that the presiding
administrative law judge should be disqualified in a proceeding for any
reason, the party may file a motion to recuse with the administrative
law judge. The motion shall be supported by an affidavit setting forth
the alleged grounds for disqualification. The administrative law judge
shall rule on the motion. If the administrative law judge denies the
motion, the administrative law judge shall incorporate a written
statement of the reasons for the denial in the record.
(c) Redesignation of administrative law judge. If an administrative
law judge is disqualified, the chief administrative law judge shall
designate another administrative law judge to preside over further
proceedings.
24 CFR 104.130 Ex Parte communications.
(a) General. An ex parte communication is any direct or indirect
communication concerning the merits of a pending proceeding, made by a
party in the absence of any other party, to the administrative law judge
assigned to the proceeding and which was neither on the record nor on
reasonable prior notice to all parties. Ex parte communications do not
include communications made for the sole purpose of scheduling hearings,
requesting extensions of time, or requesting information on the status
of cases.
(b) Prohibition. Ex parte communications are prohibited.
(c) Procedure upon receipt. If the administrative law judge receives
an ex parte communication that the administrative law judge knows or has
reason to believe is prohibited, the administrative law judge shall
promptly place the communication, or a written statement of the
substance of the communication, in the record and shall furnish copies
to all parties. Unauthorized communications shall not be taken into
consideration in deciding any matter in issue. Any party making a
prohibited ex parte communication may be subject to sanctions including,
but not limited to, exclusion from the proceeding, and adverse ruling on
the issue that is the subject of the prohibited communication.
24 CFR 104.140 Separation of functions.
No officer, employee, or agent of the Federal Government engaged in
the performance of investigative, conciliatory, or prosecutorial
functions in connection with the proceeding shall, in that proceeding or
any factually related proceeding under this part, participate or advise
in the decision of the administrative law judge, except as a witness or
counsel during the proceedings.
24 CFR 104.140 Subpart C -- Parties
24 CFR 104.200 In general.
(a) Parties. Parties to the proceeding include:
(1) HUD. HUD files the charge under 24 CFR 103.405 seeking
appropriate relief for an aggrieved party and vindication of the public
interest.
(2) Respondent. A respondent is a person named in the charge issued
under 24 CFR 103.405 against whom relief is sought.
(3) Intervenors. Any aggrieved person may file a request for
intervention under 104.430. Intervention shall be permitted if the
request is timely and;
(i) The intervenor is the aggrieved person on whose behalf the charge
is issued; or
(ii) The intervenor is an aggrieved person who claims an interest in
the property or transaction that is the subject of the charge and the
disposition of the charge may as a practical matter impair or impede the
aggrieved person's ability to protect that interest, unless the
aggrieved person is adequately represented by the existing parties.
(b) Rights of parties. Each party may appear in person, be
represented by counsel, examine or cross-examine witnesses, introduce
documentary or other relevant evidence into the record, and request the
issuance of subpoenas.
(c) Amicus Curiae. Briefs of amicus curiae may be permitted at the
discretion of the administrative law judge. Such participants are not
parties to the proceeding.
24 CFR 104.210 Representation.
(a) Representation of HUD. HUD is represented by the General
Counsel.
(b) Representation of other parties. Other parties may be
represented as follows:
(1) Individuals may appear on their own behalf.
(2) A member of a partnership may represent the partnership.
(3) An officer of a corporation, trust or association may represent
the corporation, trust or association.
(4) An Officer or employee of any governmental unit, agency or
authority may represent that unit, agency or authority.
(5) An attorney admitted to practice before a Federal Court or the
highest court in any State. The attorney's representation that he or
she is in good standing before any of these courts is sufficient
evidence of the attorney's qualifications under this section, unless
otherwise ordered by the administrative law judge.
(c) Notice of appearance. Each attorney or other representative of a
party shall file a notice of appearance. The notice must indicate the
party of whose behalf the appearance is made. Any individual acting in
a representative capacity may be required by the administrative law
judge to demonstrate authority to act in that capacity.
(d) Withdrawal. An attorney or other representative of a party must
file a written notice of intent before withdrawing from participation in
the proceeding.
24 CFR 104.220 Standards of conduct.
(a) In general. All persons appearing in proceedings under this part
shall act with integrity and an ethical manner.
(b) Exclusion. The administrative law judge may exclude parties or
their representatives for refusal to comply with directions, continued
use of dilatory tactics, refusal to adhere to reasonable standards of
orderly and ethical conduct, failure to act in good faith, or violations
of the prohibitions against ex parte communications. If an attorney is
suspended or barred from participation in a proceeding by an
administrative law judge, the administrative law judge shall include in
the record the reasons for the action. An attorney that is suspended or
barred from participation may appeal to the chief administrative law
judge. The proceeding will not be delayed or suspended pending
disposition on the appeal, except that the administrative law judge
shall suspend the proceeding for a reasonable time to enable the party
to obtain another attorney.
24 CFR 104.220 Subpart D -- Pleadings and motions
24 CFR 104.400 In general.
(a) Form. Every pleading, motion, brief, or other document shall
contain a caption setting forth the title of the proceeding, the docket
number assigned by the Office of Administrative Law Judges, and the
designation of the type of document (e.g., charge, answer or motion to
dismiss).
(b) Signature. Every pleading, motion, brief, or other document
filed by a party shall be signed by the party, the party's
representative, or the attorney representing the party, and must include
the signer's address and telephone number. The signature constitutes a
certification that the signer has read the document; that to the best
of the signer's knowledge, information and belief there is good ground
to support the document; and that it is not interposed for delay.
(c) Timely filing. The administrative law judge may refuse to
consider any motion or other pleading that is not filed in a timely
fashion and in compliance with this part.
24 CFR 104.410 The charge.
(a) Filing and service. Within three days after the issuance of a
charge under 24 CFR 103.405, the General Counsel shall file the charge
with the Chief Docket Clerk in the Office of Administrative Law Judges
and serve copies (with the additional information required under
paragraph (b) of this section) on the respondent and the aggrieved
person on whose behalf the complaint was filed.
(b) Contents. The charge shall consist of a short and plain written
statement of the facts upon which the General Counsel has found
reasonable cause to believe that a discriminatory housing practice has
occurred or is about to occur. The following notifications shall be
served with the charge:
(1) The notice shall state that a complainant (including HUD, if HUD
filed the complaint), a respondent, or an aggrieved person on whose
behalf the complaint was filed may elect to have the claims asserted in
the charge decided in a civil action under section 812(o) of the Act, in
lieu of an administrative proceeding under this part. The notice shall
state that the election must be made not later than 20 days after the
receipt of the service of the charge. Where HUD is the complainant, the
Assistant Secretary must make the election not later than 20 days after
the service of the charge. The notice shall state that the notification
of the election must be served on the Chief Docket Clerk in the Office
of Administrative Law Judges, the respondent, the aggrieved party on
whose behalf the complaint was filed, the Assistant Secretary and the
General Counsel.
(2) The notice shall state that if no person timely elects under
paragraph (b)(1) of this section to have the claims asserted in the
charge decided in a civil action under section 812(o) of the Act, an
administrative proceeding will be conducted. The notice shall state
that if an administrative hearing is conducted:
(i) The parties will have an opportunity for a hearing at a date and
place specified in the notice.
(ii) The respondent will have an opportunity to file an answer to the
charge within 30 days of the date of service of the charge.
(iii) The aggrieved person may participate as a party to the
administrative proceeding by filing a timely request for intervention.
(iv) All discovery must be concluded 15 days before the date set for
hearing.
(3) The notice shall state that if at any time following the service
of the charge on the respondent, the respondent intends to enter into a
contract, sale, encumbrance, or lease with any person regarding the
property that is the subject of the charge, the respondent must provide
a copy of the charge to the person before the respondent and the person
enter into the contract, sale, encumbrance or lease.
24 CFR 104.420 Answer to charge.
Within the 30 days after the service of the charge, a respondent
contesting material facts alleged in a charge or contending that the
respondent is entitled to judgement as a matter of law shall file an
answer to the charge. An answer shall include:
(a) A statement that the respondent admits, denies, or does not have
and is unable to obtain sufficient information to admit or deny, each
allegation made in the charge. A statement of lack of information shall
have the effect of a denial. Any allegation that is not denied shall be
deemed to be admitted.
(b) A statement of each affirmative defense and a statement of facts
supporting each affirmative defense.
24 CFR 104.430 Request for intervention.
Upon timely application, any aggrieved person may file a request for
intervention to participate as a party to the proceeding. Requests for
intervention submitted within 30 days after the filing of the charge
shall be considered to be timely filed.
24 CFR 104.440 Amendments and supplemental pleadings.
(a) Amendments -- (1) By right. HUD may amend its charge once as a
matter of right prior to filing of the answer.
(2) By leave. Upon such conditions as are necessary to avoid
prejudicing the public interest and the rights of the parties, the
administrative law judge may allow amendments to pleadings upon motion
of the party.
(3) Conformance to the evidence. When issues not raised by the
pleadings are reasonably within the scope of the original charge and
have been tried by the express or implied consent of the parties, the
issues shall be treated in all respects as if they had been raised in
the pleadings and amendments may be made as necessary to make the
pleading conform to evidence.
(b) Supplemental pleadings. The administrative law judge may, upon
reasonable notice, permit supplemental pleadings concerning
transactions, occurrences or events that have happened or been
discovered since the date of the pleadings and which are relevant to any
of the issues involved.
24 CFR 104.450 Motions.
(a) Motions. Any application for an order or other request shall be
made by a motion which, unless made during an appearance before the
administrative law judge, shall be made in writing. Motions or requests
made during an appearance before the administrative law judge shall be
stated orally and made a part of the transcript. All parties shall be
given a reasonable opportunity to respond to written or oral motions or
requests.
(b) Answers to written motions. Within five days after a written
motion is served, any party to the proceeding may file an answer in
support of, or in opposition to the motion. Unless otherwise ordered by
the administrative law judge, no further responsive documents may be
filed.
(c) Oral argument. The administrative law judge may order oral
argument on any motion.
24 CFR 104.450 Subpart E -- Discovery
24 CFR 104.500 Discovery.
(a) In general. This subpart governs discovery in aid of
administrative proceedings under this part. Except for time periods
stated in these rules, to the extent that these rules conflict with
discovery procedures in aid of civil actions in the United States
District Court for the District in which the investigation of the
discriminatory housing practice took place, the rules of the United
States District Court apply.
(b) Scope. The parties are encouraged to engage in voluntary
discovery procedures. Discovery shall be conducted as expeditiously and
inexpensively as possible, consistent with the needs of all parties to
obtain relevant evidence. Unless otherwise ordered by the
administrative law judge, the parties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved
in the proceeding, including the existence, description, nature,
custody, condition, and location of documents or persons having
knowledge of any discoverable matter. It is not grounds for objection
that information sought will not be admissible if the information sought
appears reasonably calculated to lead to the discovery of admissible
evidence.
(c) Methods. Parties may obtain discovery by one or more of the
following methods:
(1) Deposition upon oral examination or written questions.
(2) Written interrogatories.
(3) Requests for the production of documents or other evidence, for
inspection and other purposes, and physical and mental examinations.
(4) Requests for admissions.
(d) Frequency and sequence. Unless otherwise ordered by the
administrative law judge or restricted by this subpart, the frequency or
sequence of these methods is not limited.
(e) Completion of discovery. All discovery shall be completed 15
days before the date scheduled for hearing.
(f) Not intervening aggrieved person. For the purposes of obtaining
discovery from a non-intervening aggrieved person, the term ''party'' as
used in this subpart includes the aggrieved person on whose behalf the
charge was issued.
24 CFR 104.510 Depositions.
(a) In general. Depositions may be taken upon oral examination or
upon written interrogatory before any person having the power to
administer oaths.
(b) Notice. Any party desiring to take the deposition of a witness
shall indicate to the witness and to all parties the time and place of
the deposition, the name and post office address of the person before
whom the deposition is to be taken, the name and address of the witness,
and the subject matter of the testimony of the witness. Notice of the
taking of a deposition shall be given not less than five days before the
deposition is scheduled. The attendance of a witness may be compelled
by subpoena under 104.590.
(c) Procedure at deposition. Each witness deposed shall be placed
under oath or affirmation, and other parties shall have the right to
cross-examine. The questions propounded and all answers and objections
made to the propounded questions shall be reduced to writing; read by
or to, and subscribed by, the witness; and certified by the person
before whom the deposition was taken.
(d) Objections. During a deposition, a party or deponent may request
suspension of the deposition on grounds of bad faith in the conduct of
the examination, oppression of a deponent or party, or improper
questioning or conduct. Upon the request for suspension, the deposition
will be adjourned. The objecting party or deponent must immediately
move the administrative law judge for a ruling on the objections. The
administrative law judge may then limit the scope or manner of taking
the deposition.
(e) Payment of costs of deposition. The party requesting the
deposition shall bear all costs of the deposition.
24 CFR 104.520 Use of deposition at hearings.
(a) In general. At the hearing, any part or all of a deposition, so
far as admissible under the Federal Rules of Evidence, may be used
against any party who was present or represented at the taking of the
deposition or who had due notice of the taking of the deposition, in
accordance with the following provisions:
(1) Any deposition may be used by any party for the purpose of
contradicting or impeaching the testimony of the deponent as a witness.
(2) The deposition of expert witnesses, may be used by any party for
any purpose, unless the administrative law judge rules that such use is
unfair or a violation of due process.
(3) The deposition of a party or of anyone who at the time of the
taking of the deposition was an officer, director, or duly authorized
agent of a public or private corporation, partnership, or association
that is a party, may be used by any other party for any purpose.
(4) The deposition of a witness, whether or not a party, may be used
by any party for any purpose if the administrative law judge finds:
(i) That the witness is dead;
(ii) That the witness is out of the United States or more than 100
miles from the place of hearing, unless it appears that the absence of
the witness was procured by the party offering the deposition;
(iii) That the witness is unable to attend to testify because of age,
sickness, infirmity, or imprisonment;
(iv) That the party offering the deposition has been unable to
procure the attendance of the witness by subpoena; or
(v) Whenever exceptional circumstances exist as to make it desirable,
in the interest of justice and with due regard to the importance of
presenting the testimony of witnesses orally in open hearing, to allow
the deposition to be used.
(5) If a part of a deposition is offered in evidence by a party, any
other party may require the party to introduce all of the deposition
that is relevant to the part introduced. Any party may introduce any
other part of the deposition.
(6) Substitution of parties does not affect the right to use
depositions previously taken. If a proceeding has been dismissed and
another proceeding involving the same subject matter is later brought
between the same parties or their representatives or successors in
interest, all depositions lawfully taken in the former proceeding may be
used in the latter proceeding.
(b) Objections to admissibility. Except as provided in this
paragraph, objection may be made at the hearing to receiving in evidence
any deposition or part of a deposition for any reason that would require
the exclusion of the evidence if the witness were present and
testifying.
(1) Objections to the competency of a witness or to the competency,
relevancy, or materiality of testimony are not waived by failure to make
them before or during the taking of the deposition, unless the basis of
the objection is one which might have been obviated or removed if
presented at that time.
(2) Errors and irregularities occurring at the oral examination in
the manner of taking the deposition, in the form of the questions or
answers, in the oath or affirmation, or in the conduct of parties, and
errors of any kind which might be obviated, removed or cured if promptly
presented, are waived unless reasonable objection is made at the taking
of the deposition.
(3) Objections to the form of written interrogatories are waived
unless served in writing upon the party propounding the interrogatories.
24 CFR 104.530 Written interrogatories.
(a) Written interrogatories to parties. Any party may serve on any
other party written interrogatories to be answered by the party served.
If the party served is a public or private corporation, a partnership,
an association, or a governmental agency, the interrogatories may be
answered by any authorized officer or agent who shall furnish such
information as may be available to the party. A party may serve not
more than 30 written interrogatories on another party without an order
of the administrative law judge.
(b) Responses to written interrogatories. Each interrogatory shall
be answered separately and fully in writing under oath or affirmation,
unless the party objects to the interrogatory. If a party objects to an
interrogatory, the response shall state the reasons for the objection in
lieu of an answer. The answer and objections shall be signed by the
person making them, except that objections may be signed by the counsel
for the party. The party upon whom the interrogatories were served
shall serve a copy of the answers and objections upon all parties within
15 days after service of the interrogatories.
24 CFR 104.540 Production of documents and other evidence; entry upon
land for inspection and other purposes; and physical and mental
examinations.
(a) In general. Any party may serve on any other party a request to:
(1) Produce and permit the party making the request, or a person
acting on the party's behalf, to inspect and copy any designated
documents, or to inspect and copy, test, or sample any tangible things
that are in the possession, custody, or control of the party upon whom
the request is served;
(2) Permit entry upon designated land or other property in the
possession or control of the party upon whom the request is served for
the purpose of inspection and measuring, photographing, testing, or
other purposes stated in paragraph (a)(1) of this section; or
(3) Submit to a physical or mental examination by a physician.
(b) Contents of request. The request shall:
(1) Set forth the items to be inspected by individual item or by
category of items;
(2) Describe each item or category with reasonable particularity;
(3) Specify a reasonable time, place and manner for making the
inspection and performing the related acts; and
(4) Specify the time, place, manner, conditions, and scope of the
physical or mental examination, and the person or persons who will make
the examination. A report of the examining physician shall be made in
accordance with Rule 35(b) of the Federal Rules of Civil Procedure.
(c) Response to request. Within 15 days of the service of the
request, the party upon whom the request is served shall serve a written
response on the party submitting the request. The response shall state,
with regard to each item or category:
(1) That inspection and related activities will be permitted as
requested; or
(2) That objection is made to the request in whole or in part. If an
objection is made, the response must state the reasons for the
objection.
24 CFR 104.550 Admissions.
(a) Request for admissions. A party may serve on any other party a
written request for the admission of the genuineness and authenticity of
any relevant document described in or attached to the request, or for
the admission of the truth of any specified relevant matter of fact.
(b) Response to request. (1) Each matter for which an admission is
requested is admitted unless, within 15 days after service of the
request, the party to whom the request is directed serves on the
requesting party:
(i) A written statement specifically denying the relevant matters for
which an admission is requested;
(ii) A written statement setting forth in detail why the party cannot
truthfully admit or deny the matters; or
(iii) Written objections to the request alleging that the matters are
privileged or irrelevant, or that the request is otherwise improper.
(2) The party to whom the request is directed may not give lack of
information or knowledge as a reason for failure to admit or deny,
unless the party states that it has made a reasonable inquiry and that
the information known or readily obtainable is insufficient to enable
the party to admit or deny.
(c) Sufficiency or response. The party requesting admissions may
move for a determination of the sufficiency of the answers or
objections. Unless the administrative law judge determines that an
objection is justified, the administrative law judge shall order that an
answer be served. If the administrative law judge determines that an
answer does not comply with the requirements of this section, the
administrative law judge may order either that the matter is admitted or
that an amended answer be served.
(d) Effect of admission. Any matter admitted under this section is
conclusively established unless, upon the motion of a party, the
administrative law judge permits the withdrawal or amendment of the
admission. Any admission made under this section is made for the
purposes of the pending proceeding only, is not an admission by the
party for any other purpose, and may not be used against the party in
any other proceeding.
(e) Service of requests. Each request for admission and each written
response must be served on all parties and filed with the Office of
administrative law judges.
24 CFR 104.560 Supplementation of responses.
(a) In general. A party who responded to a request for discovery
with a response that was complete when made is under no duty to
supplement the response to include information acquired after the
response was made except:
(1) A party is under a duty to timely supplement responses with
respect to any question directly addressed to:
(i) The identity and location of persons having knowledge of
discoverable matters; and
(ii) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which the expert witness
is expected to testify, and the substance of the testimony.
(2) A party is under a duty to timely amend a previous response if
the party later obtains information upon the basis of which:
(i) The party knows the response was incorrect when made; or
(ii) The party knows the response though correct when made is no
longer true and the circumstances are such that a failure to amend the
response is, in substance, a knowing concealment.
(b) By order or agreement. A duty to supplement responses may be
imposed by order of the administrative law judge or by agreement of the
parties.
24 CFR 104.570 Protective orders.
Upon motion of a party or a person from whom discovery is sought or
in accordance with 104.580(c), the administrative law judge may make
appropriate orders to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense as a result of the
requested discovery request. The order may direct that:
(a) The discovery may not be had;
(b) The discovery may be had only on specified terms and conditions,
including a designation of time and place for discovery;
(c) The discovery may be had by a method of discovery other than that
selected by the party seeking discovery;
(d) Certain irrelevant matters may not be the subject of discovery,
or that the scope of discovery be limited to certain matters;
(e) Discovery may be conducted with no one present other than persons
designated by the administrative law judge;
(f) A trade secret or other confidential research, development or
commercial information may not be disclosed, or may be disclosed only in
a designated way; or
(g) To protect privileged matters, the administrative law judge may
take such other action permitted under 104.740.
24 CFR 104.580 Failure to make or cooperate in discovery.
(a) Motion to compel discovery. If a deponent fails to answer a
question propounded, or a party upon whom a request is made under
104.530 through 104.550 fails to respond adequately, objects to a
request, or fails to permit inspection as requested, the discovering
party may move the administrative law judge for an order compelling a
response or an inspection in accordance with the request. The motion
shall:
(1) State the nature of the request;
(2) Set forth the response or objection of the party upon whom the
request was served;
(3) Present arguments supporting the motion; and
(4) Attach copies of all relevant discovery requests and responses.
(b) Evasive or incomplete answers. For the purposes of this section,
an evasive or incomplete answer or response will be treated as a failure
to answer or respond.
(c) Administrative law judge ruling. In ruling on a motion under
this section, the administrative law judge may enter an order compelling
a response or an inspection in accordance with the request, may issue
sanctions under paragraph (d) of this section, or may enter a protective
order under 104.570.
(d) Sanctions. If a party fails to comply with an order (including
an order for taking a deposition, the production of evidence within the
party's control, a request for admission, or the production of
witnesses) the administrative law judge may:
(1) Draw an inference in favor of the requesting party with regard to
the information sought;
(2) Prohibit the party failing to comply with the order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought;
(3) Permit the requesting party to introduce secondary evidence
concerning the information sought;
(4) Strike any appropriate part of the pleadings or other submissions
of the party failing to comply with such order; or
(5) Take such other action as may be appropriate.
24 CFR 104.580 Subpart F -- Subpoenas
24 CFR 104.590 Subpoenas.
(a) In general. This section governs the issuance of subpoenas in
administrative proceedings under this part. Except for time periods
stated in these rules, to the extent that this rule conflicts with
procedures for the issuance of subpoenas in civil actions in the United
States District Court for the District in which the investigation of the
discriminatory housing practice took place, the rules of the United
States District Court apply.
(b) Issuance of subpoena. Upon the written request of a party, the
chief administrative law judge or the presiding administrative law judge
may issue a subpoena requiring:
(1) The attendance of a witness for the purpose of giving testimony
at a deposition;
(2) The attendance of a witness for the purpose of giving testimony
at a hearing; and
(3) The production of relevant books, papers, documents or tangible
things.
(c) Time of request. Requests for subpoenas in aid of discovery must
be submitted in time to permit the conclusion of discovery 15 days
before the date scheduled for the hearing. If a request for subpoenas
of a witness for testimony at a hearing is submitted three days or less
before the hearing, the subpoena shall be issued at the discretion of
the chief administrative law judge or the presiding administrative law
judge, as appropriate.
(d) Service. A subpoena may be served by any person who is not a
party and is not less than 18 years of age. Service on a person shall
be made by delivering a copy of the subpoena to the person and by
tendering witness fees and mileage to that person. When the subpoena is
issued on behalf of HUD, witness fees and mileage need not be tendered
with the subpoena.
(e) Amount of witness fees and mileage. A witness summoned by a
subpoena issued under this part is entitled to the same witness and
mileage fees as a witness in proceedings in United States District
Courts. Fees payable to a witness summoned by a subpoena shall be paid
by the party requesting the issuance of the subpoena, or where the
administrative law judge determines that a party is unable to pay the
fees, the fees shall be paid by the Department.
(f) Motion to quash or limit subpoena. Upon a motion by the person
served with a subpoena or by a party, made within five days of the
service of the subpoena (but in any event not less than the time
specified in the subpoena for compliance), the administrative law judge
may:
(1) Quash or modify the subpoena if it is unreasonable and oppressive
or for other good cause shown; or
(2) Condition denial of the motion upon the advancement, by the party
on whose behalf the subpoena was issued, of the reasonable cost of
producing subpoenaed books, papers or documents. Where the
circumstances require, the administrative law judge may act upon such a
motion at any time after a copy of the motion has been served upon the
party on whose behalf the subpoena was isssued.
(g) Failure to comply with subpoena. If a person fails to comply
with a subpoena issued under this section, the party requesting the
subpoena may refer the matter to the Attorney General for enforcement in
appropriate proceedings under section 814(c) of the Fair Housing Act.
24 CFR 104.590 Subpart G -- Prehearing Procedures
24 CFR 104.600 Prehearing statements.
(a) In general. Before the commencement of the hearing, the
administrative law judge may direct parties to file prehearing
statements.
(b) Contents of statement. The prehearing statement must state the
name of the party or parties presenting the statement and, unless
otherwise directed by the administrative law judge, briefly set forth
the following:
(1) Issues involved in the proceeding.
(2) Facts stipulated by the parties and a statement that the parties
have made a good faith effort to stipulate to the greatest extent
possible.
(3) Facts in dispute.
(4) Witnesses (together with a summary of the testimony expected) and
exhibits to be presented at the hearing.
(5) A brief statement of applicable law.
(6) Conclusions to be drawn.
(7) Estimated time required for presentation of the party's case.
(8) Such other information as may assist in the disposition of the
proceeding.
24 CFR 104.610 Prehearing conference.
(a) In general. Before the commencement or during the course of the
hearing, the administrative law judge may direct the parties to
participate in a conference to expedite the hearing.
(b) Matters considered. At the conference, the following matters may
be considered:
(1) Simplification and clarification of the issues.
(2) Necessary amendments to the pleadings.
(3) Stipulations of fact and of the authenticity, accuracy, and
admissibility of documents.
(4) Limitations on the number of witnesses.
(5) Negotiation, compromise, or settlement of issues.
(6) The exchange of proposed exhibits.
(7) Matters of which official notice will be requested.
(8) A schedule for the completion of actions discussed at the
conference.
(9) Such other information as may assist in the disposition of the
proceeding.
(c) Conduct of conference. The conference may be conducted by
telephone, correspondence or personal attendance. Conferences, however,
shall generally be conducted by a conference call, unless the
administrative law judge determines that this method is impracticable.
The administrative law judge shall give reasonable notice of the time,
place and manner of the conference.
(d) Record of conference. Unless otherwise derected by the
administrative law judge, the conference will not be stenographically
recorded. The administrative law judge will reduce the actions taken at
the conference to a written order or, if the conference takes place less
than seven days before the beginning of the hearing, may make a
statement on the record summarizing the actions taken at the conference.
24 CFR 104.620 Settlement negotiations before a settlement judge.
(a) Appointment of settlement judge. The administrative law judge,
upon the motion of a party or upon his or her own motion, may request
the chief administrative law judge to appoint another administrative law
judge to conduct settlement negotiations. The order appointing the
settlement judge may confine the scope of settlement negotiations to
specified issues. The order shall direct the settlement judge to report
to the chief administrative law judge within specified time periods.
(b) Duties of settlement judge. (1) The settlement judge shall
convene and preside over conferences and settlement negotiations between
the parties and assess the practicalities of a potential settlement.
(2) The settlement judge shall report to the chief administrative law
judge describing the status of the settlement negotiations, evaluating
settlement prospects, and recommending the termination or continuation
of the settlement negotiations.
(c) Termination of settlement negotiations. Settlement negotiations
shall terminate upon the order of the chief administrative law judge
issued after consultation with the settlement judge. The conduct of
settlement negotiations shall not unduly delay the commencement of the
hearing.
24 CFR 104.620 Subpart H -- Hearing Procedures
24 CFR 104.700 Date and place of hearing.
(a) Date. The hearing shall commence not later than 120 days
following the issuance of the charge under 103.405, unless it is
impracticable to do so. If the hearing cannot be commenced within this
time period, the administrative law judge shall notify in writing all
parties, the aggrieved persons on whose behalf the charge was filed, and
the Assistant Secretary, of the reasons for the delay.
(b) Place. The hearing will be conducted at a place in the vicinity
in which the discriminatory housing practice is alleged to have occurred
or to be about to occur.
(c) Notification of time and place for hearing. The charge issued
under 24 CFR 103.405 will specify the time, date and place for the
hearing. The administrative law judge may change the time, date or
place of the hearing, or may temporarily adjourn or continue a hearing
for good cause shown. If such a change is made or the hearing is
temporarily adjourned, the administrative law judge shall give the
parties at least five days notice of the revised time, date and place
for the hearing, unless otherwise agreed by the parties.
24 CFR 104.710 Conduct of hearings.
The hearing shall be conducted in accordance with the Administrative
Procedure Act (5 U.S.C. 551-559).
24 CFR 104.720 Waiver of right to appear.
If all parties waive their right to appear before the administrative
law judge or to present evidence and arguments, it is not necessary for
the administrative law judge to conduct an oral hearing. Such waivers
shall be made in writing and filed with the administrative law judge.
Where waivers are submitted by all parties, the administrative law judge
shall make a record of the relevant written evidence submitted by the
parties and pleadings submitted by the parties with respect to the
issues in the proceeding. These documents shall constitute the evidence
in the proceeding and the decision shall be based upon this evidence.
Such hearings shall be deemed to commence on the first day that written
evidence may be submitted for the record.
24 CFR 104.730 Evidence.
The Federal Rules of Evidence apply to the presentation of evidence
in hearings under this part.
24 CFR 104.740 In camera and protective orders.
The administrative law judge may limit discovery or the introduction
of evidence, or may issue such protective or other orders necessary to
protect privileged communications. If the administration law judge
determines that information in documents containing privileged matters
should be made available to a party, the administrative law judge may
order the preparation of a summary or extract of the nonprivileged
matter contained in the original.
24 CFR 104.750 Exhibits.
(a) Identification. All exhibits offered into evidence shall be
numbered sequentially and marked with a designation identifying the
party offering the exhibit.
(b) Exchange of exhibits. One copy of each exhibit offered into
evidence must be furnished to each of the parties and to the
administrative law judge. If the administrative law judge does not fix
a time for the exchange of exhibits, the parties shall exchange copies
of exhibits at the earliest practicable time before the commencement of
the hearing. Exhibits submitted as rebuttal evidence are not required
to be exchanged before the commencement of the hearing if the submission
of such evidence could not reasonably be anticipated at that time.
24 CFR 104.760 Authenticity.
The authenticity of all documents furnished to the parties as
required under 104.750 and submitted as proposed exhibits in advance of
the hearing shall be admitted unless a party files a written objection
to the exhibit before the commencement of the hearing. Upon a clear
showing of good cause for failure to file such a written objection, the
administrative law judge may permit the party to challenge the
authenticity.
24 CFR 104.770 Stipulations.
The parties may stipulate to any pertinent facts by oral agreement at
the hearing or by written agreement at any time. Stipulations may be
submitted into evidence at any time before the end of the hearing. When
received into evidence, the stipulation is binding on the parties.
24 CFR 104.780 Record of hearing.
(a) Hearing record. All oral hearings shall be recorded and
transcribed by a reporter designated by, and under the supervision of,
the administrative law judge. The original transcript shall be a part
of the record and shall constitute the sole official transcript. All
exhibits introduced as evidence shall be marked for identification and
incorporated as a part of the record. Transcripts may be obtained by
the parties and by the public from the official reporter at rates not to
exceed the applicable rates fixed by the contract with the reporter.
(b) Corrections. Corrections to the official transcript will be
permitted upon motion of a party. Motions for correction must be
submitted within five days of the receipt of the transcript.
Corrections of the official transcript will be permitted only where
errors of substance are involved and upon the approval of the
administrative law judge.
24 CFR 104.790 Arguments and briefs.
(a) Arguments. Following the submission of evidence at an oral
hearing, the administrative law judge may hear oral arguments at the
hearing. The administrative law judge may limit the time permitted for
such arguments to avoid unreasonable delay.
(b) Submission of written briefs. The administrative law judge may
permit the submission of written briefs following the adjournment of the
oral hearing. Written briefs shall be simultaneously filed by all
parties and shall be due not later than 30 days following the
adjournment of the oral hearing.
24 CFR 104.800 End of hearing.
(a) Oral hearings. Where there is an oral hearing, the hearing ends
on the day of the adjournment of the oral hearing or, where written
briefs are permitted, on the date that the written briefs are due.
(b) Hearing on written record. Where the parties have waived an oral
hearing, the hearing ends on the date set by the administrative law
judge as the final date for the receipt of submissions by the parties.
24 CFR 104.810 Receipt of evidence following hearing.
Following the end of the hearing, no additional evidence may be
accepted into the record, except with the permission of the
administrative law judge. The administrative law judge may receive
additional evidence upon a determination that new and material evidence
was not readily available before the end of the hearing, the evidence
has been timely submitted, and its acceptance will not unduly prejudice
the rights of the parties. However, the administrative law judge shall
include in the record any motions for attorney's fees (including
supporting documentation), and any approved corrections to the
transcripts.
24 CFR 104.810 Subpart I -- Dismissals and Decisions
24 CFR 104.900 Dismissal.
(a) Election of judicial determination. If the complainant, the
respondent, or the aggrieved person on whose behalf a complaint was
filed makes a timely election to have the claims asserted in the charge
decided in a civil action under section 812(o) of the Act, the
administrative law judge shall dismiss the administrative proceeding.
(b) Effect of a civil action on administrative proceeding. An
administrative law judge may not continue an administrative proceeding
under this part regarding an alleged discriminatory housing practice
after the beginning of the trial of a civil action commenced by the
aggrieved person under an act of Congress or a State law seeking relief
with respect to that discriminatory housing practice. If such a trial
is commenced, the administrative law judge shall dismiss the
administrative proceeding. The commencement and maintenance of a civil
action for appropriate temporary or preliminary relief under section
810(e) or proceedings for such relief under section 813 of the Fair
Housing Act does not affect administrative proceedings under this part.
24 CFR 104.910 Initial decision of administrative law judge.
(a) In general. Within the time period set forth in paragraph (d) of
this section, the administrative law judge shall issue an initial
decision including findings of fact and conclusions of law upon each
material issue of fact or law presented on the record. The initial
decision of the administrative law judge shall be based on the record of
the proceeding.
(b) Finding against respondent. If the administrative law judge
finds that a respondent has engaged, or is about to engage, in a
discriminatory housing practice, the administrative law judge shall
issue an initial decision against the respondent and order such relief
as may be appropriate. The relief may include, but is not limited to,
the following:
(1) The administrative law judge may order the respondent to pay
damages to the aggrieved person (including damages caused by humiliation
and embarrassment).
(2) The administrative law judge may provide for injunctive or such
other equitable relief as may be appropriate. No such order may affect
any contract, sale, encumbrance or lease consummated before the issuance
of the initial decision that involved a bona fide purchaser,
encumbrancer or tenant without actual knowledge of the charge issued
under 104.405.
(3) To vindicate the public interest, the administrative law judge
may assess a civil penalty against the respondent.
(i) The amount of the civil penalty may not exceed:
(A) $10,000, if the respondent has not been adjudged to have
committed any prior discriminatory housing practice in any
administrative hearing or civil action permitted under the Fair Housing
Act or any State or local fair housing law, or in any licensing or
regulatory proceeding conducted by a Federal, State or local
governmental agency.
(B) $25,000, if the respondent has been adjudged to have committed
one other discriminatory housing practice in any administrative hearing
or civil action permitted under the Fair Housing Act, or any State or
local fair housing law, or in any licensing or regulatory proceeding
conducted by a Federal, State, or local government agency, and the
adjudication was made during the five-year period preceding the date of
filing of the charge.
(C) $50,000, if the respondent has been adjudged to have committed
two or more discriminatory housing practices in any administrative
hearings or civil actions permitted under the Fair Housing Act or any
State or local fair housing law, or in any licensing or regulatory
proceeding conducted by a Federal, State, or local government agency,
and the adjudications were made during the seven-year period preceding
the date of the filing of the charge.
(ii) If the acts constituting the discriminatory housing practice
that is the subject of the charge were committed by the same natural
person who has previously been adjudged, in any administrative
proceeding or civil action, to have committed acts constituting a
discriminatory housing practice, the time periods set forth in
paragraphs (b)(3)(i) (B) and (C) of this section do not apply.
(iii) In a proceeding involving two or more respondents, the
administrative law judge may assess a civil penalty as provided under
paragraph (b) of this section against each respondent that the
administrative law judge determines has been engaged or is about to
engage in a discriminatory housing practice.
(c) Finding in favor of respondent. If the administrative law judge
finds that a respondent has not engaged, and is not about to engage, in
a discriminatory housing practice, the administrative law judge shall
make an initial decision dismissing the charge.
(d) Date of issuance. The administrative law judge shall issue an
initial decision within 60 days after the end of the hearing, unless it
is impracticable to do so. If the administrative law judge is unable to
issue the initial decision within this time period (or within any
succeeding 60-day period following the initial 60-day period), the
administrative law judge shall notify in writing all parties, the
aggrieved person on whose behalf the charge was filed, and the Assistant
Secretary, of the reasons for the delay.
24 CFR 104.920 Service of initial decision.
Simultaneously with the issuance of the initial decision, the
administrative law judge shall serve the initial decision on all
parties, the aggrieved person on whose behalf the charge was filed, the
Assistant Secretary and the Secretary of HUD. The initial decision will
include a notice stating that the initial decision will become the final
decision of the Department unless the Secretary issues a final decision
under 104.930 within 30 days of the date of issuance of the initial
decision.
24 CFR 104.925 Resolution of charge.
At any time before the issuance of a final decision under 104.930,
the parties may submit an agreement resolving the charge. The agreement
must be signed by the General Counsel, the respondent, and the aggrieved
person upon whose behalf the charge was issued. The administrative law
judge shall accept the agreement by issuing an initial decision based on
the agreed findings. The submission of an agreement resolving the
charge constitutes a waiver of any right to challenge or contest the
validity of a decision entered in accordance with the agreement.
24 CFR 104.930 Final decision.
(a) Issuance of final decision by Secretary. The Secretary of HUD
may review any finding of fact, conclusion of law, or order contained in
the initial decision of the administrative law judge and issue a final
decision in the proceeding. The Secretary may affirm, modify or set
aside, in whole or in part, the initial decision or remand the initial
decision for further proceedings. The Secretary shall serve the final
decision on all parties no later than 30 days from the date of issuance
of the initial decision of the administrative law judge. The final
decision shall be served on all parties, the aggrieved person on whose
behalf the charge was filed, and the Assistant Secretary.
(b) No final decision by Secretary. If the Secretary of HUD does not
serve a final decision within the time period described above, the
initial decision of the administrative law judge will become the final
decision of the Department. For the purposes of this part, such a final
decision will be considered to have been issued 30 days following the
date of issuance of the initial decision.
(c) Public disclosure. HUD shall make public disclosure of each
final decision.
(d) Decisions on remand. If the Secretary remands the decision for
further proceedings, the administrative law judge shall issue an initial
decision on remand within 60 days of the date of issuance of the
Secretary's decision, unless it is impractical to do so. If the
administrative law judge is unable to issue the initial decision within
this time period (or within any succeeding 60-day period following the
initial 60-day period), the administrative law judge shall notify in
writing the parties, the aggrieved person on whose behalf the charge was
filed, and the Assistant Secretary, of the reasons for the delay.
24 CFR 104.935 Action upon issuance of a final decision.
(a) Licensed or regulated businesses. (1) If a final decision
includes a finding that a respondent has engaged or is about to engage
in a discriminatory housing practice in the course of a business that is
subject to licensing or regulation by a Federal, State or local
governmental agency, the Assistant Secretary will notify the
governmental agency of the decision by:
(i) Sending copies of the findings of fact, conclusions of law and
the final decision to the governmental agency by certified mail; and
(ii) Recommending appropriate disciplinary action to the governmental
agency, including, where appropriate, the suspension or revocation of
the license of the respondent.
(2) The Assistant Secretary will notify the appropriate governmental
agencies within 30 days after the date of issuance of the final
decision, unless a petition for judicial review of the final decision as
described in 104.950 has been filed before the issuance of the
notification of the agency. If such a petition has been filed, the
Assistant Secretary will provide the notification to the governmental
agency within 30 days of the date that the final decision is affirmed
upon review. If a petition for judicial review is timely filed
following the notification of the governmental agency, the Assistant
Secretary will promptly notify the governmental agency of the petition
and withdraw his or her recommendation.
(b) Notification to the Attorney General. If a final decision
includes a finding that a respondent has engaged or is about to engage
in a discriminatory housing practice and another final decision
including such a finding was issued under this part within the five
years preceding the date of issuance of the final decision, the General
Counsel will notify the Attorney General of the decisions by sending a
copy of the final decisions in each administrative proceeding.
24 CFR 104.940 Attorney's fees and costs.
Following the issuance of the final decision under 104.930, any
prevailing party, except HUD, may apply for attorney's fees and costs.
The administrative law judge will issue an initial decision awarding or
denying such fees and costs. The initial decision will become the final
decision of HUD unless the Secretary reviews the initial decision and
issues a final decision on fees and costs within 30 days. The recovery
of reasonable attorney's fees and costs will be permitted as follows:
(a) If the respondent is the prevailing party:
(1) HUD will be liable for reasonable attorney's fees and costs to
the extent provided under the Equal Access to Justice Act (5 U.S.C.
504) and HUD's regulations at 24 CFR part 14; and
(2) An intervenor will be liable for reasonable attorney's fees and
costs only to the extent that the intervenor's participation in the
administrative proceeding was frivolous or vexatious, or was for the
purpose of harassment.
(b) To the extent that an intervenor is a prevailing party, the
respondent will be liable for reasonable attorney's fees unless special
circumstances make the recovery of such fees and costs unjust.
24 CFR 104.940 Subpart J -- Judicial Review and Enforcement of Final Decision
24 CFR 104.950 Judicial review of final decision.
(a) Petition for review. Any party adversely affected by a final
decision under 104.930 may file a petition in the appropriate United
States Court of Appeals for review of the decision under section 812(i)
of the Fair Housing Act. The petition must be filed within 30 days of
the date of issuance of the final decision.
(b) No petition for review. If no petition for review is filed under
paragraph (a) within 45 days from the date of issuance of the final
decision, the findings of facts and final decision shall be conclusive
in connection with any petition for enforcement described under
104.955(a) filed thereafter by the General Counsel, and in connection
with any petition for enforcement described under 104.955(b).
24 CFR 104.955 Enforcement of final decision.
(a) Enforcement by HUD. Following the issuance of a final decision
under 104.930, the General Counsel may petition the appropriate United
States Court of Appeals for the enforcement of the final decision and
for appropriate temporary relief or restraining order in accordance with
section 812(j) of the Fair Housing Act.
(b) Enforcement by others. If before the expiration of 60 days from
the date of issuance of the final decision under 104.930, no petition
for review of the final decision described under 104.950 has been
filed, and the General Counsel has not sought enforcement of the final
decision as described in paragraph (a) of this section, any person
entitled to relief under the final decision may petition the appropriate
United States Court of Appeals for the enforcement of the final decision
in accordance with section 812(m) of the Fair Housing Act.
24 CFR 104.955 PART 105 (RESERVED)
24 CFR 104.955 PART 106 -- FAIR HOUSING ADMINISTRATIVE MEETINGS UNDER
THE FAIR HOUSING ACT
Sec.
106.1 Purpose.
106.2 Definitions.
106.3 Initiation of meeting; notice.
106.4 Conduct of meetings.
106.5 Counsel and accompanying witnesses.
106.6 Intimidation of witnesses.
106.7 Transcript of meetings.
106.8 Attendance of news media at meetings.
106.9 Meeting report.
Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C.
3600-3620); sec. 7(d), Department of Housing and Urban Development Act
(42 U.S.C. 3535(d)).
Source: 37 FR 24420, Nov. 17, 1972, unless otherwise noted.
24 CFR 106.1 Purpose.
The purpose of this part is to establish procedures for public
meetings or conferences that may be used to assist the Assistant
Secretary in achieving the aims of the Fair Housing Act for the
promotion and assurance of equal opportunity in housing with regard to
race, color, religion, sex, handicap, familial status, or national
origin, and, specifically, to carry out those responsibilities delegated
to him or her by the Secretary of Housing and Urban Development under
sections 808(e) (1), (2), and (3), and 809 of the Fair Housing Act.
(54 FR 3308, Jan. 23, 1989)
24 CFR 106.2 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary for Fair
Housing and Equal Opportunity in the Department of Housing and Urban
Development.
(b) Meeting means a public meeting or conference held under the
authority of the Fair Housing Act and this part.
(c) Fair Housing Act means title VIII of the Civil Rights Act of
1968, as amended by the Fair Housing Amendments Act of 1988, 42 U.S.C.
3600-3620.
(54 FR 3308, Jan. 23, 1989)
24 CFR 106.3 Initiation of meeting; notice.
(a) Proceedings pursuant to this part shall be initiated by a notice
issued by the Assistant Secretary. At least 30 days prior to the
commencement of a meeting under this part, the Assistant Secretary shall
cause such notice to be published in the Federal Register, specifying
the date on which such meeting is to commence, the place at which it is
to be held, and the subject of the meeting.
(b) Copies of such notice shall be furnished to all persons who are
expected to testify or submit statements or other evidence and to the
Community Relations Service, U.S. Department of Justice, the Housing
Section, Civil Rights Division, U.S. Department of Justice, the U.S.
Commission on Civil Rights, other appropriate Federal, State, and local
agencies concerned with housing and community development, and such
private organizations and groups as may be deemed concerned with the
subject of the meeting.
(c) Persons and organizations desiring to submit information
concerning the subject of the meeting, or to testify at such meeting,
should address such information to: Assistant Secretary for Equal
Opportunity, Department of Housing and Urban Development, 451 Seventh
Street SW., Washington, DC 20410, or such local address as may be
specified in the notice.
24 CFR 106.4 Conduct of meetings.
(a) The Assistant Secretary or his designee shall announce in an
opening statement the subject of the meeting.
(b) The Assistant Secretary or his designee shall determine the order
of presentation of evidence and appearance of witnesses, and announce
the rules governing the meeting.
(c) Meetings shall be conducted with reasonable dispatch and due
regard shall be had for the convenience of witnesses.
(d) The questioning of witnesses shall be conducted only by the
Assistant Secretary or his designee, or by counsel for any person,
organization, or witness on direct or cross-examination, as the
Assistant Secretary or his designee may determine.
24 CFR 106.5 Counsel and accompanying witnesses.
Any person agreeing to appear in person before the Assistant
Secretary or his designee at a meeting will be accorded the right to be
accompanied by persons he may designate, including counsel.
24 CFR 106.6 Intimidation of witnesses.
Witnesses at meetings are protected from threats and intimidation by
the provisions of 18 U.S.C. 1505 and 42 U.S.C. 3631 which provide for
criminal penalties.
24 CFR 106.7 Transcript of meetings.
(a) An accurate transcript shall be made of the testimony of all
witnesses at meetings. Transcripts shall be recorded by any person
designated by the Assistant Secretary.
(b) Transcript copies of testimony given at meetings may be obtained
by the public upon the payment of the cost thereof.
(c) Any person who has testified at a meeting may, within 2 weeks
after copies of the transcript are available, ask to correct errors in
the transcript of his testimony or examination. Such requests shall be
granted only to make the transcript conform to the testimony presented
at the meeting.
24 CFR 106.8 Attendance of news media at meetings.
Reasonable access, as determined by the Assistant Secretary or his
designee, shall be provided for coverage of meetings to the various
means of communication, including newspapers, magazines, radio,
newsreels, and television. However, no witness shall be televised,
filmed, or photographed during the meetings without his consent, nor
shall his testimony be broadcast or recorded for broadcasting if he
objects.
24 CFR 106.9 Meeting report.
Evidence and information obtained during a meeting will serve as the
basis of a report on the meeting by the Assistant Secretary. The report
will contain such material and recommendations as the Assistant
Secretary may determine to publish or otherwise make available to the
public.
24 CFR 106.9 PART 107 -- NONDISCRIMINATION AND EQUAL OPPORTUNITY IN
HOUSING UNDER EXECUTIVE ORDER 11063
Sec.
107.10 Purpose.
107.11 Relation to other authorities.
107.15 Definitions.
107.20 Prohibition against discriminatory practices.
107.21 Prevention of discriminatory practices.
107.25 Provisions in legal instruments.
107.30 Recordkeeping requirements.
107.35 Complaints.
107.40 Compliance meeting.
107.45 Resolution of matters.
107.50 Compliance reviews.
107.51 Findings of noncompliance.
107.55 Compliance report.
107.60 Sanctions and penalties.
107.65 Referral to the Attorney General.
Authority: Sec. 7(d, Department of Housing and Urban Development
Act, 42 U.S.C. 3535(d); E.O. 11063, Equal Opportunity in Housing,
issued November 20, 1962 (27 FR 11527); E.O. 12259, Leadership and
Coordination of Fair Housing in Federal Programs, January 6, 1981 (46 FR
1253).
Source: 45 FR 59514, Sept. 9, 1980, unless otherwise noted.
24 CFR 107.10 Purpose.
These regulations are to carry out the requirements of E.O. 11063
that all action necessary and appropriate be taken to prevent
discrimination because of race, color, religion (creed), sex or national
origin in the sale, rental, leasing or other disposition of residential
property and related facilities or in the use or occupancy thereof where
such property or facilities are owned or operated by the Federal
Government, or provided with Federal assistance by the Department of
Housing and Urban Development and in the lending practices with respect
to residential property and related facilities of lending institutions
insofar as such practices relate to loans insured, guaranteed or
purchased by the Department. These regulations are intended to assure
compliance with the established policy of the United States that the
benefits under programs and activities of the Department which provide
financial assistance, directly or indirectly, for the provision,
rehabilitation, or operation of housing and related facilities are made
available without discrimination based on race, color, religion (creed),
sex or national origin. These regulations are also intended to assure
compliance with the policy of this Department to administer its housing
programs affirmatively, so as to achieve a condition in which
individuals of similar income levels in the same housing market area
have a like range of housing choices available to them regardless of
their race, color, religion (creed), sex or national origin.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.11 Relation to other authorities.
(a) Where allegations of discrimination on the grounds of race,
color, or national origin are made in a program or activity of Federal
financial assistance of the Department which does not involve a contract
of insurance or guaranty, the provisions of title VI of the Civil Rights
Act of 1964 and regulations implementing title VI, Nondiscrimination in
Federally Assisted Programs, under part 1 of this title shall apply.
Any complaint alleging discrimination on the basis of race, color,
religion (creed), sex or national origin in a program or activity of the
Department involving a contract of insurance or guaranty will be
received and processed according to this part.
(b) Where a complaint filed pursuant to this part alleges a
discriminatory housing practice which is also covered by title VIII of
the Civil Rights Act of 1968, the complainant shall be advised of the
right to file a complaint pursuant to section 810 of that title and of
the availability of Department procedures regarding fair housing
complaints under part 105 of this title. The complainant shall also be
advised of the right to initiate a civil action in court pursuant to
section 812 of the Civil Rights Act of 1968 without first filing a
complaint with HUD.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.15 Definitions.
(a) Department means the Department of Housing and Urban Development.
(b) Secretary means the Secretary of Housing and Urban Development.
(c) State means each of the fifty states, the District of Columbia,
the Commonwealths of Puerto Rico and the Northern Marianas, and the
territories of the United States.
(d) Assistance includes (1) grants, loans, contributions, and
advances of Federal funds; (2) the grant or donation of Federal
property and interests in property; (3) the sale, lease, and rental of,
and the permission to use (on other than a casual or transient basis),
Federal property or any interest in such property without consideration
or at a nominal consideration or at a consideration which is reduced for
the purpose of assisting the recipient or in recognition of the public
interest to be served by such sale or lease to the recipient, when such
order granting permission accompanies the sale, lease, or rental of
Federal properties; (4) loans in whole or in part insured, guaranteed,
or otherwise secured by the credit of the Federal Government; and (5)
any Federal agreement, arrangement, or other contract which has as one
of its purposes the provision of assistance.
(e) Person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives
or agents, mutual companies, joint-stock companies, trusts,
unincorporated organizations, trustees, trustees in bankruptcy,
receivers, fiduciaries and public entities.
(f) Public entity means a government or governmental subdivision or
agency.
(g) Discriminatory practice means: (1) Any discrimination on the
basis of race, color, religion (creed), sex or national origin or the
existence or use of a policy or practice, or any arrangement, criterion
or other method of administration which has the effect of denying equal
housing opportunity or which substantially impairs the ability of
persons to apply for or receive the benefits of assistance because of
race, color, religion (creed), sex or national origin, in the sale,
rental or other disposition of residential property or related
facilities (including land to be developed for residential use), or in
the use or occupancy thereof, where such property or related facilities
are:
(i) Owned or operated by the Secretary;
(ii) Provided in whole or in part with the aid of loans, advances,
grants, or contributions agreed to be made by the Department after
November 20, 1962;
(iii) Provided in whole or in part by loans insured, guaranteed or
otherwise secured by the credit of the Department after November 20,
1962; or
(iv) Provided by the development or the redevelopment of real
property purchased, leased, or otherwise obtained from a State or local
public agency or unit of general purpose local government receiving
Federal financial assistance from the Department under a loan or grant
contract entered into after November 20, 1962.
(2) Any discrimination on the basis of race, color, religion (creed),
sex or national origin or the existence or use of a policy, practice, or
any arrangement, criterion or other method of administration which has
the effect of denying equal housing opportunity or which substantially
impairs the ability of persons to apply for or receive the benefits of
assistance because of race, color, religion (creed), sex or national
origin in lending practices with respect to residential property and
related facilities (including land to be developed for residential use)
of lending institutions, insofar as such practices relate to loans,
insured or guaranteed, by the Department after November 20, 1962.
Examples of discriminatory practices under subsections (1) and (2)
include but are not limited to the following when based on race, color,
religion (creed), sex or national origin:
(i) Denial to a person of any housing accommodations, facilities,
services, financial aid, financing or other benefit provided under a
program or activity;
(ii) Providing any housing accommodations, facilities, services,
financial aid, financing or other benefits to a person which are
different, or are provided in a different manner, from those provided to
others in a program or activity;
(iii) Subjecting a person to segregation or separate treatment in any
matter related to the receipt of housing, accommodations, facilities,
services, financial aid, financing or other benefits under a program or
activity;
(iv) Restricting a person in any way in access to housing,
accommodations, facilities, services, financial aid, financing or other
benefits, or in the enjoyment of any advantage or privilege enjoyed by
others in connection with such housing, accommodations, facilities,
services, financial aid, or other benefits under a program or activity;
(v) Treating persons differently in determining whether they satisfy
any occupancy, admission, enrollment, eligibility, membership, or other
requirement or condition which persons must meet in order to be provided
any housing, accommodations, facilities, services, financial aid,
financing or other benefits under a program or activity; and
(vi) Denying a person opportunity to participate in a program or
activity through the provision of services or otherwise, or affording
the person an opportunity to do so which is different from that afforded
others in a program or activity.
(3) Noncompliance with relevant affirmative fair housing marketing
requirements contained in Department programs and regulations.
(4) A formal finding of a violation of title VIII of the Civil Rights
Act of 1968 or a state or local fair housing law with respect to
activities also covered by E.O. 11063.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.20 Prohibition against discriminatory practices.
(a) No person receiving assistance from or participating in any
program or activity of the Department involving housing and related
facilities shall engage in a discriminatory practice.
(b) Where such person has been found by the Department or any other
Federal Department, agency, or court to have previously discriminated
against persons on the ground of race, color, religion (creed), sex or
national origin, he or she must take affirmative action to overcome the
effects of prior discrimination.
(c) Nothing in this part precludes such person from taking
affirmative action to prevent discrimination in housing or related
facilities where the purpose of such action is to overcome prior
discriminatory practice or usage or to overcome the effects of
conditions which resulted in limiting participation by persons of a
particular race, color, religion (creed), sex or national origin.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.21 Prevention of discriminatory practices.
All persons receiving assistance from, or participating in any
program or activity of the Department involving housing and related
facilities shall take all action necessary and proper to prevent
discrimination on the basis of race, color, religion (creed), sex or
national origin.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.25 Provisions in legal instruments.
(a) The following documents shall contain provisions or statements
requiring compliance with E.O. 11063 and this part:
(1) Contracts, grants and agreements providing Departmental
assistance for the provision of housing and related facilities,
(2) Contracts, grants and agreements regarding the sale, rental or
management of properties owned by the Secretary,
(3) Corporate charters and regulatory agreements relating to
multifamily and land development projects assisted by the Department,
(4) Approvals of financial institutions and other lenders as approved
FHA mortgagees,
(5) Requests for subdivision reports under home mortgage procedures
and for preapplication analysis of multifamily and land development
projects, and
(6) Contracts and agreements providing for Departmental insurance or
guarantee of loans with respect to housing and related facilities.
(b) The provision or statement required pursuant to this section
shall indicate that the failure or refusal to comply with the
requirments of E.O. 11063 or this part shall be a proper basis for the
imposition of sanctions provided in 107.60.
24 CFR 107.30 Recordkeeping requirements.
(a) All persons receiving assistance through any program or activity
of the Department involving the provision of housing and related
activities subject to Executive Order 11063 shall maintain racial,
religious, national origin and sex data required by the Department in
connection with its programs and activities.
(b) All lenders participating in Departmental mortgage insurance
programs, home improvement loan programs, GNMA mortgage purchase
programs, or special mortgage assistance programs, shall maintain data
regarding the race, religion, national origin and sex of each applicant
and joint applicant for assistance with regard to residential property
and related facilities. Racial data shall be noted in the following
categories: American Indian/Alaskan Native, Asian/Pacific Islander,
Black, White, Hispanic. If an applicant or joint applicant refuses to
voluntarily provide the information or any part of it, that fact shall
be noted and the information shall be obtained, to the extent possible,
through observation. Applications shall be retained for a period of at
least twenty-five (25) months following the date the record was made.
(c) If an investigation or compliance review under this part reveals
a failure to comply with any of the requirements of paragraph (a) or (b)
of this section, the respondent shall have the burden of establishing
its compliance with this part and with the equal housing opportunity
requirements of the Executive order.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 52442, Dec. 24,
1985)
24 CFR 107.35 Complaints.
(a) The Assistant Secretary for FH&EO, or designee, shall conduct
such compliance reviews, investigations, inquiries, and informal
meetings as may be necessary to effect compliance with this part.
(b) Complaints under this part may be filed by any person and must be
filed within one year of date of the alleged act of discrimination
unless the time for filing is extended by the Assistant Secretary for
FH&EO. Complaints must be signed by the complainant and may be filed
with the Assistant Secretary for Fair Housing and Equal Opportunity,
Department of Housing and Urban Development, Washington, DC 20410, or
any Regional or Area Office of the Department. All complaints shall be
forwarded to the Director, Office of Regional Fair Housing and Equal
Opportunity in the appropriate Regional Office which has jurisdiction in
the area in which the property is located.
(c) Upon receipt of a timely complaint, the Director of the Office of
Regional FH&EO shall determine whether the complaint indicates a
possible violation of the Executive Order or this part. The Director of
the Office of Regional FH&EO or a designee within a reasonable period of
time shall conduct an investigation into the facts. The complainant
shall be notified of the determination.
24 CFR 107.40 Compliance meeting.
(a) Where preliminary analysis of a complaint, a compliance review
initiated by the Assistant Secretary for FH&EO, or other information
indicates a possible violation of E.O. 11063, or this part, the person
allegedly in violation (respondent) shall be sent a Notice of Compliance
Meeting and requested to attend a compliance meeting. The Notice shall
advise the respondent of the matters to be addressed in the Compliance
Meeting and the allegations contained in a complaint received pursuant
to 107.35. The purpose of the compliance meeting is to provide the
respondent with the opportunity to address matters raised and to remedy
such possible violations speedily and informally, to identify possible
remedies; and to effect a resolution as provided in 107.45.
(b) The Notice of Compliance Meeting shall be sent to the last known
address of the person allegedly in violation, by certified mail, or
through personal service. The Notice will advise such person of the
right to respond within seven (7) days to the matters and to submit
information and relevant data evidencing compliance with E.O. 11063,
the Affirmative Fair Housing Marketing Regulations, 24 CFR 200.600, the
Fair Housing Poster Regulations, 24 CFR part 110, the Advertising
Guidelines for Fair Housing, 37 FR 6700, April 1, 1972, other
affirmative marketing requirements applicable to the program or activity
and any revisions thereto. Further, the person will be offered an
opportunity to be present at the meeting in order to submit any other
evidence showing such compliance. The date, place, and time of the
scheduled meeting will be included in the Notice.
(c) Whenever a compliance meeting is scheduled as a result of a
complaint, the complainant shall be sent a copy of the Notice of
Compliance Meeting and shall be provided an opportunity to attend the
meeting.
(d) The Area Office having jurisdiction over the program will prepare
a report concerning the status of the respondent's participation in
Department programs to be presented to the respondent at the meeting.
The Area Manager shall be notified of the meeting and may attend the
meeting.
(e) At the Compliance Meeting the respondent and the complainant may
be represented by counsel and shall have a fair opportunity to present
any matters relevant to the complaint.
(f) During and pursuant to the Compliance Meeting, the Director of
the Office of Regional FH&EO shall consider all evidence relating to the
alleged violation, including any action taken by the person allegedly in
violation to comply with E.O. 11063.
(g) If the evidence shows no violation of the Executive order or this
part, the Director of the Office of Regional FH&EO shall so notify the
person(s) involved within ten (10) days of the meeting. A copy of this
notification shall be sent to the complainant, if any, and shall be
submitted to the Assistant Secretary for FH&EO.
(h) If the evidence indicates an apparent failure to comply with the
Executive order or this part, and the matter cannot be resolved
informally pursuant to 107.45, the Director of the Office of Regional
FH&EO shall so notify the respondent and the complainant, if any, no
later than ten (10) days after the date on which the compliance meeting
is held, in writing by certified mail, return receipt requested, and
shall advise the complainant, if any, and the respondent whether the
Department will conduct a compliance review pursuant to 107.50 or,
where appropriate, refer the matter to the Assistant Secretary for FH&EO
for possible imposition of sanctions. A copy of this notification shall
be submitted to the Assistant Secretary for FH&EO. The compliance
review shall be conducted to determine whether the respondent has
complied with the provisions of E.O. 11063, title VIII of the Civil
Rights Act of 1968, Department regulations and the Department's
Affirmative Fair Housing Marketing requirements.
(i) If the respondent fails to attend a compliance meeting scheduled
pursuant to this section, the Director of the Office of Regional FH&EO
shall notify the respondent no later than ten (10) days after the date
of the scheduled meeting, in writing by certified mail, return receipt
requested, as to whether the Department will conduct a compliance review
or, where appropriate, refer the matter to the Assistant Secretary for
FH&EO for possible imposition of sanctions. A copy of this notification
shall be submitted to the Assistant Secretary for FH&EO and sent to the
complainant, if any.
24 CFR 107.45 Resolution of matters.
(a) Attempts to resolve and remedy matters found in a complaint
investigation or a compliance review shall be made through the methods
of conference, conciliation, and persuasion.
(b) Resolution of matters pursuant to this section and 107.40 need
not be attempted where similar efforts by another Federal agency have
been unsuccessful in ending and remedying the violation found with
respect to the same respondent.
(c) Efforts to remedy matters shall be directed toward achieving a
just resolution of the probable violation and obtaining assurance(s)
that the respondent will satisfactorily remedy any violation of E.O.
11063 and will take actions to eliminate the discriminatory practices
and prevent reoccurrences. Compensation to individuals from the
respondent may also be considered.
(d) The terms of settlements shall be reduced to a written agreement,
signed by the respondent and the Assistant Secretary for FH&EO or a
designee. Such settlements shall seek to protect the interests of the
complainant, if any, other persons similarly affected, and the public
interest. A written notice of the disposition of matters pursuant to
this section and of the terms of settlements shall be given to the Area
Manager by the Assistant Secretary for FH&EO or a designee and to the
complainant, if any. When the Assistant Secretary or a designee
determines that there has been a violation of a settlement agreement,
the Assistant Secretary immediately may take action to impose sanctions
provided under this part, including the referral of the matter to the
Attorney General for appropriate action.
24 CFR 107.50 Compliance reviews.
(a) Compliance reviews shall be conducted by the Director of the
Office of Regional FH&EO or a designee. Complaints alleging a
violation(s) of this part or information ascertained in the absence of a
complaint indicating apparent failure to comply with this part shall be
referred immediately to the Director of the Office of Regional FH&EO.
The Regional Director of the Office having jurisdiction over the
programs involved and the Area Manager shall be notified of all alleged
violations of the regulations. A complaint is not a prerequisite for
the initiation of compliance review.
(b) The purpose of a compliance review is to determine whether the
respondent is in compliance with the Executive order and this part.
Where allegations may also indicate a violation of the provisions of
title VIII of the Civil Rights Act of 1968, HUD regulations issued
thereunder and Affirmative Fair Housing Marketing requirements, a review
may be undertaken to determine compliance with those requirements. The
respondent shall be given at least five (5) days notice of the time set
for any compliance review and the place or places for such review. The
complainant shall also be notified of the compliance review.
24 CFR 107.51 Findings of noncompliance.
(a) A finding of noncompliance shall be made when the facts disclosed
during an investigation or compliance review, or other information,
indicate a failure to comply with the provisions of E.O. 11063 or this
part. In no event will a finding of noncompliance precede the
completion of the compliance meeting procedures set forth in 107.40.
(b) Determinations of noncompliance with E.O. 11063 shall be made in
any case in which the facts establish the existence of a discriminatory
practice under 107.15(g)
(c) The existence or use of a policy or practice, or any arrangement,
criterion or other method of administration which has the effect of
denying equal housing opportunity or which substantially impairs the
ability of persons, because of race, color, religion (creed), sex or
national origin, to apply for or receive the benefits of assistance
shall be a basis for finding a discriminatory practice unless the
respondent can establish that:
(1) The policy or practice is designed to serve a legitimate business
necessity or governmental purpose of the respondent;
(2) The policy or practice effectively carries out the interest it is
designed to serve; and
(3) No alternative course of action could be adopted that would
enable respondent's interest to be served with a less discriminatory
impact.
(45 FR 59514, Sept. 9, 1980, as amended at 50 FR 31360, Aug. 2, 1985)
24 CFR 107.55 Compliance report.
(a) Following completion of efforts under this part, the Director of
the Office of Regional FH&EO or a designee shall prepare a compliance
report promptly and the Assistant Secretary for FH&EO shall make a
finding of compliance or noncompliance. If it is found that the
respondent is in compliance, all persons concerned shall be notified of
the finding. Where a finding of noncompliance is made, the report shall
specify the violations found. The Director of the Office of Regional
FH&EO shall send a copy of the report to the respondent by certified
mail, return receipt requested, together with a Notice that the matter
will be forwarded to the Assistant Secretary for FH&EO for a
determination as to whether actions will be initiated for the imposition
of sanctions. The Regional Director of the Office having jurisdiction
over the programs involved and the Area Manager shall also receive a
copy of the report and the notice of intention to refer the matter to
the Assistant Secretary for FH&EO.
(b) The Notice will provide that the respondent shall have seven (7)
days to respond to the violations found and resolve and remedy matters
in the compliance report. At the expiration of the seven (7) day period
the matter shall be referred to the Assistant Secretary for FH&EO.
(c) The complainant shall be sent a copy of the findings and
compliance report and shall have seven (7) days to comment thereon.
24 CFR 107.60 Sanctions and penalties.
(a) Failure or refusal to comply with E.O. 11063 or the requirements
of this part shall be proper basis for applying sanctions. Violations
of title VIII of the Civil Rights Act of 1968 or a state or local fair
housing law, with respect to activities covered by the Executive order,
or of the regulations and requirements under E.O. 11063 of other Federal
Departments and agencies may also result in the imposition of sanctions
by this Department.
(b) Such sanctions as are specified by E.O. 11063, the contract
through which Federal assistance is provided, and such sanctions as are
specified by the rules or regulations of the Department governing the
program under which Federal assistance to the project is provided, shall
be applied in accordance with the relevant regulations. Actions which
may be taken include: cancellation or termination, in whole or in part
of the contract or agreement; refusal to approve a lender or withdrawal
of approval; a determination of ineligibility, suspension or debarment
from any further assistance or contracts provided, however, that
sanctions of debarment, suspension and ineligibility are subject to the
Department's regulations under part 24 of this title; and provided
further, that no sanction under section 302 (a), (b) and (c) of E.O.
11063 shall be applied by the Assistant Secretary for FH&EO without the
concurrence of the Secretary.
(c) The Department shall use its good offices in order to promote the
abandonment of discriminatory practices with regard to residential
property and related facilities provided with assistance prior to the
effective date of E.O. 11063 and take appropriate actions permitted by
law including the institution of appropriate litigation to provide such
equal housing opportunities.
(d) In any case involving the failure of a lender to comply with the
requirements of the Executive order or this part, the Assistant
Secretary for FH&EO shall notify the Federal financial regulatory agency
having jurisdiction over the lender of the findings in the case.
24 CFR 107.65 Referral to the Attorney General.
If the results of a complaint investigation or a compliance review
demonstrate that any person, or specified class of persons, has violated
E.O. 11063 or this part, and efforts to resolve the matter(s) by
informal means have failed, the Assistant Secretary for FH&EO in
appropriate cases shall recommend that the General Counsel refer the
case to the Attorney General of the United States for appropriate civil
or criminal action under section 303 of E.O. 11063.
24 CFR 107.65 PART 108 -- COMPLIANCE PROCEDURES FOR AFFIRMATIVE FAIR
HOUSING MARKETING
Sec.
108.1 Purpose and application.
108.5 Authority.
108.15 Pre-occupancy conference.
108.20 Area office responsibility for monitoring plans and reports.
108.21 Regional office compliance responsibility.
108.25 Compliance meeting.
108.35 Complaints.
108.40 Compliance reviews.
108.45 Compliance report.
108.50 Sanctions.
Authority: Sec. 7(d), Department of Housing and Urban Development
Act of 1965, 42 U.S.C. 3535(d).
Source: 44 FR 47013, Aug. 9, 1979, unless otherwise noted.
24 CFR 108.1 Purpose and application.
(a) The primary purpose of this regulation is to establish procedures
for determining whether or not an applicant's actions are in compliance
with its approved Affirmative Fair Housing Marketing (AFHM) plan, AFHM
Regulation (24 CFR 200.600), and AFHM requirements in Departmental
programs.
(b) These regulations apply to all applicants for participation in
subsidized and unsubsidized housing programs administered by the
Department of Housing and Urban Development and to all other persons
subject to Affirmative Fair Housing Marketing requirements in Department
programs.
(c) The term applicant includes:
(1) All persons whose applications are approved for development or
rehabilitation of: Subdivisions; multifamily projects; manufactured
home parks of five or more lots, units or spaces; or dwelling units,
when the applicant's participation in FHA housing programs has exceeded,
or would thereby exceed, development of five or more such dwelling units
during the year preceding the application, except that there shall not
be included in a determination of the number of dwelling units developed
or rehabilitated by an applicant, those in which a single family
dwelling is constructed or rehabilitated for occupancy by a mortgagor on
property owned by the mortgagor and in which the applicant had no
interest prior to entering into the contract for construction or
rehabilitation. For the purposes of this definition, a person remains
an applicant from the date of submission of an application through
duration of receipt of assistance pursuant to such application.
(2) All other persons subject to AFHM requirements in Departmental
programs.
(d) The term person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives
or agents, mutual companies, joint-stock companies, trusts,
unincorporated organizations, trustees, trustees in bankruptcy,
receivers, fiduciaries and public entities.
(44 FR 47013, Aug. 9, 1979, as amended at 50 FR 9268, Mar. 7, 1985)
24 CFR 108.5 Authority.
The regulations in this part are issued pursuant to the authority to
issue regulations granted to the Secretary by section 7(d) of the
Department of Housing and Urban Development Act of 1965, 42 U.S.C.
3535(d). They implement the functions, powers, and duties imposed on the
Secretary by Executive Order 11063, 27 FR 11527 and title VIII of the
Civil Rights Act of 1968, 42 U.S.C. 3608.
24 CFR 108.15 Pre-occupancy conference.
Applicants shall submit a Notification of Intent to Begin Marketing
to the HUD Area Office having jurisdiction over the area in which the
housing is located no later than 90 days prior to engaging in sales or
rental marketing activities. Upon receipt of the Notification of Intent
to Begin Marketing from the applicant, the FH&EO Division of the Area
Office Division shall review any previously approved plan and may
schedule a pre-occupancy conference. Such pre-occupancy conference
shall be held prior to initiation of sales or rental marketing
activities. At this conference, the previously approved AFHM plan shall
be reviewed with the applicant to determine if the plan, and/or its
proposed implementation, requires modification previous to initiation of
marketing in order to achieve the objectives of the AFHM regulation and
the plan.
(Approved by the Office of Management and Budget under control number
2535-0027)
(44 FR 47013, Aug. 9, 1979, as amended at 48 FR 20903, May 10, 1983)
24 CFR 108.20 Area office responsibility for monitoring plans and
reports.
(a) Submission of documentation. Pursuant to initiation of
marketing, the applicant shall submit to the Area Office reports
documenting of the implementation of the AFHM plan, including sales or
rental reports, as required by the Department. Copies of such
documentation shall be forwarded to the Director of the Office of
Regional Fair Housing and Equal Opportunity by the FH&EO Division of the
Area Office as requested.
(b) Monitoring of AFHM plan. The FH&EO Division of the Area Office
is responsible for monitoring AFHM plans and providing technical
assistance to the applicant in preparation or modification of such plans
during the period of development and initial implementation.
(c) Review of applicant's reports. Each sales or rental report shall
be reviewed by the FH&EO Division of the Area Office as it is received.
When sales or rental reports show that 20% of the units covered by the
AFHM plan have been sold or rented, or whenever it appears that the plan
may not accomplish its intended objective, the Area Office FH&EO
Division shall notify the Director of the Office of Regional FH&EO.
(d) Failure of applicant to file documentation. If the applicant
fails to file required documentation, the applicant shall be sent a
written notice indicating that if the delinquent documentation is not
submitted to the Area Office within 10 days from date of receipt of the
notice, the matter will be referred to the Director of the Regional
FH&EO for action which may lead to the imposition of sanctions.
24 CFR 108.21 Regional office compliance responsibility.
The Director of the Office of Regional FH&EO shall be responsible for
determining whether an applicant's actions are in apparent compliance
with its approved AFHM plan, the AFHM regulations, and this part and for
determining changes or modifications necessary in the plan after
initiation of marketing.
24 CFR 108.25 Compliance meeting.
(a) Scheduling meeting. If an applicant fails to comply with
requirements under 108.15 or 108.20 or it appears that the goals of
the AFHM plan may not be achieved, or that the implementation of the
Plan should be modified, the Director of the Office of Regional FH&EO
shall schedule a meeting with the applicant. The meeting shall be held
at least ten days before the next sales or rental report is due. The
purpose of the compliance meeting is to review the applicant's
compliance with AFHM requirements and the implementation of the AFHM
Plan and to indicate any changes or modifications which may be required
in its Plan.
(b) Notice of Compliance Meeting. A Notice of Compliance Meeting
shall be sent to the last known address of the applicant, by certified
mail or through personal service. The Notice will advise the applicant
of the right to respond within seven (7) days to the matters identified
as subjects of the meeting and to submit information and relevant data
evidencing compliance with the AFHM regulations, the AFHM Plan,
Executive Order 11063 and title VIII of the Civil Rights Act of 1968,
when appropriate.
(c) Applicant data required. The applicant will be requested in
writing to provide, prior to or at the compliance meeting, specific
documents, records, and other information relevant to compliance,
including but not limited to:
(1) Copies or scripts of all advertising in the Standard Metropolitan
Statistical Area (SMSA) or housing market area, as appropriate,
including newspaper, radio and television advertising, and a photograph
of any sale or rental sign at the site of construction;
(2) Copies of brochures and other printed material used in connection
with sales or rentals;
(3) Evidence of outreach to community organizations;
(4) Any other evidence of affirmative outreach to groups which are
not likely to apply for the subject housing;
(5) Evidence of instructions to employees with respect to company
policy of nondiscrimination in housing;
(6) Description of training conducted with sales/rental staff;
(7) Evidence of nondiscriminatory hiring and recruiting policies for
staff engaged in the sale or rental of properties, and data by race and
sex of the composition of the staff;
(8) Copies of applications and waiting lists of prospective buyers or
renters maintained by applicant;
(9) Copies of Sign-in Lists maintained on site for prospective buyers
and renters who are shown the facility;
(10) Copies of the selection and screeing criteria;
(11) Copies of relevant lease or sales agreements;
(12) Any other information which documents efforts to comply with an
approved plan.
(d) Preparation for the compliance meeting. The Area Office Housing
Division will provide information concerning the status of the project
or housing involved to be presented to the applicant at the meeting.
The Area Manager shall be notified of the meeting and may attend.
(e) Resolution of matters. Where matters raised in the compliance
meetings are resolved through revision to the plan or its
implementation, the terms of the resolution shall be reduced to writing
and submitted to the Regional Office within 10 days of the date of the
compliance meeting.
(f) Determination of compliance. If the evidence shows no violation
of the AFHM regulations and that the applicant is complying with its
approved AFHM plan and this part, the Director of the Office of Regional
FH&EO shall so notify the applicant within 10 days of the meeting.
(g) Determination of possible noncompliance. If the evidence
indicates an apparent failure to comply with the AFHM plan or the AFHM
regulation, or if the matters raised cannot be resolved, the Director of
the Office of Regional FH&EO shall so notify the applicant no later than
ten (10) days after the date of the compliance meeting is held, in
writing by certified mail, return receipt requested, and shall advise
the applicant that the Department will conduct a comprehensive
compliance review or refer the matter to the Assistant Secretary for
Fair Housing and Equal Opportunity for consideration of action including
the imposition of sanctions. The purpose of a compliance review is to
determine whether the applicant has complied with the provisions of
Executive Order 11063, title VIII of the Civil Rights Act of 1968, and
the AFHM regulations in conjunction with the applicant's specific AFHM
plan previously approved by HUD.
(h) Failure of applicant to attend the meeting. If the applicant
fails to attend the meeting scheduled pursuant to this section, the
Director of the Office of Regional FH&EO shall so notify the applicant
no later than ten (10) days after the date of the scheduled meeting, in
writing by certified mail, return receipt requested, and shall advise
the applicant as to whether the Director will conduct a comprehensive
compliance review or refer the matter to the Assistant Secretary for
Fair Housing and Equal Opportunity for consideration of action including
the imposition of sanctions.
24 CFR 108.35 Complaints.
Individuals and private and public entities may file complaints
alleging violations of the AFHM regulations or an approved AFHM plan
with any HUD Area Office, HUD Regional Office, or with the Assistant
Secretary for FH&EO. Complaints will be referred to the Director of the
Office of Regional FH&EO. Where there is an allegation of a violation
of title VIII the complaint also will be processed under part 105.
24 CFR 108.40 Compliance reviews.
(a) General. All compliance reviews shall be conducted by the
Director of the Office of Regional FH&EO or designee. Complaints
alleging a violation(s) of the AFHM regulations, or information
ascertained in the absence of a complaint indicating an applicant's
failure to comply with an AFHM plan, shall be referred immediately to
the Director of the Office of Regional FH&EO. The Regional Director for
Housing and the Area Manager shall be notified as appropriate of all
alleged violations of the AFHM regulations or alleged failure to comply
with an AFHM plan.
(b) Initiation of compliance reviews. Even in the absence of a
complaint or other information indicating noncompliance pursuant to
paragraph (a), the Director of the Office of Regional FH&EO may conduct
periodic compliance reviews throughout the life of the mortgage in the
case of multi-family projects and throughout the duration of the Housing
Assistance Payments Contract with the Department in the case of housing
assisted under section 8 of the United States Housing Act of 1937, as
amended, 42 U.S.C. 1437.
(c) Nature of compliance reviews. The purpose of a compliance review
is to determine whether the applicant is in compliance with the
Department's AFHM requirements and the applicant's approved AFHM plan.
Where allegations under this part may also constitute a violation of the
provisions of Executive Order 11063 or title VIII, the review will also
determine compliance with the requirements thereof. The applicant shall
be given at least five (5) days notice of the time set for any
compliance review and the place or places for such review. The
compliance review will cover the following areas:
(1) Applicant's sales and rental practices, including practices in
soliciting buyers and tenants, determining eligibility, selecting and
rejecting buyers and renters, and in concluding sales and rental
transactions.
(2) Programs to attract minority and majority buyers and renters
regardless of sex, including:
(i) Use of advertising media, brochures, and pamphlets;
(ii) Conformance with both the Department's Fair Housing Poster
Regulation (24 CFR part 110) and the Advertising Guidelines for Fair
Housing (37 FR 6700) and any revisions thereto.
(3) Data relating to:
(i) The size and location of units;
(ii) Services provided;
(iii) Sales and/or rental price ranges;
(iv) The race and sex of buyers and/or renters;
(v) Race and sex of staff engaged in sale or rental of dwellings.
(4) Other matters relating to the marketing or sales of dwellings
under HUD affirmative marketing requirements, the AFMH Plan and this
part.
24 CFR 108.45 Compliance report.
Following a compliance review, a report shall be prepared promptly
and the Assistant Secretary for FH&EO shall make a finding of compliance
or noncompliance. If it is found that the applicant is in compliance,
all parties concerned shall be notified of the findings. Whenever a
finding of noncompliance is made pursuant to this part, the report shall
list specifically the violations found. The applicant shall be sent a
copy of the report by certified mail, return receipt requested, together
with a notice that, if the matter cannot be resolved within ten days of
receipt of the Notice, the matter will be referred to the Assistant
Secretary for FH&EO to make a determination as to whether actions will
be initiated for the imposition of sanctions. The Director of the
Office of Regional Housing and the Area Director of the Housing Division
shall also receive a copy of the report and the notice of intention to
refer the matter to the Assistant Secretary for FH&EO for a
determination as to whether actions will be initiated to impose
sanctions.
24 CFR 108.50 Sanctions.
Applicants failing to comply with the requirements of these
regulations, the AFHM regulations, or an AFHM plan will make themselves
liable to sanctions authorized by law, regulations, agreements, rules,
or policies governing the program pursuant to which the application was
made, including, but not limited to, denial of further participation in
Departmental programs and referral to the Department of Justice for suit
by the United States for injunctive or other appropriate relief.
24 CFR 108.50 PART 109 -- FAIR HOUSING ADVERTISING
Sec.
109.5 Policy.
109.10 Purpose.
109.15 Definitions.
109.16 Scope.
109.20 Use of words, phrases, symbols, and visual aids.
109.25 Selective use of advertising media or content.
109.30 Fair housing policy and practices.
Appendix I to Part 109 -- Fair Housing Advertising
Authority: Title VIII, Civil Rights Act of 1968, 42 U.S.C.
3600-3620; section 7(d), Department of HUD Act, 42 U.S.C. 3535(d).
Source: 54 FR 3308, Jan. 23, 1989, unless otherwise noted.
24 CFR 109.5 Policy.
It is the policy of the United States to provide, within
constitutional limitations, for fair housing throughout the United
States. The provisions of the Fair Housing Act (42 U.S.C. 3600, et
seq.) make it unlawful to discriminate in the sale, rental, and
financing of housing, and in the provision of brokerage and appraisal
services, because of race, color, religion, sex, handicap, familial
status, or national origin. Section 804(c) of the Fair Housing Act, 42
U.S.C. 3604(c), as amended, makes it unlawful to make, print, or
publish, or cause to be made, printed, or published, any notice,
statement, or advertisement, with respect to the sale or rental of a
dwelling, that indicates any preference, limitation, or discrimination
because of race, color, religion, sex, handicap, familial status, or
national origin, or an intention to make any such preference,
limitation, or discrimination. However, the prohibitions of the act
regarding familial status do not apply with respect to housing for older
persons, as defined in section 807(b) of the act.
24 CFR 109.10 Purpose.
The purpose of this part is to assist all advertising media,
advertising agencies and all other persons who use advertising to make,
print, or publish, or cause to be made, printed, or published,
advertisements with respect to the sale, rental, or financing of
dwellings which are in compliance with the requirements of the Fair
Housing Act. These regulations also describe the matters this
Department will review in evaluating compliance with the Fair Housing
Act in connection with investigations of complaints alleging
discriminatory housing practices involving advertising.
24 CFR 109.15 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary for Fair
Housing and Equal Opportunity.
(b) General Counsel means the General Counsel of the Department of
Housing and Urban Development.
(c) Dwelling means any building, structure, or portion thereof which
is occupied as, or designed or intended for occupancy as, a residence by
one or more families, and any vacant land which is offered for sale or
lease for the construction or location thereon of any such building,
structure, or portion thereof.
(d) Family includes a single individual.
(e) Person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives,
mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under title 11 U.S.C.,
receivers, and fiduciaries.
(f) To rent includes to lease, to sublease, to let and otherwise to
grant for a consideration the right to occupy premises not owned by the
occupant.
(g) Discriminatory housing practice means an act that is unlawful
under section 804, 805, 806, or 818 of the Fair Housing Act.
(h) Handicap means, with respect to a person --
(1) A physical or mental impairment which substantially limits one or
more of such person's major life activities,
(2) A record of having such an impairment, or
(3) Being regarded as having such an impairment.
This term does not include current, illegal use of or addiction to a
controlled substance (as defined in section 102 of the Controlled
Substances Act (21 U.S.C. 802)). For purposes of this part, an
individual shall not be considered to have a handicap solely because
that individual is a transvestite.
(i) Familial status means one or more individuals (who have not
attained the age of 18 years) being domiciled with --
(1) A parent or another person having legal custody of such
individual or individuals; or
(2) The designee of such parent or other person having such custody,
with the written permission of such parent or other person. The
protections afforded against discrimination on the basis of familial
status shall apply to any person who is pregnant or is in the process of
securing legal custody of any individual who has not attained the age of
18 years.
24 CFR 109.16 Scope.
(a) General. This part describes the matters the Department will
review in evaluating compliance with the Fair Housing Act in connection
with investigations of complaints alleging discriminatory housing
practices involving advertising. Use of these criteria will be
considered by the General Counsel in making determinations as to whether
there is reasonable cause, and by the Assistant Secretary in making
determinations that there is no reasonable cause, to believe that a
discriminatory housing practice has occurred or is about to occur.
(1) Advertising media. This part provides criteria for use by
advertising media in determining whether to accept and publish
advertising regarding sales or rental transactions. Use of these
criteria will be considered by the General Counsel in making
determinations as to whether there is reasonable cause, and by the
Assistant Secretary in making determinations that there is no reasonable
cause, to believe that a discriminatory housing practice has occurred or
is about to occur.
(2) Persons placing advertisements. A failure by persons placing
advertisements to use the criteria contained in this part, when found in
connection with the investigation of a complaint alleging the making or
use of discriminatory advertisements, will be considered by the General
Counsel in making a determination of reasonable cause, and by the
Assistant Secretary in making determinations that there is no reasonable
cause, to believe that a discriminatory housing practice has occurred or
is about to occur.
(b) Affirmative advertising efforts. Nothing in this part shall be
construed to restrict advertising efforts designed to attract persons to
dwellings who would not ordinarily be expected to apply, when such
efforts are pursuant to an affirmative marketing program or undertaken
to remedy the effects of prior discrimination in connection with the
advertising or marketing of dwellings.
(54 FR 3308, Jan. 23, 1989, as amended at 55 FR 53294, Dec. 28, 1990)
24 CFR 109.20 Use of words, phrases, symbols, and visual aids.
The following words, phrases, symbols, and forms typify those most
often used in residential real estate advertising to convey either overt
or tacit discriminatory preferences or limitations. In considering a
complaint under the Fair Housing Act, the Department will normally
consider the use of these and comparable words, phrases, symbols, and
forms to indicate a possible violation of the act and to establish a
need for further proceedings on the complaint, if it is apparent from
the context of the usage that discrimination within the meaning of the
act is likely to result.
(a) Words descriptive of dwelling, landlord, and tenants. White
private home, Colored home, Jewish home, Hispanic residence, adult
building.
(b) Words indicative of race, color, religion, sex, handicap,
familial status, or national origin -- (1) Race -- Negro, Black,
Caucasian, Oriental, American Indian.
(2) Color -- White, Black, Colored.
(3) Religion -- Protestant, Christian, Catholic, Jew.
(4) National origin -- Mexican American, Puerto Rican, Philippine,
Polish, Hungarian, Irish, Italian, Chicano, African, Hispanic, Chinese,
Indian, Latino.
(5) Sex -- the exclusive use of words in advertisements, including
those involving the rental of separate units in a single or multi-family
dwelling, stating or tending to imply that the housing being advertised
is available to persons of only one sex and not the other, except where
the sharing of living areas is involved. Nothing in this part restricts
advertisements of dwellings used exclusively for dormitory facilities by
educational institutions.
(6) Handicap -- crippled, blind, deaf, mentally ill, retarded,
impaired, handicapped, physically fit. Nothing in this part restricts
the inclusion of information about the availability of accessible
housing in advertising of dwellings.
(7) Familial status -- adults, children, singles, mature persons.
Nothing in this part restricts advertisements of dwellings which are
intended and operated for occupancy by older persons and which
constitute housing for older persons as defined in part 100 of this
title.
(8) Catch words -- Words and phrases used in a discriminatory context
should be avoided, e.g., restricted, exclusive, private, integrated,
traditional, board approval or membership approval.
(c) Symbols or logotypes. Symbols or logotypes which imply or
suggest race, color, religion, sex, handicap, familial status, or
national origin.
(d) Colloquialisms. Words or phrases used regionally or locally
which imply or suggest race, color, religion, sex, handicap, familial
status, or national origin.
(e) Directions to real estate for sale or rent (use of maps or
written instructions). Directions can imply a discriminatory
preference, limitation, or exclusion. For example, references to real
estate location made in terms of racial or national origin significant
landmarks, such as an existing black development (signal to blacks) or
an existing development known for its exclusion of minorities (signal to
whites). Specific directions which make reference to a racial or
national origin significant area may indicate a preference. References
to a synagogue, congregation or parish may also indicate a religious
preference.
(f) Area (location) description. Names of facilities which cater to
a particular racial, national origin or religious group, such as country
club or private school designations, or names of facilities which are
used exclusively by one sex may indicate a preference.
24 CFR 109.25 Selective use of advertising media or content.
The selective use of advertising media or content when particular
combinations thereof are used exclusively with respect to various
housing developments or sites can lead to discriminatory results and may
indicate a violation of the Fair Housing Act. For example, the use of
English language media alone or the exclusive use of media catering to
the majority population in an area, when, in such area, there are also
available non-English language or other minority media, may have
discriminatory impact. Similarly, the selective use of human models in
advertisements may have discriminatory impact. The following are
examples of the selective use of advertisements which may be
discriminatory:
(a) Selective geographic advertisements. Such selective use may
involve the strategic placement of billboards; brochure advertisements
distributed within a limited geographic area by hand or in the mail;
advertising in particular geographic coverage editions of major
metropolitan newspapers or in newspapers of limited circulation which
are mainly advertising vehicles for reaching a particular segment of the
community; or displays or announcements available only in selected
sales offices.
(b) Selective use of equal opportunity slogan or logo. When placing
advertisements, such selective use may involve placing the equal housing
opportunity slogan or logo in advertising reaching some geographic
areas, but not others, or with respect to some properties but not
others.
(c) Selective use of human models when conducting an advertising
campaign. Selective advertising may involve an advertising campaign
using human models primarily in media that cater to one racial or
national origin segment of the population without a complementary
advertising campaign that is directed at other groups. Another example
may involve use of racially mixed models by a developer to advertise one
development and not others. Similar care must be exercised in
advertising in publications or other media directed at one particular
sex, or at persons without children. Such selective advertising may
involve the use of human models of members of only one sex, or of adults
only, in displays, photographs or drawings to indicate preferences for
one sex or the other, or for adults to the exclusion of children.
24 CFR 109.30 Fair housing policy and practices.
In the investigation of complaints, the Assistant Secretary will
consider the implementation of fair housing policies and practices
provided in this section as evidence of compliance with the prohibitions
against discrimination in advertising under the Fair Housing Act.
(a) Use of Equal Housing Opportunity logotype, statement, or slogan.
All advertising of residential real estate for sale, rent, or financing
should contain an equal housing opportunity logotype, statement, or
slogan as a means of educating the homeseeking public that the property
is available to all persons regardless of race, color, religion, sex,
handicap, familial status, or national origin. The choice of logotype,
statement or slogan will depend on the type of media used (visual or
auditory) and, in space advertising, on the size of the advertisement.
Table I (see appendix I) indicates suggested use of the logotype,
statement, or slogan and size of logotype. Table II (see appendix I)
contains copies of the suggested Equal Housing Opportunity logotype,
statement and slogan.
(b) Use of human models. Human models in photographs, drawings, or
other graphic techniques may not be used to indicate exclusiveness
because of race, color, religion, sex, handicap, familial status, or
national origin. If models are used in display advertising campaigns,
the models should be clearly definable as reasonably representing
majority and minority groups in the metropolitan area, both sexes, and,
when appropriate, families with children. Models, if used, should
portray persons in an equal social setting and indicate to the general
public that the housing is open to all without regard to race, color,
religion, sex, handicap, familial status, or national origin, and is not
for the exclusive use of one such group.
(c) Coverage of local laws. Where the Equal Housing Opportunity
statement is used, the advertisement may also include a statement
regarding the coverage of any local fair housing or human rights
ordinance prohibiting discrimination in the sale, rental or financing of
dwellings.
(d) Notification of fair housing policy -- (1) Employees. All
publishers of advertisements, advertising agencies, and firms engaged in
the sale, rental or financing of real estate should provide a printed
copy of their nondiscrimination policy to each employee and officer.
(2) Clients. All publishers or advertisements and advertising
agencies should post a copy of their nondiscrimination policy in a
conspicuous location wherever persons place advertising and should have
copies available for all firms and persons using their advertising
services.
(3) Publishers' notice. All publishers should publish at the
beginning of the real estate advertising section a notice such as that
appearing in Table III (see appendix I). The notice may include a
statement regarding the coverage of any local fair housing or human
rights ordinance prohibiting discrimination in the sale, rental or
financing of dwellings.
24 CFR 109.30 Pt. 109, App. I
24 CFR 109.30 Appendix I to Part 109 -- Fair Housing Advertising
The following three tables may serve as a guide for the use of the
Equal Housing Opportunity logotype, statement, slogan, and publisher's
notice for advertising:
A simple formula can guide the real estate advertiser in using the
Equal Housing Opportunity logotype, statement, or slogan.
In all space advertising (advertising in regularly printed media such
as newspapers or magazines) the following standards should be used:
In any other advertisements, if other logotypes are used in the
advertisement, then the Equal Housing Opportunity logo should be of a
size at least equal to the largest of the other logotypes; if no other
logotypes are used, then the type should be bold display face which is
clearly visible. Alternatively, when no other logotypes are used, 3 to
5 percent of an advertisement may be devoted to a statement of the equal
housing opportunity policy.
In space advertising which is less than 4 column inches (one column 4
inches long or two columns 2 inches long) of a page in size, the Equal
Housing Opportunity slogan should be used. Such advertisements may be
grouped with other advertisements under a caption which states that the
housing is available to all without regard to race, color, religion,
sex, handicap, familial status, or national origin.
Illustrations of Logotype, Statement, and Slogan. Equal Housing
Opportunity Logotype:
insert illus. 439A
Equal Housing Opportunity Statement: We are pledged to the letter
and spirit of U.S. policy for the achievement of equal housing
opportunity throughout the Nation. We encourage and support an
affirmative advertising and marketing program in which there are no
barriers to obtaining housing because of race, color, religion, sex,
handicap, familial status, or national origin.
Equal Housing Opportunity Slogan: ''Equal Housing Opportunity.''
Illustration of Media Notice -- Publisher's notice: All real estate
advertised herein is subject to the Federal Fair Housing Act, which
makes it illegal to advertise ''any preference, limitation, or
discrimination because of race, color, religion, sex, handicap, familial
status, or national origin, or intention to make any such preference,
limitation, or discrimination.''
We will not knowingly accept any advertising for real estate which is
in violation of the law. All persons are hereby informed that all
dwellings advertised are available on an equal opportunity basis.
24 CFR 109.30 PART 110 -- FAIR HOUSING POSTER
24 CFR 109.30 Subpart A -- Purpose and Definitions
Sec.
110.1 Purpose.
110.5 Definitions.
24 CFR 109.30 Subpart B -- Requirements for Display of Posters
110.10 Persons subject.
110.15 Location of posters.
110.20 Availability of posters.
110.25 Description of posters.
24 CFR 109.30 Subpart C -- Enforcement
110.30 Effect of failure to display poster.
Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C.
3600-3620); sec. 7(d), Department of Housing and Urban Development Act
(42 U.S.C. 3535(d)).
Source: 37 FR 3429, Feb. 16, 1972.
24 CFR 109.30 Subpart A -- Purpose and Definitions
24 CFR 110.1 Purpose.
The regulations set forth in this part contain the procedures
established by the Secretary of Housing and Urban Development with
respect to the display of a fair housing poster by persons subject to
sections 804 through 806 of the Fair Housing Act, 42 U.S.C. 3604-3606.
(54 FR 3310, Jan. 23, 1989)
24 CFR 110.5 Definitions.
(a) Department means the Department of Housing and Urban Development.
(b) Discriminatory housing practice means an act that is unlawful
under section 804, 805, 806, or 818 of the Act.
(c) Dwelling means any building, structure, or portion thereof which
is occupied as, or designed or intended for occupancy as, a residence by
one or more families, and any vacant land which is offered for sale or
lease for the construction or location thereon of any such building,
structure, or portion thereof.
(d) Family includes a single individual.
(e) Person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives,
mutual companies, joint-stock companies, trusts, unincorporated
organizations, trustees, trustees in cases under title 11 U.S.C.,
receivers and fiduciaries.
(f) Secretary means the Secretary of Housing and Urban Development.
(g) Fair housing poster means the poster prescribed by the Secretary
for display by persons subject to sections 804-806 of the Act.
(h) The Act means the Fair Housing Act (The Civil Rights Act of 1968,
as amended by the Fair Housing Amendments Act of 1988), 42 U.S.C. 3600,
et seq.
(i) Person in the business of selling or renting dwellings means a
person as defined in section 803(c) of the Act.
(37 FR 3429, Feb. 16, 1972, as amended at 54 FR 3311, Jan. 23, 1989)
24 CFR 110.5 Subpart B -- Requirements for Display of Posters
24 CFR 110.10 Persons subject.
(a) Except to the extent that paragraph (b) of this section applies,
all persons subject to section 804 of the Act, Discrimination in the
Sale or Rental of Housing and Other Prohibited Practices, shall post and
maintain a fair housing poster as follows:
(1) With respect to a single-family dwelling (not being offered for
sale or rental in conjunction with the sale or rental of other
dwellings) offered for sale or rental through a real estate broker,
agent, salesman, or person in the business of selling or renting
dwellings, such person shall post and maintain a fair housing poster at
any place of business where the dwelling is offered for sale or rental.
(2) With respect to all other dwellings covered by the Act:
(i) A fair housing poster shall be posted and maintained at any place
of business where the dwelling is offered for sale or rental, and
(ii) A fair housing poster shall be posted and maintained at the
dwelling, except that with respect to a single-family dwelling being
offered for sale or rental in conjunction with the sale or rental of
other dwellings, the fair housing poster may be posted and maintained at
the model dwellings instead of at each of the individual dwellings.
(3) With respect to those dwellings to which paragraph (a)(2) of this
section applies, the fair housing poster must be posted at the beginning
of construction and maintained throughout the period of construction and
sale or rental.
(b) This part shall not require posting and maintaining a fair
housing poster:
(1) On vacant land, or
(2) At any single-family dwelling, unless such dwelling
(i) Is being offered for sale or rental in conjunction with the sale
or rental of other dwellings in which circumstances a fair housing
poster shall be posted and maintained as specified in paragraph
(a)(2)(ii) of this section, or
(ii) Is being offered for sale or rental through a real estate
broker, agent, salesman, or person in the business of selling or renting
dwellings in which circumstances a fair housing poster shall be posted
and maintained as specified in paragraph (a)(1) of this section,
(c) All persons subject to section 805 of the Act, Discrimination In
Residential Real Estate-Related Transactions shall post and maintain a
fair housing poster at all their places of business which participate in
the covered activities.
(d) All persons subject to section 806 of the Act, Discrimination in
the Provision of Brokerage Services, shall post and maintain a fair
housing poster at all their places of business.
(37 FR 3429, Feb. 16, 1972, as amended at 54 FR 3311, Jan. 23, 1989)
24 CFR 110.15 Location of posters.
All fair housing posters shall be prominently displayed so as to be
readily apparent to all persons seeking housing accommodations or
seeking to engage in residential real estate-related transactions or
brokerage services as contemplated by sections 804 through 806 of the
Act.
(54 FR 3311, Jan. 23, 1989)
24 CFR 110.20 Availability of posters.
All persons subject to this part may obtain fair housing posters from
the Department's regional and area offices. A facsimile may be used if
the poster and the lettering are equivalent in size and legibility to
the poster available from the Department.
(37 FR 3429, Feb. 16, 1972)
24 CFR 110.25 Description of posters.
(a) The fair housing poster shall be 11 inches by 14 inches and shall
bear the following legend:
insert illus. 443A
(The Civil Rights Act of 1968, as amended by the Fair Housing
Amendments Act of 1988)
In the sale or rental of housing or residential lots.
In advertising the sale or rental of housing.
In the financing of housing.
In the appraisal of housing.
In the provision of real estate brokerage services.
Blockbusting is also illegal.
Anyone who feels he or she has been discriminated against should send
a complaint to:
U.S. Department of Housing and Urban Development, Assistant Secretary
for Fair Housing and Equal Opportunity, Washington, DC 20410
or
HUD Region or (Area Office stamp)
(b) The Assistant Secretary for Equal Opportunity may grant a waiver
permitting the substitution of a poster prescribed by a Federal
financial regulatory agency for the fair housing poster described in
paragraph (a) of this section. While such waiver remains in effect,
compliance with the posting requirements of such regulatory agency shall
be deemed compliance with the posting requirements of this part. Such
waiver shall not affect the applicability of all other provisions of
this part.
(37 FR 3429, Feb. 16, 1972, as amended at 40 FR 20079, May 8, 1975;
54 FR 3311, Jan. 23, 1989)
24 CFR 110.25 Subpart C -- Enforcement
24 CFR 110.30 Effect of failure to display poster.
Any person who claims to have been injured by a discriminatory
housing practice may file a complaint with the Secretary pursuant to
part 105 of this chapter. A failure to display the fair housing poster
as required by this part shall be deemed prima facie evidence of a
discriminatory housing practice.
(37 FR 3429, Feb. 16, 1972)
24 CFR 110.30 PART 111 -- FAIR HOUSING ASSISTANCE PROGRAM
Sec.
111.101 Definitions.
111.103 Purpose.
111.105 Funding.
111.107 Agency threshold eligibility criteria.
111.109 Program administration.
111.111 Application for participation in the FHAP.
111.113 Additional agency eligibility criteria for the incentive
components.
111.115 Eligible activities under the capacity building and incentive
components.
111.117 Standards for annual program review.
111.119 Uncommitted funds.
111.121 Reporting and recordkeeping requirements.
111.123 Corrective and remedial action.
Authority: Fair Housing Act (42 U.S.C. 3600-20); Sec. 7(d),
Department of Housing and Urban Development Act (42 U.S.C. 3535(d)).
Source: 54 FR 20098, May 9, 1989, unless otherwise noted.
24 CFR 111.101 Definitions.
As used in this part, the following terms have the meaning indicated:
Agency means a State or local fair housing enforcement agency which
is certified (or considered to be certified) as a substantially
equivalent agency under 24 CFR part 115 (including any agency which is a
party to an agreement for interim referrals under 115.11).
Assistant Secretary means the Assistant Secretary for Fair Housing
and Equal Opportunity.
Capacity building agency means an agency that is in its first or
second year of participation in the FHAP.
Capacity building funds are funds that HUD will provide to an agency
during the agency's first two years of participation in the FHAP to
support development or enhancement of the agency's fair housing
enforcement program, including the agency's complaint processing,
training, technical assistance, complaint monitoring and reporting
systems, and educational and outreach activities.
Complaint processing funds means funds provided to an agency to
support the processing of housing discrimination complaints.
Contributions agency means an agency that has previously received
capacity building awards for two years.
Dual-filed complaint means a complaint that has been filed with both
HUD and an agency.
FHAP means the Fair Housing Assistance Program.
HUD means the U.S. Department of Housing and Urban Development.
Incentive funds are funds awarded an agency by HUD based on the
population of the jurisdiction served by the agency.
NOFA means Notice of Funding Availability.
24 CFR 111.103 Purpose.
The purpose of the Fair Housing Assistance Program (FHAP) is to
provide assistance to State and local fair housing enforcement agencies.
This assistance is designed to provide support for complaint
processing, training, technical assistance, data and information
systems, and other fair housing projects. The intent of the program is
to build a coordinated intergovernmental enforcement effort to further
fair housing, and to encourage States and localities to assume a greater
share of the responsibility for administering their fair housing laws.
24 CFR 111.105 Funding.
For purposes of funding under this part, HUD separates all eligible
agencies into two categories -- capacity building agencies and
contributions agencies (see 111.101). Funding levels may be subject to
modification in succeeding fiscal years to reflect variations in annual
appropriations for the FHAP. Funding levels will be announced by NOFAs
published in the Federal Register.
(a) Funding of capacity building agencies. Capacity building
agencies are eligible to receive capacity building funds only. HUD will
give a fixed amount of these funds, during the first two years of an
agency's participation in the FHAP, to all capacity building agencies
that submit an acceptable application. The application must
demonstrate, in HUD's determination, that the agency has (or will
receive) a sufficient volume of complaint activity to justify HUD's
provision of funds for complaint processing activities. The application
must state the objectives and activities to be carried out by the
applicant which must include participation in HUD-sponsored training,
complaint monitoring and reporting systems (CMRS), case processing, and
any other fair housing activities proposed by the applicant. All
activities must address or have ultimate relevance to matters affecting
fair housing which are cognizable under the Fair Housing Act (42 U.S.C.
3600-20). Agencies having current requisite CMRS capability, as set
forth in the request for application, may meet the CMRS requirement by
describing this capability.
(b) Funding of contributions agencies. Contributions agencies are
eligible to receive training funds, complaint processing funds, and
incentive funds.
(1) Training funds. All contributions agencies will receive the same
amount of financial support for HUD-sponsored or HUD-approved fair
housing training, subject to participation by a required number of
persons in such training.
(2) Complaint processing funds. Contributions agencies will receive
support for complaint processing based solely on the number of
dual-filed housing discrimination complaints actually processed by an
agency. The agency's prior year complaint processing performance will
be used in determining the total amount of funding for the agency, in
accordance with specific unit reimbuirsement levels to be determined
administratively by HUD. For purposes of FHAP Fiscal Year 1989 funding,
the level of an agency's complaint processing will be determined by
reference to the number of dual-filed complaints processed by the agency
in the best 12 consecutive months during an 18-month period designated
by HUD. Thereafter, the level of complaints will be determined by the
number of dual-filed complaints processed by the agency during HUD's
previous fiscal year.
(3) Incentive funds. A contributions agency that meets the
additional criteria for incentive funds set forth in 111.113 may apply
annually for incentive funds, describing those projects that would
benefit their jurisdiction. The amount of funds awarded to an agency
will be based on the population of the jurisdiction served by the
agency, and on the projects proposed and the cost of implementing those
projects. (HUD will use the most recent available U.S. census data to
determine a jurisdiction's population.)
(Approved by the Office of Management and Budget under control number
2529-0005)
24 CFR 111.107 Agency threshold eligibility criteria.
To be eligible to participate in the FHAP, an agency first must meet
the following criteria:
(a) The agency must administer a State or local fair housing law
certified under 24 CFR 115.6 (including grandfathered agencies certified
under 24 CFR 115.6(d)) and such certification must continue to be
outstanding; or the agency must be a party to an agreement for interim
referral of complaints to the agency or other use of the services of the
agency, as described under 24 CFR 115.11. Agencies are eligible for
capacity building funding during the first two years of FHAP funding,
and for contributions funding during other years of FHAP funding. FHAP
funding received by a agency under an agreement for the interim referral
of complaints to the agency or other use of the services of the agency
as described under 24 CFR 115.11, and FHAP funding received by a
grandfathered agency prior to its certification for referrals under
115.6(d), will be considered in determining whether the agency qualifies
as a contributions agency.
(b) The agency must have executed a written Memorandum of
Understanding with the Department which, at a minimum, describes the
working relationship to be in force between the agency and the
Department. An agreement in accordance with 24 CFR 115.11 may
constitute such a Memorandum of Understanding.
(c) The agency must demonstrate to HUD procedures acceptable for
cooperating with other FHAP-funded agencies having concurrent
jurisdiction;
(d) The agency must not unilaterally reduce the level of financial
resources currently committed to fair housing complaint processing.
Budget and staff reductions occasioned by legislative action outside the
control of the agency will not, alone, result in a determination of
ineligibility. However, HUD will take such actions into consideration
in assessing the ongoing viability of an agency's fair housing program.
(e) The agency must participate in training sponsored by HUD and
designed in consultation with HUD staff and agency representatives to
provide uniform skills and technical knowledge.
(Approved by the Office of Management and Budget under control number
2529-0005)
(54 FR 20098, May 9, 1989, as amended at 56 FR 22643, May 16, 1991)
24 CFR 111.109 Program administration.
(a) The FHAP will be administered by the Office of the Assistant
Secretary for Fair Housing and Equal Opportunity.
(b) Notices of Funding Availability (NOFAs) under this program will
be published in the Federal Register. Such notices will announce, among
other things, methods to determine the level of funds available for
capacity building, complaint processing, training, and incentive
purposes.
(c) All agencies that receive support under this program must conform
to reporting and record maintenance requirements determined appropriate
by the Assistant Secretary. Procedures for monitoring funding
instruments will be established by the Assistant Secretary. Funding
instruments will include terms under which HUD may recapture funds where
agencies fail to report, to maintain appropriate records, or to abide by
other terms and conditions included in the agreement or contract.
(d) All State and local agencies that receive financial assistance
under the Fair Housing Assistance Program must conduct audits in
accordance with 24 CFR part 44. The financial management systems used
by recipients must provide for audits in accordance with OMB Circular
A-128 -- Audits of State and local governments (Copies of OMB Circular
A-128 are available from EOP, Publications, NEOB, Room 2200, 726 Jackson
Place, NW., Washington, DC 20503.
(e) Agencies receiving support (financial assistance in the form of
grants or cooperative agreements) under this program shall comply with
requirements and standards contained in 24 CFR part 85.
24 CFR 111.111 Application for participation in the FHAP.
(a) General. Complete information on all application requirements
will be included in the NOFAs published in the Federal Register.
Application kits will be available from the designated HUD Office upon
request at the time of publication of the NOFA. Citizens and
organizations wishing to participate in the development of proposals for
incentive funds should contact the substantially equivalent fair housing
enforcement agency in their jurisdiction. The fair housing enforcement
agency must provide, upon request, information regarding its intention
to apply for funds, proposed use of these funds, and any deadline for
submission of comments. Eligible agencies must, upon request by a
responsible party, make available a copy of the submitted funding
application.
(b) Statement of intent to apply for incentive funds. In order that
the Department may be able to determine an appropriate formula for
incentive funds before issuance of a NOFA, HUD may request
administratively that contributions agencies submit, by a date certain,
a statement of intent to apply for incentive funds, along with a copy of
the agency's fair housing budget from the previous fiscal year.
(Agencies that fail to make a timely submission may be denied incentive
funds. A statement of intent will not be required from agencies that are
not eligible for, or that elect not to receive, incentive funds.)
(c) Contents of application. Each agency must submit an application
in narrative form signed by the head of its fair housing agency (or his
or her designee). The application must include --
(1) A description of the applicant agency's proposed activities and
objectives;
(2) A schedule for completion and estimated cost of each proposed
activity;
(3) Any additional information that may be requested in the NOFA for
the FHAP published in the Federal Register.
(4) For all capacity building applicants, information to justify the
amount of funds requested, including the need for activities proposed
and the number of fair housing complaints processed during the previous
fiscal year; and
(5) for all applicants for incentive funds, data from the most
recently concluded fiscal year showing the amount of funds spent on the
applicant's fair housing program and the amount spent from non-Federal
sources.
(d) Deadline for submission of applications. After receipt of the
Department's appropriation for the FHAP, HUD will publish a NOFA in the
Federal Register, establishing a deadline for submission of
applications. This deadline ordinarily will be 45 days after
publication of the NOFA.
(e) Certifications. The applicant must certify that:
(1) The submission of the application is authorized under State or
local law (as applicable), and the applicant possesses the legal
authority to carry out the activities proposed in the application.
(2) The agency will adhere to a written agreement (Memorandum of
Understanding or Interim Agreement) governing all fair housing referral
activity and complaint processing between the agency and the appropriate
HUD Regional Office.
(3) An applicant for incentive funds also must certify, on the basis
of the supporting documentation submitted, that the agency qualifies for
incentive funds because a minimum percentage of funds spent by the
agency for fair housing activities in the agency's most recently
concluded fiscal year was from non-Federal sources. (Agencies that
spend less than this minimum percentage of non-Federal money for fair
housing activities will not qualify for incentive funds. The minimum
percentage of expenditures that must be from non-Federal sources will be
set forth in the NOFA.)
(f) Review of application. (1) An application for funding will be
considered approved as of the date of HUD's written offer to the
applicant to enter into a Cooperative Agreement. HUD and the State or
local government agency will execute a Cooperative Agreement with
respect to the funding. The award will be obligated when the
Cooperative Agreement Officer in HUD has signed the Cooperative
Agreement.
(2) With respect to applications for funding that the responsible HUD
Regional Office has found to contain deficiencies, the Regional Office
will notify the applicant in writing of the deficiencies found. The
applicant must, within 20 days from receipt of notification from the
Regional Office, correct the deficiency or supply the additional
information that the Regional Office requests. HUD may consider an
applicant's failure to respond appropriately within the 20-day period as
an abandonment of the application.
(3) If the applicant is notified by the Regional Office that,
notwithstanding its attempt to correct the deficiency or supply the
requested information, the applicant has failed to do so in the
determination of the Regional Office, the applicant may appeal this
determination to the Assistant Secretary for Fair Housing and Equal
Opportunity.
(4) The Assistant Secretary may reverse the determination of the
Regional Office and approve the application unless the Assistant
Secretary makes one or more of the following determinations:
(i) The application proposes ineligible activities, or is otherwise
deficient (see 111.115);
(ii) The application was not received within the time period
established by the NOFA;
(iii) The application does not include all the information required
by the NOFA or application kit; or
(iv) The application does not contain evidence or information
sufficient to support the proposed activities.
(Approved by the Office of Management and Budget under control number
2529-0005)
24 CFR 111.113 Additional agency eligibility criteria for the incentive
component.
(a) In addition to the criteria set forth in 111.107, an applicant
for incentive funds must have, during a 12-consecutive-month period
designated by HUD in the NOFA --
(1) Processed a stated minimum number of dual-filed complaints. The
number of complaints (which will be based on separate minimums for
States and for localities) will be set forth in the NOFA. To be
considered a processed complaint, a complaint must be cognizable under
the Fair Housing Act (42 U.S.C. 3600-20) and accepted by the Regional
Office as meeting the processing requirements under the Cooperative
Agreement.
(2) Performed satisfactorily in the timely submission of vouchers
(except that this provision will not be implemented in FY 1989);
(3) Completed administrative processing of complaints in a timely
manner (except that this provision will not be implemented in FY 1989);
(4) engaged in comprehensive and thorough investigative activities
relative to complaints dual-filed with HUD; and
(5) Spent (as certified by the head of the agency) during the
agency's most recently concluded fiscal year a certain percentage of
funds other than Federal funds in support of fair housing activities.
This percentage must be no less than the minimum percentage, as
determined by HUD and set forth in the NOFA, of all funds expended by
the applicant for fair housing activities.
For purposes of paragraph (a)(2), a voucher is not submitted timely
if it is received in the Regional Office, as evidenced by the date
stamped thereon, after close of business of the fifteenth day after the
date stipulated in the funding instrument for a recipient's submission
of the voucher.
(b) Satisfaction of the criteria specified in paragraph (a) of this
section will be determined by HUD based on its annual evaluation under
part 115 of this title and through monitoring under FHAP cooperative
agreements in effect during the 12-month period designated by HUD.
24 CFR 111.115 Eligible activities under the capacity building and
incentive components.
(a) The primary purpose of capacity building and incentive funds is
to support activities that produce increased awareness of fair housing
rights and remedies. All activities proposed for funding must address,
or have ultimate relevance to, matters affecting fair housing which are
cognizable under the Fair Housing Act (title VIII of the Civil Rights
Act of 1968, as amended by the Fair Housing Amendments Act of 1988, 42
U.S.C. 3600-20). These activities include, but are not limited to, the
following:
(1) Activities designed to develop and implement outreach efforts to
heighten public awareness of all forms of housing discrimination
prohibited under the Fair Housing Act and of fair housing rights and
responsibilities.
(2) Activities designed to create, modify, or improve local,
regional, or national information systems concerned with fair housing
matters.
(3) Activities designed to improve an agency's capability to ensure
fair housing through new or redirected approaches to the agency's
internal structure or compliance techniques.
(4) Activities to develop and conduct a testing and auditing program
for specific protected classes or special market areas for fair housing
enforcement or litigation.
(5) Activities designed to identify new or subtle practices of
housing discrimination and to implement programs to eliminate such
practices.
(6) Activities designed to address violence and intimidation related
to equal housing opportunity. These activities may include education,
technical assistance, or the development of programs for prevention and
response.
(7) Activities designed to coordinate fair housing enforcement
efforts of government enforcement agencies with various community
resources which have an impact on the prevention or elimination of
discriminatory housing practices.
(8) Technical assistance activities to enable agencies to work with
private fair housing groups, educational institutions, the real estate
industry, and other private and governmental entities to eliminate or
prevent housing discrimination.
(9) Activities to provide services to aggrieved individuals,
consistent with rights and remedies under applicable Federal, State, and
local laws and ordinances prohibiting discrimination in housing.
(10) Affirmative marketing activities to inform persons of housing
opportunities with respect to government-assisted housing and the
private housing market.
(11) Activities designed to improve investigations of systemic
discrimination for further processing by State and local agencies, HUD,
or the Department of Justice.
(12) Fair housing training for enforcement agency staff.
(13) Activities designed to create, modify, or improve an agency's
complaint information and monitoring capacity, to make its system
compatible with HUD's for internal monitoring of fair housing complaint
activity.
24 CFR 111.117 Standards for annual program review.
(a) HUD will conduct an annual review of a recipient's performance in
carrying out the funded activities proposed in its incentive or capacity
building application. HUD will rely primarily on information obtained
from the recipient's records and reports, findings from on-site
monitoring, audit reports, and information generated from the
requirements for the disbursement of funds for the FHAP. HUD also may
consider relevant information pertaining to a recipient's performance
gained from other sources, including final court decisions, interested
organizations' and citizens' comments, and evaluation or research
studies. (HUD will give a recipient the opportunity to respond before
considering negative comments from citizens and organizations.)
(b) The annual review will examine whether the recipient --
(1) Has carried out its activities in a timely manner, including the
expenditure of funds allocated for activities, as proposed in the
application;
(2) Has a continuing capacity to carry out its activities in a timely
manner;
(3) Has met the objectives that the proposed activities were designed
to address, as set forth in the application; and
(4) Has complied with all certifications and assurances required by
HUD.
(c) A program performance review is required in addition to the
assessment provided for under part 115 of this title for continued
substantial equivalency.
(Approved by the Office of Management and Budget under control number
2529-0005)
24 CFR 111.119 Uncommitted funds.
FHAP funds may become available following the initial round of
funding after publication of a NOFA, as a result of agency failures to
submit timely applications. HUD may award these funds to an agency
which received certification after a HUD-prescribed deadline, or to an
agency that was determined to be ineligible for incentive funds at the
time of application but that subsequently demonstrated its eligibility.
24 CFR 111.121 Reporting and recordkeeping requirements.
(a) Reports to HUD. Recipients shall report on their activities and
expenditures in such format and at such times as the Assistant Secretary
may prescribe. In addition to periodic reports regarding complaint
processing and training activities, agencies receiving capacity building
funds or incentive funds must report on the progress and results of
activities funded in whole or in part under these FHAP components. Such
reporting requirements will be incorporated in each Cooperative
Agreement or contract.
(b) Records to be maintained. Each recipient shall maintain records
specified by the Assistant Secretary that clearly document its
performance under the award. The Assistant Secretary will issue
administrative instructions prescribing the form of these records and
the specific elements necessary to document performance.
(c) Public disclosure of records and documents. Recipients must
provide for full and timely disclosure of records and documents re, the
Inspector General of HUD, and the Comptroller General of the United
States, or any of their duly authorized representatives, shall have
access to all books, accounts, reports, files, and other papers of
recipients with respect to FHAP payments for surveys, audits,
examinations, excerpts, and transcripts.
24 CFR 111.123 Corrective and remedial action.
(a) If HUD makes a preliminary determination that a recipient has not
met the program review standards set forth in 111.117, the recipient
will be given notice of this determination and an opportunity to show
that it has done so, within the time prescribed by HUD and on the basis
of demonstrable facts and data.
(b) If a recipient fails to demonstrate to HUD's satisfaction that it
has met program review standards, HUD will request the recipient to
submit and comply with proposals for action to correct, mitigate, or
prevent performance deficiencies, including:
(1) Preparing and following a schedule of actions for carrying out
the affected fair housing activities;
(2) Establishing and following a management plan that assigns
responsibilities for carrying out the remedial actions;
(3) Canceling or revising activities likely to be affected by a
performance deficiency before expending amounts for the activities;
(4) Redistributing FHAP awards that have not yet been expended to
other eligible activities; and
(5) Suspending disbursement of program amounts for affected
activities for a period of not more than 60 days.
(c) HUD may condition the use of FHAP award amounts with respect to
an agency's succeeding fiscal year's allocation on the satisfactory
completion by a recipient of appropriate corrective action. When the
use of funds is so conditioned, HUD will specify the deficiency, the
required corrective actions, and the time allowed for taking these
actions. Failure of a recipient to complete the actions as specified
will result in a reduction or withdrawal of the recipient's allocation
in an amount not to exceed the amount conditionally granted.
(Approved by the Office of Management and Budget under control number
2529-0005)
24 CFR 111.123 PART 115 -- CERTIFICATION OF SUBSTANTIALLY EQUIVALENT
AGENCIES
Sec.
115.1 Purpose.
115.2 Basis of determination.
115.3 Criteria for adequacy of law.
115.3a Criteria for adequacy of law -- discrimination because of
handicap.
115.4 Performance standards.
115.5 Request for certification.
115.6 Procedure for certification.
115.7 Denial of certification.
115.8 Withdrawal of certification.
115.9 Conferences.
115.10 Consequences of certification.
115.11 Interim referrals.
Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C.
3600-3620); sec. 7(d), Department of Housing and Urban Development Act,
42 U.S.C. 3535(d)).
Source: 54 FR 3311, Jan. 23, 1989, unless otherwise noted.
24 CFR 115.1 Purpose.
(a) Section 810(f) of the Fair Housing Act, (The Civil Rights Act of
1968, as amended by the Fair Housing Amendments Act of 1988 (the Act))
provides that: whenever a complaint alleges a discriminatory housing
practice within the jurisdiction of a State or local public agency that
has been certified by the Secretary as substantially equivalent, the
Secretary shall refer the complaint to that certified agency before
taking any action with respect to the complaint. Except with the
consent of the certified agency, the Secretary, after referral is made,
shall take no further action with respect to the complaint unless:
(1) The certified agency has failed to commence proceedings with
respect to the complaint before the end of the 30th day after the date
of referral;
(2) The certified agency, having commenced proceedings, fails to
carry forward proceedings with reasonable promptness; or
(3) The Secretary determines that the certified agency no longer
qualifies for certification.
The Secretary has delegated the exercise of functions and duties
under section 810(f) of the Act to the Assistant Secretary for Fair
Housing and Equal Opportunity (the Assistant Secretary).
(b) The purpose of this part is to set forth:
(1) The basis for agency certification.
(2) The procedure by which a determination to certify is made by the
Assistant Secretary.
(3) The basis and procedure for withdrawal of certification.
(4) The consequences of certification.
24 CFR 115.2 Basis of determination.
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,
provides that:
(1) The substantive rights protected by the agency in the
jurisdiction with respect to which certification is to be made;
(2) The procedures followed by the agency;
(3) The remedies available to the agency; and
(4) The availability of judicial review of the agency's actions;
Are Substantially substantively equivalent to those created by and
under 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.
24 CFR 115.3 Criteria for adequacy of law.
(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 complaint matters, 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 in no more than 100 days after receipt of the
complaint, unless it is impracticable.
(iii) If the agency is unable to complete the investigation within
100 days it shall notify the complainant and respondent in writing of
the reasons for not doing so;
(iv) 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 complaintant and respondent, in writing, of the reasons for
not doing so;
(v) Any conciliation agreement arising out of conciliation efforts by
the agency shall be an agreement between the respondent and the
complainant and shall be subject to the approval of the agency;
(vi) 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 (which
provides coverage with respect to all dwellings except, under certain
circumstances, single family homes sold or rented by the owner and units
in owner-occupied dwellings containing living quarters for no more than
four families).
(5) Be sufficiently comprehensive in its prohibitions to be an
effective instrument in carrying out and achieving the intent and
purposes of the Act, i.e., prohibit the following acts:
(i) Refusal to sell or rent based on discrimination because of race,
color, religion, sex, familial status, or national origin;
(ii) Refusal to negotiate for a sale or rental based on
discrimination because of race, color, religion, sex, familial status,
or national origin;
(iii) Otherwise making unavailable or denying a dwelling based on
discrimination because of race, color, religion, sex, familial status,
or national origin;
(iv) Discriminating in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provision of services or facilities
in connection therewith, based on discrimination because of race, color,
religion, sex, familial status, or national origin;
(v) Advertising in a manner that indicates any preference,
limitation, or discrimination because of race, color, religion, sex,
familial status, or national origin;
(vi) Falsely representing that a dwelling is not available for
inspection, sale, or rental because of discrimination because of race,
color, religion, sex, familial status, or national origin;
(vii) Coercion, intimidation, threats, or interference with any
person in the exercise or enjoyment of, or on account of his or her
having exercised or enjoyed, or on account of his or her having aided or
encouraged any other person in the exercise of enjoyment of any right
granted or protected by section 803, 804, 805, or 806 of the Act;
(viii) Blockbusting based on representations regarding the entry or
prospective entry into the neighborhood of a person or persons of a
particular race, color, religion, sex, familial status, or national
origin;
(ix) Discrimination in residential real estate-related transactions
by providing that: It shall be unlawful for any person or other entity
whose business includes engaging in residential real estate-related
transactions to discriminate against any person in making available such
a transaction, or in the terms or conditions of such a transaction,
because of race, color, religion, sex, familial status, or national
origin. Such transactions include:
(A) The making or purchasing of loans or the provision of other
financial assistance for purchasing, constructing, improving, repairing,
or maintaining a dwelling; or the making or purchasing of loans or the
provision of other financial assistance secured by residential real
estate; or
(B) The selling, brokering, or appraising of residential real
property;
(x) Denying a person access to, or membership or participation in, a
multiple listing service, real estate brokers' organization, or other
service because of race, color, religion, sex, familial status or
national origin.
(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) Seek prompt judicial action for appropriate temporary or
preliminary relief pending final disposition of a complaint if the
agency concludes that such action is necessary to carry out the purposes
of the law or ordinance;
(ii) Issue subpoenas;
(iii) Grant actual damages or arrange to have adjudicated in court at
agency expense 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) Assess a civil penalty against the respondent, or arrange to have
adjudicated in court at agency expense the award 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 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; affirm, modify, or set aside, in whole
or in part, the order, or remand the order for further proceedings; and
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 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 maters of State or local law, e.g., regulations, directives and
rules of procedure, or interpretations of the fair housing law by
competent authorities, as may be necessary.
(f) A law will be held to be not adequate 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 concilitation agreement;
(3) Dismissal of a complaint;
(4) Any action specified in 115.3(a)(2)(iv) or 115.3(b)(1).
(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 not less than 1 year after the occurrence or
termination of an alleged discriminatory housing practice. The court
should 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;
(3) Allow reasonable attorney's fees and costs.
24 CFR 115.3a Criteria for adequacy of law -- discrimination because of
handicap.
(a) In addition to the provisions of 115.3, 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, based on handicap, that are
substantially equivalent to those provided in the Act, the law or
ordinance must be sufficiently comprehensive in its prohibitions to be
an effective instrument in carrying out and achieving the intent and
purposes of the Act, i.e., it must prohibit the following acts:
(1) Advertising in a manner that indicates any preference,
limitation, or discrimination because of handicap;
(2) Falsely representing that a dwelling is not available for
inspection, sale, or rental based on discrimination because of handicap;
(3) Blockbusting, based on representations regarding the entry or
prospective entry into the neighborhood of a person or persons with a
particular handicap;
(4) Discrimination in residential real estate-related transactions by
providing that: It shall be unlawful for any person or other entity
whose business includes engaging in residential real estate-related
transactions to discriminate against any person in making available such
a transaction, or in the terms and conditions of such a transaction,
because of handicap. Residential and real estate-related transactions
include:
(i) The making or purchasing of loans or the provision of other
financial assistance for purchasing, constructing, improving, repairing,
or maintaining a dwelling; or the making or purchasing of loans or the
provision of other financial assistance secured by residential real
estate; or
(ii) The selling, brokering, or appraising of residential real
property;
(5) Denying a person access to, or membership or participation in,
multiple listing services, real estate brokers' organizations, or other
services because of handicap;
(6) Discrimination in the sale or rental, or otherwise making
unavailable or denying, a dwelling to any buyer or renter because of a
handicap of that buyer or renter, or of a person residing in or
intending to reside in that dwelling after it is sold, rented, or made
available, or of any person associated with the buyer or renter;
(7) Discrimination against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with the dwelling, because of a
handicap of that person, of a person residing in or intending to reside
in the dwelling after it is sold, rented, or made available, or of any
person associated with that person.
(b) For purposes of this section, discrimination includes --
(1) A refusal to permit, at the expense of the handicapped person,
reasonable modifications of existing premises occupied or to be occupied
by the handicapped person, if the modifications may be necessary to
afford the handicapped person full enjoyment of the premises, except
that, in the case of a rental, the landlord may, where it is reasonable
to do so, condition permission for a modification on the renter's
agreeing to restore the interior of the premises to the condition that
existed before the modification, reasonable wear and tear excepted;
(2) A refusal to make reasonable accommodations in rules, policies,
practices, or services, when such accommodations may be necessary to
afford a handicapped person equal opportunity to use and enjoy a
dwelling; or
(3) In connection with the design and construction of covered
multifamily dwellings for first occupancy after March 13, 1991, a
failure to design and construct dwellings in such a manner that --
(i) The dwellings have at least one building entrance on an
accessible route, unless it is impractical to do so because of the
terrain or unusual characteristics of the site;
(ii) With respect to dwellings with a building entrance on an
accessible route --
(A) The public use and common use portions of the dwellings are
readily accessible to and usable by handicapped persons;
(B) All the doors designed to allow passage into and within all
premises are sufficiently wide to allow passage by handicapped persons
in wheelchairs; and
(C) All premises within covered multifamily dwelling units contain an
accessible route into and through the dwelling; light switches,
electrical outlets, thermostats, and other environmental controls are in
accessible locations; there are reinforcements in the bathroom walls to
allow later installation of grab bars; and there are usable kitchens
and bathrooms such that an individual in a wheelchair can maneuver about
the space.
(c) The law or ordinance administered by the State or local fair
housing agency may provide that compliance with the appropriate
requirements of the American National Standard for buildings and
facilities providing accessibility and usability for physically
handicapped people (commonly cited as ANSI A117.1-1986) suffices to
satisfy the requirements of paragraph (b)(3)(ii)(C) of this section.
(d) As used in this section, the term covered multifamily dwellings
means buildings consisting of four or more units if such buildings have
one or more elevators and ground floor units in other buildings
consisting of four or more units.
24 CFR 115.4 Performance standards.
(a) The initial and continued certification that a State or local
fair housing law provides rights and remedies substantially equivalent
to those provided in the Act will be dependent upon an assessment of the
current practices and past performance of the appropriate State or local
agency charged with administration and enforcement of the law to
determine that, in operation, the law is in fact providing substantially
equivalent rights and remedies. The performance standards set forth in
paragraph (b) of this section will be used in making this assessment.
(b) A State or local agency must:
(1) Engage in comprehensive and thorough investigative activities;
and
(2) Commence proceedings with respect to a complaint before the end
of the 30th day after the receipt of the complaint, carry forward
proceedings with reasonable promptness, and in accordance with the
memorandum of understanding described in section 115.6 of this part,
make final administrative disposition of a complaint within one year of
the date of receipt of the complaint and, within 100 days of receipt of
the complaint, complete the following proceedings:
(i) Investigation, including the preparation of a final investigative
report containing --
(A) The names and dates of contacts with witnesses;
(B) A summary and dates of correspondence and other contacts with the
aggrieved person and the respondent;
(C) A summary description of other pertinent records;
(D) A summary of witness statements; and
(E) Answers to interrogatories.
(ii) Conciliation activity.
(3) Conduct compliance reviews of all settlements, conciliation
agreements and orders issued by or entered into to resolve
discriminatory housing practices.
(4) Consistently and affirmatively seek and obtain the type of relief
designed to prevent recurrences of such practices;
(5) Consistently and affirmatively seek the elimination of all
prohibited practices under its fair housing law;
(c) Where the State or local agency has duties and responsibilities
in addition to administration of the fair housing law, the Assistant
Secretary may consider such matters as the relative priority given to
fair housing administration, as compared to such other duties and
responsibilities, and the compatibility or potential conflict of fair
housing objectives with the agency's other duties and responsibilities.
24 CFR 115.5 Request for certification.
(a) A request for certification under this part may 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) Organization 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) Data demonstrating that the agency's current practices and past
performance comply with the performance standards described in 115.4.
(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 Seventh 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, and
(2) the HUD Regional 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.
24 CFR 115.6 Procedure for certification.
(a) Upon receipt of a request for certification filed under 115.5,
the Assistant Secretary may request further information that he or she
considers relevant to the determinations required to be made under this
part.
(b) If the Assistant Secretary determines, after application of the
criteria set forth in 115.3 and 115.3a, that the State or local fair
housing law, on its face, provides rights and remedies for alleged
discriminatory housing practices which are substantially equivalent to
the rights and remedies provided in the Act, the Assistant Secretary
shall inform the submitting State or local official in writing of that
determination. Except under circumstances where the Assistant Secretary
determines that interim referrals or other utilization of services under
115.11 is appropriate, the Assistant Secretary shall publish a notice
in the Federal Register which advises the public of the determination
that the law, on its face, is substantially equivalent, and shall invite
interested persons and organizations, during a period of not less than
30 days following publication of the notice, to file written comments
relevant to the determination whether the current practices and past
performance of the State or local agency charged with administration and
enforcement of such law demonstrates that, in operation, the State or
local law in fact provides rights and remedies which are substantially
equivalent to those provided in the Act. The Federal Register notice
shall also invite comments on the Department's determination as to the
adequacy of the law on its face.
(c) If the Assistant Secretary determines, on the basis of the
standards specified in 115.4 and after considering the materials and
information submitted pursuant to 115.5, additional material obtained
under paragraph (a) of this section, and any written comments filed
under paragraph (b) of this section, that, in operation, a State or
local fair housing law in fact provides rights and remedies which are
substantially equivalent to those provided in the Act, the Assistant
Secretary shall offer to enter into a written agreement with the
appropriate State or local agency providing for referral of complaints
to the agency and for procedures for communication between the agency
and HUD that are adequate to permit the Assistant Secretary to monitor
the continuing substantial equivalency of the State or local law. The
written agreement may, but need not, be incorporated in a Memorandum of
Understanding as described in 24 CFR 111.104(a)(2). Upon execution of a
satisfactory agreement, the Assistant Secretary shall publish notice of
certification under this part in the Federal Register.
(d) During the period which begins on September 13, 1988 and ends
January 13, 1992, each State or locality recognized as substantially
equivalent under 24 CFR part 115 (including any State or locality which
had entered into an agreement for interim referrals under 115.11,
unless the State or locality is subsequently denied recognition under 24
CFR 115.7) for the purposes of the Fair Housing Act before September 13,
1988 shall, for the purposes of this paragraph, be considered certified
under this part with respect to those matters for which the agency was
previously recognized. If the Secretary determines in an individual
case that a State or locality has not been able to meet the
certification requirements within this 40-month period because of
exceptional circumstances (such as the infrequency of legislative
sessions in that jurisdiction), the Secretary may extend the period of
temporary certification to no later than September 13, 1992.
(1) No State, locality or agency thereof shall be considered
certified under this paragraph for the purpose of processing complaints
alleging --
(i) Discrimination based on familial status;
(ii) Discrimination based on handicap; or
(iii) Coercion, intimidation or threats as described in
115.3(a)(5)(vii).
(2) Certification under this paragraph is not a determination that
the administrative or judicial remedies provided by the State or
locality is substantially equivalent to those provided by the Act.
(e) Certification of a State or local fair housing agency under this
part shall remain in effect until withdrawn under 115.8.
(f) Not less frequently than annually, the Assistant Secretary will
cause to be published in the Federal Register a notice which sets forth:
(1) An updated, consolidated list of all certified agencies;
(2) A list of all agencies whose certification under this part has
been withdrawn since publication of the previous notice;
(3) A list of agencies with respect to which notice of denial of
certification has been published under 115.7(c) since issuance of the
previous notice;
(4) A list of agencies with respect to which a notice for comment has
been published under paragraph (b) of this section whose request for
certification remains pending;
(5) A list of agencies for which notice of proposed withdrawal of
certification has been published under 115.8(c) whose proposed
withdrawal remains pending; and
(6) A list of agencies with which an agreement for interim referrals
or other utilization of services has been entered under 115.11 and
remains in effect.
24 CFR 115.7 Denial of certification.
(a) If the Assistant Secretary determines, after application of the
criteria set forth in 115.3 and 115.3a, that a State or local fair
housing law, on its face, fails to provide rights and remedies for
alleged discriminatory housing practices which are substantially
equivalent to the rights and remedies provided in the Act, the Assistant
Secretary shall inform the submitting State or local official in writing
of the reasons for that determination. The Assistant Secretary's advice
may include specification of the manner in which the State or local law
could be amended in order to provide substantially equivalent rights and
remedies. The Assistant Secretary shall extend to the State or local
official an opportunity to submit data, views, and arguments in
opposition to the Assistant Secretary's determination and to request an
opportunity for a conference in accordance with 115.9. If no submission
or request is made, no further action shall be required to be taken by
the Assistant Secretary. If the State or local official submits
materials but does not request a conference, the Assistant Secretary
shall evaluate any arguments in opposition or other materials received
from the State or local agency. If, after that evaluation, the
Assistant Secretary is still of the opinion that the law, on its face,
fails to provide rights and remedies for alleged discriminatory housing
practices that are substantially equivalent to the rights and remedies
provided in the Act, the Assistant Secretary shall inform the submitting
State or local official in writing that certification is denied.
(b) If the Assistant Secretary determines, after considering the
materials and information submitted under 115.5, any additional
information obtained under 115.6(a), an assessment of the current
practices and past peformance of the agency in meeting the standards of
115.4(b), and any written comments received under 115.6(b), that it has
not been demonstrated that, in operation, a State or local fair housing
agency in fact provides rights and remedies for alleged discriminatory
housing practices which are substantially equivalent to those provided
in the Act, the Assistant Secretary shall communicate this determination
in writing to the State or local agency and shall allow the agency not
less than 15 days to submit data, views, and arguments in opposition and
to request an opportunity for a conference in accordance with 115.9. If
a request for a conference is not received within the time provided, the
Assistant Secretary shall evaluate any arguments in opposition or other
materials received from the State or local agency and, if after that
evaluation the Assistant Secretary is still of the opinion that
certification should be denied, the Assistant Secretary shall inform the
submitting State or local official in writing that certification is
denied.
(c) Where comment on a request for certification was invited in
accordance with 115.6(b), notice of denial of certification under this
section shall be published in the Federal Register.
24 CFR 115.8 Withdrawal of certification.
(a) Not less frequently than every 5 years, the Assistant Secretary
shall determine whether each agency certified under this part continues
to qualify for certification. The Assistant Secretary shall take
appropriate action with respect to any agency not so qualifying.
(b) The Assistant Secretary shall periodically review the
administration of fair housing laws recognized under this part. If the
Assistant Secretary finds, as a result of a periodic review, upon the
petition of an interested person or organization, or otherwise, that
taken as a whole, the agency's administration of its fair housing law or
the law, on its face, no longer meets the requirements of this part, the
Assistant Secretary shall propose to withdraw the certification
previously granted.
(c) The Assistant Secretary shall propose withdrawal of certification
unless review establishes that the current fair housing law administered
by the certified agency meets the criteria of 115.3 and that current
practices and past performance of the agency meet the standards of
115.4.
(d) Before the Assistant Secretary publishes notice of a proposed
withdrawal of certification, the Assistant Secretary shall inform the
State or local agency in writing of his or her intention to withdraw
certification. The communication shall state the reasons for the
proposed withdrawal and provide the agency not less than 15 days to
submit data, views, and arguments in opposition and to request an
opportunity for a conference in accordance with 115.9.
(e) Notice of a proposed withdrawal shall be published in the Federal
Register. The notice shall allow the State or local agency and other
interested persons and organizations not less than 30 days in which to
file written comments on the proposal.
(f) If a request for a conference in accordance with 115.9 is not
received within the time provided, the Assistant Secretary shall
evaluate any arguments in opposition or other materials received from
the State or local agency and other interested persons or organizations,
and if after that evaluation the Assistant Secretary is still of the
opinion that certification should be withdrawn, the Assistant Secretary
shall withdraw certification and shall publish notice of the withdrawal
in the Federal Register.
24 CFR 115.9 Conferences.
(a) Whenever an opportunity for a conference is timely requested by a
State or local agency in accordance with 115.7 or 115.8, the Assistant
Secretary shall issue an order designating an officer who shall preside
at the conference. The order shall indicate the issues to be resolved
and any initial procedural instructions that might be appropriate for a
particular conference. It shall fix the date, time and place of the
conference. The date shall not be less than 20 days after the date of
the order. The date and place shall be subject to change for good
cause.
(b) A copy of the order shall be served on the State or local agency
and:
(1) In the case of a denial of certification, on any person or
organization that files a written comment in accordance with 115.6(b);
or
(2) In the case of a withdrawal of certification, on any person or
organization that files a petition in accordance with 115.8(a) or
written comment in accordance with 115.8(c). The agency and all such
persons and organizations shall be considered to be participants in the
conference. After service of the order designating the conference
officer, and until the officer submits a recommended determination, all
communications relating to the subject matter of the conference shall be
addressed to that officer.
(c) The conference officer shall have full authority to regulate the
course and conduct of the conference. A transcript shall be made of the
proceedings at the conference. The transcript and all comments and
petitions relating to the proceedings shall be made available for
inspection by interested persons.
(d) The conference officer shall prepare proposed findings and a
recommended determination, a copy of which shall be served on each
participant. Within 20 days after service, any participant may file
written exceptions. After the expiration of the period for filing
exceptions, the conference officer shall certify the entire record,
including the proposed findings and recommended determination, and any
exceptions to the findings and recommendations, to the Assistant
Secretary, who shall review the record and issue a final determination
within 30 days. Where applicable, this determination shall be published
in the Federal Register.
24 CFR 115.10 Consequences of certification.
(a) Where all alleged violations of the Act contained in a complaint
received by the Assistant Secretary appear to constitute violations of a
State or local fair housing law administered by an agency that has been
certified as substantially equivalent, the complaint shall be referred
promptly to the appropriate State or local 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, and by
103.100 through 103.115 or 105.20 through 105.22 of this chapter.
(b) Notwithstanding paragraph (a) of this section, no complaint based
in whole or in part on allegations of discrimination on the basis of
familial status or handicap shall be referred to any State, locality or
agency thereof whose certification was granted in accordance with
115.6(d) or section 810(f)(4) of the Act, without regard to whether the
fair housing law administered by such certified agency appears to
prohibit discrimination based on familial status or handicap.
(c) Notwithstanding paragraph (a) of this section, whenever the
Secretary has reason to believe that a complaint shows a basis may exist
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 Secretary shall transmit the information
upon which that belief is based to the Attorney General, or to
appropriate governmental licensing or supervisory authorities.
24 CFR 115.11 Interim referrals.
If the Assistant Secretary determines after application of the
criteria set forth in 115.3, that a State or local fair housing law on
its face provides rights and remedies for alleged discriminatory housing
practices which are substantially equivalent to those provided in the
Act, but that the law has not been in effect, or the appropriate State
or local agency in operation, for a sufficient time to permit a
demonstration of compliance with the performance standards described in
115.4, the Assistant Secretary may enter into a written agreement with
the State or local agency providing for referral of complaints to the
agency on such terms and conditions as the Assistant Secretary shall
prescribe, or providing for other utilization of the services of the
State or local agency and its employees upon agreed terms, and providing
further for procedures for communications between the agency and HUD
that are adequate to permit the Assistant Secretary to monitor the
agency's administration and enforcement of its law and to assist the
Assistant Secretary in making the determination required in 115.2(b).
The agreement may provide for reactivation of referred complaints by the
Assistant Secretary without regard to the limitations described in
115.10. If such an agreement for interim referrals or other utilization
of services is entered, the Assistant Secretary may defer final
determination under 115.6 or 115.7 for a reasonable period determined
by the Assistant Secretary to be necessary in order to permit a fair
assessment of the agency's performance. In no event shall this period
extend more than two years beyond the date of entry into the agreement
for interim referrals or other utilization of services. This two-year
limitation does not apply to agencies certified in accordance with
115.6(d). However, an agreement under this section shall not be extended
beyond the date of certification under 115.6 or denial of recognition
under 115.7. Notice of entry into an agreement under this section
shall be published in the Federal Register.
24 CFR 115.11 PART 120 -- COMMUNITY HOUSING RESOURCE BOARD PROGRAM
Sec.
120.5 Purpose.
120.10 Voluntary Affirmative Marketing Agreements (VAMA).
120.15 Program administration.
120.20 Eligible applicants.
120.25 Eligible projects.
120.30 Applications.
120.35 Selection criteria.
Authority: Title VIII, Civil Rights Act of 1968, as amended, (42
U.S.C. 3601).
Source: 47 FR 12928, Mar. 25, 1982 (interim), and 47 FR 20298, May
12, 1982 (final), unless otherwise noted.
24 CFR 120.5 Purpose.
The purpose of the Community Housing Resource Board Program is to
provide funding to Community Housing Resource Boards (Resource Boards)
that have the responsibility of providing program implementation
assistance to housing industry groups that have signed Voluntary
Affirmative Marketing Agreements (VAMA) with HUD. The intent of the
program is to fulfill HUD's contractual agreement to provide technical
assistance to local real estate boards in achieving VAMA goals by
supporting projects that improve Resource Board performance and increase
their ability to effectively plan, finance, and carry out activities to
assist signatory real estate boards in fully implementing the provisions
of the VAMA.
24 CFR 120.10 Voluntary Affirmative Marketing Agreements (VAMA).
VAMAs are contracts between the Department of Housing and Urban
Development and national organizations involved in the sale or rental of
dwellings to implement the Congressional directive set forth in sections
808 and 809 of title VIII of the Civil Rights Act of 1968, as amended.
VAMAs require the coordinated effort of HUD and industry groups to
implement, through local voluntary action, the Congressional policy of
fair housing by providing information and establishing policies to
enable all buyers, regardless of race, color, religion, sex or national
origin, to make free choice of housing location. The application of
these voluntary marketing provisions in no way affects affirmative
marketing requirements otherwise applicable in HUD programs.
24 CFR 120.15 Program administration.
(a) The Community Housing Resource Board Program is administered by
the Office of the Assistant Secretary for Fair Housing and Equal
Opportunity, through the Office of Voluntary Compliance.
(b) Assistance under this program will be announced through a
''Notice of Funds Availability'' published in the Federal Register.
(c) Funding in the Community Housing Resource Board Program for
approved projects shall be available for one year after award.
(d) Resource Boards receiving support under this program must conform
to reporting and record maintenance requirements determined appropriate
by the administering office and, as a condition to participation, must
stipulate that HUD can recapture funds if the Resource Board is not
conforming to requirements contained in the funding instrument.
24 CFR 120.20 Eligible applicants.
To be eligible, applicants must meet the following criteria:
(a) The applicant must be a Resource Board consisting of HUD
appointed representatives from community organizations or agencies
formed to fulfill HUD's obligation to provide technical assistance to
local real estate boards in the implementation and monitoring of
purposes under the VAMA.
(b) The Resource Board must have been in existence at least six
months prior to the issuance of the Notice of Funds Availability for the
Community Housing Resource Board Program.
24 CFR 120.25 Eligible projects.
(a) HUD will fund only projects that are demonstrated to be
components of viable strategies to support the goals of the VAMA. In
most cases, funding will be limited to a one-time proposal for a
one-year effort, following which Resource Boards will be encouraged to
seek funds from other sources for continuing projects. In order to be
eligible such projects must be directed at one or more of the following
areas:
(1) Making information public regarding the goals of fair housing and
the VAMA;
(2) Assessing community fair housing needs;
(3) Assessing the effectiveness of the VAMA;
(4) Expanding minority involvement in the industry;
(5) Expanding public awareness of housing opportunities in the
community; and
(6) Developing cooperative solutions to problems associated with the
implementation of the VAMA.
Additionally, funds may be used to cover the operating costs
associated with the specific funded activities of the Resource Board
Program. However, proposals that use the majority of their funds for
program costs (as opposed to administrative costs) will receive priority
consideration.
(b) No funds made available to Resource Boards under this part may be
used for testing activities.
24 CFR 120.30 Applications.
Applications from eligible applicants must contain:
(a) A brief letter of transmittal from the Chairperson of the
Resource Board indicating that the Resource Board has consulted with the
industry group representative on the project.
(b) A narrative statement describing the nature of the project, the
elements of the VAMA it will address, the plan for evaluating the
effectiveness of the project, and the resources the Resource Board plans
to use to carry out the project.
(c) Information about the Resource Board including:
(1) The composition of the Resource Board and the consistency of
board members participation in the Resource Board activities;
(2) The procedures used to provide information to the community about
the VAMA;
(3) The methods used to evaluate the VAMA and assess progress in its
implementation; and
(4) A statement of the Resource Boards date of organization.
(d) Information about Resource Board and local real estate board
activities.
(e) An organization may submit only one application to carry out
projects related to the goals of the VAMA. HUD reserves the right to
refuse to fund a Resource Board or projects that do not meet the
requirements of this part. Notifications to such applicants shall be
sent after selections are made under a Notice of Funds Availability
(NOFA).
(f) Detailed information on the application process and selection
criteria will be included in the NOFA and application package.
(Approved by the Office of Management and Budget under control number
2529-0001)
24 CFR 120.35 Selection criteria.
(a) The determination of which Resources Boards will be funded will
depend, to a large degree, upon HUD's evaluation of the implementation
of Voluntary Affirmative Marketing Agreements that are in place six
months prior to the publication of the Notice of Funds Availability.
Accordingly, two categories of funding will be provided to selected
Resource Boards:
(1) Maintenance: In those communities where the activity of the
Resource Board has resulted in full implementation of the terms of the
Agreement, funding will be provided to continue the maintenance of
effort related to the technical assistance to the local real estate
board.
(2) Improvement: In those localities where the Agreement is not
fully implemented, funding will be provided to improve the capability of
the Resource Board to provide appropriate technical assistance to the
local real estate board.
(b) In addition to the criteria for selection in this section,
projects proposed in applications will be ranked based on the following
considerations:
(1) The relationship of the proposed project to the goal of the VAMA;
(2) The extent to which the proposed project will affect the groups
the VAMAs are designed to reach;
(3) The commitment of the Resource Board members, as indicated
through regular attendance at meetings, and by demonstrated results of
activities for Resource Boards requiring maintenance and expected
results of activities for Resource Boards requiring improvement;
(4) The amount of relevant professional or organizational experience,
including experience in fair housing, available to the Resource Board to
implement the projects proposed; and
(5) The extent to which the proposed projects do not duplicate other
community efforts.
(c) The relative weight of the criteria for selection will be:
(d) HUD in the publication of the Notice of Funds Availability can
establish additional criteria which will be considered in the selection
of applications for funding.
(Approved by the Office of Management and Budget under control number
2529-0001)
24 CFR 120.35 PART 121 -- COLLECTION OF DATA
Authority: Title VIII, Civil Rights Act of 1968 (42 U.S.C.
3600-3620); E.O. 11063, 27 FR 11527; sec. 602, Civil Rights Act of
1964 (42 U.S.C. 2000d-1); sec. 562, Housing and Community Development
Act of 1987 (42 U.S.C. 3608a); sec. 2, National Housing Act, 12 U.S.C.
1703; sec. 7(d), Department of Housing and Urban Development Act, 42
U.S.C. 3535(d).
24 CFR 121.1 Purpose.
The purpose of this part is to enable the Secretary of Housing and
Urban Development to carry out his or her responsibilities under the
Fair Housing Act, Executive Order 11063, dated November 20, 1962, title
VI of the Civil Rights Act of 1964, and section 562 of the Housing and
Community Development Act of 1987. These authorities prohibit
discrimination in housing and in programs receiving financial assistance
from the Department of Housing and Urban Development, and they direct
the Secretary to administer the Department's housing and urban
development programs and activities in a manner affirmatively to further
these policies and to collect certain data to assess the extent of
compliance with these policies.
(54 FR 3317, Jan. 23, 1989)
24 CFR 121.2 Furnishing of data by program participants.
Participants in the programs administered by the Department shall
furnish to the Department such data concerning the race, color,
religion, sex, national origin, age, handicap, and family
characteristics of persons and households who are applicants for,
participants in, or beneficiaries or potential beneficiaries of, those
programs as the Secretary may determine to be necessary or appropriate
to enable him or her to carry out his or her responsibilities under the
authorities referred to in 121.1.
(54 FR 3317, Jan. 23, 1989)
24 CFR 121.2 PART 125 -- FAIR HOUSING INITIATIVES PROGRAM
24 CFR 121.2 Subpart A -- General
Sec.
125.101 Policy.
125.102 Purpose.
125.103 Definitions.
125.104 Program administration.
125.105 Applications requirements.
125.106 Selection criteria.
24 CFR 121.2 Subpart B -- Administrative Enforcement Initiative
125.201 Purpose.
125.202 Eligible agencies.
125.203 Eligible activities.
24 CFR 121.2 Subpart C -- Education and Outreach Initiative
125.301 Purpose.
125.302 Eligible applicants.
125.303 Eligible activities.
24 CFR 121.2 Subpart D -- Private Enforcement Initiative
125.401 Purpose.
125.402 Eligible applicants.
125.403 Eligible activities.
125.404 Use of funds for litigation.
125.405 Guidelines for private enforcement testing.
Authority: Sec. 561, Housing and Community Development Act of 1987
(Pub. L. 100-242); section 7(d), Department of Housing and Urban
Development Act (42 U.S.C. 3535(d)).
Source: 54 FR 6498, Feb. 10, 1989, unless otherwise noted.
24 CFR 121.2 Subpart A -- General
24 CFR 125.101 Policy.
Section 561 of the Housing and Community Development Act of 1987
established the Fair Housing Initiatives Program to strengthen the
Department's effort to enforce title VIII of the Civil Rights Act of
1968 (title VIII) and to further fair housing. This program is intended
to assist projects and activities designed to enhance compliance with
title VIII and substantially equivalent State and local fair housing
laws.
24 CFR 125.102 Purpose.
Under the Fair Housing Initiatives Program, the Department is
authorized to make grants to, or enter into contracts or cooperative
agreements with, State or local governments or their agencies, public or
private non-profit organizations or institutions, or other public or
private entities that are formulating or carrying out programs to
prevent or eliminate discriminatory housing practices.
24 CFR 125.103 Definitions.
As used in this part
(a) Assistant Secretary means the Assistant Secretary for Fair
Housing and Equal Opportunity in the Department of Housing and Urban
Development.
(b) Department means Department of Housing and Urban Development.
(c) Discriminatory housing practice means an act that is unlawful
under sections 804, 805, 806 or 818 of title VIII.
(d) Dwelling means any building, structure, or portion thereof which
is occupied as, or designed or intended for occupancy as, a residence by
one or more families (a family includes a single individual), or any
vacant land which is offered for sale or lease for the construction or
location thereon of any such building, structure or portion thereof.
(e) FHIP means the Fair Housing Initiatives Program authorized by
section 561 of the Housing and Community Development Act of 1987 (Pub.
L. 100-242, approved February 5, 1988).
(f) Person includes one or more individuals, corporations,
partnerships, associations, labor organizations, legal representatives,
mutual companies, joint stock companies, trusts, unincorporated
organizations, trustees, trustees in bankruptcy, receivers and
fiduciaries.
(g) State means any of the several states, the District of Columbia,
the Commonwealth of Puerto Rico, or any of the territories and
possessions of the United States.
(h) Title VIII means title VIII of the Civil Rights Act of 1968, as
amended (42 U.S.C. 3600-3620), commonly cited as the Fair Housing Act.
24 CFR 125.104 Program administration.
(a) The Fair Housing Initiatives Program is administered by the
Assistant Secretary.
(b) All funding in the Fair Housing Initiatives Program will be
awarded on a competive basis.
(c) The Department will provide funding in three separate areas:
(1) The Administrative Enforcement Initiative (subpart B);
(2) The Education and Outreach Initiative (subpart C); and
(3) The Private Enforcement Initiative (subpart D).
(d) Notices of Funding Availability under this program will be
published periodically in the Federal Register. Such notices will
announce the amount of funds available, the funding available for any
initiative and the maximum amounts to be awarded to applicants and may
limit funding to one or more of the initiatives. The Notice of Funding
Availability will include specific factors for award in addition to the
specific criteria set forth in section 125.106 which the Assistant
Secretary will use in selection of recipients to be funded and will
indicate the relative weight of all selection criteria. The criteria
for selection announced in Notices of Funding Availability will address
the specific types of activities and projects to be solicited pursuant
to the varied objectives of the three separate components of the FHIP,
and will be designed to foster selections which are most likely to
achieve results consistent with the objectives of each component of the
program.
(e) All recipients of funds under this program must conform to
reporting and record maintenance requirements determined appropriate by
the Assistant Secretary. Procedures for monitoring program activities
and funding will be established by the Assistant Secretary. Each
funding instrument will include provisions under which the Department
may suspend, terminate or recapture funds if the recipient does not
conform to these requirements.
(f) All recipients of funds under this program which are State or
local governments or agencies of State or local governments must conduct
audits in accordance with part 44 of this title.
24 CFR 125.105 Applications requirements.
Each application for funding under the Fair Housing Initiatives
Program must contain the items set forth below. Each application will
be assessed against specific selection criteria set forth in a Notice of
Funding Availability.
(a) A description of the practice (or practices) at the community,
regional or national level which has affected adversely the achievement
of the goal of fair housing. This description must include a discussion
and analysis of the housing practice(s) identified, including available
information and studies relating to discriminatory housing practices and
their historical background, and relevant demographic data indicating
the nature and extent of the impact of such practices on persons seeking
dwellings or services related to the sale, rental and financing of
dwellings in the general location where the applicant proposes to
undertake activities;
(b) A description of the specific activities to be conducted with
funds including the final product(s) and/or any reports to be produced;
and the cost of each activity proposed and a schedule for completion of
the funded activities;
(c) A description of the applicant's experience in formulating or
carrying out programs to prevent or eliminate discriminatory housing
practices;
(d) A statement indicating the need for Federal funding in support of
the proposed project; and an estimate of such other public or private
resources as may be available to assist the proposed activities;
(e) A description of the procedures to be used for monitoring conduct
and assessing results of the proposed activities;
(f) A description of the benefits which successful completion of the
project will produce to enhance fair housing and the concerns
identified, and the indicators by which these benefits are to be
measured;
(g) A description of the expected long term viability of project
results;
(h) Any additional information which may be required by a Notice of
Funding Availability for the Fair Housing Initiatives Program published
in the Federal Register.
(Approved by the Office of Management and Budget under control number
2529-0033)
24 CFR 125.106 Selection criteria.
(a) Projects proposed in applications will be ranked based on the
following criteria for selection:
(1) The anticipated impact of the project proposed on the concerns
identified in the application;
(2) The extent to which the project utilizes other public or private
resources that may be available;
(3) The extent to which the applicant's professional and
organizational experience will further the achievement of the project
goal(s);
(4) The extent to which the project provide the project will provide
the maximum impact on the concerns identified in a cost effective
manner;
(5) The extent to which the project will provide benefits in support
of fair housing after funded activities have been completed.
(b) The relative weight to be assigned to these selection criteria as
well as additional factors which will be considered in reviewing
applications will be included in the Notice of Funding Availability,
together with a stated rationale, justifying the additional factors
selected in terms of the specific goals of each initiative for which
funds are being made available.
24 CFR 125.106 Subpart B -- Administrative Enforcement Initiative
24 CFR 125.201 Purpose.
The Administrative Enforcement Initiative provides funding to State
and local fair housing agencies administering fair housing laws
recognized by the secretary as providing rights and remedies which are
substantially equivalent to those provided in title VIII.
24 CFR 125.202 Eligible agencies.
A State or local fair housing agency, to be eligible to participate
in the Administrative Enforcement Initiative, must be certified by the
Assistant Secretary as substantially equivalent (or considered to be so
certified) under 115.6 of this subchapter.
24 CFR 125.203 Eligible activities.
Funding will be available to support activities designed to
strengthen and broaden the range of enforcement and compliance
activities conducted by eligible State and local agencies. Such
activities may include (but are not limited to) the following:
(a) Providing technical assistance to State and local government
agencies administering housing and community development programs
concerning applicable fair housing laws and regulations;
(b) Implementing fair housing testing programs; and
(c) Conducting investigations of systemic discrimination for further
enforcement processing by State or local agencies, or for referral to
HUD and the Department of Justice.
24 CFR 125.203 Subpart C -- Education and Outreach Initiative
24 CFR 125.301 Purpose.
The Education and Outreach Initiative of the Fair Housing Initiatives
Program provides funding for the purpose of developing, implementing,
carrying out, or coordinating education and outreach programs designed
to inform members of the public concerning their rights and obligations
under the provisions of fair housing laws. Funding is provided under
this Initiative for the development of national, regional or local media
campaigns (written or audio-visual materials) or other special efforts
to educate the general public and housing industry groups about fair
housing rights and obligations.
24 CFR 125.302 Eligible applicants.
The following types of organizations are eligible to receive funding
under the Education and Outreach Initiative:
(a) State or local governments;
(b) Public or private non-profit organizations or institutions, and
other public or private entities that are formulating or carrying out
programs to prevent or eliminate discriminatory housing practices.
24 CFR 125.303 Eligible activities.
(a) Educational projects. Educational projects that may be funded
under the Educational and Outreach Initiatives may include (but are not
limited to) the following:
(1) Developing informative material on fair housing rights and
responsibilities;
(2) Developing fair housing and affirmative marketing instructional
material for education programs for national, regional and local housing
industry groups;
(3) Providing educational seminars and working sessions for civic
associations, community-based organizations, and other groups; and
(4) Developing educational material targeted at persons in need of
specific or additional information on their fair housing rights.
(b) Outreach projects. Outreach projects that may be funded under
the Educational and Outreach Initiative may include (but are not limited
to) the following:
(1) Developing national, regional or local media campaigns regarding
fair housing;
(2) Bringing housing industry and civic or fair housing groups
together to identify illegal real estate practices and to determine how
to correct them;
(3) Designing specialized outreach projects to inform all persons of
the availability of housing opportunities;
(4) Developing and implementing a response to new or more
sophisticated practices that result in discriminatory housing practices;
and
(5) Developing mechanisms for the identification of, and quick
response to, housing discrimination cases involving the threat of
physical harm.
(c) Classes or competition. The Notice of Funding Availability for
the Educational and Outreach Initiative may be divided funding into
classes based on the type of projects (e.g., educational or outreach
projects) and the scope of projects (e.g., local, regional or national).
(d) Coordination of activities. Each non-governmental applicant for
funding which is located within the jurisdiction of a State or local
enforcement agency or agencies administering a fair housing law which
have been certified by the Department under part 115 of this subchapter
as being substantially equivalent must provide with its application
evidence that it has consulted with the agency or agencies to coordinate
activities to be funded under the Education and Outreach Initiative.
24 CFR 125.303 Subpart D -- Private Enforcement Initiative
24 CFR 125.401 Purpose.
The Private Enforcement Initiative of the Fair Housing Initiatives
Program will provide funding to non-profit organizations and other
private entities that are formulating or carrying out programs to
prevent or eliminate discriminatory housing practices. The purpose of
these awards is to assist in the developing, implementing, carrying out,
or coordinating programs or activities designed to obtain enforcement of
the rights granted by title VIII or State or local laws that provide
rights and remedies for alleged discriminatory housing practices that
are substantially equivalent to the rights and remedies provided in
title VIII.
24 CFR 125.402 Eligible applicants.
Organizations which are eligible to receive assistance under the
Private Enforcement Initiatives are private non-profit organizations and
other private entities that are formulating or carrying out programs to
prevent or eliminate discriminatory housing practices. Organizations
which can be eligible include, for example, private nonprofit fair
housing and civil rights groups.
24 CFR 125.403 Eligible activities.
Projects that will be funded under the Private Enforcement Initiative
may include (but are not limited to) the following:
(a) Conducting investigations of systemic housing discrimination.
(b) Professionally conducting testing or other investigative support
for administrative and judicial enforcement;
(c) Linking fair housing organizations regionally in enforcement
activities designed to combat broader housing market discriminatory
practices; and
(d) Establishing effective means of meeting legal expenses in support
of litigation of fair housing cases.
24 CFR 125.404 Use of funds for litigation.
No recipient of assistance under the Private Enforcement Initiative
may use any funds provided by the Department for the payment of expenses
in connection with litigation against the United States.
24 CFR 125.405 Guidelines for private enforcement testing.
(a) The guidelines contained in this section apply to testing
activities funded under the Private Enforcement Initiative. These
guidelines apply only to testing activities funded under this initiative
and do not limit or restrict the use of facts secured through other
testing activities in any legal proceeding under Federal fair housing
laws. Nothing in this section restricts individuals or entities
participating in the Fair Housing Initiatives Program from pursuing any
right or remedy guaranteed by Federal law, or from the conduct of other
testing or other investigative activities not funded under the Private
Enforcement Initiative.
(b) Definitions. As used in this section:
(1) The term bona fide allegation means an assertion of a
discriminatory housing practice unlawful under Federal fair housing law.
For purposes of these guidelines, an allegation by a person engaged as
a tester, whether or not compensated, or by any organization, employee,
or agent engaged directly in the initiation, administration, evaluation,
or conduct of tests is not a bona fide allegation. The allegation must
state specifically and in detail the facts and circumstances which are
believed to constitute the discriminatory housing practice; these facts
should include the date, time, and place (or an approximation of the
date, time or place) of the alleged discrimination, and the name of each
person or firm allegedly engaged in the discriminatory housing practice.
However, while the allegation must be documented, it need not be
reduced to writing prior to the conduct of a test.
(2) The term discriminatory housing practice means any action made
unlawful by section 804, 805, 806 or 818 of title VIII (42 U.S.C. 3604,
3605, 3606 or 3618).
(3) The term test means a method of gathering credible and objective
evidence of whether a discriminatory housing practice has occurred,
conducted in response to a bona fide allegation. For purposes of tests
conducted under these guidelines:
(i) In the case of a test conducted in response to an allegation
involving the rental or financing of a home or apartment, a test must
include one or more visits by at least two individual testers to the
lender, rental agent, management firm or owner alleged to have
discriminated.
(ii) In the case of a test conducted in response to an allegation
involving the purchase of a home, a test must include one or more visits
by at least two individual testers to the individual sales agent or
owner alleged to have discriminated; or if a firm is alleged to have
engaged in discriminatory housing practices and if no sales agent of the
firm has been identified as having discriminated, then the test must
include one or more visits by at least two paired testers as defined in
paragraph (c)(2)(iv) of this section to any sales agent identified by
the testing program. The test requirements specified shall not excuse
any employer, broker, firm, or owner from such liability as the law
imposes on them for the conduct of their employees or licensees
affiliated with them. Nothing here shall limit the number of test
visits which can be made or funded.
(4) The term testers means individuals, who without an intent to
rent, purchase, or finance a home or apartment, pose as renters,
purchasers, or borrowers for the purpose of collecting evidence of
discriminatory housing practices.
(c) Eligible activities. Eligible testing activities must be
conducted in accordance with procedures contained in the application for
assistance. These procedures shall include the following:
(1) A formal recruitment process designed to obtain a pool of
credible and objective persons to serve as testers. Recruits must not
have prior felony convictions or convictions of crimes involving fraud
or perjury.
(2) A tester training program which will --
(i) Require the careful recordation of all relevant information on
standardized forms, signed by the respective testers, following
completion of the test;
(ii) Prohibit any communication between pairs of testers relating to
the conduct of the test or to testing experiences or results until all
information has been recorded and the testers debriefed by the testing
coordinator;
(iii) Require that the same or substantially equivalent type of
housing accommodations, financing, or service be requested; and
(iv) Require that, to the extent practicable, testers identify
themselves as having the same or substantially equivalent housing needs
and demographic profiles as the person who made the bona fide
allegation, except for the person's race, color, religion, sex,
handicap, familial status, nationality, or other attribute which is the
basis of the alleged discrimination. In cases of testing for systemic
discrimination (e.g., a pattern or practice of discriminatory housing
practices by a housing provider or lender), demographic profiles may
vary from that of the person who made the bona fide allegation so long
as the test of each agent or owner is a paired test. For the purpose of
these guidelines, a paired test means that the two testers who will
conduct the paired test shall --
(A) Have the same or substantially similar demographic profiles,
except for their race, color, religion, handicap, familial status, sex,
nationality, or other attribute which is the basis of the alleged
discrimination;
(B) Have the same or substantially similar housing requirements;
(C) Initiate the test at the same office or in the same or
substantially similar transactional conditions and circumstances; and
(D) Conduct the test in a timely manner.
(3) A tester assignment and control system which will assure that
neither the tester, nor the organization conducting the test, including
its employees and agents --
(i) Has an economic interest in the outcome of the test, without
prejudice to the right of any person or entity to recover damages for
any cognizable injury (see, Havens Realty Corp. v. Coleman, 455 U.S.
363 (1982), 3 PHEOH 15,341); or
(ii) Has a specific bias toward either the person who made the bona
fide allegation or the respondent; is a relative of one of the parties
in the case; has had any employment or affiliation within one year with
the person or organization to be tested; is a licensed competitor of
such person or organization in the listing, rental, sale, or financing
of real estate property; or has any other specific bias or conflict or
interest which would prevent or limit his or her objectivity or
fairness.
(d) Application requirements. Applications for funding of testing
activities must include, in addition to the requirements set forth in
125.105:
(1) Documentation that the applicant has at least one year of
experience in carrying out a program to prevent or eliminate
discriminatory housing practices and has sufficient knowledge of fair
housing testing to enable the applicant to implement a testing program
successfully.
(2) A certification providing that the applicant will not solicit
funds from or seek to provide fair housing educational or other services
or products for compensation, directly or indirectly, to any person or
organization which has been the subject of testing by the applicant for
a 12-month period following a test;
(3) A description of the process to be used to recruit testers;
(4) A description of the tester training program; and
(5) Copies of forms used to document allegations and to record the
experience of testers.
(Approved by the Office of Management and Budget under control number
2529-0033, expires May 31, 1991)
(e) Performance monitoring. An applicant failing to comply with the
testing requirements or the procedures set forth in its application for
funding shall be liable for such sanctions as may be authorized by law.
These sanctions include repayment of improperly used funds, termination
of further participation in the initiative, reduction or limitation of
further funding for investigatory activities, recapture of improperly
expended funds, and denial of further participation in programs of the
Department or any Federal agency.
24 CFR 125.405 Ch. I, Subch. A, App. I
24 CFR 125.405 Appendix I to Subchapter A -- Preamble to Final Rule
Implementing Fair Housing Amendments Act of 1988 (Published January 23,
1989)
Title VIII of the Civil Rights Act of 1968 (42 U.S.C. 3601-3619) made
it unlawful to discriminate in any aspect relating to the sale, rental
or financing of dwellings or in the provision of brokerage services or
facilities in connection with the sale or rental of a dwelling because
of race, color, religion, sex, or national origin. Under the provisions
of title VIII, persons who believed that they had been subjected to, or
were about to be subjected to, a discriminatory housing practice could
file a complaint with the Secretary of Housing and Urban Development.
Title VIII required the Department of Housing and Urban Development to
investigate each complaint and, where the Department determined to
resolve the matters raised in a complaint, to engage in informal efforts
to conciliate the issues in the complaint.
However, where these informal efforts to conciliate a case were
unsuccessful, title VIII did not provide the Secretary with any
administrative mechanism for redressing acts of discrimination against
an individual. In addition, while the Secretary could refer a case
involving a pattern or practice of discrimination to the Attorney
General for the initiation of a civil action, Federal courts did not
award individual relief to the victims of discrimination in such cases.
The Fair Housing Amendments Act of 1988 (Pub. L. 100-430, approved
September 13, 1988) was enacted to strengthen the administrative
enforcement provision of title VIII, to add prohibitions against
discrimination in housing on the basis of handicap and familial status,
and to provide for the award of monetary damages where discriminatory
housing practices are found. The amended law, referred to as the Fair
Housing Act, will become effective on March 12, 1989.
The provisions in the Fair Housing Act describing the nature of
conduct which constitutes a discriminatory housing practice have been
revised to extend the protections of the Fair Housing Act to persons
with handicaps and to families with children. In this respect, sections
804, 805, and 806 of the Fair Housing Act prohibit discrimination in any
activities relating to the sale or rental of dwellings, in the
availability of residential real estate-related transactions, or in the
provision of services and facilities in connection therewith because of
race, color, religion, sex, handicap, familial status, or national
origin.
The Fair Housing Act also specifically makes it unlawful to refuse to
permit, at the expense of the handicapped person, reasonable
modifications to existing premises occupied or to be occupied by such a
person if such modifications are necessary to afford such person full
enjoyment of the premises (section 804(f)(3)(A)). With respect to
rental housing, the Fair Housing Act provides that a landlord may, where
reasonable, condition permission for a modification on the renter's
agreeing to restore the interior of the premises to the condition that
existed before the modification, reasonalbe wear and tear excepted. The
Act also makes it unlawful to refuse to make reasonable accommodations
in rules, policies, practices, or services to afford a handicapped
person equal opportunity to use and enjoy a dwelling.
Further, the Fair Housing Act makes it unlawful to design and
construct certain multifamily dwellings for first occupancy after March
13, 1991, in a manner that makes them inaccessible to persons with
handicaps. All premises within such dwelling also are specifically
required to contain several features of adaptive design so that the
dwelling is readily accessible to and usable by persons with handicaps.
With respect to the new protection for families with children, the
Fair Housing Act prohibits discrimination because of familial status
(generally, the presence of children under 18 in a family) in the sale
or rental of housing. However, the act provides an exemption from this
prohibition for housing which qualifies as housing for older persons.
Section 805 of the Fair Housing Act, as revised, prohibits
discrimination related to residential real estate-related transactions
rather than merely referring to financing. In addition, the definition
of the term residential real estate-related transaction specifically
indicates that the Fair Housing Act applies to the selling, brokering
and appraising of dwelling and to secondary mortgage market activities
with respect to securities affected or supported by dwellings, as well
as to the making and purchasing of loans and other financial assistance
for dwellings. The Act, however, does not prohibit a person engaged in
the business of furnishing appraisals from taking into consideration
factors other than race, color, religion, national origin, sex,
handicap, or familial status.
Section 810 of the Fair Housing Act provides that any person who
believes that he or she has been, or will be, subjected to a
discriminatory housing practice because of race, color, religion, sex,
handicap, familial status, or national origin may file a complaint with
the Secretary of Housing and Urban Development. The section also
authorizes the Secretary of Housing and Urban Development to file
complaint on the Secretary's own initiative and to investigate housing
practices in order to determine whether a complaint should be filed.
Complaints must be filed not later than one year after an alleged
discriminatory housing practice has occurred or terminated.
Upon the filing of a complaint, the Secretary is required to notify
any respondent named in the complaint of the acceptance of the complaint
and the discriminatory housing practice alleged in the complaint. The
respondent may file, not later than 10 days after receipt of the notice
of a complaint, an answer to the complaint. The Secretary is required
to make an investigation of the alleged discriminatory housing practice
and to complete the investigation within 100 days after the filing of
the complaint, unless it is impracticable to do so.
At the end of each investigation, the Secretary is required to
prepare a final investigation report. Under section 810(d), the final
investigation report will be available to an aggrieved person or a
respondent, upon request, at any time after the investigation is
complete.
Section 810(b) of the Act directs the Secretary, to the extent
feasible, to engage in efforts to conciliate the matters raised in the
complaint at any time after the filing of the complaint.
Section 810(e) of the Act empowers the Secretary to authorize the
Attorney General to file a civil action seeking appropriate preliminary
or temporary relief pending final disposition of a complaint if, at any
time after the filing of such complaint, the Secretary concludes that
such action is necessary to carry out the purposes of the Act.
Whenever a complaint alleges a discriminatory housing practice within
a State or locality which has a Fair Housing law or ordinance which has
been certified by the Secretary as being substantially equivalent to the
Fair Housing Act, the Secretary must refer the complaint to the agency
administering such law or ordinance before taking any action with
respect to the complaint. Except with the consent of a certified
agency, or in other limited situations such as where a complaint is not
being processed in a timely fashion or the State or local law or
ordinance is found no longer to be substantially equivalent, the
Secretary may not take any further action with respect to complaints
referred to such agencies.
Section 810(f) of the Act permits the Secretary to certify an agency
only where the Secretary determines that the rights protected by the
agency, the procedures followed by the agency, the remedies available to
the agency, and the availability of judicial review of the agency's
actions are substantially equivalent to those created in the Fair
Housing Act.
This section also provides that agencies which the Secretary has
determined administer State and local fair housing laws which provide
rights and remedies for discriminatory housing practices that were
substantially equivalent to those contained in title VIII of the Civil
Rights Act of 1968, or agencies which had been recognized for interim
referral of complaints under title VIII, will be considered certified
for a period not to exceed 48 months for the purpose of referring
complaints under the Fair Housing Act with respect to matters for which
they had been certified on the day before the date of enactment of the
Fair Housing Act (i.e., September 12, 1988).
Section 810(g) of the Act requires the Secretary, in cases where the
matters raised in a complaint cannot be resolved by conciliation, to
determine, based upon the facts, whether reasonable cause exists to
believe a discriminatory housing practice has occurred or is about to
occur. Such a finding must be made by the Secretary within 100 days
after the filing of a complaint or within 100 days after the Secretary
has commenced action on a complaint which had been referred to a
certified agency, unless it is impracticable to do so. Where the
Secretary makes a determination that reasonable cause exists to believe
that a discriminatory housing practice has occurred or is about to
occur, the Secretary must immediately issue a charge on behalf of the
aggrieved person commencing a formal administrative proceeding before an
administrative law judge.
Section 812(a) of the Act provides any complainant, aggrieved person,
or respondent with an opportunity to elect not to proceed before an
administrative law judge but to move the case to an appropriate Federal
district court. Such an election must be made within 20 days after the
receipt of the service upon such person of the charge filed by the
Secretary. Upon notification that a person has elected to proceed to
Federal district court, the Secretary will authorize the Attorney
General to file a civil action on behalf of the aggrieved person. An
action authorized by the Secretary must be brought within 30 days after
the election is made.
Where no election is made, the case will be heard by an
administrative law judge. Under section 812(c) of the Act, the Federal
Rules of Evidence will apply to the presentation of evidence in the same
manner that they apply to evidence presented in a civil action in
Federal district court. Section 812(g) requires the administrative law
judge to issue findings of fact and conclusions of law within 60 days
after the end of a hearing.
Where the administrative law judge finds that a respondent has
engaged in a discriminatory housing practice, the Fair Housing Act
provides for the issuance of an order for such relief as is appropriate,
which may include actual damages and injunctive or other equitable
relief. In order to vindicate the public interest, the order of an
administrative law judge may assess a civil penalty against the
respondent.
The decision of the administrative law judge can be reviewed by the
Secretary. However, this review must be completed within 30 days after
the decision is issued. Any final agency decision on the issue of
discriminination is subject to review on appeal by the United States
Courts of Appeals.
The Fair Housing Amendments Act directs the Secretary of Housing and
Urban Development to issue regulations implementing the Fair Housing
Act. Section 13 of the Fair Housing Amendments Act provides that ''(I)n
consultation with other appropriate Federal agencies, the Secretary
shall, not later than the 180th day after the enactment of this Act,
issue rules to implement title VIII as amended by this Act.'' That
section also required the Secretary to give notice and opportunity for
comment with respect to such rules.
On November 7, 1988, the Department published in the Federal Register
(53 FR 44992) a proposed rule to provide the interpretation of the
Secretary of Housing and Urban Development on the scope of the coverage
provided and the nature of activities made unlawful by the Fair Housing
Act. The proposed rule also contained the procedures which would be
applicable to the receipt and processing of complaints and the
initiation and conduct of formal enforcement proceedings.
Specifically, the Department proposed to add the three new parts to
subtitle B of title 24 of the Code of Federal Regulations. The new part
100 described the conduct made unlawful under the Fair Housing Act. The
new part 103 set forth the procedures for the receipt, investigation and
conciliation of complaints and for the issuance of charges commencing
formal administrative proceedings. The new part 104 established rules
for the conduct of administrative hearings before administrative law
judges and provided rules of discovery in connection with such
administrative proceedings.
It was further proposed that the existing departmental regulations
authorizing the Secretary to collect racial, sex and ethnic data in
departmental programs, located at 24 CFR part 100, be redesignated as 24
CFR part 121. These regulations were revised in the proposal to reflect
the additional data requirements for HUD programs to meet the
Department's responsibility to provide reports to Congress and to make
available to the public data on persons eligible to participate and who
are participating in HUD programs.
The proposed rule also made revisions in four existing departmental
regulations implementing the Fair Housing Act to reflect the expansion
of the coverage of the law to include handicap and familial status.
Those regulations are: Fair Housing Administrative Meetings under title
VIII of the Civil Rights Act of 1968 (24 CFR part 106), Fair Housing
Advertising (24 CFR part 109), Fair Housing Poster (24 CFR part 110) and
Certification of Substantially Equivalent Agencies (24 CFR part 115).
The proposal provided a 30-day period for the submission of comments
by the public, ending December 7, 1988. The Department received 6,425
public comments on the proposed rule by the end of the comment period.
In addition, a substantial number of comments were received by the
Department after the December 7 deadline. Even though those comments
were not timely filed, they were reviewed to assure that any major
issues raised were adequately addressed in comments that were received
by the deadline.
Despite the extraordinary number of comments submitted (there were
several thousand comments just from mobile home owners and operators of
mobile home parks), each of the timely comments was read, and a list of
all significant issues raised by those comments was compiled. All these
issues were considered in the development of this rule.
In addition to consideration of public comments, HUD staff members
met with representatives of several major interest groups who requested
an opportunity to elaborate on the views expressed in their written
comments. These staff members (with responsibility for the development
of this rule) met with representatives of the National Apartment
Association, the Society of Real Estate Appraisers, the American
Institute of Real Estate Appraisers, the National Association of Home
Builders, the Western Mobile Home Association, the Leadership Conference
on Civil Rights, National Association for the Advancement of Colored
People, NAACP Legal Defense Fund, Children's Defense Fund, American
Civil Liberties Union, Mental Health Law Project, and representatives of
various other Fair Housing Organizations. In each instance, the
organization or organizations presented views identical to or consistent
with positions taken in previously submitted written comments. A record
of each meeting was made, including the names of persons attending, the
date, and a brief summary of the issues discussed. These meeting
records appear in the Department's public comment file. The staff
members also met with staff of the Senate Judiciary Committee.
Part 100 is a new part titled ''Discriminatory Conduct Under The Fair
Housing Act''. The new part 100:
-- Indicates the conduct which is made unlawful under the Fair
Housing Act;
-- Includes guidance as to the responsibility of persons to
permit reasonable modifications to dwellings and to make reasonable
accommodations to rules and practices for persons with handicaps and
further provides information as to the design and construction
requirements applicable to certain new construction multifamily housing
for first occupancy after March 13, 1991; and
-- Describes the requirements which must be met for housing to be
exempted from the prohibitions against discrimination based on familial
status because it qualifies as housing for older persons.
The comments received with respect to subparts A, B, and C of part
100 raised several issues of general importance.
The proposed rulemaking indicated that the descriptions of unlawful
conduct contained in this part generally mirrored the language of the
statutory prohibitions against discrimination under the Fair Housing
Act. The proposed rule indicated that the specific prohibitions in each
section of the regulations were amplified by examples of unlawful
conduct provided in those sections. The preamble to the proposed rule
stated that many of the practices so identified have been the subject of
court decisions since the passage of title VIII of the Civil Rights Act
of 1968. The preamble further stated that other examples reflect the
interpretation of HUD based on its experience since 1968 in the
investigation of complaints of discriminatory housing practices. In
addition, the preamble cautioned that the illustrations in part 100 were
only examples of the types of conduct made unlawful under the Fair
Housing Act.
Although the Department viewed the illustrations of conduct unlawful
under the Fair Housing Act in part 100 to be descriptive of the types of
conduct prohibited, several commenters suggested that, in some
instances, the illustrations could be read to suggest that the
Department was using them to establish the legal standards for
determining liability in the adjudication of matters under the Fair
Housing Act.
Specifically, these commenters asserted that four illustrations in
the proposed rule were susceptible to misinterpretation. With regard to
100.70(c)(3), 100.75(c)(3) and 100.80(b)(3), they asserted that the
use of the phrases in order to discourage, in order to deny and in order
to preclude could be viewed as limiting the types of activities which
would constitute unlawful conduct. Similarly, these commenters asserted
that, in 170.70(d)(1), the phrase to encourage, permit or reward could
also imply that intentional discriminatory conduct was necessary to
establish that a discriminatory housing practice occurred. While the
Department believes that the cited illustrations do not in any way imply
the standard for determining the liability of persons, these regulations
are not designed to resolve the question of whether intent is or is not
required to show a violation and in order to assure that there will be
no confusion as to the scope of part 100, the illustrations in
100.70(c)(3), 100.75(c)(3) and 100.80(b)(3) have been revised. The
illustration in 100.70(d)(1) has been deleted from the final rule for
the reasons discussed in the following section of this preamble.
Several commenters suggested that the proposed rule did not address
affirmative efforts by localities to further the achievement of the goal
of fair housing through the implementation of programs to promote
integrated housing. Several commenters, including fair housing groups,
persons and organizations involved in promoting fair housing and a
number of local governments, interpreted certain illustrations of
conduct made unlawful in the proposed rule as prohibiting the use of
governmentally approved programs designed to promote greater housing
opportunities for persons.
On the other hand, a comment from an association representing persons
involved in the sale and rental of dwellings urged that the proposed
rule be revised to make it clear that such practices are prohibited by
the Fair Housing Act.
The Department does not believe that the proposed rule could be
interpreted to make affirmative marketing programs, designed to make
available information which broadens housing choices for persons, a
violation of the Fair Housing Act.
The Department of Housing and Urban Development, shortly after the
enactment of title VIII of the Civil Rights Act of 1968, published
regulations designed to promote greater opportunities for persons to
participate in its housing programs. These Affirmative Fair Housing
Marketing Regulations (24 CFR 200.600) implement the Department's policy
of assuring that persons of similar income levels in a housing market
area have a like range of housing choices available to them, regardless
of race, color, religion, sex, or national origin.
The regulation provides for the development and implementation of an
affirmative fair housing marketing plan. As part of this plan,
participants in HUD housing programs must carry out an affirmative
program to attract buyers or tenants, regardless of sex, of all minority
and majority groups to the housing. In addition, the Department
requires program participants to identify any groups of persons who are
not likely to be aware of the available housing and to undertake special
marketing efforts designed to make such persons aware of the available
housing and their ability to obtain it on a nondiscriminatory basis.
Nothing in the amendments to the Fair Housing Act or their
legislative history would support a conclusion that Congress sought to
make choice-broadening activities, such as the Department's Affirmative
Fair Housing Marketing Program, unlawful discriminatory housing
practices.
Beyond these activities, both groups of commenters recommended that
the final rule should indicate whether other practices designed to
promote integrated housing patterns are permissible under the Fair
Housing Act. Generally, these pro-integrative programs involve
practices which are designed and operated to provide incentives for
persons to make housing choices in a manner which results in the
furtherance of integrated housing patterns.
The issue of programs designed to promote integrated housing patterns
was considered by the Congress in connection with an amendment to the
Fair Housing Amendments Act offered in the House which would have made
it unlawful to use any preferences in the provision of any dwelling
based on race, color, religion, gender or national origin. Before the
amendment was defeated, Congressman Don Edwards, one of the chief
sponsors of the Fair Housing Amendments Act, agreed to hold hearings on
the subject of pro-integrative programs. (See 134 Cong. Rec. H4903
(daily ed. June 29, 1988).)
Very recently, on December 12, 1988, the House Committee on the
Judiciary Subcommittee on Civil and Constitutional Rights held oversight
hearings on Fair Housing. In this hearing, the subcommittee heard
testimony concerning the issues raised in pro-integration efforts. In
fact, much of the testimony involved activities which are the same as or
similar to those referred to in the comments on the proposed rule.
In view of the legislative history concerning pro-integration
programs and the Congressional action in this area, the Department has
determined that it would not be appropriate to address the issue of
pro-integration programs in this final rule.
Commenters pointed to several of the illustrations in the proposed
rule which they believed could be read as indicating that the Department
would view pro-integration activities as constituting unlawful conduct.
The Department believes that the illustrations contained in the
proposed rule accurately reflect the types of activities which, when
they result in choice limitations, would constitute unlawful conduct.
However, in order to assure that the Department's rule implementing the
Fair Housing Act does not impact on the consideration of the scope of
permissible affirmative activities to promote integration, the
Department has removed the illustrations that the commenters asserted
could be construed as impacting either positively or negatively on the
Congressional evaluation. Specifically, the illustrations in
100.60(b)(5), 100.65(b)(2), 100.70(c)(1), 100.70(d)(1) and (2),
100.120(b)(1), (3), (4), (5), 6, and (7), 100.130(b)(1) and (4) and
100.135(d)(1), (2), and (3) have been removed. Further, the Department
has rejected comments suggesting changes in 100.70(a), and the addition
of new illustrations in 100.70(c), 100.75(c), 100.130(c), and
100.135(d) to indicate that pro-integration practices are unlawful.
In addition, several commenters requested that the provisions of the
proposed rule regarding unlawful advertising practices in 100.50(b)(4)
be revised. The language in this section has been changed to mirrow the
language contained in section 804(c) of the Fair Housing Act relating to
unlawful advertising with respect to the sale or rental of a dwelling.
In the preamble to the proposed rule, the Department indicated that
it interpreted the protections afforded to handicapped persons and
families with children in the same manner as the protections provided to
others under the Fair Housing Act. A number of commenters suggested
that it was unreasonable to assume that Congress intended to provide the
same protections to the new classes of persons afforded protection under
the amendments. One commenter supported this position by suggesting
that it would be more appropriate to utilize standards developed under
the Equal Protection Clause of the Fourteenth Amendment to the
Constitution in determining the nature of the protections provided to
handicapped persons and families with children. This commenter
indicated that, under such a standard, classifications based on race and
sex would stand on a different footing from classifications based on
handicap and familial status, and that differential treatment of the
handicapped or families with children in some particular contexts could
be justified by a rational relationship to legitimate interests, even
where similar differential treatment based on race or sex could not be
justified.
While it is true that the Congress, in enacting title VIII of the
Civil Rights Act of 1968, sought to assure that persons would be
accorded equal protection of the law, the Constitutional underpinnings
of the law are also rooted in the Commerce Clause.
In a memorandum on the constitutionality of the Fair Housing Law, the
Department of Justice set forth the support in the Commerce Clause for
the legislation, stating:
''Discrimination in housing affects this interstate commerce in
several ways. The confinement of Negroes and other minority groups to
older homes in ghettoes restricts the number of new homes which are
built and consequently reduces the amount of building materials and
residential financing which moves across state lines. Negroes,
especially those in the professions or in business, are less likely to
change their place of residence to another state when housing
discrimination would force them to move their families into ghettoes.
The result is both to reduce the interstate movement of individuals and
to hinder the efficient allocation of labor among the interstate
components of the economy.
''The Commerce Clause grants Congress plenary power to protect
interstate commerce from adverse effects such as these. The power is
not restricted to goods or persons in transit. It extends to all
activities which affect interstate commerce, even if the goods or
persons engaged in the activities are not then, or may never be,
traveling in commerce. The power exists even when the effects upon
which it is based are minor, or when taken individually, they would be
insignificant. It is sufficient if the effects, taken as a whole, are
present in measureable amounts. And it does not matter that when
Congress exercises its power under the Commerce Clause, its motives are
not solely to protect commerce. It can as validly act for moral
reasons.'' (footnotes omitted) 114 Cong. Rec. 2536-2537. (February 7,
1968)
The Department believes that the legislative history of the Fair
Housing Act and the development of fair housing law after the
protections of that law were extended in 1974 to prohibit discrimination
because of sex (Congress amended sections 804, 805, and 806 by adding
sex to the classes of persons protected under title VIII, see section
808(b)(1) of the Housing and Community Development Act of 1974, Pub. L.
93-383) support the position that persons with handicaps and families
with children must be provided the same protections as other classes of
persons.
A significant number of commenters asserted that providing
protections to persons with handicaps and families with children would
restrict their ability to establish reasonable rules relating to the
availability and the use of facilities provided in connection with
dwellings. These commenters also suggested that a regulation requiring
full access of handicapped persons and children to all facilities
provided in connection with dwellings, and requiring the rental of
dwellings on upper floors of a high-rise building, would result in
increased tort liability.
The Department does not believe that, in enacting the Fair Housing
Amendments Act, the Congress sought to limit the ability of landlords or
other property managers to develop and implement reasonable rules and
regulations relating to the use of facilities associated with dwellings
for the health and safety of persons. However, there is no support for
concluding that it is permissible to exclude handicapped persons or
families with children from dwellings on upper floors of a high-rise,
based on the assertion that such dwellings per se present a health or
safety risk to such persons. Further, to permit such a practice would
render meaningless the provisions of the law requiring that all
dwellings in buildings consisting of 4 or more units and having one or
more elevators be accessible to and usable by handicapped persons.
A number of commenters also urged the Department, in its final rule,
to provide that a high-rise building could be exempted from the familial
status provisions of the Act if it were certified that the high-rise
building did not provide a safe and healthy living environment for
children. In support of this type of exemption, several commenters
pointed to language contained in Section 201 of the Housing and
Community Development Act of 1977 which directed that the Secretary of
HUD ''prohibit high-rise elevator projects for families with children
unless there is no practicable alternative.'' (See section 8(c)(1) of
the Housing Act of 1937 (42 USC 1437f(c)(1)).). There is nothing in the
Fair Housing Act to indicate that Congress in any way sought to limit
the ability of families with children to obtain dwellings in a building
other than those specifically exempted under the Act. Further, the
department does not believe that the language in the Housing and
Community Development Act of 1977, requiring HUD approval of the use of
high-rise projects for providing housing for families with children
would support a provision in this final rule which would provide an
exemption from coverage of the Fair Housing Act for such buildings. As
a result, these comments have not been adopted.
However, there is nothing in the provisions of the Fair Housing
Amendments Act or its legislative history that indicates that Congress
sought to impose any new liability on the owners and managers of
housing. This interpretation is supported by a colloquy between Senator
Specter and Senator Kennedy regarding the issue of liability:
''Mr. Specter. It is my understanding that, as a result of this bill,
a property owner does not assume a greater degree of vicarious liability
as a result of injuries that may be caused by the tenants in the
expanded categories of protected classes established under this bill. I
believe it would be useful for the manager to confirm that it is not the
intent of Congress that property owners will incur greater vicarious
tort liability as a result of this statute because of the physical or
mental characteristics of the tenants covered by this bill.
Mr. Kennedy. The Senator is correct. Congress does not intend to
alter vicarious or secondary State tort law through the provisions of
this bill. There is no objective evidence to link concerns about
increased liability with any of the protected classes, and none should
be assumed. Thus, we are stating, as a matter of clarification, that
there is no relationship between this bill and existing State vicarious
and secondary liability tort laws. 134 Cong. Rec. S10549 (daily ed.
Aug. 2, 1988).''
The Fair Housing Amendments Act authorizes the Secretary of Housing
and Urban Development to issue regulations implementing the provisions
of the Fair Housing Act (42 U.S.C. 3600-3620). The regulations contained
in part 100 are being issued under the Secretary's authority for the
administration and enforcement of the Fair Housing Act.
The Fair Housing Act provides, within constitutional limitations, for
fair housing throughout the United States. It provides that no person
shall, on the basis of race, color, religion, sex, handicap, familial
status, or national origin, be subjected to discrimination in the sale,
rental or advertising for sale or rental of dwellings, in the provision
of brokerage services, or in residential real estate-related
transactions. Section 100.5(a) and (b) indicates that this part
provides guidance as to the Department's interpretation of the coverage
of the Fair Housing Act regarding discrimination related to the sale or
rental of dwellings, the provision of services in connection therewith,
and the availability of real estate-related transactions.
The Fair Housing Act exempts certain types of housing from the
coverage of the law. Section 807 of the Fair Housing Act provides that,
under certain circumstances, religious organizations and private clubs
may limit the sale, rental or occupancy of housing, owned or operated
for other than a commercial purpose, to their members. Section 807 also
provides that nothing in the provisions regarding familial status
applies to housing for older persons. Section 803 of the Fair Housing
Act provides that nothing in the Fair Housing Act, other than the
prohibitions against discriminatory advertising, applies to the sale or
rental by an owner of certain single family houses without the use of a
real estate broker or to the rental of rooms in dwellings containing
living quarters occupied by no more than four families, provided that
the owner actually occupies one of the units. Section 100.10 of this
part reflects these exemptions to the coverage of the law.
Section 100.10(a)(3) states that nothing in this regulation limits
the applicability of any reasonable local, State or Federal restrictions
on the maximum number of occupants permitted to occupy a dwelling unit.
This paragraph incorporates into the regulation the revisions to section
807 of the Fair Housing Act contained in section 6(d) of the Fair
Housing Amendments Act of 1988. That provision is intended to allow
reasonable governmental limitations on occupancy to continue as long as
they are applied to all occupants, and do not operate to discriminate on
the basis of race, color, religion, sex, handicap, familial status, or
national origin. H.R. Rep. No. 711, 100th Congress, 2d Sess. 31 (1988)
(''House Report''). No changes have been made in this section of the
regulations.
A number of commenters indicated that the proposed rule did not
adequately address the question of what occupancy standards, if any, can
be used by persons in connection with the sale and rental of dwellings.
Many of these commenters, generally persons involved in the rental of
dwellings and associations representing owners and managers of rental
dwellings, recommended that the final rule include a HUD-developed
occupancy standard, and state that in the absence of a State or local
occupancy code, owners or managers complying with the HUD standard would
be considered to be in compliance with the Fair Housing Act with respect
to the treatment of families with children. In the alternative, several
commenters recommended that HUD indicate in the final rule that owners
and managers of rental housing would be in compliance with the Fair
Housing Act if they developed and implemented occupancy standards which
are no less stringent than occupancy guidelines currently used in
connection with HUD-assisted housing programs.
While the statutory provision providing exemptions to the Fair
Housing Act states that nothing in the law limits the applicability of
any reasonable Federal restrictions regarding the maximum number of
occupants, there is no support in the statute or its legislative history
which indicates any intent on the part of Congress to provide for the
development of a national occupancy code. This interpretation is
consistent with Congressional reliance on and encouragement for States
and localities to become active participants in the effort to promote
achievement of the goal of Fair Housing. Further, while the Department
has developed occupancy guidelines for use by participants in HUD
housing programs, these guidelines are designed to apply to the types
and sizes of dwellings in HUD programs and they may not be reasonable
for dwellings with more available space and other dwelling
configurations than those found in HUD-assisted housing.
On the other hand, there is no basis to conclude that Congress
intended that an owner or manager of dwellings would be unable in any
way to restrict the number of occupants who could reside in a dwelling.
Thus, the Department believes that in appropriate circumstances, owners
and managers may develop and implement reasonable occupancy requirements
based on factors such as the number and size of sleeping areas or
bedrooms and the overall size of the dwelling unit. In this regard, it
must be noted that, in connection with a complaint alleging
discrimination on the basis of familial status, the Department will
carefully examine any such nongovernmental restriction to determine
whether it operates unreasonably to limit or exclude families with
children.
Several commenters requested advice regarding the application of the
Fair Housing Act to the sale of condominium and cooperative units and
mobile homes by private persons.
As indicated in the proposed rule, the prohibitions against
discrimination apply to all types of dwellings, including condominiums,
cooperatives and mobile homes. Thus, discrimination in the sale or
rental of such dwellings would be unlawful. However the Fair Housing
Act provides a limited exemption for the sale of certain single family
houses, and 100.10(c) describes this statutory exemption.
Specifically, this section indicates that the Fair Housing Act exempts
from the provisions prohibiting discrimination any single family house
sold by an owner, subject to certain conditions: the owner may not own
or have an interest in more than three such houses at any one time; in
the case of the sale of a single family house in which the owner was not
the most recent occupant prior to its sale, the owner may not have made
any other such sale within the preceding twenty-four months; and the
unit must be sold or rented without the use of a real estate broker or
agent, and without the use of any discriminatory advertisement.
Thus, the sale of a single family house, including the sale of a
condominium or cooperative unit or a mobile home, by an owner would not
be covered by the provisions of the Fair Housing Act, provided that the
limitations in 100.10(c) are met. However, it must be noted that the
exemption in this section applies only to the owner of such a dwelling,
and that the cooperative or condominium or mobile home park would be
prohibited from engaging in any discriminatory conduct with respect to
the dwelling notwithstanding the fact that the conduct of the owner was
not covered.
Section 100.20 provides definitions to be used for terms in part 100.
The definition of the term dwelling in the proposed rule stated that
the term include mobile home parks, condominiums and cooperatives. A
number of comments aruged that cooperatives, condominiums and mobile
homes are not dwellings within the meaning of the statutory definition
of the term. The Department disagrees. The statutory definition of a
dwelling is any building, structure, or portion thereof which is
occupied as, or designed or intended for occupancy as, a residence by
one or more families, and any vacant land which is offered for sale or
lease for the construction or location thereon of any such building,
structure, or portion thereof. This definition is clearly broad enough
to cover each of the types of dwellings enumerated in the proposed rule:
mobile home parks, trailer courts, condominiums, cooperatives, and
time-sharing properties. Several commenters suggested that the
definitions of the terms dwelling and person should be expanded to
provide some illustrations, particularly in the areas relating to
handicap and familiar status.
Other commenters recommended that the final rule should contain the
same definitions as those provided in the Fair Housing Act. These
commenters indicated that the addition of certain types of persons, or
certain examples of dwellings, could be viewed as indicating a
restriction not contemplated in the law.
The Department has determined that, on balance, the need to leave
open the extent and scope of the terms defined in the Fair Housing Act
outweighs the need to provide comprehensive examples in connection with
this rulemaking. As a result, the definitions of the terms dwelling and
person have been revised to read as set forth in the statute.
A number of commenters objected to the inclusion of the phrase is
about to occur in the definition of the term aggrieved person. These
commenters suggested that the addition of this phrase was inappropriate
in that it would make unlawful acts that have not occurred.
The definition of the term aggrieved person, as any person who claims
to have been injured by a discriminatory housing practice, or who
believes that he or she will be injured by a discriminatory housing
practice that is about to occur, is statutory and has not been changed
in the final rule. The phrase is about to occur applies to a number of
situations in which it is clear to a person that, if he or she takes an
action, he or she will be subjected to a discriminatory act which will
result in an injury. In such cases, the Fair Housing Act does not
require these persons to expose themselves to the injury involved with
the actual act of discrimination before filing a comlaint.
A number of commeters suggested that the definition of aggrieved
person be expanded to incorporate into the text of the rule the
statement in the preamble to the proposed rule that an aggrieved person
includes a fair housing organization as well as a tester or other person
who seeks information about the availability of dwellings to determine
whether discriminatory housing practices are occurring. In addition,
several commenters suggested that references to providers of group homes
for handicapped persons also be added to the definition.
As indicated above, the Department has determined that the
definitions in these regulations which are terms defined in the Fair
Housing Act should contain the statutory language. However, the
Department has consistently interpreted the provisions of the fair
housing law to permit the filing of a complaint by any person or
organization which alleges that a discrimintory housing practice has
occurred or is about to occur and which will result in an injury to
them.
The proposed rule defined the broker or agent as any person
authorized to perform an action on behalf of another person regarding
any matter related to the sale or rental of dwellings, including offers,
solicitations or contracts, and the administration of matters regarding
such offers, solicitations or contracts or any real estate-related
transactions. Several commenters pointed out that the Fair Housing Act
did not contain a definition of these terms. These commenters also
pointed out that the specific definition of these terms, for the purpose
of this regulation, could result in a limitation on the types of persons
who would be considered as brokers or agents in connection with any
other aspect of a housing transaction.
The Department did not intend, in the proposed rule, to establish a
universal definition of the terms broker or agent. However the
Department believes that since these terms appear in numerous places
throughout the rule, guidance is necessary with respect to the scope of
persons who are considered to be brokers and agents, particularly when
such persons are involved in the sale or rental of dwellings.
Therefore, a definition of the terms broker or agent has been retained
in the final rule. In order to avoid confusion as to whether persons
otherwise involved in housing transactions are acting as brokers or
agents, the definition has been revised to provide that a broker or
agent includes rather than means persons described in the definition.
Several persons indicated that the term person in the business of
selling or renting dwellings, which was included as a defined term in
the proposed rule, was never used in the text of the rule. These
commenters suggested that the definition of this term be deleted. These
commenters are in error, since the term appears in the exemption for the
sale or rental of a single family house by an owner, in
100.10(c)(l)(ii). The definition, which is taken from section 803(c) of
the Fair Housing Act, has been retained in the final rule.
The remaining definitions in the proposed rule have not been changed
in the final rule.
Section 100.50 of the rule states that subpart B provides the
Department's interpretation of the conduct made unlawful under section
804 and section 806 of the Fair Housing Act. In general, these
provisions describe conduct made unlawful with regard to any aspect
related to the sale, rental, or advertising of dwellings and to the
provisions of brokerage services and facilities in connection with the
sale or rental of dwellings.
Section 100.50(b) describes the specific conduct made unlawful in
relation to the sale or rental of dwellings. The conduct described in
this section forms the basis for the subsequent sections in subpart B.
Each of the subsequent sections provides illustrations of the scope and
applicability of the rule to specific sales, rental and brokerage
activities.
While the illustrations are set forth under the section of subpart B
which is most applicable to the discriminatory conduct described,
100.50 indicates that an action described in one section can constitute
a violation under other sections as well. In addition, the
illustrations of discriminatory conduct in this subpart are only
examples of discriminatory conduct that violates the Fair Housing Act
and are not intended to limit the scope of discrimination in housing
made unlawful under the Fair Housing Act.
With the exception of the revision of 100.50(b)(4), which was
discussed earlier in this preamble, no changes have been made in the
text of 100.50.
Section 100.60 describes the actions which constitutes a refusal to
sell or rent a dwelling when a bona fide offer is made or a refusal to
negotiate with persons for the sale or rental of a dwelling and which
are unlawful when they are taken because of race, color, religion, sex,
handicap, familiar status, or national origin.
As discussed earlier, the illustration contained in 100.60 (b) (5)
has been removed, and the subsequent illustration has been renumbered
accordingly. No other changes have been made in this section of the
final rule.
Section 100.65 provides that differences in the treatment of persons
in connection with the provision of services and facilities or in the
terms or conditions relating to the sale or rental of a dwelling because
of race, color, religion, sex, handicap, familial status, or national
origin constitute discriminatory housing practices.
The illustrations in 100.65(b) indicate that the coverage of this
section extends beyond restrictions or differences in a lease or sales
contract and the provision of different levels of maintenance. This
section provides that denials of, or limitations on the use of
privileges, services or facilities, relating to the sale or rental of a
dwelling because of race, color, religion, sex, handicap, familial
status, or national origin are also discriminatory housing practices.
In order to indicate the broad range of conduct which would
constitute different terms and conditions, the department has added
another illustration to this section ( 100.65(b)(5)) indicating that
denying or limiting services or facilities to persons based on a person
failing or refusing to grant sexual favors can constitute a
discriminatory housing practice.
A large number of comments received from persons owning or managing
rental housing and associations representing such persons disagreed with
the Department's interpretation of the Fair Housing Act as precluding
different security deposit requirements for persons with handicaps and
families with children. These comments generally took the position that
mobility impaired persons in wheelchairs and small children would cause
more damage to the interior of dwellings, thus justifying the need for
additional security to cover the exposure of the owner or manager to
make needed repairs when units occupied by such persons are vacated.
Since the Department has determined that in enacting the Fair Housing
Act, Congress sought to provide the same protections to persons with
handicaps and families with children as were made available to other
classes of protected persons, no change in the illustration in
100.65(a)(1) has been made.
A number of commenters indicated that they customarily provided for
reduced security deposits for elderly persons renting units and asked
whether continuing such practice would place them in violation of the
Fair Housing Act. As long as such a policy is based solely on age, is
available to persons if there are children in the family, and is not
otherwise operated in a manner that results in the exclusion of families
with children, such a practice would not be unlawful.
Another commenter indicated that charges for the provision of water,
electricity, refuse collection and other services have have been based
on the number of persons who occupy a dwelling and asked whether such a
policy would be permissible. In order to determine whether such a
policy is permissible, it would be necessary to understand more fully
why it was implemented and how it actually operates. Further, since
policies such as this would require review on a case by case basis, the
Department has determined that addressing this issue in the final rule
would not be appropriate.
As discussed earlier in the preamble, the illustration in
100.65(b)(2) has been removed, pending Congressional review of
pro-integration programs.
Section 100.70 provides that restricting or attempting to restrict
the housing choices of persons, or engaging in any conduct relating to
the sale or rental of a dwelling that otherwise makes unavailable or
denies dwellings, because of race, color, religion, sex, handicap,
familial status, or national origin, is a discriminatory housing
practice.
Section 100.70(c) describes actions which result in limitations of
housing choice that would violate the Fair Housing Act. These
practices, which are commonly referred to as steering, include practices
designed to discourage persons from seeking housing in a particular
community, neighborhood, or development because of race, color,
religion, sex, handicap, familial status, or national origin.
The illustrations in 100.70(c)(1), (d)(1) and (d)(2) of the proposed
rule have been removed in response to comments regarding Congressional
activity in the area of affirmative action to promote integrated
housing. In addition, it should be pointed out that the Department did
not intend in the illustration in 100.70(d)(2) of the proposed rule to
imply that language or sign interpreters were required with respect to
transactions involving a person who can not speak English or who has a
hearing or vision impairment. The remaining illustrations in the
section have been renumbered.
In the preamble discussion of 100.70 in the proposed rule, it was
stated, as an example, that a private developer's market-based decision
to include only efficiency apartments in a new development would not
violate the Fair Housing Act even though, as a practical matter, such
housing would be unavailable to families with children. A commenter
pointed out that it would be possible for a single parent and child to
live in an efficiency or one bedroom apartment, and that the example was
not illustrative of a situation in which housing would be unavailable to
families with children. The Department agrees with the commenter's
assertion. However, even though the example may have been flawed, the
Department wishes to reiterate that it does not interpret the Fair
Housing Act as precluding the construction of apartment buildings with
small units.
In order to clarify that an unlawful refusal to deal with brokers and
agents includes a refusal based on the race, color, religion, sex,
handicap, familial status, or national origin of the broker or agent as
well as the race, color, religion, sex, handicap, familial status, or
national origin of one or more of their clients the illustration in
100.70(d)(2) has been revised.
A number of commenters suggested that the proposed rule did not
address specifically situations in which families are discouraged from
obtaining housing because of the presence or possible presence of
children. As discussed earlier in this preamble, the illustrations
provided in the final rule are intended to described discriminatory
housing practices generally and are not intended to be exhaustive
descriptions of all conduct made unlawful under the Fair Housing Act.
For this reason, the department has determined not to add a separate
illustration with respect to steering conduct based on familial status.
Further, the illustrations in 100.70(c) (2) and (3) indicate conduct
designed to discourage persons from obtaining a dwelling by exaggerating
drawbacks or by communicating that certain persons are incompatible with
existing residents is unlawful. The department believes that these
illustrations make it clear that representing that certain housing would
not be appropriate for, or would not be available to families with
children would be prohibited under the Act.
Several commenters also noted that the proposed rule did not address
discriminatory local land use, health and safety, and zoning rules that
eliminate community housing opportunities. As indicated in the preamble
discussion relating to subpart D of this rule, the department has
determined not to publish rules regarding issues relating to local
government exercise of police powers in the areas of land use and
zoning. However, as discussed in the preamble to the proposed rule,
discrimination in the provision of those services and facilities which
are prerequisites to obtaining dwellings, including refusals to provide
municipal services or adequate property or hazard insurance because of
race, color, religion, sex, handicap, familial status or national origin
render housing unavailable in violation of the Fair Housing Act. In
order to indicate that the refusal to provide, or the provision of
different municipal services or facilities and property or hazard
insurance for dwellings because of race, color, religion, sex, handicap,
or national origin can constitute a violation of the otherwise make
unavailable or deny provisions in the Act, the language in 100.70(d)
has been revised and a new illustration ( 100.70(d)(4)) has been added.
In addition, the illustration relating to discriminatory advertisements
in 100.70(d)(6) of the proposed rule has been removed, since such
practices are more appropriate to the conduct made unlawful under
100.75 of the rule.
Although the Fair Housing Advertising Regulations (24 CFR part 109)
apply to all advertising for dwellings, the Department believes that it
is appropriate, in connection with regulations describing prohibited
conduct related to the sale or rental of housing, to include additional
guidance as to prohibited conduct regarding this specific area. Section
100.75 describes prohibited conduct related to advertisements, notices
and statements by persons engaged in the sale or rental of housing or in
the printing and publishing of such advertisements, notices and
statements.
No comments raised substantial issues regarding this provision, and
it has been included in the final rule as it was proposed.
Section 100.80 states that the provision of inaccurate or untrue
information about the availability of dwellings for sale or rent because
of race, color, religion, sex, handicap, familial status, or national
origin constitutes a violation of the Fair Housing Act. A person who
receives the inaccurate or untrue information need not be an actual
seeker of housing in order to be the victim of a discriminatory housing
practice under this section.
A number of commenters requested that the final rule specifically
indicate that the provision of inaccurate information to testers because
of race, color, religion, sex, handicap, familial status, or national
origin is unlawful under the Fair Housing Act. These commenters also
recommended that the final rule should state that testers who are
provided inaccurate information are persons aggrieved by a
discriminatory housing practice who may file a complaint with the
Secretary.
In response to these comments, an additional illustration has been
added to this section which indicates that the provision of false or
inaccurate information regarding the availability of dwellings to any
person, including testers, because of race, color, religion, sex,
handicap, familial status, or national origin would be unlawful under
the Fair Housing Act.
Blockbusting consists of any effort, for profit, to induce or attempt
to induce a person to sell or rent a dwelling by representations
regarding the entry into a neighborhood of a person or persons of a
particular race, color, religion, sex, handicap, familial status, or
national origin, or with a handicap. Proposed 100.85(b) stated that it
was not necessary that there be in fact a profit realized as a result of
blockbusting, as long as the availability of profit was a factor
involved in the blockbusting activity. A number of commenters indicated
that the term blockbusting was archaic and could be misread as meaning
only efforts to get people to move out of a block. In addition, these
commenters suggested that the language as long as the availability of
profit was a factor would be confusing, since most law in the area has
focused on whether a profit-oriented business is involved as well as
whether the actions were taken for profit.
The description of the conduct made unlawful under 100.85 follows
the statutory prohibitions against discrimination under section 804(e)
of the Fair Housing Act. These practices have generally been referred
to as blockbusting, and the term appears in the statute. The specific
activities made unlawful under section 804(e) would not be limited
merely because of the use of the term blockbusting. Therefore, the
Department has determined that, while another more current term also may
aptly describe the type of activities covered by this section (e.g.
panic selling and panic buying), changing the terminology in this area
could result in substantial confusion as to whether the change in
accepted terminology implied any change in the coverage of the
provision. In addition, the Department believes that the language in
the proposed rule regarding profit as a factor in unlawful blockbusting
activities accurately describes the breadth of activities covered.
Because the illustration in 100.85(c)(3) could be misinterpreted as
implying that blockbusting activity involving uninvited solicitations
for listings would violate the Act only if different or more intensive
solicitation activity were involved, this illustration has been removed
in the final rule. However, in order to make clear that such practices
can constitute discriminatory housing practices, the illustration in
100.85(c)(1) has been revised to include a specific reference to
uninvited solicitation for listings which would constitute a violation
of the Act.
Section 100.90 reflects the prohibition in the Fair Housing Act
against denying any person access to, or membership or participation in,
any multiple listing service, real estate brokers' organization or
facility relating to the business of selling or renting dwellings on
account of race, color, religion, sex, handicap, familial status, or
national origin. This section also states that it is unlawful to
discriminate against any person in the terms or conditions of such
access, membership or participation because of race, color, religion,
sex, handicap, familial status, or national origin. Several commenters
requested that the Department provide an additional example of unlawful
conduct relating to restrictions on access to service through area
limitations. In response to these commenters, a new illustration
describing unlawful discrimination in establishing geographic boundaries
or office or residence requirements because of race, color, religion,
sex, handicap, familial status, or national origin has been added to
this section.
Section 100.110 indicates the general prohibition against
discrimination in the availability of, or in the terms or conditions
imposed in, any residential real estate-related transaction because of
race, color, religion, sex, handicap, familial status, or national
origin. The prohibitions against discrimination in subpart C apply to
any person or other entity whose business includes engaging in
residential real estate-related transactions.
Several commenters recommended that the statement of general
prohibition against discrimination in residential real-estate related
transactions incorporate by reference, into the Fair Housing Act
regulations, the regulatory implementation of the Equal Credit
Opportunity Act by Federal financial regulatory agencies.
The Equal Credit Opportunity Act (15 U.S.C. 1691) makes it unlawful,
in part, to discriminate against persons on the basis of race, color,
religion, sex, national origin, marital status or age in any aspect
related to a credit transaction.
The Equal Credit Opportunity Act provides for administrative
enforcement by specified Federal financial regulatory agencies and
empowers the Federal Trade Commission to provide for overall enforcement
of the Act.
HUD has no enforcement authority under the Equal Credit Opportunity
Act and no enforcement responsibility with respect to implementing
regulations published by the Federal financial regulatory agencies under
the Equal Credit Opportunity Act. As a result, the inclusion of such
regulations in this section by reference would have no legal effect.
This comment has been rejected.
This section incorporates into part 100 the definition of the term
residential real estate-related transaction contained in section 6(c) of
the Fair Housing Amendments Act of 1988.
Section 100.120 states that it is unlawful for a person or entity
engaged in residential real estate-related transactions to discriminate
against persons because of race, color, religion sex, handicap, familial
status, or national origin in making available loans or other financial
assistance relating to dwellings. The prohibitions against
discrimination in the making of loans and in the provision of other
financial assistance reflects the language relating to discrimination in
the financing of housing under title VIII of the Civil Rights Act of
1968.
In connection with the development of 100.120, the Department has
been guided by its experience in connection with the past administration
and enforcement of title VIII. Since the definition of the term
residential real estate-related transactions covers loans and other
financial assistance which are secured by residential real estate, the
defininition expands the types of financing transactions which were
previously covered by the nondiscrimination requirements of title VIII.
However, there is nothing in the legislative history of the Fair Housing
Amendments Act of 1988 to indicate that the Congress intended that loans
and other assistance secured by a dwelling be treated any differently
than loans for the purchase, construction, improvement, repair, or
maintenance of a dwelling. Thus, this section applies equally to both
types of loans.
As discussed earlier in this preamble, the illustrations of the
application of this section that were contained in 100.120(b)(1), (3),
(4), (5), (6), and (7) of the proposed rule have been removed, pending
Congressional action on the issue of pro-integration activities.
The principal change in the nature of the conduct made unlawful
regarding loans and other assistance with respect to dwellings is the
inclusion of activities relating to the purchase of such loans. In
prohibiting discrimination in the purchasing of loans, Congress extended
the coverage of the Fair Housing Act to conduct in the secondary
mortgage market. However, the House Report on the Fair Housing
Amendments Act of 1988 states, with regard to this expanded coverage,
''The Committee does not intend that those purchasing mortgage loans be
precluded from taking into consideration factors justified by business
necessity (including requirements of Federal law) which relate to the
financial security of the transaction or the protection against default
or diminution in the value of the property.'' House Report at 30.
Section 100.125 sets forth the new coverage of secondary mortgage
market activities under the Fair Housing Act. Since the protections
provided under this section are new, the illustrations of discriminatory
housing practices in this section focus on general areas of unlawful
conduct under the Act. In this respect, the illustrations indicate that
conduct made unlawful with regard to secondary mortgage market
activities includes actions taken with respect to the purchase and
pooling of mortgage loans as well as with respect to the terms and
conditions of the sale of securities issued on the basis of such loans.
Commenters on this section were in general agreement with the overall
content of the provisions in the proposed rule but recommended that
certain language in the House Report, which they pointed out was also
used by Senator Kennedy in a colloquy with Senator Sasser on the floor
of the Senate, see 134 Cong. Rec. S10549 (daily ed. Aug. 2, 1988), be
included in the text of the rule. Since there is a clear indication of
congressional intent with respect to transactions involving the
purchasing of loans, language relating to factors justified by business
necessity have been added. Thus, this provision would not preclude
considerations employed in normal and prudent transactions provided that
no such factor may in any way relate to race, color, religion, sex,
handicap, familial status or national origin.
One commenter representing mortgage bankers indicated that the term
purchasing of housing loans in the mortgage banking business could
involve a number of different and unrelated types of activities. This
commenter described mortgage loan activities engaged in by mortgage
bankers as involving the originating, selling and servicing of
mortgages. This commenter pointed out that, in mortgage banking, the
term purchasing has been used loosely to describe the purchase of rights
to service mortgages. In this process, the equitable interest in the
loan remains unaffected but the legal title to the loan and the right to
service the loan and retain servicing fees has been purchased. Based on
this description, the commenter indicated its belief that such
transactions would be outside the coverage of the Fair Housing Act
because such transactions did not involve any financing decision by the
purchaser (since the loan had been closed prior to the purchase of
servicing rights) and suggested that the final rule define the term
purchase in a manner to exclude such transactions from the Fair Housing
Act.
Section 805 of the Civil Rights Act of 1968 made it unlawful ''to
deny a loan or other financial assistance to a person applying therefor
* * * or to discriminate against him in the fixing of the amount,
interest rate, duration, or other terms or conditions of such loan or
other financial assistance * * *''
In amending this section of the Fair Housing Act, Congress revised
the thrust of the prohibitions covered under Section 805 to protect
persons from discrimination in residential real estate-related
transactions which were defined to include ''the purchasing of loans * *
* secured by residential real estate.''
Under the Fair Housing Act, the nature of discriminatory conduct no
longer can be limited to matters relating to the actual provision of
financing. Further, the fact that the interest transferred in the
servicing transaction involves only the legal title to the loans would
not be a basis for concluding that there has not been a residential real
estate-related transaction. For these reasons the recommendation in the
comment has not been adopted in the final rule.
Section 100.130 states that it is unlawful to impose different terms
or conditions for the availability of a loan or other financial
assistance for a dwelling or which is, or will be secured by a dwelling
because of race, color, religion, sex, handicap, familial status, or
national origin.
As discussed earlier in the preamble, the illustrations proposed in
100.130(b) (1) and (4) have been removed from the final rule in order to
avoid anticipating the results of ongoing congressional analysis of
issues relating to pro-integrative programs. Other illustrations and
the general provision regarding discriminatory conduct under this
section were not the subject of significant comment and have been
retained in the final rule.
A substantial number of commenters had significant concerns relating
to the issue of ''redlining'' as it was discussed in the preamble to the
proposed rule. Much of the concern relating to this discussion focused
on the statement that financial transactions in many cases involve
''legitimate business judgments and complex financial, economic and
social issues and problems''. Many of the commenters asserted that this
statement could be read to indicate that proof of actual intent to
discriminate would be required in order to establish unlawful redlining
under the Fair Housing Act. Other commenters indicated that the quoted
language could be read as creating other considerations beyond those
necessary in the business of making a decision on a loan (i.e., economic
and social issues and problems) which have not been traditionally
evaluated in the investigation of fair housing complaints and which are
not relevant to the making of loans.
The Department agrees with the commenters that economic and social
issues and problems are not relevant in connection with the review and
analysis of cases under the Fair Housing Act. However, the Department
does not believe that the reference to legitimate business judgments
implies that proof of intent to discriminate is or is not required in
redlining cases. The language in the preamble was intended to indicate
that, in the decision to provide loans or other financial assistance, a
lender may consider factors justified by business necessity, provided
that such factors are unrelated to race, color, religion, sex, handicap,
familial status, or national origin. This articulation is consistent
with the preamble discussion relating to the purchasing of loans and the
revised text of 100.125 of the final rule.
Several commenters urged that the prohibition against redlining be
included in the rule text. However, in view of the removal of the
illustrations in 100.130(1) (b) and (4), the Department has determined
that it would not be appropriate to add such an illustration.
The prohibitions against discrimination because of race, color,
religion, sex, handicap, familial status, or national origin in
connection with residential real estate-related transactions apply to
the selling, brokering and appraising of residential real property.
Section 100.135(a) of the proposed rule stated that it is unlawful for
any person whose business includes engaging in the selling, brokering or
appraising of residential real property to discriminate against any
person in making available such services, or in the terms or conditions
of such services, because of race, color, religion, sex, handicap,
familial status, or national origin. Paragraph (a) of the final rule
has been revised for the sake of clarity. It states that it is unlawful
for any person or other entity whose business includes engaging in the
selling, brokering or appraising of residential real property to
discriminate against any person in making available such services or in
the performance of such services because of race, color, religion, sex,
handicap, familial status or national origin.
For the purpose of this rule, the term appraisal means an estimate or
opinion of the value of a specified residential real property made in a
commercial context in connection with the sale, rental, financing or
refinancing of a dwelling or with any other residential real
estate-related transaction, whether the appraisal is oral or written, or
transmitted formally or informally.
The Fair Housing Act provides a specific exemption related to
appraisals, stating that nothing in the Act prohibits a person in the
business of furnishing appraisals of real property to take into
consideration factors other than race, color, religion, sex, handicap,
familial status, or national origin. However, the Department indicated
in the preamble to the proposed rule its position that consideration of
any factor because of race, color, religion, sex, handicap, familial
status, or national origin does constitute a discriminatory housing
practice.
Two professional organizations representing appraisers agreed with
the description of the coverage of appraisal practices but suggested
that the language used in the illustrations could be read as precluding,
in certain instances, the use of observable, verifiable data that affect
the market value of property in a particular area, such as the proximity
of certain facilities or services. In this respect, they suggested that
the illustrations in this section should be revised to reflect more
clearly the fact that appraisers can consider any factors other than
race, color, religion, sex, handicap, familial status, or national
origin in the appraisal of residential real property.
The illustrations in 100.135(d) (1), (2), and (3) have been removed
in the final rule, pending the result of congressional action with
respect to the issue of pro-integrative activities, and since the
regulation incorporates the statutory language on the use of other
factors. In addition, paragraph (d) has been shortened and revised so
that it will not inadvertently prohibit appraisers from considering
factors which may lawfully be considered. Paragraph (d) of the final
rule states that practices which are unlawful under 100.135 include,
but are not limited to, using an appraisal of residential real property
in connection with the sale, rental, or financing of any dwelling where
the person knows or reasonably should know that the appraisal improperly
takes into consideration race, color, religion, sex, handicap, familial
status or national origin. The word ''improperly'' was added so that it
will be absolutely clear that an appraisal may, for example, consider an
adaptable physical environment as a positive factor in estimating the
value of residential real property. However, the Department wishes to
stress that it would not be proper or lawful, for example, to consider
factors such as race, sex or national origin in appraising residential
real property.
These commenters also indicated that the use of the term commercial
context in 100.135(b) would lead to confusion within the appraisal
industry as to the type of structures to which the nondiscrimination
requirements in the Fair Housing Act apply.
The use of the term commercial context in the regulation was intended
to indicate that the situations covered were directly related to conduct
of the business of appraising and were not intended to diminish the
rights of persons with respect to their private rights under the First
Amendment. To avoid the possibility of confusion in this area, the word
''business'' has been substituted for ''commercial'' in this section.
Section 100.200 is unchanged from the proposed rule. It explains
that the purpose of subpart D is to effectuate the provisions concerning
handicap in the Fair Housing Amendments Act of 1988. No comments were
received on 100.200.
Section 100.201 proposed definitions to be used for terms used only
in subpart D. The definitions in subpart A also apply to subpart D.
Substantial comments were received on the definitions in the proposed
rule that are discussed below. The other definitions have not been
modified.
An editorial change has been made to the final definition of
accessible. The proposed rule stated that a public or common use area
that complies with the appropriate requirements of ANSI A117.1 or
another standard that affords handicapped persons access essentially
equivalent to or greater than that required by ANSI A117.1 is
accessible. The final rule states more simply that a public or common
use area that complies with the appropriate requirements of ANSI
A117.1-1986 or a comparable standard is accessible. The final sentence
of the definitions of accessible route and building entrance on an
accessible route have also been changed for the sake of consistency.
ANSI A117.1 means the American National Standard for buildings and
facilities providing accessibility and usability for physically
handicapped people. The American National Standards Institute, Inc.
(ANSI) is a private, national organization that publishes standards on a
wide variety of subjects. The Secretariat that developed the 1986
edition of the ANSI standard was composed of the National Easter Seal
Society, the President's Committee on Employment of the Handicapped, and
HUD. The current version of these standards was published in 1986 and
is referred to as ANSI A117.1-1986.
The preamble of the proposed rule explained that whenever ANSI A117.1
is used in subpart D, the reference is to the most recently published
edition of ANSI A117.1 as of the date bids for construction of a
particular building are solicited. A number of commenters suggested
that this statement should appear in the text of the regulation. Other
commenters objected that an ''open-ended'' reference to future ANSI
standards represents an unlawful delegation of the Department's
rulemaking authority. According to these commenters, HUD should refer
to a specific edition of the AMSI standards in its rule and should
incorporate future editions only through rulemaking proceedings.
Because of this concern the definition of ANSI A117.1 in the final rule
is defined as the 1986 edition of ANSI (ANSI A117.1-1986.). The
Department intends to propose to amend the definition of ANSI as future
editions of ANSI are published.
Building means a structure, facility or the portion thereof that
contains or serves one or more dwelling units. For example, a structure
that serves one or more dwelling units includes a structure containing
recreational facilities for residents of an apartment complex. A
substantial number of comments were received on this definition as it
applies to townhouses. The application of subpart D to townhouses is
discussed in connection with the definition of the term covered
multifamily dwellings. The definition of building has not been changed
from the proposed rule.
Common use areas means rooms, spaces or elements inside or outside a
building that are made available for the use of residents of a building
or the guests thereof. The proposed rule cited as examples of common
areas hallways, lounges, lobbies, laundry rooms, refuse rooms and
passageways among and between buildings. A number of commenters
suggested that mailrooms and recreational areas be added to this list.
Other commenters, including the National Apartment Association, argued
that the definition should not include public amenities such as swimming
pools, jacuzzis, hot tubs, saunas or exercise facilities. They suggest
that the legislative history is silent with respect to such facilities.
The definition of common use areas in the rule is a close adaptation
of the definition of the term common use in ANSI A117.1-1986. Since the
Act makes specific reference to ANSI, the Department believes that
Congress intended that the ANSI definition apply. Furthermore, the
House Report states that the Act's requirement that the public and
common use portions of covered multifamily dwellings be readily
accessible to and usable by handicapped persons ''means that hallways,
lounges, lobbies, passageways among and between buildings and other
common areas and facilities not contain barriers to entrance and use by
handicapped persons.'' House Report at 26 (emphasis supplied).
Mailrooms and recreational areas can fairly be read as falling within
this description. Therefore, these two additional examples have been
added to the list of common use areas because they fall within the
definition. The list in the final rule is illustrative and not
exclusive. In this regard, the Department notes that the House Report
states that the Act does not require that all entrances to public and
common use areas be made accessible to handicapped persons. Rather, the
Act requires that ''one regular entrance to such areas be accessible to
handicapped persons for the same purpose for which it is used by
others.'' Id. Further, the Act does not require that amenities be
installed. ''The intent of the language is that only if such amenities
are provided, then they must be readily accessible to and usable by
handicapped persons.'' Id.
A covered multifamily dwelling means buildings consisting of 4 or
more dwelling units if such buildings have one or more elevators; and
ground floor dwelling units in other buildings consisting of 4 or more
dwelling units. The preamble of the proposed rule explained that a
single structure consisting of 5 two-story townhouses is not a covered
multifamily dwelling if the units do not have elevators, because the
entire dwelling unit is not on the ground floor. In contrast, a
single-story townhouse is a covered multifamily dwelling. A number of
commenters agreed with this interpretation; some reasoned that
townhouses are not multifamily buildings because each unit typically has
a separate outside entrance.
Other commenters objected to this interpretation, arguing that
townhouses are covered because Congress intended that there be a broad
interpretation of the Act. They believe that Congress intended to
exempt otherwise covered dwellings from accessibility requirements only
if no part of the dwelling unit touched the ground floor. These
commenters cited in support of their position a statement made by
Senator Kennedy during the Senate debate on the Act, in which he
referred to the need to make the ground floor of multi-level housing
accessible so that friends and relatives with mobility impairments can
visit. Specifically, Senator Kennedy stated as follows: ''This
legislation does not affect the single-family home. What we are talking
about is the multifamily dwelling with four or more units. You only
have to meet these very simple (accessibility) requirements if you
actually have an elevator, or, if you do not have an elevator, only the
bottom floor unit is covered.'' 134 Cong. Rec. S. 10538 (daily ed.
August 2, 1988) (emphasis added). Senator Kennedy's later reference to
the importance of making units accessible so that friends and relatives
can visit was in response to Senator Humphrey's proposal to limit the
scope of the Act's accessibility requirements to 20 percent of the
units. Id. The Department believes that the Senate debate referenced by
these commenters supports its interpretation because Senator Kennedy
spoke of bottom floor units. The first floor of a multi-story townhouse
is not a bottom floor unit because the entire unit is not on the bottom
or ground floor.
Most significantly, the accessibility requirements of the Act itself
extend only to ground floor units in buildings without elevators. The
commenters' position would require reading ''ground floor units'' as
''ground floor portions of units.'' The Act also requires that all
premises within covered multifamily dwellings have an accessible route
into and through the dwelling. A ''covered'' townhouse of more than one
story would in most cases require an elevator in order to provide an
accessible route throughout. This result would make the Act's
distinction between buildings with elevators and buildings without
elevators meaningless. Beyond this, the House Report (at p. 25) makes
it clear that the Act was not intended to require the installation of
elevators.
For these reasons the Department continues to believe that townhouses
consisting of more than one story are covered only if they have
elevators and if there are four or more such townhouses. Accordingly,
the definition of covered multifamily dwellings in the final rule is
unchanged from the proposed rule.
Dwelling unit was defined in the proposed rule as ''any building,
structure or portion thereof, which is occupied as, or designed or
intended for occupancy as, a residence by one person or family. 53 FR
45029 (November 7, 1988). A significant number of comments, including
comments submitted by Senators Kennedy and Specter and Representative
Edwards, were concerned that the phrase one person or family would be
too restrictive in that individuals with handicaps may require a
personal attendant to live with them, or may find it beneficial to live
with another individual, who is or is not also handicapped. For
example, an individual with a disability may live with an attendant who
is not a member of his or her family. Other commenters were concerned
that the definition of dwelling unit is too similar to the definition of
dwelling in 100.20. They found the similarity confusing. In order to
accommodate these concerns the definition of dwelling unit has been
revised substantially in the final rule. The final rule defines
dwelling unit as ''a single unit of residence for a family or one or
more persons.'' The definition in the final rule also contains a more
comprehensive list of examples of dwelling units in order to further
clarify the types of units that may be covered. Examples of dwelling
units include a single family home and an apartment unit within an
apartment building. In other types of dwellings (as defined in 100.20)
in which sleeping accommodations are provided but toileting or cooking
facilities are shared by occupants of more than one room or portion of
the dwelling, rooms in which people sleep are dwelling units. For
example, dormitory rooms and sleeping accommodations intended for
occupancy as a residence in shelters for homeless persons are dwelling
units.
First occupancy means a building that has never before been used for
any purpose. This definition is unchanged from the proposed rule. A
number of commenters stated that HUD should state explicitly that
substantial rehabilitation is not covered. The Department believes that
the definition clearly excludes a substantially rehabilitated building
because one could not reasonably argue that such a building ''has never
before been used for any purpose.''
Ground floor means any floor of a building with a building entrance
on an accessible route. A building may have more than one ground floor.
This definition was the subject of considerable public comment. Many
commenters interpreted the proposed rule as requiring that covered
buildings have more than one ground floor. This is not what the
Department proposed. Section 100.205(a) requires that covered
multifamily dwellings for first occupancy after March 13, 1991, be
designed and constructed to have at least one building entrance on an
accessible route unless it is impractical to do so because of the
terrain or unusual characteristics of the site. The regulation does not
require that any building have more than one ground floor; a covered
building with one building entrance on an accessible route (i.e., ground
floor) satisfies the requirements of the regulation with regard to
accessibility to the building. However, if a covered building in fact
has more than one floor with a building entrance on an accessible route,
then the rule requires that the units on each floor with an accessible
building entrance satisfy the Act's accessibility requirements.
Other commenters correctly interpreted the proposed rule as requiring
that there be one building entrance on an accessible route but
nonetheless argued that even if a particular building, because of the
terrain, has accessible entrances to more than one floor, the units on
only one such floor should be required to meet the Act's accessibility
requirements. The Department does not believe that Congress intended to
exempt from the Act's accessibility requirements dwelling units that are
on a floor of a building that can be entered through a building entrance
on an accessible route. If a building does not have an elevator, then
all of the units on accessible floors must meet the Act's accessibility
requirements.
Definition of Handicap. The term handicap means, with respect to a
person, a physical or mental impairment which substantially limits one
or more of such person's major life activities; a record of having such
an impairment; or being regarded as having such an impairment.
However, this term does not include current, illegal use of or addiction
to a controlled substance. The term also does not include an individual
solely because that individual is a transvestite. Paragraphs (a), (b),
(c) and (d) of the definition clarify the key phrases in the definition:
physical or mental impairment; major life activities; has a record of
such an impairment; and is regarded as having an impairment.
A substantial number of comments were received on the definition of
handicap in the proposed rule. They fall generally into two different
groups.
One group of commenters, including the National Association of
Homebuilders and the National Association of Realtors, requested that
paragraphs (a), (b), (c) and (d) of the definition in the proposed rule
be deleted. These commenters are concerned that these paragraphs
broaden the definition of handicap far beyond the intent of Congress as
expressed in the plain language of the statute. Moreover, they are
concerned that the definition of handicap is so broad that housing
providers will be powerless to exclude handicapped persons with a
tendency toward antisocial or dangerous behavior.
With the exception of current, illegal use of or an addiction to a
controlled substance, the definition of handicap in the Act is very
similar to the definition of the term individual with handicaps in the
Rehabilitation Act of 1973. 29 U.S.C. 706. Congress intended that the
definition of handicap in the Fair Housing Amendments Act be interpreted
in a manner that is consistent with regulations interpreting the meaning
of the similar provision found in section 504 of the Rehabilitation Act
of 1973, 29 U.S.C. 794. House Report at 22; 134 Cong. Rec. S10492
(daily ed. August 1, 1988) (statement of Sen. Chafee); 134 Cong. Rec.
H4689 (daily ed. June 23, 1988) (statement of Rep. Pelosi); 134 Cong.
Rec. H4612 (daily ed. June 22, 1988) (statement of Rep. Schroeder).
Section 504 of the Rehabilitation Act prohibits discrimination
against otherwise qualified individuals with handicaps in programs or
activities receiving federal financial assistance as well as in
federally conducted programs and activities. The Department of
Justice's section 504 coordination regulation for federally assisted
programs is at 28 CFR part 41. HUD's section 504 regulation for
federally assisted programs is at 24 CFR part 8. Paragraphs (a), (b),
(c) and (d) of the definition of handicap closely follow the definitions
of these key phrases used in regulations interpreting section 504. In
light of the clear legislative history indicating that Congress intended
that the definition of handicap be fully as broad as that provided by
the Rehabilitation Act, the Department does not believe that it would be
appropriate to delete paragraphs (a), (b), (c) and (d) from the
definition.
Some of the commenters who requested this change appear erroneously
to assume that a housing provider must admit any person who has a
handicap as defined in the rule. This is not the case. Just because an
applicant for housing has a handicap does not preclude a housing
provider from lawfully rejecting that particular applicant. For
example, alcoholism is considered a physical or mental impairment and
therefore alcoholics frequently will fall within the definition of
handicap. However, the fact that alcoholism may be a handicap does not
mean that housing providers must ignore this condition in determining
whether an applicant for housing is qualified. On the contrary, a
housing provider may hold an alcoholic to the same standard of
performance and behavior (e.g., tenant selection criteria) to which it
holds others, even if any unsatisfactory performance or behavior is
related to the applicant's alcoholism. In other words, while an
alcoholic may not be rejected by a housing provider because of his or
her alcoholism, the behaviorial manifestations of the condition may be
taken into consideration in determining whether or not he or she is
qualified.
Thus, a housing provider may judge handicapped persons on the same
basis it judges all other applicants and residents. A housing provider
may consider for all applicants, including handicapped applicants, such
concerns as past rental history, violations of rules and laws, a history
of disruptive, abusive, or dangerous behavior. However, a housing
provider may not treat handicapped applicants or tenants less favorably
than other applicants or tenants. For example, a housing provider may
not presume that applicants with handicaps are less likely to be
qualified than applicants without handicaps.
Another group of commenters asked HUD to clarify that persons who are
infected with the Human Immunodeficiency Virus (''HIV'' or ''AIDS
virus'') are understood to be persons with a handicap protected by the
Act. The legislative history of the Act contains numerous statements
that HIV-infected individuals are covered by the Act. See House Report
at 22, n. 55; 134 Cong. Rec. H4922 (daily ed. June 29, 1988)
(statement of Rep. Owens); 134 Cong. Rec. at H4221 (daily ed. June 29,
1988) (statement of Rep. Waxman); 134 Cong. Rec. H4612 (daily ed. June
22, 1988) (statement of Rep. Schroeder); 134 Cong. Rec. H4613 (daily
ed. June 22, 1988) (statement of Rep. Coelho); 134 Cong. Rec. H4689
(daily ed. June 23, 1988) (statement of Rep. Pelosi). In addition, the
Office of Legal Counsel of the U.S. Department of Justice issued an
opinion dated September 17, 1988 concluding that section 504 of the
Rehabilitation Act of 1973 protects symptomatic and asymptomatic
HIV-infected individuals against discrimination in any covered program
or activity on the basis of any actual, past or perceived effect of HIV
infection that substantially limits any major life activity, so long as
the HIV-infected individual is ''otherwise qualified'' to participate in
the program or activity, as determined under the otherwise qualified
standard set forth by the U.S. Supreme Court in School Board of Nassau
County v. Arline, 107 S. Ct. 1123 (1987) (Arline). This opinion is
significant because, as previously noted, the legislative history of the
Fair Housing Amendments Act makes it clear that Congress intended the
same definition of the term handicap that applies under section 504 to
apply to the Fair Housing Act. In light of these authorities, the
Department has added ''Human Immunodeficiency Virus infection'' to the
illustrative list of ''physical or mental impairments'' in the final
rule's definition of handicap.
Interior means the spaces, parts, components or elements of an
individual dwelling unit. The comments received relative to this
definition are discussed in connection with comments received on
100.203 of the proposed rule relating to modifications of existing
premises. The definition of interior has not been changed from the
proposed rule.
Premises means the interior or exterior spaces, parts, components or
elements of a building or a dwelling unit, including individual dwelling
units and the public and common use areas of a building. The comments
received relative to this definition are discussed in connection with
the comments received on 100.203 of the proposed rule relating to
modifications of existing premises. The definition has not been changed
from the proposed rule.
Section 100.202 contains the general prohibitions against
discrimination because of handicap and serves as the analytical
foundation for the remaining sections of the subpart. The remaining
sections of subpart D explain in greater detail what conduct is
discriminatory. Thus, whenever a person has violated any of the
subsequent sections of subpart D, that person has also violated 100.202
Paragraph (a) is unchanged from the proposed rule. It restates the
Fair Housing Amendments Act's mandate of nondiscrimination in the sale
or rental of dwellings. Under paragraph (a), it is unlawful to
discriminate against any person in the sale or rental of, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter
because of a handicap of that buyer or renter, a person residing in or
intending to reside in that dwelling after it is so sold, rented, or
made unavailable, or any person associated with that buyer or renter.
Paragraph (b) is also unchanged from the proposed rule. It restates
that Act's ban of discrimination in the terms, conditions, or privileges
of the sale or rental of a dwelling. Paragraph (b) makes it unlawful to
discriminate against any person in the terms, conditions, or privileges
of the sale or rental of a dwelling, or in the provision of services or
facilities in connection with such dwelling because of a handicap of
that buyer or renter, a person residing in or intending to reside in
that dwelling after it is so sold, rented, or made available, or any
person associated with that person.
Land Use and Zoning Rules and Practices. The thrust of the public
comments received on the general prohibitions in paragraphs (a) and (b)
is that the rule does not address explicitly discriminatory local land
use, health and safety, and zoning rules that ''eliminate'' community
housing opportunities for persons with disabilities. These commenters
ask that the Department add to the regulation a prohibition on rules and
practices which establish unique requirements for housing for persons
with disabilities and which create barriers to the development of such
housing. These commenters correctly point out that the House Report
discusses such matters in considerable detail. Specifically, the House
Report states that the prohibition against discrimination against those
with handicaps was intended to apply to zoning decisions and practices:
''The Act is intended to prohibit the application of special restrictive
covenants, and conditional or special use permits that have the effect
of limiting the ability of such individuals to live in the residence of
their choice in the community.'' House Report at 24.
The Department does not believe that it would be appropriate to
address the issue in these regulations. This concern is heightened
since, under section 810(g)(2)(C) of the Fair Housing Act, as amended,
if the Secretary determines that a matter involves the legality of any
State or local zoning or other land use law or ordinance, the Secretary
shall immediately refer the matter to the Attorney General for
appropriate action under section 814 of the Fair Housing Act. Since the
Secretary has no power to issue a charge of discrimination in matters
involving zoning or other land use law, the Department believes that it
is inappropriate to address this specific issue in these regulations.
However, it should be noted that failing or refusing to provide
municipal services for dwellings or providing such services differently
because of race, color, religion, sex, handicap, familial status or
national origin is a violation of 100.70(c)(6) of these regulations.
Applicant Selection Inquiries. Paragraph (c) is an adaptation of the
''pre-employment inquiries'' provision in the section 504 regulations;
it prohibits inquiries to determine whether an applicant for a dwelling,
a person intending to reside in that dwelling after it is sold, rented
or made available, or any person associated with that person has a
handicap or to make inquiry as to the nature or severity of a handicap
of such person.
Paragraph (c) also states that it does not prohibit five types of
inquiries, provided these inquiries are made of all applicants, whether
or not they have handicaps. Paragraph (c) resulted in considerable
public comment.
Paragraph (c)(1) clarifies that a housing provider may inquire into
an applicant's ability to meet the requirements of ownership or tenancy.
Commenters generally considered this particular inquiry helpful in
providing guidance to both housing providers and housing applicants.
Paragraph (c)(2) states that paragraph (c) does not prohibit inquiry
to determine whether an applicant is qualified for a dwelling that is
available only to persons with handicaps or to persons with a particular
type of handicap. Paragraph (c)(3) provides that paragraph (c) does not
prohibit an inquiry to determine whether an applicant for a dwelling is
qualified for a priority available to persons with handicaps or to
persons with a particular type of handicap. These two inquiries where
criticized by organizations representing persons with disabilities,
including the Consortium for Citizens with Developmental Disabilities.
These commenters fear that such inquiries will be abused by housing
providers as a means of impermissibly inquiring about the extent or
severity of a disability. Nonetheless, some of these commenters
recognized that the ability to make these inquiries often is necessary
to determine eligibility for government housing programs; for example,
some Federal and State housing is designed for, and occupied by, persons
with handicaps. Only persons with handicaps are eligible to live in
such dwellings. Beyond this, as the Department explained in the
proposed rule, the Fair Housing Amendments Act does not prohibit the
exclusion of non-handicapped persons from dwellings. A privately owned
unsubsidized housing facility may lawfully restrict occupancy to persons
with handicaps. The owner or operator of such a housing facility must
therefore be permitted to inquire of applicants to determine whether
they have a handicap for the purpose of determining eligibility.
A housing provider may also choose to offer some or all of its units
to persons with handicaps on a priority basis and may inquire whether
applicants qualify for such a priority. For example, a housing provider
may offer accessible units to persons with mobility impairments on a
priority basis and may ask applicants whether they have a mobility
impairment which would qualify them for such a priority but may not in
such circumstances ask applicants whether they have other types of
impairments.
After carefully considering the comments received the Department
continues to believe that the inquiries permitted by paragraphs (c) (2)
and (3) are consistent with the Act and that the benefits of permitting
these inquiries outweigh the potential for abuse, because the
circumstances in which such inquiries can be made are carefully
circumscribed. A dwelling must either be available only to persons with
handicaps or to persons with a particular type of handicap or the
dwelling must genuinely be available on a priority basis to persons with
a handicap or to persons with a particular type of handicap. Otherwise,
such an inquiry cannot be made.
Paragraph (c)(4) provides that paragraph (c) does not prohibit
inquiring whether an applicant for a dwelling is a current illegal
abuser of or addict to a controlled substance. The definition of
handicap in the Fair Housing Amendments Act does not include current,
illegal use of or addiction to a controlled substance. See House Report
at 30. Paragraph (c)(4) was not the subject of substantial comment and
is unchanged from the proposed rule.
Paragraph (c)(5) provides that paragraph (c) does not prohibit
inquiring whether an applicant has been convicted of the illegal
manufacture or distribution of a controlled substance. Section
807(b)(4) of the Fair Housing Act states that nothing in the Act
prohibits conduct against a person because such person has been
convicted by any court of competent jurisdiction of the illegal
manufacture or distribution of a controlled substance. Paragraph (c)(5)
was not the subject of substantial comment and is unchanged from the
proposed rule.
Paragraph (d) restates new section 804(f)(9) of the Fair Housing Act
which provides that nothing in section 804(f) requires that a dwelling
be made available to an individual whose tenancy would constitute a
direct threat to the health or safety of other individuals or whose
tenancy would result in substantial physical damage to the property of
others. This paragraph was criticized by organizations representing
disabled persons because it simply repeats the statutory language and
provides no guidance concerning its proper implementation. Furthermore,
the placement of the language contained in paragraph (d) was questioned,
in that it follows a list of questions that housing providers are
permitted to ask to determine the qualifications of applicants. These
commenters fear that the absence of any detail beyond the statutory
language might suggest that a housing provider need not follow any
objective method for determing that an applicant ''would constitute a
direct threat to the health or safety of other individuals.'' At the
same time, these commenters recognized that the preamble of the proposed
rule contained considerable explanation of paragraph (d). 53 FR
45001-02 (November 7, 1988). The preamble discussion was considered by
these commenters to be consistent with the intent of the statute. A
number of commenters suggested that the preamble language be
incorporated in the rule.
On the other hand, organizations representing housing providers are
concerned that property owners or managers will not be able to determine
whether or not an applicant poses a threat to the safety of others
without substantial amounts of information and that they ultimately will
be subject to increased liability. They ask that the regulations be
revised expressly to permit a property owner or manager to inquire into
a prospective tenant's ''history of antisocial behavior or tendencies.''
Alternatively, it was suggested that HUD promulgate a regulation that
absolves a property owner or manager of liability for any injury caused
by reason of a condition of a person with a handicap.
The Department does not believe that it is necessary or appropriate
to incorporate detailed preamble language discussing the Supreme Court
decision in School Board of Nassau County v. Arline, 107 S Ct. 1123
(1987), into the regulation. This is especially true since the case law
in this area continues to develop at a relatively rapid pace. However,
the Department wishes to stress that it will interpret and enforce
paragraph (d) consistent with the discussion in the preamble of the
proposed rule and envolving case law.
The Department also does not believe that it would be appropriate to
revise 100.202 expressly to permit inquiries into ''antisocial''
behavior or ''tendencies.'' Language such as this might well be seen as
creating or permitting a presumption that individuals with handicaps
generally pose a greater threat to the health or safety of others than
do individuals without handicaps. Such a presumption is unwarranted and
would run counter to the intent and purpose of the Act. House Report at
28. Likewise, a regulatory provision stating that housing provides
shall not be liable for personal injury or property damages caused by
reason of another person's handicap could also be seen as creating a
presumption that persons with handicaps are more likely to pose a threat
to persons or property that are other persons and would run counter to
the intent of the Act, since Congress made no such presumption. For
example, the House Committee on the Judiciary stated that it did not
''foresee that the tenancy of any individual with handicaps would pose
any risk, much less a significant risk, to the health or safety of
others by the status of being handicapped * * *.'' Id.
For these reasons, 100.202 is unchanged from the proposed rule.
Paragraph (a) implements section 804(f)(3)(A) of the Fair Housing
Act, as amended. Under paragraph (a), it is illegal to refuse to permit
a tenant with disabilities to make reasonable modifications, at his or
her expense, of existing premises if the proposed modifications are
necessary for the full enjoyment of the premises. In the case of a
rental, the landlord may, where it is reasonable to do so, condition
permission for a modification on the renter agreeing to restore the
interior of the premises to the condition that existed before the
modification, reasonable wear and tear excepted.
Paragraph (a) allows reasonable modifications at the expense of the
individual with handicaps to existing ''premises''. Premises is defined
in 100.201 to mean the interior or exterior parts, components or
elements of a building or a dwelling unit, including the public and
common use areas of a building. Thus, an individual with handicaps
would be able, at his or her own expense, to make reasonable
accommodations to lobbies, main entrances of apartment buildings,
laundry rooms and other common and public use areas necessary to the
full enjoyment of the premises. The Department proposed to define the
term premises to encompass the public and common use areas because it
appears that this is what Congress intended. The Act allows reasonable
modifications of existing premises if necessary to afford the
handicapped person full enjoyment of the premises. If the laundry room
is not accessible, for example, a person with a mobility impairment will
not have ''full enjoyment'' of the premises. Interior is defined as the
spaces, parts, components or elements of an individual dwelling unit.
Restoration of Modifications to Public and Common Use Areas. The
Department specifically invited public comment on the definitions of the
terms premises and interior, especially in light of the fact that
section 15 of the Fair Housing Amendments Act provides that, in the case
of a rental, the landlord may, where it is reasonable to do so,
condition permission for a modification on the renter agreeing to
restore the interior of the premises to the condition that existed
before the modification, reasonable wear and tear excepted.
Many of the comments received on this question were in agreement with
the Department's definitions of these terms. For example, the American
Institute of Architects stated that since the types of modifications
made to the public and common use areas of a building's interior are on
the order of those made to the exterior of the building, it would not be
reasonable for the landlord to require the tenant to restore such
modifications to the preexisting condition.
Other commenters argued that public and common use areas should not
be excluded from the restoration requirement, suggesting that the
interpretation proposed by the Department will have the effect of
forcing owners to take a narrow view of what constitutes a reasonable
modification of a public or common use area.
After careful consideration, the Department continues to believe that
the proposed rule's treatment of these issues is faithful to the
statute. As the Department stated in the preamble of the proposed rule,
reasonable modifications to public and common use areas will not detract
significantly from the public and common use areas modified, and may be
of benefit to other persons with and without handicaps.
Some commenters complained that the proposed rule did not discuss how
a landlord's responsibilities under 100.204 to make reasonable
accommodations mesh with 100.203. These commenters note that 100.204
applies to services, and interpreted the proposed rule as assuming, for
example, that if a laundry room is inaccessible, the only option open to
the tenant is to pay for physical modifications necessary to make the
room accessible. One commenter requested that the Department clarify
that if the tenant chooses to ask a friend to do his or her laundry in
the laundry room, the landlord must accommodate this situation by
waiving any rule that prohibits non-tenants from gaining access to the
laundry room. The Department agrees that this is the sort of
accommodation required by 100.204.
Security Deposits. The final sentence of paragraph (a) of the
proposed rule stated that a landlord may not increase for handicapped
persons any customarily required security deposit for the purpose of
securing payment for modifications. The Department invited public
comment on this question as well, 53 FR 45003 (November 7, 1988), and
received substantial comments on both sides of this issue.
A number of commenters stated their belief that a prohibition on an
increased security deposit for handicapped persons who make
modifications at their own expense is required by the Fair Housing Act.
They point out that section 804(f)(2) of the Act makes it unlawful to
discriminate in the terms, conditions, or privileges of the rental of a
dwelling because of handicap and state that such deposits should not be
necessary and would create an undue burden on persons with handicaps not
intended by the Act.
On the other side of this issue, commenters speaking from the
standpoint of housing providers urged the Department to provide that a
landlord may require a reasonable additional security deposit to secure
a renter's agreement to restore the interior of the premises to the
condition that existed before the modification, reasonable wear and tear
excepted. These commenters point out that such a deposit is
particularly necessary in case of the occupant's death, or abandonment
of the unit without any notice. The National Association of
Homebuilders stated that it is standard practice to require additional
security deposits as a condition of a housing provider's granting
permission for modifications to be made to a dwelling unit. These
commenters argue that deposits are necessary so that all tenants,
handicapped and non-handicapped alike, are treated equally and fairly.
Upon further consideration of this question, the Department has come
to the view that this is not truly a question relating to a traditional
security deposit. Security deposits are generally paid at the time a
tenant moves in. A tenant with handicaps may request a landlord's
permission to make modifications at any time. For example, a tenant may
become disabled during his or her tenancy and then ask for permission to
make modifications. At this point the tenant has already paid any
customarily required security deposit. Further, the Department agrees
that there is no basis for requiring that handicapped persons pay a
higher customarily required security deposit than is paid by
non-handicapped persons. However, the Department is mindful of the
financial exposure of a landlord who may be required to permit a tenant
to make extensive modifications to the interior of a dwelling unit that
can reasonably be expected to interfere with the landlord's or the next
tenant's use and enjoyment of the premises. The Department believes
that there are specific instances where it would be reasonable for a
landlord to condition permission for making modifications on the tenant
paying into an interest bearing escrow account a reasonable amount of
money to ensure that funds will be available to pay for those
restorations that the tenant is legally required to make at the end of
the tenancy. Accordingly, paragraph (a) of 100.203 has been revised to
reflect this view.
The third sentence of paragraph (a) continues to state that the
landlord may not increase, for handicapped persons, any customarily
required security deposit. A new fourth sentence states that, where it
is reasonable to do so, the landlord may negotiate as part of a
restoration agreement a provision requiring that the tenant pay into an
interest bearing escrow account, over a reasonable time period, a
reasonable amount of money not to exceed the cost of restoring the
modifications. The interest in any such account shall accrue to the
benefit of the tenant.
The language added to paragraph (a) balances the interests of a
handicapped person seeking to make modifications to a dwelling unit so
that he or she will be able to live in the unit with the interests of
the landlord in assuring that all required restorations are made at the
end of the tenancy at the expense of the tenant. The new language makes
it clear that escrow payments may be negotiated only where it is
reasonable to do so. Thus, a landlord may not routinely require that
escrow payments be made. Rather, the landlord must make a case-by-case
determination based upon such factors as the extent and nature of the
proposed modifications, the expected duration of the lease, the credit
and tenancy history of the individual tenant, and other information that
may bear on the risk to the landlord that the premises will not be
restored. It can be expected that generally a tenant making extensive
modifications to a unit at his or her own expense will plan to live in
that unit for more than a brief period of time. Both the amount and
terms of the escrow payment are subject to negotiation between the
landlord and the tenant. For example, if the proposed modifications
which are subject to restoration are minor and the tenant has a good
credit history or otherwise can provide reasonable assurances that he or
she will be able to ensure that the restorations are carried out, then
it would not be reasonable for the landlord to require any payment. On
the other hand, if the tenant wishes to make extensive modifications
that must be restored and has only a ''fair'' credit history, or other
factors suggest that the tenant would not be able to ensure that the
restorations are carried out, then it might be reasonable for a landlord
to require a payment. Of course, the landlord may not require that the
total amount to be paid exceed the reasonable cost of restoring the
modifications that must be restored at the end of the tenancy. The
Department expects that frequently a smaller amount will suffice to
protect the interests of the landlord. Furthermore, landlords may not
assume that persons with handicaps are less creditworthy than persons
without handicaps. Just because the facts warrant requiring a payment
does not mean that the landlord may reasonably require that the full
restoration costs be paid before the modifications are even made.
If a person with handicaps seeking to make modifications believes
that a landlord is unreasonably withholding permission to make the
requested modifications or has required an unreasonable escrow payment
he or she may file a complaint with HUD.
The Department wishes to stress that the Fair Housing Act does not
require a tenant to restore all modifications. For example, as example
(2) in paragraph (b) makes clear, if a handicapped tenant seeks a
landlord's permission to widen a doorway for a wheelchair to pass, it is
unlawful for the landlord to refuse to permit the applicant to make the
modification. Further, the landlord may not, in usual circumstances,
condition permission for the modification on the applicant paying for
the doorway to be narrowed at the end of the lease because a wider
doorway will not interfere with the landlord's or the next tenant's use
and enjoyment of the premises. However, if a tenant seeks, for example,
to lower the kitchen cabinets to a height suitable for a person in a
wheelchair, the landlord may condition permission on the tenant agreeing
to restore the cabinets to their original height and, if it is
reasonable to do so considering the financial resources and
credit-worthiness of the tenant, may seek a reasonable escrow deposit.
At the end of the lease the landlord may require that the tenant restore
the cabinets to their original height unless the next occupant prefers
that the cabinets remain where they are. If the next occupant does not
wish that the modification be restored then the landlord must promptly
return the tenant's escrow deposit, if any, in full. The landlord, in
such a situation, may, where it is reasonable to do so, require that the
new tenant establish a new interest bearing escrow account.
Comments from housing providers also asked that the rule state that
housing providers have an ''absolute right'' to reject any proposed
modifications if they are unreasonable and that the housing provider
should have the authority to select or approve the party making the
modifications. These commenters point out that prior approval is
necessary so that the housing provider can be assured of quality
workmanship done in accordance with local building code specifications.
Paragraph (a) makes it plain that the applicant or tenant must seek
the landlord's approval before making modifications. A landlord, of
course, is entitled to know what the proposed modifications are as well
as reasonable assurances from the tenant that any required building
permits will be obtained and that the work will be performed in a
workmanlike manner. In order to address these concerns the Department
has added a new paragraph (b) to 100.204. It states that a landlord may
condition permission for a modification on the renter providing a
reasonable description of the proposed modifications as well as
reasonable assurances that the work will be performed in a workmanlike
manner and that any required building permits will be obtained. The
description may be oral or written depending on the extent and nature of
the proposed modifications. The Department does not believe it would
not be possible, as some commenters suggested, to spell out a detailed
approval procedure that would be applicable in all instances. What is
reasonable will vary with the extent, location and nature of the
modifications a particular tenant wishes to make. Some requested
modifications will be simple and the approval process in such instances
should be straightforward (e.g., installation of grab bars in a bathroom
that already has the requisite blocking). Other requested modifications
to the interior of a unit or public or common use area will be more
complex. In such instances, the landlord may withhold permission until
the tenant has described in reasonable detail the modifications to be
made and identified to the landlord a responsible party to perform the
work in question. However, since the tenant is paying for the
modification, the landlord may not specify that only one particular
contractor make the modifications. The modifications may be
accomplished by any party reasonably able to complete the work in a
workmanlike manner.
Paragraph (c) contains two examples that illustrate the application
of paragraph (a). Some commenters felt the examples in paragraph (c)
(paragraph (b) of the proposed rule) ''raise more questions than they
answer.'' These examples are intended to be illustrative and not
exhaustive. The Department continues to believe that the regulation is
clearer with these examples than without them. Therefore, they have
been retained unchanged from the proposed rule.
Section 100.204 implements section 804(f)(3)(B) of the Fair Housing
Act which makes it unlawful to refuse to make reasonable accommodations
in rules, policies, practices, or services if necessary to afford a
person with handicaps equal opportunity to use and enjoy a dwelling.
The concept of ''reasonable accommodation'' is also used in regulations
and case law interpreting section 504 of the Rehabilitation Act of 1973.
See, 28 CFR 41.53; 24 CFR 8.11 and 8.33; Southeastern Community
College v. Davis, 442 U.S. 397 (1979); Alexander v. Choate, 469 U.S.
287 (1985).
The principal comments received on this section discuss the
relationship between 100.204 and 100.203 relating to reasonable
modifications of existing premises. These comments were discussed in
connection with 100.203.
Paragraph (a) closely follows the statutory language and is unchanged
from the proposed rule. It states that it is unlawful for any person to
refuse to make reasonable accommodations in rules, policies, practices
or services, when such accommodations may be necessary to afford a
handicapped person equal opportunity to use and enjoy a dwelling unit,
including public and common use areas. A number of commenters were
concerned that this language could be interpreted as requiring that
housing providers provide a broad range of services to persons with
handicaps that the housing provider does not normally provide as part of
its housing. The Department wishes to stress that a housing provider is
not required to provide supportive services, e.g., counseling, medical,
or social services that fall outside the scope of the services that the
housing provider offers to residents. A housing provider is required to
make modifications in order to enable a qualified applicant with
handicaps to live in the housing, but is not required to offer housing
of a fundamentally different nature. The test is whether, with
appropriate modifications, the applicant can live in the housing that
the housing provider offers; not whether the applicant could benefit
from some other type of housing that the housing provider does not
offer.
Paragraph (b) illustrates the application of paragraph (a) with two
examples of reasonable accommodations. No substantial comments were
received on these examples and they remain as they were proposed.
Section 100.205 implements section 804(f)(3)(C) of the Fair Housing
Act which places accessibility requirements on ''covered multifamily
dwellings'' designed and built for first occupancy 30 months after
enactment.
The term covered multifamily dwellings means buildings consisting of
4 or more dwelling units if the building has one or more elevators, and
ground floor dwelling units in other buildings consisting of 4 or more
dwelling units. The ground floor is any floor of a building with a
building entrance on an accessible route. A building may have more than
one ground floor. A building is a structure, facility or the portion
thereof that contains one or more dwelling units.
Unusual Terrain or Site Characteristics. Paragraph (a) of the
proposed rule provided that covered multifamily dwellings for first
occupancy after March 13, 1991 be designed and constructed to have at
least one building entrance on an accessible route unless it is
impractical to do so because of the terrain or unusual characteristics
of the site. Paragraph (a) was the subject of considerable public
comment.
Some commenters objected to the portion of paragraph (a) that exempts
buildings from having an accessible building entrance where it is
impractical to provide such an entrance because of the terrain or
unusual characteristics of the site. These commenters argue that the
statute contains an ''absolute'' requirement that ''covered multifamily
dwellings'' for first occupancy after March 13, 1991 be made accessible.
They believe that paragraph (a) introduces an exception not found in
the Act.
Other commenters did not altogether object to an ''impracticality''
standard but considered the standard of ''impracticality'' proposed by
the Department to be too broad. These commenters feel that the
''impracticality'' standard in paragraph (a) allows designers and
builders to use their own standards and claim that because it is
''impractical'' to do so, they need not make their buildings accessible.
In the view of these commenters, this ''loophole'' was not intended by
Congress; they suggest that HUD establish a more specific standard.
Some commenters stated that, where feasible, grading be made mandatory.
Other commenters urged that the ''impracticality'' exemption accrue to
dwellings where the only access is stairs which are higher than 10 feet.
At this point they argue it is impractical for a ramp to be built.
Representative Barney Frank of Massachusetts submitted a comment
stating his belief that the word ''impractical'' could be more of a
loophole than was intended by Congress. Mr. Frank suggested tightening
the standard by modifying the word ''impractical'' with adverbs such as
''highly'' or ''extremely''. Mr. Frank also stressed that it ought to
be made clear that only unusual physical characteristics of the site
would justify the invocation of the tighter standard of impracticality
he suggested.
Other commenters argued for a broader standard than the one proposed
by the Department. They did not interpret the proposed standard as
relating in any way to the economic impact of designing and constructing
a building on a particular site to have an accessible building entrance.
These commenters argued that the Department should consider the
economic impact of requiring at least one building entrance on an
accessible route and not only whether access is physically impractical.
These commenters noted that if the cost of providing an accessible
entrance is too great, the project may become economically infeasible.
They pointed out that Congress was sensitive to the impact of the Act's
requirements on housing affordability. For example, the Act's
accessibility provisions ''carefully facilitate the ability of tenants
with handicaps to enjoy full use of their homes without imposing
unreasonable requirements on homebuilders, landlords and non-handicapped
tenants.'' House Report at 27. These commenters suggest that economic
loss beyond a de minimis amount is in many cases a viable and fair
determinant of the impracticality of providing an accessible entrance.
Congress did not intend to impose an absolute standard that all
covered multifamily dwelling units be made accessible without regard to
the impracticality of doing so. Even though the statute itself does not
contain an impracticality standard the legislative history makes it
clear that Congress ''was sensitive to the possibility that certain
natural terrain may pose unique building problems.'' House Report at 27.
For example, the House Report explicitly recognizes that in some
locales it is common to construct housing on stilts because of flooding
problems. A requirement that housing on such sites have an accessible
entrance on an accessible route may be tantamount to prohibiting the
construction of covered multifamily housing on such sites. This is not
what Congress intended. The House Report further states that the
''Committee does not intend to require that the accessibility
requirements of this Act override the need to protect the physical
integrity of multifamily housing that may be built on such sites.'' Id.
Further, the Department does not believe that it would be appropriate
to constrain designers by adopting a highly specific building
accessibility standard, as suggested by some commenters. For example,
some commenters suggested that the rule state that, where feasible,
grading be mandatory. A developer is required by paragraph (a) to
design and construct one building entrance on an accessible route unless
it is impractical to do so because of the terrain or unusual
characteristics of the site. As a practical matter, it may sometimes be
necessary to provide grading for persons in wheelchairs so that the
requirements of paragraph (a) will be met and in many cases it will be
the least expensive means of doing so. However, in other instances, it
may be possible to design and construct an accessible building entrance
in some other fashion. Designers are free to use any reasonable design
that obtains the required result. The Department does not believe that
Congress intended to dictate the method a designer must use to provide
an accessible entrance. Innovative designs that are accessible to
handicapped persons should be encouraged.
Since the statute itself does not contain an exemption, the
Department feels constrained to follow closely the intent of Congress on
this issue as expressed in the Act's legislative history. The
discussion in the House Report on this issue is of ''unique building
problems'' along the order of examples (1) and (2) in paragraph (b).
The impracticality standard in paragraph (a), however, does not go so
far as to require that it be ''impossible'' to design and construct a
building entrance on an accessible route, because the Department does
not believe that Congress intended that the standard be limited to such
extreme instances.
On balance, and after carefully considering the various comments
received on this issue, the Department believes that, based upon
specific language in the House Report, Congress intended to apply the
test the Department proposed for determining when the burdens of
providing an accessible entrance are too great. Only when the terrain
or unusual site characteristics make it impractical to design and
construct an accessible building entrance at a particular site did
Congress consider the burdens of providing such an entrance to be
unreasonable. Since the standard in paragraph (a) already takes into
account the burdens of making a building accessible, the Department does
not believe that it would be faithful to the statute to revise the
standard to refer to an open-ended ''economic impracticality'' standard
unrelated to the sorts of unusual site problems Congress expressly
considered relevant.
Determining ''First Occupancy'' After March 13, 1991. A number of
commenters stated that while the proposed rule properly limits the Act's
design and construction requirements to covered multifamily housing for
first occupancy after March 13, 1991, it fails to indicate how it will
be determined whether covered multifamily housing is ''for first
occupancy after March 13, 1991.'' These commenters are concerned that
coverage of the design and construction requirements must be
determinable at the beginning of planning and development, arguing that
it is unreasonable to base this determination on the actual date of
first occupancy since this date may be affected by a variety of
unexpected and uncontrollable events occurring during the lengthy
planning and development process. In order to accommodate these
legitimate concerns on the part of the building industry, the Department
has added a sentence to paragraph (a). It states that, for purposes of
100.205, covered multifamily dwellings shall be deemed to be designed
and constructed for first occupancy on or before March 13, 1991 if they
are occupied by that date or if the last building permit or renewal
thereof for the covered multifamily dwellings is issued by a State,
County or local government on or before January 13, 1990. In other
words, if a developer obtains a building permit on or before January 13,
1990 (which is not renewed after that date) and completes construction
under that permit, the building in question need not comply with the
accessibility requirements of 100.205. Thus, a developer will not be
penalized if a strike or Act of God prevents occupancy by a certain
time. The date of January 13, 1990 was selected because it is fourteen
months before March 13, 1991. Fourteen months represents a reasonable
median construction time for multifamily housing projects of all sizes
based upon data contained in the ''Marshall Valuation Service.'' The
Department considered adopting different construction times for
different sized projects but ultimately found this approach cumbersome
from an administrative and enforcement standpoint. The Department chose
the issuance of a building permit as the appropriate point in the
process, since such permits are issued in writing by governmental
authorities. Such a standard has the advantage of being clear and
objective. In addition, any project that actually achieves first
occupancy before March 13, 1991 will be judged to have met this standard
even if the last building permit or renewal thereof was issued after
January 13, 1990.
Accessibility Guidelines. Paragraph (b) contains three examples that
illustrate the application of paragraph (a). Some commenters stated
that the examples illustrating the application of paragraph (a) may
reduce noncompliance at the extremes but do not satisfactorily indicate
what constitutes sufficient compliance in most day-to-day situations.
The Department does not believe that it is feasible to publish more
specific guidance at this time. However, the Department will endeavor
to provide as much additional guidance as possible in the accessibility
guidelines HUD plans to develop. Many commenters expressed a desire to
have an opportunity to comment on these guidelines. HUD intends to
publish these guidelines in the Federal Register for full public comment
as soon as they are ready.
The only change made to these three examples is a minor change to
example (1). In the proposed rule example (1) related to a developer
who planned to construct six townhouses on a site with hilly terrain.
Some commenters were confused by the reference to townhouses, in view of
the Department's interpretation that four or more townhouses are not
covered multifamily dwellings unless the entire unit is on the ground
floor or unless the townhouses have an elevator. In order to avoid this
confusion, the reference to townhouses has been deleted. Instead, the
example refers simply to six units of covered multifamily dwelling
units. The purpose of the example is to explicate site impracticality
because of hilly terrain.
Example (3), which describes an instance where building accessibility
can be achieved only at the cost of a 4.7 percent density loss, was the
subject of criticism by builders. They argued that a 4.7 percent
density loss may render a project economically infeasible. Even though
this may well be the case in some situations, the Department does not
believe, in light of the discussion above, that Congress necessarily
intended that a reduction of five units in a 105-unit building would be
sufficient to exempt that building from the accessibility requirements
of the Act. A more stringent standard was intended. (However, this
example was not intended to mean that any loss of density, no matter how
great, would be insufficient to establish site impracticality.)
Paragraph (c) requires that all covered multifamily dwellings for
first occupancy after March 13, 1991 with a building entrance on an
accessible route satisfy certain accessibility requirements set forth in
paragraph (c). Paragraphs (c) (1) and (2) set forth the specific
accessibility requirements for covered multifamily dwellings for first
occupancy after March 13, 1991 with a building entrance on an accessible
route. Many commenters complained that the guidance provided in
paragraph (c) is inadequate. Some commenters made highly detailed
suggestions that the Department will carefully consider as it develops
accessibility guidelines to help builders understand and comply with the
specific accessibility requirements of the Fair Housing Act. The
guidelines would, of course, not be mandatory. Rather, they would
provide technical assistance to persons who must comply with paragraph
(c). Until these guidelines are published for public comment, designers
and builders may be guided by the requirements of ANSI in meeting the
specific accessibility requirements of the Act.
Paragraph (d) provides two examples that illustrate the application
of paragraph (c). These examples were not the subject of substantial
public comment and are unchanged from the proposed rule.
Paragraph (e) states that compliance with the appropriate
requirements of ANSI A117.1 suffices to satisfy the requirements of
paragraph (c)(3). Paragraph (e) implements section 804(f)(4) of the
Fair Housing Act. This section does not require that designers and
builders follow ANSI A117.1 exclusively. However, if designers and
builders do follow ANSI A117.1, then they will have satisfied the
requirements of paragraph (c)(3). House Report at 27. Paragraph (e)
was not the subject of substantial public comment, closely follows the
statutory language and is unchanged from the proposed rule.
Paragraphs (f) and (g) implement the provisions of the Fair Housing
Amendments Act designed to encourage enforcement, by the States and
local governments, of the provisions of the Act regarding adaptability
and accessibility requirements for newly constructed multifamily
dwellings. 134 Cong. Rec. S10456 (daily ed. August 1, 1988)
(Memorandum of Senators Kennedy and Specter Regarding Their Substitute
Amendment).
Paragraph (f) states that compliance with a duly enacted law of a
State or unit of general local government that includes the requirements
of paragraphs (a) and (c) satisfies the requirements of paragraphs (a)
and (c). Paragraph (f) was not the subject of substantial public
comment and is unchanged from the proposed rule.
Paragraph (g)(1) was not the subject of substantial public comment
and is unchanged from the proposed rule. It declares that it is the
policy of HUD to encourage States and units of local government to
include in their existing procedures for the review and approval of
newly constructed covered multifamily dwellings, determinations as to
whether the design and construction of such dwellings are consistent
with paragraphs (a) and (c).
Paragraph (g)(2) states that a State or unit of general local
government may review and approve newly constructed multifamily
dwellings for the purpose of making determinations as to whether the
requirements of paragraphs (a) and (c) are met. Paragraph (g)(2) was
not the subject of substantial public comment and is unchanged from the
proposed rule.
Determinations of Compliance by State or Local Agencies. Paragraph
(h), which is unchanged from the proposed rule, states that
determinations of compliance or noncompliance by a State or a unit of
general local government under paragraph (f) or (g) are not conclusive
in enforcement proceedings under the Fair Housing Act. Some commenters
argued that this paragraph should be revised to state that
determinations by State and local governments will be given substantial
weight. These comments concede that neither the statute nor its
legislative history indicates the weight to be given to such
determinations. The Department believes it would be inappropriate to
accord particular ''weight'' to determinations made by a wide variety of
State and local government agencies involving a new civil rights law,
without first having the benefit of some experience reviewing the
accuracy of the determinations made by State and local authorities under
the Fair Housing Act.
Paragraph (i) states that subpart D does not invalidate or limit any
law of a State or political subdivision of a State that requires
dwellings to be designed and constructed in a manner that affords
handicapped persons greater access than is required by this subpart.
Paragraph (i) was not the subject of substantial public comment. It is
unchanged from the proposed rule.
The Fair Housing Act prohibits discrimination because of familial
status. However, the Act exempts ''housing for older persons'' from the
prohibitions against discrimination because of familial status. The
purpose of the prohibitions against discrimination because of familial
status and the housing for older persons exemption is to protect
families with children from discrimination in housing, without unfairly
limiting housing choices for elderly persons. 134 Cong. Rec. S10465-66
(daily ed. August 1, 1988) (statement of Sen. Karnes). The statutory
definition of housing for older persons comprises three categories of
housing: (1) Housing provided under any State or Federal program that
the Secretary of HUD determines is specifically designed and operated to
assist elderly persons; (2) housing intended for, and solely occupied
by, persons 62 years of age or older; and (3) housing intended for, and
solely occupied by, at least one person 55 years of age or older per
unit, provided that various criteria are met.
Mobile Home Parks. The Department received thousands of comments
relating to the housing for older persons exemption. A significant
portion of these comments came from people who live in mobile home parks
which are currently restricted to adults. These commenters point out
that mobile home park living is unique. Mobile home park residents
typically own their own homes but rent the space. Frequently, there is
relatively little space between homes. Many of these commenters state
that they prefer to live in an all-adult atmosphere and that if children
are admitted there will in most cases be no place for them to play.
Furthermore, many commenters made it plain that they do not want or need
special services or facilities. Rather, they want mobile home parks to
provide an environment where they can be with others of their age group,
while at the same time remaining independent and self-sufficient.
Some commenters asked that mobile home parks be exempted outright
from the Fair Housing Act. Mobile home parks are covered by the Fair
Housing Act. The Fair Housing Act makes it unlawful to refuse to sell
or rent a ''dwelling'' because of race, color, religion, sex, handicap,
familial status, or national origin. The statutory definition of
dwelling includes vacant land which is offered for sale or lease for the
construction or location thereon of a structure. In addition, the
legislative history of the Fair Housing Amendments Act indicates that
Congress intended that mobile home parks would be covered by the Act,
and specifically by the familial status provisions. See 134 Cong. Rec.
S10551 (daily ed. Aug. 2, 1988) (colloquy between Sens. Wilson and
Specter). Thus, the Department has no basis for exempting mobile home
parks from the prohibition of discrimination against families with
children.
Other commenters asked HUD to create an additional exemption for
''over 40'' or for ''all-adult'' mobile home parks. There is nothing in
the Fair Housing Amendments Act or its legislative history to indicate
that Congress intended that mobile home parks be afforded a housing for
older persons exemption that is broader than the exemption that applies
to other types of housing (e.g., apartments and condominiums). To the
contrary, the legislative history indicates that ''mobile home parks ar
eligible for the same exemptions as are other communities under the
'housing for older persons' provisions * * *'' of the Act. Id.
Therefore, mobile home parks are subject to the same rules that apply to
other types of housing. More specific comments received on this subpart
will be discussed in connection with the exemption for ''55 or over''
housing.
Dual Purpose Housing Facilities. A number of commenters raised the
question of whether it is permissible to operate a ''dual purpose''
housing facility. In a ''dual purpose'' housing facility specified
units or sections would be designated for older persons and other units
or sections would be open to everyone. For example, one commenter
representing the interests of mobile home park owners suggested that
regulations be promulgated to permit the operation of ''dual purpose''
properties, so that certain sections or units are not restricted to
persons of a certain age and others are designated for housing for older
persons. This commenter stated that the proposed rule did not address
this question. However, this issue was addressed in the proposed rule.
Section 100.70(c)(5) of the proposed rule (53 FR 45025, November 7,
1988) stated that it is unlawful to assign ''any person to a particular
section of a community, neighborhood or development or to a particular
floor of a building because of * * * familial status * * *.'' This same
prohibition appears as 100.70(c)(4) of the final rule. As the
Department explained in connection with public comments received on
subpart A, the legislative history of the Fair Housing Act and the
development of fair housing law after the protections of the Fair
Housing Act were extended in 1974 to prohibit discrimination because of
sex support the position that persons with handicaps and families with
children are entitled to the same protections as other classes of
persons. For example, ''dual housing'' facilities segregated by race,
color or religion clearly would violate the Fair Housing Act.
Similarly, the Department believes that it is unlawful for a housing
facility to segregate because of familial status.
Section 100.300 explains that the purpose of subpart E is to
effectuate the housing for older persons exemption in the Fair Housing
Amendments Act. This section was not the subject of public comment and
is unchanged from the proposed rule.
Section 100.301 provides the analytical framework for subpart E.
Paragraph (a) implements the second sentence of section 807(b)(1) of the
Fair Housing Act, as amended. It states that the prohibitions against
discrimination because of familial status in this part do not apply to
housing which satisfies the requirements of 100.302 (State and Federal
Elderly Housing Programs), 100.303 (62 or Over Housing), or 100.304 (55
or Over Housing). Paragraph (a) was not the subject of public comment
and is unchanged from the proposed rule.
Paragraph (b) states that nothing in this part limits the
applicability of any reasonable local, State, or Federal restrictions
regarding the maximum number of occupants permitted to occupy a
dwelling. Paragraph (b) implements the first sentence of section
807(b)(1) of the Fair Housing Act. Many jurisdictions limit the number
of occupants per unit based on a minimum number of square feet in the
unit or the sleeping areas of the unit; HUD also issues occupancy
guidelines in its assisted housing programs. Reasonable limitations do
not violate the Fair Housing Act as long as they apply equally to all
occupants. A substantial number of comments were received asking that
the Department adopt occupancy restrictions that housing providers can
apply in jurisdictions that do not have governmentally-adopted occupancy
restrictions, and in jurisdictions where the governmentally-adopted
restrictions are tantamount to no restrictions. There comments are
discussed in the preamble discussion relating to subpart A.
Section 100.302 implements section 807(b)(2)(a) of the Fair Housing
Act. Section 100.302 exempts housing provided under any Federal or
State program that the Secretary determines is specifically designed and
operated to assist elderly persons, as defined in the State or Federal
program from the prohibitions against discrimination because of familial
status in this part. Section 100.302 was not the subject of substantial
public comment and is unchanged from the proposed rule. It should be
noted that the eligibility requirements for housing for elderly persons
in HUD-assisted and insured programs differ from the requirements in
100.303 and 100.304. State or Federal definitions are not superseded by
those established in this part for other housing.
Section 100.303 implements 807(f)(2)(B) of the Act. It exempts from
the prohibitions against discrimination because of familial status
housing intended for, and solely occupied by, persons 62 years of age or
older.
Transition Provision. Paragraph (a)(1) contains a transition
provision to ensure that the interests of current residents of housing
that excludes children will not be unduly disturbed by the Fair Housing
Act. 134 Cong. Rec. S10456 (daily ed. August 1, 1988) (Memorandum of
Sens. Kennedy and Specter Regarding Their Substitute Amendment). It
provides that housing satisfies the requirements of 103.303 even though
there were persons residing in such housing on September 13, 1988 who
are under 62 years or age, Provided That all new occupants thereafter
are persons 62 years of age or older.
Section 6(d) of the Fair Housing Amendments Act provides that housing
shall not fail to meet the requirements for housing for older persons by
reason of ''persons residing in such housing as of the date of enactment
of this Act (i.e., September 13, 1988)'' who do not meet the age
requirements of the housing for older persons exemption, provided that
all new occupants meet the age requirements of the housing for older
persons exemption. Section 13(a) of the Act provides that ''(t)his Act
and the Amendments made by this Act shall take effect on the 180th day
beginning after the date of enactment of this Act.'' The date described
in section 13(a) is March 12, 1989. Several commenters questioned
whether the appropriate date for the transition provision in
100.303(a)(1) is September 13, 1988 or March 12, 1989.
In the preamble of the proposed rule the Department explained that if
section 6(d) of the Act is applied literally, then housing providers, in
order to avail themselves of this transition provision, had to begin
filling units in accordance with the age requirements of the housing for
older persons exemption on September 13, 1988, which is before the
effective date of the Act. The proposed rule adopted this
interpretation, but in view of the consequences of such a determination,
invited public comment on the question. Comments were received on both
sides of the issue.
One group of commenters argued that the transition rule should become
effective on March 12, 1989 instead of September 13, 1988 as proposed by
the Department. Some of these commenters conceded that the proposed
rule followed the plain meaning of the statute, but argued that this is
a case where adherence to the statute's plain language will frustrate
Congress' intent to provide a workable transition rule that ensures that
the interests of current residents of housing that excludes children
will not be unduly disturbed by passage of the bill. 134 Cong. Rec.
S10456 (daily ed. August 1, 1988) (Memorandum of Sens. Kennedy and
Specter Regarding Their Substitute Amendment). These commenters also
stated that a March 12, 1989 transition date would be fairer.
A different group of commenters agreed with the Department's
interpretation of the transition provision that appeared in the proposed
rule as consistent with the plain meaning of the Act and Congressional
intent. These commenters agreed with the Department's statement in the
preamble of the proposed rule that the general language in section 13(a)
was not intended to render the more specific language in section 6(d) a
nullity. Moreover, under the interpretation of the Act in the proposed
rule there is no inconsistency between sections 6(d) and 13(a) of the
Fair Housing Act. The Act will take effect on March 12, 1989 and, by
its terms, the housing for older persons exemption will be satisfied
even though, on September 13, 1988, there were persons in the housing
facility who did not meet the age requirements, provided that all new
occupants after September 13, 1988 meet the age requirements. Some
commenters added that under fundamental principles of statutory
construction the more specific language of the Act prevails over more
general language covering the same subject. See e.g., Ginsberg & Sons.
v. Popkin, 285 U.S. 204, 208 (1932) (''General language of a statutory
provision, although broad enough to include it, will not be held to
apply to a matter specifically dealt with in another part of the same
enactment.''). Therefore, these commenters concluded that the more
general language in section 13(a) describing the effective date of the
Act as a whole should not be interpreted to delete the specific language
in section 6(d) defining the appropriate date for the transition
provision.
After carefully considering the comments received on this question,
the Department has determined not to modify its interpretation of the
transition provision that was included in the proposed rule because it
appears that this is what Congress intended. The transition provision
in section 805(b)(3) of the statute relating to persons residing in a
housing facility who do not meet the age restrictions for housing for
older persons is expressly limited to ''persons residing in such housing
as of the date of enactment of this Act.'' The same date (September 13,
1988) is, for the same reasons, referenced in 100.304(d)(1) (55 or Over
Housing).
In addition, some commenters proposed that the rule state that a
mobile home park may change its age requirements to either family, 55 or
over or 62 or over, at any time -- arguing that such a provision would
be consistent with the legislative intent of the Act to stop
discrimination against families with children but to allow for distinct
housing opportunities for older persons. As previously explained, the
Department sees no legal basis for providing special treatment or
exceptions for mobile home parks in light of the legislative history to
the contrary. Furthermore, the transition provision in section
807(b)(3)(A) makes specific reference to the date of enactment. In
light of this temporal limitation in the statute the Department does not
believe it would be faithful to the statute to create in this rule a
procedure permitting a housing provider to change its age requirements
at any time in order to exclude families with children.
A related issue raised by some commenters is the relationship between
the Act and various State laws that regulate existing relationships
between landlords and tenants. For example, under the California
Mobilehome Residency Law, a rule or regulation of a mobile home park may
be amended at any time with the consent of a homeowner, or without his
or her consent upon written notice to him or her of not less than six
months. Calfornia Civil Code 798.25 (1982 & Supp. 1988). These
commenters pointed out that this and other notice requirements made it
very difficult, and in some cases, impossible for mobile home park
owners to avail themselves of the transition provision in section
807(b)(3)(A) of the Act. On October 21, 1988 the General Counsel of
HUD, J. Michael Dorsey, issued a legal opinion on this question. In
that opinion, Mr. Dorsey concludes that the Fair Housing Act does not
preempt or supersede 798.25 of the California Civil Code since there is
no language in the Fair Housing Act, as amended, or its legislative
history to support a conclusion that the Act was intended to invalidate
or limit any State law, unless that State law requires or permits a
discriminatory housing practice. 42 U.S.C. 3616 (as redesignated by the
Act). Section 798.25 of the California Civil Code neither requires nor
permits a discriminatory housing practice; it simply sets forth a
procedure that a mobile home park must follow in order to change a rule
or regulation. In addition, the comments submitted by Senators Kennedy
and Specter and Representative Don Edwards state as follows:
Since enactment of the 1988 Amendments to the Fair Housing Act, many
mobile home parks have changed their status from an eighteen and older
''adult'' park, which is allowed under existing California law, but
prohibited by the Fair Housing Amendments Act to a ''housing for older
persons'' park in order to qualify for an exemption under the Act. Many
of these parks have claimed that the Act preempts California law, and
thus six months' notice of a change in policy is not required. This is
an incorrect interpretation of the Act. It was not the intent of
Congress to preempt this notice requirement, and the regulations should
so specify. (Footnotes omitted.)
Paragraph (a)(2) states that housing satisfies the requirements of
100.303 even though there are unoccupied units (at any time), provided
that such units are reserved for occupancy by persons 62 years of age or
over. Paragraph (a)(2) was not the subject of substantial comment and
is unchanged from the proposed rule.
A new paragraph (a)(3) has been added to the final rule. It states
that housing satisfies the requirements of 100.303 even though there
are units occupied by employees of the housing (and their family members
residing in the same unit) who are under 62 years of age provided they
perform substantial duties directly related to the management or
maintenance of the housing. This paragraph was added by the Department
in recognition of the fact that it is common for a manager of a housing
facility or maintenance worker to reside in one of the units.
Frequently, such arrangements benefit the residents of the housing
facility. The Department does not believe that Congress intended for a
housing owner to lose its ''62 or over'' exemption simply because the
manager of the facility or a maintenance worker resides there. However,
the Department wishes to stress that any employees who live at the
housing facility must perform substantial duties directly related to the
management or maintenance of the housing in question. For example, if
the employee works primarily at a different housing facility, then that
employee does not satisfy the requirements of paragraph (b)(3) and the
housing facility where that employee lives will not qualify for the ''62
or over'' exemption.
Paragraph (b) contains two examples that illustrate the application
of paragraph (a). These examples were not the subject of substantial
comment and are unchanged from the proposed rule.
Section 100.304 implements section 807(b)(2)(C) of the Fair Housing
Act, which exempts housing intended and operated for occupancy by at
least one person 55 years of age or over per unit that satisfy certain
criteria. This section of the proposed rule was the subject of many
public comments. As an initial matter, a number of commenters asked
that the Department clarify the meaning of the phrase ''housing intended
and operated for occupancy by at least one person 55 years of age or
older, per unit * * *'' in paragraph (a).
Specifically, these commenters asked that HUD address the issue of
the age of any other person occupying the unit along with a person 55
years of age or older per unit. A housing provider may use any
non-discriminatory method of qualifying for the exemption that comports
with applicable State and local laws. Since the Fair Housing Amendments
Act does not prohibit discrimination because of age, nothing in the Act
prohibits a housing provider seeking to qualify for the exemption for
''55 or over'' housing from setting age restrictions that are more
stringent than those set forth in the Act. Thus, a housing provider
may, for example, require that all residents be 55 years of age or
older, provided that such a rule is consistent with applicable State and
local laws. The other comments on 100.304 fall within four areas.
First, some commenters stated that 100.304(c)(1) should state that
all units, upon initial occupancy, must be occupied by at least one
person 55 years of age or older. Under the Act, the exemption for
housing for persons 55 years of age or older requires, among other
things, that 80 percent of the dwellings have at least one resident who
is 55 years of age or older and that the housing complex adhere to
policies demonstrating an intent to provide housing to persons of that
age group. Section 807(b)(2)(C). The Children's Defense Fund and other
commenters state that Congress' purpose in permitting up to 20 percent
of the units to be occupied solely by persons under the age of 55 was to
prevent disruption of the lives of surviving spouses and cohabitants
under age 55, when the over 55 member of a household dies or otherwise
leaves the unit. See 134 Cong. Rec. H 6498 (daily ed. August 8, 1988)
(statement of Representative Edwards); House Report at 31.
Specifically, these commenters argue that the ''55 or over'' exemption
was not meant to permit the owner of housing for older persons to ''set
aside'' 20 percent of its units for incoming households (as opposed to
surviving spouses or companions). These commenters feel that such a
''set aside'' is inconsistent with the exemption's requirement that the
owner or manager demonstrate an intent to provide housing for persons 55
years of age or older.
These commenters correctly point out that statements in the
legislative history discuss the need to permit up to 20 percent of the
units to be occupied by persons all of whom are under 55 years old in 55
or over housing in order to accommodate persons such as surviving
spouses under the age of 55 and nurses and other personnel to care for
the elderly. 134 Cong. Rec. H 6498 (daily ed. August 8, 1988)
(statement of Representative Edwards); House Report at 31. However,
the Department does not believe that the examples that appear in the
legislative history were intended to be exhaustive. Particularly, the
Department is not of the view that these units for persons under 55
years of age cannot be occupied by incoming households (as opposed to
surviving spouses or companions). Indeed, some incoming households may
be persons under 55 related in some way to residents who are over 55
years old. For example, an elderly owner of a condominium might die and
leave the condominum to a relative who is under 55 years old. If the 20
percent of the units available to persons under 55 years old were not
open to incoming households then the recipient of the legacy would be in
the anomalous situation of not being able to live in a condominium he or
she owns. Further, the Department does not believe that the proposed
rule can fairly be characterized as establishing a 20 percent
''set-aside'' for persons under 55 years of age. In order to be assured
of preserving the exemption, an owner of ''55 or over'' housing will
not, as a practical matter, be able to sell or rent a full 20 percent of
the units to incoming persons, all of whom are under 55 years of age,
because if the owner does so he or she will risk losing the exemption if
some of the over-55 occupants die with surviving spouses who are under
55 years old. In this regard, a number of commenters expressed concern
about the last sentence of example 1A in paragraph (e). This sentence
indicates that a housing provider could rent a unit to persons (John and
Mary in the example) all of whom are under 55 years old even if doing so
would reduce the percentage of units occupied by at least one person 55
years of age or older to just a fraction above 80 percent. Although the
housing provider in fact could rent to John and Mary without losing the
''55 or over'' exemption the Department agrees that doing so is not
advisable under the circumstances described in the example. Since the
owner would be just a fraction above the 80 percent minimum required to
maintain the ''55 or over'' exemption, renting to John and Mary could
lead to the owner losing the exemption if some of the over-55 occupants
die with surviving spouses who are under 55. In order to avoid any
confusion, therefore, the last sentence of example 1A in paragraph (e)
of the proposed rule has been deleted in the final rule.
Beyond this, the owner must take care to publish and adhere to
policies and procedures which demonstrate an intent to provide housing
for persons 55 years of age or older. For example, this requirement
would preclude an owner or manager from marketing 80 percent of the
units for persons 55 years of age or older and marketing the remaining
20 percent in a radically different way (e.g., young adults). The
policies and procedures for the housing facility as a whole must
demonstrate an intent to provide housing for persons 55 years of age or
older. ''In essence, this means that the housing in question must in
its marketing to the public and in its internal operations, hold itself
out as housing for persons aged 55 or older.'' 134 Cong. Rec. S10456
(Memorandum of Senators Kennedy and Specter Regarding Their Substitute
Amendment). Accordingly, the Department has determined not to revise
paragraph (d)(2).
The second major issue relating to 55 or over housing concerns
paragraph (c)(1), which requires that at least 80% of the units in the
housing facility be occupied by at least one person 55 years of age or
older unit except that a newly constructed housing facility for first
occupancy after March 12, 1989 need not comply with paragraph (c)(1) of
this section until 25% of the units in the facility are occupied. The
exception for partially occupied newly constructed housing facilities
was proposed by HUD to deal with the practical problem of filling units
in a new and unoccupied housing facility in a reasonable manner,
consistent with the ''55 or over'' exemption. For example, it would be
unreasonable for a large newly constructed housing facility that intends
to qualify for the exemption to lose its right to claim the exemption
simply because the first unit happens to be filled with persons all of
whom are under 55 years of age. However, once a certain percentage of
units has been filled the housing facility can reasonably be expected to
comply with the percentage requirement in paragraph (c)(1). Thus, the
Department proposed to require that a housing facility comply with the
80% requirement in paragraph (c)(1) once 25% of the units in the housing
facility have been filled and invited comment on the question of whether
the 25% point is too high or too low.
The National Association of Homebuilders, among other commenters,
felt this percentage was too low to make a meaningful assessment of a
particular housing facility. The National Multi Housing Council argued
that a building should be eligible for the ''55 and Over'' exemption
during initial occupancy so long as not more than 20 percent of the
total units are occupied by non-qualifying residents. The Council
argues that marketing and market conditions will vary widely throughout
the country and suggest that it is unnecessary for HUD to attempt to fix
a universal demarcation point on this subject. The Council proposes
that the final rule permit an owner to sell or rent the first 20 percent
of the units to non-qualifying occupants, if he or she wishes.
On the other hand, the Children's Defense Fund and the Leadership
Conference on Civil Rights, among other commenters, objected to
paragraph (c)(1) since the 25 percent point referenced in the proposed
regulation is not contained in the Act or its legislative history.
These commenters further argue that this 25 percent point of reference
be deleted because it stems from what they regard as an incorrect
interpretation of the 55 or over exemption. In other words, if the 20
percent of the units for non-qualifying households were restricted to
surviving spouses, nurses and companions there would be no need for the
25 percent point of reference for initial occupancy.
Since the Department has not adopted the narrow interpretation of the
20 percent limitation urged by some commenters, the Department continues
to believe that the regulation must contain some point of reference so
that everyone concerned will know how to calculate whether a housing
facility has complied with the 80 percent requirement during initial
occupancy. However, the Department does not believe it would be
consistent with the intent of the statute to permit an owner or manager
seeking to qualify for the ''55 or Over'' exemption to sell or rent the
first 20 percent of the units to persons all of whom are under 55 years
of age. Filling so many units with non-qualifying persons might create
an impression that the housing is not intended for older persons.
Further, the owner would not have any leeway to provide for units
occupied by under 55 surviving spouses and nurses or companions. For
these reasons, the Department has retained paragraph (c)(1) as it was
proposed.
In addition, as in 100.303(a)(3), a new paragraph (d)(3) has been
added to 100.304 of the final rule. It states that housing satisfies
the requirements of this section even though there are units occupied by
employees of the housing (and family members residing in the same unit)
who are under 55 years of age provided they perform substantial duties
directly related to the management or maintenance of the housing. Thus,
as in 100.303, units occupied by employees of the housing who do not
meet the age threshold are not considered in determining a project's
eligibility as housing for older persons.
Significant Facilities and Services. Third, the Department received
a great many comments asking for clarification of the phrase
''significant facilities and services designed to meet the physical or
social needs of older persons.'' A large number of commenters viewed the
definition in proposed paragraph (b)(1) as requiring facilities and
services on the order of what one might expect to find in a facility for
severely disabled elderly persons who are not able to care for
themselves. Other commenters want to qualify for the ''55 or Over''
exemption and want to know precisely what services and facilities must
be provided in order to qualify for the exemption.
Paragraph (b)(1) of the proposed rule stated that significant
facilities and services specifically designed to meet the physical or
social needs of older persons include an accessible physical
environment, congregate dining facilities, social and recreational
programs, emergency and preventive health care or programs, continuing
education, welfare, information and counseling, recreational, homemaker,
outside maintenance and referral services, transportation to facilitate
access to social services, and services designed to encourage and assist
residents to use the services and facilities available to them. The
list of significant facilities and services designed to meet the
physical or social needs of older persons in the proposed rule is drawn
from section 202(f) of the Housing Act of 1959, 12 U.S.C. 1701q,
listing examples of facilities and services for older persons. The
House Report (at p. 32) relies heavily upon the listing in section
202(f) of the Housing Act of 1959 in its discussion of such facilities.
In addition, the proposed rule made it clear that the housing facility
need not have all of these features to qualify for the exemption.
Based upon the reaction hundreds of commenters had to the proposed
definition of significant facilities and services designed to meet the
physical or social needs of older persons it appears that the presence
early on in the definition of congregate dining facilities and an
accessible physical environment may have created an impression that only
housing for older persons who are not capable of living independently
would satisfy the requirements of paragraph (b)(1). The Department
wishes to stress that a housing facility may have significant facilities
and services designed to meet the physical or social needs of older
persons and still provide housing for active older persons who live very
independently. A housing facility, for example, need not necessarily
have congregate dining facilities or an accessible physical environment
in order to qualify. In fact, many of the facilities and services on
the list can readily be associated with active older persons. These
include social and recreational programs, preventive health care,
information and counseling, recreational services, and transportation to
facilitate access to social services. Moreover, the list of services on
this list was not intended to be exclusive. As a result of this
reaction, the Department has reordered the list of services and
facilities in the final rule. In addition, ''welfare'' has been deleted
from the list because it appears only to have relevance in the context
of governmental programs for elderly persons which are covered by
100.301.
The facilities and services designed to meet the physical or social
needs of older persons must be ''significant'' in order to satisfy
paragraph (b)(1). It is not possible for the Department to define
precisely what services and facilities must be present before they are
considered ''significant.'' The services and facilities will necessarily
vary based on the geographic location and the needs of the residents.
However, it is clear, for example, that the installation of a ramp at
the front entrance of a housing facility would not constitute a
''significant'' facility designed to meet the physical needs of older
persons. Similarly, the provision of minor amenities -- such as putting
a couch in a laundry room and labeling it a recreation center -- would
not constitute a ''significant'' facility designed to meet the social
needs of older persons. House Report at 32.
Important Housing Opportunities for Older Persons. Some commenters
suggested that the Department establish a ''precertification'' procedure
which would enable housing providers to seek HUD certification that a
housing facility has ''significant facilities and services designed to
meet the physical or social needs of older persons'' or that the housing
facility satisfies the requirements of paragraph (b)(2). One commenter
representing the interests of mobile home park owners argued that such a
procedure would prevent many lawsuits and ''frivolous'' administrative
complaints of discrimination from being filed. The Department does not
believe at this early stage of the enforcement of the Fair Housing
Amendments Act that there is a reasonable basis to conclude that many
''frivolous'' complaints will be filed unless a ''pre-certification''
procedure is established. Further, the Department does not believe that
it has sufficient resources to support such a procedure. However, if
experience with enforcement of the exemption for ''55 or over'' housing
shows that such a procedure would be cost-effective the Department will
consider adding a ''pre-certification'' procedure in the future.
The fourth area of major public comment concerns paragraph (b)(2) of
the proposed rule. A housing facility may qualify for the ''55 or
over'' exemption even if it does not satisfy the requirements of
paragraph (b)(1). Under paragraph (b)(2), a housing facility that does
not provide significant facilities and services specifically designed to
meet the physical or social needs of older persons may nonetheless
qualify for the ''55 or over'' exemption. Such a housing facility must
demonstrate that it is not practicable for it to provide significant
facilities and services designed to meet the physical or social needs of
older persons, and must also demonstrate that the housing facility is
necessary to provide important housing opportunities for older persons.
The proposed rule contained eight factors, among others, that the
Department proposed to consider in determining whether a housing
facility satisfies the requirements of paragraph (b)(2). Paragraph
(b)(2) was criticized by many commenters for not being sufficiently
precise. These commenters state that listing eight factors is not
sufficient, especially since the proposed rule did not state how many
(or how few) of the factors must be fulfilled in order to obtain a
waiver of the requirement of providing significant services and
facilities.
Further, some commenters cited legislative history which they believe
is helpful in construing the exception. Senator Kennedy stated that the
exception was intended ''to be narrowly used only when it can be
demonstrated that the costs of providing the facilities and services
would result in depriving low- and moderate-income persons of needed and
desired housing. Independent and objective evidence must be provided to
establish impracticability.'' 134 Cong. Rec. S10549 (daily ed. August
2, 1988) (statement of Sen. Kennedy). Representative Edwards explained
that 807(b)(2)(C)(i) was ''not intended to provide a broad exemption *
* *.'' 134 Cong. Rec. H6498 (daily ed. August 8, 1988) (statement of
Representative Edwards). Mr. Edwards went on to explain the
impracticability test as follows:
The fact that the facilities and services are expensive to provide is
not alone sufficient to meet the standard of impracticability. This
standard cannot be satisfied only by estimates of increased costs,
business inefficiency or loss of profit. Independent and objective
evidence must be provided to establish impracticability. Mere opinion
that the provision of such facilities and services is impracticable is
not sufficient.
With regard to the requirement that the housing qualify as an
''important housing opportunity for older persons'' Representative
Edwards stated that it must be shown that ''(a)ffordable housing for
older persons of low or moderate incomes must not be otherwise available
in the community. Id.
The Department agrees that additional guidance is needed and the
Department has been guided by this legislative history in revising
paragraph (b)(2) to provide for a somewhat more precise definition of
this exception. The first sentence of paragraph (b)(2), which mirrors
the statute, is unchanged from the proposed rule. The following
sentence explicates this statutory test in a manner that is consistent
with the legislative history regarding this exception. It states that
an owner or manager, in order to satisfy the requirements of paragraph
(b)(2), must demonstrate through credible and objective evidence that
the provision of significant facilities and services designed to meet
the physical or social needs of older persons would result in depriving
older persons in the relevant geographic area of needed and desired
housing. The Department believes that the revised standard is both
clearer and consistent with the intent of Congress.
The eight factors in the proposed rule have been reduced to seven
factors in the final rule. Specifically, the first and second factors
that appeared in the proposed rule have been consolidated and clarified
in the final rule. The seven relevant factors in the final rule are as
follows:
(i) Whether the owner or manager of the housing facility has
endeavored to provide significant facilities and services designed to
meet the physical or social needs of older persons either by the owner
or some other entity. Demonstrating that such services and facilities
are more expensive to provide is not alone sufficient to demonstrate
that the provision of such services is not practicable. The preceding
sentence relating to the cost of providing significant services and
facilities is based on the legislative history. See 134 Cong. Rec.
H6498 (daily ed. August 8, 1988) (statement of Representative Edwards)
(''The fact that the facilities and service (sic) are expensive to
provide is not alone sufficient to meet the standard of
impracticability.'')
(ii) The amount of rent charged, if the dwellings are offered for
rent. The price of the dwellings, if they are offered for sale.
(iii) The income range of the residents of the housing facility.
(iv) The demand for housing for older persons in the relevant
geographic area.
(v) The range of housing choices for older persons within the
relevant geographic area.
(vi) The availability of other similarly priced housing for older
persons in the relevant geographic area. If similarly priced housing
for older persons with significant facilities and services is reasonably
available in the relevant geographic area, then the housing facility
does not meet the requirements of paragraph (b)(2). The second sentence
is new and has been added to clarify the appropriate application of this
factor.
(vii) The vacancy rate of the housing facility.
Subpart F provides the interpretation of the Department as to the
conduct which constitutes a discriminatory housing practice under
section 818 of the Fair Housing Act.
Section 100.400(b) states that it is unlawful to coerce, intimidate,
threaten or interfere with any person in the exercise or enjoyment of,
or on account of that person having exercised or enjoyed, or on account
of that person having aided or encouraged any person in the exercise or
enjoyment of, any right granted or protected by part 100. Such conduct
can also involve harassment of persons because of race, color, religion,
sex, handicap, familial status, or national origin.
The illustrations in this section also indicate that a broad range of
activities can constitute a discriminatory housing practice.
Threatening or intimidating actions include acts against the possessions
of persons, such as damage to automobiles or vandalism, which limit a
person's ability to have full enjoyment of a dwelling. In addition, the
protections against discrimination reach any person, including persons
selling or renting dwellings and persons engaged in activities promoting
fair housing. Further, persons who are not involved in any aspect of
the sale or rental of a dwelling are nonetheless prohibited from
engaging in conduct to coerce, intimidate, threaten or interfere with
persons in connection with protected activities, or from retaliating
against any person involved in any way in a proceeding under the Fair
Housing Act.
Generally, the proposed regulations placed the responsibility for the
reasonable cause determination and the prosecutorial functions with the
General Counsel, while retaining the investigation and conciliation
functions with the Assistant Secretary for Fair Housing and Equal
Opportunity.
Several commenters urged that the Department modify the rule to leave
all aspects of Fair Housing enforcement responsibility with the
Assistant Secretary for Fair Housing and Equal Opportunity. Among other
arguments, the experience of the Assistant Secretary in administering
the several civil rights-related responsibilities of HUD was cited --
particularly the twenty years of experience in administering the Fair
Housing Act itself. In addition, commenters pointed out that the Civil
Rights Act of 1968 provided for the creation of a new HUD assistant
secretary position -- clearly intended to serve as the lead official for
civil rights responsibilities of the Department.
The Department agrees with the commenters that full utilization of
the Assistant Secretary's experience must be assured, and that the
original Fair Housing Act indeed intended that there be appointed an
assistant secretary specializing in civil rights concerns. Had the
proposed rule suggested removal of the responsibilities of the Assistant
Secretary for Fair Housing and Equal Opportunity and the awarding of
those responsibilities to the General Counsel, the above-summarized
arguments would be well-taken. No such proposal has been made, however.
Under the enforcement scheme set out in the proposed rule, the
responsibilities of the Assistant Secretary as they relate to Fair
Housing enforcement have been retained. The Assistant Secretary
continues to have full responsibility for complaint intake,
investigations, conciliations and for all related communications with
the parties concerning their procedural rights and obligations. Quite
clearly, given the greatly increased enforcement authority provided by
the Fair Housing Amendments Act and the addition of important newly
protected classes, the responsibilities of the Assistant Secretary have
been augmented greatly.
It proves too much, however, to argue that the creation of a new
assistant secretary's position in the 1968 Act somehow implies a duty in
the Secretary to delegate subsequently enacted authority to that single
officer. First, we note that the 1968 statute creating the new
assistant secretary did not provide for administration or judicial
enforcement of the Act, but only for the investigation and attempted
conciliation of complaints. More importantly, both the 1968 Act and the
1988 Amendments Act refer, in all their substantive provisions, to
responsibilities of the Secretary of Housing and Urban Development.
Nothing in either Act purports to require the Secretary to delegate this
responsibility to any particular officer or officers. It is clear,
then, that an argument that the Secretary is legally bound to delegate
his authority in a particular manner cannot be supported.
Commenters also argued that as a matter of policy, the delegation to
the General Counsel is inappropriate. Commenters noted that the
Assistant Secretary for Fair Housing and Equal Opportunity does not
share responsibility with any other office of the Department relative to
the Assistant Secretary's exercise of authority under other civil rights
statutes. These commenters are correct -- up to a point -- although
they ignore the fact of HUD General Counsel participation in any and all
matters involving civil rights and equal opportunity at the stage where
the Department becomes involved in formal enforcement, either through
the initiation of administrative enforcement proceedings or the referral
of matters to the Department of Justice for the initiation of civil
actions.
Given the clear intention of the amended Act that a HUD reasonable
cause determination will create a virtual certainty of litigation,
either in an administrative tribunal or in a Federal District Court, it
is not only rational and sensible but consistent with current
delegations of authority in the area of civil rights to provide that
responsibility for such determinations be in the hands of the
Department's legal officer. Similarly, the delegation of authority to
the General Counsel to conduct hearings before administrative law judges
under the Fair Housing Act seems to the Department not only to be a
rational decision, but a rather obvious one. Such a division of
responsibility is consistent with the practice of other agencies whose
administrative processes make a separation of functions necessary or
desirable.
One commenter noted that proposed 109.16(a) provided that the
Assistant Secretary is to make reasonable cause determinations in
advertising cases. The proposed rule intended to delegate all
responsibility for reasonable cause determinations to the General
Counsel. This section has been revised.
Under the final rule, the General Counsel is delegated the
responsibility for making the reasonable cause determination and for
prosecuting administrative cases under the 1988 Amendments. One
commenter noted that the General Counsel also has the responsibility to
defend against charges that HUD has violated the Fair Housing Act.
While the number of such cases may be small, the commenter argued that
proposed procedures cast suspicion on the impartiality of the General
Counsel in such matters. In the rare instances that complaints
involving such circumstances are filed, the Secretary will delegate the
General Counsel's responsibility for the reasonable cause determination
and, where an administrative proceeding is conducted, HUD's prosecuting
duties to another qualified employee of the Department. Since such
circumstances will rarely, if ever, occur, the text of the rule has not
been revised to reflect this eventuality.
The division of responsibility in the final rule has been modified
slightly to transfer certain duties from the General Counsel to the
Assistant Secretary. These include: (1) The ability to elect to have
the claims asserted in a charge decided in a civil action where HUD is
the complainant ( 103.410 and 104.410); (2) the duty to notify the
aggrieved person and the respondent when a reasonable cause
determination can not be made within described time periods (
104.400(c)); and (3) the duty to notify Federal, State and local
licensing and regulatory agencies under 104.935(a). In addition, the
final rule has been revised to require the notification of the Assistant
Secretary at certain points during the administrative proceeding (see
e.g. 104.700(a), 104.910(d), 104.920 and 104.930(d)).
In several instances, commenters suggested revisions to the proposed
rules that cannot be adopted because they conflict with statutory
limitations contained in the Fair Housing Act. The statutorily
impermissable proposals included:
1. Some commenters argued that the rules should require complainants
to file their complaint within 60 days of the date that an alleged
discriminatory practice has occurred or terminated. Section
810(a)(1)(A)(i) of the Act permit complainants to submit complaints not
later than one year after an alleged discriminatory housing practice has
occurred or terminated. (See subpart A.)
2. Commenters argued that respondents should have from 20 to 30 days
to respond to the complaint. Section 810(a)(1)(B)(iii) of the Act
provides that each respondent may file an answer to the complaint not
later than 10 days from the date of receipt of the notice. (See
103.50(b)(3) and 103.55.)
3. Commenters argued that the final rule should not permit the
referral of cases to agencies until they are found to be substantially
equivalent under the new law, or should be revised to permit the
complainant to choose whether to permit the referral under such
circumstances. Under section 810(f)(4), each agency certified for the
purposes of title VIII on the day before the enactment date must be
considered certified with respect to those matters for which the agency
was certified on that date. The transition period is 40 months from the
date of enactment. Under section 810(f)(1), HUD is required to make
these referrals. (See part 115.)
4. Several commenters urged HUD to retain the existing practice of
making a threshold determination to resolve based on facts developed in
the investigation before commencing conciliation. Such procedures would
be contrary to section 810(b)(1) which requires HUD to engage in
conciliation with respect to the complaint, to the extent feasible,
during the period beginning with the filing of the complaint and ending
with the filing of the charge or dismissal by HUD.
5. Commenters objected to 103.330(b) which permits the nondisclosure
of conciliation agreements, where the aggrieved person and the
respondent request the nondisclosure and the Assistant Secretary
determines that disclosure is not required to further any purpose of the
Fair Housing Act. Under section 810(b)(4), nondisclosure is permitted
under such circumstances.
6. Commenters objected to the requirement for the public disclosure
of complaints dismissed based on a finding of no probable cause.
Section 810(g)(3) requires public disclosure.
Applicability. Except for complaints involving allegations of
discriminatory housing practices occurring before and continuing after
the effective date of the 1988 Amendments (March 12, 1989), the proposed
rule provided that:
-- Complaints alleging discriminatory housing practices that
occurred before the effective date of the 1988 Amendments are governed
by the procedures in part 105.
-- Complaints alleging discriminatory housing practices that
occur on or after the effective date of the 1988 Amendments are governed
by the procedures in part 103.
For complaints alleging violations that occur before and continue
after March 12, 1989, the proposed rule provided:
-- Complaints filed after March 12, 1989 would be processed under
part 103.
-- Complaints filed before March 12, 1989 would continue to be
processed under part 105; however, the Department would provide the
complainant with a reasonable opportunity to elect to have the complaint
processed under part 103 in lieu of the part 105 procedures.
Commenters argued that the final rules must be revised to provide
retroactive application of the Act's new remedies and enforcement
procedures to all complaints pending on March 12, 1989, including those
that do not involve continuing violations. Other commenters argued that
the regulations should not apply to any complaints filed under part 105
prior to March 12, 1989.
HUD has reviewed its determination regarding the applicability of the
1988 Amendments. Upon reconsideration, HUD believes that the proposed
rules unduly restrict the cases to which the new remedies under the 1988
Amendments will be applied. It is clear that Congress did not intend
the Act to receive the restricted application proposed by HUD.
Significantly, the plain language of section 815 places no limitation
upon its applicability, but rather provides: ''This Act and the
amendments made by this Act shall take effect on the 180th day beginning
after the date of enactment of the Act.'' At no point does the Act
suggest that its provisions should receive less than the broadest
application of the effective date provision.
The general rule of statutory construction is that remedial and
procedural legislation not affecting vested rights must be applied to
any claim cognizable under the prior law that is pending on the
effective date or that is filed thereafter. Bradley v. Richmond School
Board, 416 U.S. 696 715-16 (1974). While it is true that statutes that
affect substantive rights ordinarily may not be applied retroactively,
United States v. Security Industrial Bank, 459 U.S. 70, 79 (1982),
this principle has no applicability here. The 1988 Amendments (except
as to discriminatory housing practices involving handicap and familial
status) do not create new legal duties or responsibilities. Rather,
they merely provide a new process by which aggrieved persons may enforce
existing rights protected under title VIII. I.e., The 1988 Amendments
create new procedures for the filing, investigation and conciliation of
complaints concerning discriminatory housing practices and strengthen
the remedies available to victims of housing discrimination by providing
for administrative hearings, and by increasing the availability of civil
penalties, attorney's fees, etc. Because the new remedies and
enforcement procedures do not affect vested rights, retroactive
application is entirely appropriate, unless a manifest injustice would
result. See, e.g., Bradley, supra. (increased availability of
attorney's fees); Friel v. Cessna Aircraft Co., 751 F.2d 1037 (9th
Cir. 1985) (extension of limitations period); Montana Power Co., v.
Federal Power Comm., 445 F.2d 739 (D.C. Cir. 1970) (change in tribunal);
and Grummitt v. Sturgeon Bay Winter Sports Club, 354 F.2d 564 (7th
Cir. 1965 (change in procedure)).
To bring the final rule into conformance with the Act and the
well-settled law, parts 103 and 105 have been revised. Under the final
rule, part 103 will be applicable to all complaints alleging
discriminatory housing practices on account of race, color, religion,
sex or national origin pending on March 12, 1989 or filed thereafter;
and to all complaints alleging discriminatory housing practices on
account of handicap or familial status occurring on or after March 12,
1989. Part 105 will have no continuing validity and will be removed.
One commenter asked for clarification whether complaints that allege
discriminatory housing practices involving handicap and familial status
that occur before March 12, 1989 and will continue after that date may
be filed prior to March 12, 1989. Discriminatory housing practices
involving handicap or familial status do not violate the Act until March
12, 1989. Since it will be impossible to predict whether an individual
will continue a previous practice after the practice becomes a violation
of the Act, HUD will not accept any complaints alleging such
discrimination filed before March 12, 1989. To ensure that complainants
are aware of their right to file if the practice continues, the
rejection will be accompanied by an explanation of the complainant's
right to refile after March 12, 1989.
Applicability of part 103 to State and local agencies. Several
commenters sought clarification concerning the applicability of various
requirements in part 103 (and part 104) to complaints filed with or
referred to State and local agencies. Part 103 contains the procedures
for the investigation and conciliation by HUD of complaints filed under
section 810 of the Act and part 104 contains the rules of practice and
procedure applied by HUD's ALJs in administrative proceedings
adjudicating charges issued under part 103. These parts do not, by
themselves, impose any requirements on the processing of complaints at
the State or local level. Part 115, on the other hand, sets forth the
criteria for HUD's certification that a State or local law is
substantially equivalent, and its requirements parallel many of the
requirements contained in parts 103 and 104.
Some commenters urged language specifically stating that certain
provisions (e.g., HUD procedures for the investigation of complaints)
are not binding on State and local agencys. HUD believes that 103.1,
104.10 and 115.1 clearly state the applicability of the parts and that
further clarification is unnecessary.
Complaint processing and Section 504. Proposed 103.1(c) provided
that HUD will conduct investigations and conciliations in accordance
with section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794). One
commenter argued that this paragraph should only apply when a complaint
involves an allegation of discrimination that is based on handicap. The
proposed section was designed to provide for the reasonable
accommodation of persons with disabilities who are participants in the
fair housing complaint process. The provisions of this section were not
intended to be limited to complaints involving allegations of
discrimination based on handicap. This section has been clarified in
the final rule.
In addition to revisions of aggrieved person, dwelling unit and
person discussed in the comments to part 100 above, comments on the
definitions of personal service and receipt of notice were received.
One commenter argued that HUD should delete these proposed
definitions and incorporate requirements for personal service and for
receipt of service contained in the Federal Rules of Civil Procedure.
Another commenter urged HUD to abandon certified mail as a permissible
means of service on non-agency participants because service may be
frustrated by an addressee's refusal to claim. HUD's current rules
provide for the service of documents by certified mail or through
personal service. (see 105.18). These methods have not, as yet,
presented significant practical difficulties in the processing of
complaints and have been retained in the final rule.
Proposed 103.10 contains provisions governing the submission of
information concerning alleged discriminatory housing practices and
notes that, if the submitted information warrants, HUD may concurrently
initiate compliance reviews under other civil rights authorities. In
response to commenters, the Age Discrimination Act of 1975 has been
added to the list of civil rights authorities in this section and
103.5, and minor editorial change has been made for clarity.
Section 103.15 permits any aggrieved person or the Assistant
Secretary to file a complaint. One commenter noted that individuals who
are subject to housing discrimination are likely to be low-income
persons who cannot read, write, or express themselves articulately. The
commenter suggested that 103.15 be amended to require HUD personnel to
provide full and comprehensive assistance throughout the complaint
process, including assignment of an attorney. Similar revisions were
requested for 103.10(a), 103.30(b), 103.300(b), and 104.10(b). Section
103.15 also provides that a complaint may be filed with the assistance
of an authorized representative of an aggrieved person, including any
organization acting on behalf of an aggrieved person. One commenter
would modify this provision to require HUD to notify the authorized
representative acting on behalf of the aggrieved person, concerning the
status of cases.
The Department agrees that it is vital that HUD provide full
assistance to persons who wish to file a complaint and that HUD continue
to provide assistance throughout the complaint processing procedure.
Accordingly, the Department intends to pursue its current practice of
providing appropriate assistance to such persons. In addition, HUD
will, at the request of a complainant, provide information concerning
the status of the complaint to an authorized representative in the same
manner as such notification is provided to complainants. While the
Department intends to provide such information, HUD does not believe
that it is necessary to codify these policies in the regulations.
Under proposed 103.20(a), a complaint may be filed against any
person alleged to be engaged, to have engaged, or to be about to engage
in a discriminatory housing practice. Commenters urged the deletion of
language permitting complaints against respondents that are ''about to
engage'' in a discriminatory housing practice. The cited language is a
necessary adjunct to the definition of aggrieved person found in the
statute (''Aggrieved person means any person who * * * believes that
such person will be injured by a discriminatory housing practice that is
about to occur.'') The cited regulatory provision is retained.
Proposed 103.20(b) provides that a complaint may also be filed
against any person who directs or controls or has the right to direct or
control, the conduct of another person with respect to any aspect of the
sale, rental, advertising, or financing of dwellings or the provision of
brokerage services relating to the sale or rental of dwelling, if that
other person, acting within the scope of his or her authority as
employee or agent of the directing or controlling person, is engaged,
has engaged or is about to engage in a discriminatory housing practice.
Commenters argued that the definition of agency relationships
described in this paragraph is confusing, may be too narrow, and does
not correspond to the standards established by case law. Other
commenters suggested that this provision could be improved by the
provision of examples drawn from case law and that problems concerning
this section could be remedied by the deletion of the language ''within
the scope of his or her authority''.
Paragraph (b) expands on the general provisions contained in
103.20(a). This provision reflects HUD's current rules governing the
types of persons against whom complaints may be filed (see 105.13(b)).
This part 105 regulation was adopted in the final rule issued June 27,
1988 (53 FR 24184). In that rule, HUD explained that the provision was
based on judicial precedent to the effect that persons involved in the
sale, rental or financing of dwellings have a nondelegable duty to
assure that all conduct relating to any aspect of the sale, rental or
financing of dwellings complies with the Fair Housing Act and that a
person who supervises, directs or employs other persons can be legally
responsible for actions of such other persons which violate the Fair
Housing Act. See U.S. v. Youritan Construction Co., 370 F.Supp. 643
(N.D. Calif. 1973), modified as to relief and affirmed, 509 F.2d 623
(9th Cir. 1975); Northside Realty v. U.S., 605 F.2d 1348 (5th Cir.
1979); Marr v. Rife, 503 F.2d 735 (6th Cir. 1974); U.S. v. Northside
Realty, 474 F.2d 1164 (5th Cir. 1973); Moore v. Townsend, 525 F.2d 482
(7th Cir. 1975); Johnson v. Jerry Pals, Real Estate, 485 F.2d 528 (7th
Cir. 1973); Dillion v. AFBIC Development Corp., 420 F.Supp. 572 (S.D.
Ala. 1976); and U.S. v. Real Estate Development Corp., 347 F.Supp. 776
(N.D. Miss. 1972). Commenters on that rule asserted that the judicial
decisions did not establish a rule of liability without fault as the
proposed rule (published October 16, 1984 (49 FR 40528)) suggested; and
that the decided cases focused only on the liability of a broker for
conduct of his or her salepersons, but did not manage absolute liability
on the mere basis to direct or control without reference to
instructions, policies, compliance programs, and other actions of the
principal. In response to these comments, HUD announced that it was not
its intent to impose absolute liability on any principal, but rather to
follow the existing case law of the liability of the principal. As a
result of this discussion, the language ''acting within his or her
authority'' was added. The commenters on the proposed rule implementing
the 1988 Amendments have presented no argument that convinces the
Department that its current analysis of the case law on this point is
incorrect.
Section 103.25 permits aggrieved persons to provide information to be
contained in a complaint by telephone to HUD Regional and Field Offices.
While some commenters have argued for the deletion of this procedure,
HUD does not believe that the filing of complaints should be limited in
the manner the commenters suggest. The final rule continues HUD's
practice of reducing information provided by telephone to writing on the
complaint form and sending the form to the aggrieved person for
signature and affirmation.
A substantially equivalent agency complained that HUD's proposed
procedures do not recognize that State and local agencies may have their
own filing procedures and complaint formats. The agency argued that
HUD's regulations should state that complaints may be filed with such
agencies in accordance with their filing procedures and that complaints
submitted on the agency forms will be accepted if they meet the
requirements of 103.30(c). These requirements are contained in the
regulation at 103.25(a)(3) and 103.30(b). The regulation is unchanged
on this point.
In response to a commenter, 103.30(a) and 103.55(a) have been
amended to delete the requirement that complaints and answers must be
attested to before a notary public or a duly authorized representative
of the Assistant Secretary. This attestation burden is unnecessary.
Section 810(a)(1)(D) requires only that complaints and answers be under
oath and affirmation. Under 24 U.S.C. 1746, the oath and affirmation
requirement is satisfied if the complainant (or respondent) signs the
following statement: ''I declare under penalty of perjury that the
foregoing is true and correct.''
Section 103.42 has been revised to clarify that complaints may be
reasonably and fairly amended at any time and that the list of
circumstances under which complaints may be amended is illustrative
only.
additional or substitute respondents.
Section 810(a)(1)(B)(i) of the Act requires the Secretary to serve
notice upon the aggrieved person acknowledging the filing of a complaint
and advising the person of the time limits and choice of forums provided
under title VIII. Section 810(a)(1)(B)(ii) of the Act requires the
Secretary to serve a notice on the respondent within 10 days of the
filing of the complaint (or within 10 days of the identification of a
substitute or additional respondent). This notice must identify the
alleged discriminatory housing practice and advise the respondent of the
procedural rights and obligations of respondents under title VIII, and
include a copy of the complaint. These sections are implemented at
103.45 and 103.50 respectively.
Commenters emphasized the importance of the notice to aggrieved
persons and respondents and suggested various additions to and
modifications of the proposed regulations. The suggested changes
included the addition of a requirement for the service of copies of
title VIII, applicable regulations and forms, and revisions of the
description of the procedural rights and obligations under title VIII
and related laws to provide greater detail.
The regulation at 103.45 and 103.50 describes, in general terms,
the notification that will be provided to aggrieved persons and
respondents. HUD intends to develop forms consistent with these
regulatory provisions that will define with greater detail the
procedural rights and obligations of the parties under the complaint
processing procedures, and that will describe the additional information
that will be provided to assist the parties. While HUD does not believe
that it is necessary to detail these provisions in the regulations, HUD
will take the comments on these sections into consideration in
developing its notification forms.
One commenter argued that 103.55 (Answer to complaint) should be
revised to state that the respondent is under no obligation to file an
answer and that a decision not to answer will have no impact on the
respondent's position in the case. This section clearly provides that
the filing of an answer is permissive. Since answers will generally
expedite complaint processing, the regulations should not include
provisions that would discourage their filing.
Section 103.100 states the procedures for the notification and
referral of complaints to substantially equivalent State and local
agencies and provides for the notification of the aggrieved person and
the respondent of the referrals, including the notification of the right
of the aggrieved person to commence a civil action under section 813 of
the Fair Housing Act. A commenter suggested that the notification under
this section (and under 103.115 -- Notification upon reactivation) also
state that a suit may be filed in State court as well as Federal court.
The proposed revision has not been made since State and local
jurisdictions must provide such notifications to the complainant and the
respondent as a requirement of certification (see 115.3(a)(1) (ii) and
(iii).
Under 103.110, HUD will reactivate a referral complaint under three
circumstances. Comments regarding each of these circumstances are
discussed below.
Consensual reactivation. The complaint may be reactivated when a
substantially equivalent State or local agency consents to the
reactivation. In response to a comment, this section has been clarified
to add that the Assistant Secretary may reactivate a complaint with the
consent or at the request of the agency.
Prompt processing. The complaint may be reactivated if the
substantially equivalent State or local agency fails to commence
proceedings with respect to the complaint within 30 days of the date
that the agency received the notification and referral of the complaint,
or the agency commenced proceedings within this 30-day period, but the
Assistant Secretary determines that the agency has failed to carry the
proceedings forward with reasonable promptness. HUD will not reactivate
a complaint under these conditions, however, until the appropriate HUD
Regional Office has conferred with the agency to determine the reason
for the delay in the processing of the complaint. If the Assistant
Secretary believes that the agency will proceed expeditiously following
the conference, HUD may leave the complaint with the agency for a
reasonable time.
While commenters supported the provision for consultation prior to
reactivation, several changes were recommended. Commenters suggested
that the regulations should provide for a written notice announcing the
time and place for the conference and stating the reasons that the
proceeding may be reactivated. Consultation contemplated under this
section will be an informal process. In many instances, HUD anticipates
that the consultation will be best accomplished through such measures as
a telephone, rather than a face-to-face, consultation. To ensure that
the procedures to be used are flexible and best suited to the certified
agency, the procedures for consultation will be negotiated with each
certified agency and incorporated in the memorandum of understanding.
The proposed change is not included in the final rule.
In order to prevent arbitrary actions by the regional offices,
commenters recommended that HUD establish criteria for determining when
an agency has failed to act with reasonable promptness. Specific
suggestions included placing an upper limit on the amount of time that
HUD may leave a complaint with an agency; and establishing procedures
for the identification and time limits for processing of specific types
of cases that require a greater processing time (i.e., systemic cases).
The determination that an agency has failed to act with reasonable
promptness is one that must be made on a case-by-case basis through
consultation with the certified agency. Given the numerous factors that
must be considered (e.g., the subject matter, the number of aggrieved
persons, the complexity of the issues involved in the complaint, the
progress made by the agency since the referral of the case, the workload
and resources available to the certified agency, scheduling difficulties
between the agency, the aggrieved person and the respondent, etc.), HUD
does not believe that it would be worthwhile to set forth the list of
all relevant factors that may reflect a determination that an agency has
failed to act with reasonable promptness.
Some commenters have argued that HUD's failure to provide greater
specificity with regard to the issue of reasonable promptness and the
reactivation of complaints is contrary to the goal of the 1988
Amendments to achieve expeditious resolution of complaints. HUD notes,
however, that certified agencies must meet various performance standards
for initial and continued certification, including limitations on the
time for processing of complaints (see 115.4). HUD believes that these
limitations and the provisions for reactivation for failure to act with
reasonable promptness are sufficient to serve the purposes of the Act.
A commenter requested regulatory clarification defining what is meant
by commenced proceedings. Because the 1988 Amendments provide for
conciliation beginning as early as the filing of the charge, this term,
as used in the final rule, could mean the start of investigation or the
start of conciliation. Since the initial investigation or conciliation
activity to be conducted will vary from agency to agency, HUD has not
defined commencement of proceedings in the regulation. This term will
be defined in the memorandum of understanding with each agency and will
be based on the individual agency's procedures.
Decertification. Complaints may also be reactivated if the Assistant
Secretary determines that the agency no longer qualifies for recognition
as a substantially equivalent State or local agency and may not accept
interim referrals with respect to the alleged discriminatory housing
practice. No comments were received on this issue.
Under 103.115, the Assistant Secretary is required to notify the
certified State or local agency, the aggrieved person and the respondent
of the reactivation of a complaint. A commenter noted that HUD staff
often will notify the parties that they do not need to continue to
cooperate with the certified agency after reactivation. The commenter
argued that the notification in 103.115 should clearly indicate that
the agency may continue to process the complaint after reactivation and
that the parties should continue to cooperate with such efforts.
HUD recognizes the certified agency's responsibility under State and
local law to continue processing complaints following reactivation. The
final rule has been amended to assure that the parties are aware of
these responsibilities.
One commenter, a mortgage banking association, feared that
individuals frustrated by the rejection of loan applications for
legitimate underwriting reasons will use the fair housing complaint
process to appeal their rejection. The commenter urged HUD to provide a
screening process to eliminate those complaints that fall outside of the
fair housing area. If a complaint, on its face, sets forth an
allegation of a discriminatory housing practice, HUD is obligated to
accept the complaint and process it under its procedures. HUD cannot,
and has not, provided a ''screening process'' to eliminate such
complaints.
HUD-initiated investigations. Upon the filing of a complaint, the
Assistant Secretary is required to initiate an investigation. In
addition to investigations initiated by complaints, the 1988 amendments
permit HUD to initiate an investigation of housing practices to
determine whether a complaint should be filed under subpart B (see
section 810(a)(1)(A)(iii) of the Act). The proposed rule would permit
such investigations upon the written direction of the Assistant
Secretary.
While many commenters supported the provisions permitting HUD to
initiate complaints, they opposed the requirement that these
investigations may be initiated only upon the written direction of the
Assistant Secretary. Commenters argued that the requirement is
impractical, will delay investigations and should be stricken. As an
alternative, the commenters suggested that the regulations provide that
the Assistant Secretary may delegate authority to the regions to
initiate investigations under certain circumstances.
HUD emphasizes that the requirement for prior approval applies only
to those investigations that are initiated by HUD. In the absence of a
complaint alleging a discriminatory housing practice made by an
aggrieved person, HUD believes that the approval of the Assistant
Secretary is necessary to ensure that sufficient grounds for
investigation exist and to ensure the efficient utilization of
resources. While the text of the rule states that the Assistant
Secretary will make such approvals, as the Department develops uniform
internal standards to govern the initiation of investigations and gains
experience with HUD-initiated investigations, the Assistant Secretary
will make appropriate delegations of authority for the initiation of
investigations to the regional offices. Such delegations of authority
can be made by Federal Register notice without the necessity of a
rulemaking procedure.
Testing during investigations. One commenter argued that section
103.200 should provide that HUD will conduct professional testing or
will fund other groups to conduct testing during the investigation
stage. In connection with this revision, the commenters urge HUD to
establish (with the assistance of housing professionals) the standards
for conducting tests, what the tests should measure and the criteria to
be used in determining whether discrimination exists.
Testing has been sanctioned by court decisions as an appropriate and
essential tool of fair housing enforcement, and HUD will consider
evidence developed through testing or auditing by fair housing groups or
representatives of an aggrieved person in its investigations. HUD
staff, however, does not engage in testing. Funding for private
entities conducting projects designed to enforce the Fair Housing Act
and substantially equivalent fair housing laws will be permitted under
the Fair Housing Initiatives Program (proposed rule published July 7,
1988 (53 FR 25576)).
Section 103.205 provides for the systemic processing of complaints.
One commenter objected to the inclusion of this provision. The
commenter argued that HUD's processing should be limited to the specific
complaint, not other fair housing issues.
Section 810 clearly contemplates the investigation of matters related
to, but not specifically alleged in, the filed complaint. (E.g.,
section 810(g)(2)(B) provides that the charge need not be limited to the
facts or grounds alleged in the filed complaint.) The purpose of
systemic processing is to provide for the investigation of
discriminatory housing practices that are pervasive or institutional in
nature and for the processing of complaints that involve complex issues,
involve novel questions of fact or law, or affect a large number of
persons. HUD believes that the cited revision is inconsistent with the
scope of HUD's investigative authority and would undermine HUD's ability
to address complex issues. The proposed change has not been made in the
final rule.
Section 103.215(a) continues HUD's existing practice of seeking the
voluntary cooperation of persons to obtain access to information
necessary to further the investigation. One commenter argued that this
section serves no useful purpose. Much of the information obtained
through HUD's investigations is provided through cooperative efforts
rather than through procedural discovery techniques. In recognition of
the success of these efforts, paragraph (a) is being retained.
Section 103.215(b) states that the Assistant Secretary and the
respondent may conduct discovery in aid of the investigation by the same
methods and to the same extent that parties may conduct discovery in an
administrative hearing under part 104, except that the Assistant
Secretary would have the power to issue subpoenas as described in
104.590 in support of the investigation or at the request of the
respondent. One commenter argued that paragraph (b) does not comport
with the statute and appears to unnecessarily complicate discovery. The
commenter suggested the substitution of language directing that
discovery and subpoenas be issued in the same manner as in civil actions
in the United States District Court for the district in which the
investigation is taking place.
The reference in the rule to the part 104 procedures provides
uniformity in discovery techniques while assuring compliance with the
statutory requirement in section 811, which provide that discovery and
subpoenas be issued in the same manner as civil actions in the United
States for the district in which the investigation is taking place.
(See 104.500(a) and 104.590(a)). The rule is unchanged.
Another commenter argued that since HUD should be neutral with
respect to the parties during the investigation, there is no reason to
deny the aggrieved person the right to conduct discovery while providing
this same right to the respondent. While HUD is neutral with respect to
the parties, the parties' positions during the investigation are not
equal. The respondent is the focus of an investigation aimed at
determining whether he or she has committed a discriminatory housing
practice and, thus, must be offered the ability to discover information
in its own defense. The complaining party, on the other hand, by filing
a complaint rather than pursuing its own civil action under section 813,
places the conduct of the investigation in HUD's hands and will not be
allowed to conduct separate discovery. HUD notes that the Fair Housing
Act does not foreclose a discovery avenue to aggrieved persons who have
filed complaints, since the complainant may file a civil action under
section 813(a) with regard to the alleged discriminatory housing
practice and obtain discovery through the court proceeding.
Subpoenas issued by the Assistant Secretary would require the
approval of the General Counsel before issuance. Some commenters argued
that only one entity should be involved in the issuance of subpoenas
during the investigation. These commenters would delete the references
to General Counsel's approval of subpoena issuances. Subpoenas issued
by HUD in furtherance of an investigation may be challenged or enforced
through judicial proceedings. Since the legal sufficiency of the
subpoena will be at issue, it is necessary to ensure that the issuance
is justified. Accordingly, the rule continues to provide for review by
the General Counsel. A minor clarifying change has been included
limiting the General Counsel's review to legal issues.
Section 103.220 reflects provisions currently contained in part 105
which permit the Assistant Secretary, in processing Fair Housing Act
complaints, to seek the cooperation and utilize the services of State
and local agencies and of other appropriate Federal agencies. Proposed
103.220 also contained language designed to ensure that other Federal
agencies are aware of their responsibility under section 808 (d) and (e)
of the Act and under Executive Order No. 12259.
Upon review, HUD has concluded that proposed 103.220 may generate
confusion concerning the agencies' obligations to provide information
during the investigation process and their duty to ensure that programs
and activities are administered in a manner that will affirmatively
further fair housing and their duty to cooperate with the Assistant
Secretary in furthering the purposes of the Fair Housing Act, including
the conduct of investigations. To clarify these provisions, 103.220
has been revised to state that the Assistant Secretary, in processing
Fair Housing Act complaints, may seek the cooperation and utilize the
services of Federal, State or local agencies, including any agency
having regulatory or supervisory authority over financial institutions.
Provisions governing other agencies' duties to affirmatively further
fair housing and for cooperating in furthering the purposes of the Fair
Housing Act have been moved to a new 103.515 entitled ''Actions by
other agencies''.
One commenter argued that this section does not clearly announce what
type of cooperation HUD will generally expect of banking regulators, or
what role these agencies will play in providing material for
investigations. The commenter also asserted that it is unclear whether
material generated by banking regulators or financial institutions in
response to regulatory requirements and for purposes unrelated to the
proposed rule would, contrary to existing banking policy, become public
documents. Another commenter supported the aims of 103.220 but
suggested specific regulatory provisions designed to address the duty of
other agencies to cooperate in investigations and procedures to be
followed in pursuing discovery from such agencies.
HUD intends to review and upgrade its memoranda of understanding with
covered agencies to cover our cooperative understandings concerning the
provision of in formation to HUD under the Fair Housing Act, including
information to be provided pursuant to investigations. All terms and
conditions of HUD access will be addressed in these agreements.
Accordingly, it is not necessary to provide more specific regulations in
this area.
Completion of investigation. Section 103.230 states that the
investigation will remain open until the reasonable cause determination
is made. A commenter argued that the General Counsel, who is charged
with making the reasonable cause determination, could remove a case from
the Assistant Secretary's control by issuing a determination on
reasonable cause before the complaint is fully investigated. This
commenter felt that conciliation should be available until the complaint
is transferred by the Assistant Secretary to the General Counsel for a
reasonable cause determination and the General Counsel has filed a
charge or dismissed the complaint. To remedy this problem,
103.400(c)(1) has been revised to provide that the General Counsel shall
make the reasonable cause determination only after the Assistant
Secretary forwards the matter for consideration.
Deadline for completion of investigation. Section 810(a)(1)(B)(iv)
and (C) provide that HUD must complete investigations within 100 days
after the filing of the compliant (or, when a complaint has been
referred to a substantially equivalent State or local agency and
reactivated, within 100 days after service of the notification of
reactivation), unless it is impracticable to do so. If the
investigation cannot be completed within this time limit, HUD is
required to notify the aggrieved person and the respondent of the
reasons for the delay. Section 810(g)(1) requires HUD to make the
reasonable cause determination within the same 100-day time period, and
to provide notification of the reasons for any delay. These
requirements were included in 103.225 and 103.400(c) of the proposed
rule.
Several commenters requested deletion of the impracticability
exception. The impracticability exception was a recognition by Congress
that there may be circumstances where investigations may not be
completed, and the reasonable cause determination made, within the
prescribed 100-day period. While HUD intends to meet these deadlines
whenever it is within its power to do so, it is concerned that the
imposition of a strict 100-day deadline will not recognize the need for
a lengthier investigation in complaints involving complex issues or
recalcitrant respondents, and that respondents could argue for the
dismissal of an otherwise meritorious complaint based on the failure to
complete an investigation. Since HUD perceives that no valid fair
housing-related goal would be served by imposing a strict 100-day
deadline in all cases, the impracticability standard has been retained.
Other commenters argued that the regulation must clearly identify the
circumstances under which it will be impracticable to complete the
investigation or issue a reasonable cause determination within the
100-day period. These commenters suggested that impracticability be
defined as extraordinary circumstances in the specific case and that the
rule should state that the routine processing of other cases will not be
grounds for a finding of impracticability. The range of circumstances
that could legitimately cause delay in a case is numerous, and HUD is
not prepared to identify all possible circumstances that would make it
''impracticable'' to take the described actions within the prescribed
time period. Moreover, even if HUD were to articulate all such
circumstances, it would not preclude the consideration of the demands
upon HUD's resources caused by other docketed cases. Such a definition
would fail to recognize that even the best-managed case inventory system
may not posses sthe excess capacity to respond to extraordinary demands
upon resources.
Requirements governing the contents of the investigative report are
codified at 103.230. Paragraph (a)(1) of this section provides that the
investigative report will disclose the names and dates of contacts with
witnesses, but will not disclose the names of witnesses that request
anonymity. As noted in the rule, however, HUD may be required to
disclose the names of such witnesses during the course of an
administrative hearing under part 104 or in a civil action under title
VIII. Commenters argued that the provision for nondisclosure of the
identity of witnesses should be eliminated. The questioned provision
merely continues HUD's current policy with regard to the disclosure of
the identity of witnesses. Contrary to the allegations of the
commenters, this policy has not undermined the credibility of HUD's
investigations nor has it stifled conciliation efforts. The provision
has been retained in the final rule.
One commenter argued that the regulations also should bar the
disclosure of personal information about third parties and safeguard
information that potentially could endanger the physical safety of the
parties or of a third party. While HUD's final investigative report
will avoid the inclusion of extraneous information, it is impossible for
HUD to bar the disclosure of all information about third parties and to
guarantee the individual safety of parties or of a third party. The
proposed provision has not been included.
One commenter was concerned that the format for the investigative
report may not provide an adequate basis for a reasonable cause
determination. The investigative report will not be the only document
available in connection with the making of a reasonable cause
determination. The actual statements of witnesses and documentary
evidence as well as the analysis of the investigation also will be
considered. Internal procedures relating to these matters will be
developed by HUD. Such procedures are not appropriate for inclusion in
this rule.
Commenters urged that the FIR requirements be expanded to include a
recommendation by the investigator on the reasonable cause determination
and to include the facts and legal basis for the investigator's
recommendation. As a matter of internal policy, HUD anticipates that
the views of the investigator with regard to the reasonable cause
determination will be communicated to the General Counsel's office. HUD
does not believe that it is necessary to incorporate this requirement in
the regulation.
As required under section 810(d)(2) of the Act, 103.230(c) provides
that the Assistant Secretary shall make information derived from an
investigation, including the final investigative report, available to
the aggrieved person and the respondent, upon request, at any time
following the completion of the investigation. In response to a
commenter, the final rule has been revised to require HUD, following the
completion of the investigation, to notify the aggrieved person and the
respondent that the FIR is complete and will be provided or upon
request. Under most circumstances, the notification will be provided
with the charge, where a charge is issued under 103.405, or with the
notice of dismissal under 104.400(a)(2).
If conciliation is successful, the terms of the settlement are
reduced to a written conciliation agreement. Section 810(b)(2) of the
Act provides that a conciliation agreement shall be an agreement between
the respondent and the complainant, and shall be subject to the approval
of the Secretary. Section 103.310(b) incorporates these requirements
and states that the Assistant Secretary will indicate HUD approval of
the conciliation agreement by signing the agreement.
The final rule makes a minor revision to this provision. Under the
proposed rule, if HUD is the complainant, the Assistant Secretary would
execute the agreement only if the aggrieved person is satisfied with the
relief provided to protect his or her interest. The final rule
recognizes that there may be circumstances where HUD may file a
complaint that identifies a class of aggrieved persons, rather than
specific aggrieved persons. Under such circumstances it would be
impossible to determine if all aggrieved persons in the class are
satisfied with the relief accorded. Accordingly, the final rule permits
the Assistant Secretary to execute the agreement if all aggrieved
persons named in the compliant filed by HUD are satisfied with the
relief provided to protect their interests.
Section 103.310(b)(2) would preserve the General Counsel's ability to
issue a charge under 103.405, where the aggrieved person and the
respondent have executed a conciliation agreement that has not been
approved by the Assistant Secretary.
Commenters argued that HUD should not be permitted to commence or
continue the investigation once an agreement is reached between the
aggrieved party and the respondent. The commenters argued that the
retention of this provision would ''chill'' conciliation agreements
between the aggrieved person and the respondent and would serve no
purpose since the Assistant Secretary will have right to initiate
complaints under the 1988 Amendments. HUD could lose the ability to
initiate a new complaint if the time period for the filing of the
complaint has passed. Moreover, it would be wasteful of administrative
resources to require HUD to file another complaint and to maintain a
second case file under these circumstances. The final rule does not
adopt the commenter's suggestion.
Section 103.315 lists the types of relief that may be sought for the
aggrieved person during conciliation. Under paragraph (a)(1), monetary
relief in the form of damages, including damages caused by humiliation
or embarassment and attorneys fees. One commenter argued that monetary
relief should be limited to ''compensatory'' damages. Another commenter
argued against the provision of damages for humiliation or
embarrassment, stating that such a practice would result in
extraordinary and unreasonable damage awards.
HUD has left paragraph (a)(1) unchanged. Damages for humiliation and
embarrassment and noncompensatory damages (i.e., punitive and exemplary
damages) can be awarded in civil actions brought under title VIII.
Since respondents will seek a full release of all claims as a part of
the conciliation, the regulation should permit negotiations that take
such factors into account as a part of the settlement. Although
monetary damages other than actual damages are usually not provided for
in a conciliation agreement, it is HUD's intent that the rule not
preclude the possibility of seeking punitive or exemplary damages for an
aggrieved person in an appropriate situation.
Paragraph (a)(2) provides for other make-whole relief, including
access to the dwelling at issue or to a comparable dwelling, the
provision of services or facilities in connection with a dwelling, or
other specific relief. This provision has been amended to provide for
''other equitable relief, including but not limited to'' the listed
actions. While one commenter felt that the provision for access to a
comparable dwelling was redundant, HUD believes that the inclusion of
this provision is appropriate to cover situations where the original
dwelling at issue is no longer available.
Commenters argued that the provisions permitting the binding
arbitration of disputes arising out of the complaint could be improved
by the addition of a description of the rules and procedures that will
be used in arbitration. This change has not been made. HUD wishes to
keep the arbitration remedy as flexible as possible in order that
individual aggrieved persons and respondents will have the opportunity
to adopt the procedures that will best suit their circumstances.
Section 103.320 lists the types of provisions that may be sought for
the vindication of the public interest. Commenters argued that the
regulations should announce the standards that HUD will use in
determining whether a conciliation agreement will adequately vindicate
the public interest. No useful purpose would be served by listing every
form of public interest that HUD may protect with conciliation agreement
provisions. These provisions are often tailored to the circumstances of
particular cases. The suggested change has not been adopted.
One commenter noted that civil penalties may be assessed in the
administrative proceeding and the civil action. This commenter urged
HUD to add a new provision permitting the seeking of civil penalties of
up to $50,000 in conciliation. As noted above, HUD has not precluded
the negotiation of damages in lieu of possible court-awarded punitive
damages on behalf of the aggrieved person in conciliation, because such
agreements are made in return for the full release by the aggrieved
person of all claims against the respondent. However, since the public
interest is vindicated by ensuring future compliance and by rectifying
the effects of past discriminatory housing practices, rather than
penalizing the respondent for such practices, civil penalties have not
been added under 103.320.
One commenter argued that HUD should be permitted to seek
compensation for private fair housing groups that have participated in
mediation or investigation before the complaint is filed. HUD
recognizes that private fair housing groups often play a significant
role in assisting and referring complaints on a Federal and State level,
and in providing initial investigation and mediation assistance that is
often useful in handling the complaint after it is filed. However, HUD
does not believe that the conciliation agreement is an appropriate
device for the recovery of such compensation on behalf of the fair
housing group in any case where the group is not an aggrieved person.
In other instances, HUD fears that attempts to recover compensation for
such groups would be viewed as collusion between HUD and the groups.
Under section 810(d), nothing said or done in the course of
conciliation may be made public or used as evidence in a subsequent
proceeding under title VIII without the written consent of the persons
concerned. Proposed 103.330(a) implemented this provision with the
additional statement that information disclosed during conciliation
would not be used in the investigation of the complaint.
Upon reconsideration, HUD has decided to remove the additional
statement concerning information disclosed during conciliation. By
barring the use of conciliation statements or conduct ''in an
investigation'', the proposed rule imposed greater restraints on the use
of such information than are imposed under the statute. The statutory
language represents a balance between the need to encourage candor in
conciliation discussions and the need for a full development of the
facts in the investigation and litigation of the complaint. The
proposed language, in striking a different balance, may not conform to
the statutory intent.
Although it is fairly obvious that statements made during
conciliation might provide useful investigative leads, Congress did not
preclude the use of such statements. The real concern of Congress was
the effect on conciliation if statements made or conduct exhibited
during conciliation were admissible in a later administrative proceeding
or civil action.
By barring the investigative use of conciliation statements and
conduct, HUD invites both complainants and respondents to argue that the
investigation has somehow been ''tainted'' by information obtained
during the conciliation. This would invite wasteful litigation
concerning whether HUD conducted its conciliation and investigation
activities in accordance with its own regulations and would provide
parties with an incentive to insulate themselves from the use of
evidence at trial, by disclosing key facts during conciliation.
In the final rule, the prohibition against the use of conciliation
information in investigations will be dropped. HUD notes that the use
of such information in administrative hearings and civil actions will be
governed by Rule 408 of the Federal Rules of Evidence. (See 104.730)
Rule 408 makes inadmissible at trial ''evidence of conduct or statements
made in compromise negotiations,'' but ''does not require the exclusion
of any evidence otherwise discoverable merely because it is presented in
the course of compromise negotiations.''
As a related matter, 103.300(c) limits the participation of
officers, employees, and agents of HUD engaged in the investigation of a
complaint under part 103 in the conciliation of the same complaint or in
any factually related complaint. While the original purpose of this
general limitation was to ensure that information gathered during the
conciliation process is not used in the investigation of the complaint,
HUD continues to believe that conciliation of individual complaints can
be best promoted where the investigation and conciliation functions are
kept separate, so 103.300(c) is being retained despite the adjustments
made in 103.330, discussed above.
Section 103.300(c) continues to recognize that there may be
circumstances where a dual role for the HUD employee may be necessary.
This section permits the investigator to suspend fact finding and engage
in efforts to resolve the complaint by conciliation where the rights of
the aggrieved person and the respondent can be protected and the
prohibitions with respect to the disclosure of information obtained
during conciliation can be observed. HUD emphasizes that such
conciliations will generally occur where the investigator, during the
course of investigation, is requested by the parties to conciliate and
will rarely be initiated by the investigator.
One commenter, concerned that any suspension of fact finding would
unduly delay the completion of the investigation, opposed this
provision. The suspension of the investigation envisioned under this
provision should not delay the investigation appreciably and should not
prevent the Department from fulfilling its 100-day deadline for
investigation and the reasonable cause determination.
Section 103.330(b) provides an exception to the prohibition against
disclosure of conciliation information. This section provides that
conciliation agreements will be made public, unless the aggrieved person
and the respondent request nondisclosure and the Assistant Secretary
determines that disclosure is not required to further the purposes of
the Fair Housing Act. One commenter suggested that the provision should
note that one of the purposes to be considered in determining whether
disclosure should be required is the education of people about their
fair housing rights and remedies and to show that meaningful redress can
result from reporting possible violations to HUD and utilizing the
conciliation process. While HUD agrees that the cited factor is
significant in determining whether disclosure of a conciliation
agreement will further the purposes of the Fair Housing Act, HUD is
required to consider other purposes in making the disclosure
determination. The final rule has not been changed to highlight this
purpose.
One commenter asked how conciliation agreements would be made public.
Where the terms of a conciliation agreement do not otherwise provide,
HUD intends to issue a press release setting out the fact of successful
conciliation and outlining the major terms of the agreement. The
statute also requires ''public disclosure'' in the case of any complaint
where the Secretary has determined that no reasonable cause exists to
believe that a discriminatory housing practice has occurred or is about
to occur, and has dismissed the complaint. The Department intends to
employ press releases for this purpose as well. Where a complaint is
dismissed on a finding of no reasonable cause and the respondent
specifies that even public disclosure absolving the respondent would be
unwelcome, the Department will refrain from issuing a press release.
However, HUD interprets the Amendments Act as requiring some form of
public disclosure on the occasion of a dismissed complaint, and
accordingly the Department's policy will be to disclose this information
to the public if a specific request is received.
Proposed 103.335 stated that HUD may, from time to time, review
compliance with the terms of any conciliation agreement. Whenever HUD
has reasonable cause to believe that a respondent has breached a
conciliation agreement, HUD shall refer the matter to the Attorney
General with a recommendation that a civil action be filed under section
814(b)(2) of the Act for the enforcement of the terms of the
conciliation agreement.
One commenter argued that the language used in this section indicates
that review of compliance agreements will be ''haphazard and
perfunctory.'' The commenter recommended the deletion of the phrase
''from time to time'' and would make compliance review mandatory and
periodic (at least once a year) whether or not HUD has reasonable cause
to believe that a breach has occurred.
Requiring HUD staff to monitor every conciliation agreement on a
mandatory and periodic basis is not the most effective used of HUD's
limited resources. Compliance reviews under this section will not be
performed on a haphazard or perfunctory basis. Rather, compliance
reviews will be performed on a random sampling basis, or if HUD has
reason to believe that the signatories are not complying with the terms
of a particular agreement. The final rule is unchanged.
Reasonable cause standard. Proposed 103.400(a) provided that if a
conciliation agreement has not been executed by the complainant and the
respondent and approved by the Assistant Secretary, the General Counsel,
within specified time limits, shall determine, based on the totality of
the factual circumstances known at the time of the decision, whether
reasonable cause exists to believe that a discriminatory housing
practice has occurred or is about to occur. The reasonable cause
determination shall be based on all the facts concerning the alleged
discriminatory housing practice, provided by the complainant and
respondent and otherwise, disclosed during the investigation. In making
the reasonable cause determination, the General Counsel shall consider
whether the facts concerning the alleged discriminatory housing practice
are sufficient to warrant the initiation of a civil action in federal
court.
A number of commenters objected to the reasonable cause standard
announced in this section. Some argued that the standard is overly
restrictive and may unduly limit the number of charges that will be
issued by HUD. Others alleged that the meaning of the proposed standard
is unclear and may open the door for subjective decisions and may permit
the consideration of irrelevant factors. (I.e., Some commenters
suggested that the proposed language would permit HUD to consider any
matters that could have a bearing on a decision to bring a lawsuit,
including: an assessment of the strength of the suit, the amount of
anticipated damages, the government's resources that would be devoted to
the proceeding, the availability of witnesses, docket scheduling, and
other factors generally bearing on the exercise of prosecutorial
discretion). Commenters argued that language of the statute and
relevant legislative history limit HUD's assessment to the issue of
liability alone.
Contrary to the allegations of the commenters, a fair reading of the
regulation clearly demonstrates HUD's intent to limit the reasonable
cause assessment to the issue of whether a discriminatory housing
practice has occurred or is about to occur. HUD, by repetition in the
regulation, expressed its position that the reasonable cause
determination is to be based solely on the issue of liability. No less
than three passages state this proposition. (I.e., the regulation
states that the determination will be ''based on the totality of the
factual circumstances''; that the reasonable cause determination
''shall be based on all facts concerning the alleged discriminatory
housing practice''; and ''the General Counsel shall consider whether
the facts concerning the alleged discriminatory housing practice are
sufficient to warrant the initiation of the civil action.'' While the
proposed language would foreclose the consideration of extraneous
matters not related to the factual determination of liability, HUD has
made an additional modification in the final rule to reflect HUD's
intent that the reasonable cause determination is to be based solely on
the facts determined during investigation.
The source of many commenters' dissatisfaction is the provision that
requires the General Counsel to determine whether the facts concerning
the alleged discriminatory housing practice are sufficient to warrant
the initiation of a civil action. Rather than permitting consideration
of the probability of winning the case, this standard is merely intended
to require that the charge is well-grounded in the facts and that the
conduct that is the subject of the complaint appears to constitute a
violation of the Act.
Commenters suggested several alternative standards. These standards
are, in some cases, identical to the standard contained in the proposed
rule. For example, some commenters proposed that the standard should be
whether the information disclosed warrants the initiation of a civil
action or an administrative proceeding under part 104. In other cases,
the alternative standards are substantially the same as the standard
contained in the proposed rule (e.g., whether a reasonable and
fair-minded trier of fact could conclude that a discriminatory housing
practice has occurred or is about to occur, etc.). Accordingly, the
proposed standards have not been incorporated in the final rule.
Other commenters argued that, in addition to the reasonable cause
standard, HUD should make certain presumptions in favor of the aggrieved
person when making the determination (e.g., to construe the facts in
favor of the aggrieved person or to assume that the evidence offered by
the aggrieved person is true) or that HUD should reserve all issues of
material fact for determination at the hearing or trial. Such
presumptions and reservations are inconsistent with HUD's duty to
analyze and make a reasoned judgment concerning the alleged
discriminatory housing practice and would obviate any need for a HUD
investigation, as required by the statute. For this reason, the
suggestions are rejected.
Written reasonable cause determination. Commenters argued that all
determinations of reasonable cause or lack of reasonable cause must be
in writing and set forth in an opinion which states the facts and legal
conclusions. The commenters argued that such a requirement would
discourage subjective determinations and establish accountability on the
part of the fact finder and respect for the administrative process.
HUD has made minor changes to the final rule to clarify that all
determinations will be made in writing and will set forth a brief
summary of the factual basis of the determination. An extensive factual
recitation will be unnecessary, since the complete investigative report
will contain this information and will be available to the aggrieved
person and the respondent. (The rules already provide that where a
finding of reasonable cause is made, the charge will include a short and
plain statement of the facts upon which the General Counsel has found
reasonable cause to believe that a discriminatory housing practice has
occurred or is about to occur). The notification will not state the
legal theory upon which the determination is made since the Department
feels that such a statement would encourage needless litigation by
encouraging the participants to mount collateral attacks on the
reasonable cause determination.
Appeal of reasonable cause determination. The regulation provides no
right to appeal a reasonable cause determination. Commenters argued
that such an appeal is necessary to permit review of errors of law or
facts, and that failure to provide such an appeal is contrary to
standard administrative procedure. Some commenters would limit appeals
to determinations of no reasonable cause.
The statute does not contemplate a review of the reasonable cause
determination. Section 810(g)(1) requires HUD to make the reasonable
cause determination within a 100-day time period from the filing of the
complaint and to take specified actions immediately (or promptly) after
the determination is made. (The statute directs HUD to ''immediately''
issue a charge on behalf of the aggrieved person after reasonable cause
is found (section 810(g)(2)) and to ''promptly dismiss'' the complaint
and make public disclosure of the dismissal where no reasonable cause is
found (section 810(g)(3)).) In light of these directions, HUD believes
that it is significant that the Act does not specifically provide for an
appeal of the reasonable cause determination, particularly where such
procedures are specified within other sections. (See section 812(h),
which provides for Secretarial review of the ALJ's initial decision.)
Moreover, HUD believes that appeals of the determination of reasonable
cause would be contrary to the legislative history of the 1988
Amendments, which supports the expeditious resolution of complaints.
The additional review would delay the resolution of proceedings by civil
action or administrative hearings under part 104.
HUD notes that the failure to provide for the review of the
reasonable cause determination will not preclude an aggrieved person
from filing a civil action under section 813 of the Act. Nor will the
dismissal prevent an aggrieved person from refiling a complaint based on
newly discovered or previously unavailable information, provided the
one-year time limit for the filing of a complaint is met. (In this
regard, one commenter argued that the regulations should permit HUD to
toll the statutory one-year statute of limitation for filing where a
complaint is refiled. This change has not been made since there is no
statutory authority for such an action.)
Reasonable cause determination and State and local zoning cases.
Under proposed 103.400(a)(1), if the General Counsel determines that
reasonable cause exists, the General Counsel shall immediately issue a
charge on behalf of the aggrieved person, unless the matter involves the
legality of a State or local zoning or other land use law or ordinance.
If such a law or ordinance is involved, HUD is required to refer the
matter to the Attorney General for appropriate action under section
814(b)(1) of the Act. One commenter argued that the rule should state
that the referral of such a case will not be made until an investigation
has been completed and conciliation has been attempted. It is HUD's
intention to investigate complaints alleging discriminatory housing
practices that involve the legality of a State or local law and to
forward its investigation to the Department of Justice. This section
has been revised to provide further clarity on this point. See
103.400(a)(2) of the final rule.
Adoption of a reasonable cause determination made by a certified
agency. Commenters argued that the final rule should state that a
finding of reasonable cause by a substantially equivalent agency will
automatically be adopted by HUD, and require the Secretary to issue a
charge. Commenters argued that the failure to include this provision
will deny complainants the full protection of the new law during the
40-month period that currently substantially equivalent agencies have to
conform their procedures and remedies.
The 1988 Amendments require HUD to make referrals for up to 40 months
following the date of enactment to agencies that are certified
(including agencies that are certified for interim referrals under part
115) on the date of enactment. As noted in the preamble to the proposed
rule, it is unlikely that such agencies will immediately provide the
full range of remedies accorded to complainants under the 1988
Amendments. Given the limited statutory authorization for reactivation
provided under section 810(f)(2) of the Act, it does not appear that HUD
has unilateral authority to reactivate the complaint to provide the full
range of remedies available under the Act absent other circumstances.
Under the limited circumstance where HUD will be able to reactivate
and where the State or local agency has issued a reasonable cause
determination (the existence of such a determination is highly unlikely
until the State or local agency has modified its existing procedures to
conform to the 1988 Amendments), HUD cannot automatically adopt the
local agency's determination. HUD must ensure that the determination
rests on a firm factual basis. While HUD may use the information
gathered by such agencies (with appropriate supplementation through a
HUD investigation) to make its independent evaluation of the factual
circumstances surrounding the alleged discriminatory housing practice,
the responsibility for making the reasonable cause determination cannot
be delegated in such a manner.
Deadline for reasonable cause determination. Issues regarding
100-day deadline for the reasonable cause determination are discussed
above.
Participation of the Assistant Secretary in the reasonable cause
determination. Several commenters argued that the regulations should
state that the reasonable cause determination will be made in
consultation with the Assistant Secretary's office, and with due regard
to the recommendations of the investigator. Another commenter feared
that the investigation report, without further supporting data, may not
be sufficient for the General Counsel to make the reasonable cause
determination. The commenter asked whether the General Counsel would
have access to the complete file, whether the General Counsel may send
the case back for further investigation, and whether the General Counsel
would be permitted to conduct his or her own independent investigation.
As noted under the discussion of the investigation report, the
General Counsel will provide due deference to the recommendations of the
Assistant Secretary and the investigator. There obviously will be
communications between the two offices concerning this determination and
access to files and additional investigative materials. Since such
communications will be a matter of internal administrative procedures at
HUD, it is not necessary to set forth the procedures in the regulation.
With regard to the investigation of additional matters, the final
rule provides that the investigation will remain open until the
reasonable cause determination is made. This provision was intended to
permit the General Counsel to request the Assistant Secretary to make a
further investigation where the investigative report is insufficient to
determine whether reasonable cause exists, and to make direct inquiries
to supplement the investigation.
Several commenters asserted that permitting the General Counsel to
conduct his or her own investigation would be contrary to the intention
of the legislation, would undermine the Assistant Secretary's
investigative function; may needlessly duplicate investigative
activity; and would delay the disposition of cases. The General
Counsel does not have the resources to engage in extensive fact-finding.
Accordingly, where such fact-finding is required, the Assistant
Secretary will be requested to conduct further investigation. Whenever
there are minor issues capable of expeditious resolution, however,
nothing prevents the General Counsel from resolving the issues through
direct inquiries. The internal procedures for the conduct of such
further inquiries will be worked out through agreements between the
Assistant Secretary and the General Counsel.
Section 103.405 governs the issuance of the charge. Paragraph (a)(3)
of this section provides that the charge need not be limited to the
facts or grounds that are alleged in the complaint. A commenter argued
that HUD should not be able to set forth new facts or new grounds in the
charge. The commenter argued that HUD should be required to amend the
complaint if new acts or grounds are found. Following the amendment,
the respondent and aggrieved person should be given an opportunity to
enter a conciliation agreement based upon the additional facts or
grounds.
Section 810(g)(2)(B) expressly provides that the charge need not be
based on the facts or grounds alleged in the complaint. Where
additional grounds are discovered during the processing of the
complaint, HUD intends to inform the respondent of the additional
grounds and to seek information from the respondent concerning such
matters. HUD will not require the amendment of the complaint as long as
the record of the investigation clearly indicates that the respondent
has been given notice and an opportunity to respond to the new
allegations. The final rule at 103.405(a)(3) has been amended to
reflect this policy.
Section 103.410 governs the election of a civil action under section
810(o) or the provision of an administrative proceeding under part 104.
One commenter stated that the rule should clarify whether the
agreement of the complainant and the respondent is necessary for part
104 procedure to apply. If no person makes a timely election to proceed
with a civil action under section 810(o) of the Act, part 104 will
apply. The Department has made minor revisions to the regulations to
clarify this point.
Paragraph (e) of the proposed rule provided that the General Counsel
shall be available for consultation concerning any legal issues raised
by the Attorney General regarding how best to proceed in the event that
commencement of a civil action would implicate Rule 11 of the Federal
Rules of Civil Procedure. Numerous commenters claimed that paragraph
(e) is unnecessary, serves no useful purpose, may be used by the
Department of Justice (DOJ) to reduce its litigation caseload, is not
required by statute, and should be deleted.
Following the reasonable cause determination and an election, the
statute provides that the Attorney General shall commence and maintain a
civil action not later than 30 days from the election (section 810(o)).
While we believe that the need for such consultation will be infrequent,
we do not believe that Congress intended to preclude the two Federal
agencies from discussing an appropriate method of proceeding in light of
new relevant factual information or court decisions. Allowing 20 days
for the election, the Attorney General's complaint may be filed as many
as 50 days following the issuance of the charge. During that time
period, new facts may be discovered or court decisions rendered which
demonstrate that there is no reasonable cause to believe that a
discriminatory housing practice has occurred or is about to occur. In
such circumstances, it would be senseless for the Attorney General to
institute a civil action. Under such circumstances, HUD will take such
action as is necessary to supplement the investigative report (see
section 810(b)(5)(B) which provides that a final investigative report
may be amended if additional evidence is later discovered) and, if
further evidence to support a finding is not developed, to void the
reasonable cause determination ab initio. This procedure is designed
for the sole purpose of assuring that all civil actions are supportable
at the time of filing and, in line with the intention of Congress, to
ensure that the Secretary is the official making the determination
whether to proceed with a charge or civil action. At the same time, the
procedure helps to ensure that the Secretary will have the necessary
information to make the required decision.
Some commenters argued that the reference in paragraph (e) to Rule 11
of the Federal Rules of Civil Procedure is unnecessary. As discussed
above, the purpose of the DOJ/HUD consultation is to examine new court
decisions and newly discovered evidence that are relevant to the
reasonable cause determination. While the Rule 11 standard might be
implicated if a civil action is filed where a new decision or evidence
indicates a lack of a basis for a reasonable cause determination, HUD
agrees that the specific reference to this rule of procedure should be
excluded from the final rule. The final rule has been revised to
emphasize that the General Counsel will be available for ''consultation
concerning any legal issues raised by the Attorney General as to how
best to proceed in the event that a new court decision or newly
discovered evidence is regarded as relevant to the reasonable cause
determination.''
Several commenters argued that DOJ must publish regulations or make
public all proposed procedures for handling the civil actions authorized
under section 812(o). DOJ's procedures for pursuing such actions are
beyond the jurisdiction of the Secretary, and thus not appropriate for
addressing in this rule.
Proposed 103.500(a) provided: ''If at any time following the filing
of a complaint, the General Counsel concludes that prompt judicial
action is necessary to carry out the purposes of part 103 or part 104,
the General Counsel will request that the Attorney General commence a
civil action for appropriate temporary or preliminary relief pending the
final disposition of the complaint.''
One commenter objected to the language stating that the General
Counsel would ''request'' the Attorney General to commence a civil
action. The commenter argued that the language implies that following
the request, it is within the Attorney General's discretion to file the
civil action. The commenter noted that section 810(e) requires the
Attorney General promptly to commence action after the Secretary
authorizes the action. The statute does provide that when the Secretary
authorizes the civil action, the Attorney General shall promptly
commence and maintain such action and the final rule has been revised to
track the statute.
Before making the determination to request such action, the proposed
rule stated that the General Counsel would consult with the Assistant
Attorney General for the Civil Rights Division. Commenters urged
deletion of the consultation requirement. Commenters argued that the
provision: (1) Adds time-consuming steps to the process of seeking
emergency relief; (2) is not necessary, since HUD is free to consult
with DOJ at any time; (3) will be unnecessary when HUD acquires
enforcement experience; and (4) is inconsistent with the statute and
with the legislative intent to provide the simplest and fastest method
to obtain emergency relief for discrimination victims.
The final rule is unchanged on this point. As noted above, once the
general Counsel issues the authorization, the Attorney General is
required to commence and maintain the action. In light of this mandate,
it is crucial that authorized civil actions are justified on both the
facts and the law. As noted in the preamble to the proposed rule, prior
consultation will ensure that the civil action can be maintained by
providing HUD with access to DOJ's extensive experience in seeking
relief in different factual situations and in different forums.
Commenters' fears that the consultation requirement will impede the
process of obtaining temporary and preliminary relief are unfounded.
The consultation envisioned under this section will not be a
time-consuming process. Rather, HUD and DOJ plan to consult through
informal contacts between representative, of the two agencies.
Moreover, HUD expects and intends that the conferences will expedite,
rather than delay, proceedings by providing DOJ with important
background information in individual proceedings before the issuance of
an authorization and by providing DOJ with advance information
concerning upcoming litigation. With such information, DOJ should be
better prepared to act expeditiously to preserve the aggrieved person's
rights when the authorization is issued. To emphasize this point,
103.500(a) has been revised to provide that the purpose of the DOJ
consultation is to ensure the prompt initiation of the civil action.
Section 103.500(b), which implements section 810(e)(2) of the Act,
has been revised slightly to more closely reflect the statutory
provision.
Section 103.510 addresses other actions that HUD may take with
respect to matters asserted in a complaint. A commenter felt that the
proposed rule's list of proceedings that may be initiated under other
civil rights authorities was incomplete. The commenter urged the
addition of the Age Discrimination Act of 1975 (42 U.S.C. 6101) and
Executive Order 12259. The final rule has been amended to add the Age
Discrimination Act. The cited executive order addresses HUD's authority
to coordinate the fair housing efforts of federal agencies, is not an
enforcement authority, and has not been added.
In many instances, commenters suggested revisions to the proposed
administrative procedures that cannot be adopted because they conflict
with statutory requirements contained in the Fair Housing Act. The
statutorily impermissible suggestions included:
1. The deletion of the provision contained in 104.590(e) which
states that HUD will pay witness fees and mileage if the party
requesting the issuance of the subpoena is unable to pay. Section
811(b) of the Act requires HUD to pay the fees under such circumstances.
2. The increase or decrease of the amount of the ceiling on civil
penalties that may be awarded. Section 812(g)H3) provides for civil
penalty ceilings ranging from $10,000 to $50,000. These ceilings are
reflected in 104.910(b)(3).
3. The deletion of provisions contained in 104.940 requiring HUD to
pay attorney's fees to the extent provided under the Equal Access to
Justice Act (5 U.S.C. 504). Section 812(p) imposes this liability on the
United States.
4. The reconciliation of the proposed deadline for a petition for
review of the final decision in a United States Court of Appeals (30
days from issuance of decision); and the date that findings of fact and
the final decision become conclusive in connection with a petition for
enforcement (45 days after the date of issuance of the decision, if no
petition for review is filed). These time periods are imposed under
sections 812 (i) and (l) of the Act.
Section 104.20 contains the definitions used in part 104. In
addition to the comments on definitions addressed above, a commenter
urged HUD to define separately hearing and hearing on the record. While
hearing is defined and used in part 104, the phrase hearing on the
record does not appear in the part. While the commenter noted that a
civil action under section 813 is barred after the commencement of a
hearing of the record by the ALJ (see 813(a)(3)), it is inappropriate to
prescribe by HUD regulation the limitations on the jurisdiction of the
United States District Court imposed under section 813 of the Act.
Section 104.30 governs the computation of time periods. A commenter
suggested a clarification in 104.30(a) to provide that the time
computations relate only to filing and serving papers. The section is
intended to apply to all computations of time (e.g., deadlines for the
commencement of the hearing ( 104.700); issuance of the initial
decision ( 104.910(d)); and the notification of appropriate
governmental entities following the issuance of the final decision (
104.935(a)(2)). Accordingly, the proposed change has not been made.
Section 104.40 requires the filing of all documents in Washington,
DC. One commenter argued that this provision places a burden on the
aggrieved person, could have a chilling effect and is contrary to
legislative intent to provide relief to persons in outlying areas. This
commenter would revise 104.40(a) to require filing in Washington, DC
until the Assistant Secretary designates local addresses for filing.
While HUD intends to conduct the hearing at a place in the vicinity in
which the discriminatory housing practice is alleged to have occurred or
to be about to occur ( 104.700), all other administrative functions will
be performed at the Office of the Administrative Law Judges in
Washington, DC. Since service and filing can be accomplished by mail,
HUD does not believe that this requirement will impose an undue burden
on persons outside the Washington, DC area.
Section 104.100 provides that a presiding ALJ for the proceeding
shall be appointed by HUD's Chief ALJ. One commenter argued that,
consistent with statutory intent for the expeditious handling of
complaints, the rules must include procedures for the appointment of the
presiding ALJ. HUD believes that the deadlines for the commencement of
the hearing are sufficient to ensure the timely appointment of a
presiding ALJ and that there is no need to impose a regulatory deadline
for appointments by the presiding ALJ.
The commenter also argued that the rules must prescribe the
qualifications for ALJ. The qualifications for the appointment of ALJs
are fully set forth in 5 U.S.C. 3105, which is specifically cited at
104.100. Section 104.100 is unchanged.
Section 104.130 governs the prohibitions of ex parte communications.
One commenter argued that the listed sanctions for ex parte
communications are too harsh, particularly where an aggrieved person is
unrepresented by counsel and inadvertently makes an improper contact.
To remedy this problem, the commenter would delete the list of sanctions
from the regulations. This section places the decision to sanction and
the choice of sanctions within the sound discretion of the ALJ. The
rule clearly provides that the listed sanctions are illustrative and
that the ALJ may provide for other, more appropriate, sanctions.
Under 104.140, no officer, employee or agent of the Federal
government engaged in the performance of investigative, conciliatory, or
prosecutorial functions in connection with the proceeding or any
factually related proceeding under part 104 may participate or advise in
the decision of the ALJ, except as witness or counsel during the
proceedings. One commenter would revise this section to provide that no
officer, employee, or agent * * * may participate or advise in the
decision of the ALJ, except as a witness or counsel to a party during
the proceedings. Persons filing amicus briefs are not ''parties'' to
the proceedings under 104.200. The proposed change has not been made
since it could have the effect of prohibiting participation by such
persons.
Under 104.200 the parties to the proceedings are HUD, the respondent
named in the charge and against whom relief is sought, and any
intervenors. In accordance with section 812(c) of the Act, the proposed
rule permitted the intervention by any aggrieved person. No other
intervention is permitted in the proceedings, although briefs of amicus
curiae may be permitted at the discretion of the ALJ ( 104.200(a) and
(c)).
Commenters objected to the proposed rules governing intervention.
One commenter noted that the proposed rule would permit any potential
complainant to intervene without regard to the relevance of his or her
concerns in the case. HUD agrees that the proposed rules governing
intervention are too broad and has revised this section to permit any
aggrieved person to file a timely request for intervention (see
discussion below on the timeliness of petitions for intervention).
Intervention shall be permitted where the intervenor is the aggrieved
person on whose behalf the charge is issued. Intervention shall also be
permitted where the intervenor is an aggrieved person who claims an
interest relating to the property or transaction that is the subject
matter of the charge and the disposition of the action may, as a
practical matter, impair or impede the aggrieved person's ability to
protect that interest, unless the aggrieved person's interest is
adequately represented by the existing parties. The revised provisions
are based on the rules of intervention as of right under Rule 24 of the
Federal Rules of Civil Procedure.
The commenters also noted that the rule would not permit
non-aggrieved persons to intervene. The statute addresses intervention
only by aggrieved persons (see section 812(c)). HUD is reluctant to
expand the classes of persons that may be permitted to intervene,
particularly in light of the statutory time limitations on the issuance
of administrative decisions. HUD notes, however, that other persons may
be permitted to submit briefs of amicus curiae under 104.205(c).
Section 104.210 governs representation of the parties. Under
104.210(b)(5), parties may be represented by an attorney admitted to
practice before a Federal Court or before the highest court in any
State. One commenter would permit representation only by attorneys who
are admitted to practice before a Federal Court. Attorneys in good
standing before State or Federal courts may be sufficiently qualified to
represent the parties in a part 104 proceeding. It is unnecessary to
limit the parties' choice of representatives as proposed by the
commenter.
Under 104.210(d). the attorney or other representative must file a
written notice of intent before withdrawal from the proceeding. One
commenter urged HUD to limit the representative's ability to withdraw.
The rule does not prescribe such limitations. To the extent that the
commenter fears that withdrawals may be used to delay the proceeding, we
note that such dilatory tactics would be prohibited under the standards
of conduct ( 104.220). The commenter suggested that the rule require, at
a minimum, service of the written notification of withdrawal on all
parties. This service is already required under 104.40.
One commenter argued that the regulations do not unambiguously
provide that complainants may employ private counsel to represent their
interests in the administrative hearings, in addition to the
representation provided by HUD. The regulations clearly provide that
aggrieved persons may intervene as parties ( 104.200(b)) and that
parties may be represented by counsel ( 104.210(a)(5)). HUD does not
believe that further clarification is necessary.
The requirements governing the filing, service and contents of the
charge are found at 104.410. Paragraph (b)(2) of this section refers to
''an election * * * to use the administrative procedure.'' A commenter
observed that the administrative procedure will be used if no election
is made to have the claim litigated in a civil action and may not be the
result of a deliberate election by the parties. The final rule has been
revised to clarify this point.
Within 30 days after the service of the charge, any aggrieved person
may file a request for intervention and participate as a party to the
proceeding. No other intervention was permitted under the proposed
rule. Commenters suggested the revision of this section to permit
intervention after the expiration of the 30-day period.
While the 1988 Amendments require the commencement of a hearing and
the issuance of an initial decision within specified periods, the
statute imposes no absolute deadline for intervention. To ensure that
aggrieved persons will not be unnecessarily excluded from a proceeding,
the final rule has been amended to permit the filing of a timely request
for intervention after the 30-day period. In determining whether
intervention will be permitted, the ALJ may consider such factors as:
the progress of the litigation when intervention is sought; the delay
in seeking intervention and the reasons for the delay; and the
prejudice to other parties if intervention is permitted. All requests
for intervention submitted within 30 days of the filing of the complaint
will be considered to be timely filed.
Section 104.450(b) states that any party may file an answer to a
written motion. Further responsive documents are prohibited, unless
otherwise ordered by the ALJ. One commenter would clarify further that
prohibited responsive documents would not include exhibits, memoranda,
or briefs. The Department does not believe that it is necessary to list
all types of responsive documents that would be excluded under this
rule. The final rule is unchanged.
Section 104.500 contains the general provisions governing discovery.
Paragraph (d) provides that the frequency and sequence of the discovery
methods are not limited, unless otherwise ordered by the ALJ or
restricted under subpart E. One commenter suggested that the final rule
require that the ALJ hold an initial pretrial conference addressing
discovery issues as a part of the prehearing procedures under subpart G.
At the pretrial conference, the parties would be required to describe
the nature and amount of discovery to be undertaken. The discovery
plans would be reduced to a written order and all discovery would be
completed in accordance with the order. The commenter noted that this
procedure is consistent with limitations on discovery imposed in the
United States District Courts.
It is not necessary to provide a pretrial discovery conference and
order for every proceeding. Where such a procedure is required to
expedite the proceeding, however, a pretrial discovery conference may be
conducted and a discovery order issued as a part of a prehearing
conference under proposed 104.610. The final rule is unchanged on this
point.
Section 104.500(e) provides that all discovery must be completed 15
days before the date scheduled for the hearing. A commenter argued that
this date was too close to the hearing. As an alternative, the
commenter suggested that the rule provide that all discovery be
completed within 80 days of the issuance of the charge.
The 15-day deadline was imposed to ensure that parties' final
preparation for hearing will not be interrupted by late-filed discovery
requests, and HUD continues to believe that the 15-day time period is a
sufficient buffer. The Department notes that the proposed 80-day
deadline would not always ensure more uninterrupted time for trial
preparation, since hearings may be commenced at any time within 120 days
following the issuance of the charge.
Several commenters noted that the proposed rule will not always
permit discovery from a non-intervening aggrieved person on whose behalf
the complaint was filed and who is the real party in interest. The
commenters argued that such persons should be required to comply with
discovery requests (and that the results of this discovery should be
admissible in the hearing) as if the aggrieved person were a party to
the charge.
Because the administrative decision will depend upon the course of
dealings between the respondent and the aggrieved person and the extent
of damage will depend upon the injury suffered by the aggrieved person,
HUD believes that it is appropriate to allow all forms of discovery to
be used against nonintervening aggrieved persons. Accordingly, the
final rule includes a new 104.500(f) stating that for the purposes of
obtaining discovery from a non-intervening aggrieved person, the term
party as used in the subpart includes the aggrieved person on whose
behalf the charge was issued.
Section 104.510 govern depositions upon oral examination and written
interrogatories. At the request of a commenter, paragraph (d), which
explains the procedures and grounds for requesting suspension of a
deposition, has been clarified to permit the suspension of a deposition
for improper conduct in addition to improper questioning. (For example,
a deposition may be suspended if the party makes improper objections or
improper instructions to a witness during the deposition.)
Section 104.520 governs the use of depositions at hearings. One
commenter would amend this provision to deny third parties the right to
use information contained in depositions. The 1988 Amendments
contemplate that the administrative proceeding is a public proceeding.
As such, HUD cannot preclude the use of information contained in the
record of the proceeding. HUD notes, however, that the discovery of
information and the use of discovered information may be limited in
accordance with protective orders issued under 104.570 and 104.740.
The proposed rule permitted unlimited use of interrogatories. One
commenter suggested that the number of interrogatories that may be
served without an ALJ order should be limited to 20 interrogatories. A
rule limiting the number of interrogatories is consistent with practice
in Federal courts and will force the parties to focus on pertinent
issues when drafting interrogatories. HUD believes, however, that a
20-interrogatory limitation would unduly restrict discovery under this
section. As revised, 104.530 permits a party to serve up to 30
interrogatories on any other party without an ALJ order. Where
necessary for full and complete discovery, the parties are permitted to
serve additional interrogatories with an ALJ order.
One commenter argued that the ALJ must narrow discovery to specific
matters raised by the complaint. Part 104 contemplates that discovery
will be pursued through the voluntary efforts of the parties and that
the ALJ will intervene in the process only where it is necessary to
protect a party or person from annoyance, embarrassment, oppression or
undue burden or expense. Where necessary to protect the person or
party, the ALJ may issue an appropriate protective order directing that
certain irrelevant matters may not be the subject of discovery (see
104.570(d)).
Section 104.580 governs motions to compel discovery and the
imposition of sanctions. One commenter requested the deletion of
104.580(d)(1), which permits an inference to be drawn in favor of a
requesting party if another party fails to comply with a discovery order
issued by the ALJ. The cited provision provides the ALJ with an
effective method of compelling compliance with orders by parties or
persons who unjustifiably resist discovery. It is retained in the final
rule.
Section 104.590 provides for the issuance of subpoenas in aid of
administrative hearings. Paragraph (f) of the proposed rule addressed
motions to quash or limit subpoenas. One commenter argued that all
evidence must be allowed into discovery and urged the deletion of this
provision. While part 104 is designed to permit the discovery of any
matter, not privileged, that is relevant to the subject matter involved
in the proceeding, 104.590 recognizes that there may be occasions where
a subpoena should be quashed because it is unreasonable and oppressive
or for other good cause, or where the subpoena should be conditioned
upon the discovering party's advancing the reasonable cost of producing
subpoenaed books, papers or documents. The proposed provision is
retained.
Subpart G governs prehearing statements ( 104.600); prehearing
conferences ( 104.610); and settlement negotiations before a settlement
judge ( 104.620). Except for comments addressing the addition of a
discovery conference discussed above, no commenters addressed this
subpart.
Section 104.720 permits the parties to waive the right to an oral
hearing and present the matter for decision on a written record.
Commenters urged the revision of this section to prohibit waiver unless
non-party aggrieved persons agree to the waiver. Alternatively, the
commenters would provide notice of the proposed waiver to non-party
aggrieved persons and would permit such persons to intervene within 15
days of the notice.
Those aggrieved persons interested in participating in the proceeding
as an intervenor and controlling the procedural conduct of the
litigation as a party are permitted to intervene of right (aggrieved
persons on whose behalf the charge is issued) or by permission of the
ALJ (other aggrieved persons). Where such persons have not filed timely
requests for intervention, or where their interest is not sufficient to
justify intervention, HUD does not believe that any purpose would be
served by a regulation permitting the person the right to control the
conduct of selected aspects of the proceeding. Part 104 was drafted
with the expectation that the HUD representative, in the absence of
intervention by the aggrieved person on whose behalf the charge is
issued, will keep that person informed of the course of the proceedings
where necessary for the proper disposition of the charge. Therefore,
provision for notification to such persons of this procedural step is
not mandated by the rules.
Section 104.740, which governs in camera inspections and protective
orders contains a minor editorial revision suggested by commenters.
Section 104.750 provides for the prehearing exchange of exhibits to
be offered into evidence. One commenter noted that some parties may
attempt to use the requirement for the prehearing exchange of exhibits
to prevent the use of rebuttal exhibits that have not been exchanged.
At the request of the commenter, HUD has revised this section to exclude
unanticipated rebuttal exhibits from the exchange requirement.
At the request of a commenter, 104.760 has been clarified to state
that the authenticity of all documents submitted and furnished to the
parties as required under 104.750'' as proposed exhibits in advance of
the hearing shall be admitted.
Under 104.780, all oral hearings must be recorded and transcribed by
a reporter designated by and under the supervision of the ALJ. One
commenter observed that this section requires all hearings to be
transcribed and argued that this requirement will be expensive. The
commenter recommended that this section be revised to require
transcripts only if requested by a party or an aggrieved party, or
ordered by the ALJ. HUD believes that the provision of a transcript is
necessary for the full and complete record in the case and to ensure the
adequate review of the proceeding by the Secretary under 104.930, and
by the courts under section 812(i), and to permit court enforcement of
the Administrative order under section 812(j).
Under 104.900, the ALJ is required to dismiss the proceeding:
-- Where the complainant, the respondent or the aggrieved person
on whose behalf the complaint was filed makes a timely election to have
the claims asserted in the charge decided in a civil action under
section 812(o) of the Act (see 104.900(a)); or
-- Where an aggrieved person has commenced a civil action under
an Act of Congress or a State law seeking relief with respect to the
discriminatory housing practice and the trial of the civil action has
commenced. The commencement of a civil action for appropriate temporary
or preliminary relief under section 810(e) or proceedings for such
relief under section 813 of the Fair Housing Act do not affect
administrative proceedings under part 104. (see 104.900(b)). At the
suggestion of a commenter, this provision has been clarified to provide
that the administrative proceeding will not be affected by such
proceedings as a hearing on the temporary or preliminary relief or the
issuance of a decision or order granting or denying such relief.
One commenter noted that part 104 procedures are applicable where the
respondent and the aggrieved person do not act (i.e., neither the
respondent nor the aggrieved person elects the civil remedy). The
commenter argued that part 104 should include a procedure for an ALJ
order by default. Even though the aggrieved person and the respondent
may choose not to participate actively in a case, HUD's representative
will be required to present sufficient evidence to make a prima facie
case that a discriminatory housing practice has occurred or is about to
occur. Accordingly, there are no provisions for default in the
regulation.
Under 104.910, if the ALJ determines that the respondent has
engaged, or is about to engage in a discriminatory housing practice, the
ALJ is required to issue an initial decision against the respondent and
to order appropriate relief including damages; injunctive or other
equitable relief; and civil penalties. The following issues were
raised regarding relief.
Injunctive or such other equitable relief. Under proposed
104.910(b)(2) the ALJ may impose injunctive or such other equitable
relief as may be appropriate. One commenter argued that the regulations
should discuss the types of affirmative relief (e.g., the posting of
fair housing posters) that may be ordered by the ALJ. Given the range
of affirmative remedial activities that may be accorded to overcome
discriminatory housing practices, HUD believes that it would be
counterproductive to undertake a listing of all types of such relief
under this section.
The proposed rule provides that no order for injunctive or other
relief may affect any contract, sale, encumbrance, or lease consummated
before the issuance of the initial decision that involves a bona fide
purchaser, encumbrancer, or tenant without actual knowledge of the
charge.
Commenters noted that a considerable amount of the time may elapse
between the filing of the complaint and the issuance of the charge, and
from the issuance of the charge to the issuance of the initial decision.
They argued that the regulations do not provide a mechanism for
providing third parties with notice that a complaint or charge has been
filed. They charged that the failure to include such requirements
threatens the efficacy of the equitable relief provisions. Commenters
asserted that a respondent seeking to avoid the injunctive or other
equitable relief will have sufficient time to contract for the sale,
encumbrance or lease to another during this period. The commenters
suggested the addition of provisions requiring the respondent to give
actual notice to such persons. Alternatively, commenters suggested that
the rule provide that, simultaneously with the issuance of the charge,
the Secretary will exercise the authority under section 810(e) to secure
an injunction which preserves the status of all property identified in
the charge until final resolution of the charge.
HUD agrees that the proposed rule did not adequately address this
issue. To remedy this problem, the final rule requires the respondent
to give actual notice to third parties with whom the respondent engages
in a contract, sale, encumbrance, or lease involving the property that
is the subject of the charge. The copy of the charge would be provided
before the respondent and the third party enter into the contract, sale,
encumbrance or lease.
Commenters also recommended that the final rule should provide that
the failure to give the notice would constitute a separate
discriminatory housing practice. HUD does not believe that such actions
constitute an actionable discriminatory housing practice. This change
has not been made.
Some commenters suggested that the respondent be required to provide
the notice to third parties following the issuance of the charge while
others would require notice following the filing of the complaint.
Section 812(g)(4) provides that no order shall affect the described
transactions consummated before the order and involving a third party
without actual notice of the charge. Accordingly, the notice will be
required only after the issuance of the charge. The proposed change is
included at 104.410(b)(3).
Civil penalties. Under 104.910(b)(3), the ALJ may assess a civil
penalty against the respondent. The amount of the civil penalty is
subject to ceilings of $10,000 to $50,000. The ceiling will depend on
the number of previous discriminatory housing practices the respondent
has been adjudged to have committed within designated time periods in
any administrative hearing or civil action permitted under the Fair
Housing Act or any State or local fair housing law, or in any licensing
or regulatory proceeding conducted by a Federal, State or local
governmental agency.
Under the proposed rule, if the ALJ determines that more than one
respondent has been engaged or is about to engage in a discriminatory
housing practice, the ALJ would be permitted to assess the civil
penalty, up to the maximum permitted under the rule, against each
respondent. One commenter argued that this provision penalizes the
respondent who has not committed a prior act, simply for an association
with another respondent that has committed such act. The commenter
alleged that such a penalty is unfair. This section was intended to
address civil penalties where multiple respondents are involved and to
permit the ALJ to assess a civil penalty against each respondent. The
section has been revised for clarity.
The resolution of the charge prior to the issuance of a final
decision by the ALJ is addressed in 104.925. Commenters argued that the
proposed language does not account for the possibility that some, but
not all, of the aggrieved persons of whose behalf the charge is issued
may agree to resolve the charge. The final rule has been revised to
provide for such resolutions.
Section 104.930 permits the Secretary to review the ALJ's initial
decision and issue a final decision. The Secretary may affirm, modify
or set aside, in whole or in part, the initial decision, or remand the
initial decision for further proceedings. If no final decision is
issued by the Secretary within 30 days after the initial decision, the
initial decision of the ALJ would become the final decision of the
Department.
The proposed rule does not place any time limitation for issuance of
the ALJ decision on remand. Commenters claimed that this omission
creates the possibility for substantial delay in decisionmaking which is
contrary to the congressional goals of assuring expedited processing.
The regulation has been revised to state that the ALJ is required to
issue the decision on remand within 60 days of the date of issuance of
the Secretary's decision, unless it is impracticable to do so. If the
ALJ is unable to issue such a decision on remand within this time period
(or within any succeeding 60-day period following the initial 60-day
period), the ALJ is required to notify all parties and the aggrieved
person on whose behalf the charge was filed in writing of the reasons
for the delay. This approach is consistent with section 812(g)(2) of
the Act. All remanded proceedings will be conducted in accordance with
the requirements of part 104.
Section 812(h) provides that the Secretary may review any finding,
conclusion or order issued by the ALJ. In accordance with this section,
the final rule has not been revised to include a standard for
Secretarial review of the initial decision, as suggested by one
commenter.
Several commenters addressed 104.940, which provides for the
recovery of fees and costs. While some commenters argued that the rules
regarding attorney's fees and costs were proper and identical to those
governing the Federal courts, others argued that the specificity of this
section was unnecessary.
HUD continues to believe that the regulation should provide some
regulatory direction concerning the amount of attorney's fees that may
be awarded. There appears to be no specific objection to 104.940(b)(1)
which governs the payment of attorney's fees by HUD to the respondent
(see section 812(p) which makes the Equal Access to Justice Act
applicable to such payments) or to 104.940(b)(2) which states that
intervenors should be liable to the respondent for reasonable attorney's
fees only to the extent that the intervenor's participation in the
administrative proceeding was frivolous or vexatious, or was for the
purposes of harassment. (see Hughes v. Rowe, 449 U.S. 5, 11 (1980) and
Christianberg Garment Co. v. E.E.O.C., 434 U.S. 412, 422 (1978)).
Numerous commenters raised the issue of the appropriate standard for
the recovery of attorney's fees by prevailing intervenors. The Act
provides in section 812(p) that the ALJ or the court may allow the
prevailing party a reasonable attorney's fee. That statutory direction
is applicable to prevailing intervenors. This entitlement to fees is
identical to that provided in a private enforcement action under section
813 and an enforcement action by the Attorney General under section 814.
The Department believes that such factors as the appropriateness,
necessity and effectiveness of any work performed by a prevailing party
are among the factors relevant to the factual determination by an ALJ or
court as to whether or what amount of attorney's fees are
''reasonable''. Similarly, the issue of whether the amount of fees
sought by a prevailing party is reasonable given the particiption of
federal attorneys is a question of fact to be determined by the ALJ or
the court. Accordingly, the rule is unchanged.
Part 106 establishes procedures for public meetings or conferences to
gather information to assist the Assistant Secretary in achieving the
aims of the Fair Housing Act for the promotion and assurance of equal
housing opportunity under the Fair Housing Act. No substantive comments
were received on the proposed part. It is adopted without change.
The Fair Housing Advertising Regulations (part 109) are being revised
to reflect the expansion of the classes of persons protected under the
Fair Housing Act from discriminatory advertising.
The purpose of the HUD Fair Housing Advertising Regulations is to
assist all advertising media, advertising agencies and advertisers in
complying with the requirements of the Fair Housing Act with respect to
advertisements for the sale, rental or financing of housing. These
regulations also describe the matters which the Department will consider
in evaluating compliance with the Fair Housing Act in connection with
the investigation of complaints alleging discrimination in advertising.
Section 804(c) of the Fair Housing Act has been amended to expand the
prohibitions or discrimination in advertising for the sale or rental of
a dwelling. The amendment added ''handicap'' and ''familial status'' to
the existing prohibitions of discrimination on the basis of race, color,
religion, sex, or national origin.
The Department is revising the Fair Housing Advertising Regulations
to reflect the expanded coverage of the Fair Housing Act with respect to
discrimination in advertising. Following is a section-by-section
description of the changes made in part 109.
This section describes the statutory provisions on which the Fair
Housing Advertising Regulations are based. The two new protected
coverages of the amended statute -- ''handicap'' and ''familial status''
-- have been added in two places to the existing list of bases on which
discrimination is prohibited. In addition, a reference to appraisal
services has been inserted in the list of discriminatory practices
specifically made unlawful under the Fair Housing Act. Because of the
exemption in section 807(b) of the Fair Housing Act for ''housing for
older persons'', a sentence has been added to 109.5 to explain that the
prohibitions of the act regarding familial status do not apply with
respect to such housing.
In addition, references to title VIII of the Civil Rights Act of 1968
have been changed to the new short title of the statute, the ''Fair
Housing Act'', both in this section and throughout the regulations.
The Department has made only editorial changes in this section.
This section contains definitions of the major terms used in part
109. The Department has added definitions of the terms handicap and
familial status in paragraphs (h) and (i), respectively. These new
definitions are the same as the definitions contained in the Fair
Housing Act. In addition, the definition of Secretary has been
eliminated since the term is not used in the regulations, a definition
of General Counsel has been added, and the definitions of person and
discriminatory housing practice have been revised to reflect statutory
changes.
This section explains the use of the criteria contained in part 109
by the Department with regard to action on complaints alleging
discriminatory advertising with respect to advertising media and persons
placing advertisements. The Department has made changes in the
introductory language of paragraph (a) and in the language of paragraphs
(a)(1) and (a)(2) to reflect the changes in complaint processing brought
about by the Fair Housing Act amendments. Under the new procedure, the
General Counsel will make determinations as to whether there is
reasonable cause to believe that a discriminatory housing practice has
occurred or is about to occur. Thus, 109.16 would indicate that the
General Counsel will consider the use or the failure to use the criteria
in this part in making a determination of reasonable cause to believe
that a discriminatory housing practice has occurred or is about to
occur.
Several commenters objected to the statement in the first sentence of
proposed 109.20 that the words, phrases, symbols, and forms set forth
in this section have been used in advertising to ''convey either overt
or tacit discriminatory intent'' and that therefore their use should be
avoided, because that statement appears to focus solely on the intent
that may lie behind discriminatory real estate advertising. The
Department agrees that the language, which was already contained in
109.20, could be construed as a limitation on the types of activities
considered to constitute unlawful conduct. Since the Department wishes
to maintain a neutral position on the issue of whether discriminatory
intent is necessary for advertising to be considered violative of the
Fair Housing Act, the statement has been revised. In addition, similar
revisions have been made in 109.20(e) and (f). These revisions also
make it clear that this regulation does not prohibit the use of any of
the words, phrases, symbols or visual aids in this section, but instead
is intended to suggest that the use of such words, phrases and symbols
can indicate a preference in particular contexts.
The undesignated introductory paragraph in 109.20 has also been
revised to state that the Department will consider whether, in a
particular case, there is a need for ''further proceedings on'' the
complaint, rather than a need for ''seeking resolution of'' the
complaint. This change reflects the new complaint processing procedures
under the amended act.
In paragraph (a), which provides examples of words descriptive of
dwelling, landlord, and tenants which should not be used in advertising,
the Department has added the phrase ''adult building''.
In paragraph (b), which lists examples of words indicative of persons
in the protected groups covered by the Fair Housing Act, the Department
has added specific provisions on words relating to handicap and familial
status. In paragraph (b)(6), the rule provides that nothing in part 109
restricts the inclusion of information about the availability of
accessible housing in advertising of dwellings. In paragraph (b)(7),
concerning familial status, the Department has included a statement
making it clear that nothing in part 109 would restrict advertisements
of dwellings which are intended and operated for occupancy by older
persons and which constitute ''housing for older persons'' as defined in
section 807(b) of the Fair Housing Act. In addition, paragraph (b)(8)
has been revised and the word ''exclusive'' has been substituted for the
words ''ghetto'' and ''disadvantaged''.
In paragraphs (c) and (d), the words ''handicap'' and ''familial
status'' have been added to the list of protected groups.
With regard to paragraph (e), one commenter expressed doubt that
directions to real estate could imply a discriminatory preference.
However, it has been the Department's experience that references to real
estate location in terms of landmarks significant with respect to race,
national origin or religion may indicate a preference to certain
homeseekers or convey a negative implication to others. Accordingly,
this paragraph has not been changed.
This section indicates examples of how the selective use of
advertising media or content can be used exclusively with respect to
particular housing developments or sites, with discriminatory results.
In paragraph (c), which concerns selective use of human models when
conducting an advertising campaign, the Department has made changes in
the last two sentences of the paragraph to provide an example of
selective advertising with respect to familial status.
This section discusses actions that advertisers can take which would
be considered as evidence of compliance with the prohibitions against
discrimination in advertising under the Fair Housing Act.
The Department has added the words ''handicap'' and ''familial
status'' where appropriate in paragraphs (a) and (b). In addition, the
Department has added language in paragraph (b), concerning use of human
models, to indicate that models used in display advertising should
represent families with children, when appropriate, as well as both
majority and minority groups in the metropolitan area and both sexes.
Two commenters suggested that paragraph (a) be revised to provide
that use of the equal housing opportunity logotype, without more, would
be sufficient to indicate compliance with the advertising provisions of
the Fair Housing Act. However, the use of the logotype (or the equal
housing opportunity statement or slogan) is only one indication of
compliance, and such use would not preclude the use, in the same
advertisement, or words, phrases, symbols, or forms which convey a
discriminatory preference or limitation (see 109.20). Accordingly,
suggested change has not been made.
Minor editorial changes have been made in paragraphs (c) and (d) of
109.30.
The appendix to part 109 contains three tables intended to serve as a
guide for the use of the Equal Housing Opportunity logotype, statement,
slogan, and publisher's notice for advertising. The Department has
added the words ''handicap'' and ''familial status'' where appropriate
in the three tables.
Part 110 sets forth the procedures established by the Secretary of
Housing and Urban Development with respect to the display of a fair
housing poster by persons subject to sections 804 through 806 of the
Fair Housing Act. The Department has amended part 110 to reflect the
changes made by the Fair Housing Amendments Act of 1988. The major
changes in the poster regulations are in 110.25, Description of
Posters. The legend of the poster has been revised to add ''handicap''
and ''familial status'' to the bases of illegal discriminatory acts.
The legend has also been revised to show that discrimination in the
appraising of housing is illegal. In addition to the above amendments,
editorial modification has been made for clarification purposes and for
consistency in terminology.
Part 115 has been revised to comply with the requirements of the Fair
Housing Act. This part: (1) Provides a revised process for certifying
agencies as substantially equivalent in place of the recognition process
as provided in the current part 115; (2) defines the requirements for
certification with the specificity required by the Act; (3) defines the
effect of the Act on agencies recognized on September 12, 1988 as
substantially equivalent under current part 115; (4) requires that in
order to become certified, agencies must provide protection against
discrimination based on ''handicap'' and ''familial status''; and (5)
provides a prohibition against coercion, intimidation and threats.
To obtain certification State and local agencies must administer laws
which prohibit all discriminatory housing practices which are prohibited
by the Act and must include as protected classes all classes protected
by the Act. Discrimination on the basis of handicap is described in the
statutory language and only those provisions of section 804 (f) of the
Act which clearly do not apply to State or local agencies may be omitted
from the law or ordinance the agency administers if certification is to
be granted. Further, the remedies available to a certified agency must
be substantially equivalent to the remedies available under the Act.
Final agency actions must be subject to judicial review and aggrieved
persons must have the right of access to a State or local court. The
Act also requires that the procedures followed by a certified agency be
shown to be substantially equivalent to those created by the Act. Such
procedures as: Filing of complaints by the agency; acknowledgment of
receipt of complaints and notice of procedural rights and obligations,
completion of investigation and investigative report within 100 days and
notice of cause for delay; provision for conciliation and a
conciliation agreement which shall be made public under certain
conditions; were provided as examples of procedural matters which must
be included in the law or ordinance administered by a certified agency.
The regulations require that the law or ordinance provide for
resolution of a complaint by a body empowered to grant relief
substantially equivalent to the relief which may be granted by the
Secretary under the Act.
The Department received a number of comments. These comments can be
divided into five major categories: (1) Should procedures in Fair
Housing laws of States and localities be required to mirror the Fair
Housing Act rather than be ''substantially equivalent'' to the Act; (2)
Should an agency be certified which protects less than all of the
classes protected by the Act; (3) Should building codes and other laws
or ordinances administered by State or local agencies other than the
agency administering the fair housing law be considered in determining
the adequacy of the law; (4) Should State or local fair housing laws be
required to include an exemption from discrimination based on familial
status for housing of the elderly; and (5) Should State and local
agency enforcement mechanisms be required to be substantially equivalent
to the Act. Significant comments in these areas were focused
principally on 115.3 and 115.3a of the proposed rule.
It appears that many commenters misunderstood the requirements in
115.3(e) for a determination that a State or local law ''on its face''
satisfies the criteria for certification, indicating that they believed
the ordinance or law standing alone must meet the criteria. Both the
preamble and the proposed rule indicate that a determination as to
whether a State or local law ''on its face'' is adequate, is not limited
to an analysis of the literal text of the law but must take into account
regulations, directives and rules of procedure of a State or local
agency, as well as other relevant matters of State or local law or
interpretations by competent authorities. However, in order to avoid
any possible confusion as to matters which will be considered as part of
a determination of the adequacy of a law ''on its face,'' 115.3(e) has
been clarified by substituting the word ''all'' for the word ''such'' in
the second sentence thereof.
Several commenters suggested that time limits, provisions for notices
to complainants and respondents and similar procedural criteria are
inappropriate, burdensome and may require substantial amendments to
current laws or ordinances. Under section 804(f)(3)(A) the Secretary is
required to determine that the procedures followed by an agency
administering a fair housing law are substantially equivalent to those
in the Act. The Department believes the procedural aspects which were
contained in the proposed rule are essential to providing adequate
procedural protections to persons and that the absence of such
protections would substantially weaken a fair housing law. These
requirements have been retained in the rule.
A number of commenters objected to the requirement that
investigations be commenced within 30 days of the filing of a complaint
and that the processing of such complaints be completed within one year
of filing. Both the Act and the regulations refer to commencement of
proceedings within 30 days of filing. The proposed regulations do not
refer to a date for commencement of the investigation, and requiring
that the disposition of the complaint be completed within one year of
filing of the complaint is reasonable.
A number of commenters urged that the final rule provide that State
and local fair housing laws should be eligible for certification even
though they do not include coverage of the new classes of persons
protected by the Act, if they meet all other requirements for
recognition. Some commenters suggested in the alternative that
certification should be permitted based on protections of a certain
number of protected classes (e.g. coverage for five or six of the seven
protected classes).
The Department believes that the legislative history of the Fair
Housing Act supports the position in the proposed regulation that
coverage of all protected classes is essential to a substantial
equivalency certification.
In connection with the inclusion in section 810(f) of the Act of a
provision relating to the grandfathering of substantially equivalent
agencies, the House Judiciary Committee Report on the Fair Housing
Amendments Act described the process as follows:
''Presently, there are 36 states and 76 local agencies certified by
the Secretary as substantially equivalent under existing federal law.
Many of these states provide for some degree of administrative
enforcement, as well as protecting handicapped persons and families with
children. The Committee expects that many states will be able to
maintain their substantial equivalency status within the time period
provided.
In order to provide a reasonable transition period for states to
adjust to the new law, agencies currently certified on the day before
the date of enactment will continue to remain certified for 40 months.
This allows most jurisdictions sufficient time to conform their laws to
the new federal standards so that they may remain certified. The
Committee recognizes that some jurisdictions may need additional time
because of the infrequency of legislative sessions, and the Secretary
may grant an additional 8 months for this purpose. Report p. 35.''
Thus, it appears clear that Congress intended to provide
grandfathered agencies time to broaden their protections to encompass
the new protected classes. For this reason the final regulation retains
the requirement that State and local laws provide protection to all the
classes of persons protected under the Federal law.
Comments that the proposed regulations unreasonably require certified
agencies to amend their laws to provide relief which they are currently
not authorized to grant appear to be objections to the Act rather than
to the regulations. The Fair Housing Amendments Act put ''teeth'' into
the fair housing law. It grants the Department authority to take action
against those who commit acts made unlawful by the Fair Housing Act.
Consequently, those agencies to which the Department must refer
complaints must administer laws which provide the State or local agency
with the same authority to take action against those who commit unlawful
acts.
Some commenters in this area insisted that agencies be required to
provide for administrative judges and alternative choices --
administrative tribunal or civil court -- by either complainant or
respondent as well as an independent right to go immediately to civil
court. We believe it is sufficient that a certified agency be
authorized to obtain relief by whatever procedure its law or ordinance
provides as long as those procedures provide rights and protections
substantially equivalent to those in the Fair Housing Act. This
articulation recognizes that it is possible that agencies will be
authorized to provide more effective relief on behalf of aggrieved
persons through judicial enforcement mechanisms, which are no more
burdensome on complainants, without any administrative enforcement
procedure. Under the final rule States and localities are permitted to
provide such judicial enforcement mechanisms as an alternative to an
administrative enforcement -- civil action mechanism such as that in the
Fair Housing Act.
Several commenters indicated that incorporating into the
certification procedures a requirement that States and localities
provide accessibility requirements for new construction which are
substantially equivalent to section 804(f) of the Act was onerous and
inconsistent with State and local fair housing enforcement procedures.
These commenters pointed out that building code ordinances and
mechanisms are not part of fair housing enforcement in most areas and
that generally, enforcement of requirements is not handled in the same
manner as fair housing cases. These commenters suggested that the
requirement in 115.3a(b)(3) be deleted.
The Department is aware that enactment of accessibility requirements
will in some cases present problems for States and localities. However,
the Department believes that the legislative history of the Act and
particularly the discussion of the importance of the involvement of
States and localities in the implementation of new construction
accessibility requirements in the Statement of Managers in the Senate,
134 Cong. Rec. S10456 (daily ed. Aug. 1, 1988) supports the
determination of the Department to require local construction
requirements as part of the HUD certification process.
Protection against housing discrimination because of handicap
including accessibility requirements has been made a part of the Fair
Housing Act and must be a part of a fair housing act of a State or
locality which obtains certification. A certified agency must have
authority and responsibility to receive and process complaints of
discrimination based on handicap including complaints of violations of
the accessibility standards.
The Fair Housing Act exempts from the familial status provisions
certain housing for older persons. This exemption reflects the unique
status of housing for older persons described in the House Report on the
Fair Housing Amendments Act:
''The bill specifically exempts housing for older persons. The
Committee recognizes that some older Americans have chosen to live
together with fellow senior citizens in retirement-type communities.
The Committee appreciates the interest and expectation these individuals
have in living in environments tailored to their specific needs.
(Report p. 21).''
The Act delineates with specificity the nature of housing for older
persons which is exempt from the prohibitions against discrimination
because of familial status. In the proposed rule, the department
indicated that it intended to require that the State or local law assure
that no prohibition based on familial status applies to housing for
older persons as a condition for certification. The preamble noted
that, while HUD had not previously required States or localities to
include in their laws or ordinances any exceptions or exemptions which
the Federal law contains, in view of the Congressional concern that the
prohibitions against discrimination because of familial status not
impinge on housing for older persons, provisions providing for housing
for older persons should be required in State or local fair housing
laws.
Many commenters objected to the requirement that certified agencies
administer a fair housing law which provides the same protections for
housing for older persons as those contained in the Fair Housing Act.
Some commenters pointed out that as a result of the proposed requirement
their fair housing laws would have to be amended to limit existing
protections for families with children in order to obtain certification.
While the Department believes that Congress intended to promote
housing opportunities to address the needs of older persons, there is
nothing in the statute or legislative history to indicate that Congress
sought to limit the ability of States and localities to provide
additional protections. For this reason, the final rule has been
revised to delete the requirement for an exemption for housing for older
persons in State or local laws.
However, in order to reflect the congressional interest in the
protection of housing opportunities for older persons, the final rule
specifically indicates that State and local fair housing laws may
include an exemption for housing for older persons. This provision is
intended to encourage States and localities to consider the needs of
older persons in connection with the development of fair housing laws.
In addition to the above comments some commenters objected to the
provision that certified agencies administer a law requiring that
conciliation agreements be made public. (Section 115.3(a)(2)(vi)).
The Department is aware that there are strong arguments for and
against disclosure of conciliation agreements. However, Congress has
chosen to require such disclosure (The Fair Housing Act (Sec.
810(b)(4))). Uniformity of procedures, in this regard, followed by the
Department and certified agencies is preferable to dissimilar practices
from State to State and locality to locality. Both complainants and
respondents will have the knowledge that no matter the location of the
discriminatory housing practice resulting in a title VIII complaint, any
conciliation agreement arising out of conciliation engaged in by the
Department or any certified agency will be governed by the same
disclosure rules.
Finally, in order to provide consistency in connection with State and
local enforcement procedures, 115.3(b)(1)(iv) has been amended to
clarify that a certified agency must have authority to seek injunctive
or other equitable relief in a court of competent jurisdiction, as an
alternative to the stated authority to grant such relief. This change
allows the agency an alternative similar to the alternatives provided in
115.3(b)(1) (iii) and (v).
The Department is recodifying 24 CFR part 100, entitled ''Racial,
Sex, and Ethnic Data'', as a new part 121 of title 24. Part 100 was
originally adopted in 1971 under the heading ''Racial and Ethnic Data'',
to enable the Secretary of Housing and Urban Development to obtain
information concerning minority-group identification to assist the
Secretary in carrying out responsibility for administering the national
policies prohibiting discrimination and providing for fair housing. In
1975, in light of the 1974 amendment of title VIII to prohibit
discrimination on the basis of sex, part 100 was amended to provide for
obtaining information on sex, as well as minority-group, identification.
Section 562 of the Housing and Community Development Act of 1987
(Pub. L. 100-242, approved February 5, 1988) requires the Secretary of
Housing and Urban Development to collect data on the racial and ethnic
characteristics of persons eligible for, assisted, or otherwise
benefitting under each community development, housing assistance, and
mortgage and loan insurance and guarantee program administered by the
Secretary, and to include a summary and evaluation of such data in the
Secretary's annual report to the Congress.
Section 808(e)(6) of the Fair Housing Act, 42 U.S.C. 3608(e)(6), as
added by section 7(b)(1)(D) of the Fair Housing Amendments Act of 1988,
requires the Secretary to collect data on the race, color, religion,
sex, national origin, age, handicap and family characteristics of
persons and households who are applicants for, participants in, or
beneficiaries or potential beneficiaries of, programs administered by
the Department, to the extent that such persons and households are
within the coverage of the civil rights laws and executive orders
referred to in section 808(f) of the Fair Housing Act or specified by
the Secretary by publication in the Federal Register and to the extent
that the Secretary determines the data to be necessary or appropriate.
Since part 100 is now being used for regulations setting forth the
coverage of the Fair Housing Act, the regulations concerning collection
of data have been moved to a new part 121 -- Collection of Data. The
Department proposed a revision of the provisions contained in the old
part 100 to provide a more specific regulatory framework for the
Secretary to use in carrying out the new data collection and reporting
responsibilities mandated by the legislation described above.
A number of commenters asserted that the Department has had authority
for some time to collect the types of data which are needed for
reporting to Congress but that it has failed to generate such data.
These commenters offered various suggestions for the restructuring of
part 121 to accomplish that purpose.
The Department does not believe that any restructuring of part 121 is
necessary. The language of proposed 121.2 was drawn largely from that
contained in section 808(e)(6) of the Fair Housing Act, described above,
to enable HUD to meet the responsibilities mandated by that legislation.
HUD remains committed to that objective and believes that the
provisions of part 121, as proposed, will enable HUD to achieve that
purpose.
Accordingly, the Department has adopted part 121 in this final rule
with no changes from the proposed rule.
(54 FR 3317, Jan. 23, 1989, as amended at 56 FR 55078, Oct. 24, 1991)
24 CFR 125.405 Ch. I, Subch. A, App. II
24 CFR 125.405 Appendix II to Subchapter A -- Fair Housing
Accessibility Guidelines -- Design Guidelines for Accessible/Adaptable
Dwellings
Section 1. Introduction.
Authority. Purpose. Scope. Organization of Guidelines.
Section 2. Definitions.
Section 3. Fair Housing Act Design and Construction Requirements.
Section 4. Application of the Guidelines.
Section 5. Guidelines.
Requirement 1. Accessible building entrance on an accessible
route.
Requirement 2. Accessible and usable public and common use
areas.
Requirement 3. Usable Doors. Requirement 4. Accessible route
into and through the covered
unit.
Requirement 5. Light switches, electrical outlets, thermostats
and other environmental controls in accessible locations.
Requirement 6. Reinforced walls for grab bars. Requirement 7.
Usable kitchens and bathrooms.
Authority. Section 804(f)(5)(C) of the Fair Housing Amendments Act of
1988 directs the Secretary of the Department of Housing and Urban
Development to provide technical assistance to States, local
governments, and other persons in implementing the accessibility
requirements of the Fair Housing Act. These guidelines are issued under
this statutory authority.
Purpose. The purpose of these guidelines is to provide technical
guidance on designing dwelling units as required by the Fair Housing
Amendments Act of 1988 (Fair Housing Act). These guidelines are not
mandatory, nor do they prescribe specific requirements which must be
met, and which, if not met, would constitute unlawful discrimination
under the Fair Housing Act. Builders and developers may choose to
depart from these guidelines and seek alternate ways to demonstrate that
they have met the requirements of the Fair Housing Act. These
guidelines are intended to provide a safe harbor for compliance with the
accessibility requirements of the Fair Housing Act.
Scope. These guidelines apply only to the design and construction
requirements of 24 CFR 100.205. Compliance with these guidelines do not
relieve persons participating in a Federal or Federally-assisted program
or activity from other requirements, such as those required by section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and the
Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). Accessible
design requirements for section 504 are found at 24 CFR part 8.
Accessible design requirements for the Architectural Barriers Act are
found at 24 CFR part 40.
Organization of Guidelines. The design guidelines are incorporated
in section 5 of this document. Each guideline cites the appropriate
paragraph of HUD's regulation at 24 CFR 100.205; quotes from the
regulation to identify the required design features, and states
recommended specifications for each design feature.
Generally, these guidelines rely on the American National Standards
Institute (ANSI) A117.1-1986, American National Standard for Buildings
and Facilities -- Providing Accessibility and Usability for Physically
Handicapped People (ANSI Standard). Where the guidelines rely on
sections of the ANSI Standard, the ANSI sections are cited. Only those
sections of the ANSI Standard cited in the guidelines are recommended
for compliance with 24 CFR 100.205. For those guidelines that differ
from the ANSI Standard, recommended specifications are provided. The
texts of cited ANSI sections are not reproduced in the guidelines. The
complete text of the 1986 version of the ANSI A117.1 Standard may be
purchased from the American National Standards Institute, 1430 Broadway,
New York, NY 10018.
As used in these guidelines:
Accessible, when used with respect to the public and common use areas
of a building containing covered multifamily dwellings, means that the
public or common use areas of the building can be approached, entered,
and used by individuals with physical handicaps. The phrase readily
accessible to and usable by is synonymous with accessible. A public or
common use area that complies with the appropriate requirements of ANSI
A117.1-1986, a comparable standard or these guidelines is accessible
within the meaning of this paragraph.
Accessible route means a continuous unobstructed path connecting
accessible elements and spaces in a building or within a site that can
be negotiated by a person with a severe disability using a wheelchair,
and that is also safe for and usable by people with other disabilities.
Interior accessible routes may include corridors, floors, ramps,
elevators and lifts. Exterior accessible routes may include parking
access aisles, curb ramps, walks, ramps and lifts. A route that
complies with the appropriate requirements of ANSI A117.1-1986, a
comparable standard, or section 5, Requirement 1 of these guidelines is
an accessible route. In the circumstances described in section 5,
Requirements 1 and 2, accessible route may include access via a
vehicular route.
Adaptable dwelling units, when used with respect to covered
multifamily dwellings, means dwelling units that include the features of
adaptable design specified in 24 CFR 100.205(c)(2)-(3).
ANSI A117.1-1986 means the 1986 edition of the American National
Standard for buildings and facilities providing accessibility and
usability for physically handicapped people.
Assistive device means an aid, tool, or instrument used by a person
with disabilities to assist in activities of daily living. Examples of
assistive devices include tongs, knob-turners, and oven-rack
pusher/pullers.
Bathroom means a bathroom which includes a water closet (toilet),
lavatory (sink), and bathtub or shower. It does not include
single-fixture facilities or those with only a water closet and
lavatory. It does include a compartmented bathroom. A compartmented
bathroom is one in which the fixtures are distributed among
interconnected rooms. A compartmented bathroom is considered a single
unit and is subject to the Act's requirements for bathrooms.
Building means a structure, facility or portion thereof that contains
or serves one or more dwelling units.
Building entrance on an accessible route means an accessible entrance
to a building that is connected by an accessible route to public
transportation stops, to parking or passenger loading zones, or to
public streets or sidewalks, if available. A building entrance that
complies with ANSI A117.1-1986 (see section 5, Requirement 1 of these
guidelines) or a comparable standard complies with the requirements of
this paragraph.
Clear means unobstructed.
Common use areas means rooms, spaces or elements inside or outside of
a building that are made available for the use of residents of a
building or the guests thereof. These areas include hallways, lounges,
lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas and
passageways among and between buildings. See section 5, Requirement 2
of these guidelines.
Controlled substance means any drug or other substance, or immediate
precursor included in the definition in section 102 of the Controlled
Substances Act (21 U.S.C. 802).
Covered multifamily dwellings or covered multifamily dwellings
subject to the Fair Housing Amendments means buildings consisting of
four or more dwelling units if such buildings have one or more
elevators; and ground floor dwelling units in other buildings
consisting of four or more dwelling units. Dwelling units within a
single structure separated by firewalls do not constitute separate
buildings.
Dwelling unit means a single unit of residence for a household of one
or more persons. Examples of dwelling units covered by these guidelines
include: condominiums; an apartment unit within an apartment building;
and other types of dwellings in which sleeping accommodations are
provided but toileting or cooking facilities are shared by occupants of
more than one room or portion of the dwelling. Examples of the latter
include dormitory rooms and sleeping accommodations in shelters intended
for occupancy as a residence for homeless persons.
Entrance means any exterior access point to a building or portion of
a building used by residents for the purpose of entering. For purposes
of these guidelines, an entrance does not include a door to a loading
dock or a door used primarily as a service entrance, even if
nonhandicapped residents occasionally use that door to enter.
Finished grade means the ground surface of the site after all
construction, levelling, grading, and development has been completed.
Ground floor means a floor of a building with a building entrance on
an accessible route. A building may have one or more ground floors.
Where the first floor containing dwelling units in a building is above
grade, all units on that floor must be served by a building entrance on
an accessible route. This floor will be considered to be a ground
floor.
Handicap means, with respect to a person, a physical or mental
impairment which substantially limits one or more major life activities;
a record of such an impairment; or being regarded as having such an
impairment. This term does not include current, illegal use of or
addiction to a controlled substance. For purposes of these guidelines,
an individual shall not be considered to have a handicap solely because
that individual is a transvestite. As used in this definition:
(a) Physical or mental impairment includes:
(1) Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
Neurological; musculoskeletal; special sense organs; respiratory,
including speech organs; cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin; and endocrine; or
(2) Any mental or psychological disorder, such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific
learning disabilities. The term physical or mental impairment includes,
but is not limited to, such diseases and conditions as orthopedic,
visual, speech and hearing impairments, cerebral palsy, autism,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, Human Immunodeficiency Virus infection, mental retardation,
emotional illness, drug addiction (other than addiction caused by
current, illegal use of a controlled substance) and alcoholism. These
guidelines are designed to make units accessible or adaptable for people
with physical handicaps.
(b) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning and working.
(c) Has a record of such an impairment means has a history of, or has
been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(d) Is regarded as having an impairment means:
(1) Has a physical or mental impairment that does not substantially
limit one or more major life activities but that is treated by another
person as constituting such a limitation;
(2) Has a physical or mental impairment that substantially limits one
or more major life activities only as a result of the attitudes of
others toward such impairment; or
(3) Has none of the impairments defined in paragraph (a) of this
definition but is treated by another person as having such an
impairment.
Loft means an intermediate level between the floor and ceiling of any
story, located within a room or rooms of a dwelling.
Multistory dwelling unit means a dwelling unit with finished living
space located on one floor and the floor or floors immediately above or
below it.
Public use areas means interior or exterior rooms or spaces of a
building that are made available to the general public. Public use may
be provided at a building that is privately or publicly owned.
Single-story dwelling unit means a dwelling unit with all finished
living space located on one floor.
Site means a parcel of land bounded by a property line or a
designated portion of a public right of way.
Slope means the relative steepness of the land between two points and
is calculated as follows: The distance and elevation between the two
points (e.g., an entrance and a passenger loading zone) are determined
from a topographical map. The difference in elevation is divided by the
distance and that fraction is multiplied by 100 to obtain a percentage
slope figure. For example, if a principal entrance is ten feet from a
passenger loading zone, and the principal entrance is raised one foot
higher than the passenger loading zone, then the slope is 1/10 x 100 =
10%.
Story means that portion of a dwelling unit between the upper surface
of any floor and the upper surface of the floor next above, or the roof
of the unit. Within the context of dwelling units, the terms story and
floor are synonymous.
Undisturbed site means the site before any construction, levelling,
grading, or development associated with the current project.
Vehicular or pedestrian arrival points means public or resident
parking areas, public transportation stops, passenger loading zones, and
public streets or sidewalks.
Vehicular route means a route intended for vehicular traffic, such as
a street, driveway or parking lot.
Requirements.
The regulations issued by the Department at 24 CFR 100.205 state:
100.205 Design and construction requirements.
(a) Covered multifamily dwellings for first occupancy after March 13,
1991 shall be designed and constructed to have at least one building
entrance on an accessible route unless it is impractical to do so
because of the terrain or unusual characteristics of the site. For
purposes of this section, a covered multifamily dwelling shall be deemed
to be designed and constructed for first occupancy on or before March
13, 1991 if they are occupied by that date or if the last building
permit or renewal thereof for the covered multifamily dwellings is
issued by a State, County or local government on or before January 13,
1990. The burden of establishing impracticality because of terrain or
unusual site characteristics is on the person or persons who designed or
constructed the housing facility.
(b) The application of paragraph (a) of this section may be
illustrated by the following examples:
Example (1): A real estate developer plans to construct six covered
multifamily dwelling units on a site with a hilly terrain. Because of
the terrain, it will be necessary to climb a long and steep stairway in
order to enter the dwellings. Since there is no practical way to
provide an accessible route to any of the dwellings, one need not be
provided.
Example (2): A real estate developer plans to construct a building
consisting of 10 units of multifamily housing on a waterfront site that
floods frequently. Because of this unusual characteristic of the site,
the builder plans to construct the building on stilts. It is customary
for housing in the geographic area where the site is located to be built
on stilts. The housing may lawfully be constructed on the proposed site
on stilts even though this means that there will be no practical way to
provide an accessible route to the building entrance.
Example (3): A real estate developer plans to construct a
multifamily housing facility on a particular site. The developer would
like the facility to be built on the site to contain as many units as
possible. Because of the configuration and terrain of the site, it is
possible to construct a building with 105 units on the site provided the
site does not have an accessible route leading to the building entrance.
It is also possible to construct a building on the site with an
accessible route leading to the building entrance. However, such a
building would have no more than 100 dwelling units. The building to be
constructed on the site must have a building entrance on an accessible
route because it is not impractical to provide such an entrance because
of the terrain or unusual characteristics of the site.
(c) All covered multifamily dwellings for first occupancy after March
13, 1991 with a building entrance on an accessible route shall be
designed and constructed in such a manner that --
(1) The public and common use areas are readily accessible to and
usable by handicapped persons;
(2) All the doors designed to allow passage into and within all
premises are sufficiently wide to allow passage by handicapped persons
in wheelchairs; and
(3) All premises within covered multifamily dwelling units contain
the following features of adaptable design:
(i) An accessible route into and through the covered dwelling unit;
(ii) Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations;
(iii) Reinforcements in bathroom walls to allow later installation of
grab bars around the toilet, tub, shower, stall and shower seat, where
such facilities are provided; and
(iv) Usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space.
(d) The application of paragraph (c) of this section may be
illustrated by the following examples:
Example (1): A developer plans to construct a 100 unit condominium
apartment building with one elevator. In accordance with paragraph (a),
the building has at least one accessible route leading to an accessible
entrance. All 100 units are covered multifamily dwelling units and they
all must be designed and constructed so that they comply with the
accessibility requirements of paragraph (c) of this section.
Example (2): A developer plans to construct 30 garden apartments in
a three story building. The building will not have an elevator. The
building will have one accessible entrance which will be on the first
floor. Since the building does not have an elevator, only the ground
floor units are covered multifamily units. The ground floor is the
first floor because that is the floor that has an accessible entrance.
All of the dwelling units on the first floor must meet the accessibility
requirements of paragraph (c) of this section and must have access to at
least one of each type of public or common use area available for
residents in the building.
(e) Compliance with the appropriate requirements of ANSI A117.1-1986
suffices to satisfy the requirements of paragraph (c)(3) of this
section.
(f) Compliance with a duly enacted law of a State or unit of general
local government that includes the requirements of paragraphs (a) and
(c) of this section satisfies the requirements of paragraphs (a) and (c)
of this section.
(g)(1) It is the policy of HUD to encourage States and units of
general local government to include, in their existing procedures for
the review and approval of newly constructed covered multifamily
dwellings, determinations as to whether the design and construction of
such dwellings are consistent with paragraphs (a) and (c) of this
section.
(2) A State or unit of general local government may review and
approve newly constructed multifamily dwellings for the purpose of
making determinations as to whether the requirements of paragraphs (a)
and (c) of this section are met.
(h) Determinations of compliance or noncompliance by a State or a
unit of general local government under paragraph (f) or (g) of this
section are not conclusive in enforcement proceedings under the Fair
Housing Amendments Act.
(i) This subpart does not invalidate or limit any law of a State or
political subdivision of a State that requires dwellings to be designed
and constructed in a manner that affords handicapped persons greater
access than is required by this subpart.
The design specifications (guidelines) presented in section 5 apply
to new construction of covered multifamily dwellings, as defined in
section 2. These guidelines are recommended for designing dwellings
that comply with the requirements of the Fair Housing Amendments Act of
1988.
accessible route.
Under section 100.205(a), covered multifamily dwellings shall be
designed and constructed to have at least one building entrance on an
accessible route, unless it is impractical to do so because of terrain
or unusual characteristics of the site.
(1) Building entrance. Each building on a site shall have at least
one building entrance on an accessible route unless prohibited by the
terrain, as provided in paragraphs (2)(a)(i) or (2)(a)(ii), or unusual
characteristics of the site, as provided in paragraph (2)(b). This
guideline applies both to a single building on a site and to multiple
buildings on a site.
(a) Separate ground floor unit entrances. When a ground floor unit
of a building has a separate entrance, each such ground floor unit shall
be served by an accessible route, except for any unit where the terrain
or unusual characteristics of the site prohibit the provision of an
accessible route to the entrance of that unit.
(b) Multiple entrances. Only one entrance is required to be
accessible to any one ground floor of a building, except in cases where
an individual dwelling unit has a separate exterior entrance, or where
the building contains clusters of dwelling units, with each cluster
sharing a different exterior entrance. In these cases, more than one
entrance may be required to be accessible, as determined by analysis of
the site. In every case, the accessible entrance should be on an
accessible route to the covered dwelling units it serves.
(2) Site impracticality. Covered multifamily dwellings with
elevators shall be designed and constructed to provide at least one
accessible entrance on an accessible route, regardless of terrain or
unusual characteristics of the site. Covered multifamily dwellings
without elevators shall be designed and constructed to provide at least
one accessible entrance on an accessible route unless terrain or unusual
characteristics of the site are such that the following conditions are
found to exist:
(a) Site impracticality due to terrain. There are two alternative
tests for determining site impracticality due to terrain: the
individual building test provided in paragraph (i), or the site analysis
test provided in paragraph (ii). These tests may be used as follows.
A site with a single building having a common entrance for all units
maybe analyzed only as described in paragraph (i).
All other sites, including a site with a single building having
multiple entrances serving either individual dwelling units or clusters
of dwelling units, may be analyzed using the methodology in either
paragraph (i) or paragraph (ii). For these sites for which either test
is applicable, regardless of which test is selected, at least 20% of the
total ground floor units in nonelevator buildings, on any site, must
comply with the guidelines.
(i) Individual building test. It is impractical to provide an
accessible entrance served by an accessible route when the terrain of
the site is such that:
(A) The slopes of the undisturbed site measured between the planned
entrance and all vehicular or pedestrian arrival points within 50 feet
of the planned entrance exceed 10 percent; and
(B) The slopes of the planned finished grade measured between the
entrance and all vehicular or pedestrian arrival points within 50 feet
of the planned entrance also exceed 10 percent.
If there are no vehicular or pedestrian arrival points within 50 feet
of the planned entrance, the slope for the purposes of this paragraph
(i) will be measured to the closest vehicular or pedestrian arrival
point.
For purposes of these guidelines, vehicular or pedestrian arrival
points include public or resident parking areas; public transportation
stops; passenger loading zones; and public streets or sidewalks. To
determine site impracticality, the slope would be measured at ground
level from the point of the planned entrance on a straight line to (i)
each vehicular or pedestrian arrival point that is within 50 feet of the
planned entrance, or (ii) if there are no vehicular or pedestrian
arrival points within that specified area, the vehicular or pedestrian
arrival point closest to the planned entrance. In the case of
sidewalks, the closest point to the entrance will be where a public
sidewalk entering the site intersects with the sidewalk to the entrance.
In the case of resident parking areas, the closest point to the planned
entrance will be measured from the entry point to the parking area that
is located closest to the planned entrance.
(ii) Site analysis test. Alternatively, for a site having multiple
buildings, or a site with a single building with multiple entrances,
impracticality of providing an accessible entrance served by an
accessible route can be established by the following steps:
(A) The percentage of the total buildable area of the undisturbed
site with a natural grade less than 10% slope shall be calculated. The
analysis of the existing slope (before grading) shall be done on a
topographic survey with two foot (2') contour intervals with slope
determination made between each successive interval. The accuracy of
the slope analysis shall be certified by a professional licensed
engineer, landscape architect, architect or surveyor.
(B) To determine the practicality of providing accessibility to
planned multifamily dwellings based on the topography of the existing
natural terrain, the minimum percentage of ground floor units to be made
accessible should equal the percentage of the total buildable area (not
including floodplains, wetlands, or other restricted use areas) of the
undisturbed site that has an existing natural grade of less than 10%
slope.
(C) In addition to the percentage established in paragraph (B), all
ground floor units in a building, or ground floor units served by a
particular entrance, shall be made accessible if the entrance to the
units is on an accessible route, defined as a walkway with a slope
between the planned entrance and a pedestrian or vehicular arrival point
that is no greater than 8.33%.
(b) Site impracticality due to unusual characteristics. Unusual
characteristics include sites located in a federally-designated
floodplain or coastal high-hazard area and sites subject to other
similar requirements of law or code that the lowest floor or the lowest
structural member of the lowest floor must be raised to a specified
level at or above the base flood elevation. An accessible route to a
building entrance is impractical due to unusual characteristics of the
site when:
(i) The unusual site characteristics result in a difference in
finished grade elevation exceeding 30 inches and 10 percent measured
between an entrance and all vehicular or pedestrian arrival points
within 50 feet of the planned entrance; or
(ii) If there are no vehicular or pedestrian arrival points within 50
feet of the planned entrance, the unusual characteristics result in a
difference in finished grade elevation exceeding 30 inches and 10
percent measured between an entrance and the closest vehicular or
pedestrian arrival point.
(3) Exceptions to site impracticality. Regardless of site
considerations described in paragraphs (1) and (2), an accessible
entrance on an accessible route is practical when:
(a) There is an elevator connecting the parking area with the
dwelling units on a ground floor. (In this case, those dwelling units
on the ground floor served by an elevator, and at least one of each type
of public and common use areas, would be subject to these guidelines.)
However:
(i) Where a building elevator is provided only as a means of creating
an accessible route to dwelling units on a ground floor, the building is
not considered an elevator building for purposes of these guidelines;
hence, only the ground floor dwelling units would be covered.
(ii) If the building elevator is provided as a means of access to
dwelling units other than dwelling units on a ground floor, then the
building is an elevator building which is a covered multifamily
dwelling, and the elevator in that building must provide accessibility
to all dwelling units in the building, regardless of the slope of the
natural terrain; or
(b) An elevated walkway is planned between a building entrance and a
vehicular or pedestrian arrival point and the planned walkway has a
slope no greater than 10 percent.
(4) Accessible entrance. An entrance that complies with ANSI 4.14
meets section 100.205(a).
(5) Accessible route. An accessible route that complies with ANSI
4.3 would meet section 100.205(a). If the slope of the finished grade
between covered multifamily dwellings and a public or common use
facility (including parking) exceeds 8.33%, or where other physical
barriers (natural or manmade) or legal restrictions, all of which are
outside the control of the owner, prevent the installation of an
accessible pedestrian route, an acceptable alternative is to provide
access via a vehicular route, so long as necessary site provisions such
as parking spaces and curb ramps are provided at the public or common
use facility.
use areas.
Section 100.205(c)(1) provides that covered multifamily dwellings
with a building entrance on an accessible route shall be designed in
such a manner that the public and common use areas are readily
accessible to and usable by handicapped persons.
The following chart identifies the public and common use areas that
should be made accessible, cites the appropriate section of the ANSI
Standard, and describes the appropriate application of the
specifications, including modifications to the referenced Standard.
Section 100.205(c)(2) provides that covered multifamily dwellings
with a building entrance on an accessible route shall be designed in
such a manner that all the doors designed to allow passage into and
within all premises are sufficiently wide to allow passage by
handicapped persons in wheelchairs.
Section 100.205(c)(2) would apply to doors that are a part of an
accessible route in the public and common use areas of multifamily
dwellings and to doors into and within individual dwelling units.
(1) On accessible routes in public and common use areas, and for
primary entry doors to covered units, doors that comply with ANSI 4.13
would meet this requirement.
(2) Within individual dwelling units, doors intended for user passage
through the unit which have a clear opening of at least 32 inches
nominal width when the door is open 90 degrees, measured between the
face of the door and the stop, would meet this requirement. (See Fig. 1
(a), (b), and (c).) Openings more than 24 inches in depth are not
considered doorways. (See Fig. 1(d).)
Note. A 34-inch door, hung in the standard manner, provides an
acceptable nominal 32-inch clear opening. This door can be adapted to
provide a wider opening by using offset hinges, by removing lower
portions of the door stop, or both. Pocket or sliding doors are
acceptable doors in covered dwelling units and have the added advantage
of not impinging on clear floor space in small rooms. The nominal
32-inch clear opening provided by a standard six-foot sliding patio door
assembly is acceptable.
insert illus 1149
covered dwelling unit.
Section 100.205(c)(3)(i) provides that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain an accessible route into and
through the covered dwelling unit.
Accessible routes into and through dwelling units would meet
section100.205(c)(3)(i) if:
(1) A minimum clear width of 36 inches is provided.
(2) In single-story dwelling units, changes in level within the
dwelling unit with heights between 1/4 inch and 1/2 inch are beveled
with a slope no greater than 1:2. Except for design features, such as a
loft or an area on a different level within a room (e.g., a sunken
living room), changes in level greater than 1/2 inch are ramped or have
other means of access. Where a single story dwelling unit has special
design features, all portions of the single-story unit, except the loft
or the sunken or raised area, are on an accessible route; and
(a) In single-story dwelling units with lofts, all spaces other than
the loft are on an accessible route.
(b) Design features such as sunken or raised functional areas do not
interrupt the accessible route through the remainder of the dwelling
unit.
(3) In multistory dwelling units in buildings with elevators, the
story of the unit that is served by the building elevator (a) is the
primary entry to the unit; (b) complies with Requirements 2 through 7
with respect to the rooms located on the entry/accessible floor; and
(c) contains a bathroom or powder room which complies with Requirement
7. (Note: Multistory dwelling units in non-elevator buildings are not
covered dwelling units because, in such cases, there is no ground floor
unit.)
(4) Except as noted in paragraphs (5) and (6) below, thresholds at
exterior doors, including sliding door tracks, are no higher than 3/4
inch. Thresholds and changes in level at these locations are beveled
with a slope no greater than 1:2.
(5) Exterior deck, patio, or balcony surfaces are no more than 1/2
inch below the floor level of the interior of the dwelling unit, unless
they are constructed of impervious material such as concrete, brick or
flagstone. In such case, the surface is no more than 4 inches below the
floor level of the interior of the dwelling unit, or lower if required
by local building code.
(6) At the primary entry door to dwelling units with direct exterior
access, outside landing surfaces constructed of impervious materials
such as concrete, brick or flagstone, are no more than 1/2 inch below
the floor level of the interior of the dwelling unit. The finished
surface of this area that is located immediately outside the entry may
be sloped, up to 1/8 inch per foot (12 inches), for drainage.
thermostats and other environmental controls in
accessible locations.
Section 100.205(c)(3)(ii) requires that all covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain light switches, electrical
outlets, thermostats, and other environmental controls in accessible
locations.
Light switches, electrical outlets, thermostats and other
environmental controls would meet section 100.205(c)(3)(ii) if operable
parts of the controls are located no higher than 48 inches, and no lower
than 15 inches, above the floor. If the reach is over an obstruction
(for example, an overhanging shelf) between 20 and 25 inches in depth,
the maximum height is reduced to 44 inches for forward approach; or 46
inches for side approach, provided the obstruction (for example, a
kitchen base cabinet) is no more than 24 inches in depth. Obstructions
should not extend more than 25 inches from the wall beneath a control.
(See Fig. 2.)
Note. Controls or outlets that do not satisfy these specifications
are acceptable provided that comparable controls or outlets (i.e., that
perform the same functions) are provided within the same area and are
accessible, in accordance with this guideline for Requirement 5.
insert illus 1151
Section 100.205(c)(3)(iii) requires that covered multifamily
dwellings with a building entrance on an accessible route shall be
designed and constructed in such a manner that all premises within
covered multifamily dwelling units contain reinforcements in bathroom
walls to allow later installation of grab bars around toilet, tub,
shower stall and shower seat, where such facilities are provided.
Reinforced bathroom walls to allow later installation of grab bars
around the toilet, tub, shower stall and shower seat, where such
facilities are provided, would meet section 100.205(c)(3)(iii) if
reinforced areas are provided at least at those points where grab bars
will be mounted. (For example, see Figs. 3, 4 and 5.) Where the toilet
is not placed adjacent to a side wall, the bathroom would comply if
provision was made for installation of floor mounted, foldaway or
similar alternative grab bars. Where the powder room (a room with a
toilet and sink) is the only toilet facility located on an accessible
level of a multistory dwelling unit, it must comply with the requirement
for reinforced walls for grab bars.
Note. Installation of bathtubs is not limited by the illustrative
figures; a tub may have shelves or benches at either end; or a tub may
be installed without surrounding walls, if there is provision for
alternative mounting of grab bars. For example, a sunken tub placed
away from walls could have reinforced areas for installation of
floor-mounted grab bars. The same principle applies to shower stalls --
e.g., glass-walled stalls could be planned to allow floor-mounted grab
bars to be installed later.
Reinforcement for grab bars may be provided in a variety of ways (for
example, by plywood or wood blocking) so long as the necessary
reinforcement is placed so as to permit later installation of
appropriate grab bars.
insert illus
OMITT500000000 ED
insert illus
OMITT500000000 ED
insert illus 0398
Section 100.205(c)(3)(iv) requires that covered multifamily dwellings
with a building entrance on an accessible route shall be designed and
constructed in such a manner that all premises within covered
multifamily dwelling units contain usable kitchens and bathrooms such
that an individual in a wheelchair can maneuver about the space.
(1) Usable kitchens. Usable kitchens would meet section
100.205(c)(3)(iv) if:
(a) A clear floor space at least 30 inches by 48 inches that allows a
parallel approach by a person in a wheelchair is provided at the range
or cooktop and sink, and either a parallel or forward approach is
provided at oven, dishwasher, refrigerator/freezer or trash compactor.
(See Fig. 6)
(b) Clearance between counters and all opposing base cabinets,
countertops, appliances or walls is at least 40 inches.
(c) In U-shaped kitchens with sink or range or cooktop at the base of
the ''U'', a 60-inch turning radius is provided to allow parallel
approach, or base cabinets are removable at that location to allow knee
space for a forward approach.
(2) Usable bathrooms. To meet the requirements of section
100.205(c)(3)(iv) either:
All bathrooms in the dwelling unit comply with the provisions of
paragraph (a); or
At least one bathroom in the dwelling unit complies with the
provisions of paragraph (b), and all other bathrooms and powder rooms
within the dwelling unit must be on an accessible route with usable
entry doors in accordance with the guidelines for Requirements 3 and 4.
However, in multistory dwelling units, only those bathrooms on the
accessible level are subject to the requirements of section
100.205(c)(3)(iv). Where a powder room is the only facility provided on
the accessible level of a multistory dwelling unit, the powder room must
comply with provisions of paragraph (a) or paragraph (b). Powder rooms
that are subject to the requirements of section 100.205(c)(3)(iv) must
have reinforcements for grabbars as provided in the guideline for
Requirement 6.
(a) Bathrooms that have reinforced walls for grab bars (see
Requirement 6) would meet section 100.205(c)(3)(iv) if:
(i) Sufficient maneuvering space is provided within the bathroom for
a person using a wheelchair or other mobility aid to enter and close the
door, use the fixtures, reopen the door and exit. Doors may swing into
the clear floor space provided at any fixture if the maneuvering space
is provided. Maneuvering spaces may include any kneespace or toespace
available below bathroom fixtures.
(ii) Clear floor space is provided at fixtures as shown in Fig. 7
(a), (b), (c) and (d). Clear floor space at fixtures may overlap.
(iii) If the shower stall is the only bathing facility provided in
the covered dwelling unit, or on the accessible level of a covered
multistory unit, the shower stall measures at least 36 inches x 36
inches.
Note. Cabinets under lavatories are acceptable provided the bathroom
has space to allow a parallel approach by a person in a wheelchair; if
parallel approach is not possible within the space, any cabinets
provided would have to be removable to afford the necessary knee
clearance for forward approach.
(b) Bathrooms that have reinforced walls for grab bars (see
Requirement 6) would meet section 100.205(c)(3)(iv) if:
(i) Where the door swings into the bathroom, there is a clear space
(approximately, 2' 6'' by 4'0'') within the room to position a
wheelchair or other mobility aid clear of the path of the door as it is
closed and to permit use of fixtures. This clear space can include any
kneespace and toespace available below bathroom fixtures.
(ii) Where the door swings out, a clear space is provided within the
bathroom for a person using a wheelchair or other mobility aid to
position the wheelchair such that the person is allowed use of fixtures.
There also shall be clear space to allow persons using wheelchairs to
reopen the door to exit.
(iii) When both tub and shower fixtures are provided in the bathroom,
at least one is made accessible. When two or more lavatories in a
bathroom are provided, at least one is made accessible.
(iv) Toilets are located within bathrooms in a manner that permit a
grab bar to be installed on one side of the fixture. In locations where
toilets are adjacent to walls or bathtubs, the center line of the
fixture is a minimum of 1'6'' from the obstacle. The other (non-grab
bar) side of the toilet fixture is a minimum of 1'3'' from the finished
surface of adjoining walls, vanities or from the edge of a lavatory.
(See Figure 7(a).)
(v) Vanities and lavatories are installed with the centerline of the
fixture a minimum of 1'3'' horizontally from an adjoining wall or
fixture. The top of the fixture rim is a maximum height of 2'10'' above
the finished floor. If kneespace is provided below the vanity, the
bottom of the apron is at least 2'3'' above the floor. If provided,
full kneespace (for front approach) is at least 1'5'' deep. (See Figure
7(c).)
(vi) Bathtubs and tub/showers located in the bathroom provide a clear
access aisle adjacent to the lavatory that is at least 2'6'' wide and
extends for a length of 4'0'' (measured from the foot of the bathtub).
(See Figure 8.)
(vii) Stall showers in the bathroom may be of any size or
configuration. A minimum clear floor space 2'6'' wide by 4'0'' should
be available outside the stall. (See Figure 7(d). If the shower stall
is the only bathing facility provided in the covered dwelling unit, or
on the accessible level of a covered multistory unit, and measures a
nominal 36x36, the shower stall must have reinforcing to allow for
installation of an optional wall hung bench.
insert illus 1155
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insert illus 1157 and 0399
insert illus 0400
(56 FR 9496, Mar. 6, 1991; 56 FR 28704, June 24, 1991; 56 FR 56544,
Nov. 5, 1991)
24 CFR 125.405 Ch. I, Subch. A, App. III
24 CFR 125.405 Appendix III to Ch. I, Subchapter A -- Preamble to
Final Housing Accessibility Guidelines (Published March 6, 1991)
The Department of Housing and Urban Development (Department) is
adopting as its Fair Housing Accessibility Guidelines, the design and
construction guidelines set forth in this notice (Guidelines). Issuance
of this document follows consideration of public comments received in
response to an advance notice of intention to develop and publish Fair
Housing Accessibility Guidelines, published in the Federal Register on
August 2, 1989 (54 FR 31856), and in response to proposed accessibility
guidelines published in the Federal Register on June 15, 1990 (55 FR
24730).
The Department is adopting as final Guidelines, the guidelines
designated as Option One in the proposed guidelines published on June
15, 1990, with modifications to certain of the Option One design
specifications. In developing the final Guidelines, the Department was
cognizant of the need to provide technical guidance that appropriately
implements the specific accessibility requirements of the Fair Housing
Amendments Act of 1988, while avoiding design specifications that would
impose an unreasonable burden on builders, and significantly increase
the cost of new multifamily construction. The Department believes that
the final Guidelines adopted by this notice (1) are consistent with the
level of accessibility envisioned by Congress; (2) simplify compliance
with the Fair Housing Amendments Act by providing guidance concerning
what constitutes acceptable compliance with the Act; and (3) maintain
the affordability of new multifamily construction by specifying
reasonable design and construction methods.
The Option One design specifications substantially revised in the
final Guidelines include the following:
(1) Site impracticality. The final Guidelines provide that covered
multifamily dwellings with elevators shall be designed and constructed
to provide at least one accessible entrance on an accessible route
regardless of terrain or unusual characteristics of the site. Every
dwelling unit on a floor served by an elevator must be on an accessible
route, and must be made accessible in accordance with the Act's
requirements for covered dwelling units.
For covered multifamily dwellings without elevators, the final
Guidelines provide two alternative tests for determining site
impracticality due to terrain. The first test is an individual building
test which involves a two-step process: measurement of the slope of the
undisturbed site between the planned entrance and all vehicular or
pedestrian arrival points; and measurement of the slope of the planned
finished grade between the entrance and all vehicular or pedestrian
arrival points. The second test is a site analysis test which involves
an analysis of the existing natural terrain (before grading) by
topographic survey with 2 foot contour intervals, with slope
determination made between each successive contour interval.
A site with a single building (without an elevator), having a common
entrance for all units, may be analyzed only under the first test -- the
individual building test. All other sites, including a site with a
single building having multiple entrances serving either individual
dwelling units or clusters of dwelling units, may be analyzed either
under the first test or the second test. For sites for which either
test is applicable (that is, all sites other than a site with a single
nonelevator building having a common entrance for all units), the final
Guidelines provide that regardless of which test is utilized by a
builder or developer, at least 20% of the total ground floor units in
nonelevator buildings, on any site, must comply with the Act's
accessibility requirements.
(2) An accessible route into and through covered dwelling units. The
final Guidelines distinguish between (i) single-story dwelling units,
and (ii) multistory dwelling units in elevator buildings, and provide
guidance on designing an accessible entrance into and through each of
these two types of dwelling units.
(a) Single-story dwelling units. For single-story dwelling units,
the final Guidelines specify the same design specification as presented
in the proposed Option One guidelines, except that design features
within the single-story dwelling units, such as a loft or a sunken
living room, are exempt from the access specifications, subject to
certain requirements. Lofts are exempt provided that all other space
within the units is on an accessible route. Sunken or raised functional
areas, such as a sunken living room, are also exempt from access
specifications, provided that such areas do not interrupt the accessible
route through the remainder of the unit. However, split-level entries
or areas will need ramps or other means of providing an accessible
route.
(b) Multistory dwelling units in buildings with elevators. For
multistory dwelling units in buildings with elevators, the final
Guidelines specify that only the story served by the building elevator
must comply with the accessible features for dwelling units required by
the Fair Housing Act. The other stories of the multistory dwelling
units are exempt from access specifications, provided that the story of
the unit that is served by the building elevator (1) is the primary
entry to the unit; (2) complies with Requirements 2 through 7 with
respect to the rooms located on the entry/accessible level; and (3)
contains a bathroom or powder room which complies with Requirement 7.
(c) Thresholds at patio, deck or balcony doors. The final Guidelines
provide that exterior deck, patio, or balcony surfaces should be not
more than 1/2 inch below the floor level of the interior of the dwelling
unit, unless they are constructed of impervious materials such as
concrete, brick or flagstone, in which case the surface should be no
more than 4 inches below the floor level of the interior dwelling units,
unless the local building code requires a lower drop. This provision
and the following provision were included in order to minimize the
possibility of interior water damage when exterior surfaces are
constructed of impervious materials.
(d) Outside surface at entry door. The final Guidelines also provide
that at the primary entry door to dwelling units with direct exterior
access, outside landing surfaces constructed of impervious materials
such as concrete, brick, or flagstone should be no more than 1/2 inch
below the interior of the dwelling unit. The Guidelines further provide
that the finished surface of this area, located immediately outside the
entry door, may be sloped for drainage, but the sloping may be no more
than 1/8 inch per foot.
(3) Usable bathrooms. The final Guidelines provide two alternative
sets of specifications for making bathrooms accessible in accordance
with the Act's requirements. The Act requires that an accessible or
''usable'' bathroom is one which provides sufficient space for an
individual in a wheelchair to maneuver about. The two sets of
specifications provide different approaches as to how compliance with
this maneuvering space requirement may be achieved. The final
Guidelines for usable bathrooms also provide that the usable bathroom
specifications (either set of specifications) are applicable to powder
rooms (i.e., a room with only a toilet and a sink) when the powder room
is the only toilet facility on the accessible level of a covered
multistory dwelling unit.
The details about, and the reasons for these modifications, and
additional minor technical modifications made to certain design
specifications of the Option One guidelines, are discussed more fully in
the section-by-section analysis which appear later in this preamble.
Principal features of the Option One guidelines that were not changed
in the final Guidelines include the following:
(1) Accessible entrance and an accessible route. The Option One
guidelines for these two requirements remain unchanged in the final
Guidelines.
(2) Accessible and usable public and common use areas. The Option
One guidelines for public and common use areas remain unchanged in the
final Guidelines.
(3) Door within individual dwelling units. The final Guidelines
recommend that doors intended for user passage within individual
dwelling units have a clear opening of at least 32 inches nominal width
when the door is open 90 degrees.
(4) Doors to public and common use areas. The final Guidelines
continued to provide that on accessible routes in public and common use
areas, and for primary entry doors to covered units doors that comply
with ANSI 4.13 meet the Act's requirement for ''usable'' doors.
(4) Thresholds at exterior doors. Subject to the exceptions for
thresholds and changes in level at exterior areas constructed of
impervious materials, the final Guidelines continue to specify that
thresholds at exterior doors, including sliding door tracks, be no
higher than 3/4 inch.
(5) Reinforced walls for grab bars. The final Guidelines for
bathroom wall reinforcement remains essentially unchanged from the
Option One guidelines. The only change made to these guidelines has
been to subject powder rooms to the reinforced wall requirement when the
powder room is the only toilet facility on the accessible floor of a
covered multistory dwelling unit.
The text of the final Guidelines follows the Preamble, which includes
a discussion of the public comments received on the proposed guidelines,
and the section-by-section analysis referenced above.
The design specification presented in the Fair Housing Accessibility
Guidelines provide technical guidance to builders and developers in
complying with the specific accessibility requirements of the Fair
Housing Amendments Act of 1988. The Guidelines are intended to provide
a safe harbor for compliance with the accessibility requirements of the
Fair Housing Amendments Act, as implemented by 24 CFR 100.205 of the
Department's Fair Housing regulations. The Guidelines are not
mandatory. Additionally, the Guidelines do not prescribe specific
requirements which must be met, and which, if not met, would constitute
unlawful discrimination under the Fair Housing Amendments Act. Builders
and developers may choose to depart from the Guidelines, and seek
alternate ways to demonstrate that they have met the requirements of the
Fair Housing Act.
Title VIII of the Civil Rights Act of 1968 makes it unlawful to
discriminate in any aspect relating to the sale, rental or financing of
dwellings, or in the provision of brokerage services or facilities in
connection with the sale or rental of a dwelling, because of race,
color, religion, sex or national origin. The Fair Housing Amendments
Act of 1988 (Pub. L. 100-430, approved September 13, 1988) (Fair Housing
Act or the Act) expanded coverage of title VIII (42 U.S.C. 3601-3620)
to prohibit discriminatory housing practices based on handicap and
familial status. As amended, section 804(f)(3)(C) of the Act provides
that unlawful discrimination includes a failure to design and construct
covered multifamily dwellings for first occupancy after March 13, 1991
(30 months after the date of enactment in accordance with certain
accessibility requirements. The Act defines ''covered multifamily
dwellings'' as ''(a) buildings consisting of 4 or more units if such
buildings have one or more elevators; and (b) ground floor units in
other buildings consisting of 4 or more units'' (42 U.S.C. 3604).
The Act makes it unlawful to fail to design and construct covered
multifamily dwellings so that:
(1) Public use and common use portions of the dwellings are readily
accessible to and usable by persons with handicaps;
(2) All doors within such dwellings which are designed to allow
passage into and within the premises are sufficiently wide to allow
passage by persons in wheelchairs; and
(3) All premises within such dwellings contain the following features
of adaptive design:
(a) An accessible route into and through the dwelling;
(b) Light switches, electrical outlets, thermostats, and other
environmental controls in accessible locations.
(c) Reinforcements in bathroom walls to allow later installation of
grab bars; and
(d) Usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space.
The Act provides that compliance with (1) the appropriate
requirements of the American National Standard for Buildings and
Facilities -- Providing Accessibility and Usability for Physically
Handicapped People (commonly cited as ''ANSI A117.1''), or (2) with the
laws of a State or unit of general local government, that has
incorporated into such laws the accessibility requirements of the Act,
shall be deemed to satisfy the accessibility requirements of the Act.
(See section 804(f)(4) and (5)(A).) The Act also provides that the
Secretary of the Department of Housing and Urban Development shall
provide technical assistance to States and units of local government and
other persons to implement the accessibility requirements of the Act.
(See section 804(f)(5)(C).)
Congress believed that the accessibility provisions of the Act would
(1) facilitate the ability of persons with handicaps to enjoy full use
of their homes without imposing unreasonable requirements on
homebuilders, landlords and non-handicapped tenants; (2) be essential
for equal access and to avoid future de facto exclusion of persons with
handicaps; and (3) be easy to incorporate in housing design and
construction. Congress predicted that compliance with these minimal
accessibility design and construction standards would eliminate many of
the barriers which discriminate against persons with disabilities in
their attempts to obtain equal housing opportunities. (See H.R. Rep.
No. 711, 100th Cong. 2d Sess. 27-28 (1988) (''House Report'').)
The Fair Housing Act became effective on March 12, 1989. The
Department implemented the Act by a final rule published January 23,
1989 (54 FR 3232), and which became effective on March 12, 1989.
Section 100.205 of that rule incorporates the Act's design and
construction requirements, including the requirement that multifamily
dwellings for first occupancy after March 13, 1991 be designed and
constructed in accordance with the Act's accessibility requirements.
The final rule clarified which multifamily dwellings are subject to the
Act's requirements. Section 100.205 provides, in paragraph (a), that
covered multifamily dwellings shall be deemed to be designed and
constructed for first occupancy on or before March 13, 1991, if they are
occupied by that date, or if the last building permit or renewal thereof
for the covered multifamily dwellings is issued by a State, County or
local government on or before January 13, 1990. The Department selected
the date of January 13, 1990 because it is fourteen months before March
13, 1991. Based on data contained in the Marshall Valuation Service,
the Department found that fourteen months represented a reasonable
median construction time for multifamily housing projects of all sizes.
The Department chose the issuance of a building permit as the
appropriate point in the building process because such permits are
issued in writing by governmental authorities. The issuance of a
building permit has the advantage of being a clear and objective
standard. In addition, any project that actually achieves first
occupancy before March 13, 1991 will be judged to have met this standard
even if the last building permit or renewal thereof was issued after
January 13, 1990 (55 FR 3251).
Section 110.205 of the final rule also incorporates the Act's
provisions that compliance with the appropriate requirements of ANSI
A117.1, or with State or local laws that have incorporated the Act's
accessibility requirements, suffices to satisfy the accessibility
requirements of the Act as codified in 100.205. In the preamble to the
final rule, the Department stated that it would provide more specific
guidance on the Act's accessibility requirements in a notice of proposed
guidelines that would provide a reasonable period for public comment on
the guidelines.
On August 2, 1989, the Department published in the Federal Register
an advance notice of intention to develop and publish Fair Housing
Accessibility Guidelines (54 FR 31856). The purpose of this document
was to solicit early comment from the public concerning the content of
the Accessibility Guidelines, and to outline the Department's procedures
for their development. To the extent practicable, the Department
considered all public comments submitted in response to the August 2,
1989 advance notice in its preparation of the proposed accessibility
guidelines.
On June 15, 1990, the Department published proposed Fair Housing
Accessibility guidelines (55 FR 24370). The proposed guidelines
presented, and requested public comment on, three options for accessible
design:
(1) Option one (Option One) provided guidelines developed by the
Department with the assistance of the Southern Building Code Congress
International (SBCCI), and incorporated suggestions received in response
to the August 2, 1989 advance notice;
(2) Option two (Option Two) offered guidelines developed by the
National Association of Home Builders (NAHB) and the National
Coordinating Council on Spinal Cord Injuries (NCCSCI); and
(3) Option three (Option Three) offered ''adaptable accommodations''
guidelines, an approach that provides for identification of certain
features in dwelling units that could be made accessible to people with
handicaps on a case-by-case basis.
In the June 15, 1990 notice of proposed guidelines, the Department
recognized that projects then being designed, in advance of publication
of the final Guidelines may not become available for occupancy until
after March 13, 1991. The Department advised that efforts to comply
with the proposed guidelines, Option One, in the design of projects
which would be completed before issuance of the final Guidelines, would
be considered as evidence of compliance with the Act in connection with
the Department's investigation of any complaints. Following publication
of the June 15, 1990 notice, the Department received a number of
inquiries concerning whether certain design and construction activities
in connection with projects likely to be completed before issuance of
final Guidelines would be considered by the Department to be in
compliance with the Act.
In order to resolve these questions, the Department, on August 1,
1990, published in the Federal Register a supplementary notice to the
proposed guidelines (55 FR 31191). In the supplementary notice, the
Department advised that it only would consider efforts to comply with
the proposed guidelines, Option One, as evidence of compliance with the
Act. The Department stated that evidence of compliance with the Option
One guidelines, under the circumstances described in the supplementary
notice, would be a basis for determination that there is no reasonable
cause to believe that a discriminatory housing practice under section
804(f)(3) has occurred, or is about to occur in connection with the
investigation of complaints filed with the Department relating to
covered multifamily dwellings. The circumstances described in the
August 1, 1990 supplementary notice that the Department found would be
in compliance with the Act, were limited to:
(1) Any covered multifamily dwellings which are designed in
accordance with the Option One guidelines, and for which construction is
completed before publication of the final Fair Housing Accessibility
Guidelines; and
(2) Any covered multifamily dwellings which have been designed in
accordance with the Option One guidelines, but for which construction is
not completed by the date of publication of the final Guidelines
provided:
(a) Construction begins before the final Guidelines are published;
or
(b) A building permit is issued less than 60 days after the final
Guidelines are published.
On September 7, 1990, the Department published for public comment a
Preliminary Regulatory Impact Analysis on the Department's assessment of
the economic impact of the Guidelines, as implemented by each of the
three design options then under consideration (55 FR 37072-37129).
The proposed guidelines provided a 90-day period for the submission
of comments by the public, ending September 13, 1990. The Department
received 562 timely comments. In addition, a substantial number of
comments were received by the Department after the September 13, 1990
deadline. Although those comments were not timely filed, they were
reviewed to assure that any major issues raised had been adequately
addressed in comments that were received by the deadline. Each of the
timely comments was read, and a list of all significant issues raised by
those comments was compiled. All these issues were considered in the
development of the final Guidelines.
Of the 562 comments received, approximately 200 were from disability
advocacy organizations, or units of State or local government concerned
with disability issues. Sixty-eight (68) additional commenters
identified themselves as members of the disability community; 61
commenters identified themselves as individuals who work with members of
the disability community (e.g., vocational or physical therapists or
counselors), or who have family members with disabilities; and 96
commenters were members of the building industry, including architects,
developers, designers, design consultants, manufacturers of home
building products, and rental managers. Approximately 292 commenters
supported Option One without any recommendation for change An additional
155 commenters supported Option One, but recommended changes to certain
Option One design standards. Twenty-six (26) commenters supported
Option Two, and 10 commenters supported Option Three. The remaining
commenters submitted questions, comments and recommendations for changes
on certain design features of one or more of the three options, but
expressed no preference for any particular option, or, alternatively,
recommended final guidelines that combine features from two or all three
of the options.
The commenters included several national, State and local
organizations and agencies, private firms, and individuals that have
been involved in the development of State and local accessibility codes.
These commenters offered valuable information, including copies of
State and local accessibility codes, on accesibility design standards.
These commenters included: the Southern Building Code Congress
International (SBCCI); the U.S. Architectural and Transportation
Barriers Compliances Board (ATBCB); the Building Officials & Code
Administrators International, Inc. (BOCA); the State of Washington
Building Code Council; the Seattle Department of Construction and Land
Use; the Barrier-free Subcode Committee of the New Jersey Uniform
Construction Code Advisory Board; the Department of Community Planning,
Housing and Department of Arlington County, Virginia; the City of
Atlanta Department of Community Development, Bureau of Buildings; and
members of the Department of Architecture, the State of University of
New York at Buffalo. In addition to the foregoing organizations, a
number of the commenters from the building industry submitted detailed
comments on the proposed guidelines.
The commenters also included a number of disability organizations,
several of which prepared detailed comments on the proposed guidelines.
The comments of two disability organizations also were submitted as
concurring comments by many individuals and other disability advocacy
organizations. These two organizations are the Disability Rights
Education & Defense Fund, and the Consortium for Citizens with
Disabilities (CCD). The CCD represents the following organizations:
the Association for Education and Rehabilitation of the Blind and
Visually Impaired, Association for Retarded Citizens of the United
States, International Association of Psychological Rehabilitation
Facilities, National Alliance for the Mentally Ill, National Association
of Protection and Advocacy Systems, National Association of
Developmental Disabilities Councils, National Association of State
Mental Health Program Directors, National Council of Community Mental
Health Centers, National Head Injury Foundation, National Mental Health
Association, United Cerebral Palsy Associations, Inc. Both the
Disability Rights Education and Defense Fund and the CCD were strongly
supportive of Option One.
A coalition of 20 organizations (Coalition), representing both the
building industry and the disability community, also submitted detailed
comments on the proposed guidelines. The members of the Coalition
include: American Institute of Architects, American Paralysis
Association, American Resort and Residential Development Association,
American Society of Landscape Architects, Apartment and Office Building
Association, Association of Home Appliance Manufacturers, Bridge Housing
Corporation, Marriott Corporation, Mortgage Bankers Association,
National Apartment Association, National Assisted Housing Management
Association, National Association of Home Builders (NAHB), National
Association of Realtors, National Association of Senior Living
Industries, National Conference of States on Building Codes and
Standards, National Coordinating Council on Spinal Cord Injury (NCCSCI),
National Leased Housing Association, National Multi Housing Council,
National Organization on Disability, and the Paralyzed Veterans of
America.
The commenters also included U.S. Representatives Don Edwards, Barney
Frank and Hamilton Fish, Jr., who advised that they were the primary
sponsors of the Fair Housing Act, and who expressed their support of
Option One.
In addition to specific issues and questions raised about the design
standards recommended by the proposed guidelines, a number of commenters
simply submitted comments on their overall opinion of one or more of the
options. Following is a summary of the opinions typically expressed on
each of the options.
Option One. The Option One guidelines drew a strong reaction from
commenters. Supporters stated that the Option One guidelines provided a
faithful and clearly stated interpretation of the Act's intent.
Opponents of Option One stated that its design standards would increase
housing costs significantly -- for everyone. Several commenters who
supported some features of Option One were concerned that adoption of
Option One in its entirety would escalate housing costs. Another
frequent criticism was that Option One's design guidelines were to
complex and cumbersome.
Option Two. Supporters of Option Two state that this option
presented a reasonable compromise between Option One and Option Three.
Supporters stated that the Option Two guidelines provided more design
flexibility than the Option One guidelines, and that this flexibility
would allow builders to deliver the required accessibility features at a
lower cost. Opponents of Option Two stated that this option allowed
builders to circumvent the Act's intent with respect to several
essential accessibility features.
Option Three. Supporters of Option Three stated that Option Three
presented the best method of achieving the accessibility objectives of
the Act, at the lowest possible cost. Supporters stated that Option
Three would contain housing costs, because design adaptation only would
be made to those units which actually would be occupied by a disabled
resident, and the adaptation would be tailored to the specific
accessibility needs of the individual tenant. Opponents of Option Three
stated that this option, with its ''add-on'' approach to accessibilty,
was contrary to the Act's intent, which, the commenter claimed, mandates
accessible features at the time of construction.
In addition to the comments on the specific features of the three
design options, one of the issues most widely commented upon was the
cost of compliance with the Act's accessibility requirements, as
implemented by the Guidelines. Several commenters disputed the
Department's estimate of the cost of compliance, as presented in the
Initial Regulatory Flexibility Analysis, published with the proposed
guidelines on June 15, 1990 (55 FR 24374-24385), and in the Preliminary
Regulatory Impact Analysis published on September 7, 1990 (55 FR
37072-37129). The Department's response to these comments is discussed
in the Final Regulatory Impact Analysis, which is available for public
inspection during regular business hours in the Office of the Rules
Docket Clerk, room 10276, Department of Housing and Urban Development,
451 Seventh Street, SW., Washington, DC 20410-0500.
24 CFR 125.405 V. Discussion of Principal Public Comment Issues, and
Section-by-Section Analysis of the Final Guidelines.
The following presents a discussion of the principal issues raised by
the commenters, and the Department's response to each issue. This
discussion includes a section-by-section analysis of the final
Guidelines that addresses many of the specific concerns raised by the
commenter, and highlights the differences between the proposed Option
One guidelines and the final Guidelines. Comments related to issues
outside the purview of the Guidelines, but related to the Act (e.g.,
enforcement procedures, statutory effective date), are discussed in the
final section of the preamble under the preamble heading ''Discussion of
Comments on Related Fair Housing Issues''.
Comment. Many commenters expressed their support for the ANSI
Standard as the basis for the Act's Guidelines, because ANSI is a
familiar and accepted accessibility standard.
Response. In developing the proposed and final Guidelines, the
Department was cognizant of the need for uniformity, and of the
widespread application of the ANSI Standard. The original ANSI A117.1,
adopted in 1961, formed the technical basis for the first accessibility
standards adopted by the Federal Government, and most State governments.
The 1980 edition of that standard was based on research funded by the
Department, and became the basis for the Uniform Federal Accessibility
Standards (UFAS), published in the Federal Register on August 4, 1974
(47 FR 33862). The 1980 edition also was generally accepted by the
private sector, and was recommended for use in State and local building
codes by the Council of American Building Officials. Additionally,
Congress, in the Fair Housing Act, specifically referenced the ANSI
Standard, thereby encouraging utilization of the ANSI Standard as
guidance for compliance with the Act's accessibility requirements.
Accordingly, in using the ANSI Standard as a reference point for the
Fair Housing Act Accessibility Guidelines, the Department is issuing
Guidelines based on existing and familiar design standards, and is
promoting uniformity between Federal accessibility standards, and those
commonly used in the private sector. However, the ANSI Standard and the
final Guidelines have differing purposes and goals, and they are by no
means identical. The purpose of the Guidelines is to describe minimum
standards of compliance with the specific accessibility requirements of
the Act.
Comment. Two commenters suggested that the Department adopt the ANSI
Standard as the guidelines for the Fair Housing Act's accessibility
requirements, and not issue new guidelines.
Response. The Department has incorporated in the Guidelines those
technical provisions of the ANSI Standard that are consistent with the
Act's accessibility requirements. However, with respect to certain of
the Act's requirements, the applicable ANSI provisions impose more
stringent design standards than required by the Act. (In the preamble
to the proposed rule (55 FR 3251), and again in the preamble to the
proposed guidelines (55 FR 24370), the Department advised that a
dwelling unit that complies fully with the ANSI Standard goes beyond
what is required by the Fair Housing Act.) The Department has developed
Guidelines for those requirements of the Act where departures from ANSI
were appropriate.
Comment. A few commenters questioned whether the Department would
revise the Guidelines to correspond to ANSI's periodic update of its
standard.
Response. The ANSI Standard is reviewed at five-year intervals. As
the ANSI Standard is revised in the future, the Department intends to
review each version, and, if appropriate to make revisions to the
Guidelines in accordance with any revisions made to the ANSI Standard.
Modifications of the Guidelines, whether or not reflective of changes to
the ANSI Standard, will be subject to notice and prior public comment.
Comment. A few commenters requested that the Department republish the
ANSI Standard in its entirety in the final Guidelines.
Response. The American National Standards Institute (ANSI) is a
private, national organization, and is not connected with the Federal
Government. The Department received permission from ANSI to print the
ANSI Standard in its entirety, as the time of publication of the
proposed guidelines (55 FR 24404-24487), specifically for the purpose of
assisting readers of the proposed guidelines in developing timely
comments. In the preamble to the proposed guidelines, the Department
stated that since it was printing the entire ANSI Standard, as an
appendix to the proposed guidelines, the final notice of the
Accessibility Guidelines would not include the complete text of the ANSI
Standard (55 FR 24371). Copies of the ANSI Standard may be purchased
from the American National Standards Institute, 1430 Broadway, New York,
NY 10018.
Comment. Another commenter requested that the Department confirm that
any ANSI provision not cited in the final Guidelines is not necessary
for compliance with the Act.
Response. In the proposed guidelines, the Department stated that:
''Where the guidelines rely on sections of the ANSI Standard, the ANSI
sections are cited. * * * For those guidelines that differ from the
ANSI Standard, recommended specifications are provided'' (55 FR 24385).
The final Guidelines include this statement, and further state that the
ANSI sections not cited in the Guidelines have been determined by the
Department not to be necessary for compliance with the Act's
requirements.
Comment. Two commenters stated that the proposed guidelines were
biased toward wheelchair users, and that the Department has erroneously
assumed that the elderly and the physically disabled have similar needs.
The commenters stated that the physical problems suffered by the
elderly often involve arthritic and back problems, which make bending
and stooping difficult.
Response. The proposed guidelines, and the final Guidelines, reflect
the accessibility requirements contained in the Fair Housing Act. These
requirements largely are directed toward individuals with mobility
impairments, particularly those who require mobility aids, such as
wheelchairs, walkers, or crutches. In two of the Act's accessibility
requirements, specific reference is made to wheelchair users. The
emphasis of the law and the Guidelines on design and construction
standards that are compatible with the needs of wheelchair users is
realistic because the requirements for wheelchair access (e.g., wider
doorways) are met more easily at the construction stage. (See House
Report at 27.) Individuals with nonmobility impairments more easily can
be accommodated by later nonstructural adaptations to dwelling units.
The Fair Housing Act and the Fair Housing regulations assure the right
of these individuals to make such later adaptations. (See section
804(f)(3)(A) of the Act and 24 CFR 100.203 of the regulations. See also
discussion of adaptations made to units in this preamble under the
heading ''Costs of Adaptation'' in the section entitled ''Discussion of
Comments on Related Fair Housing Issues''.)
Comment. A number of commenters from the building industry attributed
difficulty in meeting the Act's March 13, 1991 compliance deadline, in
part, to the lack of accessibility guidelines. The commenters
complained about the time that it has taken the Department to publish
proposed guidelines, and the additional time it has taken to publish
final Guidelines.
Response. The Department acknowledges that the development and
issuance of final Fair Housing Accessibility Guidelines has been a
time-consuming process. However, the building industry has not been
without guidance on compliance with the Act's accessibility
requirements. The Fair Housing Act identifies the ANSI Standard as
providing design standards that would achieve compliance with the Act's
accessibility requirements. Additionally, in the preamble to both the
proposed and final Fair Housing rule, and in the text of 100.205, the
Department provided examples of how certain of the Act's accessibility
requirements may be met. (See 53 FR 45004-45005, 54 FR 3249-3252 (24
CFR Ch. I, Subch. A, App. I, at 583-586 (1990)), 24 CFR 100.205.)
The delay in publication of the final Guidelines has resulted, in
part, because of the Department's pledge, at the time of publication of
the final Fair Housing regulations, that the public would be provided an
opportunity to comment on the Guidelines (54 FR 3251, 24 CFR Ch. I,
Subch. A, at 585-586 (1990)). The delay in publication of the final
Guidelines also is attributable in part to the Department's effort to
develop Guidelines that would (1) ensure that persons with disabilities
are afforded the degree of accessibility provided for in the Fair
Housing Act, and (2) avoid the imposition of unreasonable requirements
on builders.
Comment. Two commenters requested that interim accessibility
guidelines should be adopted for projects ''caught in the middle'', i.e.
those projects started before publication of the final Guidelines.
Response. The preamble to the June 15, 1990 proposed guidelines and
the August 1, 1990 supplementary notice directly addressed this issue.
In both documents, the Department recognized that projects being
designed in advance of publication of the Guidelines may not become
available for occupancy until after March 13, 1991. The Department
advised that efforts to comply with the Option One guidelines, in the
design of projects that would be completed before issuance of the final
Guidelines, would be considered as evidence of compliance with the Act
in connection with the Department's investigation of any complaints.
The August 1, 1990 supplementary notice restated the Department's
position on compliance with the Act's requirements prior to publication
of the final Guidelines, and addressed what ''evidence of compliance''
will mean in a complaint situation.
Comment. Two commenters expressed concern about a possible conflict
between the Act's accessibility requirements and local historic
preservation codes (including compatible design requirements). The
commenters stated that their particular concerns are: (1) The
conversion of warehouse and commercial space to dwelling units; and (2)
new housing construction on vacant lots in historically designated
neighborhoods.
Response. Existing facilities that are converted to dwelling units
are not subject to the Act's accessibility requirements. Additionally,
alteration, rehabilitation or repair of covered multifamily dwellings
are not subject to the Act's accessibility requirements. The Act's
accessibility requirements only apply to new construction. With respect
to new construction in neighborhoods subject to historic codes, the
Department believes that the Act's accessibility requirements should not
conflict with, or preclude building designs compatible with historic
preservation codes.
Comment. Several commenters inquired about the appropriate course of
action to follow when confronted with a conflict between the Act's
accessibility requirements and local accessibility requirements.
Response. Section 100.205(i) of the Fair Housing regulations
implements section 804(f)(8) of the Act, which provides that the Act's
accessibility requirements do not supplant or replace State or local
laws that impose higher accessibility standards (53 FR 45005). For
accessibility standards, as for other code requirements, the governing
principle to follow when Federal and State (or local) codes differ is
that the more stringent requirement applies.
This principle is equally applicable when multifamily dwellings are
subject to more than one Federal law requiring accessibility for persons
with physical disabilities. For example, a multifamily dwelling may be
subject both to the Fair Housing Amendments Act and to section 504 of
the Rehabilitation Act of 1973. Section 504 requires that 5% of units
in a covered multifamily dwelling be fully accessible -- thus imposing a
stricter accessibility standard for those units than would be imposed by
the Fair Housing Act. However, compliance only with the section 504
requirements would not satisfy the requirements of the Fair Housing Act.
The remaining units in the covered multifamily dwelling would be
required to meet the specific accessibility requirements of the Fair
Housing Act.
Comment. One commenter, the Seattle Department of Construction and
Land Use, presented an example of how a local accessibility code that is
more stringent with respect to some accessibility provisions may
interact with the Act's accessibility requirements, where they are more
stringent with respect to other provisions. The commenter pointed out
that the State of Washington is very hilly, and that the State of
Washington's accessibility code requires accessible buildings on sites
that would be deemed impractical under the Option One guidelines. The
commenter stated that the State of Washington's accessibility code may
require installation of a ramp, and that the ramp may then create an
accessible entrance for the ground floor, making it subject to the Act's
accessibility requirements. The commenter asked that, since the project
was not initially subject to the Act's requirements, whether the
creation of an accessible ground floor in accordance with the State code
provisions would require all units on the ground floor to be made
accessible in accordance with the Fair Housing Act. (The State of
Washington's accessibility code would require only a percentage of the
units to be accessible.)
Response. The answer to the commenter's question is that a
nonelevator building with an accessible entrance on an accessible route
is required to have the ground floor units designed and constructed in
compliance with the Act's accessibility requirements. This response is
consistent with the principle that the stricter accessibility
requirement applies.
Comment. Twenty-three (23) commenters advised the Department that
many individuals are disabled because of severe allergic reactions to
cerrtain chemicals used in construction, and in construction materials.
These commenters requested that the Department develop guidelines for
constructing or renovating housing that are sensitive to the problems of
individuals who suffer from these allergic reactions (commonly referred
to as environmental illnesses). These commenters further advised that,
as of February 1988, the Social Security Administration lists as a
disability ''Environmental Illness'' (P.O.M.S. Manual No. 24515.065).
Response. The Guidelines developed by the Department are limited to
providing guidance relating to the specific accessibility requirements
of the Fair Housing Act. As discussed above, under the preamble heading
''Bias Toward Wheelchair Users,'' the Act's requirements primarily are
directed to providing housing that is accessible to individuals with
mobility impairments. There is no statutory authority for the
Department to create the type of design and construction standards
suggested by the commenters.
Comment. Several commenters stated that the proposed guidelines
failed to provide design features for people with hearing and visual
impairments. These commenters stated that visual and auditory design
features must be included in the final Guidelines.
Response. As noted in the response to the preceding comment, the
Department is limited to providing Guidlines for the specific
accessibility requirements of the Act. The Act does not require fully
accessible individual dwelling units. For individual dwelling units,
the Act requires the following: Doors sufficiently wide to allow
passage by handicapped persons in wheelchairs; accessible route into
and through the dwelling unit; light switches; electrical outlets,
thermostats, and other environmental controls in accessible locations;
reinforcements in bathroom walls to allow later installation of grab
bars; and usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space. To specify visual and auditory
design features for individual dwelling units would be to recommend
standards beyond those necessary for compliance with the Act. Such
features were among those identified in Congressional statements
discussing modifications that would be made by occupants.
The Act, however, requires public and common use portions of covered
multifamily dwellings to be ''readily accessible to and usable by
handicapped persons.'' The more comprehensive accessibility requirement
for public and common use areas of dwellings necessitates a more
comprehensive accessibility standard for these areas. Accordingly, for
public and common use areas, the final Guidelines recommend compliance
with the appropriate provisions of the ANSI Standard. The ANSI Standard
for public and common use areas specifies certain design features to
accommodate people with hearing and visual impairments.
Comment. A number of commenters requested that the Department
categorize the final Guidelines as minimum requirements, and not as
performance standards, because ''recommended'' guidelines are less
effective in achieving the objectives of the Act. Another commenter
noted that a safe harbor provision becomes a de facto minimum
requirement, and that it should therefore be referred to as a minimum
requirement.
Response. The Department has not categorized the final Guidelines as
either performance standards or minimum requirements. The minimum
accessibility requirements are contained in the Act. The Guidelines
adopted by the Department provide one way in which a builder or
developer may achieve compliance with the Act's accessibility
requirements. There are other ways to achieve compliance with the Act's
accessibility requirements, as for example, full compliance with ANSI
A117.1. Given this fact, it would be inappropriate on the part of the
Department to constrain designers by presenting the Fair Housing
Accessibility Guidelines as minimum requirements. Builders and
developers should be free to use any reasonable design that obtains a
result consistent with the Act's requirements. Accordingly, the design
specifications presented in the final Guidelines are appropriately
referred to as ''recommended guidelines''.
It is true, however, that compliance with the Fair Housing
Accessibility Guidelines will provide builders with a safe harbor.
Evidence of compliance with the Fair Housing Accessibility Guidelines
adopted by this notice shall be a basis for a determination that there
is no reasonable cause to believe that a discriminatory housing practice
under section 804(f)(3) has occurred or is about to occur in connection
with the investigation of complaints filed with the Department relating
to covered multifamily dwellings.
Comment. Several commenters stated that there are too many
accessibility codes -- ANSI, UFAS, and State and local accessibility
codes. These commenters requested that the Department work with the
individual States to arrive at one national uniform set of accessibility
guidelines.
Response. There is no statutory authority to establish one nationally
uniform set of accessibility standards. The Department is in agreement
with the commenters' basic theme that increased uniformity in
accessibility standards is desirable. In furtherance of this objective,
the Department has relied upon the ANSI Standard as the design basis for
the Fair Housing Accessibility Guidelines. The Department notes that
the ANSI Standard also serves as the design basis for the Uniform
Federal Accessibility Standards (UFAS), the Minimum Guidelines and
Requirements for Accessible Design (MGRAD) issued by the U.S.
Architectural and Transportation Barriers Compliance Board, and many
State and local government accessibility codes.
Comment. A number of commenters objected to the fact that the
proposed guidelines included more than one set of design standards. The
commenters stated that the final Guidelines should present only one set
of design standards so as not to weaken the Act's accessibility
requirements.
Response. The inclusion of options for accessibility design in the
proposed guidelines was both to encourage a maximum range of public
comment, and to illustrate that there may be several ways to achieve
compliance with the Act's accessibility requirements. Congress made
clear that compliance with the Act's accessibility standards did not
require adherence to a single set of design specifications. In section
804(f)(4) of the Act, the Congress stated that compliance with the
appropriate requirements of the ANSI Standard suffices to satisfy the
accessibility requirements of the Act. In House Report No. 711, the
Congress further stated as follows:
However this section (section 804(f)(4)) is not intended to require
that designers follow this standard exclusively, for there may be other
local or State standards with which compliance is required or there may
be other creative methods of meeting these standards. (House Report at
27)
Similarly, the Department's Guidelines are not the exclusive standard
for compliance with the Act's accessibility requirements. Since the
Department's Guidelines are a safe harbor, and not minimum requirements,
builders and developers may follow alternative standards that achieve
compliance with the Act's accessibility requirements. This policy is
consistent with the intent of Congress, which was to encourage
creativity and flexibility in meeting the requirements of the Act.
Comment. One commenter asked whether the explanatory information in
the background section of the final Guidelines may be relied upon, and
deemed to have the same force and effect as the Guidelines themselves.
Response. The Fair Housing Accessibility Guidelines are -- as the
name indicates -- only guidelines, not regulations or minimum
requirements. The Guidelines consist of recommended design
specifications for compliance with the specific accessibility
requirements of the Fair Housing Act. The final Guidelines provide
builders with a safe harbor that, short of specifying all of the
provisions of the ANSI Standard, illustrate acceptable methods of
compliance with the Act. To the extent that the preamble to the
Guidelines provide clarification on certain provisions of the
Guidelines, or illustrates additional acceptable methods of compliance
with the Act's requirements, the preamble may be relied upon as
additional guidance. As noted in the ''Summary'' portion of this
document, the preamble to the Guidelines will be codified in the 1991
edition of the Code of Federal Regulations as Appendix III to the Fair
Housing regulations (24 CFR Ch. I, Subch. A, App. III.).
Comment. A number of commenters criticized the proposed guidelines
for being too complicated, too ambiguous, and for requiring reference to
a number of different sources. These commenters requested that the
final Guidelines be clear, concise and ''user friendly''. One commenter
requested that the final Guidelines use terms that conform to terms used
by each of the three major building code organizations: the Building
Officials and Code Administrators International, Inc. (BOCA); the
International Conference of Building Officials (ICBO), and the Southern
Building Code Congress International (SBCCI).
Response. The Department recognizes that the Accessibility Guidelines
include several highly technical provisions. In drafting the final
Guidelines, the Department has made every effort to explain these
provisions as clearly as possible, to use technical and building terms
consistent with the terms used by the major building code organizations,
to define terms clearly, and to provide additional explanatory
information on certain of the provisions of the Guidelines.
The following presents a section-by-section analysis of the final
Guidelines. The text of the final Guidelines is organized into five
sections. The first four sections of the Guidelines provide background
and explanatory information on the Guidelines. Section 1, the
Introduction, describes the purpose, scope and organization of the
Guidelines. Section 2 defines relevant terms used. Section 3 reprints
the text of 24 CFR 100.205, which implements the Fair Housing Act's
accessibility requirements, and Section 4 describes the application of
the Guidelines. Section 5, the final section, presents the design
specifications recommended by the Department for meeting the Act's
accessibility requirements, as codified in 24 CFR 100.205. Section 5 is
subdivided into seven areas, to address each of the seven areas of
accessible design required by the Act.
The following section-by-section analysis discusses the comments
received on each of the sections of the proposed Option One Guidelines,
and the Department's response to these comments. Where no discussion of
comments is provided under a section heading, no comments were received
on this section.
Section 1, the Introduction, describes the purpose, scope and
organization of the Fair Housing Accessibility Guidelines. This section
also clarifies that the accessibility guidelines apply only to the
design and construction requirements of 24 CFR 100.205, and do not
relieve persons participating in a federal or federally-assisted program
or activity from other requirements, such as those required by section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), or the
Architectural Barriers Act of 1968 (42 U.S.C. 4151-4157). (The design
provisions for those laws are found at 24 CFR Part 8 and 24 CFR Part 40,
respectively.) Additionally, section 1 explains that only those sections
of the ANSI Standard cited in the Guidelines are required for compliance
with the accessibility requirements of the Fair Housing Act. Revisions
to section 1 reflect the Department's response to the request of several
commenters for further clarification on the purpose and scope of the
Guidelines.
This section incorporates appropriate definitions from 100.201 of
the Department's Fair Housing regulations, and provides additional
definitions for terms used in the Guidelines. A number of comments were
received on the definitions. Clarifications were made to certain
definitions, and additional terms were defined. New terms defined in
the final Guidelines include: adaptable, assistive device, ground
floor, loft, multistory dwelling unit, single-story dwelling unit, and
story. The inclusion of new definitions reflects the comments received,
and also reflects new terms introduced by changes to certain of the
Option One design specifications. In several instances, the
clarifications of existing definitions, or the new terms defined, were
derived from definitions of certain terms used by one or more of the
major building code organizations. Comments on specific definitions are
discussed either below or in that portion of the preamble under the
particular section heading of the Guidelines in which these terms
appear.
Comment. A number of commenters stated that the Department used the
terms ''accessible'' and ''adaptable'' interchangeably, and requested
clarification of the meaning of each. The commenters noted that, under
several State building codes, these terms denote different standards for
compliance. The commenters requested that if the Department intends
these two terms to have the same meaning, this should be clearly stated
in the final Guidelines, and, if the terms have different meanings,
''adaptable'' should also be defined.
Response. The Department's use of the terms ''adaptable'' and
''accessible'' in the preamble to the proposed guidelines generally
reflected Congress' use of the terms in the text of the Act, and in the
House and Senate conference reports. However, to respond to commenters'
concerns about the distinctions between these terms, the Department has
included a definition of ''adaptable dwelling units'' to clarify the
meaning of this term, within the context of the Fair Housing Act. In
the final Guidelines, ''adaptable dwelling units'', when used with
respect to covered multifamily dwellings, means dwelling units that
include features of adaptable design specified in 24 CFR 100.205(c)
(2)-(3).
The Fair Housing Act refers to design features that include both the
minimal ''accessibility'' features required to be built into the unit,
and the ''adaptable'' feature of reinforcement for bathroom walls for
the future installation of grab bars. Accordingly, under the Fair
Housing Act, an ''adaptable dwelling unit'' is one that meets the
minimal accessibility requirements specified in the Act (i.e., usable
doors, an accessible route, accessible environmental controls, and
usable kitchens and bathrooms) and the ''adaptable'' structural feature
of reinforced bathroom walls for later installation of grab bars.
Comment. Several commenters requested that we define the phrase
''assistive device.''
Response. ''Assistive device'' means an aid, tool, or instrument used
by a person with disabilities to assist in activities of daily living.
Examples of assistive devices include tongs, knob turners, and oven rack
pusher/pullers. A definition for ''assistive device'' has been included
in the final Guidelines.
In response to the concern of several commenters, the Department has
revised the definition of ''bathroom'' in the final Guidelines to
clarify that a bathroom includes a ''compartmented'' bathroom. A
compartmented bathroom is one in which the bathroom fixtures are
distributed among interconnected rooms. The fact that bathroom
facilities may be located in interconnecting rooms does not exempt this
type of bathroom from the Act's accessibility requirements. This
clarification, and minor editorial changes, were the only revisions made
to the definition of ''bathroom''. Other comments on this term were as
follows:
Comment. Several commenters requested that the Department reconsider
its definition of ''bathroom'', to include powder rooms, i.e., rooms
with only a toilet and sink. These commenters stated that persons with
disabilities should have access to all bathrooms in their homes, not
only full bathrooms. One commenter believed that, unless bathroom was
redefined to include single- or two-fixture facilities, some developers
will remove a bathtub or shower from a proposed second full bathroom to
avoid having to make the second bathroom accessible. The commenter
suggested that bathroom be redefined to include any room containing at
least two of the possible bathroom fixtures (toilet, sink, bathtub or
shower).
Response. In defining ''bathroom'' to include a water closet
(toilet), lavatory (sink), and bathtub or shower, the Department has
followed standard dictionary usage, as well as Congressional intent.
Congressional statements emphasized that the Act's accessibility
requirements were expected to have a minimal effect on the size and
design of dwelling units. In a full-size bathroom, this can be
achieved. To specify space for wheelchair maneuvering in a powder room
would, in most cases, require enlarging the room significantly.
However, a powder room would be subject to the Act's accessibility
requirements if the powder room is the only toilet facility on the
accessible level of a covered multistory dwelling unit. Additionally,
it should be noted that doors to powder rooms (regardless of the
location of the powder room), like all doors within dwelling units, are
required by the Act to be wide enough for wheelchair passage. Some
powder rooms may, in fact, be usable by persons in wheelchairs.
Comment. One commenter requested that the final Guidelines provide
that a three-quarters bathroom (water closet, lavatory and shower) would
not be subject to the accessibility requirements -- specifically, the
requirement for grab bar reinforcement.
Response. The Fair Housing Act requires reinforcements in bathroom
walls to allow for later installation of grab bars at toilet, bathtub or
shower, if provided. Accordingly, the Fair Housing regulations
specifically require reinforcement in bathroom walls to allow later
installation of grab bars around the shower, where showers are provided.
(See 24 CFR 100.205(c)(3)(iii).)
Comment. One commenter suggested that the Department use the term
''structure'' in lieu of ''building''. The commenter stated that, in
the building industry, ''building'' is defined by exterior walls and
fire walls, and that an apartment structure of four units could be
subdivided into two separate buildings of two units each by inexpensive
construction of a firewall. The commenter suggested that the final
definition of ''building'' include the following language: ''For the
purpose of the Act, firewall separation does not define buildings.''
Response. The term ''building'' is the term used in the Fair Housing
Act. The Department uses this term in the Guidelines to be consistent
with the Act. With respect to the comment on firewall separation, the
Department believes that, within the context of the Fair Housing Act,
the more appropriate place for the language on firewall separation is in
the definition of ''covered multifamily dwellings''. Since many
building codes in fact define ''building'' by exterior walls and
firewalls, a definition of ''building'' in the Fair Housing
Accessibility Guidelines that explicitly excludes firewalls as a means
of identifying a building would place the Guidelines in conflict with
local building codes. Accordingly, to avoid this conflict, the
Department has clarified the definition of ''covered multifamily
dwelling'' (which is discussed below) to address the issue of firewall
separation.
The Department has revised the definition of ''covered multifamily
dwellings'' to clarify that dwelling units within a single structure
separated by firewalls do not, for purposes of these Guidelines,
constitute separate buildings.
A number of questions and comments were received on what should, or
should not, be considered a covered multifamily dwelling. Several of
these comments requested clarification concerning ''ground floor
dwelling units''. These comments generally concluded with a request
that the Department define ''ground floor'' and ''ground floor unit''.
The Department has included a definition of ''ground floor'' in the
final Guidelines. The Department believes that this definition is
sufficiently clear to identify ground floor units, and that therefore a
separate definition for ''ground floor unit'' is unnecessary. Specific
questions concerning ground floor units are discussed below under the
heading ''Ground Floor''. Comments on other covered multifamily
dwellings are as follows:
Comment. (Garden apartments) One commenter requested that the
Department clarify whether single family attached dwelling units with
all living space on one level (i.e. garden units) fall within the
definition of covered multifamily dwellings.
Response. The Fair Housing Act and its regulations clearly define
''covered multifamily dwellings'' as buildings consisting of four or
more dwelling units, if such buildings have one or more elevators, and
ground floor dwelling units in other buildings consisting of four or
more dwelling units. Garden apartments located in an elevator building
of four or more units are subject to the Act's requirements. If the
garden apartment is on the ground floor of a nonelevator building
consisting of four or more apartments, and if all living space is on one
level, then the apartment is subject to the Act's requirements (unless
the building is exempt on the basis of site impracticality).
Comment. (Townhouses) Several commenters requested clarification
concerning whether townhouses are covered multifamily dwellings.
Response. In the preamble to the Fair Housing regulations, the
Department addressed this issue. Using an example of a single structure
consisting of five two-story townhouses, the Department stated that such
a structure is not a covered multifamily dwelling if the building does
not have an elevator, because the entire dwelling unit is not on the
ground floor. Thus, the first floor of a two-story townhouse in the
example is not a ground floor unit, because the entire unit is not on
the ground floor. In contrast, a structure consisting of five
single-story townhouses would be a covered multifamily dwelling. (See
54 FR 3244; 24 CFR Ch. I, Subch. A, App. I at 575-576 (1990).)
Comment. (Units with basements) One commenter asked whether a unit
that contains a basement, which provides additional living space, would
be viewed as a townhouse, and therefore exempt from the Act's
accessibility requirements. The commenter stated that basements are
generally designed with the top of the basement, including the basement
entrance, above finished grade, and that basement space cannot be made
accessible without installation of an elevator or a lengthy ramp.
Response. If the basement is part of the finished living space of a
dwelling unit, then the dwelling unit will be treated as a multistory
unit, and application of the Act's accessibility requirements will be
determined as provided in the Guidelines for Requirement 4. If the
basement space is unfinished, then it would not be considered part of
the living space of the unit, and the basement would not be subject to
the Act's requirements. Attic space would be treated in the same
manner.
''Dwelling unit'' is defined as a single unit of residence for a
household of one or more persons. The definition provides a list of
examples of dwelling units in order to clarify the types of units that
may be covered by the Fair Housing Act. The examples include
condominiums and apartment units in apartment buildings. Several
commenters submitted questions on condominiums, and one commenter
requested clarification on whether vacation time-sharing units are
subject to the Act's requirements. Their specific comments are as
follows:
Comment. (Condominiums) A few commenters requested that condominiums
be excluded from covered dwelling units because condominiums are
comparable to single family homes. The commenter stated that
condominiums do not compete in the rental market, but compete in the
sale market with single family homes, which are exempt from the Act's
requirements.
Response. The Fair Housing Act requires all covered multifamily
dwellings for first occupancy after March 13, 1991 to be designed and
constructed in accordance with the Act's accessibility requirements.
The Act does not distinguish between dwelling units in covered
multifamily dwellings that are for sale, and dwelling units that are for
rent. Condominium units in covered multifamily dwellings must comply
with the Act's accessibility requirements.
Comment. (Custom-designed condominium units) Two commenters stated
that purchasers of condominium units often request their units to be
custom designed. The commenters questioned whether custom-designed
units must comply with the Act's accessibility requirements. Another
commenter stated that the Department should exempt from compliance those
condominium units which are pre-sold, but not yet constructed, and for
which owners have expressly requested designs that are incompatible with
the Act's accessibility requirements.
Response. The fact that a condominium unit is sold before the
completion of construction does not exempt a developer from compliance
with the Act's accessibility requirements. The Act imposes affirmative
duties on builders and developers to design and construct covered
multifamily dwellings for first occupancy after March 13, 1991 in
accordance with the Act's accessibility requirements. These
requirements are mandatory for covered multifamily dwellings for first
occupancy after March 13, 1991, regardless of the ownership status of
covered individual dwelling units. Thus, to the extent that the
pre-sale or post-sale construction included features that are covered by
the Act (such as framing for doors in pre-sale ''shell'' construction),
they should be built accordingly.
Comment. (Vacation timeshare units) One commenter questioned whether
vacation timeshare units were subject to the Act's requirements. The
commenter stated that a timeshare unit may be owned by 2 to 51
individuals, each of whom owns, or has the right to use, the unit for a
proportionate period of time equal to his or her ownership.
Response. Vacation timeshare units are subject to the Act's
accessibility requirements, when the units are otherwise subject to the
accessibility requirements. ''Dwelling'' is defined in 24 CFR 100.20 as
''any building, structure, or portion thereof which is occupied as, or
designed or intended for occupancy as, a residence by one or more
families, and any vacant land which is offered for sale or lease for the
construction or location thereon of any such building, structure or
portion thereof''. The preamble to the final Fair Housing rule states
that the definition of ''dwelling'' is ''broad enough to cover each of
the types of dwellings enumerated in the proposed rule: mobile home
parks, trailer courts, condominiums, cooperatives, and time-sharing
properties.'' (Emphasis added.) (See 54 FR 3238, 24 CFR Ch. I, Subch. A,
App. I, at 567 (1990).) Accordingly, the fact of vacation timeshare
ownership of units in a building does not affect whether the structure
is subject to the Act's accessibility requirements.
Comment. One commenter requested clarification on whether
''entrance'' refers to an entry door to a dwelling unit, or an entry
door to the building.
Response. As used in the Guidelines, ''entrance'' refers to an
exerior entry door. The definition of ''entrance'' has been revised in
the final Guidelines to clarify this point, and the term ''entry'' is
used instead of ''entrance'' when referring to the entry into a unit
when it is interior to the building.
As noted above, under the discussion of covered multifamily
dwellings, several commenters requested clarification concerning
''ground floor'' and ''ground floor dwelling unit''. In response to
these comments, the Department has included a definition for ''ground
floor'' in the final Guidelines. The Department has incorporated the
definition of ''ground floor'' found in the Fair Housing regulations (24
CFR 100.201), and has expanded this definition to address specific
concerns related to implementation of the Guidelines. In the final
Guidelines, ''ground floor'' is defined as follows:
''Ground floor'' means a floor of a building with a building entrance
on an accessible route. A building may have one or more ground floors.
Where the first floor containing dwelling units in a building is above
grade, all units on that floor must be served by a building entrance on
an accessible route. This floor will be considered to be a ground
floor.
Specific comments concerning ground floor units are as follows:
Comment. (Nonresidential ground floor units) Two commenters advised
that, in many urban areas, buildings are constructed without an elevator
and with no dwelling units on the ground floor. The ground floor
contains either parking, retail shops, restaurants or offices. To bring
these buildings into compliance with the Act, one of the commenters
recommended that the Department adopt a proposal under consideration by
the International Conference of Building Officials (ICBO). The
commenter stated that the proposal provides that, in buildings with
ground floors occupied by parking and other nonresidential uses, the
lowest story containing residential units is considered the ground
floor. Another commenter recommended that a building should be exempt
from compliance with the Act's requirements if the ground floor is
occupied by a non-residential use (including parking). The commenter
stated that if an elevator is to be provided to serve the upper
residential floors, then the elevator should also serve the ground
floor, and access be provided to all the dwelling units.
Response. The Department believes that the definition of ''ground
floor unit'' incorporated in the final Guidelines addresses the concerns
of the commenters.
Comment. (More than one ground floor) One commenter requested
guidance on treatment of nonelevator garden apartments (i.e., apartment
buildings that generally are built on slopes and contain two stories in
the front of the building and three stories in the back). The commenter
stated that these buildings arguably may be said to have two ground
floors. The commenter requested that the Department clarify that, if a
building has more than one ground floor, the developer must make one
ground floor accessible -- but not both -- and the developer may choose
which floor to make accessible. Another commenter suggested that, in a
garden-type apartment building, the floor served by the primary
entrance, and which is located at the parking lot level, is the floor
which must be made accessible.
Response. In the preamble to the final Fair Housing rule, the
Department addressed the issue of buildings with more than one ground
floor. (See 54 3244, 24 CFR Ch. I, Subch. A, App. I at 576 (1990).) The
Department stated that if a covered building has more than one floor
with a building entrance on an accessible route, then the units on each
floor with an accessible building entrance must satisfy the Act's
accessibility requirements. (See the discussion of townhouses in
nonelevator buildings above.)
Comment. Several commenters requested that the Department avoid use
of the terms ''handicap'' and ''handicapped persons'', and replace them
with the terms ''disability'' and ''persons with disabilities''.
Response. ''Handicap'' and ''handicapped persons'' are the terms used
by the Fair Housing Act. These terms are used in Guidelines and
regulations to be consistent with the statute.
Comment. Four commenters noted that, in the preamble to the proposed
guidelines, the Department indicated that the Fair Housing Accessibility
Guidelines were limited by a ''principle of reasonableness and cost''.
The commenters requested that the Department define this phrase.
Response. In the preamble to the proposed guidelines, the Department
stated in relevant part as follows: ''These guidelines are intended to
provide a safe harbor for compliance with respect to those issues they
cover. * Where the ANSI Standard is not applicable, the language of the
statute itself is the safest guide. The degree of scoping,
accessibility, and the like are of course limited by a principle of
reasonableness and cost.'' (55 FR 24371)
In House Report No. 711, the accessibility requirements of the Fair
Housing Act were referred to by the Congress as ''modest'' (House Report
at 25), ''minimal'' and ''basic features of adaptability'' (House Report
at 25). In developing the Fair Housing Accessibility Guidelines, the
Department was attentive to the fact that Congress viewed the Act's
accessibility requirements as reasonable, and that the Guidelines for
these requirements should conform to this ''reasonableness'' principle
-- that is, that the Guidelines should provide the level of reasonable
accessibility envisioned by Congress, while maintaining the
affordability of new multifamily construction. The Department believes
that the final Guidelines conform to this principle of reasonableness
and cost.
Comment. One commenter, the Building Officials & Code Administrators
International, Inc. (BOCA), requested clarification of the term,
''slope''. The commenter stated the definition indicates that slope is
calculated based on the distance and elevation between two points. The
commenter stated that this is adequate when there is a uniform and
reasonably consistent change in elevation between point (i.e., one point
is at the top of a hill and the other is at the bottom), but the
definition does not adequately address land where a valley, gorge, or
swale occurs between two points. The commenter stated that the
definition also does not adequately address conditions where there is an
abrupt change in the rate of slope between the points (i.e. a sharp drop
off within a short distance, with the remaining distance being flat or
sloped much more gradually).
Response. Slope is measured from ground level at the entrance to all
arrival points within 50 feet, and is considered impractical only when
it exceeds 10 percent between the entrance and all these points. Since
multifamily dwellings typically have an arrival point fairly close to
the building, a significant change such as a sharp drop would likely
result in an impractical slope. Minor variations, such as a swale, if
more than 5 percent, would be easily graded or ramped; a gorge would be
bridged or filled, in any event, if it was on an entrance route.
Comment. One commenter stated that a clear definition of ''usable
door'' is required.
Response. The Guidelines for Requirement 3 (usable doors) fully
describe what is meant by ''usable door'' within the meaning of the Act.
Requirements
This section reprints 100.205 (Design and Construction Requirements)
from the Department's final rule implementing the Fair Housing Act. A
reprint of 100.205 was included to provide easy reference to (1) the
Act's accessibility requirements, as codified by 100.205; and (2) the
additional examples of methods of compliance with the Act's requirements
that are presented in this regulation.
This section states that the design specifications that comprise the
final Guidelines apply to all ''covered multifamily dwellings'' as
defined in Section 2 of the Guidelines. Section 4 also clarifies that
the Guidelines, are ''recommended'' for designing dwellings that comply
with the requirements of the Fair Housing Amendments Act of 1988.
Under the discussion of Section 4 in the proposed guidelines, the
Department requested comment on the Act's application to dwelling units
with design features such as a loft or sunken living room (55 FR 24377).
A number of comments were received on this issue. Since the Act's
application to units with such features is relevant within the context
of an accessible route into and through a dwelling unit, the comments
and the Department's response to these comments are discussed in section
5, under the subheading, ''Guidelines for Requirement 4''.
The Guidelines contained in this Section 5 are organized to follow
the sequence of requirements as they are presented in the Fair Housing
Act and in the regulation implementing these requirements, 24 CFR
100.205. There are Guidelines for seven requirements: (1) An accessible
entrance on an accessible route; (2) accessible and usable public
common use areas; (3) doors usable by a person in a wheelchair; (4)
accessible route into and through the covered dwelling unit; (5) light
switches, electrical outlets and environmental controls in accessible
locations; (6) bathroom walls reinforced for grab bars; and (7) usable
kitchens and bathrooms.
For each of these seven requirements, the Department adopted the
corresponding Option One guidelines, but changes were made to certain of
the Option One design specifications. The following discussion
describes the Guidelines for each of the seven requirements, and
highlights the changes that have been made.
The Guidelines for Requirement 1 present guidance on designing an
accessible entrance on an accessible route, as required by 100.205(a),
and on determining when an accessible entrance is impractical because of
terrain or unusual characteristics of the site.
The Department has adopted the Option One guidelines for Requirement
1, with substantial changes to the specifications for determining site
impracticality. These changes, and the guidelines that remain unchanged
for Requirement 1 are discussed below.
Site Impracticality Determinations. The Guidelines for Requirement 1
begin by presenting criteria for determining when terrain or unusual
site characteristics would make an accessible entrance impractical.
Section 100.205(a) recognizes that certain sites may have
characteristics that make it impractical to provide an accessible route
to a multifamily dwelling. This section states that all covered
multifamily dwellings shall be designed and constructed to have at least
one building entrance on an accessible route unless it is impractical to
do so because of the terrain or unusual characteristics of the site.
Comments. The Department received many comments on the site
impracticality specifications presented in the proposed guidelines (55
FR 24377-24378). The majority of the members of the disability
community who commented on this issue supported the Option One
guidelines, and recommended no change. However, other commenters,
including a few disability organizations, members of the building
industry, State and local government agencies involved in the
development and enforcement of accessibility codes, and some of the
major building code organizations, criticized one or more aspects of the
Option One and Option Two guidelines for Requirement 1. Specific
comments are noted below.
A few commenters suggested that the 10% slope criterion was too low,
and easily will be met by a project site having a hilly terrain which
could (and typically would) be made more level. These commenters
recommended a higher slope criterion, ranging anywhere from 12% to 30%.
Other commenters stated that the slope criterion for the planned
finished grade should not exceed 8.33%. The Congressional sponsors of
the Act (U.S. Representatives Edwards, Fish, and Frank) stated that a
limited exemption for slopes greater than 10% ''was not contemplated by
the Act''; but that they believed the Department has the discretion to
develop such an exemption if it is ''carefully crafted and narrowly
tailored''.
Several commenters stated that any evaluation of the undisturbed site
should be done only on the percentage of land that is buildable.
Several commenters stated that the final Guidelines should not require
an evaluation of the undisturbed site between the planned entrance and
the arrival points -- that the only evaluation of the undisturbed site
should be the initial threshold slope analysis.
There were a number of questions on arrival points, and requests that
these points be more clearly defined. Several commenters presented
specific examples of possible problems with the use of arrival points,
as specified in the Option One guidelines. A few commenters stated that
the individual building analysis should involve a measurement between
the entrance and only one designated vehicular or pedestrian arrival
point.
Other commenters stated that single buildings on a site should be
subject to the same analysis as multiple buildings on a site.
A number of commenters criticized the Option One site impracticality
analysis as being too cumbersome and confusing. A number of commenters
objected to Option Two's requirement that covered multifamily dwellings
with elevators must comply with the Act's accessibility requirements,
regardless of site conditions or terrain.
Response. Following careful consideration of these comments, the
Department has revised significantly the procedure for determining site
impracticality, and its application to covered multifamily dwellings.
For covered multifamily dwellings with elevators, the final
Guidelines would not exempt these dwellings from the Act's accessibility
requirements. The final Guidelines provide that covered multifamily
dwellings with elevators shall be designed and constructed to provide at
least one accessible entrance on an accessible route regardless of
terrain or unusual characteristics of the site. Every dwelling unit on
a floor served by an elevator must be on an accessible route, and must
be made accessible in accordance with the Act's requirements for covered
dwelling units. The Department has excluded elevator buildings from any
exemption from the Act's accessibility requirements because the
Department believes that the type of site work that is performed in
connection with the construction of a high rise elevator building
generally results in a finished grade that would make the building
accessible. The Department also notes that the majority of elevator
buildings are designed with a primary building entrance and a passenger
drop-off area which are easily made accessible to individuals with
handicaps. Additionally, many elevator buildings have large, relatively
level areas adjacent to the building entrances, which are normally
provided for moving vans. These factors lead the Department to conclude
that site impracticality considerations should not apply to multifamily
elevator buildings.
For covered multifamily dwellings without elevators, the final
Guidelines provide two alternative tests for determining site
impracticality due to terrain. The first test is an individual building
test which involves a two-step process: measurement of the slope of the
undisturbed site between the planned entrance and all vehicular or
pedestrian arrival points; and measurement of the slope of the planned
finished grade between the entrance and all vehicular or pedestrian
arrival points. The second test is a site analysis test which involves
an analysis of the topography of the existing natural terrain.
A site with a single building, having a common entrance for all
units, may be analyzed only under the first test -- the individual
building test.
All other sites, including a site with a single building having
multiple entrances serving either individual dwelling units or clusters
of dwelling units, may be analyzed either under the first test or the
second test. For these sites for which either test is applicable, the
final Guidelines provide that regardless of which test is utilized by a
builder or developer, at least 20% of the total ground floor units in
nonelevator buildings, on any site, must comply with the Act's
accessibility requirements.
The distinctive features of the two tests for determining site
impracticality due to terrain, for nonelevator multifamily dwellings,
are as follows:
1. The individual building test.
a. This test is applicable to all sites.
b. This test eliminates the slope analysis of the entire undisturbed
site that was applicable only to multiple building sites, and,
concomitantly, the table that specifies the minimum percentage of
adaptable units required for every multiple building site. The only
analysis for site impracticality will be the individual building
analysis. This analysis will be applied to each building regardless of
the number of buildings on the site.
c. The individual building analysis has been modified to provide for
measurement of the slopes between the planned entrance and all vehicular
or pedestrian arrival points within 50 feet of the planned entrance.
The analysis further provides that if there are no vehicular or
pedestrian arrival points within 50 feet of the planned entrance, then
measurement will be made of the slope between the planned entrance and
the closest vehicular or pedestrian arrival point. Additionally, the
final Guidelines clarify how to measure the slope between the planned
entrance and an arrival point.
d. The individual building analysis retains the evaluation of both
the undisturbed site and the planned finished grade. Buildings would be
exempt only if the slopes of both the original undisturbed site and the
planned finished grade exceed 10 percent (1) as measured between the
planned entrance and all vehicular or pedestrian arrival points within
50 feet of the planned entrance; or (2) if there are no vehicular or
pedestrian arrival points within that 50 foot area, as measured between
the planned entrance and the closest vehicular or pedestrian arrival
point.
2. The site analysis test.
a. This test is only applicable to sites with multiple buildings, or
to sites with a single building with multiple entrances.
b. This test involves an analysis of the existing natural terrain
(before grading) of the buildable area of the site by topographic survey
with 2 foot contour intervals, with slope determination made between
each successive contour interval. The accuracy of the slope analysis is
to be certified by a professional licensed engineer, landscape
architect, architect or surveyor.
c. This test provides that the minimum number of ground floor units
to be made accessible on a site must equal the percentage of the total
buildable area (excluding floodplains, wetlands, or other restricted use
areas) of the undisturbed site that has an existing natural grade of
less than 10% slope.
The Department believes that both tests for determining site
impracticality due to terrain present enforceable criteria for
determining when terrain makes accessibility, as required by the Act,
impractical. The Department also believes that by offering a choice of
tests, the Department is providing builders and developers with greater
flexibility in selecting the approach that is most appropriate, or least
burdensome, for their development project, while assuring that
accessible units are provided on every site. As noted earlier in this
preamble, this policy is consistent with the intent of Congress which
was to encourage creativity and flexibility in meeting the Act's
requirements, and thus minimize the impact of these requirements on
housing affordability.
With respect to determining site impracticality due to unusual
characteristics of the site, the test in the final Guidelines is
essentially the same as that provided in the Option One guidelines.
This test has been modified to limit measurement of the finished grade
elevation to that between the entrance and all vehicular or pedestrian
arrival points within 50 feet of the planned entrance.
Finally, the final Guidelines for Requirement 1 contemplate that the
site tests recommended by the Guidelines will be performed, generally,
on ''normal'' soil. The Department solicits additional public comment
only on the issue of the feasibility of the site tests on areas that
have difficult soil, such as areas where expansive clay or hard granite
is prevalent.
Additional specific comments on the site impracticality determination
are as follows:
Comment. One commenter stated that the site impracticality
determination seems to suggest that only the most direct path from the
pedestrian or vehicular arrival points will be used to evaluate the
ability to create an accessible route of travel to the building. The
commenter stated that it may be possible to use natural or finished
contours of the site to provide an accessible route other than a
straight-line route.
Response. To be enforceable, the Guidelines must specify where the
line is drawn; otherwise it is not possible to specify what is
''practical''. Generally, developers provide relatively direct access
from the entrance to the pedestrian and vehicular arrival points. If,
in fact, the route as built was accessible, then the building would be
expected to have an accessible entrance and otherwise comply with the
Act.
Comment. Another commenter stated that the site impracticality
determination does not take into account the many building types and
unit arrangements. The commenter stated that some buildings have a
common entrance with unit entrances off a common corridor, while others
have individual, exterior entrances to the units. The commenter stated
that if the Department is going to permit exemptions from the Act's
requirements caused by terrain, the commenter did not understand why
every entrance in a building containing individually-accessed apartments
must comply with the Act's requirements, simply because they are in one
building.
Response. The final Guidelines recognize (as did the proposed
guidelines) the difference in building types. If there is a single
entry point serving the entire building (or portions thereof), that
entry point is considered the ''entrance''. If each unit has a separate
exterior entrance, then each entrance is to be evaluated for the
conditions at that entrance. Thus, a building with four entrances, each
serving one of four units, might have only one accessible entrance,
depending upon site conditions, or it might have any combination up to
four.
Comment. Another commenter stated that the evaluation for unusual
characteristics of the site only takes into account floodplains or high
hazard coastal areas, and excludes other possible unique and unusual
site characteristics.
Response. The provision for unusual characteristics of the site
clearly provides that floodplains or high hazard coastal areas are only
two examples of unusual site characteristics. The provision states that
''unusual site characteristics'' includes ''sites subject to similar
requirements of law or code.''
Comment. A number of commenters expressed concern that the site
impracticality determination of the Guidelines may conflict with local
health, safety, environmental or zoning codes. A principal concern of
one of the commenters was that the final Guidelines may require
''massive grading'' of a site in order to achieve compliance with the
Act. The commenter was concerned that such grading may conflict with
local laws directed at minimizing environmental damage, or with zoning
codes that severely limit substantial fill activities at a site.
Response. The Department believes that the site impracticality
determination adopted in these final Guidelines will not conflict with
local safety, health, environmental or zoning codes. The final
Guidelines provide, as did the proposed guidelines, that the site
planning involves consideration of all State and local requirements to
which a site is subject, such as ''density constraints, tree-save or
wetlands ordinances and other factors impacting development choices''
(55 FR 24378), and explicitly accept the site plan that results from
balancing these and other factors affecting the development. The
Guidelines would not require, for example, that a site be graded in
violation of a tree-save ordinance. If, however, access is required
based on the final site plan, then installation of a ramp for access,
rather than grading, could be necessary in some cases so as not to
disturb the trees. Where access is required, the method of providing
access, whether grading or a ramp, will be decided by the developer,
based on local ordinances and codes, and on business or aesthetic
factors. It should be noted that these nonmandatory Guidelines do not
purport to preempt conflicting State or local laws. However, where a
State or local law contradicts a specification in the Guidelines, a
builder must seek other reasonable cost-effective means, consistent with
local law, to assure the accessibility of his or her units. The
accessibility requirements of the Fair Housing Act remain applicable,
and State and local laws must be in accord with those requirements.
Additional Design Specifications for Requirement 1. In addition to
the site impracticality determinations, the final Guidelines for
Requirement 1 specify that an accessible entrance on an accessible route
is practical when (1) there is an elevator connecting the parking area
with any floor on which dwelling units are located, and (2) an elevated
walkway is planned between a building entrance and a vehicular or
pedestrian arrival point, and the planned walkway has a slope no greater
than 10 percent. The Guidelines also provide that (i) an accessible
entrance that complies with ANSI 4.14, and (2) an accessible route that
complies with ANSI 4.3, meets with the accessibility requirements of
100.205(a). Finally, the Guidelines provide that if the slope of the
finished grade between covered multifamily dwellings and a public or
common use facility exceeds 8.33%, or where other physical barriers, or
legal restrictions, outside the control of the owner, prevent the
installation of an accessible pedestrian route, an acceptable
alternative is to provide access via a vehicular route. (These design
specifications are unchanged from the proposed Option One guidelines for
Requirement 1.)
Comment. Several comments were received on the additional design
specifications for Requirement 1. The majority of commenters supported
8.33% as the slope criterion for the finished grade between covered
multifamily dwellings and a public or common use facility. A few
commenters stated that vehicular access was not an acceptable
alternative to pedestrian access. Other commenters stated that the 10%
slope criterion for the planned walkway was inconsistent with
accessibility requirements that prohibit ramps from having a slope in
excess of 8.33%.
Response. With respect to access via a vehicular route, the
Department's expectation is that public and common use facilities
generally will be on an accessible pedestrian route. The Department,
however, recognizes that there may be situations in which an accessible
pedestrian route simply is not practical, because of factors beyond the
control of the owner. In those situations, vehicular access may be
provided. With respect to the 10% slope criterion for planned elevated
walkways, this is the criterion for determining whether it is practical
to provide an accessible entrance. If the site is determined to be
practical, then the slope of the walkway must be reduced to 8.33%.
The Guidelines for Requirement 2 present design standards that will
make public and common use areas readily accessible to and usable by
handicapped persons, as required by 100.205(c)(1).
The Department has adopted the Option One guidelines for Requirement
2, without change. The Guidelines for Requirement 2 identify components
of public and common use areas that should be made accessible, reference
the section or sections of the ANSI Standard which apply in each case,
and describe the appropriate application of the design specifications.
In some cases, the Guidelines for Requirement 2 describe variations from
the basic ANSI provision that is referenced.
The basic components of public and common use areas covered by the
Guidelines include, for example: accessible route(s); protruding
objects; ground and floor surface treatments; parking and passenger
loading zones; curb ramps; ramps; stairs; elevator; platform lifts;
drinking fountains and water coolers; toilet rooms and bathing
facilities, including water closets, toilet rooms and stalls, urinals,
lavatories and mirrors, bathtubs, shower stalls, and sinks; seating,
tables or work surfaces; places of assembly; common-use spaces and
facilities, including swimming pools, playgrounds, entrances, rental
offices, lobbies, elevators, mailbox areas, lounges, halls and corridors
and the like; and laundry rooms.
Specific comments on the Guidelines for Requirement 2 are as follows:
Comment. A number of comments were received on the various components
listed in the Guidelines for Requirement 2, and the accessibility
specifications for these components provided by both options One and
Two. A few commenters, including the Granite State Independent Living
Foundation, submitted detailed comments on the design standards for the
listed components of public and common use areas, and, in many cases,
recommended specifications different than those provided by either
Option One or Option Two.
Response. Following careful consideration of the comments submitted
on the design specifications of Requirement 2, the Department has
decided not to adopt any of the commenters' proposals for change. The
Department believes that application of the appropriate ANSI provisions
to each of the basic components of public and common use areas, in the
manner specified on the Option One chart, and with the limitations and
modifications noted, remains the best approach to meeting the
requirements of 100.205(c)(1) for accessible and usable public and
common use areas, both because Congress clearly intended that the ANSI
Standard be used where appropriate, and because it is consistent with
the Department's support for uniform standards to the greatest degree
possible.
Comment. Other commenters requested that the ANSI provisions
applicable to certain components in public and common use areas also
should be applied to these components when they are part of individual
dwelling units (for example, floor surface treatments, carpeting, and
work surfaces).
Response. To require such application in individual dwelling units
would exceed the requirements imposed by the Fair Housing Act. The Fair
Housing Act does not require individual dwelling units to be fully
accessible and usable by individuals with handicaps. For individual
dwelling units, the Act limits its requirements to specific features of
accessible design.
Comment. A number of commenters indicated confusion concerning when
the ANSI standard was applicable to stairs.
Response. Stairs are subject to the ANSI Standard only when they are
located along an accessible route not served by an elevator.
(Accessibility between the levels served by the stairs or steps would,
under such circumstances, be provided by some other means such as a ramp
or lift located with the stairs or steps.) For example, a ground floor
entry might have three steps up to an elevator lobby, with a ramp
located besides the steps. The steps in this case should meet the ANSI
specification since they will be used by people with particular
disabilities for whom steps are more usable than ramps.
In nonelevator buildings, stairs serving levels above or below the
ground floor are not required to meet the ANSI standard, unless they are
a part of an accessible route providing access to public or common use
areas located on these levels. For example, mailboxes serving a covered
multifamily dwelling in a nonelevator building might be located down
three steps from the ground floor level, with a ramp located beside the
steps. The steps in this case would be required to meet the ANSI
specifications.
Comment. Other commenters indicated confusion concerning when
handrails are required. A few commenters stated that the installation
of handrails limits access to lawn areas.
Response. Handrails are required only on ramps that are on routes
required to be accessible. Handrails are not required on any on-grade
walks with slopes no greater than 5%. Only on those walks that exceed
5% slope, and that are parts of the required accessible route, would
handrails be required. Accordingly, walks from one building containing
dwelling units to another, would not be affected even if slopes exceeded
5%, because the Guidelines do not require such walks as part of the
accessible route. The Department believes that the benefits provided to
persons with mobility-impairments by the installation of handrails on
required assessible routes outweigh any limitations on access to lawn
areas.
Comment. A number of proposals for revisions were submitted on the
final Guidelines for parking and passenger loading zones.
Response. The Department has not adopted any of these proposals. The
Department has retained the applicable provisions of the ANSI Standard
for parking space. As noted previously in the preamble, the ANSI
Standard is a familiar and widely accepted standard. The Department is
reluctant to introduce a new or unfamiliar standard, or to specify
parking specifications that exceed the minimal accessibility standards
of the Act. However, if a local parking code requires greater
accessibility features (e.g. wider aisles) with respect to parking and
passenger loading zones, the appropriate provisions of the local code
would prevail.
Comment. A number of commenters requested that the final Guidelines
for parking specify minimum vertical clearance for garage parking.
other commenters suggested that the Department adopt ANSI's vertical
height requirement at passenger loading zones as the minimal vertical
clearance for garage parking.
Response. No national accessibility standards, including UFAS,
require particular vertical clearances in parking garages. The
Department did not consider it appropriate to exceed commonly accepted
standards by including a minimum vertical clearance in the Fair Housing
Accessibility Guidelines, in view of the minimal accessibility
requirements of the Fair Housing Act.
Comment. Two commenters stated that parking spaces for condominiums
is problematic because the parking spaces are typically deeded in
ownership to the unit owner at the time of purchase, and it becomes
extremely difficult to arrange for the subsequent provision of
accessible parking. one of the commenters recommended that the
Guidelines specify that a condominium development have two percent
accessible visitor parking, and that these visitor accessible spaces be
reassigned to residents with disabilities as needed.
Response. Condominiums subject to the requirements of the Act must
provide accessible spaces for two percent of covered units. One
approach to the particular situation presented by the commenters would
be for condominium documents to include a provision that accessible
spaces may be reassigned to residents with disabilities, in exchange for
nonaccessible spaces that were initially assigned to units that were
later purchased by persons with disabilities.
Comment. Several commenters stated that Option One's requirement of
''sufficient accessible facilities'' of each type of recreational
facility is too vague. The commenters preferred option Two's guidelines
on recreational facilities, which provides that a minimum of 25% (or at
1east one of each type) of recreational facilities must be accessible.
Response. The Department decided to retain its more flexible approach
to recreational facilities. The final Guidelines specify that where
multiple recreational facilities are provided, accessibility is met
under 100.205(c)(1) if sufficient accessible facilities of each type
are provided.
Comment. Several commenters suggested that all recreational
facilities should be made accessible.
Response. To specify that all recreational facilities should be
accessible would exceed the requirements of the Act. Congress stated
that the Act did not require every feature and aspect of covered
multifamily housing to be made accessible to individuals with handicaps.
(See House Report at 26.)
Comment. Several commenters submitted detailed specifications on how
various recreational facilities could be made accessible. These
comments were submitted in response to the Department's request, in the
proposed guidelines, for more specific guidance on making recreational
facilities accessible to persons with handicaps (55 FR 24376). The
Department specifically requested information about ways to provide
access into pools.
Response. The Department appreciates all suggestions on recommended
specifications for recreational facilities, and, in particular, for
swimming pools. For the present, the Department has decided not to
change the specifications for recreational facilities, including
swimming pools, as provided by the Option One guidelines, since there
are no generally accepted standards covering such facilities. Thus,
access to the pool area of a swimming facility is expected, but not
specialized features for access into the pool (e.g., hoists, or ramps
into the water).
Comment. Several commenters criticized the chart in the Option One
guidelines, stating that it was confusing and difficult to follow.
Response. The chart is adapted from ANSI's Table 2 pertaining to
basic components for accessible sites, facilities and buildings. The
ANSI chart is familiar to persons in the building industry.
Accordingly, the Option One chart (and now part of the final
Guidelines), which is a more limited version of ANSI's Table 2, is not a
novel approach.
The Guidelines for Requirement 3 present design standards for
providing doors that will be sufficiently wide to allow passage into and
within all premises by handicapped persons in wheelchairs (usable doors)
as required by 100.20(c)(2).
The Department has adopted the Option One guidelines for Requirement
3 with minor editorial changes. No changes were made to the design
specifications for ''usable doors''.
The Guidelines provide separate guidance for (1) doors that are part
of an accessible route in the public and common use areas of multifamily
dwellings, including entry doors to individual dwelling units; and (2)
doors within individual dwelling units.
(1) For public and common use areas and entry doors to dwelling
units, doors that comply with ANSI 4.13 would meet the requirements of
100.205(c)(2).
(2) For doors within individual dwelling units, the Department has
retained, in the final Guidelines, the design specification that a door
with a clear opening of at least 32 inches nominal width when the door
is open 90 degrees, as measured between the face of the door and the
stop, would meet the requirements of 100.205(c)(2).
Specific comments on the design specifications presented in the
Guidelines for Requirement 3 are as follows:
Comment. The issue of minimum clear opening for doors was one of the
most widely commented-upon design features of the guidelines. The
majority of commenters representing the disability community supported
the Option One specification of a minimum clear opening of 32 inches. A
few commenters advocated a wider clear opening. U.S. Representatives
Edwards, Frank, and Fish expressed their support for the Option One
specification on minimum clearance which is consistent with the ANSI
Standard.
Commenters from the building industry were almost unanimous in their
opposition to a minimum clear opening of 32 inches. Several builders
noted that a 32-inch clear opening requires use of 36-inch doors. These
commenters stated that a standard 2 10" door (34") provides only a 31
3/4 inch clear opening. The commenters therefore recommended amending
the Guidelines to permit a ''nominal'' 32 inch clear space, allowing the
use of a 2 10" door, which provides a 31 3/4 inch clear opening. Other
commenters stated that, generally, door width should provide a 32-inch
clear opening, but that this width can be reduced if sufficient
maneuvering space is provided at the door. These commenters supported
Option Two's approach, which provided for clear width to be determined
by the clear floor space available for maneuvering on both sides of the
door, with the minimum width set at 29 1/4 inches. (See Option 2 chart
and accompanying text at 55 FR 24382.)
Response. The Department considered the recommendations for both
wider clear openings, and more narrow clear openings, and decided to
maintain the design specification proposed in the Option One guidelines
(a clear opening of at least 32 inches nominal width). The clear
opening of at least 32 inches nominal width has been the accepted
standard for accessibility since the issuance of the original ANSI
Standard in 1961. While the Department recognizes that it may be
possible to maneuver most wheelchairs through a doorway with a slightly
more narrow opening, such doors do not permit ready access on the
constant-use basis that is the reality of daily living within a home
environment. The Department also recognizes that wider doorways may
ensure easier passage for wheelchair users. However, by assuring that
the minimum 36-inch hallway and 32-inch clear openings are provided, the
Department believes that its recommended opening for doors should
accommodate most people with disabilities. In the preamble to the
proposed guidelines, the Department stated that the clear width provided
by a standard 34-inch door would be acceptable under the Guidelines.
Comment. Several commenters requested that the final Guidelines
incorporate minimum maneuvering clearances at doors, as provided by the
ANSI Standard. These commenters stated that maneuvering space on the
latch side of the door is as important a feature as mininum door width.
Other commenters stated that the maneuvering space was necessary to
ensure safe egress in cases of emergency.
Response. The Department has carefully considered these comments, and
has declined to adopt this approach. The Department believes that, by
adhering to the standard 32-inch clear opening, it is possible to forego
other accessibility requirements related to doors (e.g. door closing
forces, maneuvering clearances, and hardware) without compromising the
Congressional directive requiring doors to be ''sufficiently wide to
allow passage by handicapped persons in wheelchairs.'' However, as the
Department noted in the preamble to the proposed guidelines, approaches
to, and maneuvering spaces at, the exterior side of the entrance door to
an individual dwelling unit would be considered part of the public
spaces, and therefore would be subject to the appropriate ANSI
provisions. (See 55 FR 24380.)
Comment. A few commenters expressed concern that the Guidelines did
not provide design specification for an entrance that consists of a
series of more than one door. The commenters were concerned that,
without adequate guidance, a disabled resident or tenant could be
trapped between doors.
Response. Doors in a series are not typically part of an individual
dwelling unit. Doors in a series generally are used in the entries to
buildings, and are therefore part of public spaces. Section 4.13 of the
ANSI Standard, which is applicable to doors in public and common use
areas, provides design specifications for doors in a series. However,
where doors in a series are provided as part of a dwelling unit, the
Department notes that the requirements of an accessible route into and
through the dwelling unit would apply.
Comment. A few commenters requested that lever hardware be required
on doors throughout dwelling units, not only at the entry door to the
dwelling unit.
Response. For doors within individual dwelling units, the Fair
Housing Act only requires that the doors be sufficiently wide to allow
passage by handicapped persons in wheelchairs. Lever hardware is
required for entry doors to the building and to individual dwelling
units because these doors are part of the public and common use areas,
and are, therefore, subject to the ANSI provisions for public and common
use areas, which specify lever hardware. Installing lever hardware on
doors is the type of adaptation that individual residents can make
easily. The ANSI standard also recognizes this point. Under the ANSI
Standard, only the entry door into an accessible dwelling unit is
required to comply with the requirements for door hardware. (See ANSI
section 4.13.9.)
Comment. Several commenters noted that the Guidelines do not provide
more than one accessible entrance/exit, and that without a second means
of egress, wheelchair users may find themselves in danger in an
emergency situation.
Response. As stated previously, the Department is limited to
providing Guidelines that are consistent with the accessibility
requirements of the Act. The Act requires ''an accessible entrance'',
rather than requiring all entrances to be accessible. However, the
requirements for usable doors and an accessible route to exterior spaces
such as balconies and decks does respond to this concern.
The Guidelines for Requirement 4 present design specifications for
providing an accessible route into and through the covered dwelling
unit, as required by 100.205(c)(3)(i).
The Department has adopted the Option One guidelines for Requirement
4 with the following changes:
First, the Department has eliminated the specification for
maneuvering space if a person in a wheelchair must make a T-turn.
Second, the Department has eliminated the specification for a minimum
clear headroom of 80 inches.
Third, and most significantly, the Department has revised the design
specifications for ''changes in level'' within a dwelling unit to
include separate design specifications for: (a) single-story dwelling
units, including single-story dwelling units with design features such
as a loft or a sunken living room; and (b) multistory dwelling units in
buildings with elevators.
Fourth, the Department has revised the specifications for changes in
level at exterior patios, decks or balconies in certain circumstances,
to minimize water damage. For the same reason, the final Guidelines
also include separate specifications for changes in level at the primary
entry doors of dwelling units in certain circumstances.
Specific comments on the Guidelines for Requirement 4, and the
rationale for the changes made, are discussed below.
A few commenters from the disability community advocated a minimum
clear corridor width of 48 inches. However, the majority of commenters
on this issue had no objection to the minimum clear corridor width of 36
inches. The 36-inch minimum clear corridor width, which has been
retained, is consistent with the ANSI Standard.
Comment. Several commenters stated that this design specification was
unclear in two respects. First, they stated that it was unclear when it
is necessary for a designer to provide space for a T-turn. The
commenters stated that it was difficult to envision circumstances where
a wheelchair could be pulled into a position traveling forward and then
not be capable of backing out. Second, the commenters stated that the
two descriptions of the T-turn provided by the Department were
contradictory. The commenters stated that the preamble to the proposed
guidelines provided one description of the T-turn (55 FR 24380), while
Figure 2 of the guideline 4 (55 FR 24392), presented a different
description of the T-turn.
Response. The Department has decided to delete the reference to the
T-turn dimensions in the Guidelines for Requirement 4. The Guidelines
adequately address the accessible route into and through the dwelling
unit by the minimum corridor width and door width specifications, given
typical apartment layouts. Should a designer find that a unique layout
in a particular unit made a T-turn necessary for a wheelchair user, the
specifications provided in the ANSI Standard sections referenced for
public and common use areas could be used.
Comment. Several commenters from the building industry objected to
the specification for a minimum clear headroom of 80 inches. The
commenters stated that standard doors provide a height range from 75 to
79 inches, and that an 80-inch specification would considerably increase
the cost of each door installed.
Response. The specification for minimum clear headroom of 80 inches
was included in the proposed guidelines because it is a specification
included in the major accessibility codes. This design specification
was not expected to conflict with typical door heights. However, since
the principal purpose of the requirement is to restrict obstructions
such as overhanging signs in public walkways, the Department has
determined that this specification is not needed for accessible routes
within individual dwellings units, and has therefore deleted this
standard from the final Guidelines for such routes. (The requirement,
however, still applies in public and common use spaces.)
In the preamble to the proposed guidelines, the Department advised
that the Act appears to require that dwelling units with design features
such as lofts or with more than one floor in elevator buildings be
equipped with internal elevators, chair lifts, or other means of access
to the upper levels (55 FR 24377). The Department stated that, although
it is not clear that Congress intended this result, the Department's
preliminary assessment was that the statute appears to offer little
flexibility in this regard. The Department noted that several
commenters, including the NAHB and the NCCSCI, suggested that units with
more than one floor in elevator buildings should be required to comply
with the Act's accessibility requirements only on the floor that is
served by the building elevator. (This was the position taken by Option
Two.) The Department solicited comments on this issue, and received a
number of responses opposing the Department's interpretation.
Comment. The commenters opposing the Department's interpretation
stated that the Department's interpretation would place an undue burden
on developers and needlessly increase housing costs for everyone;
defeat the purpose of having multilevel units, which is to provide
additional space at a lower cost; eliminate multilevel designs which
may be desirable to disabled residents (e.g., to provide living
accommodations for live-in attendants); and ''create a backlash''
against the Accessibility Guidelines.
Response. Following careful consideration of these comments, and a
reexamination of the Act and its legislative history, the Department has
determined that its previous interpretation ot the Act's application to
units with changes in level (whether lofts, or additional stories in
elevator buildings), which would have required installation of chair
lifts or internal elevators in such units, runs contrary to the purpose
and intent of the Fair Housing Act, which is to place ''modest
accessibility requirements on covered multifamily dwellings.'' (See
House Report at 25.)
In House Report No. 711, the Congress repeatedly emphasized that the
accessibility requirements of the Fair Housing Act were minimal basic
requirements of accessibility.
These modest requirements will be incorporated into the design of new
buildings, resulting in features which do not look unusual and will not
add significant additional costs. The bill does not require the
installation of elevators or 'hospital-like' features, or the renovation
of existing units.'' (House Report at 18)
Accessibility requirements can vary across a wide range. A standard
of total accessibility would require that every entrance, doorway,
bathroom, parking space, and portion of buildings and grounds be
accessible. Many designers and builders have interpreted the term
'accessible' to mean this type of standard. The committee does not
intend to impose such a standard. Rather, the committee intends to use
a standard of 'adaptable' design, a standard developed in recent years
by the building industry and by advocates for handicapped individuals to
provide usable housing for handicapped persons without necessarily being
significantly different from conventional housing.'' (House Report at
26)
The Department has determined that a requirement that units with
lofts or multiple stories in elevator buildings be equipped with
internal elevators, chair lifts, or other means of access to lofts or
upper stories would make accessible housing under the Fair Housing Act
significantly different from conventional housing, and would be
inconsistent with the Act's ''modest accessibility requirements''. (See
House Report at 25.)
The Department also has determined that a requirement that dwelling
units with design features, such as sunken living rooms, must provide
some means of access, such as ramps or lifts, as submitted in the
proposed guidelines (55 FR 24380) is inconsistent with the Act's modest
accessibility requirements. Sunken living rooms are not an uncommon
design feature. To require a ramp or other means of access to such an
area, at the time of construction, would reduce, perhaps significantly,
the space provided by the area. The reduced space might interfere with
the use and enjoyment of this area by a resident who is not disabled, or
whose disability does not require access by means of a ramp or lift.
The Department believes that had it maintained in the final Guidelines
the access specifications for design features, such as sunken living
rooms, as set forth in the proposed guidelines, the final Guidelines
would have interfered unduly with a developer's choice of design, or
would have eliminated a popular design choice. Accordingly, the final
Guidelines provide that access is not required to design features, such
as a sunken living room, provided that the area does not have the effect
of interrupting the accessible route through the remainder of the unit.
The Department believes that the installation of a ramp or deck in
order to make a sunken room accessible is the type of later adaptation
that easily can be made by a tenant. The Department, however, does
require that design features, such as a split-level entry, which is
critical to providing an accessible route into and through the unit,
must provide a ramp or other means of access to the accessible route.
In order to comply with the Act's requirement of an accessible route
into and through covered dwelling units, the Department has revised the
Guidelines for Requirement 4 to provide separate technical guidance for
two types of dwelling units: (1) Single-story dwelling units, including
single-story dwelling units with design features such as a loft or a
sunken living room; and (2) multistory dwelling units in elevator
buildings. (Definitions for ''single-story dwelling unit,'' ''loft,''
''multistory dwelling unit'' and ''story'' have been included in section
2 of the final Guidelines.)
''Single-story dwelling unit'' is defined as a dwelling unit with all
finished living space located on one floor.
''Loft'' is defined as an intermediate level between the floor and
ceiling of any story, located within a room or rooms of a dwelling.
''Multistory dwelling unit'' is defined as a dwelling unit with
finished living space located on one floor and the floor or floors
immediately above or below it.
''Story'' is defined as that portion of a dwelling unit between the
upper surface of any floor and the upper surface of the floor next
above, or the roof of the unit. Within the context of dwelling units,
the terms ''story'' and ''floor'' are synonymous.
For single-story dwelling units and multistory dwelling units, the
Guidelines for Requirement 4 are as follows:
(1) For single-story dwelling units, the design specifications for
changes in level, are the same as proposed in the Option One guidelines.
Changes in level within the dwelling unit with heights between 1/4 inch
and 1/2 inch are beveled with a slope no greater than 1:2. Changes in
level greater than 1/2 inch (excluding changes in level resulting from
design features such as a loft or a sunken living room) must be ramped
or must provide other means of access. For example, split-level entries
must be ramped or use other means of providing and accessible route into
and through the dwelling unit.
For single-story dwelling units with design features such as a loft
or a raised or sunken functional area, such as a sunken living room, the
Guidelines specify that: (a) access to lofts is not required, provided
that all spaces other than the loft are on an accessible route; and (b)
design features such as a sunken living room are also exempt from the
access specifications, provided that the sunken area does not interrupt
the accessible route through the remainder of the unit.
(2) In multistory dwelling units in buildings with elevators, access
to the additional story, or stories, is not required, provided that the
story of the unit that is served by the building elevator (a) is the
primary entry to the unit; (b) complies with Requirements 2 through 7
with respect to the rooms located on the entry/accessible level; and
(3) contains a bathroom or powder room which complies with Requirement
7. (As previously noted, multistory units in buildings without
elevators are not considered ground floor units, and therefore are
exempt.)
The Department believes that the foregoing revisions to the
Guidelines for Requirement 4 will provide individuals with handicaps the
degree of accessibility intended by the Fair Housing Act, without
increasing significantly the cost of multifamily housing.
Comment. Two commenters suggested that the same adaptability
requirement that is applied to bathrooms should be applied to dwelling
units with more than one story, or with lofts, i.e. that stairs, and the
wall along the stairs, contain the appropriate reinforcement to provide
for later installation of a wheelchair lift by a disabled resident, if
so desired.
Response. The only blocking or wall reinforcement required by the
Fair Housing Act is the reinforcement in bathroom walls for later
installation of grab bars. As noted earlier in this preamble, the Fair
Housing Act does not actually require that features in covered units be
''adaptable'', except for bathrooms. The adaptable feature is the
reinforcement in bathroom walls which allows later installation of grab
bars. Accordingly, the Department believes that a specification for
reinforcement of the walls along stairs would exceed the Act's
requirements, because the necessary reinforcement could vary by type of
lift chosen, and more appropriately would be specified and installed as
part of the installation of the lift.
Comment. A number of commenters from the building industry objected
to the provision of the Option One guidelines that specified that an
exterior deck, balcony, patio, or similar surface may be no more than
3/4 inch below the adjacent threshold. Several commenters stated that,
in many situations, this height is unworkable for balconies and decks
because of waterproofing and safety concerns. This was a particular
concern among commenters from the South Florida building industry, who
stated that the 3/4'' height is ineffective for upper floors of high
rise buildings in a coastal environment and invites water control
problems. Others noted that the suggestion of a wooden decking insert,
or the specification of a 3/4 inch maximum change in level, in general,
might conflict with fire codes.
Response. In response to these concerns, and mindful that Congress
did not intend the accessibility requirements of the Act to override the
need to protect the physical integrity of multifamily housing, the
Department has included two additional provisions for changes in level
at thresholds leading to certain exterior surfaces, as a protective
measure against possible water damage. The final Guidelines provide
that exterior deck, patio or balcony surfaces should be no more than 1/2
inch below the floor level of the interior of the dwelling unit, unless
they are constructed of impervious material such as concrete, brick or
flagstone. In such case, the surface should be no more than 4 inches
below the floor level of the interior dwelling unit, unless the local
code requires a lower drop. Additionally, the final Guidelines provide
that at the primary entry doors to dwelling units with direct exterior
access, outside landing surfaces constructed of impervious materials
such as concrete, brick, or flagstone should be no more than 1/2 inch
below the floor level of the interior of the dwelling unit. The
Guidelines further provide that the finished surface of this area,
located immediately outside the entry door, may be sloped for drainage,
but the sloping may be no more than 1/8 inch per foot.
In response to commenters' concern that the Guidelines for an
accessible route to balconies and decks may conflict with certain
building codes that require higher thresholds, or balconies or decks
lower than the 3/4 inch specified by the Guidelines, the Department
notes that the Guidelines are ''recommended'' design specifications, not
building code ''requirements''. Accordingly, the Guidelines cannot
preempt State or local law. However, the builder confronted with local
requirements that thwart the particular means of providing accessibility
suggested by the Guidelines is under a duty to take reasonable steps to
provide for accessibility by other means consistent with local law
constraints and considerations of cost-effectiveness, in order to
provide dwelling units that meet the specific accessibility requirements
of the Fair Housing Act.
The Guidelines for Requirement 5 present design specifications for
providing dwelling units that contain light switches, electrical
outlets, thermostats, and other environmental controls in accessible
locations, as required by 100.205(c)(2)(ii).
The Department has adopted the Option One guidelines for Requirement
5 with minor technical changes. The final Guidelines clarify that to be
in an accessible location within the meaning of the Act, the maximum
height for an environmental control, for which reach is over an
obstruction, is 44 inches for forward approach (as was proposed in the
Option One guidelines), or 46 inches for side approach, provided that
the obstruction is no more than 24 inches in depth. The inclusion of
this additional specification for side approach is consistent with the
comparable provisions in the ANSI standard.
Specific comments on the Guidelines for Requirement 5 are as follows:
Comments. Three comments stated that lowered thermostats could pose a
safety hazard for children. However, the majority of comments requested
clarification as to what is meant by ''other environmental controls''.
Several commenters from the disability community requested that circuit
breakers be categorized as environmental controls. Other commenters
asked whether light and fan switches on range hoods fall within the
category of light switches and environmental controls.
Response. With regard to concerns about lowered thermostats, the Act
specifically identifies ''thermostats'' as one of the controls that must
be in accessible locations, and the mounting heights specified in the
Guidelines are necessary for an accessible location. The only other
environmental controls covered by the Guidelines for Requirement 5 would
be heating, air conditioning or ventilation controls (e.g., ceiling fan
controls). The Department interprets the Act's requirement of placing
environmental controls in accessible locations as referring to those
environmental controls that are used by residents or tenants on a daily
or regular basis. Circuit breakers do not fall into this category, and
therefore are not subject to accessible location specifications. Light
and fan switches on range hoods are appliance controls and therefore are
not covered by the Act.
Comment. Other commenters asked whether light switches and electrical
outlets in the inside corners of kitchen counter areas, and floor
outlets are permissible.
Response. Light switches and electrical outlets in the inside corners
of kitchen counters, and floor outlets, are permissible, if they are not
the only light switches and electrical outlets provided for the area.
Comment. Another commenter pointed out that some electrical outlets
that are installed specifically to serve individual appliances, such as
refrigerators or microwave ovens, cannot realistically be mounted in an
accessible location.
Response. Electrical outlets installed to serve individual
appliances, such as refrigerators or built-in microwave ovens, may be
mounted in non-accessible locations. These are not the type of
electrical outlets which a disabled resident or tenant would need access
to on a regular or frequent basis.
Comment. One commenter stated that Figure 3 in the proposed
guidelines (Figure 2 in the final Guidelines) specifies a reach
requirement more stringent than the ANSI Standard.
Response. The ANSI Standard presents reach ranges for both forward
and side approaches for two situations: (1) unobstructed; and (2) over
an obstruction. The proposed guidelines specified only the heights for
forward reach, because those heights also are usable in side approach.
The diagram in Figure 2 (formerly Figure 3) showing forward reach is
identical to that of Figure 5 in the ANSI Standard. The ANSI Standard
also includes a figure (Figure 6) for side reach that permits higher
placement. The reach range for forward approach was the only one
referenced in the proposed guidelines for use in the dwelling unit,
because it was considered simpler and easier to use a single
specification that would work in all situations. The reach range for
forward approach has been retained in the final Guidelines for
situations where there is no built-in obstruction in order to assure
usability when the unit was furnished. However, the final Guidelines
have added the specification for side reach over a built-in obstruction
that is consistent with the ANSI requirement, and that permits placement
two inches higher than forward reach.
The Guidelines for Requirement 6 present design standards for
installation of reinforcement in bathroom walls to allow for later
installation of grab bars around the toilet, tub, shower stall and
shower seat where such facilities are provided, as required by
100.205(c)(3)(iii).
The Department adopted the Option One guidelines for Requirement 6
with two modifications. First, the final Guidelines provide that a
powder room is subject to the requirement for reinforced walls for grab
bars when the powder room is the only toilet facility located on the
accessible leve1 of a covered multistory dwelling unit. Second, the
final Guidelines further clarify that reinforced bathroom walls will
meet the accessibility requirement of 100.205(c)(3)(iii), if reinforced
areas are provided at least at those points where grab bars will be
mounted.
Specific comments on this guideline were as follows:
Comment. A number of commenters requested that the Department specify
the dimensions for grab bar reinforcement, and suggested that grab bar
reinforcing material run horizontally throughout the entire length of
the space given for grab bars, as provided by the ANSI Standard. These
commenters stated that if this type of reinforcement was required,
residents could locate more easily the studs for future grab bar
installation, and have flexibility in the placement of grab bars for
optimal use, and safety in bathrooms. One commenter noted that many
grab bars are of such a 1ength that they require an intermediate
fastener, but the proposed standard does not permit intermediate
fastening. Two commenters recommended that the final Guidelines follow
ANSI and UFAS Standards for requirements for mounting grab bars. One
commenter recommended the installation of panels of plywood behind
bathroom walls because this would provide greater flexibility in the
installation of grab bars.
Response. The illustrations of grab bar wall reinforcement
accompanying the Guidelines for Requirement 6 are intended only to show
where reinforcement for grab bars is needed. The illustrations are not
intended to prescribe how the reinforcing should be provided, or that
the bathtub or shower is required to be surrounded by three walls of
reinforcement. The additional language added to the Guidelines is to
clarify that the Act's accessibility requirement for grab bar
reinforcement is met if reinforced areas are provided, at a minimum, at
those points where grab bars will be mounted. The Department recognizes
that reinforcing for grab bars may be accomplished in a variety of ways,
such as by providing plywood panels in the areas illustrated, or by
installing vertical reinforcement (in the form of double studs, for
example) at the points noted on the figures accompanying the Guidelines.
Comment. Several commenters stated that the final Guidelines should
incorporate Option Two's specification of reinforcement for shower seats
when shower stalls are provided.
Response. The Fair Housing Act only requires reinforcement for later
installation of grab bars. The Act does not cover reinforcement for
shower seats; rather, it mentions shower seats (if provided) as an area
where grab bar reinforcement would be needed. However, as will be
discussed more fully in the following section concerning the Guidelines
for Requirement 7 (Usable Bathrooms), reinforcement for shower seats
would provide adaptability to increase usability of shower stalls, and
is a design option available to builders and developers in designing
''usable'' bathrooms.
Comment. One commenter recommended that the final Guidelines
incorporate Option Two's specification that prefabricated tub/shower
enclosures would have to be fabricated with reinforcement for grab bar
enclosures.
Response. The Department did not incorporate this specification in
the final Guidelines. The Department believes that it is inappropriate
to specify product design. A builder should have the flexibility to
choose how reinforcement for grab bars will be provided.
Comment. Two commenters stated that half-baths should also contain
grab-bar reinforcements.
Response. Half-baths are not considered ''bathrooms'', as this term
is commonly used, and, therefore are not subject to the bathroom wall
reinforcement requirement, unless a half-bath facility is the only
restroom facility on the accessible level of a covered multistory
dwelling unit.
Comment. One commenter requested that the final Guidelines
incorporate language clearly to specify that the builder's
responsibility is limited solely to wall reinforcement, and later
installation is the responsibility of the resident or tenant.
Response. It is unnecessary to incorporate the suggested language in
the final Guidelines. The Guidelines for Requirement 6 are solely
directed to reinforcement. No guidelines are provided for the actual
installation of grab bars. Accordingly, there should be no confusion on
this issue.
The Guidelines for Requirement 7 present design specifications for
providing usable kitchens and bathrooms such that an individual in a
wheelchair can maneuver about the space, as required by
100.205(c)(3)(iv).
For usable kitchens, the Department adopted the Option One guidelines
with one change. The Department has eliminated the specification that
controls for ranges and cooktops be placed so that reaching across
burners is not required.
For usable bathrooms, the final Guidelines provide two alternative
sets of design specifications. The Fair Housing Act requires that an
accessible or ''usable'' bathroom is one which provides sufficient space
for an individual in a wheelchair to maneuver about. The two sets of
specifications provide different approaches as to how compliance with
this maneuvering space requirement may be accomplished. The first set
of specifications also includes size dimensions for shower stalls, but
only when a shower stall is the only bathing facility provided in a
dwelling unit. Additionally, either set of specifications is applicable
to powder rooms, when a powder room is the only restroom facility on the
accessible level of a covered multistory dwelling unit.
With the exception of the inclusion of shower stall dimensions, the
first set of ''usable bathroom'' specifications remain the same as the
Option One guidelines for usable bathrooms. The second set of ''usable
bathroom'' specifications provide somewhat greater accessibility than
the first set, but would be applicable only to one bathroom in a
dwelling unit that has two or more bathrooms. The second set of
specifications include clear space specifications for bathrooms with
in-swinging doors and for bathrooms with outswinging doors. This second
set of specifications also provides that toilets must be located in a
manner that permits a grab bar to be installed on one side of the
fixture, and provides specifications on the installation of vanities and
lavatories.
To meet the Act's requirements for usable bathrooms, the final
Guidelines provide that (1) in a dwelling unit with a single bathroom,
either set of specifications may be used; and (2) in a dwelling unit
with more than one bathroom, all bathrooms in the unit must comply with
the first set of specifications, or, alternatively, at least one
bathroom must comply with the second set of specifications, and all
other bathrooms must be on an accessible route, and must have a usable
entry door in accordance with the guidelines for Requirements 3 and 4.
However, in multistory dwelling units, only those bathrooms on the
accessible level are subject to the Act's requirements for usable
bathrooms. Where a powder room is the only restroom facility provided
on the accessible level of a multistory dwelling unit, the powder room
must meet either the first set of specifications or the second set of
specifications. All bathrooms and powder rooms that are subject to
Requirement 7, must have reinforcements for grab bars as provided in the
Guideline for Requirement 6.
In developing the final Guidelines for the usable bathroom
requirement, the Department recognized that the Option One guidelines
for usable bathrooms presented the minimum specifications necessary to
meet the Act's requirements. Accordingly, the Department believes that
it is appropriate to provide a second set of specifications which
provide somewhat different accessibility accommodations than the Option
One guidelines. The Department believes that by offering two sets of
specifications for usable bathrooms, the Department is providing
builders and developers with more development choices in designing
dwelling units that contain more than one bathroom; and it is providing
individuals and families with more housing options. Builders and
developers may design all bathrooms to meet the minimal specifications
of the first set of specifications, or they may design only one bathroom
to meet the somewhat greater accessibility specifications of the second
set. Regardless of which set of usable bathroom specifications is
selected by a builder or developer, all doors to bathrooms and powder
rooms must meet the minimum door width specifications of Requirement 3.
The following presents a discussion of the specific comments received
on usable kitchens and usable bathrooms.
Comment. A few commenters stated that the Department lacks authority
under the Fair Housing Act to impose design standards on appliances.
The commenter stated that standards that specify certain design features
for appliances in individual dwelling units exceed the scope of the
Department's statutory authority. Other commenters objected to front
range controls as a safety hazard for children. Commenters from the
disability community were strongly supportive of this design
specification.
Response. With respect to usable kitchens, the Act solely requires
that kitchens have sufficient space such that an individual in a
wheelchair can maneuver about. Accordingly, a specification that
controls for ranges and cooktops be placed so that they can be used
without reaching across burners is not consistent with the Act's
requirement for usable kitchens.
In the proposed guidelines, the Option One guidelines for usable
kitchens specified that controls should be located so as to be usable
without reaching across burners. As the preamble to the proposed
guidelines noted, many standard styles of ranges and cooktops meeting
this specification (other than those with front controls) are available
on the market. However, in reviewing the entire rulemaking history on
the design and constructions requirements, the Department has concluded
that the requirements of the Fair Housing Act did not cover any
appliance controls. Accordingly, this specification was not included in
the final Guidelines.
Comment. A number of commenters from the disability community stated
that it was important that the Guidelines for both kitchens and
bathrooms specify a five-foot turning radius; adjustable cabinetry,
fixtures and plumbing; and fixture controls that comply with the
appropriate provisions of the ANSI Standard.
Response. The legislative history of the Fair Housing Act clearly
indicates that Congress did not envision usable kitchens and bathrooms
to be designed in accordance with the specifications suggested by the
commenters. In House Report No. 711, the Congress stated as follows:
The fourth feature is that kitchens and bathrooms be usable such that
an individual in a wheelchair can maneuver about the space. This
provision is carefully worded to provide a living environment usable by
all. Design of standard sized kitchens and bathrooms can be done in
such a way as to assure usability by persons with disabilities without
necessarily increasing the size of space. The Committee intends that
such space be usable by handicapped persons, but this does not
necessarily require that a turning radius be provided in every
situation. This provision also does not require that fixtures,
cabinetry or plumbing be of such design as to be adjustable. (House
Report at 27)
Accordingly, the Department is unable to adopt any of the proposals
suggested by the commenters. The Act's requirement for usable kitchens
and bathrooms only specifies maneuverability for wheelchair users, and
this maneuverability does not require the specification advocated by the
commenters. (See previous discussion of this issue in the preamble to
the proposed Fair Housing regulations at 53 FR 45005.)
Comment. Two commenters requested clarification concerning what is
meant by ''sufficient maneuvering space''. One of the commenters
recommended that this term be defined to include ''such space as shall
permit a person in a wheelchair to use the features and appliances of a
room without having to leave the room to obtain an approach to an
appliance, work surface, or cabinet''.
Response. The Guidelines for Requirement 7 (usable kitchens and
bathrooms) describe what constitutes sufficient maneuvering space in the
kitchen and the bathroom. Additionally, the preamble to the proposed
guidelines explicitly states that sufficient maneuvering space for
kitchens does not require a wheelchair turning radius (55 FR 24381). As
noted in response to the preceding comment, a wheelchair turning radius
also is not required for either usable kitchens or usable bathrooms.
The Guidelines for usable bathroom state that sufficient maneuvering
space is provided within the bathroom for a person using a wheelchair or
other assistive device to enter and close the door, use the fixtures,
reopen the door and exit. This specification was not changed in the
final Guidelines.
Comment. One commenter stated that ''Element 12'' in the chart
accompanying the Guidelines for Requirement 2 (public and common use
areas) seems to require a portion of the kitchen counters to be
accessible since they are work surfaces. This commenter stated that if
this interpretation is correct then it should be made clear in the
Guidelines.
Response. The commenter's interpretation is not correct. The chart
accompanying the Guidelines for Requirement 2 is only applicable to the
public and common use areas, not to individual dwelling units.
Comments. Several commenters requested that the final Guidelines
provide dimensions on the appropriate width and height of showers and
shower doors. Another commenter asked whether showers were required to
comply with dimensions specified by the ANSI Standard.
Response. The final Guidelines for usable bathrooms (the first set of
specifications) specify size dimensions for shower stalls in only one
situation -- when the shower stall is the only bathing facility provided
in a covered dwelling unit. The Department believes that, where a
shower stall is the only bathing facility provided, size specification
for the shower stall is consistent with the Act's requirement for usable
bathrooms. However, if a shower stall is not the only bathing facility
provided in the dwelling unit, then the only specification for showers,
appropriate under the Act, concerns reinforced walls in showers. (The
titles under the illustrations (figures) related to showers in the final
Guidelines for Requirement 6 have been revised to make it clear that the
figures are specifying only the different areas required to be
reinforced in showers of different sizes, not the required sizes of the
shower stalls.)
Comment. One commenter stated that in-swinging bathroom doors
generally are problematic, unless the bathroom is unusually large. The
commenter noted that an in-swinging door makes it extremely difficult to
enter and exit. The commenter recommended that in-swinging doors be
prohibited unless there is sufficient internal bathroom space, exclusive
of the swing of the door, which allows either a five foot turning radius
or two mutually exclusive 30'' x 48'' wheelchair spaces. Another
commenter stated that in-swinging bathroom doors create a serious
obstacle for the wheelchair user.
Response. The Department declines to prohibit in-swinging bathroom
doors. Adjusting an in-swinging door to swing out is the type of later
adaptation that can be made fairly easily by a resident or tenant. Once
a minimum door width is provided, a tenant who finds a bathroom not
readily usable can have the door rehung as an outswinging door. Note,
however, that the second set of guidelines for usable bathrooms
specifies clear space for bathrooms with in-swinging doors.
Comment. A number of commenters from the disability community stated
that two of the six bathroom drawings in the preamble to the proposed
guidelines (numbers 4 and 6 at 55 FR 24374-24375) did not allow for a
parallel approach to the tub. These commenters requested that these
drawings be removed from the final Guidelines. Other commenters stated
that the Department's bathroom design illustrations at 55 FR 24374-24375
are not consistent with the Figure 8 bathroom design illustrations at 55
FR 24401.
Response. While a parallel approach to the tub would provide somewhat
greater accessibility, the Department believes that to indicate, through
the Guidelines, that a parallel approach to the tub is necessary to meet
the Act's requirements, exceeds the Fair Housing Act's minimal design
expectations for bathrooms. Accordingly, the first set of
specifications for usable bathrooms does not specify a parallel approach
to the tub. However, the second set of specifications provides for a
clear access aisle adjacent to the tub that would permit a parallel
approach to the tub. Either method would meet the Act's requirements.
With respect to the comments on the bathroom design illustrations, these
illustrations have been revised to make the clear floor space
requirements more readily understood. The illustrations are adapted
from ANSI A117.1.
Comment. A number of comments were received on how many bathrooms in
a dwelling unit should be subject to the Act's ''usable'' bathroom
requirement. Many commenters recommended that all full bathrooms be
made accessible. Other commenters recommended that only one full
bathroom be required to be made accessible. A few commenters
recommended that half-baths/powder rooms also be subject to the Act's
requirement.
Response. In House Report No. 711, the Congress distinguished
between ''total accessibility'' and the level of accessibility required
by the Fair Housing Act. The report referred to standards requiring
every aspect or portion of buildings to be totally accessible, and
pointed out that this was not the level of accessibility required by the
Act. The final Guidelines for bathrooms are consistent with the Act's
usable bathroom requirement, and provide the level of accessibility
intended by Congress. As discussed previously in this preamble, the
final Guidelines for usable bathrooms provide two sets of
specifications. The second set of specifications provides somewhat
greater accessibility than the first set of specifications. In view of
this fact, the final Guidelines provide that in a dwelling unit with a
single bathroom, the bathroom may be designed in accordance with either
set of specifications -- the first set or the second set. However, in a
dwelling unit with more than one bathroom, all bathrooms in the unit
must comply with the first set of specifications, or a minimum of one
bathroom must comply with the second set of specifications, and all
other bathrooms must be on an accessible route, and must have a usable
entry door in accordance with the guidelines for Requirements 3 and 4.
Additionally, the final Guidelines provide that a powder room must
comply with the Act's usable bathroom requirements when the powder room
is the only restroom facility provided on the accessible level of a
multistory dwelling unit.
Section 100.205 of the Fair Housing regulations incorporates the
Act's design and construction requirements, including the requirement
that multifamily dwellings for first occupancy after March 13, 1991 be
designed and constructed in accordance with the Act's accessibility
requirements. Section 100.205(a) provides that covered multifamily
dwellings shall be deemed to be designed and constructed for first
occupancy on or before March 13, 1991 (and, therefore, exempt from Act's
accessibility requirements), if they are occupied by that date, or if
the last building permit or renewal thereof for the covered multifamily
dwellings is issued by a State, County, or local government on or before
January 13, 1990.
Comment. The Department received a number of comments on the March
13, 1991 compliance deadline, and on methods of achieving compliance.
Many commenters objected to the March 13, 1991 compliance deadline on
the basis that this deadline was unreasonable. Several commenters from
the building industry stated that, in many cases, design plans for
buildings now under construction were submitted over two years ago, and
it would be very expensive to make changes to buildings near completion.
Other commenters stated that it is unreasonable to impose additional
requirements on a substantially completed project that unexpectedly has
been delayed for occupancy beyond the March 13, 1991 effective date.
Response. Section 804(f)(3)(C) of the Fair Housing Act states that
the design and construction standards will be applied to covered
multifamily dwelling units for first occupancy after the date that is 30
months after the date of enactment of the Fair Housing Amendments Act.
The Fair Housing Act was enacted on September 13, 1988. The date that
is 30 months from that date is March 13, 1991. Accordingly, the
inclusion of a March 13, 1991 compliance date in 100.205 is a
codification of the Act's compliance deadline. The Department has no
authority to change that date. Only Congress may extend the March 13,
1991 deadline.
The Department, however, has been attentive to the concerns of the
building industry, and has addressed these concerns, to the extent that
it could, in prior published documents. In the preamble to the final
Fair Housing rule, the Department addressed the objections of the
building industry to the Department's reliance on ''actual occupancy''
as the sole basis for determining ''first occupancy''. (See 54 FR 3251;
24 CFR Ch. I, Subch. A, App. I at 585 (1990).) Commenters to the
proposed Fair Housing rule, like the commenters to the proposed
guidelines, argued that coverage of the design and construction
requirements must be determinable at the beginning of planning and
development, and that projects delayed by unplanned and uncontrollable
events (labor strikes, Acts of God, etc.) should not be subject to the
Act.
In order to accommodate the ''legitimate concerns on the part of the
building industry'' the Department expanded 100.205 of the final rule
to provide that covered multifamily dwellings would be deemed to be for
first occupancy if the last building permit or renewal thereof was
issued on or before January 13, 1990. A date of fourteen months before
the March 13, 1991 deadline was selected because the median construction
time for multifamily housing projects of all sizes was determined to be
fourteen months, based on data provided by the Marshall Valuation
Service.
More recently, the Department addressed similar concerns of the
building industry in the preamble to the proposed accessibility
guidelines. In the June 15, 1990 publication, the Department recognized
that projects designed in advance of the publication of the final
Guidelines, may not become available for first occupancy until after
March 13, 1991. To provide some guidance, the Department stated in the
June 15, 1990 notice that compliance with the Option One guidelines
would be considered as evidence of compliance with the Act, in projects
designed before the issuance of the final Guidelines. The Department
restated its position on this issue in a supplementary notice published
in the Federal Register on August 1, 1990 (55 FR 31131). The specific
circumstances under which the Department would consider compliance with
the Option One guidelines as compliance with the accessibility
requirements of the Act were more fully addressed in the August 1, 1990
notice.
Comment. A number of commenters requested extending the date of
issuance of the last building permit from January 13, 1990 to some other
date, such as June 15, 1990, the date of publication of the proposed
guidelines; August 1, 1990, the date of publication of the
supplementary notice; or today's date, the date publication of the
final Guidelines.
Response. The date of January 13, 1990 was not randomly selected by
the Department. This date was selected because it was fourteen months
before the compliance deadline of March 13, 1991. As previously noted
in this preamble, fourteen months was found to represent a reasonable
median construction time for multifamily housing projects of all sizes,
based on data contained in the Marshall Valuation Service. Builders
have been on notice since January 23, 1989 -- the publication date of
the final Fair Housing rule, that undertaking construction after January
13, 1990 without adequate attention to accessibility considerations
would be at the builder's risk.
Comment. One commenter requested that the applicable building permit
be the ''primary'' building permit for a particular building. Other
commenters inquired about the status of building permits that are issued
in stages, or about small modifications to building plans during
construction which necessitate a reissued building permit.
Response. Following publication of the proposed Fair Housing
regulation, and the many comments received at that time from the
building industry expressing concern that ''actual occupancy'' was the
only standard for determining ''first occupancy'', the Department gave
careful consideration to the steps and stages involved in the building
process. On the basis of this study, the Department determined that an
appropriate standard to determine ''first occupancy'', other than actual
occupancy, would be issuance of the last building permit on or before
January 13, 1990. This additional standard was added to the final Fair
Housing Act regulation. The Department believes that, aside from actual
occupancy, issuance of the last building permit remains the appropriate
standard.
Comment. A few commenters questioned the role of States and units of
local government in determining compliance with the Act's accessibility
requirements. The commenters noted that (1) 100.205(g) encourages
States and units of general local government to include, in their
existing procedures for the review and approval of newly constructed
covered multifamily dwellings, determinations as to whether the design
and construction of such dwellings are consistent with the Act's
accessibility requirements; but (2) 100.205(h) provides that
determinations of compliance or noncompliance by a State or a unit of
general local government are not conclusive in enforcement proceedings
under the Fair Housing Act. These commenters stated that, unless
determinations of compliance or noncompliance by a State or unit of
general local government are deemed to be conclusive, local
jurisdictions will be discouraged from performing compliance reviews
because they will not be able to provide a building permit applicant
with a sense of finality that proposed design plans are in compliance
with the Act.
Response. Sections 100.205 (g) and (h) of the Fair Housing
regulations implement sections 804(f)(5) (B) and (C), and section
804(f)(6)(b) of the Fair Housing Act. The language of 100.205 (g) and
(h) is taken directly from these statutory provisions. The Congress,
not the Department, made the decision that determinations of compliance
or noncompliance with the Act by a State or unit of general local
government shall not be conclusive in enforcement proceedings. The
Department, however, agrees with the position taken in the statute. The
Department believes that it would be inappropriate to accord particular
''weight'' to determinations made by a wide variety of State and local
government agencies involving a new civil rights law, without first
having the benefit of some experience reviewing the accuracy of the
determinations made by State and local authorities under the Fair
Housing Act.
Comment. Two commenters stated that local building departments,
especially those in smaller urban areas and in rural areas, do not have
the manpower or expert knowledge to assure a proper determination of
compliance, particularly in ''close call'' situations. The commenters
recommended that liability for any infractions exclude local building
departments unless the Department is willing to provide qualified
personnel from its local field office to attend staff reviews of every
building permit request.
Response. The Department is reluctant to assume that State and local
jurisdictions, by performing compliance reviews, will subject themselves
to liability under the Fair Housing Act, particularly in light of
section 804(f)(5)(C) of the Act, which encourages States and localities
to make reviews for compliance with the statute; and the implicit
recognition, under Section 804(f)(6)(B), that these reviews may not be
correct.
Comment. With reference to a violation of the Act's requirements,
several commenters questioned how violations of the Act would be
determined, and what the penalty would be for a violation. The
commenters asked whether a builder would be cited, and fined, for each
violation per building, or for each violation per unit.
Response. If it is determined that a violation of the Act has
occurred, a Federal District Court or an administrative law judge (ALJ)
has the authority to award actual damages, including damages for
humiliation and emotional distress; punitive damages (in court) or
civil penalties (in ALJ proceedings); injunctive relief; attorneys
fees (except to the United States); and any other equitable relief that
may be considered appropriate. Whether a violation will be found for
each violation per building, for each violation per unit, or on any
other basis, is properly left to the courts and the ALJs.
In the proposed guidelines, the Department solicited public comment
on effective enforcement mechanisms (55 FR 24383-24374). Specifically,
the Department requested comment on the effectiveness of: annual
surveys to assess the number of projects developed with accessible
buildings; recordkeeping requirements; and a ''second opinion'' by an
independent, licensed architect or engineer on the site impracticality
issue. The Department stated that comments on these proposals would be
considered in connection with forthcoming amendments to the Fair Housing
regulation.
The Department appreciates all comments submitted on the proposed
enforcement mechanisms, and the suggestions offered on other possible
enforcement mechanisms, such as a preconstruction review process,
certification by a licensed architect, engineer or other building
professional that a project is in compliance with the Act, and
certification of local accessibility codes by the Department. All these
comments will be considered in connection with future amendments to the
Fair Housing Act regulation.
Comment. A number of commenters requested clarification of the
determination of ''first occupancy'' after March 13, 1991. A few
commenters referred to the Act's first occupancy requirement as that of
''ready for occupancy'' by March 13, 1991.
Response. The phrase ''ready for occupancy'' does not correctly
describe the standard contained in the Fair Housing Act. The Act states
that covered multifamily dwellings subject to the Act's accessibility
requirements are those that are ''for first occupancy'' after March 13,
1991. The standard, ''first occupancy,'' is based on actual occupancy
of the covered multifamily dwelling, or on issuance of the last building
permit, or building permit renewal, on or before January 13, 1990.
Where an individual is relying on a claim that a building was actually
occupied on March 13, 1991, the Department, in making a determination of
reasonable cause, will consider each situation on a case-by-case basis.
As long as one dwelling unit in a covered multifamily dwelling is
occupied, the one occupied dwelling unit is sufficient to meet the
requirements for actual occupancy. However, the question of whether the
occupancy was in compliance with State and local law (e.g., pursuant to
a local occupancy permit, where one is required) will be a crucial
factor in determining whether first occupancy has been achieved.
Comment. Several commenters requested clarification of ''first
occupancy'', with respect to projects involving several buildings, or
projects with extended build-out terms, such as planned communities with
completion dates 5 to 10 years into the future.
Response. ''First occupancy'' is determined on a building-by-building
basis, not on a project-by-project basis. For a project that involves
several buildings, one building in the project could be built without
reference to the accessibility requirements, while a building
constructed next door might have to comply with the Act's requirements.
The fact that one or more buildings in a multiple building project were
occupied on March 13, 1991 will not be sufficient to afford an exemption
from the Act's requirements for other buildings in the same project that
are developed at a later time.
Comment. A few commenters requested clarification on who incurs the
cost of making a unit adaptable for a disabled tenant.
Response. All costs associated with incorporating the new design and
construction requirements of the Fair Housing Act are borne by the
builder. There are, of course, situations where a tenant may need to
make modifications to the dwelling unit which are necessary to make the
unit accessible for that person's particular type of disability. The
tenant would incur the cost of this type of modification -- whether or
not the dwelling unit is part of a multifamily dwelling exempt from the
Act's accessibility requirements. For dwellings subject to the
statute's accessibility requirements, the tenant's costs would be
limited to those modifications that were not covered by the Act's design
and construction requirements. (For example, the tenant would pay for
the cost of purchasing and installing grab bars.) For dwellings not
subject to the accessibility requirements, the tenant would pay the cost
of all modifications necessary to meet his or her needs. (Using the
grab bar example, the tenant would pay both the cost of buying and
installing the grab bars and the costs associated with adding bathroom
wall reinforcement.)
Section 100.203 of the Fair Housing regulations provides that
discrimination includes a refusal to permit, at the expense of a
handicapped person, reasonable modifications of existing premises
occupied or to be occupied by that person, if modifications are
necessary to afford the person full enjoyment of the premises. In the
case of a rental, the landlord may reasonably condition permission for a
modification on the renter's agreeing to restore the interior of the
unit to the condition that existed before its modification -- reasonable
wear and tear excepted. This regulatory section provides examples of
reasonable modifications that a tenant may make to existing premises.
The examples include bathroom wall reinforcement. In House Report No.
711, the Congress provided additional examples of reasonable
modifications that could be made to existing premises by persons with
disabilities:
For example, persons who have a hearing disability could install a
flashing light in order to 'see' that someone is ringing the doorbell.
Elderly individuals with severe arthritis may need to replace the
doorknobs with lever handles. A person in a wheelchair may need to
install fold-back hinges in order to be able to go through a door or may
need to build a ramp to enter the unit. Any modifications protected
under this section (section 804(f)(3)(A)) must be reasonable and must be
made at the expense of the individual with handicaps. (House Report at
25)
Comment. One commenter requested clarification concerning what is
meant by ''reasonable modification''.
Response. What constitutes ''reasonable modification'' is discussed
to some extent in the preceding section, ''Costs of Adaptation'', and
also was discussed extensively in the preambles to both the proposed and
final Fair Housing rules. (See 53 FR 45002-45003, 54 FR 3247-3248; 24
CFR Ch. I, Subch. A, App. I at 580-583 (1990).) Additionally, examples
of reasonable modifications are provided in 24 CFR 100.203(c).
Comment. A number of comments were received on the issue of which
types of dwelling units should be subject to the Act's accessibility
requirements, and the number or percentage of dwelling units that must
comply with the Act's requirements.
Response. The Department lacks the authority to adopt any of the
proposals recommended by the commenters. The type of multifamily
dwelling subject to the Fair Housing Act's accessibility requirements,
and the number of individual dwelling units that must be made accessible
were established by the Congress, not the Department. The Fair Housing
Act defines ''covered multifamily dwelling'' to mean buildings
consisting of four or more units if such buildings have one or more
elevators; and ground floor units in other buildings consisting of four
or more units.'' (See Section 804(f)(7) of the Act.) The Fair Housing
Act requires that covered multifamily dwellings for first occupancy
after March 13, 1991 be designed and constructed in accordance with the
Act's accessibility requirements. The Act does not permit only a
percentage of units in covered multifamily dwellings to be designed in
accordance with the Act's requirements, nor does the Department have the
authority so to provide by regulation.
(56 FR 9472, 9515, Mar. 6, 1991)
24 CFR 125.405 SUBCHAPTER B -- EMPLOYMENT AND BUSINESS OPPORTUNITY
24 CFR 125.405 PART 130 -- EQUAL EMPLOYMENT OPPORTUNITY UNDER HUD
CONTRACTS AND HUD ASSISTED CONSTRUCTION CONTRACTS
Sec.
130.1 Purpose.
130.5 Definitions.
130.10 Responsibilities.
130.15 Equal opportunity clause.
130.20 Exemptions.
130.25 Award of contracts.
130.30 Affirmative action compliance programs -- nonconstruction
contracts.
130.35 Affirmative action compliance programs -- construction
contracts.
130.40 Prebid requirements and conferences.
130.45 Participation in areawide equal employment opportunity
program.
130.50 Reports and other required information.
130.55 Compliance reviews.
130.60 Complaint procedure.
130.65 Hearings and sanctions.
130.70 Intimidation and interference.
130.75 Segregated facilities certificate.
130.80 Solicitations or advertisements for employees.
130.85 Access to record of employment.
130.90 Notices to be posted.
130.95 Program directives and instructions.
130.100 Effective date.
Authority: Sec. 201, E.O. 11246, 30 FR 12319; and 41 CFR 60-1.6(c).
Source: 36 FR 24460, Dec. 22, 1971, unless otherwise noted.
24 CFR 130.1 Purpose.
This part prescribes standards and procedures for the Department of
Housing and Urban Development in the implementation of its
responsibilities as a compliance agency under Executive Order 11246;
the rules and regulations of the Secretary of Labor, codified in 41 CFR
chapter 60, prescribed thereunder; and other rules, orders,
instructions, designations, and directives issued by the Office of
Federal Contract Compliance, Department of Labor.
24 CFR 130.5 Definitions.
(a) Administering agency means any department, agency, and
establishment in the executive branch of the Government, including any
wholly owned Government corporation, which administers a program
involving federally assisted construction contracts.
(b) Agency means any contracting or any administering agency of the
Government.
(c) Applicant means an applicant for Federal assistance from the
Department invoving a construction contract, or other participant in a
program involving a construction contract as determined by the
Department. The term also includes such persons after they became
recipients of such Federal assistance.
(d) Compliance agency means the agency designated by the Director on
a geographical, industry, or other basis to conduct compliance reviews
and to undertake such other responsibilities in connection with the
administration of the order as the Director may determine to be
appropriate. In the absence of such a designation the Compliance Agency
will be determined as follows:
(1) In the case of a prime contractor not involved in construction
work, the Compliance Agency will be the agency whose contracts with the
prime contractor have the largest aggregate dollar value;
(2) In the case of a subcontractor not involved in construction work,
the Compliance Agency will be the Compliance Agency of the prime
contractor with which the subcontractor has the largest aggregate value
of subcontracts or purchase orders for the performance of work under
contracts;
(3) In the case of a prime contractor or subcontractor involved in
construction work, the Compliance Agency for each construction project
will be the agency providing the largest dollar value for the
construction projects; and
(4) In the case of a contractor who is both a prime contractor and
subcontractor, the Compliance Agency will be determined as if such
contractor is a prime contractor only.
(e) Construction work means the construction, rehabilitation,
alteration, conversion, extension, demolition or repair of buildings,
highways, or other changes or improvements to real property, including
facilities providing utility services. The term also includes the
supervision, inspection, and other onsite functions incidental to the
actual construction.
(f) Contract means any Government contract or any federally assisted
construction contract.
(g) Contractor means, unless otherwise indicated, a prime contractor
or subcontractor.
(h) Department means the Department of Housing and Urban Development.
(i) Director means the Director, Office of Federal Contract
Compliance, U.S. Department of Labor, or any person to whom he delegates
authority under the regulations of the Secretary of Labor.
(j) Equal opportunity clause means the contract provisions set forth
in 8.15(a) or (b), as appropriate.
(k) Facilities as used in 130.75, includes, but is not limited to
waiting rooms, work areas, restaurants and other eating areas, time
clocks, restrooms, wash rooms, locker rooms and other storage or
dressing areas, parking lots, drinking fountains, recreation or
entertainment areas, transportation, and housing facilities provided for
employees.
(l) Federally assisted construction contract means any agreement or
modification thereof between any applicant and any person for
construction work which is paid for in whole or in part with funds
obtained from the Government or borrowed on the credit of the Government
pursuant to any Federal program involving a grant, contract loan,
insurance, or guarantee, or undertaken pursuant to any Federal program
involving such grant, contract, loan, insurance, or guarantee, or any
application or modification thereof approved by the Department for a
grant, contract, loan, insurance, or guarantee under which the applicant
itself participates in the construction work.
(m) Government means the Government of the United States of America.
(n) Government contract means any agreement or modification thereof
between any contracting agency and any person for the furnishing of
supplies or services or for the use of real or personal property,
including lease arrangements. Services, as used in this section
includes, but is not limited to, the following services: Utility,
construction, transportation, research, insurance, and fund depository.
Government contract does not include: (1) Agreements in which the
parties stand in the relationship or employer and employee, and (2)
federally assisted construction contracts.
(o) Hearing officer means the individual or board of individuals
designated to conduct hearings.
(p) Modification means any alteration in the terms and conditions of
a contract, including supplemental agreements, amendments, and
extensions.
(q) Order means parts II, III, and IV of Executive Order 11246, dated
September 24, 1965 (30 FR 12319), as amended by Executive Order 11375
dated October 13, 1967 (32 FR 14303), and any Executive order amending
or superseding such orders.
(r) Person means any natural person, corporation, partnership,
unincorporated association, State or local government, and any agency,
instrumentality, or subdivision of such a government.
(s) Prime contractor means any person holding a contract, and for the
purposes of subpart B (General Enforcement, Compliance Review, and
Complaint Procedure) of the rules and regulations, any person who has
held a contract subject to the order.
(t) Recruiting and training agency means any person who refers
workers to any contractor or subcontractor, or who provides or
supervises apprenticeship or training for employment by any contractor
or subcontractor.
(u) Rules, regulations, and relevant orders of the Secretary of Labor
used in paragraph (4) of the equal opportunity clause means rules,
regulations, and relevant orders of the Secretary of Labor or his
designee issued pursuant to the order.
(v) Secretary means the Secretary of Housing and Urban Development.
(w) Site of construction means the general physical location of any
building, highway, or other change or improvement to real property which
is undergoing construction, rehabilitation, alteration, conversion,
extension, demolition, or repair and any temporary location or facility
at which a contractor, subcontractor, or other participating party meets
a demand or performs a function relating to the contract or subcontract.
(x) Subcontract means any agreement or arrangement between a
contractor and any person (in which the parties do not stand in the
relationship of an employer and an employee):
(1) For the furnishing of supplies or services or for the use of real
or personal property, including lease arrangements, which, in whole or
in part, is necessary to the performance of any one or more contracts;
or
(2) Under which any portion of the contractor's obligation under any
one or more contracts is performed, undertaken or assumed.
(y) Subcontractor means any person holding a subcontract and, for the
purposes of subpart B (General Enforcement; Compliance Review, and
Complaint Procedure) of the rules and regulations, any person who has
held a subcontracat subject to the order. The term First-tier
subcontractor refers to a subcontractor holding a subcontract with a
prime contractor.
(z) United States as used herein shall include the several States,
the District of Columbia, the Commonwealth of Puerto Rico, the Panama
Canal Zone, and the possessions of the United States.
24 CFR 130.10 Responsibilities.
(a) General. The Department of Housing and Urban Development is
responsible for: (1) Implementing the requirements of the order, the
rules and regulations, OFCC directives and all other rules, regulations,
and orders issued pursuant thereto, and (2) obtaining the compliance of
all contractors for which the Department is the Compliance Agency.
(b) Contract Compliance Officer (CCO). The Assistant Secretary for
Equal Opportunity has been designated the Contract Compliance Officer
(CCO) for the Department by the Secretary (35 FR 7138, May 6, 1970), and
is responsible for developing and administering the Department's program
under the order.
(c) General Deputy Contract Compliance Officer (GDCCO). The Deputy
Assistant Secretary for Equal Opportunity has been designated the
General Deputy Contract Compliance Officer (GDCCO) for the Department by
the Secretary (35 FR 7138, May 6, 1970), to assist the Contract
Compliance Officer in the performance of his duties. He is authorized
to exercise the authority delegated to the Contract Compliance Officer.
(d) Deputy Contract Compliance Officer (DCCO). Each Assistant
Regional Administrator for Equal Opportunity has been designated by the
Contract Compliance Officer as Deputy Contract Compliance Officer (DCCO)
for the Region in which he serves. Deputy Contract Compliance Officers
are responsible for field administration of programs of contract
compliance in conformity with directives and guidelines promulgated by
the Contract Compliance Officer.
(e) Heads of program areas. Assistant Secretaries of the Department
who are authorized to extend Federal financial assistance which involves
construction work shall be responsible for effectuating the Order, rules
and regulations, OFCC directives, this part 130, directives of the
Department and all other rules, regulations, and orders issued pursuant
thereto as they relate to construction contracts financially assisted by
the Department.
24 CFR 130.15 Equal opportunity clause.
(a) Government contracts. Except as otherwise provided, the
following equal opportunity clause contained in section 202 of the Order
shall be included in each Government contract entered into by the
Department (and modification thereof if not included in the original
contract):
During the performance of this contract, the contractor agrees as
follows:
(1) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. The contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to, the
following: Employment, upgrading, demotion, or transfer, recruitment or
recruitment advertising; layoff or termination; rates of pay or other
forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided by the contracting officer setting forth the provisions of this
nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other
contract or understanding, a notice to be provided by the Department's
contracting officer, advising the labor union or workers' representative
of the contractor's commitments under section 202 of Executive Order
11246 of September 24, 1965, and shall post copies of the notice in
conspicuous places available to employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order
11246 of September 24, 1965, and of the rules, regulations, and relevant
orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required
by Executive Order 11246 of September 24, 1965, and by the rules,
regulations, and orders of the Secretary of Labor, or pursuant thereto,
and will permit access to his books, records, and accounts by the
Department and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of such rules,
regulations, or orders, this contract may be canceled, terminated or
suspended in whole or in part and the contractor may be declared
ineligible for further Government contracts in accordance with
procedures authorized in Executive Order 11246 of September 24, 1965,
and such other sanctions may be imposed and remedies invoked as provided
in Executive Order 11246 of September 25, 1965, or by rule, regulation,
or order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the provisions of paragraphs (1)
through (7) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant
to section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or
purchase order as the Department may direct as a means of enforcing such
provisions including sanctions for noncompliance: Provided, however,
That in the event the contractor becomes involved in, or is threatened
with, litigation with a subcontractor or vendor as a result of such
direction by the Department, the contractor may request the United
States to enter into such litigation to protect the interests of the
United States.
(b) Federally assisted construction contracts. Except as otherwise
provided, the following language shall be included as a condition of any
grant, contract, loan, insurance, or guarantee involving federally
assisted construction which is not exempt from the requirements of the
equal opportunity clause:
The applicant hereby agrees that it will incorporate or cause to be
incorporated into any contract for construction work or modification
thereof, as defined in the regulations of the Secretary of Labor at 41
CFR chapter 60, which is paid for in whole or in part with funds
obtained from the Federal Government or borrowed on the credit of the
Federal Government pursuant to a grant, contract, loan, insurance, or
guarantee, or undertaken pursuant to any Federal program involving such
grant, contract, loan, insurance, or guarantee, the following equal
opportunity clause:
During the performance of this contract, the contractor agrees as
follows:
(1) The contractor will not discriminate against any employee or
applicant for employment because of race, color, religion, sex, or
national origin. The contractor will take affirmative action to ensure
that applicants are employed, and that employees are treated during
employment, without regard to their race, color, religion, sex, or
national origin. Such action shall include, but not be limited to, the
following: Employment, upgrading, demotion, or transfer; recruitment
or recruitment advertising; layoff or termination; rates of pay or
other forms of compensation; and selection for training, including
apprenticeship. The contractor agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be
provided setting forth the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for
employees placed by or on behalf of the contractor, state that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin.
(3) The contractor will send to each labor union or representative of
workers with which he has a collective bargaining agreement or other
contract or understanding, a notice to be provided by the Contract
Compliance Officer advising the said labor union or workers'
representatives of the contractor's commitment under this section, and
shall post copies of the notice in conspicuous places available to
employees and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order
11246 of September 24, 1965, and of the rules, regulations, and relevant
orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required
by Executive Order 11246 of September 24, 1965, and by rules,
regulations and orders of the Secretary of Labor, or pursuant thereto,
and will permit access to his books, records, and accounts by the
Department and the Secretary of Labor for purposes of investigation to
ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor's noncompliance with the
nondiscrimination clauses of this contract or with any of the said
rules, regulations, or orders, this contract may be cancelled,
terminated, or suspended in whole or in part and the contractor may be
declared ineligible for further Government contracts or federally
assisted construction contracts in accordance with procedures authorized
in Executive Order 11246 of September 24, 1965, or by rule, regulation,
or order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the portion of the sentence
immediately preceding paragraph (1) and the provisions of paragraphs (1)
through (7) in every subcontract or purchase order unless exempted by
rules, regulations, or orders of the Secretary of Labor issued pursuant
to section 204 of Executive Order 11246 of September 24, 1965, so that
such provisions will be binding upon each subcontractor or vendor. The
contractor will take such action with respect to any subcontract or
purchase order as the Department may direct as a means of enforcing such
provisions, including sanctions for noncompliance: Provided, however,
That in the event a contractor becomes involved in, or is threatened
with, litigation with a subcontractor or vendor as a result of such
direction by the Department, the contractor may request the United
States to enter into such litigation to protect the interest of the
United States.
The applicant further agrees that it will be bound by the above equal
opportunity clause with respect to its own employment practices when it
participates in federally assisted construction work: Provided, That if
the applicant so participating is a State or local government, the above
equal opportunity clause is not applicable to any agency,
instrumentality or subdivision of such government which does not
participate in work on or under the contract.
The applicant agrees that it will assist and cooperate actively with
the Department and the Secretary of Labor in obtaining the compliance of
contractors and subcontractors with the equal opportunity clause and the
rules, regulations, and relevant orders of the Secretary of Labor; that
it will furnish the Department and the Secretary of Labor such
information as they may require for the supervision of such compliance;
and that it will otherwise assist the Department in the discharge of its
primary responsibility for securing compliance.
The applicant further agrees that it will refrain from entering into
any contract or contract modification subject to Executive Order 11246
of September 24, 1965, with a contractor debarred from, or who has not
demonstrated eligibility for, Government contracts and federally
assisted construction contracts pursuant to the Executive order and will
carry out such sanctions and penalties for violation of the equal
opportunity clause as may be imposed upon contractors and subcontractors
by the Department or the Secretary of Labor pursuant to part II, subpart
D of the Executive order. In addition, the applicant agrees that if it
fails or refuses to comply with these undertakings, the Department may
take any or all of the following actions: Cancel, terminate, or suspend
in whole or in part this grant (contract, loan, insurance, guarantee);
refrain from extending any further assistance to the applicant under the
program with respect to which the failure or refusal occurred until
satisfactory assurance of future compliance has been received from such
applicant; and refer the case to the Department of Justice for
appropriate legal proceedings.
(c) Subcontracts. Each nonexempt prime contractor or subcontractor
shall include the equal opportunity clause in each of its nonexempt
subcontracts.
(d) Incorporation by reference. The equal opportunity clause may be
incorporated by reference in Government bills of lading, transportation
requests, contracts for deposit of Government funds, contracts for
issuing and paying U.S. savings bonds and notes, contracts and
subcontracts less than $50,000 and such other contracts as the Director
may designate.
(e) Incorporation by operation of the order and departmental
regulations. By operation of the order, the equal opportunity clause
shall be considered to be a part of every contract and subcontract
required by the order, the rules and regulations and these regulations
to include such a clause whether or not it is physically incorporated in
such contracts. The clause is applicable to every nonexempt contract
where there is no written contract between the Department and the
contractor.
(f) Adaptation of language. Such necessary changes in language may
be made in the equal opportunity clauses as shall be appropriate to
identify properly the parties and their undertakings.
24 CFR 130.20 Exemptions.
(a) General -- (1) Transactions of $10,000 or under. Contracts and
subcontracts not exceeding $10,000, other than Government bills of
lading, are exempt from the requirements of the equal opportunity
clause. In determining the applicability of this exemption to any
federally assisted construction contract, or subcontract thereunder, the
amount of such contract or subcontract rather than the amount of the
Federal financial assistance shall govern. The Department, applicants,
contractors, and subcontractors shall not procure supplies or services
in less than usual quantities to avoid applicability of the equal
opportunity clause.
(2) Contracts and subcontracts for indefinite quantities. With
respect to contracts and subcontracts for indefinite quantities
(including, but not limited to, open-end contracts, requirement-type
contracts, Federal Supply Schedule contracts, call-type contracts, and
purchase notice agreements), the equal opportunity clause shall be
included unless the purchaser has reason to believe that the amount to
be ordered in any year under such contract will not exceed $10,000. The
applicability of the equal opportunity clause shall be determined by the
purchaser at the time of award for the first year, and annually
thereafter for succeeding years, if any. Notwithstanding the above, the
equal opportunity clause shall be applied to such contract whenever the
amount of a single order exceeds $10,000. Once the equal opportunity
clause is determined to be applicable, the contract shall continue to be
subject to such clause for its duration, regardless of the amounts
ordered, or reasonably expected to be ordered in any year.
(3) Work outside the United States. Contracts and subcontracts are
exempt from the requirements of the equal opportunity clause with regard
to work performed outside the United States by employees who were not
recruited within the United States.
(4) Contracts with State or local governments. The requirements of
the equal opportunity clause in any contract or subcontract with a State
or local government (or any agency, instrumentality or subdivision
thereof) shall not be applicable to any agency, instrumentality or
subdivision of such government which does not participate in work on or
under the contract or subcontract. In addition, any agency,
instrumentality or subdivision of such government, except for
educational institutions and medical facilities, is exempt from the
requirements of filing the annual compliance report provided for by
130.50 and maintaining a written affirmative action compliance program
prescribed in 130.30 and 130.35.
(b) Specific contracts and facilities not connected with contracts.
The equal opportunity clause will not be required to be included in any
contract or subcontract exempted by the Director under the provisions of
41 CFR 60-1.5(b)(1) or (2) provided such exemption has not been
withdrawn under the provisions of 41 CFR 60-1.5(d).
(c) National security. Any requirement set forth in the regulation
in this part shall not apply to any contract or subcontract whenever the
Secretary determines that such contract or subcontract is essential to
the national security and that its award without complying with such
requirement is necessary to the national security. Upon making such a
determination, the Secretary will notify the Director in writing with in
30 days.
(36 FR 24460, Dec. 22, 1971, as amended at 38 FR 18546, July 12,
1973)
24 CFR 130.25 Award of contracts.
(a) All Contracting Officers and all officers who approve
applications for Federal financial assistance involving a construction
contract, shall prior to approval follow either of the procedures in
paragraph (a) (1) or (2) of this section:
(1) Notify the Contract Compliance Officer or appropriate Deputy as
soon as practicable of the impending award of each nonexempt
construction contract in excess of $100,000, the name and address of the
prime contractor, anticipated time of performance, name and address of
each known subcontractor and whether the prime contractor and known
subcontractors have:
(i) Participated in any previous contract subject to the equal
opportunity clause, and
(ii) Filed with the Joint Reporting Committee, the Director, an
agency, or the Equal Employment Opportunity Commission all reports due
under the applicable filing requirements.
(2) Consult a list (supplied by the Contract Compliance Officer) of
contractors who have previously been found to be in noncompliance with
equal opportunity requirements. In the event of an impending award to
any contractor on such list, the Contract Compliance Officer or
appropriate Deputy shall be advised and the procedures of paragraphs
(b), (c), and (d) of this section shall be followed.
(b) The Contract Compliance Officer or appropriate Deputy shall
review the available information relative to the prospective prime
contractor's equal opportunity compliance status and notify the
Contracting Officer or Approving Officer of any deficiencies found to
exist. A copy of such report shall be forwarded to the Director.
(c) Contracting Officers or Approving Officers shall: (1) Notify the
bidder, offeror, or applicant of any deficiencies found to exists by the
Contract Compliance Officer or appropriate Deputy, and (2) direct any
bidder, offeror, or applicant so notified to negotiate with the Contract
Compliance Officer and to take such actions as the Contract Compliance
Officer may require.
(d) The award of any such contract shall be conditioned upon the
Contract Compliance Officer's notification to the Contracting Officer or
Approving Officer that the bidder, offeror, or applicant has taken
action or has agreed to take action satisfactory to the Contract
Compliance Officer, appropriate Deputy, or the head of the agency as
provided in 130.55(a). Any such agreement to take action shall be
stated in the contract, if the Contract Compliance Officer so requires.
(e) In the case of nonconstruction contracts, all Contracting
Officers shall:
(1) Notify the Contract Compliance Officer as soon as practicable of
the impending award of each nonexempt, nonconstruction Government
contract in excess of $50,000, the name and address of the prime
contractor, anticipated time of performance, name and address of each
known subcontractor and whether the prime contractor and known
subcontractors have:
(i) Participated in any previous contract or subcontract subject to
the equal opportunity clause;
(ii) Filed with the Joint Reporting Committee, the Director, an
agency, or the Equal Employment Opportunity Commission all reports due
under the applicable filing requirements; and
(iii) Developed and have on file at each establishment affirmative
action programs pursuant to part 60-2 of the rules and regulations.
(2) The Contract Compliance Officer shall notify the Compliance
Agency (designated pursuant to the Director's Order No. 1 and 41 CFR
60-1.3(d)) of the impending award of each contract covered by paragraph
(e)(1) of this section. Based upon the information furnished by the
Compliance Agency, the Contract Compliance Officer shall advise the
Contracting Officer to take such action with respect to the impending
award as may be appropriate pursuant to the rules, regulations, and
relevant orders of the Secretary of Labor and this part 130.
(f) The invitation for bids for each formally advertised
nonconstruction contract, shall include a notice, and Department
officials shall state at the outset of negotiations for each negotiated
contract, that if the award, when let, should exceed the amount of $1
million, the prospective contractor and his known first-tier
subcontractors with subcontracts of $1 million or more will be subject
to a compliance review before the award of the contract. No such
contract shall be awarded unless a preaward compliance review of the
prospective contractor and his known first-tier $1 million
subcontractors has been conducted by the Compliance Agency within 12
months prior to the award. If an agency other than the Department is
the Compliance Agency, the Department will notify the Compliance Agency
and request appropriate action and findings in accordance with this
paragraph. In order to qualify for the award of a contract, a
contractor and such first-tier subcontractors must be found to be in
compliance pursuant to part 60-2 of the rules and regulations.
(g) A preaward compliance review may be conducted prior to award of
contracts in any case where the CCO has reasonable grounds, based on a
complaint, the Department's own investigation, or otherwise, to believe
that the contractor or subcontractor is unable or unwilling to comply
with the requirements of the equal opportunity clause. (Such reviews
are in addition to those required pursuant to paragraph (f) of this
section.)
24 CFR 130.30 Affirmative action compliance programs -- nonconstruction
contracts.
Order No. 4 (41 CFR part 60-2), issued by the Secretary of Labor,
sets forth requirements for the development of affirmative action
compliance programs for nonconstruction contractors.
24 CFR 130.35 Affirmative action compliance programs -- construction
contracts.
(a) Requirements of programs. The Department or the applicant shall
require each Federal or federally assisted construction prime contractor
on projects costing $1 million or more, regardless of the number of
employees, and each Federal or federally assisted construction prime
contractor and subcontractor shall require each subcontractor on
projects costing $1 million or more with a subcontract of $100,000 or
more, regardless of the number of employees, to develop a written
affirmative action compliance program.
(b) Purposes. The purposes of the written affirmative action program
are:
(1) To identify areas of employment, employment policies and
practices which require action by the contractor or subcontractor to
assure equal employment opportunity to all employees and applicants for
employment without regard to race, color, religion, sex, or national
origin;
(2) To analyze these areas, policies, and practices to determine what
actions by the contractor or subcontractor will be most effective in
assuring equal opportunity; and
(3) To establish a plan to achieve employment opportunity through
those actions identified as potentially most effective.
24 CFR 130.40 Prebid requirements and conferences.
(a) In any area or for any class of contracts designated by the
Director, or by the CCO, no bid invitations will be issued for any
Federal or federally assisted construction contract unless such bid
invitation contains definite minimum standards for affirmative action
and a statement that contractors and subcontractors must meet such
minimum standards to be eligible for award.
(b) Whenever the submission of a written affirmative action program
is required before the award of a contract, definite minimum standards
for such program shall be incorporated in the bid invitations or
requests for proposal issued in connection with such contracts.
(c) When the Director or CCO so requires, a prebid conference will be
held in which the minimum standards for affirmative action will be
explained to those in attendance. All known prospective bidders will be
notified of the date, time, and place of the prebid conference.
(d) Bids which fail to meet the standards prescribed shall be deemed
nonresponsive and will not be considered for award.
24 CFR 130.45 Participation in areawide equal employment opportunity
program.
Any contractor who is a participant in, or is a member of an
organization or association which participates in, an areawide equal
employment opportunity program which is approved by the Department and
the Office of Federal Contract Compliance for the purpose of
effectuating the goals of Executive Order 11246, may be deemed to be in
compliance with the order by virtue of such participation and shall be
exempt from the requirement of developing and maintaining a written
affirmative action program, unless required to do so under the areawide
equal employment opportunity program.
24 CFR 130.50 Reports and other required information.
(a) Requirements for prime contractors and subcontractors. (1) Each
prime contractor shall file, and each prime contractor and subcontractor
shall cause its subcontractors to file annually, on or before the 31st
day of March, complete and accurate reports on Standard Form 100 (EEO-1)
promulgated jointly by the Office of Federal Contract Compliance, the
Equal Employment Opportunity Commission and Plans for Progress or such
form as may hereafter be promulgated in its place if such prime
contractor or subcontractor: (i) Is not exempt from the provisions of
the rules and regulations in accordance with 41 CFR 60-1.5; (ii) has
100 or more employees: (iii) is a prime contractor or first-tier
subcontractor; and (iv) has a nonexempt contract, subcontract or
purchase order, serves as a depository of Government funds, or is a
financial institution which is an issuing and paying agent for U.S.
savings bonds and savings notes: Provided, That any subcontractor below
the first tier which performs construction work shall be required to
file such a report if it meets requirements of paragraphs (a)(1)(i),
(ii), and (iv) of this section.
(2) Each person required by paragraph (a)(1) of this section to
submit reports shall file such a report with the Department within 30
days after the award to him of a contract or subcontract, unless such
person has submitted such a report within 12 months preceding the date
of the award. Subsequent reports shall be submitted annually in
accordance with paragraph (a)(1) of this section, or at such other
intervals as the CCO or the Director may require. The Department, with
the approval of the Director, may extend the time for filing any report.
(3) The Director, the CCO, or the applicant, on his own motion, may
require a prime contractor or subcontractor to keep employment or other
records and to furnish, in the form requested, within reasonable limits,
such information as the Director, CCO or the applicant deems necessary
for the administration of the order.
(4) Failure to file timely, complete and accurate reports as required
constitutes noncompliance with the prime contractor's or subcontractor's
obligations under the equal opportunity clause and is grounds for the
imposition by the Department, the Director, an applicant, prime
contractor or subcontractor, of any sanctions as authorized by the order
and the rules and regulations. Any such failure shall be reported in
writing to the Director by the CCO as soon as practicable after it
occurs.
(b) Requirements for bidders or prospective contractors -- (1)
Previous reports. Each bidder or prospective prime contractor and
proposed subcontractor, where appropriate, shall state in the bid or in
writing at the outset of negotiations for the contract: (i) Whether it
has developed and has on file at each establishment affirmative action
programs pursuant to 41 CFR part 60-2; (ii) whether it has participated
in any previous contract or subcontract subject to the equal opportunity
clause and (iii) if so, whether it has filed with the Joint Reporting
Committee, the Director, an agency, or the Equal Employment Opportunity
Commission all reports due under the applicable filing requirements.
(2) Additional information. A bidder or prospective prime contractor
or proposed subcontractor shall be required to submit such information
as the CCO, the Deputy CCO, or the Director requests prior to the award
of the contract or subcontract. When a determination has been made to
award the contract or subcontract to a specific contractor, such
contractor shall be required, prior to award, or after the award, or
both, to furnish such other information as the Department, the
applicant, or the Director requests.
(c) Use of reports. Reports filed pursuant to this section shall be
used only in connection with the administration of the order and the
Civil Rights Act of 1964, or in furtherance of the purposes of the order
and said Act.
24 CFR 130.55 Compliance reviews.
(a) General. The purpose of a compliance review is to determine if
the prime contractor or subcontractor maintains nondiscriminatory hiring
and employment practices and is taking affirmative action to ensure that
applicants are employed and that employees are placed, trained,
upgraded, promoted, and otherwise treated during employment without
regard to race, color, religion, sex, or national origin. It shall
consist of a comprehensive analysis and evaluation of each aspect of the
aforementioned practices, policies, and conditions, resulting therefrom.
Where necessary, recommendations for appropriate sanctions shall be
made. Where deficiencies are found to exist, reasonable efforts shall
be made to secure compliance through conciliation and persuasion.
Before the contractor can be found to be in compliance with the order,
it must make a specific commitment, in writing, to correct any such
deficiencies. The commitment must include the precise action to be
taken and dates for completion. The time period allotted shall be no
longer than the minimum period necessary to effect such changes. Upon
approval of the Contract Compliance Officer, the appropriate Deputy, or
the Secretary of such commitment, the contractor may be considered in
compliance, on condition that the commitments are faithfully kept. The
contractor shall be notified that making such commitments does not
preclude future determinations of noncompliance based on a finding that
the commitments are not sufficient to achieve compliance.
(b) Regular compliance reviews. Each Deputy Contract Compliance
Officer shall institute a program of regular compliance reviews of those
contractors and subcontractors for which he is assigned responsibility.
(c) Special compliance review. The special compliance review of
bidders, applicants, offerors, contractors, or subcontractors will be
conducted at the request of the CCO or the Director, OFCC to determine
compliance or ability to comply with the order, the rules and
regulations, these rules and regulations and directives issued pursuant
thereto.
(d) Reports -- (1) Special compliance review reports. A special
compliance review report shall be provided to the CCO or the Director,
OFCC, as directed.
(2) Regular compliance review reports. A report of each compliance
review shall be forwarded to the CCO within 30 days after the regular
review is conducted unless otherwise provided.
(3) Preaward compliance review report. A written report of every
preaward compliance review required by the rules and regulations, or
otherwise required by the Director including findings, will be forwarded
to the Director by the CCO within 10 days after the award for a
postaward review.
(4) Additional reports. A written report of every other compliance
review or any other matter processed by the Department involving an
apparent violation of the equal opportunity clause shall be submitted to
the Director. Such report shall contain a brief summary of the
findings, including a statement of conclusions regarding the
contractor's compliance or noncompliance with the requirements of the
order, and a statement of the disposition of the case, including any
corrective action taken or recommended and any sanctions or penalties
imposed or recommended.
24 CFR 130.60 Complaint procedure.
(a) Who may file complaints. Any employee of any contractor or
applicant for employment with such contractor may, by himself or by an
authorized representative, file in writing a complaint of alleged
discrimination in violation of the equal opportunity clause. Such
complaint is to be filed not later than 180 days from the date of the
alleged discrimination, unless the time for filing is extended by the
CCO or the Director upon good cause shown.
(b) Where to file. Complaints may be filed with the Director of OFCC
or at any HUD Regional or Area Office, FHA Insuring Office or with the
CCO. Any HUD employee receiving a complaint shall forward the complaint
directly to the CCO or his designee. The CCO shall transmit a copy of
the complaint to the Director within 10 days after the receipt thereof.
(c) Contents of complaint. (1) The complaint should include the
name, address, and telephone number of the complainant, the name and
address of the prime contractor or subcontractor committing the alleged
discrimination, a description of the acts considered to be
discriminatory, and any other pertinent information which will assist in
the investigation and resolution of the complaint. The complaint shall
be signed by the complainant or his authorized representative.
(2) Where a complaint contains incomplete information, the CCO shall
seek promptly the needed information from the complaint. In the event
such information is not furnished to the CCO within 60 days of the date
of such request, the case may be closed.
(d) Investigations. For each complaint filed against a prime
contractor or subcontractor for which HUD is the Compliance Agency, the
CCO shall institute a prompt investigation and shall be responsible for
developing a complete case record. A complete case record consists of
the name and address of each person interviewed, and a summary of his
statement, copies or summaries of pertinent documents, and a narrative
summary of the evidence disclosed in the investigation as it relates to
each violation revealed. When a complaint is filed against a prime
contractor or subcontractor for which the Department is not the
compliance agency, the CCO shall transmit the complaint to the Director
for disposition.
(e) Resolution of complaints. (1) If the complaint investigation by
the CCO shows no violation of the equal opportunity clause, he shall so
inform the Director. The Director may request further investigation by
the CCO.
(2) If any complaint investigation or compliance review indicates a
violation of the equal opportunity clause, the matter should be resolved
by informal means whenever possible. Such informal means may include
the holding of a compliance conference. Each prime contractor and
subcontractor shall be advised that the resolution is subject to review
by the Director, and may be disapproved if he determines that such
resolution is not sufficient to achieve compliance.
(3) Where any complaint investigation or compliance review indicates
a violation of the equal opportunity clause and the matter has not been
resolved by informal means, the CCO with the approval of the Director
shall afford the contractor an opportunity for a hearing. If the final
decision reached in accordance with the provisions of 60-1.26 of the
rules and regulations is that a violation of the equal opportunity
clause has taken place, the CCO with the approval of the Director, may
cause the cancellation, termination, or suspension of any contract or
subcontract, cause a contractor to be debarred from further contracts or
subcontracts, or may impose such other sanctions as are authorized by
the order.
(4) When a prime contractor or subcontractor, without a hearing,
shall have complied with the recommendations or orders of the CCO or the
Director and believes such recommendations or orders to be erroneous, he
shall, upon filing a request therefor within 10 days of such compliance,
be afforded an opportunity for a hearing and review of the alleged
erroneous action by the CCO or the Director.
(5) For reasonable cause shown, the CCO may reconsider or cause to be
reconsidered any matter on his own motion or pursuant to a request.
(f) Report to the Director. Within 60 days from receipt of a
complaint or within such additional time as may be allowed by the
Director for a good cause shown, the CCO shall process a complaint and
submit to the Director the case record and summary report containing the
following information:
(1) Name and address of the complainant.
(2) Brief summary of findings, including a statement as to the CCO's
conclusions regarding the contractor's compliance or noncompliance with
the requirements of the equal opportunity clause.
(3) A statement of the disposition of the case, including any
corrective action taken and any sanctions or penalties imposed or,
whenever appropriate, the recommended corrective action and sanctions or
penalties.
24 CFR 130.65 Hearings and sanctions.
(a) The Secretary with the approval of the Director may convene
formal or informal hearings as he may deem appropriate for inquiring
into the status of compliance by any prime contractor or subcontractor
with the terms of the equal opportunity clause.
(b) The Secretary may propose or apply sanctions in the event of
noncompliance by a contractor or subcontractor with the requirements of
the equal opportunity clause, subject to the limitations of the rules
and regulations, particularly 60-1.27.
(c) The conduct of hearings and the proposal and application of
sanctions shall be in accordance with the requirements of the order and
of the rules and regulations.
24 CFR 130.70 Intimidation and interference.
The sanctions and penalties contained in subpart D of the order may
be exercised by the CCO or the Director against any prime contractor,
subcontractor or applicant who fails to take all necessary steps to
ensure that no person intimidates, threatens, coerces, or discriminates
against any individual for the purpose of interfering with the filing of
a complaint, furnishing information, or assisting or participating in
any manner in an investigation, compliance review, hearing, or any other
activity related to the administration of the order or any other
Federal, State, or local laws requiring equal employment opportunity.
24 CFR 130.75 Segregated facilities certificate.
Prior to the award of any nonexempt Government contract or
subcontract or federally assisted construction contract or subcontract,
the Department or the applicant shall require the prospective prime
contractor, and each prime contractor and subcontractor shall require
each subcontractor, to submit a certification, in the form approved by
the Director, that the prospective prime contractor or subcontractor
does not and will not maintain any facilities he provides for his
employees in a segregated manner, or permit his employees to perform
their services at any location under his control where segregated
facilities are maintained; and that he will obtain a similar
certification in the form approved by the Director, prior to the award
of any nonexempt subcontract.
24 CFR 130.80 Solicitations or advertisements for employees.
In solicitations or advertisements for employees placed by or on
behalf of a prime contractor or subcontractor, the requirements of
paragraph (2) of the equal opportunity clause shall be satisfied
whenever the prime contractor or subcontractor complies with any of the
following:
(a) States expressly in the solicitations or advertising that all
qualified applicants will receive consideration for employment without
regard to race, color, religion, sex, or national origin;
(b) Uses display or other advertising, and the advertising includes
an appropriate insignia prescribed by the Director. The use of the
insignia is considered subject to the provisions of 18 U.S.C. 701;
(c) Uses a single advertisement, and the advertisement is grouped
with other advertisements under a caption which clearly states that all
employers in the group assure all qualified applicants equal
consideration for employment without regard to race, color, religion,
sex, or national origin;
(d) Uses a single advertisement in which appears in clearly
distinguishable type the phrase an equal opportunity employer.
24 CFR 130.85 Access to record of employment.
Each prime contractor and subcontractor shall permit access during
normal business hours to his books, records, and accounts pertinent to
compliance with the order, and all rules and regulations promulgated
pursuant thereto, by the Department or the Director for purposes of
investigation to ascertain compliance with the equal opportunity clause
of the contract or subcontract. Information obtained in this manner
shall be used only in connection with the administration of the order
and the administration of the Civil Rights Act of 1964, and in
furtherance of the purposes of the order and that Act.
24 CFR 130.90 Notices to be posted.
Contractors and subcontractors required to do so by paragraphs (1)
and (3) of the equal opportunity clause shall post notices to be
provided by the CCO. Such notices shall be in compliance with the
requirements of 60-1.42 of the rules and regulations.
24 CFR 130.95 Program directives and instructions.
Appropriate program officials may issue such directives, procedures,
and instructions as they consider necessary to achieve equal employment
opportunity in programs administered by them, provided such issuances
are not inconsistent with the provisions of the order, the rules,
regulations, and directives of the Secretary of Labor or the Director,
and these regulations. A copy of such directives, procedures, and
instructions shall be submitted to the CCO for approval prior to
issuance.
24 CFR 130.100 Effective date.
The regulations contained in this part shall become effective
December 31, 1971, for all contracts, solicitations, invitations for
bids, or requests for proposals which shall be sent by the Department or
an applicant on or after said effective date and for all negotiated
contracts which have not been executed as of said effective date.
24 CFR 130.100 PART 135 -- EMPLOYMENT OPPORTUNITIES FOR BUSINESSES AND LOWER INCOME PERSONS IN CONNECTION WITH ASSISTED PROJECTS
24 CFR 130.100 Subpart A -- General
Sec.
135.1 Purpose and scope of part.
135.5 Definitions.
135.10 Delegation to Assistant Secretary for Fair Housing and Equal
Opportunity.
135.15 Determination of the area of a section 3 covered project.
135.20 Assurance of compliance with regulations.
135.25 Bidding and negotiation requirements.
135.30 Other applicant and recipient obligations.
135.35 Effectuation of applicant obligations in direct and indirect
relationships.
24 CFR 130.100 Subpart B -- Utilization of Lower Income Area Residents
as Trainees
135.40 General.
135.45 Establishing number of trainees.
135.50 Good faith effort.
24 CFR 130.100 Subpart C -- Utilization of Lower Income Area Residents
as Employees
135.55 General.
135.60 Good faith effort.
24 CFR 130.100 Subpart D -- Utilization of Business Located in or Owned
in Substantial Part by Persons Residing in the Area
135.65 General.
135.70 Development of an affirmative action plan.
24 CFR 130.100 Subpart E -- Participation in Approved Programs
135.75 Participation as evidence of compliance with section 3
requirements.
24 CFR 130.100 Subpart F -- Grievance and Compliance Review
135.80 Who may file grievance.
135.85 Content of grievance filings.
135.90 Form of grievance filings.
135.95 Place of filing.
135.100 Time of filing.
135.105 Processing of grievance filings.
135.110 Hearings.
135.115 Compliance reviews and procedures.
24 CFR 130.100 Subpart G -- Miscellaneous
135.120 Reporting and recordkeeping.
135.125 (Reserved)
135.130 Labor standards.
135.135 Sanctions.
135.140 (Reserved)
Authority: 12 U.S.C. 1701u; 42 U.S.C. 3535(d).
Source: 38 FR 29221, Oct. 23, 1973, unless otherwise noted.
24 CFR 130.100 Subpart A -- General
24 CFR 135.1 Purpose and scope of part.
(a) The regulations set forth in this part contain the procedures
established to carry out the Secretary's responsibilities under section
3 of the Housing and Urban Development of 1968 (12 U.S.C. 1701u).
(b) In the development of these regulations the Secretary has
consulted with the Secretary of Labor and the Administrator of the Small
Business Administration and mutual agreement has been reached with
respect to the coordination of employment and training efforts and
contracts awards under these regulations by the Department of Housing
and Urban Development, the Department of Labor, and the Small Business
Administration.
(c) The regulations as set forth in this part, particularly subparts
C and D of this part, shall serve to define to the greatest extent
feasible as that term is applied in section 3 of the Housing and Urban
Development Act of 1968.
(d) The Secretary will issue such further regulations in connection
with his responsibilities under section 3 of the Housing and Urban
Development Act of 1968, as he finds appropriate and may, as needed,
amplify any regulations issued pursuant to section 3, through
guidelines, handbooks, circulars, or other means.
(38 FR 29221, Oct. 23, 1973, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.5 Definitions.
As used in this part:
(a) Applicant means any entity seeking assistance for a project
including, but not limited to mortgagors, developers, local public
bodies, nonprofit or limited dividend sponsors, builders, or property
managers.
(b) Business concerns located within the section 3 covered project
area means those individuals or firms located within the relevant
section 3 covered project area as determined pursuant to 135.15, listed
on the Department's registry of eligible business concerns, and which
qualify as small under the small business size standards of the Small
Business Administration.
(c) Business concerns owned in substantial part by persons residing
in the section 3 covered project area means those business concerns
which are 51 percent or more owned by persons residing within the
relevant section 3 covered project as determined pursuant to 135.15,
owned by persons considered by the Small Business Administration to be
socially or economically disadvantaged, listed on the Department's
registry of eligible business concerns, and which qualify as small under
the small business size standards of the Small Business Administration.
(d) Contracting party means any entity which contracts with a
contractor for the performance of work in connection with a section 3
covered project.
(e) Contractor means any entity which performs work in connection
with a section 3 covered project.
(f) Department means the Department of Housing and Urban Development.
(g) Lower income resident of the area means any individual who
resides within that area of a section 3 covered project and whose family
income does not exceed 90 percent of the median income in the
Metropolitan Statistical Area (or the county, if not within an MSA) in
which the section 3 covered project is located.
(h) Political jurisdiction means a politically organized community
with a governing body having general governmental powers.
(i) Recipient means any entity who received assistance for a project
including, but not limited to, mortgagors, developers, local public
bodies, nonprofit or limited dividend sponsors, builders or property
managers.
(j) Secretary means the Secretary of Housing and Urban Development.
(k) Section 3 means section 3 of the Housing and Urban Development
Act of 1968, 12 U.S.C. 1701u.
(l) Section 3 clause means the contract provisions set forth in
135.20(b).
(m) Section 3 covered project means any nonexempt project assisted by
any program administered by the Secretary in which loans, grants,
subsidies, or other financial assistance are provided in aid of housing,
urban planning, development, redevelopment, or renewal, public or
community facilities, and new community development (except where the
financial assistance available under such program is solely in the form
of insurance or guaranty). Projects, contracts, and subcontracts,
connected with programs administered by the Secretary under sections 235
and 236 of the National Housing Act, as well as any Public Housing
program and which do not exceed $500,000 in estimated cost are exempted
from the requirements of this part, as is any subcontract of $50,000 or
under on such projects or contracts in excess of $500,000.
(n) Subcontractor means any entity (other than a person who is an
employee of the contractor) which has agreed or arranged with a
contractor to undertake a portion of the contractor's obligation or the
performance of work in connection with a section 3 covered project.
(38 FR 29221, Oct. 23, 1973, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.10 Delegation to Assistant Secretary for Fair Housing and
Equal Opportunity.
Except as otherwise provided in this part, the functions of the
Secretary under this part are delegated to the Assistant Secretary for
Fair Housing and Equal Opportunity. The Assistant Secretary for Fair
Housing and Equal Opportunity is further authorized to redelegate
functions and responsibilities to employees of the Department; Provided
however, that the authority to issue rules and regulations under
135.1(d) may not be redelegated.
(39 FR 29594, Aug. 16, 1974, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.15 Determination of the area of a section 3 covered project.
(a) The area of a section 3 covered project shall be determined in
accordance with the following statutory directives:
(1) For purposes of training and employment opportunities, the area
of the section 3 covered project shall be the area within the unit of
local government, or the metropolitan area or the nonmetropolitan
county, as determined by the HUD officials specified in paragraphs (b)
of this section, in which the project is located.
(2) For purposes of contracting opportunities, the area of the
section 3 covered project shall be the same metropolitan area or
nonmetropolitan county as the section 3 covered project.
(b) The Department's Regional Administrator or Field Office Manager,
as appropriate, shall determine the area of section 3 covered projects,
in accordance with guidelines and instructions issued by the Assistant
Secretary for Fair Housing and Equal Opportunity.
(38 FR 29221, Oct. 23, 1973, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.20 Assurance of compliance with regulations.
(a) Every contract or agreement for a grant, loan, subsidy, or other
direct financial assistance in aid of housing, urban planning,
development, redevelopment, or renewal, public or community facilities,
and new community development, entered into by the Department of Housing
and Urban Development with respect to a section 3 covered project shall
contain provisions requiring the applicant or recipient to carry out the
provisions of section 3, the regulations set forth in this part, and any
applicable rules and orders of the Department issued thereunder prior to
approval of its application for assistance for a section 3 covered
project.
(b) Every applicant, recipient, contracting party, contractor, and
subcontractor shall incorporate, or cause to be incorporated, in all
contracts for work in connection with a section 3 covered project, the
following clause (referred to as a section 3 clause):
A. The work to be performed under this contract is on a project
assisted under a program providing direct Federal financial assistance
from the Department of Housing and Urban Development and is subject to
the requirements of section 3 of the Housing and Urban Development Act
of 1968, as amended, 12 U.S.C. 1701u. Section 3 requires that, to the
greatest extent feasible, opportunities for training and employment be
given to lower income residents of the area of the section 3 covered
project, and contracts for work in connection with the project be
awarded to business concerns which are located in, or owned in
substantial part by persons residing, in the area of the section 3
covered project.
B. The parties to this contract will comply with the provisions of
said section 3 and the regulations issued pursuant thereto by the
Secretary of Housing and Urban Development set forth in 24 CFR part 135,
and all applicable rules and orders of the Department issued thereunder
prior to the execution of this contract. The parties to this contract
certify and agree that they are under no contractual or other disability
which would prevent them from complying with these requierments.
C. The contractor will send to each labor organization or
representative of workers with which he has a collective bargaining
agreement or other contract or understanding, if any, a notice advising
the said labor organization or workers' representative of his
commitments under this section 3 clause and shall post copies of the
notice in conspicuous places available to employees and applicants for
employment or training.
D. The contractor will include this section 3 clause in every
subcontract for work in connection with the project and will, at the
direction of the applicant for or recipient of Federal financial
assistance, take appropriate action pursuant to the subcontract upon a
finding that the subcontractor is in violation of regulations issued by
the Secretary of Housing and Urban Development, 24 CFR part 135. The
contractor will not subcontract with any subcontractor where it has
notice or knowledge that the latter has been found in violation of
regulations under 24 CFR part 135 and will not let any subcontract
unless the subcontractor has first provided it with a preliminary
statement of ability to comply with the requirements of these
regulations.
E. Compliance with the provisions of section 3, the regulations set
forth in 24 CFR part 135, and all applicable rules and orders of the
Department issued thereunder prior to the execution of the contract,
shall be a condition of the Federal financial assistance provided to the
project, binding upon the applicant or recipient for such assistance,
its successors, and assigns. Failure to fulfill these requirements
shall subject the applicant or recipient, its contractors and
subcontractors, its successors, and assigns to those sanctions specified
by the grant or loan agreement or contract through which Federal
assistance is provided, and to such sanctions as are specified by 24 CFR
part 135.
(38 FR 29221, Oct. 23, 1973, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.25 Bidding and negotiation requirements.
(a) Every applicant and recipient shall require prospective
contractors for work in connection with section 3 covered projects to
provide, prior to the signing of the contract, a preliminary statement
of work force needs (skilled, semiskilled, unskilled labor and trainees
by category) where known; where not known, such information shall be
supplied prior to the signing of any contract between contractors and
their subcontractors.
(b) When a bidding procedure is used to let the contract, the
invitation or solicitation for bids shall advise prospective contractors
of the requirements of these regulations. When the contract is let
pursuant to negotiation or methods other than formal bidding procedures,
prospective contractors shall be advised by the contracting party of the
requirements of these regulations as part of the contract
specifications.
24 CFR 135.30 Other applicant and recipient obligations.
Every applicant and recipient shall assist and actively cooperate
with the Secretary in obtaining the compliance of their contractors and
subcontractors with the requirements of these regulations, including
cooperation and assistance in distributing and collecting forms and
information, and in notifying contracting parties and contractors of
violations of these regulations, and shall refrain from entering into
any contract with any contractor after notification by the Department
that the contractor has been found in violation of these regulations
pursuant to 135.110(j).
24 CFR 135.35 Effectuation of applicant obligations in direct and
indirect relationships.
(a) Where the applicant for assistance under a section 3 covered
project and the recipient of such assistance are not one and the same,
the recipient shall be regarded as the successor in interest of the
applicant and shall have the same obligations as the applicant with
respect to compliance with these regulations. These obligations shall
be incorporated, specifically or by reference in the loan or grant
agreement or other contract or agreement through which the assistance is
provided to the recipient.
(b) Where the applicant or recipient itself will perform all or part
of the work in connection with a section 3 covered project within the
meaning of these regulations, with either permanent or temporary staff
by force account, it will provide the Department with all forms and
assurances required of a contractor or subcontractor by these
regulations prior to the execution of any loan or grant agreement or
other contract or agreement through which assistance is provided.
(c) Where the applicant, recipient or contractor sells, leases,
transfers or otherwise conveys land upon which work in connection with a
section 3 covered project within the meaning of these regulations is to
be performed (for example, under the Urban Renewal or Neighborhood
Development program), it shall include in each contract or subcontract
for work on such land a clause requiring the purchaser, lessee, or
redeveloper to assume the same obligations as a contractor for work
under section 3 of these regulations (including the incorporation of the
Assurance of Compliance language specified in 135.20).
(d) Each such purchaser, lessee, or redeveloper shall be relieved of
such obligations upon satisfactory completion of all work to be
performed under the terms of the redevelopment contract.
24 CFR 135.35 Subpart B -- Utilization of Lower Income Area Residents as Trainees
24 CFR 135.40 General.
Each applicant, recipient, contractor or subcontractor undertaking
work in connection with a section 3 covered project shall fulfill his
obligation to utilize lower income project area residents as trainees to
the greatest extent feasible by:
(a) Utilizing the maximum number of persons in the various training
categories in all phases of the work to be performed under the section 3
covered project; and
(b) Filling all vacant training positions with lower income project
area residents except for those training positions which remain unfilled
after a good faith effort has been made to fill them with eligible lower
income project area residents.
24 CFR 135.45 Establishing number of trainees.
(a) For the building construction occupations, the number of trainees
or apprentices for each occupation shall be that number which can
reasonably be utilized in each occupation on each phase of a section 3
covered project and in no event shall that number be less than the
number of trainees or apprentices determined pursuant to regulations
issued by the Secretary of Labor for each building construction
occupation.
(b) For nonconstruction occupations or for any building construction
occupations for which ratios are not determined pursuant to regulations
of the Secretary of Labor, the number of trainees for each occupation
shall be that number which can reasonably be utilized in each occupation
on each phase of a section 3 covered project. The applicant, recipient,
contractor, or subcontractor shall initially determine the maximum
number of trainees for each occupation and submit that determination
along with its justification to the Department.
24 CFR 135.50 Good faith effort.
(a) Each applicant, recipient, contractor, or subcontractor seeking
to establish that a good faith effort as required by 135.40 has been
made to fill all training positions with lower income area residents
shall, as a minimum, set forth evidence acceptable to the Secretary that
it has:
(1) Ascertained from the Department's Regional Administrator, Area
Office Director, or FHA Insuring Office Director having jurisdiction
over the section 3 covered project, the boundaries of the section 3
covered project area; and
(2) Attempted to recruit from the appropriate areas the necessary
number of lower income residents through: Local advertising media,
signs placed at the proposed site for the project, and community
organizations and public or private institutions operating within or
serving the project area such as Service Employment and Redevelopment
(SER), Opportunities Industrialization Center (OIC), Urban League,
Concentrated Employment Program, or the U.S. Employment Service.
(3) Maintained a list of all lower income area residents who have
applied either on their own or on referral from any source, and employ
such persons, if otherwise eligible and if a trainee vacancy exists. If
the contractor has no vacancies, the applicant, if otherwise eligible,
shall be listed for the first available vacancy.
(b) Any applicant, recipient, contractor, or subcontractor which
fills vacant 135.45 apprentice or trainee positions in its organization
immediately prior to undertaking work pursuant to a section 3 covered
project shall set forth evidence acceptable to the Secretary that its
actions were not an attempt to circumvent these regulations.
24 CFR 135.50 Subpart C -- Utilization of Lower Income Area Residents as Employees
24 CFR 135.55 General.
Each applicant, recipient, contractor or subcontractor undertaking
work in connection with a section 3 covered project shall fulfill his
obligation to utilize lower income project area residents as employees
to the greatest extent feasible by:
(a) Identifying the number of positions in the various occupational
categories including skilled, semiskilled, and unskilled labor, needed
to perform each phase of the section 3 covered project;
(b) Identifying of the positions identified in paragraph (a) of this
section, the number of positions in the various occupational categories
which are currently occupied by regular, permanent employees;
(c) Identifying, of the positions identified in paragraph (a) of this
section, the number of positions in the various occupational categories
which are not currently occupied by regular, permanent employees;
(d) Establishing, of the positions identified in paragraph (c) of
this section, a goal which is consistent with the purpose of this
subpart within each occupational category of the number of positions to
be filled by lower income residents of the section 3 covered project
area; and
(e) Making a good faith effort to fill all of the positions
identified in paragraph (d) of this section with lower income project
area residents.
(38 FR 29221, Oct. 23, 1973; 38 FR 31968, Nov. 20, 1973)
24 CFR 135.60 Good faith effort.
(a) Each applicant, recipient, contractor, or subcontractor seeking
to establish that a good faith effort as required by paragraph (e) of
135.55 has been made to fill all employment positions identified in
paragraph (d) of 135.55 with lower income project area residents shall,
as a minimum, set forth evidence acceptable to the Secretary that it
has:
(1) Ascertained from the Department's Regional Administrator, Area
Office Director, or FHA Insuring Office Director having jurisdiction
over the section 3 covered project the boundaries of the section 3
covered project area; and
(2) Attempted to recruit from the appropriate areas the necessary
number of lower income residents through: Local advertising media,
signs placed at the proposed site for the project, and community
organizations and public or private institutions operating within or
serving the project area such as Project Area Committees (PAC) in urban
renewal areas, Model Cities citizen advisory boards, Service Employment
and Redevelopment (SER), Opportunities Industrialization Center (OIC),
Urban League, Concentrated Employment Program, or the U.S. Employment
Service.
(b) Any applicant, recipient, contractor, or subcontractor which
fills vacant 135.55(d) employment positions in its organization
immediately prior to undertaking work pursuant to a section 3 covered
contract shall set forth evidence acceptable to the Secretary that its
actions were not an attempt to circumvent these regulations.
(c) When lower income resident workers apply, either on their own
initiative or on referral from any source, the recipient, contractor, or
subcontractor shall determine the qualifications of such persons and
shall employ such persons if their qualifications are satisfactory and
the contractor has openings. If the recipient, contractor, or
subcontractor is unable to employ the workers, such persons shall be
listed for the first available opening.
(38 FR 29221, Oct. 23, 1973; 38 FR 31968, Nov. 20, 1973)
24 CFR 135.60 Subpart D -- Utilization of Business Located in or Owned in Substantial Part by Persons Residing in the Area
24 CFR 135.65 General.
Each applicant, recipient, contractor, or subcontractor undertaking
work on a section 3 covered project shall assure that, to the greatest
extent feasible, contracts for work to be performed in connection with
the project are awarded to business concerns located within the section
3 covered project area or business concerns owned in substantial part by
persons residing in the section 3 covered project area. The Department,
in consultation with the Small Business Administration will establish
for the section 3 covered project a registry of business concerns which
meet the definition contained in 135.5 (b) and (c). Each applicant,
recipient, contractor, or subcontractor undertaking work in connection
with a section 3 covered project shall fulfill the obligations to
utilize business concerns located within or owned in substantial part by
persons residing in the section 3 covered project area by developing and
implementing an affirmative action plan.
(38 FR 29221, Oct. 23, 1973, as amended at 57 FR 40113, Sept. 2,
1992)
24 CFR 135.70 Development of an affirmative action plan.
In developing an affirmative action plan, each applicant, recipient,
contractor, and subcontractor preparing to undertake work pursuant to a
section 3 covered contract shall:
(a) Set forth the approximate number and dollar value of all
contracts proposed to be awarded to all businesses within each category
(type or profession) over the duration of the section 3 covered project
in question.
(b) Analyze the information set forth in paragraph (a) of this
section and the availability of eligible business concerns within the
project area doing business in professions or occupations identified as
needed in paragraph (a) of this section, and set forth a goal or target
number and estimated dollar amount of contracts to be awarded to the
eligible businesses and enterpreneurs within each category over the
duration of the section 3 covered project.
(c) Outline the anticipated program to be used to achieve the goals
for each business and/or professional category identified. This program
should include but not be limited to the following actions:
(1) Insertion in the bid documents, if any, of the affirmative action
plan of the applicant, recipient, contractor, or subcontractor letting
the contract; and
(2) Identification within the bid document, if any, of the applicable
section 3 project area.
(d) Indicate the anticipated process and steps which have been taken
and/or will be taken to secure the cooperation of contractors,
subcontractors, and unions in meeting the goals and carrying out the
affirmative action plan developed pursuant to this subpart.
(e) Take steps to insure that the appropriate business concerns
included in the Department's registry for the section 3 covered project
area are notified of pending contractual opportunities either personally
or through locally utilized media. All applicants, recipients,
contractors and subcontractors which so notify concerns included in the
Department's registry of available contracts and of opportunities to
submit bids shall satisfy all requirements of this part for notification
of business concerns located within the section 3 covered project area
and business concerns owned in substantial part by persons residing in
the section 3 covered project area.
(f) Take steps to insure that contracts which are typically let on a
negotiated rather than a bid basis in areas other than section 3 covered
project areas, are also let on a negotiated basis, whenever feasible,
when let in a section 3 covered project area.
(g) Where competitive bids are solicited, require the bidders to
submit their utilization goals, and their affirmative action plans for
accomplishing their goals, and in evaluating each bid, to determine its
responsiveness, carefully evaluate the bidders' submission to determine
whether the affirmative action plan proposed will accomplish the stated
goals.
(h) Where advantageous, seek the assistance of local officials of the
Department in preparing and implementing the affirmative action plan.
(i) In implementing its affirmative action plan, each applicant,
recipient, contractor, or subcontractor shall make a good faith effort
to achieve its goal or target number and estimated dollar amount of
contracts to be awarded to the eligible businesses and entrepreneurs
within each category over the duration of the section 3 covered project.
Each applicant, recipient, contractor, or subcontractor seeking to
establish that a good faith effort has been made to implement its
affirmative action plan, as required by this paragraph, shall as a
minimum, set forth evidence acceptable to the Secretary that it has
implemented the steps required by paragraphs (c), (d), (e), (f), (g),
and (h) of this section and has ascertained from the Department's
Regional Administrator, Area Office Director, or FHA Office Director
having jurisdiction over the section 3 covered project, the boundaries
of the section 3 covered project area, if available, and attempted to
recruit from the appropriate areas the necessary eligible business
concerns through: Local advertising media, signs placed at the proposed
site for the project; and community organizations and public or private
institutions operating within or serving the project area such as
Project Area Committees (PAC) in urban renewal areas, Model Cities
citizen advisory boards, Service Employment and Redevelopment (SER),
Opportunities Industrialization Center (OIC), Urban League, Concentrated
Employment Program, or the U.S. Employment Service, as well as the
Chamber of Commerce and any equivalent organizations in the section 3
covered project area.
24 CFR 135.70 Subpart E -- Participation in Approved Programs
24 CFR 135.75 Participation as evidence of compliance with section 3
requirements.
Any applicant, recipient, contractor, or subcontractor may fulfill
his obligations under subparts B, C, and D of this part, respectively,
to utilize lower income project area residents as trainees or employees
on section 3 covered projects, and to award contracts to business
concerns located in, or owned in substantial part by residents of,
section 3 covered project areas by presenting evidence satisfactory to
the Secretary that he is a cooperating participant in a federally
assisted or other public program approved by the Department of Housing
and Urban Development which provides training, employment, and/or
business opportunities to lower income persons and business concerns
which meet the definition in 135.5(b) and (c). The Secretary shall,
from time to time, make public a list of those training, employment,
and/or business opportunity programs approved by the Department.
24 CFR 135.75 Subpart F -- Grievance and Compliance Review
24 CFR 135.80 Who may file grievance.
Any lower income resident of the project area, for himself or as a
representative of persons similarly situated, seeking employment or
training opportunities with an applicant, recipient, contractor, or
subcontractor, or any business concern located in, or owned in
substantial part by persons residing within a project area seeking
contract opportunities from any applicant, recipient, contractor, or
subcontractor, for itself or as a representative of persons or firms
similarly situated, may personally or by an authorized representative
file a grievance alleging noncompliance with section 3, these
regulations, or obligations undertaken pursuant thereto.
24 CFR 135.85 Content of grievance filings.
(a) The grievance should include: (1) The name and address of the
grievant, (2) the name and address of the grievant's business, if
applicable, (3) the name and address of the applicant, recipient,
contractor, or subcontractor (in this subpart called respondent), (4) a
description of the acts or omissions giving rise to the grievance, and
(5) the corrective action sought.
(b) Where a grievance contains incomplete information, the Secretary
shall seek promptly the needed information from the grievant. In the
event such information is not furnished to the Secretary within sixty
(60) days of the date of such request, the grievance may be closed.
24 CFR 135.90 Form of grievance filings.
Each grievance shall be in writing and signed.
24 CFR 135.95 Place of filing.
A grievance may be filed by mailing it to the Assistant Secretary for
Equal Opportunity, Department of Housing and Urban Development,
Washington, DC 20410, or by presenting it at any Regional Office, Area
Office, or FHA Insuring Office of the Department. Any employee of the
Department receiving a grievance shall forward the same directly to the
Assistant Secretary for Equal Opportunity.
24 CFR 135.100 Time of filing.
A grievance must be filed not later than ninety (90) days from the
date of the action (or omission) upon which the grievance is based,
unless the time for filing is extended by the Secretary upon good cause
shown.
24 CFR 135.105 Processing of grievance filings.
(a) Upon receipt of a grievance a copy thereof shall be furnished the
respondent by certified mail or through personal service.
(b) The Secretary shall conduct an investigation of each grievance
filed, and shall give notice in writing to the grievant and the
respondent as to whether he intends to resolve it.
(c) Notwithstanding paragraphs (a) and (b) of this section, where the
allegations of a grievance on their face, or as amplified by the
statements of the grievant, disclose that the grievance is not timely
filed or otherwise fails to state a valid claim for relief under these
regulations or any other authority within the jurisdiction of the
Department, the Secretary may dismiss the grievance without further
action. To the extent that Executive Order 11246 relating to Equal
Opportunity in Employment applies to the subject matter of the
grievance, the procedures required by applicable regulations
implementing that order shall be followed.
(d) If the Secretary decides not to resolve a grievance, or to
dismiss it under paragraph (c) of this section, he shall advise the
grievant of the disposition of his grievance. Respondent shall also be
notified in any case where he has been served with a copy of the
grievance.
(e) Any party adversely affected by a determination under paragraph
(b) or (c) of this section may, within 5 days of receipt of a notice of
determination, request that the Secretary reconsider his action. Such
request for reconsideration will be granted only on the basis of
additional material evidence not previously available to the party
requesting reconsideration or for other good cause shown.
(f) If the Secretary decides to resolve a grievance, he shall
endeavor to eliminate or correct the matters complained of in the
grievance by informal methods of conference, conciliation, and
persuasion.
(g) In conciliating a grievance, the Secretary shall attempt to
achieve a just resolution of the grievance including: (1) Specific
relief for the grievant, (2) affirmative actions by the respondent to
relieve the effects of past violation and preclude the occurrence of
future violation, and (3) appropriate reporting requirements. Notice of
a proposed disposition of a grievance and of the terms of a proposed
settlement, if any, shall be given to the parties, or their
representatives, by the Secretary, in writing. If satisfactory, the
proposed settlement shall be signed by the grievant and the respondent
or their representatives and approved by the Secretary. The Secretary
may, from time to time, review compliance with the terms of any
settlement agreement and may, upon a finding of noncompliance, reopen
the grievance or take such enforcement action as is provided for under
the settlement agreement or as may otherwise be appropriate.
(h) Should a respondent fail or refuse to confer with the Secretary
or fail or refuse to make a good faith effort to resolve the grievance,
or should the Secretary find for any other reason that voluntary
agreement is not likely to result, the Secretary may terminate his
efforts to conciliate the dispute. In the latter event the parties
shall be notified promptly, in writing, that such efforts have been
unsuccessful.
(i) If the Department is unable to obtain voluntary compliance, the
Secretary shall advise the grievant and the parties in writing of his
proposed resolution of the grievance. Such resolution shall become
final and binding on the parties, unless within 15 days after the
receipt of notification, either party files with the Secretary a written
request for a hearing on the matter.
24 CFR 135.110 Hearings.
(a) Whenever a hearing is requested, reasonable notice shall be given
by registered or certified mail, return receipt requested, to the
parties. This notice shall advise the parties of the action proposed to
be taken, the specific provision under which the proposed action is to
be taken, and the matters of fact or law asserted as the basis for this
action. In addition, it shall either: (1) Fix a date not less than 20
days after the date of such notice within which the parties may request
of the Secretary that the matter be scheduled for hearing or (2) advise
the parties that the matter in question has been set down for hearing at
a stated time and place. The time and place so fixed shall be subject
to change for cause. The requesting party may waive a hearing and in
lieu thereof submit written information and argument for the record.
The failure of the requesting party to appear at a hearing for which a
date has been set shall be deemed to be a waiver of the right to a
hearing and consent to the making of a decision on the basis of such
information as is available.
(b) Hearings shall be held in or near the section 3 covered project
area in question, or at such other location as will serve the
convenience of parties and witnesses, at a time fixed by the Secretary.
Hearings shall be held before the Secretary or, at his discretion,
before a hearing examiner designated in accordance with 5 U.S.C. 3105
and 3344.
(c) In all proceedings under this section, the respondent and
grievant, if any, shall have the right to be represented by counsel.
(d) The hearing, decision, and any administrative review thereof
shall be conducted in conformity with 5 U.S.C. 554 through 557, and in
accordance with such rules of procedure issued by HUD as are proper
relating to the conduct of the hearing, the issuance of notice except
that provided in paragraph (a) of this section, the taking of testimony,
exhibits, arguments, and briefs, requests for findings, and other
related matters. HUD, the respondent, and the grievant, if any, shall
be entitled to introduce all relevant evidence on the issues as stated
in the notice of hearing or as determined by the officer conducting the
hearing at the outset of or during the hearing.
(e) Technical rules of evidence shall not apply to hearings conducted
pursuant to this paragraph but rules or principles designed to assure
production of the most credible evidence available and to subject
testimony to test by cross-examination shall be applied where deemed
reasonably necessary by the officer conducting the hearing. The hearing
officer may exclude irrelevant, immaterial, or unduly repetitious
evidence. All documents and other evidence offered or taken for the
record shall be open to examination by the Department of Housing and
Urban Development, the respondent, and the grievant, if any, and
opportunity shall be given to refute facts and arguments advanced on
either side of the issues. A transcript shall be made of the oral
evidence except to the extent the substance thereof is stipulated for
the record. All decisions shall be based upon the hearing record and
written findings shall be made.
(f) If the hearing is held by a hearing examiner, he shall either
render an initial decision, if so authorized, or certify the entire
record, including his recommended findings and proposed decision to the
Secretary for a final decision. A copy of such initial decision or
certification shall be mailed to the respondent and the grievant, or
their representative, by certified or registered mail, return receipt
requested. Where the initial decision is made by the hearing examiner,
the respondent or grievant may within 30 days of the mailing of such
notice of initial decision file with the Secretary exceptions to the
initial decision, with reasons therefor. In the absence of exception,
the Secretary may on his own motion, within 45 days after the initial
decision, serve on the respondent and grievant, a notice that he will
review the decision. Upon the filing of such exceptions or of such
notice of review, the Secretary shall review the initial decision and
issue his own decision thereon including the reasons therefor. If no
exception is taken or notice of review issued, the initial decision
shall constitute the final decision of the Secretary.
(g) Whenever a record is certified to the Secretary for decision or
he reviews the decision of a hearing examiner pursuant to paragraph (f)
of this section, or whenever the Secretary conducts the hearing, the
respondent and grievant shall be given reasonable opportunity to file
briefs or other written statements of their contentions, and a copy of
the final decision of the Secretary shall be given in writing to the
respondent, and to the grievant by certified or registered mail, return
receipt requested.
(h) Whenever a hearing is waived pursuant to paragraph (a) of this
section, a decision shall be made by the Secretary on the record and a
copy of such decision shall be given in writing to the respondent, and
to the grievant, by certified or registered mail, return receipt
requested.
(i) Each decision of a hearing examiner or the Secretary shall set
forth his ruling on each finding, conclusion, or exception presented,
and shall identify the requirement or requirements of section 3 of the
Housing and Urban Development Act of 1968 or the regulations which the
respondent has not complied with.
(j) The final decision may contain such terms, conditions, and other
provisions as are consistent with, and will effectuate the purposes of
section 3 and these regulations. The decision may also include
provisions designed to implement, maintain, and enforce sanctions set
forth in 135.135 until the respondent corrects its noncompliance and
satisfies the Secretary that it will fully comply with section 3 and
these regulations.
(k) The General Counsel shall represent the Department and shall
receive copies of all notices, decisions and other documents which are
forwarded to the parties.
(l) The applicant or recipient, if not a party, shall be invited to
participate in the hearing and shall receive copies of all notices,
decisions, and other documents which are forwarded to the parties.
24 CFR 135.115 Compliance reviews and procedures.
In order to determine whether the responsibilities imposed upon him
by section 3 and these regulations are being properly carried out, the
Secretary shall periodically conduct section 3 compliance reviews of
selected applicants, recipients, contractors, and subcontractors. A
compliance review shall consist of a comprehensive analysis and
evaluation of each aspect of the aforementioned section 3 policies, and
conditions resulting therefrom. Where deficiencies are found to exist,
reasonable efforts shall be made to secure compliance through the
conciliation process set forth in 135.105(g). Compliance reviews may be
conducted prior to award of contracts in any case where the Secretary
has reasonable grounds based on a substantial grievance, the
Department's own investigation, or other substantial evidence, to
believe that the applicant, recipient, contractor, or subcontractor will
be unable or unwilling to comply with section 3 and the provisions of
this part.
24 CFR 135.115 Subpart G -- Miscellaneous
24 CFR 135.120 Reporting and recordkeeping.
In order to insure that the Secretary is kept informed of the
progress being made by the applicant, recipient, contractor, and
subcontractor in meeting their obligations under these regulations, each
applicant, recipient, contractor, and subcontractor is required to:
(a) Maintain such records and accounts and furnish such information
and reports as are required by the Secretary under these regulations or
pursuant thereto and permit the Secretary access to books, records, and
premises for purposes of investigation in connection with a grievance or
to ascertain compliance with these regulations or the rules and orders
of the Department issued thereunder.
(b) Advise the Secretary within 15 days of the award of any contract
under a section 3 covered project of the steps which have been and will
be taken to comply with the requirements of subparts B, C, and D of this
part.
135.125 (Reserved)
24 CFR 135.130 Labor standards.
All labor standards applicable by statute, regulations, or other
administrative issuance shall apply to section 3 covered projects.
24 CFR 135.135 Sanctions.
Failure or refusal to comply and give satisfactory assurances of
future compliance with the requirements of this part shall be proper
basis for applying sanctions. Such sanctions as are specified by the
grant or loan agreement or contract through which Federal assistance is
provided, as well as such sanctions as are specified by the rules,
regulations, or applicable policy of the Department of Housing and Urban
Development governing the program under which Federal assistance to the
project is provided, shall be applied in accordance with the relevant
regulations. Any or all of the following actions may be taken, as
appropriate: cancellation, termination, or suspension in whole or in
part of the contract or agreement; a determination of ineligibility or
debarment from any further assistance or contracts under the program
with respect to which the failure or refusal occurred until satisfactory
assurance of future compliance has been received, and referral to the
Department of Justice for appropriate legal proceedings.
135.140 (Reserved)
24 CFR 135.135 PART 146 -- NONDISCRIMINATION ON THE BASIS OF AGE IN HUD PROGRAMS OR ACTIVITIES RECEIVING FEDERAL FINANCIAL ASSISTANCE
24 CFR 135.135 Subpart A -- General
Sec.
146.1 Purpose of the Age Discrimination Act of 1975.
146.3 Purpose of HUD's age discrimination regulation.
146.5 Applicability of part.
146.7 Definitions.
24 CFR 135.135 Subpart B -- Standards for Determining Age
Discrimination
146.11 Scope of subpart.
146.13 Rules against age discrimination.
24 CFR 135.135 Subpart C -- Duties of HUD Recipients
146.21 General responsibilities.
146.23 Notice to subrecipients.
146.25 Assurance of compliance and recipient assessment of age
distinctions.
146.27 Information requirements.
24 CFR 135.135 Subpart D -- Investigation, Settlement, and Enforcement
Procedures
146.31 Compliance reviews.
146.33 Complaints.
146.35 Mediation.
146.37 Investigation.
146.39 Enforcement procedures.
146.41 Prohibition against intimidation or retaliation.
146.43 Hearings, decisions, post-termination proceedings.
146.45 Exhaustion of administrative remedies.
146.47 Remedial and affirmative action by recipients.
146.49 Alternate funds disbursal procedure.
Authority: Age Discrimination Act of 1975 (42 U.S.C. 6103); sec.
7(d), Department of Housing and Urban Development Act (42 U.S.C.
3535(d)).
Source: 51 FR 45266, Dec. 17, 1986, unless otherwise noted.
24 CFR 135.135 Subpart A -- General
24 CFR 146.1 Purpose of the Age Discrimination Act of 1975.
The Age Discrimination Act of 1975 (the Act) prohibits discrimination
on the basis of age in programs or activities receiving Federal
financial assistance. The Act, however, permits federally assisted
programs and activities and recipients of Federal funds to continue to
use certain age distinctions and factors other than age which meet the
requirements of the Act and this part.
24 CFR 146.3 Purpose of HUD's age discrimination regulation.
The purpose of this part is to state HUD's policies and procedures
under the Age Discrimination Act of 1975, consistent with the
government-wide age discrimination regulation contained at 45 CFR part
90.
24 CFR 146.5 Applicability of part.
This part applies to each program or activity that receives Federal
financial assistance provided by HUD.
24 CFR 146.7 Definitions.
As used in this part, the term:
Act means the Age Discrimination Act of 1975, 42 U.S.C. 6101-07.
Action means any act, activity, policy, rule, standard, or method of
administration or the use of any policy, rule, standard, or method of
administration.
Age means how old a person is, or the number of elapsed years from
the date of a person's birth.
Age distinction means any action using age or an age-related term.
Age-related term means a word or words which necessarily imply a
particular age or range of ages (for example, children, adult, older
persons, but not student).
Federal financial assistance means any grant, entitlement, loan,
cooperative agreement, contract (other than a procurement contract or a
contract of insurance or guaranty), or any other arrangement by which
HUD provides or otherwise makes available assistance in the form of:
(a) Funds;
(b) Service of Federal personnel; or
(c) Real or personal property or any interest in or use of property,
including:
(1) Transfers or leases of property for less than fair market value
or for reduced consideration; and
(2) Proceeds from a subsequent transfer or lease of property if the
Federal share of its fair market value is not returned to the Federal
government.
HUD means the United States Department of Housing and Human
Development.
Recipient means any State or its political subdivisions; any
instrumentality of a State or its political subdivisions; any public or
private agency; any Indian tribe or Alaskan Native Village,
institution, organization, or other entity; or any person to which
Federal financial assistance is extended, directly or through another
recipient. Recipient includes any successor, assignee, or transferee,
but does not include the ultimate beneficiary of the assistance.
Secretary means the Secretary of HUD or his or her designee.
Subrecipient means any of the entities in the definition of recipient
to which a recipient extends or passes on Federal financial assistance.
A subrecipient is regarded as a recipient of Federal financial
assistance and has all the duties of a recipient set out in this part.
United States means the several States, the District of Columbia,
Puerto Rico, the Virgin Islands, American Samoa, Guam, Wake Island, the
Canal Zone, the Trust Territory of the Pacific Islands, the Northern
Marianas, and the territories and possessions of the United States.
24 CFR 146.7 Subpart B -- Standards for Determining Age Discrimination
24 CFR 146.11 Scope of subpart.
This subpart contains the standards that HUD will use to determine
whether an age distinction, or a factor other than age that may have a
disproportionate effect on persons of different ages, is prohibited.
24 CFR 146.13 Rules against age discrimination.
(a) The rules stated in this paragraph are limited by the exceptions
contained in paragraphs (b) and (c) of this section.
(1) General rule. No person in the United States shall, on the basis
of age, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any program or activity receiving
Federal financial assistance.
(2) Specific rules. A recipient may not, in any program or activity
receiving Federal financial assistance, directly or through contracting,
licensing, or other arrangements, use age distinctions or take any other
actions that have the effect, on the basis of age, of:
(i) Excluding individuals from, denying them the benefits of, or
subjecting them to discrimination under, a program or activity receiving
Federal financial assistance; or
(ii) Denying or limiting individuals in their opportunity to
participate in any program or activity receiving Federal financial
assistance.
(3) The specific forms of age discrimination listed in paragraph
(a)(2) of this section do not necessarily constitute a complete list.
(b) Exceptions for normal operation or statutory objective of any
program or activity. A recipient is permitted to take an action
otherwise prohibited by paragraph (a) of this section if the action
reasonably takes into account age as a factor necessary to the normal
operation or the achievement of any statutory objective of a program or
activity. An action reasonably takes into account age as a factor
necessary to the normal operation or the achievement of any statutory
objective of a program or activity, if:
(1) Age is used as a measure or approximation of one or more other
characteristics; and
(2) The other characteristics must be measured or approximated in
order for the normal operation of the program or activity to continue,
or to achieve any statutory objective of the program or activity; and
(3) The other characteristics can be reasonably measured or
approximated by the use of age; and
(4) The other characteristics are impractical to measure directly on
an individual basis.
(c) Exceptions for reasonable factors other than age. A recipient is
permitted to take action otherwise prohibited by paragraph (a) of this
section if the action is based on a factor other than age, even though
that action may have a disproportionate effect on persons of different
ages. An action may be based on a factor other than age only if the
factor bears a direct and substantial relationship to the normal
operation of the program or activity or the achievement of a statutory
objective.
(d) Burden of proof. The burden of proving that an age distinction
or other action falls within an exception described in paragraph (b) or
(c) of this section is on the recipient of Federal financial assistance.
(e) For the purposes of paragraphs (b) and (c), normal operation
means the operation of a program or activity without significant changes
that would impair its ability to meet its statutory objectives.
Statutory objectives means any purpose of a program or activity
expressly stated in any Federal, State, or local statute adopted by an
elected, general purpose legislative body.
(f) Notwithstanding paragraph (b) of this section, if a recipient
operating a program provides special benefits to the elderly or to
children, such use of age distinctions shall be presumed to be necessary
to the normal operation of the program.
24 CFR 146.13 Subpart C -- Duties of HUD Recipients
24 CFR 146.21 General responsibilities.
Each recipient has primary responsibility to ensure that its programs
and activities that receive Federal financial assistance from HUD comply
with the provisions of the Act, the government-wide regulation, and this
part, and shall take steps to eliminate violations of the Act. A
recipient also has responsibility to maintain records, provide
information, and to afford HUD access to its records to the extent HUD
finds necessary to determine whether a program or activity receiving
Federal financial assistance from HUD is in compliance with the Act and
this part.
(Approved by the Office of Management and Budget under control number
2529-0030)
(51 FR 45266, Dec. 17, 1986, as amended at 52 FR 7408, Mar. 11, 1987)
24 CFR 146.23 Notice of subrecipients.
Whenever a recipient passes Federal financial assistance from HUD to
subrecipients, the recipient shall provide the subrecipient with written
notice of its obligations under this part and the recipient will remain
responsible for the subrecipient's compliance with respect to programs
and activities receiving Federal financial assistance from HUD.
24 CFR 146.25 Assurance of compliance and recipient assessment of age
distinctions.
(a) Each recipient of Federal financial assistance from HUD shall
sign a written assurance as specified by HUD that it will comply with
the Act and this part with respect to programs and activities receiving
Federal financial assistance from HUD.
(b) As part of a compliance review under 146.31 or an investigation
under 146.37, HUD may require a recipient employing the equivalent of
15 or more employees to complete, in a manner specified by the Secretary
or Secretary's designee, a written self-evaluation of any age
distinction imposed in its program or activity receiving Federal
financial assistance from HUD, so that HUD may have to assess the
recipient's compliance with the Act. Whenever an assessment indicates a
violation of the Act or this part, the recipient shall take corrective
action to remedy the violation.
(Approved by the Office of Management and Budget under control number
2529-0030)
(51 FR 45266, Dec. 17, 1986, as amended at 52 FR 7408, Mar. 11, 1987)
24 CFR 146.27 Information requirements.
In order to make it possible for HUD to determine whether recipients
are in compliance with the Act and this part, each recipient shall:
(a) Keep records in a form and containing information that HUD
determines is necessary;
(b) Make information available to HUD upon request;
(c) Permit reasonable access by HUD to the books, records, accounts
and other recipient facilities and sources of information.
(Approved by the Office of Management and Budget under control number
2529-0030)
(51 FR 45266, Dec. 17, 1986, as amended at 52 FR 7408, Mar. 11, 1987)
24 CFR 146.27 Subpart D -- Investigation, Settlement, and Enforcement Procedures
24 CFR 146.31 Compliance reviews.
(a) HUD may conduct pre-award reviews to determine whether programs
or activities submitted for HUD assistance are consistent with the age
distinctions set forth at 146.13(b).
(b) If a pre-award review indicates that the proposed programs or
activities are not consistent with the age distinctions set forth at
146.13(b), the application will be returned to the applicant for
additional information or clarification or for correction consistent
with this part.
(c) HUD may conduct compliance reviews of recipients that will enable
it to investigate and correct violations of this part. HUD may conduct
these reviews even in the absence of a complaint against a recipient.
The review may be as comprehensive as necessary for HUD to determine
whether a violation has occurred.
(d) If a compliance review indicates a violation, HUD will attempt to
achieve voluntary compliance. If voluntary compliance cannot be
achieved, HUD may begin enforcement procedures as provided in 146.39.
24 CFR 146.33 Complaints.
(a) Any person, individually or as a member of a class or on behalf
of others, may file a complaint with HUD alleging discrimination
prohibited by the Act. A complainant shall file a complaint within 180
days from the date the complainant first had knowledge of the alleged
act of discrimination. However, for good cause, HUD may extend this
time limit. The filing date for a complaint will be the date upon which
the complaint is deemed sufficient to be processed.
(b) HUD shall facilitate the filing of complaints and shall take the
following measures:
(1) Accept as a sufficient complaint any written legible statement
which is signed by the complainant and which identifies the parties
involved, the date the complainant first had knowledge of the alleged
violation, and describes generally the alleged prohibited action or
practice;
(2) Freely permit a complainant to add information to the complaint
to meet the requirements of a sufficient complaint;
(3) Widely disseminate information regarding the obligations of
recipients under the Act and this part;
(4) Notify the complainant and the recipient of their rights under
the complaint process, including the right to have a representative at
all stages of the complaint process; and
(5) Notify the complainant and the recipient of their right to
contact HUD for information and assistance regarding the complaint
resolution process.
(c) HUD will return to the complainant any complaint determined to be
outside the coverage of this part, and shall state the reasons why it is
outside the coverage.
(Approved by the Office of Management and Budget under control number
2529-0030)
(51 FR 45266, Dec. 17, 1986, as amended at 52 FR 7408, Mar. 11, 1987)
24 CFR 146.35 Mediation.
(a) HUD shall refer to the Federal Mediation and Conciliation
Service, a mediation agency designated by the Secretary of Health and
Human Services, all complaints that:
(1) Fall within the coverage of this part, unless the age distinction
complained of is clearly with an exeption; and
(2) Contain all information necessary for further processing.
(b) Both the complainant and the recipient shall participate in the
mediation process to the extent necessary to reach an agreement or make
an informal judgment that an agreement is not possible. There should be
at least one meeting by each party with the mediator during the
mediation process. However, the recipient and the complainant need not
meet with the mediator at the same time.
(c) If the complainant and the recipient reach an agreement, the
mediator shall prepare a written statement of the agreement and have the
complainant and recipient sign it. The mediator shall send a copy of
the agreement to HUD. HUD will take no further action on the complaint
unless the complainant or the recipient fails to comply with the
agreement.
(d) The mediator shall protect the confidentiality of information
obtained in the course of the mediation process. No mediator shall
testify in any adjudicative proceeding, produce any document, or
othewise disclose any information obtained in the course of the
mediation process without the prior approval of the head of the
mediation agency.
(e) HUD shall use the mediation process for a maximum of 60 days
after receiving a complaint. Mediation ends if:
(1) 60 days elapse from the time HUD receives the complaint; or
(2) Before the end of the 60-day period, an agreement is reached; or
(3) Before the end of the 60-day period, the mediator determines that
an agreement cannot be reached.
This 60-day period may be extended by the mediator, with the
concurrence of HUD, for not more than an additional 30 days if the
mediator determines that it is likely that an agreement will be reached
during such extended period.
24 CFR 146.37 Investigation.
(a) Investigation and settlement following mediation. (1) HUD shall
investigate complaints that are unresolved after mediation or are
reopened because of an alleged violation of a mediation agreement.
(2) In the investigation of complaints filed under this part, HUD
will establish facts through such methods as discussion with the
complainant and recipient and the review of documents in the possession
of either party. HUD may also seek the assistance of any applicable
State agency. Where possible, HUD will settle the complaint on terms
that are mutually agreeable to the parties.
(3) Settlements shall be in writing and signed by the parties and by
an authorized HUD official.
(4) A settlement shall not affect the initiation or continuation of
any other enforcement effort of HUD, including compliance reviews or
investigation of other complaints involving the recipient.
(5) A settlement reached under this paragraph (a) of this section is
an agreement to resolve an alleged violation of the Act to the
satisfaction of the parties involved, and does not constitute a finding
of discrimination against the recipient.
(b) Failure of settlement. If HUD cannot resolve the complaint
through settlement, it may make a formal determination that the Act or
this part has been violated and begin enforcement procedures, as
provided in 146.39. HUD shall inform the recipient and complainant in
writing that the matter cannot be resolved through settlement.
24 CFR 146.39 Enforcement procedures.
(a) HUD may enforce the Act this regulation by:
(1) Termination of a recipient's financial assistance from HUD under
the program or activity involved, if the recipient has violated the Act
or this part. The determination of the recipient's violation may be
made only after a recipient has had an opportunity for a hearing on the
record before an Administrative Law Judge. If the financial assistance
consists of a Community Development Block Grant, the requirements of
section 109(b) of the Housing and Community Development Act of 1974, 42
U.S.C. 5309, must also be satisfied before the termination of financial
assistance. Cases settled in mediation or before hearing will not
involve termination of a recipient's Federal financial assistance from
HUD.
(2) Any other means authorized by law, including, but not limited to:
(i) Referral to the Department of Justice for proceedings to enforec
any rights of the United States or obligations of the recipient created
by the Act or this part;
(ii) Use of any requirement of, or referral to, any Federal, State or
local government agency that will have the effect of correcting a
violation of the Act or this part.
(b) Whenever the Secretary determines that a State or unit of general
local government which is a recipient of Federal financial assistance
under Title I of the Housing and Community Development Act of 1974, 42
U.S.C. 5301-5317, has failed to comply with requirements of the Age
Discrimination Act or this part with respect to a program or activity
funded in whole or in part with such assistance, he or she shall notify
the Governor of such State or the chief executive officer of such unit
of general local government of the noncompliance and shall request the
Governor or chief executive officer to secure compliance. If within a
reasonable period of time, not to exceed 60 days, the Governor or chief
executive officer fails or refuses to secure compliance, the Secretary
is authorized to take the action specified in (a) of this section,
exercise the powers and functions provided for in section 111(a) of the
Housing and Community Act of 1974, 42 U.S.C. 5311(a), or take such other
action as may be provided by law.
(c) HUD shall limit any termination under 146.35 to the particular
recipient and particular program or activity HUD finds to be in
violation of this part. HUD shall not base any part of a termination on
a finding with respect to any program or activity of the recipient which
does not receive Federal financial assistance from HUD.
(d) HUD shall take no action under paragraph (a) of this section
until:
(1) The Secretary has advised the recipient of its failure to comply
with the Act or this part and has determined that voluntary compliance
cannot be achieved.
(2) Thirty days have have elapsed after the Secretary has submitted a
written report of the circumstances and grounds of the action to the
committees of the Congress having legislative jurisdiction over the
Federal program or activity involved. A report shall be filed whenever
any action is taken under paragraph (a) of this section.
(e) (1) The Secretary may defer the provision of new Federal
financial assistance to a recipient when termination proceedings under
this section are initiated.
(2) New financial assistance from HUD includes all assistance for
which HUD requires an application, approval, or submissions under the
Community Development Block Grant program including renewal or
continuation of existing activities, or authorization of new activities,
during the deferral period. New financial assistance from HUD does not
include increases in funding as a result of changed computation for
formula awards or assistance approved before the beginning of a hearing
under this section.
(3) HUD shall not impose a deferral until the recipient has received
a notice of an opportunity for a hearing under this section. HUD shall
not continue a deferral for more than 60 days unless a hearing has begun
within that time or the time for beginning the hearing has been extended
by mutual consent of the recipient and the Secretary. HUD shall not
continue a deferral for more than 30 days after the close of the
hearing, unless the hearing results in a finding that the recipient has
violated that Act or this part.
24 CFR 146.41 Prohibition against intimidation or retaliation.
A recipient may not engage in acts of intimidation or retaliation
against any person who:
(a) Attempts to assert a right protected by this part; or
(b) Cooperates in any mediation, investigation, hearing, or other
part of HUD's investigation, settlement, and enforcement process.
24 CFR 146.43 Hearings, decisions, post-termination proceedings.
Certain HUD procedural provisions applicable to the enforcement of
Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d-1 shall apply
to HUD enforcement of this part. These provisions are contained in 24
CFR 1.9 through 1.12 and 24 CFR part 2.
24 CFR 146.45 Exhaustion of administrative remedies.
(a) A complainant may file a civil action following the exhaustion of
administrative remedies under the Act. Administrative remedies are
exhausted if:
(1) 180 days have elapsed since the complainant filed the complaint
and HUD had made no finding with regard to the complaint; or
(2) HUD issues any finding in favor of the recipient.
(b) If HUD fails to make a finding within 180 days or issues a
finding in favor of the recipient, HUD shall:
(1) Promptly advise the complainant of this fact;
(2) Advise the complainant of his or her right to bring a civil
action for injunctive relief; and
(3) Inform the complainant:
(i) That he or she may bring a civil action only in a United States
District Court for the district in which the recipient is located or
transacts business;
(ii) That a complianant prevailing in a civil action has the right to
be awarded the costs of the action, including reasonable attorney's
fees, but that the complainant must demand these costs in the complaint;
(iii) That before commencing the action, the complainant must give 30
days' notice by registered mail to the Secretary of HUD, the Secretary
of Health and Human Services, the Attorney General of the United States,
and the recipient;
(iv) That the notice must state: the alleged violation of the Act,
the relief requested, the court in which the complainant is bringing the
action, and whether or not attorney's fees are demanded in the event the
complainant prevails; and
(v) That the complainant may not bring an action if the same alleged
violation of the Act by the same recipient is the subject of a pending
action in any court of the United States.
24 CFR 146.47 Remedial and affirmative action by recipients.
(a) Where the Secretary finds that a recipient has unlawfully
discriminated on the basis of age, the recipient shall take any action
that the Secretary may require to overcome the effects of the
discrimination. If another recipient exercises control over a
subrecipient that has unlawfully discriminated, the Secretary may
require both recipients to take remedial action.
(b) Even in the absence of a finding of discrimination, a recipient
may take affirmative action to overcome the effects of conditions that
resulted in limited participation in the recipient's program or activity
on the basis of age.
(c) If a recipient operating a program which serves the elderly or
children in addition to persons of other ages provides special benefits
to the elderly or children, the provision of those benefits shall be
presumed to be voluntary affirmative action, provided that it does not
have the effect of excluding otherwise eligible persons from
participation in the program.
24 CFR 146.49 Alternate funds disbursal procedure.
(a) Except as otherwise provided in this paragraph and to the extent
authorized by law, the Secretary may redisburse funds withheld or
terminated under this part directly to an alternate recipient, including
any public or non-profit private organization or agency, State or
political subdivision of the State. Under title I of the Housing and
Community Development Act of 1974, 42 U.S.C. 5301, funds withheld
because of a reduction or withdrawal of a recipient's Community
Development Block Grant must be reallocated in the succeeding fiscal
year, in accordance with the applicable regulations governing that
program.
(b) The Secretary shall require the alternate recipient to
demonstrate:
(1) The ability to comply with the regulations; and
(2) The ability to achieve the goals of the Federal statute
authorizing the program or activity.
24 CFR 146.49 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Title 24 -- Housing and Urban Department
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
24 CFR 146.49 24 CFR SUBTITLE B, CHAPTER I (PARTS 100 TO 146)
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, OFFICE OF ASSISTANT
SECRETARY FOR EQUAL OPPORTUNITY
24 CFR
American National Standards Institute
1430 Broadway, New York, New York 10018
ANSI A117.1 -- 1986 Providing Accessibility and Usability for
Physically Handicapped People Part 100
Chap.
24 CFR 146.49 Table of CFR Titles and Chapters
24 CFR 146.49 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
24 CFR 146.49 Title 2 -- (Reserved)
24 CFR 146.49 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
24 CFR 146.49 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
24 CFR 146.49 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Counsel (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
24 CFR 146.49 Title 6 (Reserved)
24 CFR 146.49 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
XLII Rural Development Administration, Department of Agriculture
(Part 4284 )
24 CFR 146.49 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
24 CFR 146.49 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
24 CFR 146.49 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
24 CFR 146.49 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
24 CFR 146.49 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Thrift Depositor Protection Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
24 CFR 146.49 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
24 CFR 146.49 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
24 CFR 146.49 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
24 CFR 146.49 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
24 CFR 146.49 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
24 CFR 146.49 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
24 CFR 146.49 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
24 CFR 146.49 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
24 CFR 146.49 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
III Office of National Drug Control Policy (Parts 1400 -- 1499)
24 CFR 146.49 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
24 CFR 146.49 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
24 CFR 146.49 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
24 CFR 146.49 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
24 CFR 146.49 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
24 CFR 146.49 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
24 CFR 146.49 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
24 CFR 146.49 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200 -- 1299)
XII Federal Mediation and Conciliation Service (Parts 1400 -- 1499)
XIV Equal Employment Opportunity Commission (Parts 1600 -- 1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
24 CFR 146.49 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
24 CFR 146.49 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
24 CFR 146.49 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200 -- 1299)
XVI Selective Service System (Parts 1600 -- 1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
XXIX Presidential Commission on the Assignment of Women in the Armed
Forces (Part 2900)
24 CFR 146.49 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
24 CFR 146.49 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
24 CFR 146.49 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
24 CFR 146.49 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900 -- 999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
24 CFR 146.49 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400 -- 499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
24 CFR 146.49 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
24 CFR 146.49 Title 39 -- Postal Service
I United States Postal Service (Parts 1 -- 999)
III Postal Rate Commission (Parts 3000 -- 3099)
24 CFR 146.49 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500 -- 1599)
24 CFR 146.49 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
24 CFR 146.49 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
24 CFR 146.49 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
24 CFR 146.49 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
24 CFR 146.49 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Administration
for Children and Families, Department of Health and Human Services
(Parts 200 -- 299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Administration for Children and Families, Department of Health
and Human Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Administration for Children and
Families Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Administration for Children and
Families, Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (Parts
2200 -- 2299)
XXIV James Madison Memorial Fellowship Foundation (Parts 2400 --
2499)
XXV Commission on National and Community Service (Parts 2500 -- 2506)
24 CFR 146.49 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
24 CFR 146.49 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
24 CFR 146.49 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
20 Nuclear Regulatory Commission (Parts 2000 -- 2099)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900 -- 9999)
24 CFR 146.49 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Federal Transit Administration, Department of Transportation
(Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
24 CFR 146.49 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
24 CFR 146.49 CFR Index and Finding Aids Subject/Agency Index
List of Agency Prepared Indexes Parallel Tables of Statutory Authorities
and Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts Alphabetical List of Agencies
Appearing in the CFR
24 CFR 146.49 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on National and Community Service 45, XXV
Committee for Purchase from People who are Blind or Severely Disabled
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Farm Credit Administration 12, VI
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Transit Administration 49, VI
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Children and Families, Administration for 45, II, III, IV, X
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
James Madison Memorial Fellowship Foundation 45, XXIV
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National and Community Service, Commission on 45, XXV
National Credit Union Administration 12, VII
National Drug Control Policy, Office of 21, III
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I; 48, XX
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Office of National Drug Control Policy 21, III
Office of Navajo and Hopi Indian Relocation 25, IV
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Commission on the Assignment of Women in the Armed
Forces 32, XXIX
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Depositor Protection Oversight Board 12, XV
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Federal Transit Administration 49, VI
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Administration 15, XII
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
24 CFR 146.49 24 CFR (4-1-93 Edition)
24 CFR 146.49 List of CFR Sections Affected
24 CFR 146.49 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986, are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period before January 1, 1986, see the ''List of CFR Sections
Affected, 1949-1963, 1964-1972, and 1973-1985'' published in seven
separate volumes.
24 CFR 146.49 1986
24 CFR
51 FR
Page
Subtitle A
13 Added 19830
Authority citation corrected 43608
13.1 Corrected 43608
15 Authority citation revised; section authority citations removed
20479
15.21 (a)(4) revised; (c) added; interim 20479
(a)(4) and (c) revised; OMB number (effective date pending) 44286
15.31 Revised; eff. 5-7-86 10617
15 Appendix added 20479
Appendix removed (effective date pending) 44286
16 Appendix A revised; eff. 5-7-86 10195
17 Authority citation revised; subpart authority citations removed
39749
17.150 -- 17.161 Undesignated center heading added (effective date
pending) 39750
17.150 Added (effective date pending) 39750
17.151 Added (effective date pending) 39750
17.152 Added (effective date pending) 39750
17.153 Added (effective date pending) 39750
17.154 Added (effective date pending) 39750
17.155 Added (effective date pending) 39750
17.156 Added (effective date pending) 39751
17.157 Added (effective date pending) 39751
17.158 Added (effective date pending) 39751
17.159 Added (effective date pending) 39751
17.160 Added (effective date pending) 39751
17.161 Added (effective date pending) 39751
20.15 -- 20.25 (Subpart C) Removed 28365
27.25 (a)(3)(ii) revised 21518
35 Authority citation revised; section authority citations removed
27787
35.1 -- 35.5 (Subpart A) Revised 27787
35.20 -- 35.24 (Subpart C) Revised 27788
35.25 Removed 27788
35.54 Revised 27788
35.56 (a) (1), (2), and (3) revised; (a)(4) removed 27789
35 Appendixes I and II removed 27789
42 Revised; eff. 5-1-86 7011, 7022
42.10 Correctly designated 12848
42.102 OMB number 6912
42.103 OMB number 6912
42.104 OMB number 6912
42.106 OMB number 6912
42.107 OMB number 6912
42.203 OMB number 6912
42.205 OMB number 6912
42.207 OMB number 6912
43 Authority citation revised; section authority citations removed
7012
43.1 -- 43.16 (Subpart A) Removed; eff. 5-1-86 7012
43.28 Introductory text amended 6912
44 Revision confirmed (effective date pending) 30480
Eff. 10-8-86 37567
Chapter I
111.108 (d) addition confirmed (effective date pending) 30480
Eff. 10-8-86 37567
115 List of jurisdictions 595, 11577, 36222
146 Added (effective date pending) 45266
24 CFR 146.49 1987
24 CFR
52 FR
Page
Subtitle A
0 Revised 27113
14 Added 27126
15 Authority citation and heading revised 12160
15.1 (g), (h) and (i) added 12160
15.2 Revised 12160
15.21 (a)(4) and (c) revised; OMB number; eff. 3-2-87 3795
15.72 Revised 12160
15.73 Revised 12160
15.74 Revised 12161
15.81 (Subpart I) Redesignated as 15.91 (Subpart J) 12161
15.81 -- 15.86 (Subpart I) Added 12161
15.91 (Subpart J) Redesignated from 15.81 (Subpart I) 12161
15 Appendix removal; eff. 3-2-87 3795
17.60 -- 17.161 (Subpart C) Authority citation revised 35414
17.65 (a) and (b) introductory text and (1) revised 35414
17.150 -- 17.161 Undesignated center heading added; eff. 3-2-87 3795
17.150 Added; eff. 3-2-87 3795
17.151 Added; eff. 3-2-87 3795
17.152 Added; eff. 3-2-87 3795
17.153 Added; eff. 3-2-87 3795
17.154 Added; eff. 3-2-87L3795
17.155 Added; eff. 3-2-87 3795
17.156 Added; eff. 3-2-87 3795
17.157 Added; eff. 3-2-87 3795
17.158 Added; eff. 3-2-87 3795
17.159 Added; eff. 3-2-87 3795
17.160 Added; eff. 3-2-87 3795
17.161 Added; eff. 3-2-87 3795
20.10 Introductory text revised 27130
24 Revised; interim (effective date pending) 37116
Eff. 11-16-87 42634
25.9 (e) revised 15304
35 Authority citation revised 1890
35.24 Revised 1890
35.56 (a)(1) revised 1891
35.70 (Subpart G) Added 1891
40 Appendix A Note revised; eff. 5-5-87 9477
Chapter I
115 List of jurisdictions 15304
Determination 41419
146.21 OMB number; eff. 4-10-87 7808
146.25 OMB number; eff. 4-10-87 7408
146.27 OMB number; eff. 4-10-87 7408
146.83 OMB number; eff. 4-10-87 7408
24 CFR 146.49 1988
24 CFR
53 FR
Page
Subtitle A
8 Added (effective date pending in part) 20233
8.4 (b)(1)(v) corrected 28115
8.21 (c)(1)(iii) corrected 28115
8.24 (b) corrected 28115
8.30 Corrected 28115
8.56 (c)(6) heading, (g) introductory text and (2), (h)(1), and (j)
(1) and (2) corrected 28115
(i) corrected 34634
8.57 (a) introductory text corrected 28115
8.67 (o) corrected 28115
8.70 (c) corrected 28115
15 Authority citation revised 37547
15.14 Revised (effective date pending) 37547
15.15 Added (effective date pending) 37548
15.16 Added (effective date pending) 37549
15.17 Added (effective date pending) 37549
15.18 Added (effective date pending) 37549
24 Revised; nomenclature change (interim effective date pending in
part) 19182, 19204
24.100 (d) and (e) added 19182
24.105 (f) (1) and (2), (p) (2) through (22), (u) (1) and (2), (v)
(1) and (2), and (w) through (cc) added 19182
(n) republished; interim 30051
Confirmed 45903
24.110 (a)(1)(i)(A), (ii)(C) (3) through (20), (d) and (e) added
19183
(a) introductory text and (2)(ii) republished; interim 30051
Confirmed 45903
24.115 (d) added 19183
24.200 (c)(8), (d), (e), and (f) added 19183
(c)(2) republished; (e)(1) revised; interim 30051
Confirmed 45903
24.215 (a) added 19184
24.220 (c) and (d) added 19184
24.305 (d)(1), (e), and (f) added 19184
24.313 Revised 19184
(b)(2)(ii) correctly revised 30049
24.314 Revised 19185
24.320 (d) added 19185
24.325 (a)(3) and (b)(4) added 19185
24.400 (d) added 19185
24.410 (c) added 19185
24.411 Revised 19185
24.412 Revised 19186
24.413 Revised 19186
24.415 (d) added 19186
24.500 (c) added 19186
24.505 (f) through (h) added 19186
24.600 -- 24.613 (Subpart F) Added 19186
28 Added 24001
35.5 (b) revised; (c) added 20798
35.22 Amended 20798
35.24 (b)(1), (2)(ii) and (4) revised 20798
35.56 (a) (1) and (2) revised 20799
42 Revised; interim; eff. 4-2-89 4965
43 Removed; interim; eff. 4-2-89 4965
44.1 (d) revised; eff. 10-1-88 8056
44.15 Revised; eff. 10-1-88 8056
50.20 (n) added; interim 11238
(o) added 30192
58 Authority citation revised 30193
58.35 (a)(6) added 30193
85 Added; eff. 10-1-88 8068, 8087
Chapter I
105 Revised 24196
111.106 OMB number 9869
111.108 (e) added; eff. 10-1-88 8057
OMB number 9869
115 Determination of list changes 6964
List of jurisdictions 23757
115.10 (a) revised 24203
24 CFR 146.49 1989
24 CFR
54 FR
Page
Subtitle A
8.3 Corrected 8188
14 Authority citation revised 3283
8.21 Amended (OMB number) 37645
8.24 Amended (OMB number) 37645
8.25 Amended (OMB number) 37645
8.51 Amended (OMB number) 37645
8.55 Amended (OMB number) 37645
14.115 (a) (8) and (9) amended; (a)(10) added 3283
15.14 Eff. 3-3-89 8321
15.15 Eff. 3-3-89 8321
15.16 Eff. 3-3-89 8321
15.17 Eff. 3-3-89 8321
15.18 Eff. 3-3-89 8321
24 Heading and authority citation revised 4957
Heading corrected 6364
24.105 (n) confirmed as final eff. 3-3-89 8321
24.110 (a) introductory text and (2)(ii) confirmed as final eff.
3-3-89 8321
24.200 (c)(2) confirmed as final eff. 3-3-89 8321
24.305 (c) (3) and (4) amended; (c)(5) added; interim 4950, 4957
24.320 (a) revised; interim 4950, 4957
24.600 -- 24.613 (Subpart F) Redesignated as 24.700 -- 24.713
(Subpart G); interim 4950, 4957
24.600 -- 24.630 (Subpart F) Added; interim 4950, 4957
24.700 -- 24.713 (Subpart G) Redesignated from 24.600 -- 24.613
(Subpart F); interim 4950, 4957
24 Appendix C added; interim 4951, 4957
42 Regulations at 53 FR 4965 confirmed; see regulation codified at
49 CFR 24 8912
43 Removal at 53 FR 4965 confirmed; see regulation codified at 49
CFR 24 8912
50.36 Nomenclature change 39525
51.102 (e) nomenclature change 39525
90 Added (effective date pending) 46569
Regulation at 54 FR 46569 effective 12-21-89 52396
Chapter I
100 Revised 3283
103 Added 3292
Appendix redesignated from 105 Appendix 3308
104 Added 3298
105 Removed 3308
Appendix redesignated as 103 Appendix 3308
106 Heading and authority citation revised 3308
106.1 Revised 3308
106.2 Revised 3308
109 Revised 3308
110 Authority citation revised 3310
110.1 Revised 3310
110.5 (b), (e), (g) and (h) revised 3311
110.10 (a) introductory text and (c) revised 3311
110.15 Revised 3311
110.25 (a) revised 3311
111 Revised 20098
Effective date corrected 25713
115 Revised 3311
121 Added 3316
125 Added; eff. 5-9-89 6498
100 -- 121 (Subchapter A) Appendix I added 3317
24 CFR 146.49 1990
24 CFR
55 FR
Page
Subtitle A
16 Appendix A revised 2064
24.600 -- 24.635 Regulation at 54 FR 4950, 4956 confirmed; revised
21688, 21695
24 Appendix C regulation at 54 FR 4950, 4956 confirmed; revised
21690, 21695
25 Authority citation revised 18872
25.9 (x) added 18872
(b) revised 33286
44.1 (c)(2) revised 8463
49 Added 18492
50 Authority citation revised 27608
50.20 (p) added 27608
(n) added 38962
87 Added; interim 6737, 6750
Chapter I
103 Authority citation revised 53293
103.200 (a)(3) revised 53293
103.225 Revised 3211
103.300 (a) revised 53294
103.400 (a)(1)(ii) and (c)(2) revised 3211
Revised 53294
109 Authority citation revised 53294
109.16 (a) revised 53294
24 CFR 146.49 1991
24 CFR
56 FR
Page
Subtitle A
4 Added 22090
8 Authority citation revised 920
8.22 (a) amended 920
8.25 Heading, (a), (3), (b), and (c) introductory text amended 920
8 Appendix A amended 920
12 Added; eff. 4-15-92 11042
30 Added 23631
35.24 (b)(2)(i) amended; interim 15172
(b)(4) amended 920
50 Authority citation revised 30326
50.4 (c) revised 30326
58 Authority citation revised 30326
58.5 (c) revised 30326
60 Added 28012, 28020
60.101 (b)(5) corrected 29756
60.103 (f) corrected 29756
86 Added 22941
86.20 OMB numbers 30430
86.25 OMB numbers 30430
86 Appendix C added 57488
90.1 (a) revised 56126
91 Added; interim 4484
Regulations at 56 FR 4484 comment time extended 49683
91.15 OMB number pending 4484
Amended; OMB number; interim 9169
91.20 OMB number pending 4484
Amended; OMB number; interim 9169
91.25 OMB number pending 4484
Amended; OMB number; interim 9169
Existing text designated as (a); (b) added 56126
91.30 OMB number pending 4484
Amended; OMB number; interim 9169
91.35 OMB number pending 4484
Amended; OMB number; interim 9169
91.40 OMB number pending 4484
Amended; OMB number; interim 9169
91.45 OMB number pending 4484
Amended; OMB number; interim 9169
91.50 OMB number pending 4484
Amended; OMB number; interim 9169
91.55 OMB number pending 4484
Amended; OMB number; interim 9169
91.70 OMB number pending 4484
Amended; OMB number; interim 9169
91.75 OMB number pending 4484
Amended; OMB number; interim 9169
92 Added; interim 65338
92.51 OMB number pending 65338
92.152 OMB number pending 65338
92.631 OMB number pending 65338
92.632 OMB number pending 65338
0 -- 99 (Subtitle A) Appendix added 4412, 4437, 4458, 4494
Regulations at 56 FR 4412, 4436, and 4458 comment time extended 32326
Chapter I
100.205 (a) revised; eff. 4-19-92 11665
Technical correction 18878
100-125 (Subchapter A) Appendix II added 9496
Appendix III added 9472, 9515
103.405 (a)(3) revised 55078
111.107 Introductory text republished; (a) revised 22643
100 -- 125 (Subchapter A) Appendix II corrected 28704
Appendix I amended 55078
Appendix II corrected 56544
24 CFR 146.49 1992
24 CFR
57 FR
Page
Subtitle A
0 Authority citation revised 28783
0.735-101 Revised 28783
0.735-102 Revised 28783
0.735-104 Revised 28783
4 Authority citation revised 34248
4.5 Amended 34248
4.10 (a) revised 34249
4.100 (b) revised 34249
4.105 (a)(1) and (a)(7) revised; (c) added 34249
12 Implementation 1942
20 Authority citation revised 20201
20.3 (a) revised 20201
20.10 Amended 20201
24.700 Amended 58339
24.710 (a)(3) revised 58339
25 Revised 31051
Regulation on 57 FR 31051 effective date corrected 31754
25.2 Corrected 37085
25.3 Corrected 37085
25.4 (b) corrected 37085
25.5 (b), (c)(3) and (d)(3)(i) corrected 37085
(c)(3) corrected 40111
25.9 (cc) corrected 37085
(b), (h) and (u) revised 58339
25.13 Corrected 37085
30.320 (c) introductory text and (k) revised 58339
44 Heading and authority citation revised 33254
44.3 (c) amended 33254
44.6 (a) revised; (b) amended 33254
45 Added 33254
50 Authority citation revised 12036, 32110
50.3 (i) added; interim 32110
50.17 (i) redesignated as (j); new (i) added; interim 32110
50.19 Added; interim 1386
Revised; interim 32110
50.20 (q) added; inerim 1386
50.20 (n) revised; interim 12036
(o) revised; interim 32110
70 Added; interim 14756
85 Authority citation revised 33255
85.26 (b)(1) and (2) amended 33255
86 Appendix C amended 2677
91 Revised 40053
91.40 (c) corrected 46068
92.2 Amended; interim 58863, 60964
92.50 -- 92.52 (Subpart B) Heading revised; undesignated center
heading added; interim 58864
92.50 (b) revised; interim 58864
92.60 -- 92.66 Undesignated center heading and sections added;
interim 58864
Added; interim 58864
92.101 (a) revised; interim 60964
92.150 (b)(3) and (c)(7) revised; interim 60965
92.151 (d) redesignated as (e); (a) and new (e) revised; new (d)
added; interim 60965
92.204 (a)(2)(i)(A) and (B) revised; interim 60965
92.205 (c) revised; interim 60965
92.206 (a)(4) redesignated as (c)(5) and revised; (f) added;
interim 60965
92.211 (a)(2) revised; interim 60966
92.214 Revised; interim 60966
92.217 Corrected 2951
92.220 (a)(1)(i) and (2) revised; (b)(3) and (4) amended; (b)(5)
added; interim 60966
92.250 Revised; interim 60966
92.251 Revised; interim 60966
92.252 (a)(1)(ii), (2) introductory text, (5) introductory text and
(c) revised; (e) added; interim 60967
92.254 (a)(1)(ii) and (4) revised; (c) added; interim 60967
92.300 (c) revised; interim 60968
92.500 (a) and (d)(1) through (4) revised; (d)(5) removed; interim
60968
92.502 (d) revised; (g) added; interim 60968
92.504 (c)(13) amended; interim 60968
0 -- 99 (Subtitle A) Appendixes revised 1527, 1562, 1597
Appendix A amended; interim 14758
Chapter I
103 Authority citation revised 18398
103.200 (a) introductory text and (3) revised 39116
103.400 (a)(1) and (2)(ii) revised 18398
135 Authority citation revised 40113
135.1 (a) revised 40113
135.5 (g) revised 40113
135.10 Revised 40113
135.15 Revised 40113
135.20 Amended 40113
135.65 Revised 40113
135.125 Removed 40113
135.140 Removed 40113
24 CFR 146.49 1993
24 CFR
58 FR
Page
Subtitle A
50.19 Corrected 17164
91 Authority citation revised 13689
91.1 (b)(1)(ii), (2)(ix) and (x) revised; (b)(1)(v), (2)(xi) through
(xv), (4) and (c) added; (b)(3) amended; eff. 4-12-93 13689
91.5 Amended; eff. 4-12-93 13689
91.15 (a) revised; eff. 4-12-93 13689
91.17 (a)(2)(i)(A) and (b)(2)(i) revised; eff. 4-12-93 13689
91.19 (b)(1) revised; (c)(1) amended; (g) redesignated as (h); new
(g) added; eff. 4-12-93 13690
91.21 (b) and (c) revised; (d) redesignated as (f); new (d) and (e)
added; eff. 4-12-93 13690
91.25 (a), (b)(1), (c)(7) and (d)(2) revised; (b)(3) and (f); eff.
4-12-93 13690
91.40 (a) and (c) revised; eff. 4-12-93 13691
91.42 (a)(2)(i)(A) and (b)(2)(i) revised; eff. 4-12-93 13961
91.44 (c) through (f) redesignated as (c) through (f) and (h);
(b)(1) revised; new (g) added; eff. 4-12-93 13691
91.46 (c) and (d) redesignated as (e) and (f); new (c) and (d)
added; (b) and new (e) revised; eff. 4-12-93 13692
91.50 -- 91.53 (Subpart D) Removed; eff. 4-12-93 13692
91.57 Revised; eff. 4-12-93 13692
91.70 (a) revised; eff. 4-12-93 13692
91.80 Revised; eff. 4-12-93 13692
91.82 (c) introductory text revised; eff. 4-12-93 13692
91.85 (a)(3) revised; (b) amended; eff. 4-12-93 13693
Chapter I
100.135 (c) and (d) corrected 2988
24
Housing and Urban Development
PARTS 0 TO 199
Revised as of April 1, 1993
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF APRIL 1, 1993
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
Washington, DC 20402-9328
24 CFR 146.49 Table of Contents
Page
Explanation v
Title 24:
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development
Subtitle B -- Regulations Relating to Housing and Urban
Development:
Chapter I -- Office of Assistant Secretary for Equal Opportunity,
Department of Housing and Urban Development
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
24 CFR 146.49 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, April 1, 1993), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-512-1557). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
April 1, 1993.
24 CFR 146.49 THIS TITLE
Title 24 -- Housing and Urban Development is composed of five
volumes. The first four volumes containing parts 0-199, parts 200-499,
parts 500-699, parts 700-1699, represent the regulations of the
Department of Housing and Urban Development. The fifth volume,
containing part 1700 to end continues with regulations of the Department
of Housing and Urban Development and also includes regulations of the
Neighborhood Reinvestment Corporation. The contents of these volumes
represent all current regulations codified under this title of the CFR
as of April 1, 1993.
For this volume, Steve Karsteter was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
24 CFR 0.0 24 CFR Subtitle A (4-1-93 Edition)
24 CFR 0.0 Office of the Secretary, HUD
24 CFR 0.0 Title 24 -- Housing and Urban Development
24 CFR 0.0 (This book contains parts 200 to 499)
Part
SUBTITLE B -- Regulations Relating to Housing and Urban Development
(Continued):
chapter ii -- Office of Assistant Secretary for Housing -- Federal
Housing Commissioner, Department of Housing and Urban Development 200
chapter iii -- Government National Mortgage Association, Department
of Housing and Urban Development 300
chapter iv -- (Reserved)
Cross References: Farmers Home Administration, Department of
Agriculture: For Agricultural credit, see 7 CFR chapter XVIII.
Office of Thrift Supervision, Department of the Treasury, 12 CFR
chapter V.
Department of Veterans Affairs regulations on assistance to certain
veterans in acquiring specially adapted housing and guaranty of loans on
homes: See Pensions, Bonuses, and Veteran Relief, 38 CFR part 36.
24 CFR 0.0 24 CFR Ch. II (4-1-93 Edition)
24 CFR 0.0 Office of Assistant Secretary for Housing, HUD
24 CFR 0.0 Subtitle B -- Regulations Relating to Housing and Urban Development
24 CFR 0.0 (Continued)
24 CFR 0.0 24 CFR Ch. II (4-1-93 Edition)
24 CFR 0.0 Office of Assistant Secretary for Housing, HUD
24 CFR 0.0 CHAPTER II -- OFFICE OF ASSISTANT
24 CFR 0.0 SECRETARY FOR HOUSING -- FEDERAL
24 CFR 0.0 HOUSING COMMISSIONER, DEPARTMENT
24 CFR 0.0 OF HOUSING AND URBAN DEVELOPMENT
24 CFR 0.0 SUBCHAPTER A -- GENERAL
Part
Page
200 Introduction
24 CFR 0.0
24 CFR 0.0 SUBCHAPTER B -- MORTGAGE AND LOAN INSURANCE PROGRAMS UNDER
NATIONAL HOUSING ACT
201 Title 1 Property improvement and manufactured home loans
202 Approval of lending institutions and mortgagees
202a Title I mortgage insurance
203 Single family mortgage insurance
204 Coinsurance
205 Mortgage insurance for land development (Title X)
206 Home equity conversion mortgage insurance
207 Multifamily housing mortgage insurance
209 Individual homes; war housing mortgage insurance (Sec. 603)
210 Multifamily projects; war housing mortgage insurance (Sec. 608)
211 Single family project loans; war housing mortgage insurance
(Sec. 611)
213 Cooperative housing mortgage insurance
215 Rent supplement payments
219 Flexible subsidy program for troubled projects
220 Mortgage insurance and insured improvement loans for urban
renewal and concentrated development areas.
221 Low cost and moderate income mortgage insurance
222 Serviceperson's mortgage insurance
224 Armed services housing -- military personnel (Sec. 803)
225 Military housing insurance (Sec. 803)
226 Armed services housing -- civilian employees (Sec. 809)
227 Armed services housing -- impacted areas (Sec. 810)
228 Individual residences; national defense housing mortgage
insurance (Sec. 903)
229 National defense rental housing mortgage insurance (Sec. 908)
231 Housing mortgage insurance for the elderly
232 Mortgage insurance for nursing homes, intermediate care
facilities, and board and care homes
233 Experimental housing mortgage insurance
234 Condominium ownership mortgage insurance
235 Mortgage insurance and assistance payments for home ownership and
project rehabilitation
236 Mortgage insurance and interest reduction payment for rental
projects
237 Special mortgage insurance for low and moderate income families
238 Yield insurance (Sec. 702)
240 Mortgage insurance on loans for fee title purchase
241 Supplementary financing for insured project mortgages
242 Mortgage insurance for hospitals
243 Pet owership in housing for the elderly or handicapped
244 Mortgage insurance for group practice facilities (Title XI)
245 Tenant participation in multifamily housing projects
246 Local rent control
247 Evictions from certain subsidized and HUD-owned projects
248 Prepayment of low income housing mortgages
250 Coinsurance for state housing finance agencies
251 Coinsurance for the construction or substantial rehabilitation of
multifamily housing projects
252 Coinsurance of mortgages covering nursing homes, intermediate
care facilities, and board and care homes
255 Coinsurance for the purchase or refinancing of existing
multifamily housing projects
260 Interest subsidy grants
265 Transfer from non-profit to profit-motivated ownership for
multifamily housing projects with HUD-insured or HUD-held mortgages
24 CFR 0.0
24 CFR 0.0 SUBCHAPTER C -- PLANNING ASSISTANCE TO HOUSING SPONSORS
270 Loan and grant assistance for planning and making feasible
housing projects in Appalachia
271 Loan assistance for planning low and moderate income housing
24 CFR 0.0
24 CFR 0.0 SUBCHAPTER D -- PUBLICLY FINANCED HOUSING PROGRAMS
277 Loans for housing for the elderly or handicapped
278 Mandatory meals program in multifamily rental or cooperative
projects for the elderly or handicapped
24 CFR 0.0
24 CFR 0.0 SUBCHAPTER E -- GRANT PROGRAMS
280 Nehemiah housing opportunity grants program
24 CFR 0.0
24 CFR 0.0 SUBCHAPTERS F-H -- (RESERVED)
24 CFR 0.0 SUBCHAPTER I -- HUD-OWNED PROPERTIES
290 Management and disposition of HUD-owned multifamily housing
projects
291 Disposition of HUD-acquired single family property
24 CFR 0.0
24 CFR 0.0 24 CFR Ch. II (4-1-93 Edition)
24 CFR 0.0 Office of Assistant Secretary for Housing, HUD
24 CFR 0.0 SUBCHAPTER A -- GENERAL
24 CFR 0.0 PART 200 -- INTRODUCTION
24 CFR 0.0 Pt. 200
24 CFR 0.0 Subpart A -- Origin and Establishment
Sec.
200.1 Creation.
200.2 Status.
200.3 Purpose.
200.4 Meaning of term ''Commissioner''.
24 CFR 0.0 Subpart B -- Functions and Programs
200.5 Scope and nature of programs.
200.6 Application for lender approval.
200.7 Forms for mortgage and loan insurance.
200.10 One- to four-family homes.
200.11 Disaster damage to homes.
200.12 Suburban and farm homes.
200.13 Homes for servicemen.
200.14 Homes for veterans.
200.15 Housing for civilian employees of Armed Services, NASA, and
NRC.
200.19 Other home mortgage assistance.
200.20 Rental projects.
200.21 Housing for the elderly.
200.22 Nursing homes.
200.24 Investment insurance.
200.25 Armed services housing -- impacted areas.
200.26 Condominium ownership.
200.28 Group practice facilities.
200.29 Other project mortgage assistance.
200.30 Cooperative projects.
200.31 Sites and facilities for manufactured homes.
200.32 Residential rehabilitation.
200.33 Low cost homes and moderate income projects.
200.34 Miscellaneous type mortgages.
200.35 Experimental housing.
200.38 Title I improvement loans.
200.39 Other improvement loans.
24 CFR 0.0 Subpart C -- Organization and Management
200.40 Commissioner.
200.41 Administrative staff.
200.42 Principal divisions.
200.43 Assistant Regional Administrators for Housing Production and
Mortgage Credit.
200.44 Area and/or Insuring Office Directors.
24 CFR 0.0 Subpart D -- Delegations to Particular Positions
200.50 Authority for delegations.
200.51 -- 200.84a (Reserved)
200.84b Regional Administrators, Deputies and Assistants.
200.85 Executive Board.
200.92 Structural Defects Committee.
200.93 Multifamily Participation Review Committee.
200.94 Loan Assistance Committee.
200.95 Insuring Office Directors, Deputy Directors, and Assistants to
the Director.
200.95a Service Office Supervisors and Service Office Underwriters.
200.98 Chief Underwriter and Deputy, Chief Mortgage Credit Examiner
and Deputy, Chief Appraiser and Deputy, Commitment Appraiser, and
Commitment Mortgage Credit Examiner.
200.98a Chief Underwriter and Deputy.
200.100 Closing Clerk.
200.103 Deputy Assistant Secretary-Deputy Commissioner, Executive
Assistant Commissioner, and Directors of HPMC Offices and Divisions.
200.109 Regional Administrators, Deputy Regional Administrators and
Assistant Regional Administrator Housing Production and Mortgage Credit
(Region VIII, Denver).
200.110 Chief, Valuation Branch or Head, Single-Family Valuation
Section and Commitment Appraiser.
200.111 Chief, Mortgage Credit Branch or Head, Single-Family Mortgage
Credit Section and Commitment Mortgage Credit Examiner.
200.112 Chief, Mortgage Credit Branch or Head, Multifamily Mortgage
Credit Section.
200.113 Director/Chief Underwriter or Chief, Multifamily Branch.
200.114 Director/Chief Underwriter or Chief, Single-Family Branch and
Deputy Director/Deputy Chief Underwriter.
200.115 Director/Chief Underwriter or Chief, Multifamily Branch and
Multifamily Housing Representative.
200.116 Director/Chief Underwriter and Deputy Director/Deputy Chief
Underwriter.
200.118 Area Director and Deputy Area Director.
200.119 Designation of officials to perform certain functions with
respect to the insurance of mortgages.
200.128 Director and Deputy Director of the Insuring Offices.
200.129 Director, Housing Development Division, and Deputy Director,
Housing Development Division, Insuring Offices.
24 CFR 0.0 Subpart E -- Mortgage Insurance Procedures and Processing
200.140 Scope of subpart.
200.141 Procedure in general.
200.142 Form and filing.
200.143 Purpose and content.
200.144 Fees.
200.145 Technical analysis, underwriting processing and inspections.
200.146 Acceptance, rejection and reconsideration.
200.147 Issuance of commitment.
200.148 Types of commitments.
200.149 Terms and conditions.
200.150 Request for endorsement.
200.151 Final review.
200.152 Endorsement for insurance.
200.153 Presentation of claim.
200.154 Notice of default.
200.155 Claim requirements.
200.156 Settlement of claims.
200.157 Provisions and characteristics of debentures.
200.158 Applicability of Treasury regulations to debenture
transactions.
200.159 Relief on account of lost, stolen, destroyed, mutilated or
defaced debentures.
200.160 Redemption of debentures prior to maturity.
200.161 Administration of debenture transactions.
200.162 Certificates of claim.
24 CFR 0.0 Subpart F-G -- (Reserved)
24 CFR 0.0 Subpart H -- Participation and Compliance Requirements
200.210 Policy.
200.213 Applicability of procedure.
200.215 Definitions.
200.217 Filing of previous participation certificate on prescribed
form.
200.218 Who must certify and sign.
200.219 Content of certification.
200.222 Certification of previous record on basis of a master list.
200.224 Multifamily Participation Review Committee and Participation
Control Officer.
200.225 Approvals by Area Managers for limited partners.
200.226 Determination by the Participation Control Officer.
200.228 Determination by the Review Committee.
200.229 Withholding approval.
200.230 Standards for disapproval.
200.233 Effect and requirement of approval.
200.236 Modification or withdrawal of certain approvals.
200.239 Notice of determination.
200.241 Request for reconsideration of an adverse determination and
request for a hearing.
200.243 Hearing Rules -- How and when to apply.
200.245 Hearing Officer determines facts and law: Review Committee
makes final administrative decision.
24 CFR 0.0 Subpart I -- Nondiscrimination and Fair Housing
200.300 Nondiscrimination and fair housing policy.
200.305 Notice to public.
200.310 Definition of ''discriminatory practice''.
200.315 Prohibition against discriminatory practice.
200.320 Subdivision report and multifamily, land development, and
group practice facilities preapplication analysis.
200.325 Corporate charters and regulatory agreements.
200.335 Provisions in legal instruments.
200.340 Complaints and hearings.
200.345 Sanctions.
200.350 Appeals from findings of Field Office Directors.
200.355 Reinstatement.
24 CFR 0.0 Subpart J -- Equal Employment Opportunity
200.400 Purpose.
200.405 Notice to public.
200.410 Definition of term ''applicant''.
200.415 Agreement of applicant.
200.420 Equal opportunity clause to be included in contracts and
subcontracts.
200.425 Exemptions.
200.430 Sanctions.
24 CFR 0.0 Subpart K -- Correction of Structural Defects
200.500 Purpose.
200.502 Application for assistance.
200.505 Nature of defect.
200.507 Eligibility requirements.
200.510 Type of assistance.
200.512 Subrogation by mortgagor.
200.515 Right and finality of determination.
24 CFR 0.0 Subpart L -- Correction of Structural Defects in Homes
Covered by Mortgage Insurance Under Section 203, 221, or 235
200.517 Purpose.
200.520 Application for assistance.
200.522 Eligibility for consideration.
200.527 Consideration for assistance.
200.533 Right and finality of determination.
24 CFR 0.0 Subpart M -- Affirmative Fair Housing Marketing Regulations
200.600 Purpose.
200.605 Authority.
200.610 Policy.
200.615 Applicability.
200.620 Requirements.
200.625 Affirmative fair housing marketing plan.
200.630 Notice of housing opportunities.
200.635 Compliance.
200.640 Effect on other requirements.
Appendix to Subpart M -- Equal Housing Opportunity Insignia
24 CFR 0.0 Subpart N -- Project Selection Criteria
200.700 Purpose.
200.705 Authority.
200.710 Requests for priority registration, early feasibility, or
reservation of contract authority for section 235(i), rent supplement,
or section 236 projects.
24 CFR 0.0 Subpart O -- Lead-Based Paint Poisoning Prevention
200.800 Purpose and applicability.
200.805 Definitions.
200.810 Single family insurance and coinsurance.
200.815 HUD-owned single family property disposition.
200.820 Multifamily insurance and coinsurance.
200.825 HUD-owned multifamily property disposition.
200.830 Compliance with other Federal, State and local laws.
24 CFR 0.0 Subparts P-R -- (Reserved)
24 CFR 0.0 Subpart S -- Minimum Property Standards
200.925 Applicability of minimum property standards.
200.925a Multifamily and care-type minimum property standards.
200.925b Residential and institutional building code comparison
items.
200.925c Model codes.
200.926 Minimum property standards for one and two family dwellings.
200.926a Residential building code comparison items.
200.926b Model codes.
200.926c Model code provisions for use in partially accepted code
jurisdictions.
200.926d Construction requirements.
200.926e Supplemental information for use with the CABO One and Two
Family Dwelling Code.
200.927 Incorporation by reference of minimum property standards.
200.929 Description and identification of minimum property standards.
200.931 Statement of availability.
200.933 Changes in minimum property standards.
200.934 User fee system for the technical suitability of products
program.
200.935 Administrator qualifications and procedures for HUD building
products certification programs.
200.936 Supplementary specific procedural requirements under HUD
building products certification program for solid fuel type room heaters
and fireplace stoves.
200.937 Supplementary specific procedural requirements under HUD
building product standards and certification program for plastic bathtub
units, plastic shower receptors and stalls, plastic lavatories, plastic
water closet bowls and tanks.
200.938 Supplementary specific procedural requirements under HUD
building product standards and certification program for aluminum
windows, storm windows, sliding glass doors and storm doors.
200.939 Supplementary specific procedural requirements under HUD
building products standards and certification program for wood window
units and wood sliding patio doors.
200.940 Supplementary specific procedural requirements under HUD
building product standards and certification program for sealed
insulating glass units.
200.941 Supplementary specific building product standards and
certification program for PVC window units.I26200.942 Supplementary
specific procedural requirements under HUD building product standards
and certification program for carpet and carpet with attached cushion.
200.942 Supplementary specific procedural requirements under HUD
building product standards and certification program for carpet and
carpet with attached cushion.
200.943 Supplementary Specific Procedural Requirements Under HUD
Building Product Standards and Certification Program for the
Grademarking of Lumber.
200.944 Supplementary specific requirements under the HUD Building
Products Standards and Certification Program for Plywood and Other
Performance Rated Wood-Based Structural-Use Panels.
24 CFR 0.0 Subpart T -- Disclosure and Verification of Social Security
Numbers and Employer Identification Numbers by Applicants and
Participants in Assisted Mortgage and Loan Insurance and Related
Programs
200.1001 Summary and purpose.
200.1003 Applicability.
200.1005 Definitions.
200.1010 Disclosure and verification of Social Security and Employer
Identification Numbers.
200.1015 Penalties and failing to disclose and verify Social Security
and Employer Identification Numbers.
200.1020 Limitations on the collection, maintenance, use, and
dissemination of Social Security and Employer Identification Numbers,
and on information derived therefrom.
200.1025 Implementation.
24 CFR 0.0 Subpart U -- Disclosure and Verification of Social Security
Numbers and Employer Identification Numbers by Applicants in Unassisted
Mortgage and Loan Insurance and Coinsurance Programs
200.1101 Summary and purpose.
200.1103 Applicability.
200.1105 Definitions.
200.1110 Disclosure and verification of Social Security and Employer
Identification Numbers.
200.1115 Penalties for failing to disclose and verify Social Security
and Employer Identification Numbers.
200.1120 Limitations on the collection, maintenance, use, and
dissemination of Social Security and Employer Identification Numbers,
and on information derived therefrom.
200.1125 Implementation.
24 CFR 0.0 Subpart V -- Procedures for Obtaining Wage and Claim
Information About Applicants and Participants in HUD's Assisted Mortgage
and Loan Insurance and Related Programs From State Wage Information
Collection Agencies (SWICAs)
200.1201 Summary, purpose, and Federal preemption.
200.1203 Applicability.
200.1205 Definitions.
200.1210 Consent by applicants and participants.
200.1215 Penalties for failing to sign consent forms.
200.1220 Compliance with the Privacy Act and other requirements.
200.1225 Request for wage and claim information from SWICAs and
restrictions on the use of the information.
200.1230 Procedures for termination, denial, suspension, or reduction
of assistance based on information obtained from a SWICA.
200.1235 Criminal and civil penalties.
200.1240 Effective date of rule.
Appendix A to Part 200 -- Standards Incorporated by Reference in the
Minimum Property Standards for Multifamily Housing (HUD 4910.1)
Appendix B to Part 200 -- Standards Incorporated by Reference in the
Minimum Property Standards for One and Two Family Dwellings
Authority: 12 U.S.C. 1701-1715z-18; 42 U.S.C. 3535(d).
Source: 36 FR 24467, Dec. 22, 1971, unless otherwise noted.
24 CFR 0.0 Subpart A -- Origin and Establishment
24 CFR 200.1 Creation.
The Federal Housing Administration (frequently referred to herein as
the FHA) was originally created by the National Housing Act, approved
June 27, 1934 (48 Stat. 1246; 12 U.S.C. 1702). On November 9, 1965, by
operation of the Department of Housing and Urban Development Act,
approved September 9, 1965 (79 Stat. 667), the FHA was transferred to
the Department of Housing and Urban Development.
24 CFR 200.2 Status.
The Federal Housing Administration is an organizational unit within
the Department of Housing and Urban Development.
24 CFR 200.3 Purpose.
The Federal Housing Administration was established to encourage
improvement in housing standards and conditions, to provide an adequate
home financing system by insurance of housing mortgages and credit and
to exert a stabilizing influence on the mortgages market.
24 CFR 200.4 Meaning of term ''Commissioner''.
Effective January 18, 1966, the term Commissioner, as used in this
chapter, shall have the following meaning:
(a) Where the term appears in connection with the conveyance or
assignment of real or personal property, it shall be deemed to refer to
the Secretary of Housing and Urban Development.
(b) Where the term appears in connection with instances other than
set forth in paragraph (a) of this section, it shall be deemed to refer
to the Federal Housing Commissioner acting on behalf of the Secretary of
Housing and Urban Development.
24 CFR 200.4 Subpart B -- Functions and Programs
24 CFR 200.4 In General
24 CFR 200.5 Scope and nature of programs.
The Federal Housing Administration does not make loans or build
housing but operates insurance programs under the provisions of the
National Housing Act. The FHA provides insurance for private lenders
against loss on mortgages financing homes, multifamily projects, land
development projects, and group practice facilities projects and against
loss on loans for property improvements. It also provides insurance of
yields on investments in rental housing projects. All mortgage and loan
transactions must be acceptable to the Commissioner. The various
insurance programs are outlined in 200.10 through 200.39, and more
particularly described in other parts of this chapter.
24 CFR 200.6 Application for lender approval.
An application for approval, as a mortgagee, as a loan correspondent
or as a title I lending institution is submitted on an appropriate form
prescribed by the Commissioner. These forms may be obtained from any
regional, area, or insuring office or from the Headquarters Office in
Washington, DC. When fully executed the form is submitted to the office
having jurisdiction for transmittal to the Headquarters Office,
Washington, DC.
24 CFR 200.7 Forms for mortgage and loan insurance.
Forms for filing applications for insurance or assistance under each
of the various FHA mortgage and loan insurance programs are prescribed
by the Secretary of HUD or the Secretary's designee. Forms used for
application and appliaction processing may be printed by mortgagees or
may be purchased from the Superintendent of Documents, U.S. Government
Printing Office. When fully executed, forms are submitted to the HUD
office having jurisdiction over the area where the property is located
for which insurance or assistance is requested. In the case of those
counties approved by HUD as lender option counties for Single Family
Programs, applications may be submitted to the office having
jurisdiction over the property or any office that is geographically
closer to the property.
(51 FR 22802, June 23, 1986)
24 CFR 200.7 Home Mortgage Insurance
24 CFR 200.10 One- to four-family homes.
(a) The FHA insures mortgages on one- to four-family dwellings. The
maximum mortgage cannot exceed the lesser of a dollar amount (which
varies depending upon whether the residence is one-, two-, three- or
four-family) and an amount computed under a statutory formula based on
the ratio the loan bears to the appraised value of the property.
(b) The basic home mortgage insurance program is authorized under
title II, section 203(b) of the National Housing Act and governed by
regulations contained in part 203 of this chapter.
24 CFR 200.11 Disaster damage to homes.
(a) The FHA insures mortgages given to finance the replacement of
homes destroyed or extensively damaged by major disasters. The maximum
mortgage shall be computed in accordance with 24 CFR 203.18(a)(1)
(unless a higher maximum mortgage amount is authorized under 24 CFR
203.18b or 203.29), but the maximum mortgage amount cannot exceed the
lesser of 100 percent of the appraised value of the property, or the
cost of acquisition.
(b) This program is authorized under title II, section 203(h) of the
National Housing Act and governed by regulations contained in part 203
of this chapter.
(36 FR 24467, Dec. 22, 1971, as amended at 48 FR 44067, Sept. 27,
1983)
24 CFR 200.12 Suburban and farm homes.
(a) The FHA insures mortgages on single-family owner-occupied homes
located in sparsely populated nonurban areas and farm areas. The land
on which the house is located must be adjacent to a public highway. The
maximum mortgage cannot exceed the lesser of a dollar amount and an
amount computed under a statutory formula based on the ratio the loan
bears to the appraised value of the property.
(b) This program is authorized under title II, section 203(i) of the
National Housing Act and governed by regulations contained in part 203
of this chapter.
24 CFR 200.13 Homes for servicemen.
(a) The FHA insures mortgages on single-family dwellings owned and
occupied by servicemen on active duty with the Armed Forces or the Coast
Guard. The maximum mortgage cannot exceed the lesser of a dollar amount
and an amount computed under a statutory formula based on the ratio the
loan bears to the appraised value of the property. Certification by the
Secretary of Defense (or the Secretary of Transportation for Coast Guard
personnel) is required to the effect that the serviceman requires
housing and that he is and has been for more than 2 years on active
military duty.
(b) This program is authorized under title II, section 222 of the
National Housing Act and governed by regulations contained in part 222
of this chapter.
24 CFR 200.14 Homes for veterans.
(a) The FHA insures mortgages on single-family dwellings owned and
occupied by veterans. To qualify as a veteran, the mortgagor must have
served 90 days or more on active duty in the armed forces of the United
States and have been discharged or released therefrom under conditions
other than dishonorable. Extra hazardous duty for a period of less than
90 days will also qualify a mortgagor as a veteran. The maximum
mortgage cannot exceed the lesser of a dollar amount and an amount
computed under a statutory formula based on the ratio the loan bears to
the appraised value of the property. The program offers lower
downpayment mortgage financing for the veteran than is available under
the regular home mortgage insurance program described in 200.10.
(b) This program is authorized under title II, sections 203 and 220
of the National Housing Act and title VIII, section 809 of such Act.
The applicable regulations are contained in parts 203, 220, and 226 of
this chapter.
24 CFR 200.15 Housing for civilian employees of the Armed Services,
NASA, and NRC.
(a) The FHA insures mortgages covering purchases of one- to
four-family homes by civilian employees of an Armed Services or National
Aeronautics and Space Administration research and development
installation and by civilian and military personnel employed or assigned
to duty at a U.S. Nuclear Regulatory Commission research and development
installation. The maximum mortgage cannot exceed the lesser of a dollar
amount and an amount computed under a statutory formula based on the
ratio the loan bears to the appraised value of the property.
Certification by the Secretary of Defense, the Administrator of the NASA
or the Chairman of the NRC, as appropriate, is required regarding the
status of the mortgagor as an employee at the installation (civilian
employee or person on military duty), the mortgagor's need for housing,
the general need for housing accommodations at the installation, and the
permanency of the personnel assigned to the installation. The Secretary
of Defense, the Administrator of the NASA or the Chairman of the NRC, as
appropriate, may be required to guarantee the insured mortgages, if the
Commissioner determines that the housing is not an acceptable risk.
(b) This program is authorized by section 809 of the National Housing
Act and governed by the regulations contained in part 226 of this
chapter.
(36 FR 24467, Dec. 22, 1971, as amended at 47 FR 20113, May 11, 1982)
24 CFR 200.19 Other home mortgage assistance.
The FHA offers other types of home mortgage insurance assistance in
connection with programs under other titles of the National Housing Act
as indicated by 200.25, 200.26, 200.30, and 200.32 through 200.35 of
this subpart.
24 CFR 200.19 Project Mortgage Insurance
24 CFR 200.20 Rental projects.
(a) The FHA insures mortgages, including advances made during
construction, on rental projects of eight or more units developed either
by a private or public mortgagor. The statute prescribes a maximum
mortgage determined by a dollar amount, an amount computed under a
formula based on the ratio the loan bears to the appraised value of the
property, and a varying amount depending upon the number of bedrooms in
each dwelling unit.
(b) The basic rental housing project mortgage insurance program is
authorized under section 207 of the National Housing Act. The
regulations governing this activity are contained in part 207 of this
chapter.
24 CFR 200.21 Housing for the elderly.
(a) The FHA insures mortgages, including advances made during
construction, on housing projects for the elderly developed by a
private, profit-making mortgagor or a nonprofit organization, a Federal
or State instrumentality, a municipal corporation, or a nonprofit
development or housing corporation. Preference for occupancy in such
projects is required for elderly persons 62 years of age or over and for
the physically handicapped. The statute prescribes a maximum mortgage
determined by a dollar amount, an amount computed under a formula based
on a ratio the loan bears to the replacement cost of the property, and a
varying amount depending upon the number of bedrooms in each dwelling
unit.
(b) This program is authorized under section 231 of the National
Housing Act and governed by the regulations contained in part 231 of
this chapter.
24 CFR 200.22 Nursing homes.
(a) The FHA insures mortgages, including advances made during
construction, on nursing homes either of the proprietary or nonprofit
type. The statute prescribes a maximum mortgage determined by a dollar
amount and an amount computed under a formula based on a ratio the loan
bears to the estimated value of the property.
(b) This program is authorized under section 232 of the National
Housing Act and governed by the regulations contained in part 232 of
this chapter.
24 CFR 200.24 Investment insurance.
(a) In order to encourage investment in debt-free rental housing for
families of moderate income the FHA insures the minimum amortization
charge of 2 percent of the established investment (including all
approved costs prior to initial occupancy) and a fixed annual return on
the outstanding investment in an eligible project.
(b) This program is authorized under title VII of the National
Housing Act and governed by part 238 of this chapter.
24 CFR 200.25 Armed services housing -- impacted areas.
(a) The FHA insures mortgages on rental and sales housing projects
developed for military personnel and essential civilian employees of the
armed services or Coast Guard, employees of contractors for the armed
services or Coast Guard, and essential personnel employed or assigned to
duty at a research or development installation of the National
Aeronautics and Space Administration or the Energy Research and
Development Administration or employees of a contractor of NASA or ERDA
who are employed at a research or development installation. The statute
prescribes a maximum mortgage determined by a dollar amount and an
amount computed under formulas, which differ for the rental and sales
projects, based on the ratio the loan bears to the appraised value of
the property. In rental projects, there is an additional limitation
based on the number of bedrooms in each dwelling unit. Provision is
included for the insurance of the mortgages financing the purchase of
the individual dwelling units in a sales project.
(b) This program is authorized under title VIII, section 810 of the
National Housing Act and governed by regulations contained in part 227
of this chapter.
(36 FR 24467, Dec. 22, 1971, as amended at 43 FR 13511, Mar. 31,
1978)
24 CFR 200.26 Condominium ownership.
(a) The FHA insures mortgages, including construction advances, on
multifamily housing projects developed with the intention of converting,
upon construction, to a plan of apartment ownership under which the
family units in the project are sold to individual owners. In addition,
insurance is provided for mortgages financing the purchase of the
individually owned apartment units.
(b) The maximum mortgage is computed as follows:
(1) Multifamily housing project mortgages are limited to the lesser
of a dollar amount, an amount computed under a statutory formula based
on the ratio the loan bears to the replacement cost of the project, or
an amount based on the number of bedrooms in each dwelling unit.
(2) Individual mortgages on the apartment units are limited to the
lesser of a dollar amount and an amount computed under a statutory
formula based on the ratio the loan bears to the appraised value of the
apartment unit.
(c) This program is authorized under section 234 of the National
Housing Act. The applicable regulations are contained in part 234 of
this chapter.
24 CFR 200.28 Group practice facilities.
(a) The FHA insures mortgages to make credit available on reasonable
terms to finance construction and equipment of medical, dental and
optometric group practice facilities. The sponsoring group or
organization may be either profit motivated or nonprofit, but the
mortgagor entity must be nonprofit. It may operate the proposed
facility or lease it to a professional group, either profit or
nonprofit. The professional group, of not less than five physicians or
not less than three dentists and optometrists, all on a full-time
schedule, shall have the intention and capability of providing
preventive and diagnostic treatment services of a comprehensive nature
under a coordinated program with payment for such services on either a
prepayment or fee-for-service basis. The 25-year mortgage shall not
exceed the lesser of a dollar amount or an amount computed under a
statutory formula based on a ratio the loan bears to the estimated value
of the property, including equipment.
(b) The program is authorized under title XI of the National Housing
Act and governed by regulations contained in part 244 of this chapter.
24 CFR 200.29 Other project mortgage assistance.
The FHA offers other types of project mortgage insurance in
connection with programs under other titles of the National Housing Act
as indicated by 200.30 through 200.35 of this subpart.
24 CFR 200.29 Cooperative Housing Insurance
24 CFR 200.30 Cooperative projects.
(a) The FHA insures mortgages, including construction advances, on
cooperative housing projects. The mortgagor may be a nonprofit
cooperative ownership housing corporation or trust, the permanent
occupancy of the dwellings being restricted to members of the
corporation or beneficiaries of the trust (management type project), or
a nonprofit corporation or trust organized for the purpose of building
homes for members (sales type project) or a corporate investor that
certifies to the FHA its intention of selling the project to a
cooperative group within 2 years after completion (investor-sponsor
project). In addition, the FHA insures supplementary cooperative loans
to a nonprofit cooperative project for improvements or repairs to
property which is already covered by an FHA-insured project mortgage or
for community facilities necessary to serve the occupants of such
projects or to finance cooperative purchases and resales of membership.
(b) The maximum mortgage on project type housing cannot exceed the
lesser of a dollar amount or an amount computed under a statutory
formula based on a ratio the loan bears to the replacement cost of the
property. In the case of sales type projects, provision is made for the
release of the individual properties from the blanket project mortgage,
and the insurance of the individual mortgage covering the individual
dwelling with the principal amount limited to the unpaid balance of the
blanket mortgage allocable to the individual property as of the date of
the release. In the case of a supplementary cooperative loan, the loan
is basically limited to an amount which when added to the outstanding
mortgage indebtedness creates a total indebtedness which does not exceed
the original principal obligation of the mortgage. The total
indebtedness created by the supplementary cooperative loan may exceed
the original principal obligation where improvements or additional
community facilities are involved, provided such total does not exceed
the mortgage amount, which would be eligible for insurance if the
original mortgage were to be replaced with a new insured mortgage
refinancing the existing indebtedness and financing the improvements.
(c) This program is authorized under title II, section 213 of the
National Housing Act and governed by regulations contained in part 213
of this chapter.
24 CFR 200.30 Trailer Courts and Parks Insurance
24 CFR 200.31 Sites and facilities for manufactured homes.
(a) The FHA insures mortgages on trailer courts and parks. The
mortgage transaction must be acceptable to the Commissioner and the
maximum mortgage cannot exceed an amount computed under a statutory
formula based on a ratio the loan bears to the estimated value of the
property after the improvements are completed. The insurance applies to
mortgages on sites and facilities but not on the trailers themselves.
The court or park must have at least fifty spaces on one site designed
for rental use for trailers or manufactured homes and must meet minimum
requirements designed to improve the living conditions of the occupants.
(b) This program is authorized under title II, section 207 of the
National Housing Act and governed by regulations contained in part 207
of this chapter.
(36 FR 24467, Dec. 22, 1971, as amended at 50 FR 9268, Mar. 7, 1985)
24 CFR 200.31 Urban Renewal Insurance
24 CFR 200.32 Residential rehabilitation.
(a) In urban renewal areas, the FHA insures mortgages on dwellings
designed principally for residential use by not more than 11 families
and on multifamily rental projects. The mortgages may be for financing
the rehabilitation of existing salvable housing (including the
refinancing or existing indebtedness) or for the replacement of slums
with new housing. Insurance on multifamily project mortgages may
include coverage of construction advances.
(b) The determination of maximum mortgage is governed by the
following:
(1) On a 1- to 11-family dwelling the mortgage is limited to the
lesser of a dollar limitation, governed by the number of residences in
the dwelling, or a ratio of loan to the estimated replacement cost
established under a statutory formula. Where rehabilitation is
involved, an additional adjustment in the maximum mortgage is made on
the basis of the estimated cost of rehabilitation and the estimated
value of the property prior to rehabilitation. Where refinancing is
involved, a further adjustment is made on the basis of the amount
required to pay off the outstanding indebtedness.
(2) On a multifamily project, the mortgage is limited to the lesser
of:
(i) A dollar amount.
(ii) An amount computed under a statutory formula based on a ratio
the loan bears to the replacement cost of the property with an
additional adjustment made where the project involves rehabilitation
and/or refinancing. Where rehabilitation is involved, the mortgage is
adjusted on the basis of the estimated cost of rehabilitation and the
estimated value of the property prior to rehabilitation. Where
refinancing is involved, a further adjustment is made on the basis of
the amount required to pay off the outstanding indebtedness.
(iii) An amount based on the number of bedrooms in each dwelling
unit.
(c) This program is authorized under title II, section 220 of the
National Housing Act and governed by regulations contained in part 220
of this chapter.
24 CFR 200.32 Low and Moderate Income Housing
24 CFR 200.33 Low cost homes and moderate income projects.
(a) The FHA insures mortgages on low cost homes for low and moderate
income families with special terms available to families displaced from
an urban renewal area, or as a result of governmental action, or as a
result of a disaster determined by the President to be a major disaster.
Also, mortgages are insured by the FHA, including construction
advances, on projects for moderate income families involving profit,
nonprofit, public, limited distribution and cooperative mortgagors.
Projects must be located in a community which the Secretary of Housing
and Urban Development has approved and certified to the FHA as having a
workable program designed to eliminate slums and prevent the spread of
urban blight. Projects meeting special criteria may be insured at a
below market interest rate. Eligibility for occupancy of a project
financed with a below market interest rate mortgage is limited to
families and elderly or handicapped individuals having an income below
the income ceiling established by the Commissioner for the area in which
the project is located.
(b) The maximum mortgage on a low cost home is limited to the lesser
of the value of the property or a dollar amount which depends on whether
a one-, two-, three- or four-family residence is involved. Where
rehabilitation is involved, an additional adjustment in the maximum
mortgage is made on the basis of the estimated cost of rehabilitation
and the estimated value of the property prior to rehabilitation. The
maximum mortgage on a multifamily project is limited to the lesser of:
(1) A dollar amount.
(2) An amount computed under a statutory formula based on a ratio the
loan bears to the replacement cost of the property with an additional
adjustment made where the project involves rehabilitation. In such
instances, the mortgage is limited to the estimated cost of
rehabilitation plus the estimated value of the property prior to
rehabilitation.
(3) An amount based on the number of bedrooms in each dwelling unit.
(c) This program is authorized under title II, section 221 of the
National Housing Act and governed by regulations contained in part 221
of this chapter.
24 CFR 200.33 Publicly Constructed Housing Insurance
24 CFR 200.34 Miscellaneous type mortgages.
The FHA insures mortgages financing purchases of certain types of
permanent housing sold by Federal and State Governments, including the
first resale. This program is authorized under title II, section 223 of
the National Housing Act and governed by regulations set out in
connection with each of the applicable insurance programs.
24 CFR 200.34 Experimental Housing Insurance
24 CFR 200.35 Experimental housing.
(a) The FHA insures mortgages on home and multifamily properties that
incorporate new or untried construction concepts aimed at reducing
housing costs, raising living standards, quality, livability or
durability, or improving neighborhood design. The program contemplates
the utilization and testing of advanced technology in housing design,
materials, or products so as to contribute to the foregoing objectives.
Mortgages or improvement loans that meet the eligibility requirements
for insurance under any of the various FHA title II home or project
mortgage programs may be eligible for insurance under the experimental
housing section of the Act, provided the proposed construction meets
applicable eligibility and property standards for the section of the Act
under which it is to be processed. The maximum mortgage cannot exceed
an amount computed under a statutory formula based on a ratio the loan
bears to the estimated cost of replacing the property using comparable
conventional design, materials and construction.
(b) This program is authorized under section 233 of the National
Housing Act and governed by the regulations contained in part 233 of
this chapter.
24 CFR 200.35 Property Improvement Loan Insurance
24 CFR 200.38 Title I improvement loans.
(a) The FHA insures financial institutions against loss on short term
loans (5 to 7 years) made to finance alterations, repairs and
improvements to existing structures and the building of small new
structures for nonresidential use. To be eligible, the existing
structures must have been completed at least 90 days prior to the loan
application.
(b) This program is authorized under title I, section 2 of the
National Housing Act and governed by regulations contained in part 201
of this chapter.
24 CFR 200.39 Other improvement loans.
(a) The FHA insures financial institutions against loss on long-term
(20-year) loans made to finance the repair, restoration, rehabilitation,
conversion, alteration, enlargement or remodeling of individual homes or
multifamily structures. To be eligible, the structures must be not less
than 10 years old, except where the loan is to be used for major
structural improvements or to correct defects not known at the time of
completion of the structure or where the structure has been damaged by
fire, flood, windstorm, or other casualty. The loans may also be used
by a borrower to pay municipal assessments for public improvements
adjacent to or in the vicinity of the borrower's property. The loan
amount is basically limited to the estimated cost of the improvements or
a dollar maximum amount per family unit. There is an additional
limitation on the loan amount based on the lesser of the following:
(1) The amount of the improvement loan added to the outstanding
indebtedness.
(2) The maximum insurable loan for refinancing the existing
indebtedness and financing the cost of improvements.
(b) This program is authorized under title II, sections 203(k) and
220(h) of the National Housing Act and governed by regulations contained
in parts 203 and 220 of this chapter.
24 CFR 200.39 Subpart C -- Organization and Management
24 CFR 200.40 Commissioner.
The Federal Housing Administration is headed by a Commissioner who is
an Assistant Secretary in the Department of Housing and Urban
Development and who has been designated by the Secretary to serve as
Assistant Secretary for Housing.
(36 FR 24467, Dec. 22, 1971, as amended at 39 FR 34655, Sept. 27,
1974; 49 FR 6714, Feb. 23, 1984)
24 CFR 200.41 Administrative staff.
The principal administrative staff of the Assistant Secretary for
Housing -- Federal Housing Commissioner includes the Deputy Assistant
Secretary for Housing -- Deputy Federal Housing Commissioner, the
Executive Assistant Commissioner, and Directors of various HPMC-FHA
offices whose respective duties and areas of authority are indicated by
their titles.
(39 FR 34655, Sept. 27, 1974, as amended at 49 FR 6714, Feb. 23,
1984)
24 CFR 200.42 Principal divisions.
Various Divisions have been established in the Headquarters office at
Washington, DC which are altered as programs, authority and duties are
changed from time to time.
24 CFR 200.43 Assistant Regional Administrators for Housing Production
and Mortgage Credit.
The territory served by the Federal Housing Administration is divided
into geographical regions composed in each instance of a Regional Office
and a group of associated Area and/or Insuring Offices as established by
the Department of Housing and Urban Development. Within each Region an
Assistant Regional Administrator for Housing Production and Mortgage
Credit (HPMC) directs and evaluates, on behalf of the Regional
Administrator, all HPMC-FHA functions and responsibilities falling
within his jurisdiction.
(39 FR 34656, Sept. 27, 1974)
24 CFR 200.44 Area and/or Insuring Office Directors.
Each of the Area or Insuring Offices within a region is managed and
supervised by a Director who is responsible to the Regional
Administrator for the administration, within a defined geographic area,
of all HPMC-FHA functions and responsibilities including the
administration of various service offices or valuation stations
established within his defined geographical area. Each such Director is
empowered to exercise any and all authorities delegated to any
subordinate.
(39 FR 34656, Sept. 27, 1974)
24 CFR 200.44 Subpart D -- Delegations to Particular Positions
24 CFR 200.44 Delegations to Particular Positions
24 CFR 200.50 Authority for delegations.
(a) Section 5(a) of the Department of Housing and Urban Development
Act (79 Stat. 667) transferred to and vested in the Secretary all of the
functions, powers, and duties of the Federal Housing Commissioner and
the Federal Housing Administration which existed prior to November 9,
1965.
(b) Section 1 of title I of the National Housing Act, the authority
under which the Commissioner and the Federal Housing Administration
operated prior to November 9, 1965, provides in part as follows:
* * * In order to carry out the provisions of this title and titles
II, III, VI, VII, VIII, IX, and X, the Commissioner may establish such
agencies, accept and utilize such voluntary and uncompensated services,
utilize such Federal officers and employees, and, with the consent of
the State, such State and local officers and employees, and appoint such
other officers and employees as he may find necessary, and may prescribe
their authorities, duties, responsibilities, * * *. The Commissioner
may delegate any of the functions and powers conferred upon him under
this title and titles II, III, VI, VII, VIII, IX, and X to such
officers, agents and employees as he may designate or appoint * * *.
(c) Section 7(d) of the Department of Housing and Urban Development
Act (79 Stat. 667) provides in part as follows:
The Secretary may delegate any of his functions, powers, and duties
to such officers and employees of the Department as he may designate,
may authorize such successive redelegations of such functions, powers,
and duties as he may deem desirable, and may make such rules and
regulations as may be necessary to carry out his functions, powers, and
duties * * *.
(d) Interim Order II effective January 18, 1966, (31 FR 815) provides
in part as follows: The offices or positions and organizational units
in the Department shall include, in addition to those otherwise
prescribed:
Each officer or employee appointed to, or designated to act in, the
office or position listed immediately above, and each organizational
unit so listed is hereby authorized to exercise the functions, powers,
and duties vested in, or delegated or assigned to, the office or
position or officer or employee or organizational unit having the same
title immediately prior to the effective date of the Act, and to
redelegate and authorize successive redelegations of such authority to
the extent empowered under authority vested, delegated, or assigned
immediately prior to the effective date of the Act. Authority delegated
herein or redelegated hereunder shall be exercised in the name of the
Secretary, except that authority delegated to the Federal Housing
Commissioner or the Public Housing Commissioner may be exercised in the
name of the Federal Housing Commissioner or the Federal Housing
Administration, respectively, and any actions taken under this
delegation or a redelegation hereunder by or in the name of the Federal
Housing Commissioner, Federal Housing Administration, shall be deemed to
be the action of the Secretary.
(e) Section 207 of the Appalachian Regional Development Act of 1965
authorizes the Secretary of Housing and Urban Development to make loans
and grants, under such terms and conditions as he may prescribe, to
nonprofit, limited dividend, or cooperative organizations, or to public
bodies, for expenses of planning and of obtaining an insured mortgage
for a housing construction or rehabilitation project, under section 221
or 236 of the National Housing Act, in any area of the Appalachian
region determined by the Appalachian Regional Commission to have
significant potential for future growth. The Assistant Secretary --
Federal Housing Commissioner, is, by delegation of authority from the
Secretary, authorized to execute the powers and functions vested in the
Secretary by section 207 of the Appalachian Regional Development Act of
1965, as amended, and is further authorized to redelegate to one or more
employees under his jurisdiction any of the authority delegated by the
Secretary and to authorize successive delegation thereof.
(36 FR 24467, Dec. 22, 1971, as amended at 39 FR 34656, Sept. 27,
1974)
200.51 -- 200.84a (Reserved)
24 CFR 200.84b Regional Administrators, Deputies and Assistants.
To the position of Regional Administrator, and to each of them; and
to the position of Deputy Regional Administrator and to each of them
under the general supervision of the Regional Administrator having
jurisdiction; and to the position of Assistant Regional Administrator
for Housing Production and Mortgage Credit, and to each of them under
the general supervision of the Regional Administrator there is delegated
the basic authority and function to direct and supervise within the
geographical area under his jurisdiction all activities assigned at
Headquarters to the Assistant Secretary for HPMC-FHA Commissioner.
(39 FR 34659, Sept. 27, 1974, as amended at 41 FR 29141, July 15,
1976)
24 CFR 200.84b Delegations to Committees
24 CFR 200.85 Executive Board.
(a) Members. The committee called the Executive Board is composed of
the following members: Assistant Secretary-Federal Housing
Commissioner, Chairman; Deputy Assistant Secretary-Deputy Federal
Housing Commissioner, Vice Chairman; Executive Assistant Commissioner;
Director, Office of Policy and Program Analysis and Development;
Director, Office of Management Systems; Director, Office of
Underwriting Standards; Director, Office of Field Support; Director,
Publicly Financed Housing Division and Director, Property Improvement
and Manufactured Homes Division.
(b) Functions. The functions of the Executive Board are to consider
and advise with respect to basic policy, plans and general program
matters of Housing Production and Mortgage Credit and the Federal
Housing Administration.
(39 FR 34659, Sept. 27, 1974, as amended at 50 FR 9268, Mar. 7, 1985)
24 CFR 200.92 Structural Defects Committee.
(a) Members. The Structural Defects Committee is composed of the
following members or their designees: Director, Office of Underwriting
Standards, Chairman; Director, Single Family Underwriting Division;
Director, Multifamily Underwriting Division; Director, Office of Field
Support: Director, Office of Management Systems; including a
representative of the Director, Mortgage Insurance Accounting (by
agreement with the Assistant Secretary for Administration) and a
representative of the Office of General Counsel and such other members
as the Assistant Secretary-Federal Housing Commissioner may designate.
(b) Functions. The functions of the Structural Defects Committee are
to take appropriate action in exceptionally difficult or questionable
cases relating to expenditures to correct or compensate for structural
or other defects which seriously affect the use and livability of a
house financed with an insured mortgage following established guidelines
pursuant to section 518 of the National Housing Act. The Committee also
acts in an advisory capacity in the establishment of guidelines for the
processing by production personnel of claims under section 518 of the
National Housing Act.
(39 FR 34660, Sept. 27, 1974)
24 CFR 200.93 Multifamily Participation Review Committee.
(a) Members. (1) The Director, Office of Lender Activities and Land
Sales Registration serves as Chairman and does not vote. The Committee
is composed of the following voting members of their designees
representing the Assistant Secretary for Housing -- Federal Housing
Commissioner: the Director of the Office of Insured Multifamily Housing
Development; the Director of the Office of the Elderly and Assisted
Housing; the Director of the Office of Multifamily Housing Management;
the Director of the Office of Multifamily Preservation and Property
Disposition; the Director of the Previous Participation and Compliance
Division; and a designee of the Director of the Office of Lender
Activities and Land Sales Registration. The following voting members of
their designees shall represent the Assistant Secretary for Public and
Indian Housing: the Director of the Office of Construction,
Rehabilitation and Maintenance; and the Director of the Office of
Indian Housing.
(2) The Committee also includes, as non-voting members, the General
Counsel or his or her designee, who provides legal counsel, and the
Participation Control Officer in the Office of Lender Activities and
Land Sales Registration. The Participation Control Officer is the
Executive Secretary to the Committee and is empowered to issue and sign
all notices, orders, letters and directives on behalf of the committee,
to keep minutes, and to perform other duties assigned by the Chairman or
directed by the Committee.
(b) Functions. The Committee will act for the Assistant Secretary
for Housing-Federal Housing Commissioner and for the Assistant Secretary
for Public and Indian Housing to determine the acceptability of
participants in multifamily proposals under subpart H of this part.
(50 FR 37520, Sept. 16, 1985, as amended at 56 FR 41791, Aug. 23,
1991)
24 CFR 200.94 Loan Assistance Committee.
(a) Members. The Loan Assistance Committee is composed of the
following members, or their designees: the Director, Office of
Multifamily Housing Development, Chairman; the Director, Office of
Policy and Program Development; the Director, Office of Management;
and (by agreement with the Assistant Secretary for Administration) the
Director, Office of Financing and Accounting.
(b) Functions. The functions of the Loan Assistance Committee are
the review and approval or disapproval of requests for cancellation or
waiver of repayment, in whole or in part, of loans made under section
106 of the Housing and Urban Development Act of 1968 and section 207 of
the Appalachian Regional Development Act of 1965, as amended.
(44 FR 2384, Jan. 11, 1979)
24 CFR 200.94 Miscellaneous Delegations
24 CFR 200.95 Insuring Office Directors, Deputy Directors, and
Assistants to the Director.
To the position of Director in each HUD Insuring Office, and under
his general supervision to the positions of Deputy Director and
Assistant to the Director and to each of them there is delegated the
following duties and functions:
(a) To execute regulatory agreements and to issue eligibility
statements, letters of feasibility, site appraisal and market analysis
letters (SAMA), and commitments for insurance and to execute insurance
contracts pursuant to such commitments, including mortgage insurance
certificates.
(b) To approve a change in amount, a change in term, extension of the
date of commencement of construction, extension of the expiration date,
or any other modification in the commitment for insurance or insurance
contract.
(c) To approve or disapprove ''Change Orders'' during construction.
(d) To make the high cost determinations for the Federal National
Mortgage Association prescribed in section 305(g) of the National
Housing Act.
(e) To make contracts for mortgage assistance payments under sections
235 and interest reduction payments under section 236 of the National
Housing Act and to approve change in amount, change in term, or any
other modification in such contracts before the mortgage is approved.
(f) To approve permissible refunds of processing fees.
(g) To approve or disapprove for mortgage insurance, advances of
mortgage money during construction and execute such instruments as may
be necessary therewith.
(h) To exercise the authority of the Assistant Secretary-Federal
Housing Commissioner, where required, in granting prior credit approval
under the provisions of title I of the National Housing Act and
regulations thereunder.
(i) To act for the Assistant Secretary-Federal Housing Commissioner
in determining applicable mortgage limits for communities in the
insuring office jurisdiction for all mortgage insurance programs for
which the Assistant Secretary-Federal Housing Commissioner is authorized
to increase basic mortgage limits provided by law where cost levels so
require.
(j) To make reservations of contract authority for mortgage
assistance payments under section 235 of the National Housing Act and to
modify or cancel such reservations and obligations of contract
authority.
(k) To approve loans under section 106 of the Housing and Urban
Development Act of 1968 subject to availability of funds, and under
section 207 of the Appalachian Regional Development Act of 1965, as
amended, subject to the availability of funds and concurrence of the
Appalachian Regional Commission and to approve waiver of interest on
loans made to nonprofit organizations under the Appalachian Regional
Development Act of 1965.
(l) To approve claims and to take appropriate action to contract for
repairs or otherwise correct or compensate the owner in accordance with
established guidelines pursuant to section 518 of the National Housing
Act.
(m) To execute on behalf of the Federal Housing Administration the
reimbursement agreement pursuant to 235.12 of this chapter.
(n) To have in addition to any other authority delegated to them, the
same final authority delegated to their subordinates.
(39 FR 34660, Sept. 27, 1974, as amended at 41 FR 29141, July 15,
1976)
24 CFR 200.95a Service Office Supervisors and Service Office
Underwriters.
To the position of Service Office Supervisor in each HUD Service
Office and under his general supervision to the position of Service
Office Underwriter there is delegated the following basic authority and
functions:
(a) To direct or perform home mortgage insurance functions up to and
including the issuance of firm commitments within the geographic area
under his jurisdiction.
(b) (Reserved)
(39 FR 34660, Sept. 27, 1974)
24 CFR 200.98 Chief Underwriter and Deputy, Chief Mortgage Credit
Examiner and Deputy, Chief Appraiser and Deputy, Commitment Appraiser,
and Commitment Mortgage Credit Examiner.
To the positions of Chief Underwriter, Deputy Chief Underwriter,
Chief Mortgage Credit Examiner, Deputy Chief Mortgage Credit Examiner,
Chief Appraiser, Deputy Chief Appraiser, and to each of them, and with
respect to the issuance of commitments to the positions of Commitment
Appraiser and Commitment Mortgage Credit Examiner, and to each of them,
there is delegated the following duties and functions:
(a) To issue commitments for insurance under any home mortgage
insurance program and to approve modifications of such commitments for
insurance.
(b) To make the high cost determinations for the Federal National
Mortgage Association prescribed in section 305(g) of the National
Housing Act.
24 CFR 200.98a Chief Underwriter and Deputy.
To the positions of Chief Underwriter and Deputy Chief Underwriter
there is delegated the following duties and functions:
(a) To approve and issue feasibility letters, site appraisal and
market analysis letters (SAMA), commitments for mortgage insurance and
insure mortgages pursuant to mortgage insurance commitments on
multifamily housing.
(39 FR 34661, Sept. 27, 1974)
24 CFR 200.100 Closing Clerk.
To the position of Closing Clerk and to each of them there is
delegated the duty and function to execute in the name of the Assistant
Secretary-Commissioner, as authorized agent, mortgage insurance
certificates under any home mortgage program and any other documents
requiring the signature of the authorized agent incident to completion
of the closing of the mortgage insurance transaction.
(36 FR 24467, Dec. 22, 1971, as amended at 39 FR 34661, Sept. 27,
1974)
24 CFR 200.103 Deputy Assistant Secretary-Deputy Commissioner,
Executive Assistant Commissioner, and Directors of HPMC Offices and
Divisions.
To the positions designated above there is delegated the duty and
function to certify that official long distance telephone calls made
were necessary in the interest of the Government, pursuant to 31 U.S.C.
680a (section 4 of the Act approved May 10, 1939, 53 Stat. 738).
(39 FR 34661, Sept. 27, 1974)
24 CFR 200.109 Regional Administrators, Deputy Regional Administrators
and Assistant Regional Administrator for Housing Production and Mortgage
Credit (Region VIII, Denver).
To the position of:
(a) Regional Administrators and Deputy Regional Administrators, and
to each of them, there is delegated the following duties and functions:
(1) To allocate Below Market Interest Rate funds to eligible section
221(d)(3) projects and to make reservations of contract authority and to
obligate contract authority for rent supplements and for interest
reduction payments under section 236 of the National Housing Act and to
modify or cancel such allocations and reservations.
(2) To approve or disapprove the eligibility of nonprofit sponsors
and nonprofit mortgagors.
(3) To recommend to the Director, Office of Underwriting Standards
(HPMC) approval of applications for financial assistance and approval of
waiver of repayment of loans made under section 207 of the Appalachian
Regional Development Act of 1965, as amended.
(4) To approve or disapprove, following initial endorsement,
increases in project mortgage amounts recommended or referred by HUD
Area or insuring Offices.
(5) To make reservations of funds and to approve or disapprove loans
for housing for the elderly or handicapped under section 202 of the
Housing Act of 1959 and to make contracts and execute documents in
connection therewith and, with respect to project applications for
mortgage insurance under section 236 of the National Housing Act, to
determine feasibility under section 236, issue commitments for mortgage
insurance under section 236, insure such mortgages pursuant to such
commitments, including approval of insured advances during construction,
and in connection with section 202 loans to be converted to insured
mortgages under section 236, to assign and deliver such mortgages to the
permanent lender.
(6) To approve claims in excess of $2,000 under section 518 of the
National Housing Act, to advise field offices on exceptionally complex
cases referred to them, and to refer difficult or questionable cases to
the Structural Defects Committee for action.
(7) To have in addition to any other authority delegated to them, the
same final authority delegated to their subordinates.
(8) The duties and functions set forth in 200.118.
(b) To the Assistant Regional Administrator for Housing Production
and Mortgage Credit, Region VIII, Denver, there is delegated the duties
and functions as set forth in 200.118.
(39 FR 34661, Sept. 27, 1974, as amended at 42 FR 5044, Jan. 27,
1977)
24 CFR 200.110 Chief, Valuation Branch or Head, Single-Family Valuation
Section and Commitment Appraiser.
To the position of Chief, Valuation Branch or Head, Single-Family
Valuation Section, in each HUD Area Office, and under his general
supervision to the position of Commitment Appraiser, there is delegated
the following basic authority and function: To approve conditional
commitments to insure 1- to 4-family housing and title X project
mortgages.
(40 FR 6953, Feb. 18, 1975, as amended at 41 FR 29141, July 15, 1976)
24 CFR 200.111 Chief, Mortgage Credit Branch or Head, Single-Family
Mortgage Credit Section and Commitment Mortgage Credit Examiner.
To the position of Chief, Mortgage Credit Branch or Head,
Single-Family Mortgage Credit Section, in each HUD Area Office, and
under his general supervision to the position of Commitment Mortgage
Credit Examiner, there is delegated the following basic authority and
functions:
(a) To approve firm commitments for, and to make interest assistance
payment contracts in conjunction with, the insuring of 1- to 4-family
housing and title X project mortgages.
(b) To grant prior credit approval under the provisions of title I of
the National Housing Act and regulations thereunder.
(36 FR 24467, Dec. 22, 1971, as amended at 38 FR 2759, Jan. 30, 1973;
40 FR 6953, Feb. 18, 1975; 41 FR 29141, July 15, 1976)
24 CFR 200.112 Chief, Mortgage Credit Branch or Head, Multifamily
Mortgage Credit Section.
To the position of Chief, Mortgage Credit Branch or Head, Multifamily
Mortgage Credit Section, in each HUD Area Office, there is delegated the
following basic authority and functions:
(a) To approve financial requirements for closing and execute and
approve effective date interest reduction payment contracts for
multifamily housing programs.
(b) To approve requests for approval of advances under contracts for
planning and land acquisition.
(c) With respect to housing assisted under the United States Housing
Act of 1937, including amendments made by the Housing and Community
Development Act of 1974, to approve requests for approval of advances of
funds under preliminary loan contracts, to approve advances of funds and
requisitions of funds for nonpermanently financed housing, and to
approve determinations of minimum development cost.
(40 FR 6953, Feb. 18, 1975, as amended at 40 FR 39860, Aug. 29, 1975)
24 CFR 200.113 Director/Chief Underwriter or Chief, Multifamily Branch.
To the position of Director/Chief Underwriter or Chief, Multifamily
Branch, in each HUD Area Office, there is delegated the following basic
authority and functions:
(a) To direct underwriting processing for the insurance of mortgages
in other than 1- to 4-family housing and title X projects and establish
and administer related processing target dates and construction starting
dates, to approve preliminary underwriting determinations and recommend
their acceptance for the insurance of mortgages in programs other than
1- to 4-family housing and title X projects, to approve related
construction advances and change orders, and to perform the functions
and exercise the authorities as set forth in 200.112.
(b) To approve schematic documents, architect's fees, findings
(statutory room cost), final plans and specifications, construction
contract awards, memoranda of acceptance for occupancy, dates of full
availability, part I of certificates of completion, preliminary loan
requisitions, development loan requisitions, administrative loan
requisitions, actual development cost certifications, and all
preliminary technical determinations, all as related to the production
of low-rent public housing.
(c) To approve construction contract awards, acceptance of final
inspections, and acceptance of certificates in lieu of audit or audit
reports, all as related to the production of college housing.
(d) To approve and issue feasibility letters, site appraisal and
market analysis letters (SAMA), commitments for mortgage insurance and
insure mortgages pursuant to mortgage insurance commitments on
multifamily housing.
(e) To make reservations of rent supplement contract authority for
section 236 projects.
(36 FR 24467, Dec. 22, 1971, as amended at 39 FR 34661, Sept. 27,
1974; 40 FR 6953, Feb. 18, 1975)
24 CFR 200.114 Director/Chief Underwriter or Chief, Single-Family
Branch and Deputy Director/Deputy Chief Underwriter.
To the position of Director/Chief Underwriter, in each HUD Area
Office, and under his general supervision to the positions of Deputy
Director/Deputy Chief Underwriter and Chief, Single-Family Branch, there
is delegated the following basic authority and functions:
(a) The duties and functions as set forth in 200.110 and 200.111.
(b) To establish and administer 1- to 4-family housing and title X
project mortgage insurance application processing target dates.
(c) To approve applications, subdivision reports, and construction
changes related to the production of 1- to 4-family housing and title X
projects.
(d) To execute on behalf of the Federal Housing Administration the
reimbursement agreement pursuant to 235.12 of this chapter.
(e) To approve and issue feasibility letters, or subdivision reports
in lieu thereof; to approve and issue commitments for mortgage
insurance upon completion; and to insure mortgages pursuant to such
commitments under section 234 of the National Housing Act, in cases
involving one- to four-family structures or groups of such structures.
(36 FR 24467, Dec. 22, 1971, as amended at 39 FR 34661, Sept. 27,
1974; 40 FR 6953, Feb. 18, 1975)
24 CFR 200.115 Director/Chief Underwriter or Chief, Multifamily Branch
and Multifamily Housing Representative.
To the position of Director/Chief Underwriter or Chief, Multifamily
Branch, in each HUD Area Office, and under his general supervision to
the position of Multifamily Housing Representative, there is delegated
the following basic authority and functions:
(a) To coordinate the participation in and support by those
activities in the Area Office necessary to achieve required interprogram
coordination in dealing with applications for:
(1) Mortgage insurance in programs other than 1- to 4-family housing
and title X projects, (2) housing assisted under the United States
Housing Act of 1937, including amendments made by the Housing and
Community Development Act of 1974, and (3) other subsidized housing
projects.
(b) To approve findings of acceptability of proposals with respect to
their completeness, compatibility with program policy, and, as
applicable, the satisfaction of eligibility criteria.
(40 FR 6954, Feb. 18, 1975, as amended at 40 FR 39860, Aug. 29, 1975)
24 CFR 200.116 Director/Chief Underwriter and Deputy Director/Deputy
Chief Underwriter.
To the position of Director/Chief Underwriter, in each HUD Area
Office, and under his general supervision to the position of Deputy
Director/Deputy Chief Underwriter there is delegated the following basic
authority and functions:
(a) To direct all activities essential to the insurance of mortgages,
including the approval of determinations supporting feasibility letters,
commitments and insurance endorsements, and the approval of cost
certifications, eligibility statements, regulatory agreements, nonprofit
sponsors and housing consultants, all as related to mortgages in
programs other than 1- to 4-family housing and title X projects; to
establish and monitor adherence to related processing priorities and
schedules, and to perform the functions and exercise the authorities set
forth in 200.113, 200.114, and 200.115.
(b) To approve preliminary loan contracts, site reports, development
programs, Annual Contributions Contracts, and amendments thereto and
related third-party contracts, turnkey housing proposals, preliminary
contracts of sale, contracts of sale, agreements to lease, Housing
Assistance Payments (HAP) Contracts, and Agreements to Enter into HAP
Contracts, all as related to the production of housing assisted under
the United States Housing Act of 1937, including amendments made by the
Housing and Community Development Act of 1974.
(c) To approve loan or grant agreements, financing plans (grants),
loan disbursements, final inspections, and certificates in lieu of audit
or audit reports, all as related to the production of college housing.
(d) To approve, cancel, or modify the reservations of contract
authority required for subsidy payments, and the allocations of funds
for Below Market Interest Rate Loans, all as related to the insuring of
1- to 4-family and multifamily housing mortgages.
(e) To approve and issue feasibility letters, site appraisal and
market analysis letters (SAMA), commitments for mortgage insurance and
insure mortgages pursuant to mortgage insurance commitments on
multi-family housing.
(36 FR 24467, Dec. 22, 1971, as amended at 38 FR 2759, Jan. 30, 1973;
39 FR 34661, Sept. 27, 1974; 40 FR 6954, Feb. 18, 1975; 40 FR 39860,
Aug. 29, 1975; 41 FR 29141, July 15, 1976)
24 CFR 200.118 Area Director and Deputy Area Director.
To the position of Area Director in each HUD Area Office and under
his general supervision to the position of Deputy there is delegated the
following basic authority and functions:
(a) To administer the activities of the Area Office for insuring
mortgages within the assigned insuring jurisdiction, to administer the
low-rent and other housing production activities of the Area Office, and
to perform the functions and exercise the authorities set forth in
200.116 and 200.117.
(b) To approve applications, feasibility letters, conditional
commitments, firm commitments, initial and final endorsements for
insurance pursuant to such commitments, project mortgage increases prior
to or in conjunction with final endorsement, insurance fee refunds and
adjustments pursuant to outstanding fiscal instructions, requests from
sponsors for section 106 seed money loans or grants, and Appalachian 207
loans.
(c) To administer the housing production activities of the Area
Office with respect to housing assisted under the United States Housing
Act of 1937, including amendments made by the Housing and Community
Development Act of 1974, including, but not limited to, the authority to
approve proposals, (including proposals relating to projects financed
under Section 202), applications for program reservations and
preliminary loans, and ACC (Annual Contributions Contract) and/or HAP
Contract (Housing Assistance Payments Contract) Lists and amendments
thereto, to terminate or require the termination of ACC's and/or HAP
Contracts, and to determine that there is no practical alternative to
high-rise elevator projects for families with children, all as related
to housing production.
(d) To approve reservations of funds for college housing.
(e) To assign and deliver mortgages to the permanent lender, in
connection with section 202 loans to be converted to insured mortgages
under section 236.
(1) To make reservations of funds and to approve or disapprove loans
for housing for the elderly or handicapped under section 202 of the
Housing Act of 1959 and to make contracts and execute documents in
connection therewith.
(f) To approve claims and to take appropriate action to contract for
repairs or otherwise correct or compensate the owner in accordance with
established guidelines pursuant to section 518 of the National Housing
Act.
(g) To have in addition to any other authority delegated to them, the
same final authority delegated to their subordinates.
(36 FR 24467, Dec. 22, 1971, as amended at 36 FR 25152, Dec. 29,
1971; 38 FR 2759, Jan. 30, 1973; 39 FR 34662, Sept. 27, 1974; 41 FR
10604, Mar. 12, 1976; 41 FR 29141, July 15, 1976; 42 FR 5044, Jan.
27, 1977)
24 CFR 200.119 Designation of officials to perform certain functions
with respect to the insurance of mortgages.
(a) Specification of functions. Each of the officials appointed to
the positions set forth in paragraph (b) of this section is designated
to act for the Area Director solely for the purpose of executing the
following instruments essential to the approval of a mortgage for
insurance:
(1) The regulatory agreement between the Secretary and the owner;
(2) The agreement and certification between the Secretary, mortgagor,
and mortgagee;
(3) The rent supplement contract between the Secretary and the
housing owner; and
(4) The endorsement of the note for mortgage insurance.
(b) Officials designated. The functions described in paragraph (a)
of this section may be exercised by the officials appointed to the
following positions:
(1) The Deputy Area Director.
(2) The Director/Chief Underwriter.
(3) The Deputy Director, Operations Division; and
(4) The Assistant to the Director, Operations Division.
(37 FR 7156, Apr. 11, 1972, as amended at 40 FR 6954, Feb. 18, 1975)
24 CFR 200.128 Director and Deputy Director of the Insuring Offices.
To the position of Director, and under his general supervision to the
position of Deputy Director, of each Insuring Office listed below, with
respect to the production of housing units within the jurisdiction of
the Insuring Office, there is redelegated the authority to perform the
functions and exercise the authorities set forth in 200.118 (c) and
(e)(1).
Phoenix, AZ; Fresno, CA; Sacramento, CA; Santa Ana, CA; Denver,
CO; Springfield, IL; Des Moines, IA; Topeka, KS; Shreveport, LA;
Grand Rapids, MI; Helena, MT; Albuquerque, NM; Albany, NY;
Cincinnati, OH; Cleveland, OH; Providence, RI; Memphis, TN; Houston,
TX; Salt Lake City, UT; Spokane, WA; Charleston, WV.
(42 FR 5044, Jan. 27, 1977)
24 CFR 200.129 Director, Housing Development Division, and Deputy
Director, Housing Development Division, Insuring Offices.
To the position of Director, Housing Development Division (formerly
Chief Underwriter), and under his general supervision to the position of
Deputy Director, Housing Development Division (formerly Deputy Chief
Underwriter), of each Insuring Office listed below, with respect to the
production of housing units within the jurisdiction of the Insuring
Office, there is redelegated the authority to perform the functions and
exercise the authorities set forth in 200.113, and 200.115 and 200.116
(41 FR 24755, June 18, 1976).
Phoenix, AZ; Sacramento, CA; Santa Ana, CA; Denver, CO;
Springfield, IL; Des Moines, IA; Topeka, KS; Shreveport, LA; Grand
Rapids, MI; Helena, MT; Alburquerque, NM; Albany, NY; Cincinnati,
OH; Cleveland, OH; Providence, RI; Memphis, TN; Houston, TX; Salt
Lake City, UT; Spokane, WA; Charleston, WV.
(41 FR 52450, Nov. 30, 1976)
24 CFR 200.129 Subpart E -- Mortgage Insurance Procedures and Processing
24 CFR 200.140 Scope of subpart.
This subpart is confined to general procedures and processing
covering mortgage insurance irrespective of the particular program
involved. More specific information regarding procedures and
processing, including variances under the several titles and sections of
the National Housing Act, are treated in other provisions of this
chapter.
24 CFR 200.141 Procedure in general.
(a) All mortgage insurance programs, with the exception of the single
family Direct Endorsement and coinsurance programs, involve four steps.
First, application for insurance; second, commitment for insurance;
third, insurance endorsement; and fourth, where applicable, a claim for
loss.
(b) Except as set forth in 203.3(b)(4) and 203.5(e), commitments
are not issued by HUD under the Direct Endorsement program.
(48 FR 11936, Mar. 22, 1983, as amended at 57 FR 58339, Dec. 9, 1992)
24 CFR 200.141 Application for Insurance
24 CFR 200.142 Form and filing.
Any financial institution approved by the Commissioner as a mortgagee
may apply for mortgage insurance. Application forms prescribed by the
Secretary or his designee may be printed by the institution or may be
purchased from the Superintendent of Documents, U.S. Government Printing
Office. When fully executed, forms are submitted to the HUD office
having jurisdiction over the area where the property is located for
which insurance is requested. In the case of those counties approved by
HUD as lender option counties for Single Family Programs, applications
may be submitted to the office having jurisdiction over the property or
any office that is geographically closer to the property.
(51 FR 22802, June 23, 1986)
24 CFR 200.143 Purpose and content.
Every application, whether for insurance of a home type or project
type mortgage, sets forth the required information to enable FHA to
determine eligibility under a particular program. The eligibility
consideration covers three general areas as follows:
(a) The eligibility of the proposed loan under the statute, i.e.,
term, interest rate, mortgage amount, and ratios of loan to value or
replacement cost.
(b) The eligibility of the property with respect to compliance with
FHA statutory and regulatory requirements.
(c)(1) The eligibility of the mortgagor with regard to the
mortgagor's ability to carry and pay the proposed mortgage debt.
(2) Applications are designed to meet the requisites of the several
programs. Accordingly, the applications will call for certain
supplemental information, such as drawings and specifications, financial
statements, exhibits and other information appropriate to enable the FHA
to make the necessary determinations concerning eligibility.
24 CFR 200.144 Fees.
Each application must be accompanied by a fee for examination in an
amount in effect on the date the application is filed as indicated by
the regulations covering the particular insurance program.
24 CFR 200.145 Technical analysis, underwriting processing and
inspections
(a) When an application for mortgage insurance is received in the
Field Office it is recorded and a receipt issued therefor. The proposed
transaction is then analyzed to determine whether the application and
supporting information is in proper form for underwriting processing.
(b) Underwriting processing involves consideration of the elements
having to do with eligibility for insurance including review of the
planning, construction, and specifications, cost estimation and
valuation, and credit analysis. The findings are included in a report
and recommendation which is the basis for the commitment. Except as set
forth in 203.3(b)(4) and 203.5(e), commitments are not issued by HUD
under the Director Endorsement program.
(c)(1) As part of its underwriting processing for single and
multifamily mortgage insurance programs, HUD may require an appraisal
and inspection of the property covered by the mortgage. These
appraisals and inspections are performed to determine the maximum
insurable mortgage amount and to protect the Government and its
insurance funds. Appraisals and inspections neither create nor imply a
duty or obligation from HUD to the mortgagor or to any other party, and
are not to be regarded as a warranty by HUD to the mortgagor, or to any
other party, of the value or condition of the property. The mortgagor
is responsible for making those investigations and inspections it deems
necessary for protecting its interests in the property.
(2) In connection with the insurance of mortgages covering single
family homes, HUD requires the seller or builder, or such other person
as HUD may designate, to deliver to the purchaser before the sale a
written statement of appraised value. This estimate of value is used by
HUD in determining the maximum mortgage amount it will insure. The
written statement of appraised value is not to be regarded as a warranty
by HUD to the mortgagor or any other party as to the value or condition
of the property. The purchaser must satisfy himself or herself that the
price of the property is reasonable and that its condition is
acceptable.
(36 FR 24467, Dec. 22, 1971, as amended at 48 FR 11936, Mar. 22,
1983; 54 FR 19887, May 9, 1989; 57 FR 58339, Dec. 9, 1992)
24 CFR 200.146 Acceptance, rejection and reconsideration.
(a) If an application for mortgage insurance meets the eligibility
requirements, a commitment for insurance is issued. Except as set forth
in 203.3(b)(4) and 203.5(e), commitments are not issued by HUD under
the single family program of Direct Endorsement program. Under this
program the Department determines whether the mortgage is eligible for
insurance by engaging in the pre-endorsement review set forth in
203.255(c).
(b) If the application for mortgage insurance is not eligible for
processing or does not qualify, this fact is reported to the applicant
together with the reason for the rejection.
(c) A rejected application for mortgage insurance may be reconsidered
upon written request to the Field Office which rejected the application.
(36 FR 24467, Dec. 22, 1971, as amended at 48 FR 11937, Mar. 22,
1983; 57 FR 58339, Dec. 9, 1992)
24 CFR 200.146 Commitment for Insurance
24 CFR 200.147 Issuance of commitment.
After a determination that the mortgagor and the property offered for
security meet the standards and requirements as to eligibility, a
commitment is prepared at the request of the mortgagee and forwarded
over the signature of the Authorized Agent to the approved mortgagee
setting forth the terms and conditions under which the mortgage
transaction will be insured. The commitment is a binding contract
between HUD and the mortgagee presenting the application. Except as set
forth in 203.3(b)(4) and 203.5(e), commitments are not issued by HUD
under the Direct Endorsement program.
(48 FR 11937, Mar. 22, 1983, as amended at 57 FR 58340, Dec. 9, 1992)
24 CFR 200.148 Types of commitments.
(a) Home mortgages. In connection with home mortgages the commitment
issued may be conditional or firm.
(1) Conditional commitment. A conditional commitment is requested in
a case where the mortgagor is unknown and therefore cannot be specified
in the application. The Commissioner agrees to insure a mortgage on
specified property in an amount and under the terms specified, provided
the property is sold to a purchaser who is satisfactory to the FHA as a
borrower.
(2) Master conditional commitment. A master conditional commitment
(MCC) may be used at the request of a mortgagee who desires conditional
commitments for a group of five or more properties of the same type, or
a group that includes more than one type when each type is represented
by five or more properties. In such case, the Commissioner agrees to
insure a mortgage on each of the properties in the group, provided each
such property meets the terms specified in the commitment and is sold to
a purchaser who is satisfactory to the FHA as a borrower. Mortgagees
approved for Direct Endorsement may use the MCC procedure as a ''Master
Appraisal Report'' (MAR) process. The master conditional commitment
shall be in a specified amount (or amounts, when house types of
different values are included). The Commissioner's agreement to insure
is based upon a determination of the acceptability of each house type in
terms of plans, specifications, and compliance with applicable building
standards and upon an evaluation of the site, together with the
subdivision or improved area of which the site is a part.
(3) Firm commitment. A firm commitment is requested where the
mortgagee desires insurance of a mortgage on specified property with a
named mortgagor in an amount and on terms set forth in the commitment.
(b) Project mortgages. In connection with project mortgages the
mortgagee may specify which of two types of commitments he desires.
(1) Commitment for insurance of advances. A commitment for insurance
of advances specifies that the FHA will insure construction advances,
subject to compliance with the commitment terms.
(2) Commitment to insure upon completion. A commitment to insure
upon completion does not include construction advances, but provides
that the FHA will insure the mortgage upon completion of the project
subject to compliance with the commitment terms.
(36 FR 24467, Dec. 22, 1971, as amended at 52 FR 6779, Mar. 5, 1987;
57 FR 58340, Dec. 9, 1992)
24 CFR 200.149 Terms and conditions.
(a) The commitment sets forth the exact conditions under which the
FHA will insure the mortgage loan. It indicates the maximum eligible
term of years, the amount of such loan, the interest rate and the amount
of the monthly installment, including principal and interest. In
addition, in connection with proposed construction there may be
provision for structural requirements and the number and type of
inspections necessary. In the case of project mortgages, the commitment
may indicate a schedule of advances which will be insured upon a finding
that such advances are made in accordance with the commitment.
(b) A commitment is for a definite period of time and contains
cancellation conditions which permit FHA to cancel the commitment in
case of non-compliance with its terms. Upon full compliance with the
terms of the commitment instrument, the FHA is legally bound to endorse
the mortgage for insurance.
24 CFR 200.149 Insurance Endorsement
24 CFR 200.150 Request for endorsement.
(a) When all conditions of the commitment are fully met, the
commitment, together with all supporting documents such as the note,
mortgage and any other exhibits as required by the terms of the
commitment, are returned to HUD by the mortgagee for endorsement for
insurance.
(b) For applications involving mortgages originated under the Direct
Endorsement program, the mortgagee shall request endorsement for
insurance as provided in 203.255(b).
(48 FR 11937, Mar. 22, 1983, as amended at 57 FR 58340, Dec. 9, 1992)
24 CFR 200.151 Final review.
Upon receipt of a request for endorsement the FHA makes a final
review of the commitment and the supporting documents to determine that
all are in proper order and that the terms and conditions have been
fully performed.
24 CFR 200.152 Endorsement for insurance.
(a) When it has been determined that the terms and conditions of the
commitment have been fully complied with, the Secretary insures the
mortgage and evidences the insurance by the issuance of a Mortgage
Insurance Certificate for single family mortgages or by the signature of
the Secretary's authorized agent in the endorsement panel on the
mortgage for multifamily mortgages.
(b) For applications involving mortgages originated under the Direct
Endorsement program, the Secretary shall determine whether the mortgage
is eligible for insurance as provided in 203.255(c). If the mortgage is
determined to be eligible, the Secretary insures the mortgage and
evidences the insurance by issuance of a Mortgage Insurance Certificate.
(c) After the mortgage is insured, the mortgagee is entitled to the
benefits of insurance subject to compliance with the administrative
regulations which are a part of the insurance contract.
(57 FR 58340, Dec. 9, 1992)
24 CFR 200.152 Claims for Losses
24 CFR 200.153 Presentation of claim.
In the event of a default of an insured mortgage, the mortgagee
presents a claim for insurance benefits. The application form for
debentures and certificate of claim may be obtained from the
Headquarters Office in Washington and is filed with the FHA Comptroller
in Washington, DC.
24 CFR 200.154 Notice of default.
Upon default in a mortgage, the mortgagee submits a notice of default
status to the FHA Insuring Office having jurisdiction over the area
wherein the mortgage security is located.
24 CFR 200.155 Claim requirements.
(a) In the home mortgage programs, a mortgagee is required, in order
to perfect its claim for the payment of the insurance benefits, to:
Assign the mortgage to the Commissioner; or obtain a deed in lieu of
foreclosure and convey good marketable title to the property covered by
the insured mortgage to the Commissioner; or foreclose the insured
mortgage. In connection with the foreclosure of an insured mortgage the
mortgagee may either convey good marketable title to the foreclosed
property to the Commissioner, or file a claim for the insurance benefits
without conveying title to the Commissioner in accordance with 203.368.
(b) In project mortgage programs, in order to perfect a claim for
payment, the mortgagee is required either to assign the project mortgage
to the Commissioner, or to foreclose the property covered by the insured
mortgage and tender to the Commissioner a good, marketable title. If
the mortgagee elects to assign the project mortgage, the claim for
insurance is reduced by one percent of the amount of the mortgage.
(Approved by the Office of Management and Budget under control number
2535-0093)
(52 FR 1326, Jan. 13, 1987)
24 CFR 200.156 Settlement of claims.
Upon approval of title conveyance thereof and delivery of possession
of the property to the Commissioner, debentures and a certificate of
claim are issued to the mortgagee in accordance with a computation
provided by statute for the particular program. The debentures include
an amount equal to the unpaid principal of the mortgage plus certain
other items such as advances made for hazard insurance, payment of
taxes, FHA mortgage insurance premium and a portion of foreclosure
expenses. The terms of the statute strictly control the amounts which
may be allowed in debentures. Certain expenditures made by the
mortgagee, not allowed in the debentures, are included in the
certificate of claim. In single family programs, payment of claims may
be made in cash, debentures, or a combination of both as determined by
the Commissioner, and a claim may be paid without the conveyance of
title and delivery of possession to the Commissioner pursuant to
203.368.
(36 FR 24467, Dec. 22, 1971, as amended at 52 FR 1327, Jan. 13, 1987)
24 CFR 200.157 Provisions and characteristics of debentures.
(a) Series and fund. Debentures are issued in appropriate series and
are the obligation of and issued in the name of the particular mortgage
insurance fund under which the mortgage is insured.
(b) Registration, denomination and execution. Debentures are issued
in registered form and in denominations of $50, $100, $500, $1,000,
$5,000 and $10,000. Debentures are signed by the Federal Housing
Commissioner by facsimile signature and imprinted with the seal of the
Federal Housing Administration.
(c) Rate of interest and interchangeability. Debentures carry a rate
of interest prescribed by the Commissioner but not in excess of an
annual rate determined by the Secretary of the Treasury in accordance
with a prescribed statutory formula involving yields or prices of
outstanding marketable obligations of the United States. Debentures of
the same series bearing the same interest rate and having the same
maturity date shall be freely interchangeable between the various
authorized denominations.
(d) Negotiability and redemption. Debentures are negotiable and are
fully guaranteed as to principal and interest by the United States.
Debentures are redeemable on call issued by the Commissioner.
(e) Payment of principal and interest. Principal and interest of
debentures shall be payable when due at the Treasury Department,
Washington, DC, or at any Government agency or agencies in the United
States which the Secretary of the Treasury may from time to time
designate for that purpose. The principal and interest shall be payable
to the registered owner whose name shall be inscribed on the debentures
or to the assignee as shown by executed assignments.
(f) Transfer and use -- (1) In general. Debentures are fully
transferable and may be freely sold or assigned. They may be used by
approved mortgagees in lieu of cash for payment of FHA mortgage
insurance premiums.
(2) Mutual Mortgage Insurance Fund debentures. Debentures of the
Mutual Mortgage Insurance Fund may be used to pay mortgage insurance
premiums on mortgages insured under sections 203(b), 203(h), and 203(i),
of the National Housing Act.
(3) Cooperative Management Housing Insurance Fund debentures.
Debentures which are the obligation of the Cooperative Management
Housing Insurance Fund may be used to pay premiums on mortgages and
loans which are insured under that Fund. Where the insurance of a
mortgage or loan is transferred from the General Insurance Fund to the
Cooperative Management Housing Insurance Fund, or where a mortgage or
loan is endorsed for insurance pursuant to a commitment transferred to
the Cooperative Management Housing Insurance Fund, debentures issued in
connection with such mortgage or loan may be used to pay insurance
premiums of either the Cooperative Management Housing Insurance Fund or
the General Insurance Fund.
(4) General Insurance Fund and debentures of other funds. Debentures
of the General Insurance Fund and those debentures issued as obligations
of mortgage insurance funds and accounts in existence prior to the
enactment of the Housing and Urban Development Act of 1965 (other than
the Mutual Mortgage Insurance Fund) which are transferred by the 1965
Act to the General Insurance Fund may be used to pay mortgage insurance
premiums only on the following mortgages and loans:
(i) Those which are the obligation of the General Insurance Fund.
(ii) Those transferred from the General Insurance Fund to the
Cooperative Management Housing Insurance Fund.
(iii) Those endorsed for insurance pursuant to commitments
transferred to the Cooperative Management Housing Insurance Fund.
24 CFR 200.158 Applicability of Treasury regulations to debenture
transactions.
The U.S. Treasury Department is the agent for the Commissioner in
connection with transactions and operations relating to debentures. The
general regulations of the U.S. Treasury Department governing
transactions and operations in United States registered bonds, and the
payment of interest thereon, are adopted, so far as applicable, as the
regulations of the Commissioner for similar transactions and operations
in debentures, including the payment of interest on, with the following
exceptions:
(a) Payment of final interest on maturing or called debentures. If
the notice of maturity or call for redemption shall so provide, the
final installment of interest payable on any debentures at maturity or
earlier redemption date may be paid with the principal in accordance
with the assignments on the debentures instead of by separate check
drawn to the order of the registered payee and forwarded to him at his
address of record.
(b) Closing of transfer books. If the call for redemption shall so
provide, the books maintained by the Treasury Department may be closed
against transfers and denominational exchanges in debentures for three
full months preceding any interest payment date with respect to any
debentures called for redemption on such interest payment date.
(c) Detached assignments. Detached assignments shall be recognized
and accepted in any particular case in which the use of detached
assignments is specifically authorized by the Treasury Department. Any
assignment not made upon the debentures is considered a detached
assignment.
(d) Assignments by corporations for redemption for their own account.
A debenture registered in the name of, or assigned to, a corporation
will be paid to such corporation, at maturity or earlier redemption
date, upon an appropriate assignment for that purpose executed on behalf
of the corporation by a duly authorized officer thereof. An assignment
so executed and duly attested to in accordance with Treasury Department
regulations will ordinarily be accepted without proof of the officer's
authority. In all cases within this exception, payment will be made
only by check drawn to the order of the corporation.
24 CFR 200.159 Relief on account of lost, stolen, destroyed, mutilated
or defaced debentures.
The statutes of the United States and the regulations of the Treasury
Department governing relief on account of the loss, theft, destruction,
mutilation or defacement of United States securities, so far as
applicable and as necessarily modified to relate to debentures, are
adopted as the regulations of the Commissioner for the issuance of
substitute debentures or the payment of lost, stolen, destroyed,
mutilated or defaced debentures.
24 CFR 200.160 Redemption of debentures prior to maturity.
Debentures shall, at the option of the Commissioner and with the
approval of the Secretary of the Treasury, be redeemable at par plus
accrued interest on any semiannual interest payment date on 3 months'
notice of redemption given in such manner as the Commissioner shall
prescribe. The debenture interest on the debentures called for
redemption shall cease on the semiannual interest payment date
designated in the call notice. The Commissioner may include with the
notice of redemption an offer to purchase the debentures at par plus
accrued interest at any time during the period between the notice of
redemption and the redemption date. If the debentures are purchased by
the Commissioner after such call and prior to the named redemption date,
the debenture interest shall cease on the date of purchase.
24 CFR 200.161 Administration of debenture transactions.
The Secretary of the Treasury or the Acting Secretary of the Treasury
is authorized and empowered, on behalf of the Commissioner, to
administer the regulations governing any transactions and operations in
debentures, to do all things necessary to conduct such transactions and
operations, and to delegate such authority at his discretion to other
officers, employees, and agents of the U.S. Treasury Department. At
his discretion the Secretary, the Under Secretary, or any Assistant
Secretary of the Treasury acting by direction of the Secretary, is
authorized to waive any such regulation on behalf of the Commissioner in
any particular case where a similar regulation of the Treasury
Department with respect to United States bonds or interest thereon would
be waived.
24 CFR 200.162 Certificates of claim.
The certificate of claim issued to the mortgagee at the time
debentures are issued constitutes an agreement by the FHA that after the
FHA has recovered its investment in a particular property any excess
over and above such investment is available for payment on the
certificate of claim. Certificates of claim bear interest at the rate
of 3 percent per annum.
24 CFR 200.162 Subpart F-G -- (Reserved)
24 CFR 200.162 Subpart H -- Participation and Compliance Requirements
Source: 45 FR 54199, Aug. 14, 1980, unless otherwise noted.
24 CFR 200.162 Previous Participation Review and Clearance Procedure
24 CFR 200.210 Policy.
It is the Department's policy that participants in its housing
programs be responsible individuals and organizations who will honor
their legal, financial and contractual obligations. Accordingly,
uniform standards are established in this part for approval,
disapproval, or withholding of action on principals in projects based
upon their past performance as well as other aspects of their records.
24 CFR 200.213 Applicability of procedure.
The Previous Participation Review and Clearance procedure set forth
in this part is administered by the Assistant Secretary for
Housing-Federal Housing Commissioner and is applicable to all principals
and to their:
(a) Projects already financed or which are proposed to be financed
with a mortgage insured under the National Housing Act and projects
subject to a mortgage held by the Secretary under that Act or projects
acquired by the Secretary under that Act (FHA projects);
(b) Projects financed or to be financed with direct loans or projects
acquired by the Secretary pursuant to section 202 of the Housing Act of
1959 (Housing for the Elderly and Handicapped);
(c) Projects in which 20% or more of the units now receive or will
receive a subsidy in the form of:
(1) Interest reduction payments under section 236 of the National
Housing Act;
(2) Rent Supplement payments under section 101 of the Housing and
Urban Development Act of 1965;
(3) Housing assistance payments under section 8 of the United States
Housing Act of 1937 (with the exception of the programs described in 24
CFR part 882, subparts A, B, C and F, and in 24 CFR part 887, which are
tenant-based programs);
(d) Public Housing projects financed or to be financed or modernized
under the United States Housing Act of 1937; and
(e) Sales of projects by the Secretary, including ''all cash'' sales.
(45 FR 54199, Aug. 14, 1980, as amended at 56 FR 50820, Oct. 9, 1991)
24 CFR 200.215 Definitions.
(a) Affiliate. Any person or business concern that directly or
indirectly controls policy of a principal or has the power to do so is
an affiliate. Persons and business concerns controlled by the same
third party are also affiliates.
(b) Felony. A felony is any offense punishable by imprisonment for a
term exceeding one year, but does not include any offense classified as
a misdemeanor under the laws of a State and punishable by a term of
imprisonment of two years or less.
(c) Packager or Consultant. A person or firm that furnishes or
proposes to furnish advisory services in connection with the financing
or construction of a project and the related HUD requirements. Such
services may include, but are not limited to, the selection and
negotiation of contracts with a general contractor, architect, attorney
or management agent.
(d) Participation Control Officer. (See 200.224)
(e) Principal. (1) An individual, joint venture, partnership,
corporation, trust, nonprofit association, or any other public or
private entity proposing to participate, or participating, in a project
as sponsor, owner, prime contractor, Turnkey Developer, management
agent, nursing home administrator or operator, packager, or consultant;
and architects and attorneys who have any interest in the project other
than an arms-length fee arrangement for professional services.
(2) The term principal also includes: (i) Any affiliates of a
principal; (ii) if the principal is a partnership, all general
partners, and each limited partner having a 25 percent or more interest
in the partnership; (iii) if the principal is a public or private
corporation or governmental entity; the President, Vice-President,
Secretary and Treasurer and any other executive officers who are
directly responsible to the Board of Directors, or the equivalent
thereof; all the directors; and each stockholder having a 10 percent
or more interest.
(3) Specifically excepted from this definition of a principal are:
(i) Parties whose sole interest is that of purchaser or owner of less
than five individual unit(s) in the same condominium or cooperative
development; (ii) parties whose sole interest is that of a tenant; and
(iii) Public Housing Agencies.
(f) Project. A project is: (1) Five or more residential units
covered by a single mortgage, loan or contract of assistance; (2) a
hospital, group practice facility or nursing home; (3) cooperative and
condominium developments; and (4) a subdivision being developed and
financed with a mortgage under title X of the National Housing Act.
(g) Review Committee. (See 200.224 and 200.93).
(h) Risk. In order to determine whether a participant's
participation in a project would constitute an unacceptable risk, the
following factors must be considered: Financial stability; previous
performance in accordance with HUD statutes, regulations, and program
requirements; general business practices; or other factors which
indicate to the MPRC that the principal could not be expected to operate
the project in a manner consistent with furthering the Department's
purpose of supporting and providing decent, safe and affordable housing
for the public.
(45 FR 54199, Aug. 14, 1980, as amended at 56 FR 50820, Oct. 9, 1991)
24 CFR 200.217 Filing of previous participation certificate on
prescribed form.
(a) A previous participation certificate on a form prescribed by the
Assistant Secretary of Housing-Federal Housing Commissioner shall be
completed by every principal in each of the following transactions and
shall be filed with HUD at the times specified herein:
(1) Projects to be financed with mortgages insured under the National
Housing Act (FHA) -- With an Application for a Site Appraisal and Market
Analysis Letter, Feasibility Letter, Conditional Commitment for Mortgage
Insurance, or Firm Commitment for Mortgage Insurance, whichever
Application is first filed;
(2) Projects to be financed pursuant to section 202 of the Housing
Act of 1959 (Elderly and Handicapped) -- With the Application for a Fund
Reservation;
(3) Public housing projects to be financed pursuant to the United
States Housing Act of 1937:
(i) The developer and prime contractor -- With the Turnkey proposal
or Conventional Construction Bid;
(ii) All other Principals -- Prior to selection;
(4) Projects in which 20% or more of the units are to receive a
subsidy as described under 200.213(c) -- With the first request for a
reservation of funds for assistance payments;
(5) Purchase of a project subject to a mortgage insured or held by
the Secretary -- With the Application for Transfer of Physical Assets;
(6) Purchase of a Secretary-owned project -- With the Bid to
Purchase;
(7) Proposed substitution or addition of a principal, such as
management agents or partners or proposed participation in a different
capacity from that previously approved for the same project -- Prior to
the date that the proposed action or transfer is to become final; and
(8) Proposed acquisition by existing limited partner or stockholder
of additional interest resulting in a total interest of at least 25
percent or 10 percent, respectively -- Prior to the proposed
acquisition.
(b) Certificates are not required for interests acquired by
inheritance or by Court decree.
24 CFR 200.218 Who must certify and sign.
All principals must certify and sign the certificate personally as to
their individual record and are responsible for its timely filing with
the HUD Area Office in whose jurisdiction the project or proposal is
located except:
(a) When a corporation is a principal all its officers, directors and
principal stockholders need not individually sign, certify nor file the
certificate when they all have the same record. When their previous
participation records are the same the officer authorized to sign for
the corporation will list on the certificate the full names for all such
principals connected with the corporation who do not elect to sign.
Those principals who have a separate participation record outside that
of their corporation must certify, sign and file. The objective is full
disclosure.
(b) The Participation Control Officer is authorized to waive the
requirement for signatures for good cause in cases where he finds that
adequate provision has been made for full disclosure, and the signature
is thereafter provided.
24 CFR 200.219 Content of certification.
(a) Each principal who executes the certificate certifies that:
(1) The certificate contains a listing of every assisted or insured
project of HUD, Farmers Home Administration and State or local
government housing finance agencies in which the principal has been or
is now a principal;
(2) For a period beginning 10 years prior to the date of the
certificate under review and except as shown on the certificate:
(i) No mortgage on a project listed has ever been in default nor has
mortgage relief been given;
(ii) There have been no defaults or noncompliances under any
conventional construction contract or Turnkey contract of sale in
connection with a public housing project;
(iii) There are no known unresolved findings raised as a result of
HUD audits, management reviews or other governmental investigations;
(iv) There has been no suspension or termination of payments under
any HUD assistance contract attributable to the fault or negligence of
principal;
(v) The principal has not been convicted of a felony (See definitions
200.215(b)) and is not presently the subject of a complaint or
indictment charging a felony;
(vi) The principal has not been suspended, debarred, or otherwise
restricted by any Department or Agency of the Federal Government or of a
State Government from doing business with such Department or Agency;
(vii) The principal has not defaulted on an obligation covered by a
surety or performance bond, and has not been the subject of a Claim
under an employee fidelity bond;
(3) The principal has listed all parties who are known to him to be
principals under 200.215(e)(2);
(4) The principal is not a HUD employee or a member of an employee's
immediate household as defined by HUD's Standards of Conduct in 24 CFR
0.735-205(c);
(5) Except as shown on the certificate under review, the principal is
not a participant: (i) In a HUD assisted or insured project on which
construction, as of the date of said certificate, has stopped for a
period in excess of twenty days or; (ii) in an insured project on which
construction, as of the date of said certificate, has been substantially
completed for more than 90 days and documents for closing, including
cost certification, have not been filed with HUD;
(b) The project owner shall certify that he has also listed all other
parties who are principals under 200.215(e)(1).
(c) If a principal cannot certify as to any items under paragraphs
(a) and (b) of this section, such items may be deleted from the face of
the certificate and a full explanation of the reason for the deletion,
signed by the principal, may be attached to the certificate for HUD's
review, evaluation and determination.
(d) Each principal who executes the certificate must also certify
that said principal is not a Member of Congress or a Resident
Commissioner.
24 CFR 200.222 Certification of previous record on basis of a master
list.
A principal may avoid repetitious listings by providing HUD with a
complete master list, acceptable to the Participation Control Officer,
of all projects in which the principal has participated. Where such a
list has been provided, the principal may submit a certificate which
refers to the master list and which supplements it by the addition of
all information required under 200.219 with respect to occurrences
since the date of the master list (including subsequent occurrences with
respect to the projects on the master list as well as subsequent
projects). Partners, corporate officers, directors and stockholders may
likewise refer to and thereby incorporate their firm's master list when
they certify.
24 CFR 200.224 Multifamily Participation Review Committee and
Participation Control Officer.
The membership and authority of the Multifamily Participation Review
Committee (hereinafter referred to as the Review Committee) are set
forth in 200.93. A majority of the members of the Review Committee
shall constitute a quorum. The Executive Secretary of the Review
Committee shall be the Participation Control Officer under this part and
shall serve under the administrative supervision of the Director of the
Participation and Compliance Division, who acts as Participation Control
Officer in his absence.
24 CFR 200.225 Approvals by Area Managers for limited partners.
The Area Manager of the HUD Area Office where the certificate is
filed is authorized to review the certificate and approve for
participation limited partner principals: Provided, That they have no
previous record of participation or their only participation in previous
projects covered by these regulations has been as a limited partner.
All other certificates must be forwarded to the Participation Control
Officer.
24 CFR 200.226 Determination by the Participation Control Officer.
(a) The Participation Control Officer is authorized to:
(1) Approve a principal when a review of the previous participation
certificate and other available information reveals that there are no
grounds to withhold approval or disapprove under the standards in
200.229 or 200.230, respectively;
(2) Disapprove a principal who; (i) is suspended or debarred or
otherwise restricted under 24 CFR part 24; or (ii) has been disapproved
for participation no more than 12 months prior to the filing of the
certificate under review, unless the principal has requested
reconsideration of the disapproval;
(3) Refer all other cases to the Review Committee, together with all
available information and documents and a recommendation of the action
to be taken.
24 CFR 200.228 Determination by the Review Committee.
(a) The Review Committee shall make one of the following
determinations in connection with every case referred to it by the
Participation Control Officer:
(1) Approve the principal after consideration of the entire record in
the light of the standards in 200.230. All mitigating or extenuating
factors will be considered. In each case, the decision shall be within
the discretion of the Review Committee and rendered in the best interest
of the Government and the public;
(2) Conditionally approve the principal's participation with such
conditions or limitations which in the Review Committee's judgment are
necessary to make the principal approvable;
(3) Withhold approval of the principal in accordance with 200.229;
or
(4) Disapprove the principal when approval is not justified and
withholding approval is not appropriate.
(b) All determinations by the Review Committee shall be made by
majority vote of those members present and entitled to vote.
24 CFR 200.229 Withholding approval.
Approval of a principal may be withheld for:
(a) A period not to exceed 120 days when such action is deemed
necessary to secure additional information upon which to base a final
action including a determination as to whether a suspension or debarment
action will be taken; or
(b) For a longer period pending the resolution of a criminal
complaint or indictment.
24 CFR 200.230 Standards for disapproval.
The standards for disapproval shall be as follows:
(a) Suspension, debarment or other restriction of the principal under
part 24 of this title;
(b) Suspension, debarment or other restriction of the principal by
any other Department or Agency of the Federal Government from doing
business with such Department or Agency;
(c) Unless the Review Committee finds mitigating or extenuating
circumstances that enable it to make a risk determination for approval,
any of the following occurrences attributable or legally imputable to a
principal may be the basis for disapproval, whether or not the principal
was actively involved in the project:
(1) Mortgage defaults, assignments or foreclosures, unless the Review
Committee determines that the default, assignment or foreclosure was
caused by circumstances beyond the principal's control;
(2) Defaults or noncompliance under any conventional construction
contract or turnkey contract of sale in connection with a public housing
project;
(3) Violation of the regulatory agreement or noncompliance with any
other obligation to HUD that has not been corrected to the satisfaction
of the Review Committee at the time of its consideration;
(4) Suspension or termination of payments under any HUD assistance
contract;
(5) Defaults under an obligation covered by a surety or performance
bond and/or claims under an employee fidelity bond;
(6) Unresolved findings as a result of HUD or other governmental
audits or investigations; or
(7) A criminal record or other evidence that the principal's previous
conduct or method of doing business has been such that his participation
in the project would make it an unacceptable risk from the underwriting
standpoint of an insurer, lender or governmental agency;
(d) With respect to any HUD insured or assisted projects, work
stoppage for a period in excess of 20 days, or in the case of an insured
project, failure to achieve final endorsement of the mortgage where the
project has been substantially completed for more than 90 days but
documents for closing, including cost certification have not been filed
with HUD and such is chargeable to the fault or neglect of the
principal;
(e) Any serious and significant violation by a management agent of a
project management contract, where the contract required HUD or other
Governmental agency approval at its inception;
(f) Submission of a false or materially incomplete form 2530
certification application.
(g) Any other significant violation of or noncompliance with
regulations, or programs or contract requirements of HUD, Farmers Home
Administration or a State or local government's Housing Finance Agency
in connection with any insured or assisted project.
(45 FR 54199, Aug. 14, 1980, as amended at 56 FR 50820, Oct. 9, 1991)
24 CFR 200.233 Effect and requirement of approval.
Approval is required as a precondition for participation and
constitutes clearance of the principal under this part for participation
only for a specific project in a specific role. Approval of a principal
does not obligate the Department to approve the principal's applications
or contracts for program participation.
24 CFR 200.236 Modification or withdrawal of certain approvals.
Approvals will not be modified or withdrawn except in cases where the
principal is subsequently suspended or debarred from further
participation in any HUD programs under part 24 of this title, or is
found by the Review Committee to have obtained approval based upon
submission of a false, fraudulent or incomplete report or certificate
submitted to HUD. In such cases the Review Committee may take such
action, including modification or withdrawal of approval, as it
determines to be in the best interest of the Department and the public.
For the purpose of this section, the term approval includes conditional
approval.
24 CFR 200.239 Notice of determination.
The Participation Control Officer shall give written notice to the
principal and to the field office concerned of disapproval under
200.226, and conditional approval, withholding of approval or
disapproval by the Review Committee under 200.228. In the case of any
such adverse notice:
(a) The notice shall contain a general statement of the reasons for
the determination; and
(b) The notice to the principal shall be sent by certified mail to
the address shown on the certificate with a return receipt requested.
24 CFR 200.241 Request for reconsideration of an adverse determination
and request for a hearing.
(a) Where approval has been withheld, denied, or conditionally
granted, the principal may request reconsideration by the Review
Committee. Such request shall be made in writing, within 30 days of
receipt of the notice of such action, addressed to the Review Committee.
It may contain such supporting material as principal desires; or
(b) The principal may file a request for a hearing before a Hearing
Officer as provided in 200.243. Such request for a hearing shall be
made in writing within 30 days from the date of receipt of the
determination.
24 CFR 200.243 Hearing rules -- How and when to apply.
(a) A principal who has been disapproved, conditionally approved, or
who has had approval withheld by the Review Committee, either initially
or after reconsideration, or who is disapproved by the Participation
Control Officer, may request a hearing before a Hearing Officer. The
hearing will be conducted in accordance with the provisions of 24 CFR
part 26, except as modified by this section. Requests for hearing must
be made within 30 days from the date of receipt of notice of the adverse
determination.
(1) Except as provided in paragraphs (a)(2) and (3) of this section,
a principal may request an oral hearing before a hearing officer.
(2) Where a disapproval is based solely on a suspension or debarment
that has been previously adjudicated, the hearing shall be limited to
the opportunity to submit documentary evidence and written briefs for
consideration by a hearing officer.
(3) Where a disapproval is based on a suspension and an appeal is
pending, the hearing shall be stayed pending the outcome of the
suspension, unless the parties and the hearing officer agree that the
matter should be consolidated with the suspension for hearing.
(b) Hearings and review of determination by the Hearing Officer shall
be governed by the procedures contained in part 24 of this title except
as modified in paragraph (a) of this section and by 200.245.
(45 FR 54199, Aug. 14, 1980, as amended at 56 FR 50820, Oct. 9, 1991)
24 CFR 200.245 Hearing Officer determines facts and law: Review
Committee makes final administrative decision.
The Hearing Officer will determine the facts and the law relevant to
the issues and will report the determination in writing to the Review
Committee and to the principal. The Review Committee shall be bound by
the Hearing Officer's findings of facts and law and will make a final
decision based upon its application of the uniform underwriting and risk
evaluation standards contained in this part. It will notify principal
of the final action taken.
24 CFR 200.245 Subpart I -- Nondiscrimination and Fair Housing
24 CFR 200.300 Nondiscrimination and fair housing policy.
The regulations in this subpart are prescribed pursuant to the
provisions of Executive Order 11063, issued by the President under date
of November 20, 1962, and title VI of the Civil Rights Act of 1964 and
title VIII of the Civil Rights Act of 1968 prohibiting discrimination
and providing for fair housing and directing the Secretary to administer
Housing and Urban Development programs and activities in a manner
affirmatively to further these policies.
24 CFR 200.305 Notice to public.
Participants in insurance programs of the Federal Housing
Administration shall be informed of the established policy on
nondiscrimination and equal opportunity in housing and in group practice
facilities through all appropriate means and as early as possible in
their negotiations or upon indicating interest in the sponsorship or
financing of housing, related facilities, and group practice facilities.
24 CFR 200.310 Definition of ''discriminatory practice''.
As used in this subpart, the term discriminatory practice shall mean
any discrimination because of race, color, creed, or national origin in
lending practices or in the sale, rental, or other disposition of
residential property or related facilities and group practice
facilities, or in the use or occupancy thereof, if:
(a) Such property is or will be constructed, rehabilitated, purchased
or financed with the proceeds of a loan or investment insured under the
provisions of the National Housing Act pursuant to an application for
mortgage insurance received by the Commissioner after November 20, 1962;
or
(b) Such property is offered for sale under terms which include
financing under the provisions of the National Housing Act pursuant to
an application for mortgage insurance received by the Commissioner after
November 20, 1962; or
(c) Such property is improved with a loan reported for insurance
under title I of the National Housing Act, the proceeds of which are
disbursed after November 20, 1962; or
(d) Such property is owned by the Federal Housing Administration.
24 CFR 200.315 Prohibition against discriminatory practice.
No person, firm, or other entity receiving the benefits of Federal
Housing Administration mortgage insurance or doing business with the
Federal Housing Administration shall engage in a discriminatory practice
as such term is defined in this subpart.
24 CFR 200.320 Subdivision report and multifamily, land development,
and group practice facilities preapplication analysis.
All requests for a subdivision report under home mortgage procedures
or requests for preapplication analysis of multifamily, land
development, and of group practice facilities projects, shall be
accompanied by a statement of the applicant in which he agrees to comply
with the regulations in this subpart. The statement shall be in a form
satisfactory to the Commissioner.
24 CFR 200.325 Corporate charters and regulatory agreements.
Corporate charters, regulatory agreements, and other instruments
relating to multifamily, land development and group practice facilities
projects, insured pursuant to applications received after November 20,
1962, under which the Commissioner exercises controls over rentals or
methods of operation of mortgagors participating in the programs of the
Federal Housing Administration shall contain provisions requiring
compliance with the regulations in this subpart.
24 CFR 200.335 Provisions in legal instruments.
Contracts and other instruments of the nature described in 200.310
through 200.330 shall contain provisions to the effect that failure or
refusal to comply with the regulations in this subpart shall be a proper
basis for future rejection of applications and refusal by the Federal
Housing Administration to enter into contracts with or insure loans
involving persons, firms or other entities identified with such failure
and refusal.
24 CFR 200.340 Complaints and hearings.
(a) Upon receipt of a written complaint signed by the complainant to
the effect that any person, firm or other entity has engaged in a
discriminatory practice, such person, firm or other entity shall be
invited to discuss the matter in an informal hearing with the Field
Office Director or his designee having jurisdiction.
(b) If the existence of a discriminatory practice is denied by the
person, firm or other entity against which a complaint has been made,
the Field Office Director or his designee shall conduct such inquiries
and hearings as may be deemed appropriate for the purpose of
ascertaining the facts.
(c) If it is found that the person, firm or other entity against
which a complaint has been made has not engaged in a discriminatory
practice, the parties concerned shall be so notified.
(d) If it is found that there has been a violation of the regulations
in this subpart, the person, firm or other entity in violation shall be
requested to attend a conference for the purpose of discussing the
matter. Failure or refusal to attend such a conference shall be proper
basis for the application of sanctions.
(e) The conference arranged for discussing a violation shall be
conducted in an informal manner and shall have as its primary objective
the elimination of the discriminatory practice. If such practice is
eliminated and satisfactory assurances are received that the person,
firm or other entity in violation will not engage in such practices in
the future, the parties concerned shall be so notified.
24 CFR 200.345 Sanctions.
Failure or refusal to eliminate a discriminatory practice or to give
satisfactory assurances of future compliance with the requirements of
this subpart shall be proper basis for applying sanctions. In the case
of discrimination involving lending practices, the sanction may include
the withdrawal of the lender's approval as a mortgagee. In other cases
the sanctions may take the form of placing the offender's name on an
ineligible list. Applications for mortgage insurance shall be rejected
as ineligible if any person, firm or other entity included on the
ineligible list is identified in any manner with the proposed
transaction.
24 CFR 200.350 Appeals from findings of Field Office Directors.
Upon written application, a complainant or a person, firm or other
entity against which a complaint has been filed under the regulations
may apply to the Commissioner for a rehearing or a readjudication of the
action taken by the Field Office Director. Upon receiving such
application, the Commissioner may designate a representative to conduct
a hearing and to make a report of findings. The Commissioner may, after
a review of the record on appeal, reverse an action taken by the Field
Office Director.
24 CFR 200.355 Reinstatement.
Reinstatement of restricted persons, firms or other entities shall be
within the discretion of the Commissioner and under such conditions as
he may prescribe.
24 CFR 200.355 Subpart J -- Equal Employment Opportunity
24 CFR 200.400 Purpose.
The purpose of this subpart is to assist in achieving the aims of
part III of Executive Order 11246 and the relevant regulations of the
Secretary of Labor and the Secretary of Housing and Urban Development.
24 CFR 200.405 Notice to public.
Participants in insurance programs under the National Housing Act
shall be informed, as early as possible upon indicating their interest
in any such program, of the established policy of nondiscrimination in
employment in construction, repair or rehabilitation work financed with
assistance under the Act.
24 CFR 200.410 Definition of term ''applicant''.
(a) In any mortgage or loan insurance transaction under this chapter
where the Commissioner will control the mortgagor either through the
ownership of corporate stock or under the provisions of a regulatory
agreement, the term applicant as used in 200.415 shall mean the
mortgagor.
(b) In any transaction other than one specified in paragraph (a) of
this section, the term applicant as used in 200.415 shall mean the
developer, or the builder, dealer or contractor performing the
construction, repair or rehabilitation work for the property owner.
24 CFR 200.415 Agreement of applicant.
An applicant shall, prior to the Commissioner's issuance of any
commitment or other loan approval, agree (in a form prescribed by the
Commissioner) that there shall be no discrimination against anyone who
is employed in carrying out work receiving assistance pursuant to this
chapter, or against an applicant for such employment, because of race,
color, religion, sex or national origin.
24 CFR 200.420 Equal opportunity clause to be included in contracts and
subcontracts.
(a) The equal opportunity clause prescribed by the Commissioner
pursuant to the regulations of the Secretary of Labor (41 CFR chapter
60) shall be included in each nonexempt contract and subcontract for
work receiving FHA assistance.
(b) Subcontracts less than $50,000 may incorporate by reference the
equal opportunity clause.
(c) The equal opportunity clause shall be deemed to be a part of each
nonexempt contract or subcontract whether or not it is physically
incorporated in such contract.
24 CFR 200.425 Exemptions.
(a) Transactions of $10,000 or under. Contracts and subcontracts not
exceeding $10,000 are exempt from the requirements of the equal
opportunity clause. No contractor or subcontractor shall procure
supplies or services in less than usual quantities to avoid
applicability of the equal opportunity clause.
(b) Contracts and subcontracts for indefinite quantities. Contracts
and subcontracts for indefinite quantities are exempt from the
requirements of the equal opportunity clause if the amount to be ordered
in a single year under any such contract will not exceed $10,000.
(c) Work outside the United States. Contracts and subcontracts with
regard to work performed outside the United States by employees who were
not recruited within the United States are exempt from the requirements
of the equal opportunity clause.
(d) Others. Other exemptions set forth in the regulations of the
Secretary of Labor at 41 CFR 60-1.5 apply to transactions under this
subpart.
24 CFR 200.430 Sanctions.
Failure or refusal to comply and give satisfactory assurances of
future compliance with the requirements of this subpart shall be proper
basis for applying sanctions. The sanctions shall be applied in
accordance with the provisions of Executive Order 11246 and the relevant
regulations of the Secretary of Labor.
24 CFR 200.430 Subpart K -- Correction of Structural Defects
24 CFR 200.500 Purpose.
The purpose of this subpart is to specify the terms, conditions, and
types of assistance that the Federal Housing Administration will render
to an eligible mortgagor who has been unable to secure satisfactory
reconstruction or replacement of structural defects in his property.
24 CFR 200.502 Application for assistance.
An application for assistance in the correction of structural
defects, in form satisfactory to the Commissioner, shall be filed by a
mortgagor under an FHA-insured mortgage with the Field Office Director
having jurisdiction over the area in which the property is located. The
application shall be filed not later than four years after the date of
the first mortgage insurance certificate issued in connection with the
property. A mortgagor under a new FHA mortgage on the same property
shall be entitled to file an application if it is filed within the same
four-year period following the date of the first insured mortgage
certificate.
24 CFR 200.505 Nature of defect.
Assistance in the correction of structural defects shall be available
only in connection with a structural defect in the property which the
Commissioner has determined to be of such a nature as to seriously
affect the livability of the property. Such assistance shall not be
available where the defect occurs as a result of fire, earthquake,
flood, tornado, or waste.
24 CFR 200.507 Eligibility requirements.
To be eligible for consideration by the Commissioner for receiving
assistance in the correction of structural defects, the mortgagor must
establish that:
(a) The mortgagor is the owner of a one- to four-family dwelling
covered by an individual mortgage.
(b) The dwelling was approved for mortgage insurance by the
Commissioner, or for guaranty, insurance or a direct loan under chapter
37 of title 38 U.S.C. (38 U.S.C. 1801-1827) by the Secretary of Veterans
Affairs, before the beginning of construction.
(c) The mortgagor has made reasonable efforts to obtain a correction
of a structural defect in his or her property by the builder, seller, or
other persons, and that the defect has not been corrected.
(49 FR 12696, Mar. 30, 1984, as amended at 54 FR 39525, Sept. 27,
1989)
24 CFR 200.510 Type of assistance.
The type of assistance in the correction of structural defects to be
rendered a mortgagor who establishes eligibility shall be determined by
the Commissioner. In those cases where the Commissioner determines it
is appropriate and necessary, he may take any of the actions as follows:
(a) Pay expenses in connection with having the defect corrected.
(b) Pay the claim of the mortgagor for corrected damages to the
property arising out of such defect.
(c) Acquire title to the property with the approval of the mortgagor
and under such terms and conditions as are satisfactory to the
mortgagor.
24 CFR 200.512 Subrogation by mortgagor.
Where the Commissioner has taken action as provided in 200.510, any
legal rights the mortgagor may have against the builder, seller, or
other persons, arising out of the defect in his property shall be
assigned and set over to the Commissioner.
24 CFR 200.515 Right and finality of determination.
The mortgagor shall not be entitled, as a matter of right, to receive
the assistance in the correction of structural defects provided in this
subpart. Any determination made by the Commissioner in connection with
a mortgagor's application for assistance shall be final and conclusive
and shall not be subject to judicial review.
24 CFR 200.515 Subpart L -- Correction of Structural Defects in Homes Covered by Mortgage Insurance Under Section 203, 221 or 235
24 CFR 200.517 Purpose.
The purpose of this subpart is to specify the terms and conditions
under which the Secretary will consider affording assistance to
mortgagors under sections 518(b) and 518(d) of the National Housing Act.
(40 FR 8948, Mar. 4, 1975, as amended at 41 FR 42185, Sept. 27, 1976)
24 CFR 200.520 Application for assistance.
An application for assistance in the correction of defects, in a form
satisfactory to the Secretary, shall be filed by or on behalf of an
eligible mortgagor with the Area or Insuring Office Director having
jurisdiction over the area in which the property is located.
(a) In the case of a dwelling covered by a mortgage insured under
section 235 of the National Housing Act, the application shall be filed
not later than one year after the insurance of the mortgage.
(b) In the case of a dwelling located in an older declining urban
area and covered by a mortgage insured under section 203 or 221 of the
National Housing Act on or after August 1, 1968, but prior to January 1,
1973, the application shall be filed not later than December 3, 1976.
(c) In the case of a dwelling located in an older declining urban
area and covered by a mortgage insured under section 203 or 221 of the
National Housing Act on or after January 1, 1973, but prior to August 3,
1976, the application shall be filed not later than August 3, 1977.
(41 FR 42185, Sept. 27, 1976)
24 CFR 200.522 Eligibility for consideration.
The Secretary will consider a mortgagor eligible for assistance under
this subpart if the Secretary finds that each of the following
requirements is fulfilled:
(a) The person applying for assistance is the owner and mortgagor of
a one or two family dwelling covered by a mortgage insured under Section
235 of the National Housing Act pursuant to a mortgage insurance
commitment issued when such dwelling was more than 1 year old; or, in
the case of a dwelling located in an older, declining urban area, the
applicant is the owner and mortgagor of a one, two, three or four family
dwelling covered by a mortgage insured under Section 203 or 221 of the
National Housing Act on or after August 1, 1968, but prior to August 3,
1976, pursuant to a mortgage insurance commitment issued when such
dwelling was more than 1 year old.
(b) One or more structural or other defects existed in such dwelling
on the date of the issuance of the mortgage insurance commitment which:
(1) So seriously affect use and livability as to create a serious danger
to the life or safety of the inhabitants of such dwelling, and (2) were
of such a nature that a proper inspection could reasonably be expected
to have disclosed them; and
(c) The application for assistance was filed in accordance with the
provisions of this subpart.
(41 FR 42185, Sept. 27, 1976)
24 CFR 200.527 Consideration for assistance.
Upon a finding by the Secretary that a mortgagor is eligible to be
considered for assistance under this subpart, the Secretary will, in his
sole discretion, determine whether to afford assistance hereunder by
direct expenditures to correct defects as defined in 200.522(b),
compensation of a mortgagor who has made such expenditures himself, or a
combination of both direct expenditures and compensation of the
mortgagor. The Secretary, in determining the form of assistance and
when it will be afforded, will consider:
(a) Whether the defects so seriously affect use and livability as to
create a serious danger to the life or safety of the inhabitants;
(b) The availability of funds from which the Secretary is authorized
to make expenditures hereunder; and
(c) Such other matters as he deems material.
(36 FR 24467, Dec. 22, 1971, as amended at 38 FR 25994, Sept. 17,
1973; 40 FR 8948, Mar. 4, 1975)
24 CFR 200.533 Right and finality of determination.
All decisions of the Secretary with respect to assistance under this
subpart are final and conclusive and not subject to judicial review.
24 CFR 200.533 Subpart M -- Affirmative Fair Housing Marketing
Regulations
Source: 37 FR 75, Jan. 5, 1972, unless otherwise noted.
24 CFR 200.600 Purpose.
The purpose of this subpart is to set forth the Department's equal
opportunity regulations for affirmative fair housing marketing under FHA
subsidized and unsubsidized housing programs.
24 CFR 200.605 Authority.
The regulations in this subpart are issued pursuant to the authority
to issue regulations granted to the Secretary by section 7(d) of the
Department of Housing and Urban Development Act of 1965, 42 U.S.C.
3535(d), and implement the functions, powers, and duties imposed on the
Secretary by Executive Order 11063, 27 FR 11527, and title VIII of the
Civil Rights Act of 1968, as amended, 42 U.S.C. 3608.
(40 FR 20080, May 8, 1975)
24 CFR 200.610 Policy.
It is the policy of the Department to administer its FHA housing
programs affirmatively, as to achieve a condition in which individuals
of similar income levels in the same housing market area have a like
range of housing choices available to them regardless of their race,
color, religion, sex, or national origin. Each applicant for
participation in FHA subsidized and unsubsidized housing programs shall
pursue affirmative fair housing marketing policies in soliciting buyers
and tenants, in determining their eligibility, and in concluding sales
and rental transactions.
(40 FR 20080, May 8, 1975)
24 CFR 200.615 Applicability.
The affirmative fair housing marketing requirements, as set forth in
paragraphs (a) through (f) of 200.620, shall apply to all applicants
for participation in FHA subsidized and unsubsidized housing programs
whose application is hereafter approved for development or
rehabilitation of:
(a) Subdivisions, multifamily projects and manufactured home parks of
five or more lots, units or spaces; or
(b) Dwelling units, when the applicant's participation in FHA housing
programs had exceeded or would thereby exceed development of five or
more such dwelling units during the year preceding the application,
except that there shall not be included in a determination of the number
of dwelling units developed by an applicant those in which a single
family dwelling is constructed or rehabilitated for occupancy by a
mortgagor on property owned by the mortgagor and in which the applicant
had no interest prior to entering into the contract for construction or
rehabilitation.
(37 FR 75, Jan. 5, 1972, as amended at 50 FR 9268, Mar. 7, 1985)
24 CFR 200.620 Requirements.
With respect to all FHA subsidized or unsubsidized programs in which
the applicant hereafter participates (except for housing for which a
conditional commitment has been issued prior to the effective date of
these regulations), the applicant shall meet the following requirements
or, if he contracts marketing responsibility to another party, be
responsible for that party's carrying out the requirements:
(a) Carry out an affirmative program to attract buyers or tenants,
regardless of sex, of all minority and majority groups to the housing
for initial sale or rental. An affirmative marketing program shall be
in effect for each multifamily project throughout the life of the
mortgage. Such a program shall typically involve publicizing to
minority persons the availability of housing opportunities regardless of
race, color, religion, sex or national origin, through the type of media
customarily utilized by the applicant, including minority publications
or other minority outlets which are available in the housing market
area. All advertising shall include either the Department-approved
Equal Housing Opportunity logo or slogan or statement and all
advertising depicting persons shall depict persons of majority and
minority groups, including both sexes.
(b) Maintain a nondiscriminatory hiring policy in recruiting from
both minority and majority groups, including both sexes, for staff
engaged in the sale or rental of properties.
(c) Instruct all employees and agents in writing and orally in the
policy of nondiscrimination and fair housing.
(d) Specifically solicit eligible buyers or tenants reported to the
applicant by the Area or Insuring Office.
(e) Prominently display in all offices in which sale or rental
activity pertaining to the project or subdivision takes place the
Department-approved Fair Housing Poster and include in any printed
material used in connection with sales or rentals, the
Department-approved Equal Housing Opportunity logo or slogan or
statement.
(f) Post in a conspicuous position on all FHA project sites a sign
displaying prominently either the Department-approved Equal Housing
Opportunity logo or slogan or statement.
(37 FR 75, Jan. 5, 1972, as amended at 40 FR 20080, May 8, 1975; 40
FR 53008, Nov. 14, 1975)
24 CFR 200.625 Affirmative fair housing marketing plan.
Each applicant for participation in FHA housing programs to which
these regulations apply shall provide on a form to be supplied by the
Department information indicating his affirmative fair housing marketing
plan to comply with the requirements set forth in 200.620. This form,
once approved by HUD, will be available for public inspection at the
sales or rental offices of the applicant.
24 CFR 200.630 Notice of housing opportunities.
The Director of each Area and Insuring Office shall prepare monthly a
list of all projects and subdivisions covered by this subpart on which
commitments have been issued during the preceding 30 days. The Director
shall maintain a roster of interested organizations and individuals,
including public agencies responsible for providing relocation
assistance and local housing authorities, desiring to receive the
monthly list and shall provide the list to them.
24 CFR 200.635 Compliance.
Applicants failing to comply with the requirements of this subpart
will make themselves liable to sanctions authorized by regulations,
rules or policies governing the program pursuant to which the
application was made, including but not limited to denial of further
participation in departmental programs and referral to the Department of
Justice for suit by the United States for injunctive or other
appropriate relief.
24 CFR 200.640 Effect on other requirements.
The requirement for compliance with this part is in addition to and
not in substitution for any other requirements imposed by or under
Executive Order 11063 or title VIII of the Civil Rights Act of 1968, as
amended.
(40 FR 20080, May 8, 1975)
24 CFR 200.640 Pt. 200, Subpt. M, App.
24 CFR 200.640 Appendix to Subpart M of Part 200 -- Equal Housing
Opportunity Insignia
The Equal Housing Opportunity insignia are as follows:
Equal Housing Opportunity logo:
Insert illus. 1
Equal Housing Opportunity statement: ''We are pledged to the letter
and spirit of U.S. policy for the achievement of equal housing
opportunity throughout the Nation. We encourage and support an
affirmative advertising and marketing program in which there are no
barriers to obtaining housing because of race, color, religion, sex, or
national origin.''
Equal Housing Opportunity slogan: ''Equal Housing Opportunity.''
(37 FR 75, Jan. 5, 1972, as amended at 40 FR 20080, May 8, 1975)
24 CFR 200.640 Subpart N -- Project Selection Criteria
24 CFR 200.700 Purpose.
The purpose of this subpart is to set forth the project selection
criteria to be used in evaluating: (a) Requests for priority
registration and reservation of contract authority for projects under
section 235(i) of the National Housing Act; (b) requests for early
feasibility and reservation of contract authority for projects under
section 236 of the Act; (c) requests for reservation of contract
authority for rent supplement projects.
(37 FR 205, Jan. 7, 1972, as amended at 46 FR 2344, Jan. 9, 1981)
24 CFR 200.705 Authority.
The regulations in this subpart are issued pursuant to section 7(d)
of the Department of Housing and Urban Development Act of 1965, 42
U.S.C. 3535(d), sections 235(i) and 236 of the National Housing Act (12
U.S.C. 1715z(i) and 1715z-1). They implement Executive Order 11063, 27
FR 11527; title VIII of the Civil Rights Act of 1968, 42 U.S.C. 3608;
and the Department of Housing and Urban Development regulations approved
by the President under title VI of the Civil Rights Act of 1964, 42
U.S.C. 2000d-1, in part 1 of this title.
(37 FR 205, Jan. 7, 1972, as amended at 46 FR 2344, Jan. 9, 1981)
24 CFR 200.710 Requests for priority registration, early feasibility,
or reservation of contract authority for section 235(i), rent
supplement, or section 236 projects.
A request for priority registration, early feasibility, or
reservation of contract authority for section 235(i), rent supplement or
section 236 projects shall be evaluated and processed in accordance with
the following Evaluation of Requests:
Evaluation of requests for priority registration, early feasibility,
reservation of contract authority (section 235(i), rent supplement,
section 236).
235(i) 221d3 rent supplement 236 rent supplement
Sponsorship: Profit Nonprofit Lim. Div.
Priority registration Early feasibility Reservation
Area or insuring office
Applicant (name and address)
Census tract (where available)
Date of initial application
Identification of subdivision/location of proposed project
Case or application number
General instructions: In evaluating proposals involving five (5) or
more dwelling units, the Area or Insuring Office shall utilize the
following Project Selection Criteria. Enter a brief explanation on the
lines provided of the way in which the proposal satisfies each
applicable consideration, so that the factual basis for the evaluation
and rating assigned is clear. Attach supporting documentation and extra
sheet(s), if necessary for a complete explanation. Evaluate each
criterion by checking the appropriate box -- Superior, Adequate, or
Poor.
Final feasibility approval is dependent upon satisfying all statutory
and administrative requirements which are a normal part of processing.
Rehabilitation projects, section 235 existing housing, and proposed
construction project of fewer than five (5) dwelling units are excluded.
1. Need for low(er) income housing Superior Adequate Poor
Objective: To identify the proposed projects which will best serve
the most urgent unmet needs for housing for low(er) income households.
(A) A superior rating shall be given to a proposed project:
(1) Which responds well to the most urgent housing needs of low(er)
income households in the market area in terms of number of bedrooms and
structure type; or, --
(2) As to which there is documented evidence that the housing is
needed as a relocation resource to serve families displaced or to be
displaced by governmental action, including families or individuals
being displaced by the proposed project, and that the applicant will
give preference to those so displaced
(B) An adequate rating shall be given to a proposed project which
responds to housing needs of low(er) income households in the market
area in terms of number of bedrooms and structure type
(C) A poor rating shall be given to a proposed project which:
(1) Does not respond to housing needs of low(er) income households in
the market area; or,
(2) Duplicates or competes unreasonably with other subsidized or
comparably-priced, standard unsubsidized housing projects in the same
locality in such a way as to overbuild the market
2. Minority Housing opportunities Superior Adequate Poor
Objectives:
To provide minority families with opportunities for housing in a wide
range of locations
To open up nonsegregated housing opportunities that will contribute
to decreasing the effects of past housing discrimination.
(A) A superior rating shall be given if the proposed project will be
located:
(1) So that, within the housing market area, it will provide
opportunities for minorities for housing outside existing areas of
minority concentration and outside areas which are already substantially
racially mixed; or,
(2) In an area of minority concentration, but the area is part of an
official State or local agency development plan, and sufficient,
comparable opportunities exist for housing for minority families, in the
income range to be served by the proposed project, outside areas of
minority concentration
(B) An adequate rating shall be given if the proposed project will be
located:
(1) Outside an area of minority concentration, but the area is
racially mixed, and the proposed project will not cause a significant
increase in the proportion of minority to nonminority residents in the
area; or,
(2) In an area of minority concentration and sufficient, comparable
opportunities exist for housing for minority families, in the income
range to be served by the proposed project, outside areas of minority
concentration; or,
(3) In an area of minority concentration, but is necessary to meet
overriding housing needs which cannot otherwise feasibly be met in that
housing market area. (An ''overriding need'' may not serve as the basis
for an ''adequate'' rating if the only reason the need cannot otherwise
feasibly be met is that discrimination on the basis of race, color, or
national origin renders sites outside areas of minority concentration
unavailable); or,
(4) In a housing market area with few or no minority group residents
All ''superior'' and ''adequate'' ratings shall be accompanied by
documented findings based upon relevant racial, socioeconomic, and other
data and information.
(C) A poor rating shall be given if the proposed project does not
satisfy any of the above conditions, e.g., will cause a significant
increase in the proportion of minority residents in an area which is not
one of minority concentration, but which is racially mixed
3. Improved location for low(er) income families Superior
Adequate Poor
Objectives:
To avoid concentrating subsidized housing in any one section of a
metropolitan area or town.
To provide low(er) income households with opportunities for housing
in a wide range of locations.
To locate subsidized housing in sections containing facilities and
services that are typical of those found in neighborhoods consisting
largely of standard, unsubsidized housing of a similar market value.
To locate subsidized housing in areas reasonably accessible to job
opportunities.
(A) A superior rating shall be given if the proposed project:
(1) Will be located in a section (consisting of the project
neighborhood and contiguous neighborhoods) that contains little or no
federally-subsidized housing and (a) the proposed project is, or will be
by the occupancy date or very shortly thereafter, accessible to social,
recreational, educational, commercial, and health facilities and
services, and other municipal services that are equivalent to or better
than those typically found in neighborhoods consisting largely of
standard, unsubsidized housing of a similar market value, and (b) travel
time and cost via public transportation or private auto from the
neighborhood to employment providing a range of jobs for low(er) income
workers is considered excellent for such families in the metropolitan
area or town. (While it is important that elderly housing not be
totally isolated from all employment opportunities, for such projects
the requirements of (b) above need not be adhered to rigidly); or,
(2) Is part of a New Community Development Plan approved under title
VII of the Housing and Urban Development Act of 1970
(B) An adequate rating shall be given to a proposed project which
will be located:
(1) In a section already containing federally-subsidized housing if,
with the addition of the proposed housing, the resulting number of
federally-subsidized units will not establish the character of the
section as one of subsidized housing and the housing will provide an
expanded range of housing opportunity for low(er) income families; or,
(2) In an undeveloped area, but the scale of the project will not be
such that it establishes the character of the section as one of
subsidized housing;
(3) And, in the event of either (1) or (2): (a) The project is, or
will be by the occupancy date or very shortly thereafter, accessible to
social, recreational, educational, commercial, and health facilities and
services, and other municipal services that are equivalent to those
typically found in neighborhoods consisting largely of unsubsidized
standard housing of a similar market value, and (b) traveltime and cost
via public transportation or private auto from the neighborhood to
employment providing a range of jobs for low(er) income workers is
reasonable for such families in the metropolitan area or town. (While
it is important that elderly housing not be totally isolated from all
employment opportunities, for such projects the requirements of (b)
above need not be adhered to rigidly), or,
(4) In an Urban Renewal or Model Cities area and such housing is
required to fulfill respectively, the Urban Renewal Plan or the
Comprehensive City Demonstration Program
(C) A poor rating shall be given if:
(1) The proposed project will be located in a section characterized
as one of subsidized housing; or,
(2) The proposed project will establish the character of the section
as one of subsidized housing; or,
(3) Social, recreational, educational, commercial, and health
facilities and services, and other municipal services: (a) are not, or
will not be by the occupancy date or very shortly thereafter, accessible
to the project; or (b) although accessible to the project, are inferior
to those generally found in neighborhoods consisting largely of
standard, unsubsidized housing of a similar market value; or,
(4) Travel time and cost via public transportation or private auto
from the neighborhood to employment providing a range of jobs for
low(er) income workers will be appreciably greater than that usually
required in the metropolitan area or town.
4. Relationship to orderly growth and development Superior
Adequate Poor
Objectives:
To assure that the proposed development is consistent with principles
of orderly growth and development.
To prevent urban sprawl and the premature development or
overdevelopment of land before supporting facilities are available.
To develop housing consistent with officially approved State or
multijurisdictional plans
To encourage formulation of area-wide plans which include a housing
element relative to needs and goals for low- and moderate-income housing
as well as balanced production throughout a metropolitan area.
(A) A superior rating shall be given if the proposed project:
(1) Will be consistent with the housing element of a local,
officially-approved land use or other development plan which is
consistent with metropolitan or regional plans (zoning alone does not
constitute an officially-approved land use or other development plan);
or
--
(2) Will be located in and be consistent with plans for a
neighborhood that is undergoing improvement via Urban Renewal, Model
Cities, New Communities or other similar Federal State, or local
development programs; or,
(3) Is consistent with a policy adopted by a State housing or
metropolitan areawide development agency or the local governing body
(especially where this policy implements a multijurisdictional approach)
for providing for and dispersing housing for low- and moderate-income
families
(B) An adequate rating shall be given if the proposed project:
(1) Is consistent with a local, officially-approved land use or
development plan; or,
(2) Is consistent with sound growth patterns, although located in a
community that does not have officially-approved land use or other
development plans
(C) A poor rating shall be given if the proposed project:
(1) Does not satisfy any of the above conditions; or,
(2) Is contrary to sound growth patterns
5. Relationship of proposed project to physical environment
Superior Adequate Poor
Objectives:
To provide an attractive and well-planned physical environment.
To prevent any adverse impact on the environment resulting from
construction of the proposed housing.
To avoid site locations whose environmental conditions would be
detrimental to the success of an otherwise sound project.
(A) A superior rating shall be given if the proposed housing will:
(1) Embody outstanding land use planning and excellent architectural
treatment, and
(2) Be free from adverse environmental conditions, natural or
manmade, such as instability, flooding, septic tank backups, sewage
hazards, or mudslide; harmful air pollution, smoke or dust; excessive
noise, vibration, or vehicular traffic; unsanitary rodent or vermin
infestation; or dangerous fire hazards; and,
(3) Not, considering both long-term and short-term effects, impact or
impair ecologically valuable or significant natural areas, such as
wildlife areas, ground water or surface water areas, and parklands, or
significant historical or archeological areas
(B) An adequate rating shall be given if the proposed project will:
(1) Embody sound land use planning and good architectural treatment;
and
(2) Be free from adverse environmental conditions that cannot be
corrected; and
(3) Not have an unreasonably adverse impact on the environment
(C) A poor rating shall be given if the proposed project will:
(1) Embody poor land use planning or poor architectural treatment;
or,
(2) Be subject to serious environmental conditions which cannot be
corrected; or,
(3) Will substantially or unreasonably disrupt the environment or
ecologically valuable or unique natural areas
6. Ability to perform Superior Adequate Poor
Objective: To produce housing promptly and to provide quality
housing at a reasonable cost, taking into account Equal Opportunity
guidelines and requirements.
(A) A superior rating shall be given if the applicant, his staff, or
other personnel which he will utilize (including contractors,
subcontractors, architects, consultants, etc.), and help he will
receive, considered together, have demonstrated good ability in past
performance (in either subsidized, unsubsidized, conventionally-financed
developments or related fields). based on each of the following
considerations: (a) Ability to perform well within program target
dates; (b) high quality of housing produced; (c) ability to produce
housing at a cost at or below similar units of comparable quality; (d)
compliance with Equal Opportunity guidelines and requirements
(B) An adequate rating shall be given if the applicant, his staff, or
other personnel which he will utilize (including contractors,
subcontractors, architects, consultants, etc.), and help he will
receive, considered together have demonstrated an acceptable ability in
past performance (in either subsidized, unsubsidized,
conventionally-financed developments or related fields), based on each
of the following considerations: (a) Ability to meet program target
dates; (b) good quality of housing produced; (c) ability to produce
housing at a cost equivalent to that of similar units of comparable
quality; (d) compliance with Equal Opportunity guidelines and
requirements. In the case of an applicant without previous experience
in housing or related fields, an adequate rating will be given if there
is no demonstrable reason to believe that it will be unable to meet the
above conditions
(C) A poor rating shall be given to any proposal which does not meet
the above conditions
7. Project potential for creating minority employment and business
opportunities Superior Adequate Poor
Objectives:
To encourage housing proposals which will generate job opportunities
for minority workers.
To provide opportunities for business concerns owned in substantial
part by minority persons.
(A) A superior rating will be given if the proposal shows good
potential, based on the applicant's stated, specific goals, hiring
timetables, and past performance, if any, for:
(1) Providing training and/or employment for minority persons; and
(2) Utilizing business concerns (including but not limited to the
prime contractor) owned, controlled or managed in substantial part by
minority persons. This potential may include training, employment and
business opportunities in all phases of development including but not
limited to planning, site development, building, maintenance, and
management
(B) An adequate rating will be given if:
(1) The proposal has good potential, based on the above factors, for
satisfying either of the two conditions set forth for a ''superior''
rating; or,
(2) The housing market area has no minority population or the area
from which labor could feasibly be recruited and business concerns
feasibly contracted has a minority population so low that it would be
impossible for the applicant to achieve a ''superior'' or ''adequate''
rating
(C) A poor rating shall be given to a proposal which shows poor or no
potential for satisfying any of the above conditions
8. Provision for sound housing management
Objective: To encourage the development of well-managed and
well-maintained projects so as to significantly increase their potential
for successful, long-term operation and to foster good relations between
tenants and management and the surrounding community.
(A) A superior rating shall be given to a proposed project which: If
submitted under the section 236 or Rent Supplement programs (a) Includes
a management plan (based on ''Management Plan Requirements''), which
significantly exceeds present HUD requirements and guidelines in terms
of the quality of management proposed and the services to be provided;
and (b) has a sponsor and, if applicable management agent which have
demonstrated, through past performance, superior: Maintenance policies,
financial stability, tenant-management relations, and overall management
practices (with due consideration for past performance in regard to
avoiding defaults, need for mortgage payment relief or other significant
problems);
(B) An adequate rating shall be given to a proposed project which:
If submitted under the Section 236 or Rent Supplement programs, (a)
includes a management plan (based on ''Management Plan Requirements''),
which meets current HUD requirements and guidelines in terms of the
quality of management proposed and the services to be provided; and (b)
has a sponsor and, if applicable, management agent which have
demonstrated their ability or show potential for meeting project
management requirements;
(C) A poor rating shall be given to any proposal project which does
not meet any of the above requirements
rating is required for all criteria.)
---------------- (Date) --------------------------------------
(Name and title) ---------------------------------- The above ratings
have been assigned with my approval. -------------- (Date)
---------------------------- Director, Operations Division Area Office
or ---------------------------- Chief Underwriter, Insuring Office.
(37 FR 205, Jan. 7, 1972, as amended at 46 FR 2344, Jan. 9, 1981)
24 CFR 200.710 Subpart O -- Lead-Based Paint Poisoning Prevention
24 CFR 200.800 Purpose and applicability.
The purpose of this subpart is to implement the provisions of section
302 of the Lead-Based Paint Poisoning Prevention Act, 42 U.S.C.
4821-4186, by establishing procedures to eliminate as far as practicable
the hazards of lead-based paint poisoning with respect to existing
housing within the coverage hereinafter described. This subpart is
promulgated under the authorization granted in 24 CFR 35.24(b)(4), and
it supersedes, with respect to all housing to which it applies, the
requirements prescribed by subpart C of 24 CFR part 35. Any housing
assisted under the programs set out in this part 200 for which no new
activity is applied for or required is not covered by this subpart nor
by subpart C of part 35. The requirements of subpart A of 24 CFR part
35 apply to all housing constructed prior to 1978 and covered by this
subpart.
(52 FR 1891, Jan. 15, 1987)
24 CFR 200.805 Definitions.
Applicable surface. All intact and nonintact interior and exterior
painted surfaces of a residential structure.
Chewable surface. All chewable protruding painted surfaces up to
five feet from the floor or ground, which are readily accessible to
children under seven years of age, e.g., protruding corners, windowsills
and frames, doors and frames, and other protruding woodwork.
Defective paint surface. Paint on applicable surfaces that is
cracking, scaling, chipping, peeling or loose.
Elevated blood lead level or EBL. Excessive absorption of lead, that
is, a confirmed concentration of lead in whole blood of 25 ug/d1
(micrograms of lead per deciliter of whole blood) or greater.
HUD-owned properties. Properties with residential units to which HUD
acquired title, or any Federally-owned properties for which HUD has
disposition responsibility and which are intended for residential
habitation.
Lead-based paint surface. A paint surface, whether or not defective,
identified as having a lead content greater than or equal to 1 mg/cm /2/
.
Sale of HUD-owned properties. Any sale of federally-owned properties
by HUD.
Use for residential habitation. The use of a property as a
residential structure as defined in 24 CFR 35.3.
(52 FR 1891, Jan. 15, 1987, as amended at 53 FR 20799, June 6, 1988)
24 CFR 200.810 Single family insurance and coinsurance.
(a) General. The requirements of this section apply to any one- to
four-family dwelling which is the subject of an application for mortgage
insurance under section 203(b) or other sections of the National Housing
Act relating to the insurance or coinsurance of mortgages on one- to
four-family dwellings. (Such other sections include sections 244
(coinsurance), 213 (cooperative housing insurance), 220 (rehabilitation
and neighborhood conservation housing insurance), 221 (housing for
moderate income and displaced families), 222 (mortgagor insurance for
servicemen), 809 (armed services housing for civilian employees), 810
(armed services housing in impacted areas), 234 (mortgage insurance for
condominiums), 235 (mortgage assistance payments for home ownership and
project rehabilitation), 237 (special mortgage insurance for low and
moderate income families), and 240 (mortgage insurance on loans for
purchase of fee simple title from lessors).) Applications for insurance
in connection with a refinancing transaction where an appraisal is not
required under the applicable procedures established by the Commissioner
are excluded from the coverage of this section.
(b) Appraisal. The fee panel appraiser or direct endorsement
appraiser of a dwelling constructed prior to 1978 shall inspect the
dwelling for defective paint surfaces. If a defective paint surface is
found, the commitment or other approval document will contain the
requirement that the surface is to be treated as described in paragraph
(c) of this section. Treatment of the surface shall be accomplished
before the mortgage is endorsed for insurance. Except in the case of
rehabilitation work financed under section 203(k) of the National
Housing Act and under certain weather conditions described below, when
such a defective paint surface has been listed to be treated, no escrow
procedure regarding that condition will be permitted. With respect to
rehabilitation work financed under section 203(k), an escrow procedure
is permitted provided that the defective paint condition will be abated
in conjunction with the rehabilitation work and will be completed as
expeditiously as possible. When weather conditions prevent completion
of repainting of exterior surfaces, repainting may be delayed and an
escrow procedure is permitted; however, covering or removal of the
defective paint must be completed within a reasonable period of time.
(c) Abatement. For defective paint surfaces, treatment shall be
provided to defective areas. Treatment of hazards shall consist of
covering or removing defective paint surfaces as described in 24 CFR
35.24(b)(2)(ii).
(d) Home equity conversion mortgage insurance. The requirements of
this section, as modified by the following sentence, apply to a dwelling
which is the subject of an application for mortgage insurance under
section 255 of the National Housing Act (home equity conversion
insurance) unless the mortgagor provides the certification described in
206.45(d) of this chapter. The defective paint surface may be treated
after the mortgage is endorsed for insurance, provided that the
defective paint surface is treated as expeditiously as possible in
accordance with the repair work provisions contained in 206.47 of this
chapter.
(36 FR 24467, Dec. 22, 1971, as amended at 53 FR 20799, June 6, 1988;
54 FR 24832, June 9, 1989; 54 FR 32060, Aug. 4, 1989)
24 CFR 200.815 HUD-owned single family property disposition.
(a) General. The requirements of this section apply to the sale of
HUD-owned one- to four-family dwellings when their use is intended for
residential habitation.
(b) Defective paint surfaces. For residential structures constructed
prior to 1978, HUD shall cause the property to be inspected for
defective paint surfaces before the closing of the sale of the property.
If defective paint surfaces are found, treatment as required by 24 CFR
35.24(b)(2)(ii) shall be completed before the closing of the sale of the
property. In the case of a sale to a non-owner occupant purchaser,
treatment may be made a condition of sale, with sufficient sale funds
escrowed to assure treatment.
(c) Chewable surfaces. This subsection applies to dwellings
constructed prior to 1978. If the purchaser is an owner-occupant and
the occupant family contains one or more children under the age of seven
years, closing of the sale shall be deferred until completion of the
following procedures. Where a blood lead level screening program is
determined by HUD to be reasonably available, screening of each occupant
child under the age of seven years will be required. If an EBL
condition is identified, HUD will cause the dwelling to be tested for
lead-based paint on chewable surfaces or follow treatment procedures.
Testing shall be conducted by a State or local health or housing agency,
an inspector certified or regulated by a State or local health or
housing agency, a qualified HUD inspector or an organization recognized
by HUD. Lead content shall be tested by using an X-ray fluorescence
analyzer (XRF) or other method approved by the Commissioner. Test
readings of 1 mg/cm2 or higher using an XRF shall be considered positive
for presence of lead-based paint. Where lead-based paint on chewable
surfaces is identified, the entire interior or exterior chewable surface
shall be treated. Treatment shall consist of covering or removal of the
paint surface in accordance with 24 CFR 35.24(b)(2)(ii).
(d) Abatement without testing. In lieu of the procedures set forth
in paragraph (c) of this section in the case of a residential structure
constructed prior to 1978, HUD, at its option, may forgo testing and
abate all applicable surfaces in accordance with the methods set out at
24 CFR 35.24(b)(2)(ii).
(52 FR 1891, Jan. 15, 1987; 52 FR 9828, Mar. 27, 1987, as amended at
53 FR 20799, June 6, 1988)
24 CFR 200.820 Multifamily insurance and coinsurance.
(a) General. The requirements of this section apply to any existing
property which is the subject of an application for mortgage insurance
under sections 207 (including applications under section 207 pursuant to
section 223(f)), 213, 220, 221 or 234 of the National Housing Act,
including applications for mortgage insurance under any of these
sections pursuant to section 223(a)(7) of the National Housing Act.
This section also applies to the applicat pursuant to section 223(f)),
213, 220, 221 or 234 of the National Housing Act, including applications
for mortgage insurance under any of these sections pursuant to sectionon
of an existing property. This section does not apply to projects for the
elderly or handicapped (except for units housing children under seven
years of age) or projects subject to an application for insurance under
section 231, 232, 241 or 242 of the National Housing Act. The
requirements of this section do not apply to 0-bedroom units. The
requirements of paragraph (c) of this section apply to projects that
have not received a conditional commitment for insurance on or before
May 1, 1987.
(b) Defective paint surfaces. In the case of a residential structure
constructed prior to 1978, the HUD or coinsurer's architect and the
sponsor's architect shall inspect the property for defective paint
surfaces before the issuance of a commitment. If defective paint
surfaces are found, treatment as required by 24 CFR 35.24(b)(2)(ii)
shall be completed before final endorsement as a condition of the firm
commitment.
(c) Chewable surfaces -- (1)(i) Random sample. In the case of a
residential structure constructed prior to 1978 a random sample of
dwelling units shall be tested for lead-based paint on chewable
surfaces. Ten units shall be tested in projects with twenty or more
units, and six units shall be tested in projects with fewer than twenty
units, together with a sample of common areas and exterior applicable
surfaces. Common areas included in the sample should include
non-dwelling facilities commonly used by children under seven years of
age, such as child care centers. All chewable surfaces in selected
units shall be tested. If none of the tested units, common areas or
exterior applicable surfaces contain lead-based paint, the project may
be considered free of lead-based paint, and no further testing or
abatement action will be required. If lead-based paint is found in any
unit in the sample, all units in the project are required to be tested.
If lead-based paint is found in any common area, all common areas in the
project are required to be tested. If lead-based paint is found in any
exterior applicable surface, all exterior applicable surfaces in the
project are required to be tested.
(ii) EBL Child. In the case of a residential structure constructed
prior to 1978, if the developer is presented with test results that
indicate a child seven years of age or younger living in a unit has an
EBL the developer must test the unit occupied by the child and if such
test is positive for lead-based paint, abate the unit surfaces in
accordance with the methods set out at 24 CFR 35.24(b)(2)(ii) or choose
not to test, and abate all the unit surfaces.
(2) Testing requirements. Testing shall be performed using an X-ray
fluorescence analyzer (XRF) or other method approved by the
Commissioner. Test readings of 1 mg/cm /2/ or higher using an XRF shall
be considered positive for presence of lead-based paint. Testing of
chewable surfaces shall be performed by a State or local health or
housing agency or by an inspector certified or regulated by the State or
local health or housing agency. The testing entity shall certify to the
results of the test. The mortgagor shall be responsible for obtaining
these testing services.
(3) Treatment. Where lead-based paint on chewable surfaces is
identified, the entire interior or exterior chewable surface shall be
treated. Treatment shall consist of covering or removal of the paint
surface in accordance with 24 CFR 35.24(b)(2)(ii). After joint
inspection and during the write-up stage, completion of abatement of
defective paint surfaces and lead-based paint on chewable surfaces will
be a special condition requirement in the commitment. The developer
will be required to abate all defective paint surfaces and lead-based
paint on chewable surfaces. HUD or the coinsuring lender will reinspect
all units after repair and before final endorsements.
(4) Abatement without testing. In lieu of the procedures set forth
in paragraphs (c)(1)(i), (2) and (3) of this section, in the case of a
residential structure constructed prior to 1978, the developer may
forego testing and abatement, and abate all applicable surfaces in
accordance with the methods set out at 24 CFR 35.24(b)(2)(ii) before
final endorsement. HUD or the coinsuring lender will reinspect all
units after repair and before final endorsement.
(d) Tenant protection. Owners shall take appropriate action as
prescribed by the Commissioner to protect tenants from hazards
associated with abatement procedures.
(e) Monitoring and enforcement. (1) For multifamily insurance
programs, compliance with any rehabilitation requirement will utilize
the standard construction compliance regulations (e.g., 24 CFR
207.19(c)(6)) for the assurance of completion requirements for section
207 and the incomplete repair escrow requirement of section 223(f) for
each program.
(2) For coinsurance, owner compliance with the requirements of this
section shall be monitored by the approved coinsurance lender.
Compliance with any requirements of this section shall also be enforced
by the Assurance of Completion Agreement as provided under 24 CFR
251.402(d) or by escrow under 24 CFR 255.401(c).
(52 FR 1891, Jan. 15, 1987; 52 FR 9828, Mar. 27, 1987, as amended at
53 FR 20799, June 6, 1988)
24 CFR 200.825 HUD-owned multifamily property disposition.
(a) General. The requirements of this section apply to the sale of
any HUD-owned multifamily property when its use is intended for
residential habitation. This section does not apply to projects for the
elderly or handicapped (except for units housing children under seven
years of age). The requirements of this section do not apply to
0-bedroom units.
(b) Defective paint surfaces. For residential structures constructed
prior to 1978, HUD shall cause the property to be inspected for
defective paint surfaces before offering the property for sale. If
defective paint surfaces are found, treatment as required by 24 CFR
35.24(b)(2)(ii) shall be completed before delivery of the property to
the purchaser or, if the disposition program under 24 CFR part 290
provides for repairs to be performed by the purchaser, such treatment
may be included in the required reports. Residential structures
assisted under section 223(f) of the National Housing Act are to be
inspected and treated as set forth in this paragraph.
(c) Chewable surfaces. If the residential structure was constructed
or substantially rehabilitated prior to 1978, HUD shall cause a random
sampling of dwelling units to be tested for lead-based paint on chewable
surfaces as part of the sales contracting procedure. Random testing
shall be performed as described in 200.820(c)(1). Testing shall be
performed using an X-ray fluorescence analyzer (XRF) or other method
approved by the Commissioner. Test readings of 1 mg/cm /2/ or higher
using an XRF shall be considered positive for presence of lead-based
paint. Testing shall be conducted by a State or local health or housing
agency, an inspector certified or regulated by the State or local health
or housing agency, a qualified HUD inspector, or an organization
recognized by HUD. The testing entity shall certify to the results of
the test. Where lead-based paint on chewable surfaces is identified,
the entire interior or exterior surface shall be treated. Treatment
shall consist of covering or removal of the paint surface in accordance
with 24 CFR 35.24(b)(2)(ii). Treatment shall be completed before
delivery of the property to the purchaser, or, if the disposition
program under 24 CFR part 290 provides for repairs to be performed by
the purchaser, such treatment may be included in the required repairs.
(1) EBL Child. In the case of a residential structure constructed
prior to 1978, if HUD is presented with test results that indicate a
child seven years of age or younger living in a unit has an elevated
blood level or EBL, HUD must test or cause to be tested the unit
occupied by the child and if such test is positive for lead-based paint,
abate the unit surfaces in accordance with the methods set out at 24 CFR
35.24(b)(2)(ii) or choose not to test and abate all the unit surfaces.
(2) Abatement without testing. In lieu of the procedures set forth
in paragraph (c) of this section, in the case of a residential structure
constructed prior to 1978, HUD, at its option, may forego testing, and
abate all applicable surfaces in accordance with the methods set out in
24 CFR 35.24(b)(2)(ii).
(d) Tenant protection. HUD or the purchaser, as appropriate, shall
take appropriate action as prescribed by the Commissioner to protect
tenants from hazards associated with abatement procedures.
(52 FR 1891, Jan. 15, 1987; 52 FR 9828, Mar. 27, 1987, as amended at
53 FR 20800, June 6, 1988)
24 CFR 200.830 Compliance with other Federal, State and local laws.
(a) HUD responsibility. If HUD determines that a State or local law,
ordinance, code or regulation provides for lead-based paint testing or
hazard abatement in a manner that provides a comparable level of
protection from the hazards of lead-based paint poisoning to that
provided by the requirements of this subpart and that adherence to the
requirements of this subpart would be duplicative or otherwise cause
inefficiencies, HUD may modify or waive the requirements of this subpart
in a manner that will promote efficiency while ensuring a comparable
level of protection.
(b) Participant responsibility. Nothing in this subpart is intended
to relieve any participant in the programs covered by this subpart of
any responsibility for compliance with State or local laws, ordinances,
codes or regulations governing lead-based paint testing or hazard
abatement.
(c) Disposal of lead-based paint debris. Lead-based paint and
defective paint debris shall be disposed of in accordance with
applicable Federal, State or local requirements. (See, e.g., 40 CFR
parts 260-271.)
(52 FR 1891, Jan. 15, 1987)
24 CFR 200.830 Subparts P-R -- (Reserved)
24 CFR 200.830 Subpart S -- Minimum Property Standards
24 CFR 200.925 Applicability of minimum property standards.
All housing constructed under HUD mortgage insurance and low-rent
public housing programs shall meet or exceed HUD Minimum Property
Standards, except that this requirement shall be applicable to
manufactured homes eligible for insurance pursuant to 203.43f of this
part only to the extent provided therein.
(48 FR 7735, Feb. 24, 1983)
24 CFR 200.925a Multifamily and care-type minimum property standards.
(a) Construction standards. Multifamily or care-type properties
shall comply with the minimum property standards contained in the
handbook identified in 200.929(b)(2). In addition, each such property
shall, for the Department's purposes, comply with:
(1) The applicable State of local building code, if the property is
located within a jurisdiction which has a building code accepted by the
Secretary under 200.925a(d); or
(2)(i) The applicable State or local building code, and
(ii) Those portions of the codes identified in 200.295c which are
designated by the HUD Field Office serving the jurisdiction in which the
property is to be located, if the property is located in a jurisdiction
which has a building code partially accepted by the Secretary; or
(3) The appropriate codes, as identified in 200.925c(c), if the
property is not located within a jurisdiction which has a building code
accepted by the Secretary.
(b) Conflicting standards. The minimum property standards contained
in the handbook identified in 200.929(b)(2) do not preempt state or
local standards, nor do they alter or affect a builder's obligation to
comply with any state or local requirements. However, a property shall
be eligible for benefits only if it complies with all applicable minimum
property standards, including referenced standards.
(c) Standard for evaluating local building codes. The Secretary
shall compare the portions of a local or State building code applicable
to residential or institutional occupancy, as appropriate, submitted
under 200.925a(d) to the list of construction related areas contained
in 200.925b.
(1) A State or local code will be accepted if it regulates each area
on the list.
(2) A State or local building code will be partially accepted if it
regulates most of the areas on the list. Provided, however, that no
code may be partially accepted if it fails to regulate subareas in more
than one of the major areas: fire safety, light and ventilation,
structural loads, foundation systems, materials standards, construction
components, glass, mechanical, plumbing, electrical and elevators. See
200.925b.
(3) For purposes of this paragraph, a state or local code regulates
an area if it establishes a standard concerning that area.
(d) Review process and acceptance -- (1) Jurisdictions without
previously accepted building codes. The following submission
requirements apply to developers and other interested parties in
jurisdictions without building codes, jurisdictions with building codes
which have never been submitted for acceptance, and jurisdictions with
building codes which have been submitted for acceptance and neither
accepted nor partially accepted by the Secretary.
(i) Developers or other interested parties must comply with one of
the following by the time of application for insurance or other
benefits:
(A) The developer or other interested party may choose to comply with
the appropriate codes as identified in 200.925c. If the developer or
other interested party so chooses, then the multifamily or care-type
property shall be constructed in accordance with one of the model codes
designated in paragraph (c)(1), (2) or (3) of 200.925c and with any
other code or codes identified in the same paragraph. In such
instances, the developer or other interested party shall notify the
Department of the code or group of codes with which it intends to comply
by the time of application for insurance or other benefits; or
(B) The developer or other interested party may choose to comply with
the State or local building code, if such code is acceptable to the
Secretary. To obtain the Secretary's acceptance, the developer or other
interested party shall submit the material specified in paragraph
(d)(1)(ii) of this section to the HUD Field Office serving the
jurisdiction in which the property is to be constructed. Such material
may be submitted at any time; provided, however, that it must be
submitted no later than the time of application for mortgage insurance
or other benefits.
(ii) If, under paragraph (d)(1)(i)(B) of this section, the developer
or other interested party chooses to comply with the State or local
building code as prescribed in paragraph (a)(1) of this section, it
shall submit the following material to the HUD field Office serving the
jurisdiction in which the property is to be constructed:
(A) A copy of the jurisdiction's building code, including all
applicable service codes, appendices and referenced standards; and
(B) A copy of the statute, ordinance, regulation, or order
establishing the code, if such statute, ordinance, regulation or order
is not contained in the building code itself.
However, the developer or other interested party need not submit any
document already on file in the Field Office.
(2) Jurisdictions with previously accepted or partially accepted
building codes. The following submission requirements apply to
developers and other interested parties in any jurisdiction with a
building code which has been accepted or partially accepted by the
Secretary:
(i) At the time of application for mortgage insurance or other
benefits, the developer or other interested party shall submit to the
HUD Field Office serving the jurisdiction in which the property is to be
constructed.
(A) A certificate stating that, since its acceptance by the
Secretary, the jurisdiction's building code has not been changed; or
(B) (1) A copy of all changes to the jurisdiction's building code,
including all applicable service codes and appendices, which have been
made since the date of the code's acceptance by the Secretary. However,
the developer or other interested party need not submit any part already
in the possession of the Field Office; and
(2) A copy of the statute, ordinance regulation, or order making such
changes in the code.
(3) Notification of decision. The Secretary shall review the
material submitted under paragraphs (d) (1)(ii) and (2)(i). Following
that review, the Secretary shall issue a written notice (except in the
case of a previously accepted code which hasn't been changed) to the
submitting party stating whether the State or local building code has
been accepted, partially accepted, or whether the Secretary's previous
acceptance or partial acceptance has been continued; the basis for the
Secretary's decision; and a notification of the submitting party's
right to present its views concerning the denial of acceptance if the
code is neither accepted nor partially accepted. The Secretary may, in
his discretion, permit either an oral or written presentation of views.
(i) If a developer or other interested party is notified that a State
or local building code has not been accepted, then the multifamily or
care-type properties eligible for HUD benefits in that jurisdiction
shall be constructed in accordance with the appropriate codes indicated
in 200.925c(c). In such instances, the developer or other interested
party shall notify the HUD Field Office of the code or codes with which
it chooses to comply, in accordance with 200.925a(d)(1)(i)(A).
(ii) If a developer or other interested party is notified that a
State or local building code has been partially accepted, then the
multifamily or care-type properties eligible for HUD benefits in that
jurisdiction shall be constructed in accordance with the applicable
State or local building code, plus those additional requirements
identified in the written notice issued by the Secretary under
200.925a(d)(3). The written notice shall identify, in accordance with
appendix J of the Handbook identified in 200.929(b)(2), those portions
of the codes listed at 200.925c(a) with which the property must comply.
(iii) Each Regional Office will maintain a current list of
jurisdictions with accepted building codes and a current list of
jurisdictions with partially 30.400-1 and 30.400-2 (part 400) accepted
building codes. The lists will state the most recent date of each
code's acceptance or partial acceptance and will be available to any
interested party upon request. In addition, the list of jurisdictions
whose codes have been partially accepted shall identify those portions
of the codes listed at 200.925c(a) with which the property must comply.
(Approved by the Office of Management and Budget under control number
2502-0321)
(49 FR 18695, May 1, 1984, as amended at 51 FR 28699, Aug. 11, 1986)
24 CFR 200.925b Residential and institutional building code comparison
items.
HUD will review each local code submitted under this chapter to
determine whether it regulates all of the following areas and subareas:
(a) Fire safety.
(1) Construction types permitted;
(2) Allowable height and area;
(3) Fire separations;
(4) Fire resistance requirements;
(5) Means of egress (number and distance);
(6) Individual unit smoke detectors;
(7) Building alarm systems;
(8) Highrise criteria;
(b) Light and ventilation.
(1) Habitable rooms;
(2) Bath and toilet rooms.
(c) Structural loads.
(1) Design live loads;
(2) Design dead loads;
(3) Snow loads;
(4) Wind loads.
(5) Earthquake loads (in localities identified by ANSI Standard A
58.1-1982 as being in seismic zones 1, 2, 3 or 4, and Guam.)
(6) Special loads, i.e., soil pressure, railings, interior walls etc.
(d) Foundation systems.
(1) Soil tests;
(2) Foundation depths;
(3) Footings;
(4) Foundation materials criteria;
(5) Piles, i.e., materials, allowable stresses, design;
(6) Excavation;
(e) Materials standards.
(f) Construction components.
(1) Steel;
(2) Masonry;
(3) Concrete;
(4) Gypsum;
(5) Lumber;
(6) Roof construction and covering;
(7) Chimneys and fireplaces.
(g) Glass.
(1) Thickness/area requirements;
(2) Safety glazing.
(h) Mechanical.
(1) Heating, cooling and ventilation systems;
(2) Boilers and pressure vessels;
(3) Gas, liquid and solid fuel piping and equipment;
(4) Chimneys and vents;
(5) Ventilation (air changes).
(i) Plumbing.
(1) Materials standards;
(2) Sizing and installing drainage systems;
(3) Vents and venting;
(4) Traps;
(5) Cleanouts;
(6) Plumbing fixtures;
(7) Water supply and distribution;
(8) Storm drain systems.
(j) Electrical.
(1) Wiring design and protection;
(2) Wiring methods and materials;
(3) Equipment for general use;
(4) Special equipment;
(5) Special conditions;
(6) Communication systems.
(k) Elevators.
(1) Reference ANSI A17.1;
(2) Acceptance tests and periodic tests.
(49 FR 18696, May 1, 1984, as amended at 51 FR 28699, Aug. 11, 1986)
24 CFR 200.925c Model codes.
(a) Incorporation by reference. The following publications are
incorporated by reference under 5 U.S.C. 552(a) and 1 CFR part 51. The
incorporation by reference of these publications has been approved by
the Director of the Federal Register. The locations where copies of
these publications are available are set forth below.
(1) Model Building Codes -- (i) The BOCA Basic/National Building
Code/1984, excluding Article I, Administration and Enforcement, but
including appendices A, C, D and E of the Code. Available from Building
Officials and Code Administrators International, Inc., 4051 West
Flossmoor Road, Country Club Hills, IL 60477.
(ii) Standard Building Code, 1982 Edition, excluding Chapter 1 --
Administration, but including appendices A, C, E and M of the Code, and
including Amendments to the Standard Building Code, 1983 Revisions to
the 1982 Edition of the Code. Available from Southern Building Code
Congress International, Inc., 900 Montclair Road, Birmingham, AL
35213-1206.
(iii) Uniform Building Code, 1982 Edition, excluding part I --
Administrative, but including the appendix of the Code. Uniform
Plumbing Code, Uniform Mechanical Code, 1982 Edition. Available from
International Conference of Building Officials, 5360 South Workman Mill
Road, Whittier, CA 90601.
(2) National Electrical Code/1984 Edition, including appendices.
Available from the National Fire Protection Association, Batterymarch
Park, Quincy, MA 02269.
(b) Model Code Compliance Requirements. (1) When a multifamily or
care-type property is to comply with one of the model building codes set
forth in paragraph (a)(1) of this section, the following requirements of
those model codes shall not apply to those properties:
(i) Those provisions of the model codes that do not pertain to
residential or institutional buildings;
(ii) Those provisions of the model codes that establish energy
requirements for multifamily or care-type structures; and
(iii) Those provisions of the model codes that require or allow the
issuance of permits of any sort.
(2) Where the model codes set forth in paragraph (a)(1) of this
section designate a building, fire, mechanical, plumbing or other
official, the Secretary's designee in the HUD Field Office serving the
jurisdiction in which the property is to be constructed shall act as
such official.
(c) Designation of Model Codes. When a multifamily or care-type
property is to comply with a model code, it shall comply with one of the
model codes designated in paragraph (c) (1), (2) or (3) of this section
and with any other code or codes identified in the same paragraph. In
addition, such property shall comply with all of the standards which are
incorporated into such code or codes by reference. The developer or
other interested party shall notify the Department of the code or group
of codes with which it intends to comply by the time of application for
insurance or other benefits.
(1) The BOCA Basic/National Building Code/1984.
(2) Standard Building Code/1982 and the National Electrical
Code/1984.
(3) Uniform Building, Plumbing and Mechanical Codes/1982 and the
National Electrical Code/1984.
(49 FR 18696, May 1, 1984, as amended at 51 FR 28699, Aug. 11, 1986)
24 CFR 200.926 Minimum property standards for one and two family
dwellings.
(a) Construction standards -- (1) Applicable structures. The
standards identified or contained in this section and 200.926a --
200.926e shall apply to single family detached homes, duplexes,
triplexes and to living units in a structure where the units are located
side by side in townhouse fashion.
(2) Applicability of standards to new construction. The standards
referenced in paragraph (a)(1) of this section are applicable to
structures which are:
(i) Approved for insurance or other benefits prior to the start of
construction, including approval under the Direct Endorsement process
described in 203.5 of this chapter;
(ii) Approved for insurance or other benefits based upon
participation in an insured warranty program; or
(iii) Insured as new construction based upon a Certificate of
Reasonable Value issued by the Department of Veterans Affairs.
(b) Conflicting standards. The requirements contained in 200.926d
do not preempt local or State standards, nor do they alter or affect a
builder's obligation to comply with any local or State requirements.
However, a property shall be eligible for benefits only if it complies
with the requirements of this subpart, including any referenced
standards. When any of the requirements identified in 200.926c are in
conflict with a partially accepted local or state code, the conflict
will be resolved by the HUD Field Office servicing the jurisdiction in
which the property is to be located.
(c) Standard for evaluating local or state building codes. The
Secretary shall compare a local building code submitted under paragraph
(d) of this section or a State code to the list of construction related
areas contained in 200.926a.
(1) A local or State code will be accepted if it regulates each area
and subarea on the list.
(2) A local or State building code will be partially accepted if it
regulates most of the areas on the list. Provided, however, that no
code may be partially accepted if it fails to regulate one or more
subareas in more than one of the major areas. The major areas are:
fire safety, light and ventilation, structural loads, foundation
systems, materials standards, construction components, glass,
mechanical, plumbing and electrical. See 200.926a.
(3) For purposes of this paragraph, a local or State code regulates
an area or subarea if it establishes a standard concerning that area or
subarea.
(d) Code selection. Any materials required to be submitted under
this section must be submitted by the time the lender or other
interested party applies for mortgage insurance or other benefits.
(1) Jurisdictions without previously accepted building codes. The
following submission requirements apply to lenders and other interested
parties in jurisdictions without building codes, jurisdictions with
building codes which have never been submitted for acceptance, and
jurisdictions with building codes which previously have been submitted
for acceptance and have not been accepted or partially accepted by the
Secretary.
(i) In jurisdictions without local building codes:
(A) If the State building code is acceptable, the lender or other
interested party must comply with the State building code and the
requirements of 200.926d;
(B) If the State building code is partially acceptable, the lender or
other interested party must comply with:
(1) The acceptable portions of the partially acceptable code; and
(2) Those portions of the CABO One and Two Family Dwelling Code or
the Electrical Code for One-and-Two-Family Dwellings designated by the
HUD Field Office in accordance with 200.926c; and
(3) The requirements of 200.926d.
(C) If there is no State building code or if the State building code
is unacceptable, the lender or other interested party must comply with:
(1) The CABO One and Two Family Code and the Electrical Code for One
and Two Family Dwellings, as identified in 200.926b(a); and
(2) The requirements of 200.926d.
(ii) In jurisdictions with local building codes which have never been
submitted for review, lenders or other interested parties must:
(A) Comply with the requirements of paragraph (d)(1)(i) (A), (B) or
(C) of this section, as appropriate; or
(B) Request the Secretary's acceptance of the local building code in
accordance with paragraph (d)(1)(iv) of this section.
(1) If the Secretary determines that the local building code is
unacceptable, then the lender or other interested party must comply with
the requirements of paragraph (d)(1)(i) (A), (B) or (C) of this section
as appropriate.
(2) If the Secretary determines that the local code is partially
acceptable, then the lender or other interested party must comply with:
(i) The acceptable portions of the partially acceptable local code;
and
(ii) Those portions of the CABO One and Two Family Dwelling Code or
the Electrical Code for One and Two Family Dwellings designated by the
HUD Field Office in accordance with 200.926c; and
(iii) The requirements of 200.926d.
(3) If the Secretary determines that the local code is acceptable,
then the lender or other interested party must comply with the local
building code and the requirements of 200.926d.
(iii) In jurisdictions with local building codes which previously
have been submitted for review and which have been found unacceptable by
the Secretary:
(A) If the local code has not been changed since the date the code or
changes thereto were submitted to the Secretary, the lender or other
interested party must comply with the requirements of paragraph
(d)(1)(i) (A), (B) or (C) of this section, as appropriate; or
(B) If the local code has been changed since the date when the code
or changes thereto were submitted to the Secretary, the lender or other
interested party must submit a copy of all changes to the local building
code, including all applicable service codes and appendices and a copy
of the statute, ordinance, regulation or order making such changes in
the code, which have been made since the date when the code or other
changes thereto were last submitted to the Secretary. However, the
lender or other interested party need not submit any part already in the
possession of the HUD Field Office. Based upon the Secretary's
determination concerning the acceptability of the local code as changed,
the lender or other interested party must comply with the requirements
of paragraph (d)(1)(ii)(B) (1), (2) or (3) of this section, as
appropriate.
(iv) In order to obtain the Department's approval of a local code,
the lender or other interested party must submit the following material
to the HUD Field Office serving the jurisdiction in which the property
is to be constructed:
(A) A copy of the jurisdiction's local building code, including all
applicable service codes and appendices; and
(B) A copy of the statute, ordinance, regulation, or order
establishing the code, if such statute, ordinance, regulation or order
is not contained in the building code itself.
However, the lender or other interested party need not submit any
document already on file in the HUD Field Office.
(2) Jurisdictions with previously accepted or partially accepted
building codes. The following submission requirements apply to lenders
or other interested parties in any jurisdiction with a building code
which has been accepted or partially accepted by the Secretary:
(i) The lender or other interested party shall submit to the HUD
Field Office serving the jurisdiction in which the property is to be
constructed:
(A) A certificate stating that, since the date when the code or any
changes thereto were last submitted to the Secretary, the jurisdiction's
local building code has not been changed; or
(B) (1) A copy of all changes to the jurisdiction's building code,
including all applicable service codes and appendices, which have been
made since the date when the code or other changes thereto were last
submitted to the Secretary. However, the lender or other interested
party need not submit any part already in the possession of the HUD
Field Office; and
(2) A copy of the statute, ordinance, regulation, or order making
such changes in the code.
(ii) If, based upon changes to the local building code, the Secretary
determines that it is unacceptable, the lender or other interested party
must comply with the requirements of paragraph (d)(1) (i)(A), (B) or (C)
of this section, as appropriate.
(iii) If the local building code was previously found by the
Secretary to be partially acceptable and there have been no changes to
it or if the local building code was previously found by the Secretary
to be partially acceptable and if, based upon changes to it, the
Secretary determines that it is still partially acceptable or if the
local building code was previously found by the Secretary to be
acceptable and if, based upon changes to it, the Secretary determines
that it is partially acceptable, then the lender or other interested
party must comply with paragraphs (d)(1)(ii)(B)(2) (i), (ii) and (iii)
of this section.
(iv) If the local building code was previously found by the Secretary
to be partially acceptable and if, based upon changes to it, the
Secretary determines that it is acceptable, or if the local building
code was previously found by the Secretary to be acceptable and there
have been no changes to the code, or if the local building code was
previously found by the Secretary to be acceptable and if, based upon
changes to it, the Secretary determines that it is still acceptable,
then the lender or other interested party must comply with the local
building code and the requirements of 200.926d.
(3) Notification of decision. The Secretary shall review the
material submitted under 200.926(d). Following that review, the
Secretary shall issue a written notice (except where there is a
previously accepted or partially accepted code which has not been
changed) to the submitting party stating whether the local building code
is acceptable, partially acceptable, or not acceptable. Where the local
building code is not acceptable, the notice shall also state whether the
State code is acceptable, partially acceptable or not acceptable. The
notice shall also contain the basis for the Secretary's decision and a
notification of the submitting party's right to present its views
concerning the denial of acceptance if the code is neither accepted nor
partially accepted. The Secretary may, in his discretion, permit either
an oral or written presentation of views.
(4) Department's responsibilities. (i) Each Regional and Field
Office will maintain a current list of jurisdictions with accepted local
or State building codes, a current list of jurisdictions with partially
accepted local or State building codes and a current list of
jurisdictions with local or State building codes which have not been
accepted. For local codes, the lists will state the most recent date
when the code or changes thereto were submitted to the Secretary. The
lists, which shall be prepared by the Field Offices and submitted to the
Regional Offices, will be available to any interested party upon
request. In addition, the list of jurisdictions whose codes have been
partially accepted shall identify in accordance with 200.926c those
portions of the codes listed at 200.926b(a) with which the property
must comply.
(ii) The Department is responsible for obtaining copies of the State
codes and any changes thereto.
(Approved by the Office of Management and Budget under control number
2502-0474)
(50 FR 39592, Sept. 27, 1985, as amended at 57 FR 27927, June 23,
1992; 57 FR 58340, Dec. 9, 1992; 58 FR 13536, Mar. 12, 1993)
24 CFR 200.926a Residential building code comparison items.
HUD will review each local and State code submitted under this
subpart to determine whether it regulates all of the following areas and
subareas:
(a) Fire Safety.
(1) Allowable height;
(2) Fire separations;
(3) Fire resistance requirements;
(4) Egress doors and windows;
(5) Unit smoke detectors;
(6) Flame spread.
(b) Light and ventilation.
(1) Habitable rooms;
(2) Bath and toilet rooms.
(c) Structural loads.
(1) Design live loads;
(2) Design dead loads;
(3) Snow loads (for jurisdictions with snow loading conditions
identified in Section 7 of ANSI A58.1-82);
(4) Wind loads;
(5) Earthquake loads (for jurisdictions in seismic zones 3 or 4 as
identified in Section 9 of ANSI A58.1-82).
(d) Foundation systems.
(1) Foundation depths;
(2) Footings;
(3) Foundation materials criteria.
(e) Materials standards.
(1) Materials standards.
(f) Construction components.
(1) Steel;
(2) Masonry;
(3) Concrete;
(4) Lumber;
(5) Roof construction and covering;
(6) Chimneys and fireplaces.
(g) Glass.
(1) Thickness/area requirements;
(2) Safety glazing.
(h) Mechanical.
(1) Heating, cooling and ventilation systems;
(2) Gas, liquid and solid fuel piping and equipment;
(3) Chimneys and vents;
(4) Ventilation (air changes).
(i) Plumbing.
(1) Materials standards;
(2) Sizing and installing drainage systems;
(3) Vents and venting;
(4) Traps;
(5) Cleanouts;
(6) Plumbing fixtures;
(7) Water supply and distribution;
(8) Sewage disposal systems.
(j) Electrical.
(1) Branch circuits;
(2) Services;
(3) Grounding;
(4) Wiring methods;
(5) Cable;
(6) Conduit;
(7) Outlets, switches and junction boxes;
(8) Panelboards.
(50 FR 39594, Sept. 27, 1985)
24 CFR 200.926b Model codes.
(a) Incorporation by reference. The following model code
publications are incorporated by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. The incorporation by reference of these
publications has been approved by the Director of the Federal Register.
The locations where copies of these publications are available are set
forth below.
(1) CABO One and Two Family Dwelling Code, 1983 edition, with the
1984 and 1985 Amendments, excluding Chapter 1 -- Administrative; part
VI -- Electrical; and part VII -- Energy Conservation, but including
appendices A and B of the Code. Available from Council of American
Building Officials, 5203 Leesburg Pike, Falls Church, VA 22041.
(2) Electrical Code for One and Two Family Dwellings, NFPA 70A, 1984
Edition, including appendices. Available from the National Fire
Protection Association, Batterymarch Park, Quincy, MA 02269.
(b) Model code compliance requirements. (1) When a one or two family
dwelling is to comply with the model codes set forth in 200.926b(a),
the following requirements of those model codes shall not apply to those
properties:
(i) Those provisions of the model codes that establish energy
requirements for one and two family dwellings; and
(ii) Those provisions of the model codes that require or allow the
issuance of permits of any sort.
(2) Where the model codes set forth in paragraph (a) of this section
designate a building, fire, mechanical, plumbing or other official, the
Secretary's designee in the HUD Field Office serving the jurisdiction in
which the dwelling is to be constructed shall act as such official.
(c) Designation of model codes. When a one or two family dwelling is
to comply with portions of a model code or the entire model code, it
shall comply with the model codes in paragraph (c)(1) and/or (c)(2) of
this section as designated by the HUD Field Office serving the
jurisdiction in which the property is located. In addition, such
property shall comply with all of the standards which are referenced in
such code or codes.
(1) CABO One and Two Family Dwelling Code/1983 with 1984 and 1985
amendments.
(2) Electrical Code for One and Two Family Dwellings, NFPA 70A/1984.
(50 FR 39594, Sept. 27, 1985)
24 CFR 200.926c Model code provisions for use in partially accepted
code jurisdictions.
If a lender or other interested party is notified that a State or
local building code has been partially accepted, then the properties
eligible for HUD benefits in that jurisdiction shall be constructed in
accordance with the applicable State or local building code, plus those
additional requirements identified below. Depending upon the major area
identified in 200.926a which is not adequately regulated by the State
or local code, the HUD Field Office will designate, in accordance with
the schedule below, those portions of one of the model codes with which
the property must comply.
(50 FR 39594, Sept. 27, 1985)
24 CFR 200.926d Construction requirements.
(a) Application -- (1) General. These standards cover the actual
site, the immediate site environment for the dwellings, including
streets, storm water disposal, and other services and facilities for the
site.
(2) Requirements for accessibility to physically handicapped people.
The HUD Field Office will advise project sponsors as to the extent
accessibility will be required for new construction of one- and
two-family dwellings on a project-by-project basis.
(i) Technical standards. See HUD Handbook, 4910.1, Sections 100-1.3b
and 100-1.3c.
(3) Variations to standards -- (i) New materials and technologies.
See paragraph (d) of this section. Alternatives, nonconventional or
innovative methods and materials shall be equivalent to these standards
in the areas of structural soundness, durability, economy of maintenance
or operation and usability.
(ii) Variation procedures. Variations from the requirements of any
standard with which the Department requires compliance shall be made in
the following ways:
(A) For a particular design or construction method to be used on a
single case or project, the decision is the responsibility of the Field
Office. Headquarters concurrence is not required.
(B) Where a variation is intended to be on a repetitive basis, a
recommendation for a Local Acceptable Standard, substantiating data, and
background information shall be submitted by the Field Office to the
Director, Office of Manufactured Housing and Regulatory Functions.
(iii) Variances which require individual analysis and decision in
each instance are not considered as repetitive variances even though one
particular standard is repeatedly the subject of variation. Such
variances are covered by paragraph (a)(3)(ii)(A) of this section.
(b) General acceptability criteria -- (1) Real estate entity. The
property shall comprise a single plot except that a primary plot with a
secondary plot for an appurtenant garage or for other use contributing
to the marketability of the property will be acceptable provided the two
plots are in such proximity as to comprise a readily marketable real
estate entity.
(2) Service and facilities -- (i) Trespass. Each living unit shall
be one that can be used and maintained individually without trespass
upon adjoining properties, except when the windowless wall of a detached
dwelling is located on a side lot line. A detached dwelling may be
located on a side lot line if:
(A) legal provision is made for permanent access for the maintenance
of the exterior portion of the lot line wall, and
(B) the minimum distances from the dwelling to the dwellings on the
abutting properties are not less than the sum of the side yard distances
computed as appropriate for the type of opposing walls. (minimum
distance 10 ft).
(ii) Utilities. Utility services shall be independent for each
living unit, except that common services such as water, sewer, gas and
electricity may be provided for living units under a single mortgage or
ownership. Separate utility service shut-off for each unit shall be
provided. For living units under separate ownership, common utility
services may be provided from the main to the building line when
protected by an easement or convenant and maintenance agreement
acceptable to HUD, but shall not pass over, under or through any other
living unit. Individual utilities serving a living unit may not pass
over, under or through another living unit under the same mortgage
unless provision is made for repair and maintenance of utilities without
trespass or when protected by an easement or covenant providing
permanent access for maintenance and repair of the utilities. Building
drain cleanouts shall be accessible from the exterior where a single
drain line within the building serves more than one unit.
(3) Site conditions. (i) The property shall be free of those
foreseeable hazards and adverse conditions which may affect the health
and safety of the occupants or the structural soundness of the
improvements, or which may impair the customary use and enjoyment of the
property. The hazards include toxic chemicals, radioactive materials,
other pollution, hazardous activities, potential damage from soil or
other differential ground movements, ground water, inadequate surface
drainage, flood, erosion, or others located on or off site. The site
must meet the standards set forth at 24 CFR part 51.
(ii) When special conditions exist or arise during construction which
were unforeseen and which necessitate precautionary or hazard mitigation
measures, the HUD Field Office shall require corrective work to mitigate
potential adverse effects from the special conditions as necessary.
Special conditions include rock formations, unstable soils or slopes,
high ground water levels, springs, or other conditions which may
adversely affect a property. It shall be the builder's responsibility
to ensure proper design, construction and satisfactory performance where
these conditions are present.
(4) Access. (i) Each property shall be provided with vehicular or
pedestrian access by a public or private street. Private streets shall
be protected by permanent easement.
(ii) Each living unit shall have a means of access such that it is
unnecessary to pass through any other living unit.
(iii) The rear yard shall be accessible without passing through any
other living unit.
(iv) For a townhouse type dwelling, access to the rear yard may be by
means of alley, easement, passage through the dwelling, or other means
acceptable to the HUD Field Office.
(c) Site design -- (1) General. (i) A site design shall be provided
which includes an arrangement of all site facilities necessary to create
a safe, functional, healthful, durable and energy efficient living
environment.
(ii) These site design standards are applicable only in communities
which have not adopted criteria for site development applicable to one
and two family dwellings.
(iii) Single family detached houses situated on individual lots
located on existing streets with utilities need not comply with the
requirements of paragraphs (c) (2), (3) and (4)(ii) of this section.
(2) Streets. (i) Existing or proposed streets on the site shall
connect to private or public streets and shall provide all-weather
access to all buildings for essential and emergency use, including
access needed for deliveries, service, maintenance and fire equipment.
(ii) Streets shall be designed for dedication for public use and
maintenance or, when approved by the HUD Field Office, may be retained
as private streets where protected by permanent easements.
(3) Dedication. Utilities shall be located to permit dedication to
the local government or appropriate public body.
(4) Drainage and flood hazard exposure. (i) The minimum grades at
buildings and at openings into basements shall be at elevations which
prevent adverse effect by water or water entering basements from flood
levels equivalent to a 50 year return frequency after full development.
The floor elevations of all habitable space shall be above runoff and
flood levels equivalent to a 100 year return frequency after full
development.
(ii) Streets shall be usable during runoff equivalent to a 10 year
return frequency. Where drainage outfall is inadequate to prevent
runoff equivalent to a 10 year return frequency from ponding over 6
inches deep, streets shall be made passable for commonly used emergency
vehicles during runoff equivalent to a 25 year return frequency, except
where an alternate access street not subject to such ponding is
available.
(iii) Crawl spaces shall not pond water or be subject to prolonged
dampness.
(d) Special construction and product acceptance -- (1) Structural
features of factory produced (modular or panelized) housing or
components.
(i) For factory fabricated systems or components, HUD Handbook
4950.1, ''Technical Suitability of Products Program Technical and
Processing Procedures'' shall apply.
(ii) The requirements of this part shall apply to structural
features, consisting of factory fabricated systems or components
assembled either at the factory or at the construction site, if the
total construction is covered by these standards and can be inspected
on-site for determination of compliance.
(2) Non-structural or non-standard features. These features include
methods of construction, systems, sub-systems, components, materials and
processes which are not covered by these requirements. See HUD Handbook
4950.1 for procedures to be followed in order to obtain acceptance of
non-structural components or materials. See HUD Handbook 4910.1,
appendix F for a list of Use of Materials Bulletins. Products and
methods shall conform to the appropriate Use of Materials Bulletin.
(3) Standard features. These features include methods of
construction, systems, sub-systems, components, materials and processes
which are covered by national society or industry standards. For a list
of standards to which compliance is required, see HUD Handbook 4910.1,
appendix C.
(e) Thermal requirements -- (1) Building insulation -- (i) General.
Buildings shall be insulated so as to ensure conservation of energy,
economy of operation and comfort to the occupants.
(ii) Overall coefficient of heat transmission. (A) All buildings
which are heated or cooled mechanically shall be constructed to comply
with the U values shown in the table at paragraph (e)(1)(iii) of this
section. The U values shown do not include adjustments for framing in
walls, ceilings or floors, nor for the sash frame in windows or glass
doors.
(B) Where the stated U value of any one component of roof deck,
ceiling, wall or floor cannot be practically obtained, such U value may
be increased to the minimum figure attainable and the U value for other
components decreased until the overall heat gain or heat loss does not
exceed the total attained by conformance to the stated U values. (See
Note 2 of the table at paragraph (e)(1)(iii)) of this section.
(iii) Component coefficient values. For ceilings, walls, floors and
openings, U values shall not exceed those shown in the following table:
Fossil Fuel Heat (F.F.)1
(iv) Alternate performance criteria. (A) As an alternative to
conformance with the table at paragraph (e)(1)(iii) of this section,
dwellings which conform to the performance criteria of this section
shall be considered acceptable.
(B) U0 (gross wall) -- Total exterior wall area (opaque wall and
window and door) shall have a combined thermal transmittance value (U0
value) not to exceed the values shown in Figure 1. Equation 1 shall be
used to determine acceptable combinations to meet the requirements of
Figure 1.
(C) U0 (gross ceiling) -- Total ceiling area (opaque ceiling and
skylights) shall have a combined thermal transmittance value (U0 value)
not to exceed the values shown in Figure 2. Equation 2 shall be used to
determine acceptable combinations to meet the requirements of Figure 2.
Insert illus. 162
Equation 1 Formula for Determining Combinations (See Figure 1)
where
U0=(Uwall Awall+Uwindow Awindow+Udoor Adoor)/A
U0=the average thermal transmittance of the gross wall area, Btu/(h x
sq. ft. x F)
A0=the gross area of all exterior walls enclosing heated spaces, sq.
ft.
Uwall=the thermal transmittance of all elements of the opaque wall
area, Btu/(h x sq. ft. x F)
Awall=opaque wall area enclosing heated spaces, sq. ft.
Uwindow=the thermal transmittance of the window area, Btu/(h x sq.
ft. x F)
Awindow=window area (including sash), sq. ft.
Udoor=the thermal transmittance of the door area, Btu/(h x sq. ft. x
F)
Adoor=door area (including sash), sq. ft.
Note: Where more than one type of wall, window and/or door is used,
the U x A term for that exposure shall be expanded into its
sub-elements, as follows:
Uwall1Awall1+Uwall2Awall2, etc.
Insert Illustration 163
Equation 2 Formula for Determining Roof/Ceiling Combinations
where:
U0=(UroofAroof+UskylightAskylight/A.
U0=the average thermal transmittance of the gross roof/ceiling area,
Btu/(h x sq. ft. x F)
A0=the gross area of a roof/ceiling assembly, sq. ft.
Aroof=opaque roof/ceiling area, sq. ft.
Uroof=the thermal transmittance of all elements of the opaque
roof/ceiling area, Btu/(h x sq. ft. x F).
Uskylight=the thermal transmittance of all skylight elements in the
roof/ceiling assembly, Btu/h x sq. ft. x f)
Askylight=skylight area (including frame), sq. ft.
Note to Equation 2. -- Where more than one type of roof/ceiling
and/or skylight is used, the U x A term for that exposure shall be
expanded into its subelements, as:
Uroof1Aroof1+ Uroof2 Aroof2, etc.
(v) Overall structure performance alternative. Structures which can
be shown by accepted engineering practice to have energy consumption
equal to or less than that which would be obtained by conformance to the
criteria of paragraph (e)(1)(iii) or (iv) of this section shall be
considered acceptable. The contribution of passive solar energy and the
related storage and reradiation capacity of masonry, water and other
mass may be recognized in computing energy consumption under this
alternate method. The following requirements shall govern in
determining comparability:
(A) The methodology shall be cost effective to the energy consumer.
(B) The methodology shall not adversely affect the structural
capacity, durability, or safety aspects of the structure.
(C) All data and calculations must show valid performance comparison
between the proposed option and a structure comparable in size,
configuration, orientation and occupant usage designed in accordance
with 200.926d(e)(1) (iii) or (iv).
(vi) Basement or crawl space foundation walls. Insulation may be
omitted from floors over heated basement areas or heated crawl spaces if
foundation walls are insulated. Foundation walls of heated areas below
grade need not be insulated except where recreation or similar use rooms
or habitable rooms are provided, or where more than 50 percent of the
wall is exposed to outside air. The U value of foundation wall sections
shall not exceed the values shown in the following table except where
the alternative methods shown in 200.926d(e)(1) (iv) or (v) are
employed and foundation walls are included in the determination of the
average thermal transmittance of the gross wall area.
(vii) Crawl space plenum walls. When a crawl space is used as a
supply or return plenum, the crawl space perimeter wall shall be
insulated to provide a maximum heat loss of 35 Btuh per lineal foot of
perimeter wall, assuming a crawl space air temperature of 70 F for
return plenums and 110 F for supply plenums.
(viii) Slab-on-grade floors. For slab-on-grade floors of heated or
mechanically cooled spaces, the thermal resistance of the insulation
around the perimeter of the floor shall be not less than shown in the
following table. Insulation shall extend downward from the top of the
slab for not less than 24 in. or downward to the bottom of the slab and
horizontally beneath the slab for a minimum total distance of 24 in.
(ix) Heat loss and heat gain calculations. (A) Calculations of heat
loss and heat gain shall be made in accordance with the data and
procedures contained in the American Society of Heating Refrigerating
and Air-conditioning Engineers' (ASHRAE) Handbook of Fundamentals-1985,
the Hydronics Institute's ''Heat Loss Calculation Guide'' H-21-1984 and
''Cooling Load Calculation Guide'' C-30-1965, and the Air Conditioning
Contractors of America's ''Load Calculation for Residential Winter and
Summer Air Conditioning'' Manual J-1981.
(B) Inside design temperature shall be 70 F for heating and 75 F
for cooling. The outside design temperature for heating shall be that
established by the ASHRAE Handbook of Fundamentals at the 97.5% winter
design dry bulb temperature for the location involved. The outside
design temperature for cooling shall be that established by the ASHRAE
Handbook of Fundamentals at the 2.5% summer design dry bulb temperature
for the location involved.
(f) Water supply systems -- (1) General. (i) Each living unit shall
be provided with a continuing and sufficient supply of safe water under
adequate pressure and of appropriate quality for all household uses.
Newly constructed residential property for which a building permit has
been applied for on or after June 19, 1988 from the competent authority
with jurisdiction in this matter shall have lead-free water piping. For
purposes of these standards, water piping is ''lead free'' if it uses
solders and flux containing not more than 0.2 percent lead and pipes and
pipe fittings containing not more than 8.0 percent lead. This system
shall not impair the function or durability of the plumbing system or
attachments.
(ii) The chemical and bacteriological standards of the local health
authority shall apply. In the absence of such standards, those of the
appropriate State agency shall apply. A water analysis may be required
by either the health authority or the HUD Field Office.
(iii) Whenever feasible, connection shall be made to a public water
system. When a public system is not available, connection shall be made
to a community system which complies with HUD Handbook 4940.2, if
feasible.
(2) Individual water systems. (i) The system should be capable of
delivering a flow of 5 gpm over at least a 4 hour period.
(ii) The chemical and bacteriological standards of the local health
authority shall apply. In the absence of such standards, those of the
appropriate State agency shall apply. A water analysis may be required
by either the health authority or the HUD Field Office.
(iii) After installation, the system shall be disinfected in
accordance with the recommendations or requirements of the local health
authority. In the absence of a health authority, system cleaning and
disinfection shall conform to the current EPA Manual of Individual Water
Supply Systems.
(iv) Bacteriological or chemical examination of a water sample
collected by a representative of the local or state health authority
shall be made when required by that authority or the HUD Field Office.
(3) Location of wells. (i) A well located within the foundation
walls of a dwelling is not acceptable except in arctic or subarctic
regions.
(ii) Water which comes from any soil formation which may be polluted,
contaminated, fissured, creviced or less than 20 ft. below the natural
ground surface is not acceptable, unless acceptable to the local health
authority.
(iii) Individual water supply systems are not acceptable for
individual lots in areas where chemical soil poisoning has been or is
practiced if the overburden of soil between the ground surface and the
water bearing strata is coarse grained sand, gravel, or porous rock, or
is creviced in a manner which will permit the recharge water to carry
the toxicants into the zone of saturation.
(iv) The following table shall be used in establishing the minimum
acceptable distances between wells and sources of pollution located on
either the same or adjoining lots. These distances may be increased by
either the health authority having jurisdiction or the HUD Field Office.
(4) Well construction. (i) The well shall be constructed so as to
allow the pump to be easily placed and to function properly.
(ii)(A) All drilled wells shall be provided with a sound, durable and
watertight casing capable of sustaining the loads imposed.
(B) The casing shall extend from a point several feet below the water
level at drawdown or from an impervious strata above the water level to
12 in. above either the ground surface or the pump room floor. The
casing shall be sealed at the upper opening to a depth of at least 15
feet.
(iii) Bored wells shall be lined with concrete, vitrified clay or
equivalent materials.
(iv) The space between the casing or liner and the wall of the well
hole shall be sealed with cement grout.
(v) The well casing shall not be used to convey water except under
positive pressure. A separate drop pipe shall be used for the suction
line.
(vi) When sand or silt is encountered in the water-bearing formation,
the well shall either be compacted and gravel packed, or a removable
strainer or screen shall be installed.
(vii) The surface of the ground above and around the well shall be
compacted and graded to drain surface water away from the well.
(viii) Openings in the casing, cap, or concrete cover for the
entrance of pipes, pumps or manholes shall be watertight.
(ix) If a breather is provided, it shall extend above the highest
level to which surface water may rise. The breather shall be
watertight, and the open end shall be screened and positioned to prevent
entry of dust, insects and foreign objects.
(5) Pump and equipment. (i) Pumps shall be capable of delivering the
volume of water required under normal operating pressure within the
living unit. Pump capacity shall not exceed the output of the well.
(ii) Pumps and equipment shall be mounted to be free of objectionable
noises, vibrations, flooding, pollution, and freezing.
(iii) Suction lines shall terminate below maximum drawdown of the
water level in the well.
(iv) Horizontal segments of suction line shall be placed below the
frost line in a sealed casing pipe or in at least 4 in. of concrete.
The distance from suction line to sources of pollution shall be not less
than shown in the table at paragraph (f)(3)(iv) of this section.
(6) Storage tanks. (i) A pressure tank having a minimum capacity of
42 gallons shall be provided. However, prepressured tanks and other
pressurizing devices are acceptable provided that delivery between pump
cycles equals or exceeds that of a 42 gallon tank.
(ii) Tanks shall be equipped with a clean-out plug at the lowest
point, and a suitable pressure relief valve.
(Approved by the Office of Management and Budget under control number
2502-0474)
(50 FR 39594, Sept. 27, 1985, as amended at 53 FR 11271, Apr. 6,
1988; 56 FR 5350, Feb. 11, 1991; 57 FR 9609, Mar. 19, 1992; 57 FR
27927, June 23, 1992)
24 CFR 200.926e Supplemental information for use with the CABO One and
Two Family Dwelling Code.
The following shall be used in Table No. R-202, Climatic and
Geographic Design Criteria of the CABO One and Two Family Dwelling Code.
(a) Roof live loads.
Roof slope 3 in 12 or less: 20 psf
Roof slope over 3 in 12: 15 psf
Roof used as deck: 40 psf
(b) Roof snow load. The roof snow load shall be in accordance with
section 7 of ANSI A58.1-82.
(c) Wind pressures. The minimum Design Wind Pressures (net
pressures) set forth below apply to areas designated as experiencing
basic wind speeds up to and including 80 mph, as shown in ANSI A58.1-82,
Figure 1, Basic Wind Speed Map. These pressures also apply to buildings
not over 30 ft. in height above finish grade, assuming exposure C or
defined in ANSI A58.1-82.
(1) Minimum design wind pressure criteria. (i) Buildings (for
overturning racking or sliding); p=20 psf.
(ii) Chimneys, p=30 psf.
(iii) Exterior walls, p=15 psf inward or outward. Local pressure at
corners of walls shall be not less than p=30 psf outward. These local
pressures shall not be included with the design pressure when computing
overall loads. The pressures shall be applied perpendicularly outward
on strips of width equal to 10 percent of the least width of building.
(iv) Partitions, p=10 psf.
(v) Windows, p=20 psf inward or outward.
(vi) Roof, p=20 psf inward or outward.
Roofs with slopes greater than 6 in 12 shall be designed to withstand
pressures acting inward normal to the surface, equal to the design wind
pressure for exterior walls. Overhanging eaves, cornices, and ridges,
40 psf upward normal to roof surface. These local pressures shall not
be included with the design pressure when computing overall loads. The
pressures shall be applied perpendicularly outward on strips of width
equal to 10 percent of the least width of building. Net uplift on
horizontal projection of roof shall not be less than 12 psf.
(2) Severe wind design pressures. If the construction is higher than
30 ft., or if it is located in an area experiencing wind speeds greater
than 80 mph, higher design wind pressures than shown above are required.
Use Section 6 of ANSI A58.1-82 for higher criteria and for determining
where wind speeds greater than 80 mph occur. Pressures are assumed to
act horizontally on the gross area of the vertical projection of the
structure except as noted for roof design.
(d) Seismic conditions shall be in accordance with Section 9 of ANSI
A58.1-82.
(e) Subject to damage from: weathering. A jurisdiction's weathering
region shall be as established by the map in ASTM C 62-83.
(f) Subject to damage from: frost line depth. Exterior wall
footings or foundation walls including those of accessory buildings
shall extend a minimum of 6 in. below the finished grade and, where
applicable, the prevailing frost line.
(g) Subject to damage from: termites. ''Yes'' shall be used in
locations designated as Regions I, II or III. ''No'' shall be used in
locations designated as Region IV. The map for Termite Infestation
Probability in appendix A of CABO, One and Two Family Dwelling Code
shall be used to determine the jurisdiction's region.
(h) Subject to damage from: decay. ''Yes'' shall be used in
locations designated as moderate to severe and slight to moderate.
''No'' shall be used in locations designated as none to slight. The
Decay Probability map in appendix A of CABO, One and Two Family Dwelling
Code shall be used to determine the jurisdiction's decay designation.
(Approved by the Office of Management and Budget under control number
2502-0338)
(50 FR 39599, Sept. 27, 1985)
24 CFR 200.927 Incorporation by reference of minimum property
standards.
The Minimum Property Standards as contained in the handbooks
identified in 200.929(b) are incorporated by reference into this
section as though set forth in full in accordance with 5 U.S.C. 552(a)
and 1 CFR part 51.
(50 FR 39592, Sept. 29, 1985)
24 CFR 200.929 Description and identification of minimum property
standards.
(a) Description. The Minimum Property Standards describe physical
standards for housing. They are intended to provide a sound basis for
determining the acceptability of housing built under the HUD mortgage
insurance and low-rent public housing programs. The Minimum Property
Standards refer to material standards developed by industry and accepted
by HUD. In addition, under Section 521 of the National Housing Act, HUD
adopts its own technical suitability standards for materials and
products for which there are no industry standards acceptable to HUD.
These standards are contained in Use of Materials Bulletins that apply
to products and methods and Materials Releases that apply to specific
materials. Use of Materials Bulletins and Materials Releases are
addenda to the Minimum Property Standards. Unless otherwise stated, the
current edition, issue, or version of each of these documents, as
available from its source, is applicable to this subpart S. A list of
the Use of Materials Bulletins, Materials Releases, and MPS Appendix
listing the applicable referenced Standards may be obtained from the
Construction Standards Division, Office of Manufactured Housing and
Construction Standards, room 6170 Department of Housing and Urban
Development, 451 7th Street, SW, Washington, DC 20410.
(b) Identification. The Minimum Property Standards have been
published as described below:
(1) MPS for One and Two Family Dwellings. See 200.926, 200.926 (a)
through (e).
(2) MPS for Housing 4910.1, 1984 edition with changes. This volume
applies to buildings and sites designed and used for normal multifamily
occupancy, including both unsubsidized and subsidized insured housing,
and to care-type housing insured under the National Housing Act.
(3) Intermediate Minimum Property Standards (IMPS) Supplement for
Solar Heating and Domestic Hot Water Systems, 4930.2, as revised by
revision No. 1. This volume supplements the volumes listed in
paragraphs (b) (1) and (2) of this section and deals only with aspects
of planning and design that are different from conventional housing by
reason of the solar systems under consideration.
(39 FR 26895, July 24, 1974, as amended at 42 FR 33890, July 1, 1977;
47 FR 29524, July 7, 1982; 47 FR 35761, Aug. 17, 1982; 49 FR 18695,
May 1, 1984; 50 FR 39592, Sept. 29, 1985; 51 FR 28699, Aug. 11, 1986)
24 CFR 200.931 Statement of availability.
An updated copy of the Minimum Property Standards is available for
public examination in (1) the Information Center, room 1202, Department
of Housing and Urban Development, 451 Seventh Street, SW., Washington,
DC, and in each HUD Regional, Area, and Insuring Office; and (2) the
Office of the Federal Register, 800 North Capitol Street, NW., suite
700, Washington DC 20408. In addition, copies of volumes 1, 2, and 3 of
the Minimum Property Standards may be purchased from the U.S. Government
Printing Office, Washington, DC 20402.
(39 FR 26895, July 24, 1974)
24 CFR 200.933 Changes in minimum property standards.
Changes in the Minimum Property Standards will generally be made
every three months. Changes will be made in accordance with HUD policy
for the adoption of rules and regulations set forth in part 10 of this
title. Notice of such changes will be published in the Federal
Register. As the changes are made, they will be incorporated into the
volumes of the Minimum Property Standards to which they apply. The
volumes available for public examination and for purchase will contain
all changes up to the date of examination or purchase. An official,
historic file of such changes will be available in the office of the
Rules Docket Clerk in the HUD Central Office in Washington, DC, and in
each HUD Regional, Area, and Insuring Office. A similar copy of the
standards will also be maintained in the Office of the Federal Register,
Washington, DC.
(39 FR 26895, July 24, 1974)
24 CFR 200.934 User fee system for the technical suitability of
products program.
(a) General. This section establishes fee requirements for the
issuance of Structural Engineering Bulletins (SEBs), Mechanical
Engineering Bulletins (MEBs), Truss Connector Bulletins (TCBs), Area
Letters of Acceptance (ALAs), Materials Releases (MRs), and review of
program administrator applications submitted pursuant to 200.935 of
this title.
(b) Filing address -- (1) Applications containing payment. When
applications for or correspondence concerning SEBs, MEBs, TCBs, MRs, or
program administrator approval contain payment, such applications or
correspondence shall be sent to the following address:
Office of Finance and Accounting, Insurance Accounting Division, Cash
and Securities Section -- MIA Department of Housing and Urban
Development, 451 7th Street, SW., Washington, DC 20410
(2) Other correspondence. All other correspondence concerning SEBs,
MEBs, TCBs, MRs, and program administrator acceptance shall be sent to
the following address:
Manufactured Housing and Construction, Standards Division, Department
of Housing and Urban Development, 451 7th Street, SW., Washington, DC
20410
(3) Application for ALAs. Applications for or correspondence
concerning ALAs shall be submitted to the Housing Division of the field
office having jurisdiction over the area in which the production
facility of the system is located, except that applications containing
payment shall be addressed to the attention of the Collection Officer
for deposit to Account No. 86-09-0300.
(c) Fees. Applicants for renewal and applicants for acceptance as
program administrators under 200.935 of this title shall include the
entire processing fee with the application. All other applicants shall
submit one half of the required processing fee with each application.
The applicant shall pay the balance when the draft issuance is returned
to HUD with the applicant's concurrence signature. The Department will
not prepare a final document for printing and distribution until it has
received the full processing fee. From time to time, as may be
necessary, the Department will establish and amend the fee schedule by
publication of a Notice in the Federal Register.
(d) Initial application and review -- (1) Content of applications.
Each application shall include only one item. All applications will be
promptly processed on receipt by the Department.
(i) With respect to Mechanical Engineering Bulletins (MEBs),
Structural Engineering Bulletins (SEBs), Truss Connector Bulletins
(TCBs), and Area Letters of Acceptance (ALAs), each structural design
shall constitute a different item.
(ii) With respect to Materials Releases (MRs), each product or system
shall constitute a different item.
(2) Revisions. A recipient of a technical suitability document
issued by the Department may apply for revision of that document at any
time. The revision may be in the form of an amendment of or supplement
to the document, for which the recipient will be charged the applicable
revision fee. However, where the Department determines that a proposed
revision constitutes a different item, the schedule of fees for initial
applications shall apply.
(3) Renewals. Each issuance shall be valid for a period of three
years from the date of initial issuance or most recent renewal,
whichever is later. An applicant shall submit an application for
renewal with the entire required fee three months before the expiration
of the three-year period. Failure to submit a timely renewal
application along with the required fee shall constitute a basis for
cancellation of the issuance.
(4) Initial and revision applications requiring further study or
additional data. In its discretion, the Department may request an
applicant to submit additional data or to conduct further study to
supplement or clarify an initial application or an application for
revision of a previously issued technical suitability document. If the
applicant fails to comply with the Department's request within ninety
days of the date of that request or within such longer time as may be
specified by the Secretary, the Department will return the application
to the applicant. The Department will not refund any fees paid toward
an application returned under this paragraph. The application will be
considered further only if it is resubmitted along with payment of the
full fee as required by these regulations.
(5) Ineligible applications. If the Secretary determines that an
application or request will not be considered because it is not eligible
for issuance of a technical suitability document, the Department will
promptly return the application or request, refund any fees paid, and
explain why the application or request is ineligible.
(6) Cancellation of a technical suitability document. If the
Department determines that (i) the conditions under which a technical
suitability document was issued have so changed as to affect the
production of, or to compromise the integrity of, the material, product,
or system approved thereby, or (ii) that the producer has changed its
organizational form without notifying HUD, or (iii) that the producer is
not complying with the responsibilities it assumed as a condition of
HUD's acceptance of its material, product or system, the Department will
notify the producer or manufacturer that the technical suitability
document may be cancelled. However, before cancelling a technical
suitability document, the Department will give the manufacturer
reasonable notice in writing of the specific reasons therefore and an
opportunity to present its views on why the technical suitability
document should not be cancelled. No refund of fees will be made on a
cancelled document.
(e) Identification. (1) Applications for issuance of a MEB, SEB,
TCB, or MR submitted to HUD Headquarters will be identified with a case
number. The applicant will be notified of the case number when receipt
of the application is acknowledged. Thereafter, the case number will be
used on all correspondence relating to the application. When a final
draft of a new document is prepared for publication and distribution, a
bulletin or release number will be assigned to the new issuance.
(2) In the case of an application for an ALA submitted to a field
office, the application will be processed in accordance with the
identification and processing procedures established by the responsible
field office. The field office will notify the applicant of receipt of
the application and inform the applicant of the procedures that will be
followed with respect to the issuance of an ALA.
(Information collection requirements in paragraphs (b), (c), (d)(1),
(2), (3) and (4) were approved by the Office of Management and Budget
under control number 2502-0313)
(49 FR 31856, Aug. 9, 1984)
24 CFR 200.935 Administrator qualifications and procedures for HUD
building products certification programs.
(a) General. This section establishes administrator qualifications
and procedures for the HUD Building Products Certification Programs
under section 521 of the National Housing Act and the HUD Minimum
Property Standards. Under these programs organizations acceptable to
HUD validate manufacturers' certifications that certain building
products or materials meet applicable standards. HUD may decide to
implement a certification program for a particular building product or
material for a variety of reasons, such as when deemed necessary by HUD
to facilitate the introduction of new and innovative products or
materials; or in response to reports of fraud or misrepresentation by
manufacturers in advertising that their product or materials comply with
a standard.
(b) Definitions -- (1) Certification program (''program''). The
procedure under which accepted administrators validate manufacturers'
certifications that particular building products or materials meet
applicable HUD standards. A separate program is used to validate
certifications for each particular product or material for which HUD
requires certifications.
(2) Program administrator (''administrator''). An organization which
conducts the program validating the manufacturer's certification that a
particular building product or material meets applicable HUD standards.
(c) Administrator qualifications and application procedures -- (1)
Qualifications. Each program administrator shall be capable of
conducting a certification program with respect to organization, staff
and facilities, and have a reputation for adhering to high ethical
standards. To be considered acceptable for conducting a certification
program, each administrator shall:
(i) Be a technically qualified organization with past experience in
the administration of certification programs. The certification
program(s) shall be under the supervision of a qualified professional
with six years of experience in interpreting testing standards, test
methods, evaluating test reports and quality control programs. Each
administrator is responsible for staffing the program with qualified
professional personnel with experience in interpreting testing
standards, test methods, evaluating test reports and quality control
programs. The staff shall be adequate to service all aspects of the
program.
(ii) Have field inspectors trained to make selections of materials
for testing from manufacturer's stock or from distributors'
establishments and to conduct product compliance inspections. Such
inspectors must be trained and experienced in evaluating manufacturer's
quality control records to ascertain with a reasonable degree of
assurance that continuing production remains in compliance with the
applicable standard set forth in the Use of Materials (UM) Bulletin.
When inspectors are used to evaluate laboratory operations, they shall
be qualified and under the supervision of the administrator. They shall
be knowledgeable in such areas as test methods, quality control, testing
techniques, and instrument calibration.
(iii) Have facilities and capabilities for communications with
manufacturers, laboratories, and HUD, including publication of a
directory of certified products and a list of accredited laboratories,
if required by the program.
(iv) Have adequate policies and practices for preserving information
entrusted to its care. HUD reserves the right to review all technical
records related to the program for the purpose of monitoring.
(v) Have a copy of all applicable standards, test methods and related
information necessary to carry out the program.
(vi) Have a registered or pending certification mark at the United
States Patent Office and be willing to license, on a uniform basis, the
use of that mark by manufacturers as a validation of the manufacturer's
certification that the product complies with the applicable standard.
(2) Applications procedures. Any organization desiring HUD
acceptance as a qualified administrator to conduct a certification
program shall make application in writing to the Director, Office of
Architecture and Engineering Standards. The application shall state the
particular certification program for which acceptance is requested and
include information indicating compliance with each of the qualification
requirements by number and subsection. Attached to the application
shall be:
(i) A list of certification programs in which the organization is
participating or has participated and the types of participation
(sponsor, administrator, testing laboratory, etc.).
(ii) A procedural guide used in one of these programs.
(iii) A directory or listing used in one of these programs.
(iv) A reproduction or facsimile of the organization's registered or
pending mark.
(v) A proposed procedural guide for the particular certification
program. HUD certification program procedures described in paragraph
(d) of this section shall be followed.
(3) Acceptance. HUD shall review each submission and notify the
applicant whether or not they are accepted or rejected. HUD shall be
notified immediately of any change(s) in the administrator's submission
regarding program procedures and/or major personnel associated with the
program. HUD reserves the right to suspend or debar an administrator in
accordance with part 24 of this title.
(d) HUD building products certification procedures -- (1)
Certification program development. Certification program development by
an administrator shall be based upon the procedures and standards for
the specific building product described in a Use of Materials Bulletin
or a Materials Release.
(2) License agreement. Each administrator shall have a written
license agreement with each participating manufacturer binding each to
the provisions of the specific program and authorizing the manufacturer
to use the administrator's mark, seal, or label on its products. The
administrator shall have the right to terminate any agreement prior to
an expiration date, for example, if there has been a breach of the
requirement of the certification program by the manufacturer.
(3) Laboratory approval. The administrator shall review laboratories
that apply for participation in this program on the basis of the
procedures described in paragraph (e) of this section. A list of
approved laboratories shall be maintained by the administrator. When
the certification program allows the use of the administrator's testing
laboratories, the laboratories shall be reviewed by a qualified party
acceptable to HUD. As accreditation procedures are made available
through the National Voluntary Laboratory Accreditation Program (NVLAP)
for specifc products, HUD may require such accreditation.
(4) Initial testing and quality control review -- (i) Initial
testing. Each participating manufacturer shall submit to the
appropriate administrator, the product(s) specification and statement(s)
that the product complies with the applicable standard. The
administrator shall select samples of the product(s), or when HUD
specifies as acceptable, a prototype. The particular method of sample
selection shall be determined by HUD for each specific product
certification program. Other methods of initial sample selection may be
used if deemed necessary. If a failure occurs on the initial tests,
additional sampling and testing may be done at the manufacturer's
request. The administrator's validation of the manufacturer's
declaration of certification shall be withheld until a finding of
compliance is achieved.
(ii) Quality control review. Each administrator shall examine
participating manufacturer's facilities and quality control procedures
to determine that they are adequate to assure continuing production of
products that shall comply with the applicable standard. These quality
control procedures shall be documented in the administrator's and
manufacturer's files. If a manufacturer's quality control system is not
satisfactory to the administrator, validation of the manufacturer's
declaration of certification shall be withheld.
(5) Notice of validation. When initial testing, quality control
review, and evaluation of other technical data are satisfactory to the
administrator, a Notice of Validation or Certification shall be issued
to the manufacturer. This allows the use of the administrator's
registered mark on the product label.
(6) Labeling. Each administrator shall issue to the manufacturer
labels, tags, marks containing the administrator's validation mark, and
the manufacturer's certification of compliance with the applicable
standard. The registered administrator's (validator's) mark shall be on
the label. A sponsor's (association, testing agencies, society or
others) mark may be used in addition to the administrator's mark. The
manufacturer's certification of compliance to the standard may be coded.
Additional information such as type, grade, class, etc., may also be
coded. When coding is used, the code shall be described in the
directory or listing.
(7) Directory or listing. When required by the program, the
administrator shall publish a directory or listing for all certified
products. The directory shall list the items described in paragraph
(d)(6) of this section. The directly shall also carry a complete list
of approved laboratories and shall be updated to reflect additions or
deletions of certified products and laboratories. Directories or
listings shall be published periodically as described in the specific
program. Each administrator shall make a complimentary distribution of
the directory or listing to the HUD Field Offices and other government
agencies designated by HUD. A subscription fee may be charged to others
requesting copies.
(8) Periodic tests and quality control inspections. Samples of the
certified product or prototype shall be selected periodically from the
plant, warehouse inventory or sales points. The samples shall be sent
to an administrator-approved laboratory and tested in accordance with
the applicable standard. The frequency of testing shall be described in
the specific building product program. The administrator shall
periodically visit the manufacturer's facility to assure that the
initially accepted quality control procedures are being followed.
(9) Product decertification. If a failure should occur in any test,
the laboratory shall notify the administrator and the manufacturer. The
manufacturer shall notify the administrator if a retest if requested.
If a retest is not requested, validation shall be withdrawn. If the
manufacturer requests a retest, the administrator shall select new
samples and submit them to the same or another laboratory at the
manufacturer's expense, for retest of only the test requirement(s) in
which the failure(s) occurred. If the specified number of specimens
pass the retest, the product can continue to be validated and listed.
If the designated number of specimens described in the UM Bulletin fail,
the administrator shall decertify the product. The manufacturer may
request that a new selection be made of the product after corredction or
modifications and be subjected to the initial acceptance testing
procedure or to a program of retesting established by the administrator.
The administrator may decertify the product on the basis of inadequate
quality control by the manufacturer. The administrator shall notify the
manufacturer, HUD headquarters and the HUD Field Offices of any
decertification within 7 days. When the product is decertified the
maqnufacturer shall remove labels, tags or marks from all production and
inventory in his/her control determined to be in noncompliance.
(10) Challenge response. Any person or organization may submit a
sample of a manufacturer's certified product to the administrator in
substantiation of a claim of noncompliance. Submission shall be made to
the administrator that validated the manufacturer's product. The
administrator shall notify the manufacturer that its product has been
challenged and shall make arrangements to obtain test samples of the
challenged product. An estimate of the cost of the special sample
selection and testing shall be made to the complainant. The complainant
shall pay the estimated cost of the investigation in advance of any
testing of the challenged product, unless HUD believes the complaint to
be in the public's interest. HUD may conduct its own investigation when
deemed necessary based upon a complaint or a product failure. The
administrator shall submit the sample of the challenged product to an
approved laboratory of the administrator's choice with the request to
test compliance of only the challenged requirement(s). If the samples
tested prove that the product failed to meet the standard, the product
shall be decertified immediately. The manufacturer whose product is
decertified shall reimburse the administrator for all costs of the
investigation and the administrator shall refund the complainant's
advance payment. If the tests prove that the product does comply with
the standard, the complainant shall be notified that the tests do not
support the complaint and that the advance fee has been used for the
cost of testing and investigating the claim.
(11) Maintainance of the program. Each administrator shall maintain
the program in conformance with administrative letters issued by HUD for
the purpose of clarifying procedures and interpreting the applicable
standard. These letters may also be used to revise and amend the
procedures used in specific programs. Significant changes in any
program shall be published in the Federal Register.
(e) Laboratory qualifications. The following laboratory
qualifications apply to all testing laboratories participating in the
program including manufacturer's laboratories and the administrator's
own laboratories when designated in the specific program.
(1) Organization and personnel. Laboratories wishing to participate
in a certification program shall apply to the administrator and shall
furnish the following information:
(i) Name of laboratory, address, telephone number, name and title of
official to be contacted for this program.
(ii) Name and qualifications of person assigned by the laboratory to
supervise testing under a specific certification program.
(iii) Name and qualifications of engineers and other key personnel
who shall conduct the testing.
(iv) Brief review of training program for personnel associated with
program to assure the operational efficiency and uniformity of the
testing and quality control procedures.
Each laboratory shall notify the administrator of any change in its
submission regarding procedures and/or major personnel associated with
the program.
(2) Equipment and facilities. Each laboratory shall:
(i) Describe the test instruments and testing facilities to be used
in making the test(s) required by the applicable standard. Information
shall include: Item of equipment, manufacturer, type or model, serial
number, range, precision, frequency of calibration and dates of
calibration.
(ii) Provide photographs of the listed equipment.
(iii) Provide a description of the applicable standards and
calibration equipment being used and the calibration procedures
followed, including National Bureau of Standards traceability, when
applicable. List outside organizations providing calibration services,
if used.
(iv) Demonstrate that measurements can be made with existing
equipment and repeated precision within the limits established by the
applicable standards. Administrator may periodically require
laboratories to conduct collaborative testing on standard reference
materials.
(v) Provide evidence, when regulated temperatures and humidity are
required, that charts are maintained from a continuous recorder
registering both wet and dry bulb temperature or relative humidity. The
charts are to be properly dated, retained and available for inspection.
(vi) Provide a list of standards, test methods and other information
necessary to carry out the program.
(3) Testing methodology. (i) Describe concisely the procedures for
conducting the tests required and the specific equipment to be used.
(ii) Attach a sample test report showing representative test results
and accompanied by test data forms for each test required. When
approved for program participation, testing laboratories may be required
by administrator to report test results on standard summary report
forms.
(4) Subcontractors. If a testing laboratory plans to subcontract any
of its testing to other laboratories, only approved laboratories
acceptable to the administrator shall be used.
(5) Laboratory quality control. The laboratory shall develop
operating quality control procedures acceptable to the administrator.
The procedures of the American Council of Independent Laboratories1 may
be used as a guideline.
(6) Approval of laboratories. Administrators shall develop detailed
laboratory approval requirements and conduct periodic inspections to
assure each test laboratory's capability. Laboratory approval may be
granted for 2 years. Reapproval of the laboratory shall be necessary
every 2 years. When a program allows the use of an administrator's own
laboratories, these laboratories shall be reviewed by a qualified third
party acceptable to HUD. Documentation of acceptance for administrator
laboratories shall be maintained by the administrator and HUD.
Administrator laboratories shall be subject to reapproval every two
years.
(7) Withdrawal of approval. Laboratory approval shall be withdrawn
or temporarily suspended if it is determined that the laboratory is not
complying with the approved requirements. Causes for suspension
include, but are not limited to, the following:
(i) Incompetence.
(ii) Failure to test in accordance with the test methods described in
the standard.
(iii) Issuance of test reports which fail to comply with the
requirements described in the specific product certification program.
(iv) Falsification of the information reported.
(v) A statement implying validation of the product using a test
report which constitutes only part of the total standard.
(vi) Deceptively utilizing references in advertising or other
promotional activities.
(vii) Submission of incomplete or inadequate information and
documentation called for herein.
(44 FR 54656, Sept. 20, 1979)
1Copies are available from the American Council of Independent
Laboratories, Inc., 1725 ''K'' Street, NW., Washington, DC 20006.
24 CFR 200.936 Supplementary specific procedural requirements under HUD
building products certification program for solid fuel type room heaters
and fireplace stoves.
(a) Applicable standards. Solid fuel type room heaters and fireplace
stoves certified under the HUD Building Products Certification Program
shall be designed, assembled and tested in conformance with the
following standards, which are incorporated by reference:
(1) ANSI/UL 737 (1978), for fireplace stoves;
(2) ANSI/UL 1482 (1979), for solid fuel type room heaters with coal
amendments.
(b) Labelling. (1) Under the procedures set forth in paragraph
(d)(6) of 200.935, concerning labelling of a product, the
administrator's validation mark and the manufacturer's certification of
compliance with the applicable standards are required to be on the
certification label issued by the administrator to the manufacturer. In
the case of solid fuel type room heaters and fireplace stoves, the
following additional information must be included on the certification
label:
(i) The manufacturer's statement of conformance to the HUD Building
Products Certification Program;
(ii) The manufacturer's name and the identity and location of
manufacturing plant;
(iii) The specification designation and manufacturer series or model
number; and
(iv) The type of fuel to be used.
(2) The certification label must be permanently affixed to the heater
or stove and be readily visible after the heater or stove is installed.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in paragraph (d)(8) of 200.935, concerning
periodic tests and quality control inspections, the frequency of testing
for a product must be described in the specific building product
certification program. In the case of solid fuel type room heaters and
fireplace stoves, testing and inspection shall be conducted as follows:
(1) Once every four years, beginning with the initial administrator
visit, a sample of each certified product shall be selected by the
administrator for testing for compliance with the applicable standards
in a laboratory which has been accredited under the National Voluntary
Laboratory Accreditation Program.
(2) The administrator shall visit the manufacturer's facility two
times a year to assure that the initially accepted quality control
procedures are being followed.
(48 FR 1955, Jan. 17, 1983)
24 CFR 200.937 Supplementary specific procedural requirements under HUD
building product standards and certification program for plastic bathtub
units, plastic shower receptors and stalls, plastic lavatories, plastic
water closet bowls and tanks.
(a) Applicable standards. (1) Plastic bathtub units, plastic shower
receptors and stalls, plastic lavatories, and plastic water closet bowls
and tanks shall be designed, assembled and tested in compliance with the
following standards, which are incorporated by reference:
ANSI Z124.1 -- (1980) Plastic Bathtub Units
ANSI Z124.2 -- (1980) Plastic Shower Receptors and Stalls
ANSI Z124.3 -- (1980) Plastic Lavatories
ANSI Z124.4 -- (1983) Plastic Water Closet Bowls and Tanks
(2) These standards have been approved by the Director of the Federal
Register for incorporation by reference. They are available from the
American National Standards Institute, Inc., 1430 Broadway, New York, NY
10018. The standards are also available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington DC 20408.
(b) Labeling. (1) Under the procedures set forth in paragraph (d)(6)
of 200.935, concerning labeling of a product, the administrator's
validation mark and the manufacturer's certification of compliance with
the applicable standards are required to be on the certification label
issued by the administrator to the manufacturer. In the case of plastic
bathtub units, plastic shower receptors and stalls, plastic lavatories,
and plastic water closet bowls and tanks, the following additional
information shall be included on the certification label:
(i) Manufacturer's statement of conformance to UM 73a;
(ii) Manufacturer's name and code identifying the plant location.
(2) The certification label shall be affixed to each plastic bathroom
fixture.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in paragraph (d)(8) of 200.935, concerning
periodic tests and quality control inspections, the frequency of testing
for a product shall be described in the specific building product
certification program. In the case of plastic bathroom fixtures,
testing and inspection shall be conducted as follows:
(1) At least every six months, the administrator shall visit the
manufacturer's facility to select a sample of each certified plastic
bathtub unit, plastic shower receptor and stall, plastic water closet
bowl and tank for testing in an approved laboratory, in accordance with
applicable standards.
(2) At least every twelve months, the administrator shall visit the
manufacturer's facility to select a sample of each certified plastic
lavatory for testing in accordance with applicable standards.
(3) The administrator shall also review quality control procedures at
each visit to determine that they continue to be followed.
(49 FR 378, Jan. 4, 1984)
24 CFR 200.938 Supplementary specific procedural requirements under HUD
building product standards and certification program for aluminum
windows, storm windows, sliding glass doors and storm doors.
(a) Applicable standards. (1) Aluminum windows, storm windows,
sliding glass doors and storm doors certified for this program shall be
designed, assembled, and tested in conformance with the following
American National Standards Institute/Architectural Aluminum
Manufacturer's Association (ANSI/AAMA) standards:
ANSI/AAMA 302.9-1977 Specifications for Aluminum Prime Windows.
ANSI/AAMA 402.9-1977 Specifications for Aluminum Sliding Glass Doors.
ANSI/AAMA 1002.10-1983 Specifications for Aluminum Insulating Storm
Products for Windows and Sliding Glass Doors.
ANSI/AAMA 1102.7-1977 Specifications for Aluminum Storm Doors.
(2) These standards have been approved by the Director of the Federal
Register for incorporation by reference. They are available from the
American National Standards Institute, Inc, 1430 Broadway, New York, NY
10018. The standards are also available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington DC 20408.
(b) Labeling. (1) Under the procedures set forth in paragraph (d)(6)
of 200.935, concerning labeling of a product, the administrator's
validation mark and the manufacturer's certification of compliance with
the applicable standards are required to be on the certification label
issued by the administrator to the manufacturer. In the case of
aluminum windows, storm windows, sliding glass doors and storm doors,
the following additional information shall be included on the
certification label:
(i) The manufacturer's statement of conformance to the appropriate
referenced ANSI/AAMA standard.
(ii) The manufacturer's name and the code identifying plant location.
(2) The specification label shall be permanently affixed to each
aluminum window, storm window, sliding glass door and storm door.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in paragraph (d)(8) of 200.935, concerning
periodic tests and quality control inspections, the frequency of testing
for a product shall be described in the specific building product
certification program. In the case of aluminum windows, storm windows,
sliding glass doors and storm doors, testing and inspection shall be
conducted as follows:
(1) At least every fours years, a sample unit of the maximum size
commerically available and submitted for certification, shall be
selected by the administrator for testing by an approved laboratory, in
accordance with the applicable standard.
(2) The administrator shall visit the manufacturer's facility at
least once every six months to assure that the initially accepted
quality procedures continue to be followed.
(49 FR 377, Jan. 4, 1984)
24 CFR 200.939 Supplementary specific procedural requirements under HUD
building products standards and certification program for wood window
units and wood sliding patio doors.
(a) Applicable standards. (1) Wood window units and wood sliding
patio doors certified under this program shall be designed, assembled
and tested in conformance with the following American National Standards
Institute/National Wood Manufacturer's Association (ANSI/NWMA)
standards:
(i) ANSI/NWMA I.S. 2-80 (1980) Industry Standard for Wood Window
Units.
(ii) ANSI/NWMA I.S. 3-70 (1976) Industry Standard for Wood Sliding
Patio Doors.
(2) These standards have been approved by the Director of the Federal
Register for incorporation by reference. They are available from the
American National Standards Institute, Inc., 1430 Broadway, New York, NY
10018. The standards are also available for inspection at the Office of
the Federal Register, 800 North Capitol Street, NW., suite 700,
Washington DC 20408.
(b) Labeling. (1) Under the procedures set forth in 200.935(d)(6)
concerning labeling of a product, the administrator's validation mark
and the manufacturer's certification of compliance with the applicable
standards are required to be on the certification label issued by the
administrator to the manufacturer. In the case of wood window units and
wood sliding patio doors, the following additional information shall be
included on the certification label:
(i) The manufacturer's certification of compliance with the
applicable ANSI/NWMA standard.
(ii) The manufacturer's name and a code identifying the manufacturing
plant location.
(2) The certification label shall be affixed to each wood window unit
and wood sliding patio door and shall be located so that it is available
for future identification; a visible, exposed location is not required.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in 200.935(d)(8) concerning periodic tests and
quality control inspections, the frequency of testing for a product
shall be described in the specific building product certification
program. In the case of wood windows units and wood sliding patio
doors, testing and inspection shall be conducted as follows:
(1) At least once every four years, beginning with the initial
administrator visit, a sample unit of the maximum size commercially
available which is to be certified shall be selected by the
administrator and tested for compliance with the applicable standards.
Testing shall be conducted in an approved laboratory.
(2) At least once every six months, the administrator shall visit the
manufacturer's facility and review quality control procedures to
determine that they provide a level of quality control which is
equivalent or superior to that provided by the procedures which were
initially accepted.
(49 FR 24123, June 12, 1984)
24 CFR 200.940 Supplementary specific procedural requirements under HUD
building product standards and certification program for sealed
insulating glass units.
(a) Applicable standards. (1) Sealed insulating glass units shall be
designed, assembled and tested in compliance with the following American
Society of Testing and Materials (ASTM) standards:
ASTM E-546-75 -- Standard Test Method for Frost Point of Sealed
Insulating Glass Units;
ASTM E-773-81 -- Standard Test Method for Seal Durability of Sealed
Insulating Glass Units; and
ASTM E-774-81 -- Specification for Sealed Insulating Glass Units.
(2) These standards have been approved by the Director of the Federal
Register for incorporation by reference. They are available from the
American Society for Testing Materials (ASTM) 1916 Race St.
Philadelphia, PA 19103. The standards are also available for inspection
at the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington DC 20408.
(b) Labeling. (1) Under the procedures set forth in paragraph (d)(6)
of 200.935, concerning labeling of a product, the administrator's
validation mark and the manufacturer's certification of compliance with
the applicable standards are required to be on the certification label
issued by the administrator to the manufacturer. In the case of sealed
insulating glass units, the following additional information shall be
included on the certification label:
(i) The manufacturer's statement of conformance to the appropriate
referenced ASTM standard.
(ii) The manufacturer's name and code identifying the plant location.
(2) The certification label shall be affixed to each sealed
insulating glass unit.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in 200.935(d)(8), concerning periodic tests and
quality control inspections, the frequency of testing for a product
shall be described in the specific building product certification
program. In the case of sealed insulating glass units, testing and
inspection shall be conducted as follows:
(1) At least every twelve months, beginning with the initial
administrator visit, a sample of each certified sealed insulated glass
unit shall be selected by the administrator for testing in an approved
laboratory, in compliance with the applicable standards.
(2) The administrator shall visit the manufacturer's facility at
least once every six months to assure that the initially accepted
quality procedures continue to be followed.
(49 FR 376, Jan. 4, 1984)
24 CFR 200.941 Supplementary specific building product standards and
certification program for PVC window units.
(a) Applicable standards. (1) PVC window units shall be designed,
assembled and tested in accordance with the following standard:
ASTM D 4099-82 Standard Specification for Poly(Vinyl Chloride) (PVC)
Prime Windows
In addition, the following are required:
(i) Weatherstrip shall be replaceable;
(ii) PVC resin compound shall comply with requirements of ASTM D
4216-83, Class 1-154-33-00, 1-231-13-00, and 1-431-13-00, The
manufacturer shall certify that it has been tested for five or more
years of outdoor exposure with no chipping, cracking peeling or other
evidence of poor performance.
(2) This standard has been approved by the Director of the Federal
Register for incorporation by reference, and is available from the
American Society for Testing and Materials, 1916 Race Street,
Philadelphia, PA 19013. The standard is also available for inspection
at the Office of the Federal Register, 800 North Capitol Street, NW.,
suite 700, Washington DC 20408.
(b) Labeling. (1) Under the procedures set forth in 200.935(d)(6),
concerning labeling of a product, the administrator's validation mark
and the manufacturer's certification of compliance with the applicable
standard is required to be on the certification label issued by the
administrator to the manufacturer. In the case of PVC window units, the
following additional information shall be included on the certification
label:
(i) Manufacturer's statement of conformance to the ASTM standard.
(ii) Manufacturer's name and code identifying the plant location.
(2) The certification label shall be affixed to each PVC window unit
and located so that it is available for future identification. A
visible location is not required.
(c) Periodic tests and quality control inspections. Under the
procedures set forth in 200.935(d)(8) concerning periodic tests and
quality control inspections, the frequency of testing for a product
shall be described in the specific Building Product Standards and
Certification Program. In the case of PVC window units, testing and
inspection shall be conducted as follows:
(1) At least every four years, a production unit of the maximum size
commercially available, which has been submitted for certification shall
be selected by the administrator for testing by an approved laboratory,
in accordance with the applicable standard.
(2) The administrator shall visit the manufacturer's facility at
least once every six months to assure that the initially accepted
quality control procedures continue to be followed.
(49 FR 31853, Aug. 9, 1984)
24 CFR 200.942 Supplementary specific procedural requirements under HUD
building product standards and certification program for carpet and
carpet with attached cushion.
(a) Applicable standards. (1) Carpet and carpet with attached
cushion certified for this program shall be designed, manufactured and
tested in accordance with the following standards:
(i) AATCC 20A-81 -- Fiber Analysis: Quantitative;
(ii) AATCC 16E-82 -- Colorfastness to Light: Water-Cooled Xenon-Arc
Lamp, Continuous Light;
(iii) AATCC 8-85 -- Colorfastness to Crocking: AATCC Crockmeter
Method;
(iv) AATCC 24-85 -- Insect, Resistance to Textiles to;
(v) ASTM D1335-67 (Reapproved 1972) -- Standard Test Method for Tuft
Bind of Pile Floor Coverings;
(vi) ASTM D3676-78 (Reapproved 1983) -- Standard Specification for
Rubber Cellular Cushion Used for Carpet or Rug Underlay;
(vii) ASTM E648-78 -- Standard Test Method for Critical Radiant Flux
of Floor-Covering Systems Using a Radiant Heat Energy Source;
(viii) ASTM D2646-79 -- Standard Methods of Testing Backing Fabrics;
(ix) ASTM D3936-80 -- Standard Test Method for Delamination Strength
of Secondary Backing of Pile Floor Coverings;
(x) ASTM D297-81 -- Standard Methods for Rubber Products -- Chemical
Analysis;
(xi) ASTM D418-82 -- Standard Methods of Testing Pile Yarn Floor
Covering Construction; and
(xii) National Bureau of Standards DOC FF 1-70. (ASTM D2859-76) --
Standard Test Method for Flammability of Finished Textile Floor Covering
Materials.
(2) These standards have been approved by the Director of the Federal
Register for incorporation by reference. They are available from the
(i) American Association of Textile Chemists and Colorists (AATCC), P.O.
Box 12215, Research Triangle Park, NC 27709;
(ii) American Society for Testing and Materials (ASTM), 1916 Race
Street, Philadelphia, PA 19103; and
(iii) U.S. Department of Commerce, National Bureau of Standards,
Washington, DC 20234.
The standards are also available for inspection at the Office of the
Federal Register, 800 North Capitol Street, NW., suite 700, Washington
DC 20408.
(b) Labeling. (1) Under the procedures set forth in 202.935(d)(6),
concerning labeling of a product, the administrator's validation mark
and the manufacturer's certification of compliance with the applied
standard is required to be on the certification label issued by the
administrator to the manufacturer. In the case of carpet and carpet
with attached cushion, the following additional information shall be
included on the certification label, mark or stamp:
(i) Manufacturer's name or code identifying the manufacturing plant
location; and
(ii) Manufacturer's statement of compliance with UM 44d.
(2) The certification mark shall be applied to each carpet at
intervals of at least every six feet, not less than one foot from the
edge.
(c) Periodic tests and quality control inspections. (1) Five samples
of carpet and carpet with attached cushion shall be tested annually by
the administrator or by an administrator-approved laboratory. Three
samples of each certified quality shall be taken from the plant
annually. Of these, two shall be interim samples (taken every six
months) and one an annual sample. In addition, two samples of each
certified quality shall be taken annually from sources other than the
manufacturer, i.e., brought in the market place from distributors or
stores, not from the factory. The administrator shall select samples
for testing, and testing shall be conducted, in accordance with the
applicable standards in a laboratory accredited by the National
Voluntary Laboratory Accreditation Program (NVLAP) of the National
Bureau of Standards, U.S. Department of Commerce.
(2) The administrator shall visit the manufacturer's facility at
least once every six months to assure that the initially accepted
quality control procedures continue to be followed.
(51 FR 17928, May 16, 1986)
24 CFR 200.943 Supplementary Specific Procedural Requirements Under HUD
Building Product Standards and Certification Program for the
Grademarking of Lumber.
(a) Applicable standards. (1) Lumber shall be grademarked in
accordance with the following standard:
U.S. Department of Commerce Voluntary Product Standard PS 20-70
''American Softwood Lumber Standard''
This standard has been approved by the Director of the Federal
Register for incorporation by reference. It is available from the
National Bureau of Standards, Gaithersburg, Maryland 20143. The
standard is also available for inspection at the Office of the Federal
Register, 800 North Capitol Street, NW., suite 700, Washington DC.
(b) Labeling or marking. (1) Under the procedures set forth in
200.935(d)(6), concerning labeling or marking of a product, the
administrator's validation mark and the manufacturer's certification of
compliance with the applicable standard is required on the certification
label issued by the administrator to the manufacturer. However, in the
case of grademarking of lumber, the following information shall be
included on the certification label or mark;
(i) The registered symbol which identifies the grading agency;
(ii) Species or species combination;
(iii) Grade;
(iv) Identification of applicable grading rules when not indicated by
the species identification or agency symbol;
(v) Mill or grader;
(vi) For members which are less than 5" nominal thickness, indication
that the lumber was green or dry at the time of dressing; and
(vii) Indication that the lumber is finger jointed, where applicable.
(2) The certification mark shall be affixed to each piece of lumber.
(c) Periodic tests and quality control inspections. Periodic tests
and quality control inspections shall be carried out by the Board of
Review of the American Lumber Standards Committee as defined in PS
20-70.
(51 FR 1369, Jan. 13, 1986)
24 CFR 200.944 Supplementary specific requirements under the HUD
Building Products Standards and Certification Program for Plywood and
Other Performance Rated Wood-Based Structural-Use Panels.
(a)(1) All plywood made to specifications of Voluntary Product
Standard, PS 1-83, ''Construction and Industrial Plywood'' (published by
the U.S. Department of Commerce, National Bureau of Standards (May
1984)) and grade marked as PS 1-83 shall conform to the requirements of
PS 1-83, except that all veneers may be D-grade. A copy of PS 1-83 may
be obtained from the U.S. Department of Commerce, National Institute for
Standards and Technology, Office of Product Standards, Gaithersburg, MD
20899.
(2) All plywood panels not meeting the veneer grade requirements of
PS 1-83, and all performance rated composite and nonveneer
structural-use panels shall comply with the requirements described in
the APA PRP-108, ''Performance Standards and Policies for Structural-Use
panels'' (published by the American Plywood Association, June 1988).
However, in ASTM D-3043-87, ''Standard Methods of Testing Structural
Panels in Flexure'' (published by the American Society for Testing and
Materials, August 28, 1987), Method B may be used in lieu of Method C
for measuring the mechanical properties of the panel, provided that the
test specimen has a width of at least 12 inches. The impact load shall
be 150 ft. lbs. for single-layer floor panels excluding any floor
finishes. Copies of the APA Standard may be obtained from the American
Plywood Association, P.O. Box 11700, Tacoma, WA 98411-0770. Copies of
the ASTM Standard may be obtained from the American Society of Testing
and Materials, 1916 Race Street, Philadelphia, PA 19103.
(3) Structural-use panels shall be installed in accordance with the
manufacturer's installation instructions and Form No. E30K, ''APA
Design/Construction Guide-Residential and Commercial'' (published by the
American Plywood Association, January 1989).
(4) These standards have been approved by the Director of the Federal
Register for incorporation by reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Copies of the standards are available for
inspection at the Office of the Federal Register, 800 North Capitol
Street, NW., suite 700, Washington DC.
(b) Labeling. Under the procedures set forth in 200.935(d)(6)
concerning labeling of a product, the administrator's validation mark
and the manufacturer's certification of compliance with the applicable
standards are required to be on the certification label issued by the
administrator to the manufacturer. Panels that conform to the
Performance Standards and Policy for Structural-Use Panels shall be
marked as conforming to UM 40c. All panels complying with APA PRP-108
shall be marked with a label formatted in the manner similar to the
trademark examples shown in APA PRP-108. All panels will be marked with
the mill number. The certification mark shall be stamped on each panel
and be located so that it is available for inspection.
(c) Periodic tests and qualify control inspections. Under the
procedures set forth in 200.935(d)(8) concerning periodic tests and
quality control inspections, the frequency of testing for a product
shall be described in the specific building product certification
program. In the case of plywood and wood-based structural-use panels,
testing and inspection shall be conducted as follows:
(1) Testing shall be done in an Administrator's laboratory or an
Administrator-approved laboratory every three months. All plywood
qualified for conformance with PS 1-83 shall be tested in accordance
with PS 1-83.
(2) All thickness and lay-ups of structural-use panels in production
made in conformance with the Performance Standards shall be tested in
accordance with procedures set forth in APA PRP-108 Performance
Standards and Policies for Structural-Use Panels (published by the
American Plywood Association Standard June 1988).
(3) The Administrator shall examine each manufacturer's quality
control procedures to assure they are the same as or equivalent to those
set forth under the Quality Assurance Policy section 4.2.3 of the
publication referenced in paragraph (2) above or PS 1-83 section
3.8.6.6, Reexamination.
(4) The Administrator shall inspect the manufacturer's procedures at
the plant at least every three months to assure that the initially
accepted quality control procedures are being followed.
(55 FR 38785, Sept. 20, 1990)
24 CFR 200.944 Subpart T -- Disclosure and Verification of Social
Security Numbers and Employer Identification Numbers by Applicants and
Participants in Assisted Mortgage and Loan Insurance and Related
Programs
Source: 54 FR 39687, Sept. 27, 1989, unless otherwise noted.
24 CFR 200.1001 Summary and purpose.
(a) Summary. (1) This subpart implements section 165 of the Housing
and Community Development Act of 1987 (42 U.S.C. 3543) as it pertains to
the assisted mortgage and loan insurance and related programs
administered by the Departmment of Housing and Urban Development under
subchapter B of this chapter. The programs covered by this subpart
include the following: Assignment of Mortgages to HUD under part 203,
subpart C; Occupied Conveyance under part 203, subpart C; Rent
Supplement under part 215; Management of HUD-acquired multifamily
properties under part 290; and the rental and homeownership assistance
programs under sections 221(d)(3) (BMIR), 235 and 236 of the National
Housing Act.
(2) This subpart requires applicants that seek to receive, and
certain recipients of, housing assistance under any of the covered
programs to disclose, and to submit documentation to verify, their
Social Security Numbers. Individuals, certain officials of corporations
and other entities, and entities that seek to participate as private
owners in certain programs subject to this subpart must disclose and
verify their Social Security or Employer Identification Numbers, as
appropriate. The failure of any person or entity to make the required
disclosure and verification constitutes grounds for denial of
eligibility, or termination of assistance or tenancy (or both), under
the program involved.
(3) Section 165 is implemented for the unassisted mortgage and loan
insurance and coinsurance programs administered by the Department under
subchapter B of this chapter, at part 200, subpart U. The provision is
implemented for the section 8 Housing Assistance Payments programs
administered by the Department under 24 CFR chapter VIII, and for the
Public and Indian Housing programs administered by the Department under
24 CFR chapter IX, at 24 CFR part 750; and for the section 312
Rehabilitation Loan program, at 24 CFR part 501.
(b) Purpose. The purpose of this subpart is to enable the Department
to use Social Security and Employer Identification Numbers to help
decrease the incidence of fraud, waste, and abuse in the covered
programs. Specific examples of how the Department may use Social
Security and Employer Identification Numbers include (but are not
limited to) the following:
(1) Identifying a person or entity in manual or automated records.
(2) Identifying a person or entity during debt collection efforts.
(3) Cross-checking among the Department's automated systems for the
previous or current participation of a person or entity in other
programs.
(4) Identifying persons or entities in the records of other Federal
agencies for the purpose of obtaining information on their eligibility
for, or level of benefits in, the Department's programs.
(5) Identifying persons or entities for the purpose of requesting
information about them from other government or private sources during
an audit or investigation.
(6) Validating the identity of a person or entity with the Social
Security Administration or the Internal Revenue Service.
(7) Ensuring that the person or entity is eligible for the program
involved and that the level of benefits provided is appropriate.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1003 Applicability.
This subpart applies to the following housing assistance programs
contained in subchapter B of this chapter:
(a) Part 203, subpart C, Assignment of Mortgages to HUD.
(b) Part 203, subpart C, Occupied Conveyance.
(c) Part 215, Rent Supplement Payments.
(d) Part 221, Low Cost and Moderate Income Mortgage Insurance (BMIR).
(e) Part 235, Mortgage Insurance and Assistance Payments for
Homeownership and Project Rehabilitation.
(f) Part 236, Mortgage Insurance and Interest Reduction Payments for
Rental Projects.
(g) Part 290, Management and Disposition of HUD-Owned Multifamily
Housing Projects.
24 CFR 200.1005 Definitions.
As used in this subpart:
Assistance applicant has the following meanings for the programs
referred to in 200.1003:
(a) Part 203, subpart C, Assignment of Mortgages to HUD: A mortgagor
who seeks TMAP or Assignment assistance.
(b) Part 203, subpart C, Occupied Conveyance: An occupant who wishes
to occupy a property after HUD has acquired it.
(c) Parts 215, 221(BMIR), 236, and 290: An individual or family
seeking rental assistance under any of the programs.
(d) Part 235: A homeowner or cooperative member seeking
homeownership assistance (including where the individual seeks to assume
an existing mortgage).
Assume an existing mortgage means any assumption of a mortgage that
is insured under section 221(BMIR), 235, or 236 (as appropriate) of the
National Housing Act, irrespective of whether the assumption involves
the release by the mortgagee of a previous mortgagor from personal
liability on the mortgage note and the assumption of this liability, and
the agreement to pay the mortgage debt, by the mortgagor.
Employer Identification Number (EIN) means the taxpayer identifying
number of an individual, trust, estate, partnership, association,
company, or corporation that is assigned pursuant to section 6011(b) of
the Internal Revenue Code of 1986, or corresponding provisions of prior
law, or pursuant to section 6109 of the Code. The EIN has nine digits
separated by a hyphen as follows: 00-0000000.
Entity applicant means a partnership, corporation, or any other
association or entity that seeks to participate as a private owner
(including where the entity seeks to assume an existing mortgage) in 24
CFR part 215, 221 (BMIR), or 236. Entity applicant does not include a
public entity, such as a PHA or a State Housing Finance Agency.
HUD or Department means the United States Department of Housing and
Urban Development.
Individual owner applicant means an individual who seeks to
participate as a private owner (including where the individual seeks to
assume an existing mortgage) in 24 CFR part 215, 221 (BMIR), 235
(without homeownership assistance) or 236.
Participant has the following meanings for the programs referred to
in 200.1003:
(a) Part 203, subpart C, Assignment of Mortgages to HUD: A mortgagor
who is receiving TMAP or whose mortgage has been assigned to HUD.
(b) Parts 215, 221(BMIR), 236, and 290: A tenant or a qualified
tenant under any of the covered programs.
(c) Part 235: A homeowner or a cooperative member receiving
homeownership assistance.
PHA means a State, county, municipality, or other governmental entity
or public body (or agency or intrumentality thereof) which is authorized
to engage or assist in the development or operation of housing for lower
income families. For purposes of this subpart, the term PHA includes an
Indian Housing Authority.
Processing entity means HUD or other person or entity that is
responsible for making eligibility and related determinations and
scheduled income reviews under any of the programs referred to in
200.1003.
Scheduled income reexamination has the following meaning for the
programs referred to in 200.1003:
(a) Part 203, subpart C, Assignment of Mortgages to HUD: The review
of the monthly payment due from the mortgagor under the assistance
agreement, as provided by 203.648(c).
(b) Parts 215, 221(BMIR), 235, and 236: The regularly scheduled
reexamination of participant income.
(c) Part 290: Income certification as provided by 290.17(e).
Social Security Number (SSN) means the number that is assigned to a
person by the Social Security Administration of the Department of Health
and Human Services, and that identifies the record of the person's
earnings that are reported to the Administration. The SSN has nine
digits separated by hyphens, as follows: 000-00-0000; it does not
include a number with a letter as a suffix that is used to identify an
auxiliary beneficiary under the Social Security System.
(54 FR 39687, Sept. 27, 1989, as amended at 56 FR 920, Jan. 9, 1991)
24 CFR 200.1010 Disclosure and verification of Social Security and
Employer Identification Numbers.
(a) Disclosure: assistance applicant. Each assistance applicant
must submit the following information to the processing entity when the
applicant's eligibility under the program involved is being determined:
(1)(i) The complete and accurate SSN(s) assigned to the applicant and
to each member of the applicant's household who is at least six years of
age; and
(ii) The documentation referred to in paragraph (f)(1) of this
section to verify each such SSN; or
(2) If the applicant or any member of the applicant's household who
is at least six years of age has not been assigned an SSN, a
certification executed by the individual(s) involved that meets the
requirements of paragraph (j) of this section.
(b) Disclosure: individual owner applicants. Each individual owner
applicant must submit the following information to the processing entity
when the applicant's eligibility under the program involved is being
determined:
(1)(i) The complete and accurate SSN(s) assigned to the applicant and
to each member of the applicant's household who will be obligated to pay
the debt evidenced by the mortgage documents; and
(ii) The documentation referred to in paragraph (f)(1) of this
section to verify the SSN(s); or
(2) If any individual referred to in paragraph (b)(1)(i) of this
section has not been assigned an SSN, a certification executed by the
individual involved that meets the requirements of paragraph (j) of this
section.
(c) Disclosure: certain officials of entity applicants. Each
officer, director, principal stockholder (as defined in HUD
administrative instructions), or other official of an entity applicant
(as specified in HUD administrative instructions) must submit the
following information to the processing entity when the applicant's
eligibility under the program involved is being determined:
(1) The complete and accurate SSN(s) assigned to each such
individual; and
(2) The documentation referred to in paragraph (f)(1) of this section
to verify each SSN.
(d) Disclosure: participants -- (1) Initial disclosure by those who
were participants before November 6, 1989. Each participant whose
initial determination of eligibility under the program involved was
begun before November 6, 1989, must submit the following information to
the processing entity at the next scheduled income reexamination:
(i)(A) The complete and accurate SSN(s) assigned to the participant
and to each member of the participant's family who is at least six years
of age; and
(B) The documentation referred to in paragraph (f)(1) of this section
to verify each such SSN; or
(ii) If the participant or any member of the participant's household
who is at least six years of age has not been assigned an SSN, a
certification executed by the individual(s) involved that meets the
requirements of paragraph (j) of this section.
(2) Subsequent disclosure by participants who have made an initial
disclosure under this section. Once a participant has disclosed and
verified SSN(s), or submitted a certification(s) that no SSN(s) has been
assigned, as provided by paragraph (a) (as an applicant) or paragraph
(d)(1) (as a preexisting participant) of this section, the following
rules apply:
(i) If the participant's household adds a new member(s) who is at
least six years of age, the participant must submit to the processing
entity, at the next interim or scheduled income reexamination that
includes the new member(s):
(A) The complete and accurate SSN(s) assigned to each new member and
the documentation referred to in paragraph (f)(1) of this section to
verify the SSN(s) for each new member; or
(B) If the new member(s) has not been assigned an SSN, a
certification executed by the individual(s) involved that meets the
requirements of paragraph (j) of this section.
(ii) If the participant or any member of the participant's household
who is at least six years of age obtains a previously undisclosed SSN,
or has been assigned a new SSN (including any member who is six years of
age or older and has been assigned an SSN, as required by section
6109(e) of the Internal Revenue Code of 1986), the participant must
submit to the processing entity at the next scheduled income
reexamination:
(A) The complete and accurate SSN(s) assigned to the participant or
household member(s) involved; and
(B) The documentation referred to in paragraph (f)(1) of this section
to verify the SSN(s) of each such individual.
(iii) HUD may specify in administrative instructions additional
circumstances in which participants must disclose and verify SSNs, as
well as the nature of the disclosure and the verification required, and
the time and manner for making the disclosure and verification.
(e) Disclosure: entity applicants. Each entity applicant must
submit the following information to the processing entity when the
applicant's eligiblity under the program involved is being determined:
(1) The complete and accurate EIN(s) assigned to the applicant; and
(2) The documentation referred to in paragraph (f)(2) of this section
to verify the EIN(s).
(f) Required documentation -- (1) Social Security Numbers. The
documentation necessary to verify the SSN of an individual who is
required to disclose his or her SSN under paragraphs (a) through (d) of
this section is a valid SSN card issued by the Social Security
Administration of the Department of Health and Human Services, or such
other evidence of the SSN (including one or more alternate documents or
such other substantiation of the SSN) as HUD may prescribe in
administrative instructions. Examples of such evidence may include a
State driver's license that displays the SSN of the individual.
(2) Employer Identification Numbers. The documentation necessary to
verify the EIN(s) of an entity applicant that is required to disclose
its EIN(s) under paragraph (e) of this section is the official, written
communication from the IRS assigning the EIN(s) to the entity applicant,
or such other evidence of the EIN(s) (including such substantiation) as
HUD may prescribe in administrative instructions.
(g) Special documentation rules for assistance applicants and
participants -- (1) Certification of inability to meet documentation
requirements. If an individual who is required to disclose his or her
SSN(s) under paragraph (a) (assistance applicants) or paragraph (d)
(participants) of this section is able to disclose the SSN, but cannot
meet the documentation requirements of paragraph (f)(1) of this section,
the assistance applicant or participant (as appropriate) must submit to
the processing entity the individual's SSN(s) and a certification
executed by the individual that the SSN(s) submitted has been assigned
to the individual, but that acceptable documentation to verify the
SSN(s) cannot be provided.
(2) Acceptance of certification by processing entity. Except as
provided by paragraph (h) of this section, the processing entity must
accept the certification referred to in paragraph (g)(1) of this
section, and continue to process the applicant's or participant's
eligibility to participate in the program involved.
(3) Effect on applicants. If the processing entity determines that
the assistance applicant is otherwise eligible to particpate in the
program, the applicant may not become a participant in the program,
unless it submits to the the processing entity the documentation
required under paragraph (f)(1) of this section within the time period
specified in paragraph (g)(5) of this section. During such period, the
applicant will retain the position that it occupied in the program at
the time the determination of eligibility was made, including (as
appropriate) its place on any waiting list maintained for the program.
(4) Effect on participants. If the processing entity determines that
the participant otherwise continues to be eligible to participate in the
program, participation will continue, provided that the participant
submits to the processing entity the documentation required under
paragraph (f)(1) of this section within the time period specified in
paragraph (g)(5) of this section.
(5) Time for submitting documentation. The time period referred to
in paragraphs (g) (4) and (5) of this section is 60 calendar days from
the date on which the certification referred to in paragraph (g)(1) of
this section is executed, except that the processing entity may, in its
discretion and in such circumstances as it may permit, extend this
period for up to an additional 60 days, if the individual is at least 62
years of age and is unable to submit the required documentation within
the initial 60-day period.
(h) Rejection of documentation or certification. This processing
entity may reject documentation referred to in paragraph (f) of this
section, or a certification provided under paragraph (a)(2), (b)(2),
(d), or (g)(1) of this section, only for such reasons (including the
timeliness of the submission) as HUD may prescribe in administrative
instructions.
(i) Information on SSNs and EINs. (1) Information regarding SSNs and
SSN cards may be obtained by contacting the local Social Security Office
or consulting the Social Security Administration regulations at 20 CFR
chapter III (see particularly part 422).
(2) Information regarding EINs may be obtained by contacting the
local office of the Internal Revenue Service or consulting the
appropriate regulations for the Internal Revenue Service.
(j) Form and manner of certifications. The certifications referred
to in paragraphs (a)(2), (b)(2), (d), and (g)(1) of this section must be
in the form and manner that HUD prescribes in administrative
instructions. If an individual who is required to execute a
certification is less than 18 years of age, it must be executed by his
or her parent or guardian, or (in accordance with HUD administrative
instructions) by the individual or another person.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1015 Penalties for failing to disclose and verify Social
Security and Employer Identification Numbers.
(a) Denial of eligibility: assistance applicants and individual
owner applicants. The processing entity must deny the eligibility of an
assistance applicant or of an individual owner applicant in accordance
with the provisions governing the program involved, if the applicant
does not meet the applicable SSN disclosure, documentation and
verification, and certification requirements specified in 200.1010.
(b) Denial of eligibility: entity applicants. The processing entity
must deny the eligibility of an entity applicant in accordance with the
provisions governing the program involved, if:
(1) The applicant does not meet the applicable EIN disclosure and
verification requirements specified in 200.1010; or
(2) Any of the officials of the entity applicant referred to in
200.1010(c) does not meet the applicable SSN disclosure, and
documentation and verification requirements, specified in 200.1010.
(c) Termination of assistance or tenancy: participants. The
processing entity must terminate the assistance or the tenancy (or both)
of a participant in accordance with the provisions governing the program
involved, if the participant does not meet the applicable SSN
disclosure, documentation and verification, and certification
requirements specified in 200.1010.
(d) Cross reference. Individuals should consult the regulations and
administrative instructions for the programs referred to in 200.1003
for further information on the use of SSNs and EINs in determining the
eligibility of applicants, and the continued eligibility of participants
under those programs.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1020 Limitations on the collection, maintenance, use, and
dissemination of Social Security and Employer Identification Numbers,
and on information derived therefrom.
The collection, maintenance, use, and dissemination of SSNs and EINs
obtained pursuant to this subpart, and of any information derived
therefrom, must be conducted, to the extent applicable, in compliance
with the Privacy Act (5 U.S.C. 552a) and all other provisions of
Federal, State, and local law.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1025 Implementation.
(a) Applicants. The provisions of this subpart, and the conforming
changes made with respect to the disclosure, documentation and
verification, and use of SSNs and EINs for applicants in the regulations
governing the programs referred to in 200.1003, apply to all applicant
eligibility determinations initiated on or after November 6, 1989.
(b) Participants. The provisions of this subpart, and the conforming
changes made with respect to the disclosure, documentation and
verification, and use of SSNs for participants in the regulations
governing the programs referred to in 200.1003, apply to each scheduled
reexamination (and in the circumstances specified in 200.1010(d)(2)(i),
each interim reexamination) of the income of a participant initiated by
the processing entity on or after November 6, 1989.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1025 Subpart U -- Disclosure and Verification of Social
Security Numbers and Employer Identification Numbers by Applicants in
Unassisted Mortgage and Loan Insurance and Coinsurance Programs
Source: 54 FR 39690, Sept. 27, 1989, unless otherwise noted.
24 CFR 200.1101 Summary and purpose.
(a) Summary. This subpart implements section 165 of the Housing and
Community Development Act of 1987 (42 U.S.C. 3543) as it pertains to the
unassisted loan and mortgage insurance and coinsurance programs
administered by the Department of Housing and Urban Development under
subchapter B of this chapter. The programs covered by this subpart
include the Department's unassisted home mortgage and multifamily
mortgage insuring and coinsuring authorities under the National Housing
Act; the property improvement and manufactured home loan programs under
title I of the Act; and mortgage insurance for nursing homes and
related facilities, hospitals, group practice facilities, and land
development under sections 232 and 242, and titles XI and X,
respectively, of the Act.
(2) This subpart requires corporate and other entity applicants that
seek HUD-insured or -coinsured financing under any of the programs
covered by this subpart to disclose and verify their Employer
Identification Numbers. Individual applicants that seek HUD-insured or
-coinsured financing under any of the programs covered by this subpart,
as well as certain officials of prospective corporate and other entity
owners, must disclose and verify their Social Security Numbers. The
failure of any person or entity to meet these disclosure and
verification requirements constitutes grounds for denial of eligibility
for HUD mortgage or loan insurance or coinsurance under the program
involved.
(3) Section 165 is implemented for the assisted mortgage and loan
insurance and related programs administered by the Department under
subchapter B of this chapter, at part 200, subpart T. The provision is
implemented for the section 8 Housing Assistance Payments programs
administered by the Department under 24 CFR chapter VIII, and for the
Public and Indian Housing programs administered by the Department under
24 CFR chapter IX, at 24 CFR part 750; and for the section 312
Rehabilitation Loan program, at 24 CFR part 501.
(b) Purpose. The purpose of this subpart is to enable the Department
to use Social Security and Employer Identification Numbers to help
decrease the incidence of fraud, waste, and abuse in the covered
programs. Specific examples of how the Department may use Social
Security and Employer Identification Numbers include (but are not
limited to) the following:
(1) Identifying a person or entity in manual or automated records.
(2) Identifying a person or entity during debt collection efforts.
(3) Cross-checking among the Department's automated systems for the
previous or current participation of a person or entity in other
programs.
(4) Identifying persons or entities in the records of other Federal
agencies for the purpose of obtaining information on their eligibility
for, or level of benefits in, the Department's programs.
(5) Identifying persons or entities for the purpose of requesting
information about them from other government or private sources during
audit or investigation.
(6) Validating the identity of a person or entity with the Social
Security Administration or the Internal Revenue Service.
(7) Ensuring that the person or entity is eligible for the covered
program and that the level of benefits provided is appropriate.
(Approved by the Office of Management and Budget under control number
2502-0059)
24 CFR 200.1103 Applicability.
This subpart applies to all mortgage and loan insurance and
coinsurance programs contained in subchapter B of this chapter, except
the mortgage insurance and related programs referred to in 200.1003.
24 CFR 200.1105 Definitions.
As used in this subpart:
Assume an existing mortgage or loan means any assumption of a
mortgage or loan that is insured or coinsured under any of the programs
referred to in 200.1103, irrespective of whether the assumption
involves the release by the mortgagee of a previous mortgagor from
personal liability on the mortgage note and the assumption of this
liability, and the agreement to pay the mortgage debt, by the mortgagor.
Applicant includes an individual applicant and an entity applicant,
but does not include:
(a) A public entity (such as a PHA or a State Housing Financing
Agency), or an Indian Tribe.
(b) A mortgagee or lender.
(c) A person whose only involvement with an application for mortgage
or loan insurance or coinsurance, or an assumption of an existing
mortgage or loan, is in his or her official capacity with a public
entity or an Indian Tribe, or an official of a mortgagee or lender.
Employer Identification Number (EIN) means the taxpayer identifying
number of an individual, trust, estate, partnership, association,
company, or corporation that is assigned pursuant to section 6011(b) of
the Internal Revenue Code of 1986, or corresponding provisions of prior
law, or pursuant to section 6109 of the Code. The EIN has nine digits
separated by a hyphen, as follows: 00-0000000.
Entity applicant means a partnership, corporation, or other
association or entity, other than an individual applicant, that seeks to
participate as a private owner (including where the entity seeks to
assume an existing mortgage) under any of the programs referred to in
200.1103.
HUD or Department means the United States Department of Housing and
Urban Development.
Individual applicant means an individual(s) who:
(a)(1) Applies for a mortgage or loan insured or coinsured under any
of the programs referred to in 200.1103; or
(2) Seeks to assume an existing mortgage or loan; and
(b) Intends to hold the mortgaged property in his or her individual
right.
PHA means any State, county, municipality or other governmental
entity or public body (or agency or instrumentality thereof) that is
authorized to engage or assist in the development or operation of
housing for lower income families. For purposes of this subpart, the
term PHA includes an Indian Housing Authority.
Processing entity means the person or entity that is responsible for
making eligibility and related determinations under any of the programs
referred to in 200.1103. The processing entity is specified in the
regulations governing the covered program, and may include (but is not
limited to) HUD or a mortgagee or Title I lender approved under part 202
of this chapter.
Social Security Number (SSN) means the number that is assigned to an
individual by the Social Security Administration of the Department of
Health and Human Services, and that identifies the record of the
individual's earnings that are reported to the Administration. The SSN
has nine digits separated by hyphens, as follows: 000-00-0000; it does
not include a number with a letter suffix that is used to identify an
auxiliary beneficiary under the Social Security System.
(54 FR 39690, Sept. 27, 1989, as amended at 56 FR 920, Jan. 9, 1991;
57 FR 58340, Dec. 9, 1992)